[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]]



      



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

  Cite this Code:  CFR                                                         
                                                                                                                
  To cite the regulations in this volume use title, part                       
  and section number. Thus, 8 CFR 1.1 refers to title 8,                      
  part 1, section 1.                                                          
                                  ----------------------------------------------------------                    
                                                                                                                


[[Page v]]

                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, January 1, 1997), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I), and Acts Requiring Publication 
in the Federal Register (Table II). A list of CFR titles, chapters, and 
parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408.
SALES
    The Government Printing Office (GPO) processes all sales and 
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Customer Service call 202-512-1803.

                              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

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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

[[Page 63]]

circumstances surrounding the prior application or petition shall 
otherwise be material to the new application or petition.
    (16) Inspection of evidence. An applicant or petitioner shall be 
permitted to inspect the record of proceeding which constitutes the 
basis for the decision, except as provided in the following paragraphs.
    (i) Derogatory information unknown to petitioner or applicant. If 
the decision will be adverse to the applicant or petitioner and is based 
on derogatory information considered by the Service and of which the 
applicant or petitioner is unaware, he/she shall be advised of this fact 
and offered an opportunity to rebut the information and present 
information in his/her own behalf before the decision is rendered, 
except as provided in paragraphs (b)(16)(ii), (iii), and (iv) of this 
section. Any explanation, rebuttal, or information presented by or in 
behalf of the applicant or petitioner shall be included in the record of 
proceeding.
    (ii) Determination of statutory eligibility. A determination of 
statutory eligibility shall be based only on information contained in 
the record of proceeding which is disclosed to the applicant or 
petitioner, except as provided in paragraph (b)(16)(iv) of this section.
    (iii) Discretionary determination. Where an application may be 
granted or denied in the exercise of discretion, the decision to 
exercise discretion favorably or unfavorably may be based in whole or in 
part on classified information not contained in the record and not made 
available to the applicant, provided the regional commissioner has 
determined that such information is relevant and is classified under 
Executive Order No. 12356 (47 FR 14874; April 6, 1982) as requiring 
protection from unauthorized disclosure in the interest of national 
security.
    (iv) Classified information. An applicant or petitioner shall not be 
provided any information contained in the record or outside the record 
which is classified under Executive Order No. 12356 (47 FR 14874; April 
6, 1982) as requiring protection from unauthorized disclosure in the 
interest of national security, unless the classifying authority has 
agreed in writing to such disclosure. Whenever he/she believes he/she 
can do so consistently with safeguarding both the information and its 
source, the regional commissioner should direct that the applicant or 
petitioner be given notice of the general nature of the information and 
an opportunity to offer opposing evidence. The regional commissioner's 
authorization to use such classified information shall be made a part of 
the record. A decision based in whole or in part on such classified 
information shall state that the information is material to the 
decision.
    (17) Verifying claimed citizenship or permanent resident status. The 
status of an applicant or petitioner who claims that he or she is a 
permanent resident of the United States will be verified from official 
records of the Service. The term official records, as used herein, 
includes Service files, arrival manifests, arrival records, Service 
index cards, Immigrant Identification Cards, Certificates of Registry, 
Declarations of Intention issued after July 1, 1929, Alien Registration 
Receipt Cards Forms AR-3, AR-103, I-151 or I-551), passports, and 
reentry permits. To constitute an official record a Service index card 
must bear a designated immigrant visa symbol and must have been prepared 
by an authorized official of the Service in the course of processing 
immigrant admissions or adjustments to permanent resident status. Other 
cards, certificates, declarations, permits, and passports must have been 
issued or endorsed by the Service to show admission for permanent 
residence. Except as otherwise provided in 8 CFR part 101, and in the 
absence of countervailing evidence, such official records shall be 
regarded as establishing lawful admission for permanent residence. If a 
self-petitioner filing under section 204(a)(1)(A)(iii), 
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is 
unable to present primary or secondary evidence of the abuser's status, 
the Service will attempt to electronically verify the abuser's 
citizenship or immigration status from information contained in Service 
computerized records. Other Service records may also be reviewed

[[Page 64]]

at the discretion of the adjudicating officer. If the Service is unable 
to identify a record as relating to the abuser, or the record does not 
establish the abuser's immigration or citizenship status, the self-
petition will be adjudicated based on the information submitted by the 
self-petitioner.
    (18) Withholding adjudication. A district director may authorize 
withholding adjudication of a visa petition or other application if the 
district director determines that an investigation has been undertaken 
involving a matter relating to eligibility or the exercise of 
discretion, where applicable, in connection with the application or 
petition, and that the disclosure of information to the applicant or 
petitioner in connection with the adjudication of the application or 
petition would prejudice the ongoing investigation. If an investigation 
has been undertaken and has not been completed within one year of its 
inception, the district director shall review the matter and determine 
whether adjudication of the petition or application should be held in 
abeyance for six months or until the investigation is completed, 
whichever comes sooner. If, after six months of the district director's 
determination, the investigation has not been completed, the matter 
shall be reviewed again by the district director and, if he/she 
concludes that more time is needed to complete the investigation, 
adjudication may be held in abeyance for up to another six months. If 
the investigation is not completed at the end of that time, the matter 
shall be referred to the regional commissioner, who may authorize that 
adjudication be held in abeyance for another six months. Thereafter, if 
the Associate Commissioner, Examinations, with the concurrence of the 
Associate Commissioner, Enforcement, determines it is necessary to 
continue to withhold adjudication pending completion of the 
investigation, he/she shall review that determination every six months.
    (19) Notification. An applicant or petitioner shall be sent a 
written decision on his or her application, petition, motion, or appeal. 
Where the applicant or petitioner has authorized representation pursuant 
to Sec. 103.2(a), that representative shall also be notified. Documents 
produced after an approval notice is sent, such as an alien registration 
card, shall be mailed directly to the applicant or petitioner.
    (c) Filing of applications for adjustment of status under sections 
210 and 245A of the Act, as amended. (1) The filing of an application 
for temporary resident status under section 245A(a) of the Act must 
conform to the provisions of Sec. 245a.2 of this chapter. The filing of 
an application for permanent resident status under section 245A(b)(1) of 
the Act must conform to the provisions of Sec. 245a.3 of this chapter. 
The filing of an application for adjustment of status to that of a 
temporary resident under section 210(a) of the Act must conform to the 
provisions of Sec. 210.2 of this chapter.
    (2) An application for adjustment to temporary or permanent resident 
status pursuant to section 245A (a) or (b)(1) or section 210(a) of the 
Act may be accepted on behalf of the Attorney General by designated 
state, local and community organizations as well as designated voluntary 
organizations and persons. Each such application shall contain a 
certification signed by both the alien and the preparing member of the 
designated organization or entity, that the applicant has approved 
transmittal of the application to the Service for adjudication.
    (3) An application accepted by any of the designated entities shall 
be stamped with an endorsement as to the date of preparation and 
authorization for transmittal, and may be brought to the legalization 
office with the applicant as an application ready for adjudication. 
However, such application shall not be considered as complete until 
accepted for adjudication by and until the appropriate fee has been paid 
to the Immigration and Naturalization Service.
    (d) Filing of petitions for adjustment of status under section 210A 
of the Act, as amended. (1) The filing of a petition for temporary 
resident status as a Replenishment Agricultural Worker, and waivers 
incident to such filing, under section 210A of the Act must conform to 
the provisions of part 210a of this title.
    (2) A petition for adjustment to temporary resident status pursuant 
to section 210A of the Act shall be accepted

[[Page 65]]

only by the Service, or by personnel employed under contract to the 
Service, who are under Service supervision, and are specifically 
designated responsibility for the initial processing of petitions and 
waivers. Only Service officers may make decisions with respect to the 
granting or denial of petitions and waivers filed under section 210A of 
the Act and part 210a of this title.
    (3) Petitions and waivers filed with the Service pursuant to part 
210a of this title shall not be considered as complete until accepted 
for adjudication by and until the appropriate fee has been paid to the 
Immigration and Naturalization Service.
    (e) Fingerprinting. Service regulations require that applicants for 
various types of immigration benefits submit their fingerprints with the 
applications. To ensure they have access to reputable fingerprinting 
services, the fingerprinting of these benefit applicants must be carried 
out pursuant to the fingerprinting service provisions established in 
this paragraph.
    (1) Fingerprinting by the Service. Where feasible, a local Service 
office shall provide fingerprinting service to applicants for 
immigration benefits. Also, the district director shall consider all 
qualified applicants for DFS certification and certify applicants who 
meet the regulatory standards to supplement the district's efforts. 
Where district Service personnel are providing fingerprinting services, 
the district director may end such services when he or she determines 
that there are sufficient outside or private fingerprinting services 
available at a reasonable fee.
    (2) Designated fingerprinting services--(i) Law enforcement 
agencies. Federal, state, or local police, or military police, in the 
United States are not required to apply for DFS certification. However, 
it is essential that any Federal, state, and local police, or military 
police, that provide fingerprinting services to applicants for 
immigration benefits be familiar with the Service's fingerprinting 
regulations and requirements. In order to receive updates on such 
regulations and requirements, a policy agency that does provide such 
services must register with the Service pursuant to procedures 
prescribed by Sec. 103.2(e)(9). Campus police departments having general 
arrest powers pursuant to a State statute and meeting training 
requirements established by law or ordinance for law enforcement 
officers are included within the category of state or local police 
departments for purposes of Sec. 103.2(e).
    (ii) Other business entities or individuals. Businesses and 
individuals who apply and qualify shall, subject to the requirements of 
Sec. 103.2(e), be approved by the Service to provide fingerprinting 
services.
    (3) Transition to use designated fingerprinting services. As of 
March 1, 1997, the Service will not accept fingerprint cards for 
immigration benefits unless they are taken by:
    (i) A DFS accompanied by a completed attestation, Form I-850A, 
Attestation by Designated Fingerprinting Services Certified to Take 
Fingerprints;
    (ii) An intending DFS or organization that has completed and filed 
an application for DFS status prior to March 1, 1997, which may, pending 
the Service's action upon its application, take fingerprints and 
complete the Form I-850A, indicating that its application for DFS status 
is pending. This provisional authority for an outside entity shall cease 
when its application is denied;
    (iii) A recognized law enforcement agency that is registered as a 
DFS; or
    (iv) Designated Service employees.
    (4) Eligibility for DFS. An outside entity applying for DFS status 
may be a business, a not-for-profit organization, or an individual.
    (i) An individual must establish that he or she is a United States 
citizen or lawful permanent resident, and has not been convicted of an 
aggravated felony or any crime related to dishonesty or false statements 
involving a civil penalty for fraud.
    (ii) A business or a not-for-profit organization must establish the 
identity of its chief operations officer, who exercises primary and 
oversight control over the organization's operations, and its 
fingerprinting employees; and the business or a not-for-profit 
organization must establish that the chief operations officer and 
fingerprinting employees are United States citizens or lawful permanent 
resident(s), and that

[[Page 66]]

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

[[Page 67]]

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

[[Page 68]]

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

[[Page 69]]

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

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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

[[Page 102]]

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

[[Page 103]]

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

[[Page 105]]

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

[[Page 106]]

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

[[Page 107]]

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

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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:

[[Page 117]]

    (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

[[Page 122]]

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

[[Page 124]]

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

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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

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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

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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.

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    (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

[[Page 245]]

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

[[Page 246]]

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.

[[Page 247]]

    (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

[[Page 248]]

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,

[[Page 250]]

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

[[Page 251]]

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

[[Page 252]]

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

[[Page 258]]

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

[[Page 277]]

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;

[[Page 278]]

    (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.

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    (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

[[Page 286]]

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.

[[Page 287]]

    (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

[[Page 292]]

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:

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    (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

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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]



Sec. 231.3  Exemptions for private vessels and aircraft.

    The provisions of this part relating to the presentation of arrival 
and departure manifests shall not apply to a private vessel or private 
aircraft not engaged directly or indirectly in the carriage of persons 
or cargo for hire.

[32 FR 9627, July 4, 1967]



PART 232--DETENTION FOR EXAMINATION TO DETERMINE MENTAL OR PHYSICAL DEFECTS--Table of Contents




    Authority: 8 U.S.C. 1103 and 1222.



Sec. 232.1  Detention.

    When a district director has reasonable grounds for believing that 
persons arriving in the United States should be detained for reasons 
specified in section 232 of the Act, he/she shall, after consultation 
with the United States Public Health Service at the port of entry, 
notify the master or agent of the arriving vessel or aircraft of his/her 
intention to effect such detention by serving on the master or agent the 
Form I-259C in accordance with Sec. 235.3(e) of this chapter.

[54 FR 101, Jan. 4, 1989]



PART 233--[RESERVED]






PART 234--PHYSICAL AND MENTAL EXAMINATION OF ARRIVING ALIENS--Table of Contents




234.1  General.
234.2  Examination in the United States of alien applicants for benefits 
          under the immigration laws and other aliens.

    Authority: Secs. 103, 234, 66 Stat. 173, 198; (8 U.S.C. 1103, 1224).



Sec. 234.1  General.

    The manner in which the physical and mental examination of aliens 
shall be conducted is set forth in 42 CFR part 34.

[38 FR 33061, Nov. 30, 1973, as amended at 38 FR 34315, Dec. 13, 1973]



Sec. 234.2  Examination in the United States of alien applicants for benefits under the immigration laws and other aliens.

    (a) General. When a medical examination is required of an alien who 
files an application for status as a permanent resident under section 
245 of the Act or part 245 of this chapter, it shall be made by a 
selected civil surgeon. Such examination shall be performed in 
accordance with 42 CFR part 34 and any additional instructions and 
guidelines as may be considered necessary by the U.S. Public Health 
Service. In any other case in which the Service requests a medical 
examination of an alien, the examination shall be made by a medical 
officer of the U.S. Public Health Service, or by a civil surgeon if a 
medical officer of the U.S. Public Health Service is not located within 
a reasonable distance or is otherwise not available.
    (b) Selection of civil surgeons. When a civil surgeon is to perform 
the examination, he shall be selected by the district director having 
jurisdiction over the area of the alien's residence. The district 
director shall select as many civil surgeons, including clinics and 
local, county and state health departments employing qualified civil 
surgeons, as he determines to be necessary to serve the needs of the 
Service in a locality under his jurisdiction. Each civil surgeon 
selected shall be a licensed physician with no less than 4 years' 
professional experience. Under usual circumstances physicians will be 
required to meet the 4 year professional experience criteria. However, 
at the district director's discretion other physicians with less 
experience can be

[[Page 345]]

designated to address unusual or unforeseen situations as the need 
arises. Officers of local health departments and medical societies may 
be consulted to obtain the names of competent surgeons and clinics 
willing to make the examinations. An understanding shall be reached with 
respect to the fee which the surgeon or clinic will charge for the 
examination. The alien shall pay the fee agreed upon directly to the 
surgeon making the examination.
    (c) Civil surgeon reports--(1) Applicants for status of permanent 
resident.
    (i) When an applicant for status as a permanent resident is found 
upon examination to be free of any defect, disease, or disability listed 
in section 212(a) of the Act, the civil surgeon shall endorse Form I-
486A, Medical Examination and Immigration Interview, and forward it with 
the X-ray and other pertinent laboratory reports to the immigration 
office from which the alien was referred, The immigration office may 
return the X-ray and laboratory reports to the alien. If the applicant 
is found to be afflicted with a defect, disease or disability listed 
under section 212(a) of the Act, the civil surgeon shall complete Form 
OF-157 in duplicate, and forward it with Form I-486A, X-ray, and other 
pertinent laboratory reports to the immigration office from which the 
alien was referred.
    (ii) If the applicant is found to be afflicted with active 
tuberculosis and a waiver is granted under section 212(g) of the Act, 
the immigration office will forward a copy of the completed Form I-601 
(Application for Waiver of Grounds of Excludability) and a copy of the 
Form OF-157 to the Director, Division of Quarantine, Center for 
Prevention Sevices, Centers for Disease Control, Atlanta, GA 30333.
    (iii) If an alien who if found to be mentally retarded or to have 
had one or more previous attacks of insanity, applies for a waiver of 
excludability under section 212(g) of the Act, the immigration office 
will submit to the Director, Division of Quarantine, Center for 
Prevention Services, Centers for Disease Control, Atlanta, GA 30333, the 
completed Form I-601, including a copy of the medical report specified 
in the instructions attached to that form, and a copy of Form OF-157. 
This official shall review the medical report and advise the Service 
whether it is acceptable, in accordance with Sec. 212.7(b)(4)(ii) of 
this chapter.
    (iv) In any other case where the applicant has been found to be 
afflicted with active or inactive tuberculosis or an infectious or 
noninfectious leprosy condition, the immigration office will forward a 
copy of Form OF-157 with the applicant's address endorsed on the reverse 
to the Director, Division of Quarantine, Center for Prevention Services, 
Centers for Disease Control, Atlanta, GA 30333.
    (2) Other aliens. The results of the examination of an alien who is 
not an applicant for status as a permanent resident shall be entered on 
Form I-141, Medical Certificate, in duplicate. This form shall be 
returned to the Service office by which the alien was referred.
    (d) U.S. Public Health Service hospital and outpatient clinic 
reports. When an applicant for a benefit under the immigration laws, 
other than an applicant for status as a permanent resident, is examined 
by a medical officer of the U.S. Public Health Service, the results of 
the examination shall be entered on Form I-141, Medical Certificate, in 
duplicate. The form shall be returned to the Service office by which the 
alien was referred.

[38 FR 33061, Nov. 30, 1973, as amended at 48 FR 30610, July 5, 1983; 52 
FR 16194, May 1, 1987]



PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION--Table of Contents




Sec.
235.1  Scope of examination.
235.2  Examination postponed.
235.3  Detention and deferred inspection.
235.4  Endorsement of documents.
235.5  Preinspection.
235.6  Referral to immigration judge.
235.7  Referral of certain cases to district director.
235.8  Temporary exclusion.
235.9  Conditional entries.
235.10  U.S. Citizen Identification Card.
235.11  Admission of conditional permanent residents.
235.12  Northern Mariana identification card.
235.13  Automated inspection services.

    Authority: 8 U.S.C. 1101, 1103, 1182, 1183, 1201, 1224, 1225, 1226, 
1227, 1228, 1252.

[[Page 346]]



Sec. 235.1  Scope of examination.

    (a) General. Application to enter the United States shall be made 
either in person to an immigration officer at a U.S. port of entry 
enumerated in part 100 of this chapter at a time when the immigration 
office at the port is open for inspection or as provided in Sec. 235.13.
    (b) U.S. citizens. A person claiming U.S. citizenship must establish 
that fact to the examining immigration officer's satisfaction and must 
present a U.S. passport if such passport is required under the 
provisions of 22 CFR part 53. If such an applicant for admission fails 
to satisfy the examining immigration officer that he is a U.S. citizen, 
he shall thereafter be inspected as an alien.
    (c) Alien members of United States Armed Forces and members of a 
force of a NATO country. Any alien member of the United States Armed 
Forces who is in the uniform of, or bears documents identifying him/her 
as a member of, such Armed Forces, and who is coming to or departing 
from the United States under official orders or permit of such Armed 
Forces is not subject to the exclusion provisions of the Act. A member 
of the force of a NATO country signatory to Article III of the Status of 
Forces Agreement seeking to enter the United States under official 
orders is exempt from the control provision of the Act. Any alien who is 
a member of either of the foregoing classes may, upon request, be 
inspected under the provisions of the Act, and his/her entry as an alien 
may be recorded. If the alien does not appear to the examining 
immigration officer to be clearly and beyond a doubt entitled to enter 
the United States under the provisions of the Act, the alien shall be so 
informed and his/her entry shall not be recorded.
    (d) Qualifications for aliens. The following general qualifications 
and requirements shall be met by each alien seeking to enter the United 
States for permanent, indefinite, or temporary stay, and regardless of 
the purpose for which he/she seeks to enter:
    (1) He/she shall present whatever documents are required and shall 
establish to the satisfaction of the immigration officer that he/she is 
not subject to exclusion under the immigration laws, Executive Orders, 
or Presidential Proclamations and is entitled under all of the 
applicable provisions of the immigration laws and this chapter to enter 
the United States.
    (2) For the purpose of this part, any alien coming to a United 
States port from a foreign port, from an outlying possession of the 
United States, from Guam, Puerto Rico, or the Virgin Islands of the 
United States, or from another port of the United States at which 
examination under this part was not completed, shall be regarded as an 
arrival.
    (3) Any person, including an alien crewman, passing through the 
Canal Zone on board a vessel which enters and clears at the Canal Zone 
port only to transit the Zone, to refuel, or to land passengers or 
crewmen for medical treatment, shall not be regarded as coming from a 
foreign port solely by reason of such passage.
    (4) Any person including an alien crewman, on board a vessel which 
after arrival at a United States port of entry passes the Great Lakes 
seaway en route to another United States port and which enters and 
clears at points in Canada only to transit the seaway, to refuel, or to 
land passengers or crewmen for medical treatment, shall not be regarded 
as coming from a foreign port solely by reason of such passage.
    (5) Any person seeking to enter the United States, including an 
alien crewman, on board a vessel en route from one United States port to 
another United States port shall not be regarded as coming from a 
foreign port solely by reason of the vessel's stop at Freeport, Bahamas, 
for bunkering only.
    (6) Any person, including an alien crewman on board a vessel en 
route to the United States solely for bunkering purposes or an aircraft 
en route to the United States solely for refueling purposes, who does 
not seek to enter the United States, shall be regarded as not arriving 
for purposes of immigration.
    (7) The immigration inspection of any person, including an alien 
crewman, on board a vessel or aircraft, may be postponed to an onward 
port of arrival, if the vessel or aircraft will only bunker or refuel at 
the first port of call.

[[Page 347]]

    (8) Any citizen of Canada or Mexico seeking to enter the United 
States as a principal alien E-1 or E-2, or as an L-1 or TN, for the 
purpose of employment at a site where the Secretary of Labor has 
certified to or otherwise informed the Commissioner that there is a 
strike or other labor dispute involving a work stoppage of workers in 
progress, and the temporary entry of that citizen of Canada or Mexico 
may affect adversely either the settlement of any such labor dispute or 
the employment of any person who is involved in any such dispute, may be 
refused entry in the classification sought. The applicant shall be 
advised in writing of the reason(s) for the refusal. A designated 
representative of the government of Canada or Mexico shall be promptly 
notified in writing of the reason(s) for the refusal of entry.
    (e) U.S. citizens, lawful permanent residents of the United States, 
Canadian nationals, and other residents of Canada having a common 
nationality with Canadians, entering the United States by small craft. 
Upon being inspected by an immigration officer and found eligible for 
admission as a citizen of the United States, or found eligible for 
admission as a lawful permanent resident of the United States, or in the 
case of a Canadian national or other resident of Canada having a common 
nationality with Canadians being found eligible for admission as a 
temporary visitor for pleasure, a person who desires to enter the United 
States from Canada in a small pleasure craft of less than 5 net tons 
without merchandise may be issued, upon application and payment of a fee 
prescribed under Sec. 103.7(b)(1) of this chapter, Form I-68, Canadian 
Border Boat Landing Card, and may thereafter enter the United States 
along with the immediate shore area of the United States on the body of 
water designated on the Form I-68 from time to time for the duration of 
that navigation season without further inspection. In the case of a 
Canadian national or other resident of Canada having a common 
nationality with Canadians, the Form I-68 shall be valid only for the 
purpose of visits not to exceed 72 hours and only if the alien will 
remain in nearby shopping areas, nearby residential neighborhoods, or 
other similar areas adjacent to the immediate shore area of the United 
States. If the bearer of Form I-68 seeks to enter the United States by 
means other than small craft of less than 5 net tons without 
merchandise, or if he or she seeks to enter the United States for other 
purposes, or if he or she is an alien, other than a lawful permanent 
resident alien of the United States, and intends to proceed beyond an 
area adjacent to the immediate shore area of the United States, or 
remains in the United States longer than 72 hours, he or she must apply 
for admission at a United States port of entry.
    (f) Arrival/Departure Record, Form I-94--(1) Nonimmigrants. Each 
nonimmigrant alien, except as indicated below, who is admitted to the 
United States shall be issued a completely executed Form I-94 which must 
be endorsed to show: Date and place of admission, period of admission, 
and nonimmigrant classification. A nonimmigrant alien who will be making 
frequent entries into the United States over its land borders may be 
issued a Form I-94 which is valid for any number of entries during the 
validity of the form. A nonimmigrant alien entering the United States at 
a land border Port-of-Entry who is issued Form I-94 will be charged a 
fee as prescribed under Sec. 103.7(b)(1) of this chapter. In the case of 
a nonimmigrant alien admitted with the classification TN (Trade, North 
American Free Trade Agreement (NAFTA)), the specific occupation of such 
alien as set forth in Appendix 1603.D.1 of the NAFTA shall be recorded 
in item number 18 on the reverse side of the arrival portion of Form I-
94, and the name of the employer shall be noted on the reverse side of 
both the arrival and departure portions of Form I-94. The departure 
portion of Form I-94 shall bear the legend ``multiple entry.'' A Form I-
94 is not required by:
    (i) Any nonimmigrant alien described in Sec. 212.1(a) of this 
chapter and 22 CFR 41.129(a) who is admitted as a visitor for business 
or pleasure or admitted to proceed in direct transit through the United 
States;
    (ii) Any nonimmigrant alien residing in the British Virgin Islands 
who was

[[Page 348]]

admitted only to the U.S. Virgin Islands as a visitor for business or 
pleasure under Sec. 212.1(b) of this chapter;
    (iii) Any Mexican national in possession of a valid nonresident 
alien Mexican border crossing card who is admitted as a border crosser 
or nonimmigrant visitor at a Mexican border port of entry for a period 
not to exceed 72 hours to visit within 25 miles of the border;
    (iv) Any Mexican national in possession of a valid Mexican passport 
and a multiple-entry nonimmigrant visa issued under section 
101(a)(15)(B) of the Act who is admitted at a Mexican border port of 
entry as a nonimmigrant visitor for a period not to exceed 72 hours to 
visit within 25 miles of the border; or
    (v) Any Mexican national eligible for a Mexican Border Visitors 
Permit, Form I-444, under paragraph (g) of this section.
    (vi) Bearers of Mexican diplomatic or official passports described 
in Sec. 212.1(c-1) of this chapter.
    (2) Paroled aliens. Any alien paroled into the United States under 
section 212(d)(5) of the Act, including any alien crewmember, shall be 
issued a completely executed Form I-94 which must include:
    (i) Date and place of parole;
    (ii) Period of parole; and
    (iii) Conditions under which the alien is paroled into the United 
States. A fee shall not be required for Form I-94 when it is issued for 
the purpose of paroling an alien into the United States.
    (g) Mexican Border Visitors Permit, Form I-444. (1) Any Mexican 
national exempt from issuance of a Form I-94 under paragraph (f)(1) 
(iii) or (iv) of this section shall be issued a Mexican Border Visitor's 
Permit, Form I-444, whenever:
    (i) The period of admission sought is more than 72 hours but not 
more than 30 days; or
    (ii) The applicant desires to travel more than 25 miles from the 
Mexican border but within the 5-state area of Arizona, California, 
Nevada, New Mexico, or Texas. A separate Form I-444 will be issued for 
each applicant for admission and a fee as prescribed under 
Sec. 103.7(b)(1) of this chapter shall be charged for each applicant, or 
until the family cap is reached.
    (2) If, after entry and issuance of the Form I-444, the alien seeks 
to remain for longer than 30 days or to proceed outside of the five-
state area, the alien must apply for permission at a Service office 
located within the five-state area.

[32 FR 9627, July 4, 1967, as amended at 32 FR 11628, Aug. 11, 1967; 45 
FR 70428, Oct. 24, 1980; 46 FR 43826, Sept. 1, 1981; 47 FR 49953, Nov. 
4, 1982; 49 FR 33434, Aug. 23, 1984; 58 FR 69217, Dec. 30, 1993; 60 FR 
40068, Aug. 7, 1995; 60 FR 50389, Sept. 29, 1995]



Sec. 235.2  Examination postponed.

    Whenever an alien on arrival is found or believed to be suffering 
from a disability which renders it impractical to proceed with the 
examination under the Act, the examination of such alien, members of his 
family concerning whose admissibility it is necessary to have such alien 
testify, and any accompanying aliens whose protection or guardianship 
will be required should such alien be found inadmissible shall be 
deferred for such time and under such conditions as the district 
director in whose district the port is located imposes.

[22 FR 9791, Dec. 6, 1957]



Sec. 235.3  Detention and deferred inspection.

    (a) Prior to inspection. All persons arriving at a port in the 
United States by vessel or aircraft shall be detained aboard the vessel 
or at the airport of arrival by the master, commanding officer, purser, 
person in charge, agent, owner, or consignee of such vessel or aircraft 
until admitted or otherwise permitted to land by an officer of the 
Service. Notice or order to detain shall not be required. The Service 
will not be liable for any expenses of a passenger who has not been 
presented for inspection and for whom a determination has not been made 
concerning admissability by a Service officer.
    (b) Aliens with no documentation or false documentation. Any alien 
who appears to the inspecting officer to be inadmissible, and who 
arrives without documents (except an alien for whom documentary 
requirements are waived

[[Page 349]]

under Sec. 211.1(b)(3) or Sec. 212.1 of this chapter) or who arrives 
with documentation which appears on its face to be false, altered, or to 
relate to another person, or who arrives at a place other than a 
designated port of entry, shall be detained in accordance with section 
235(b) of the Act. Parole of such aliens shall only be considered in 
accordance with Sec. 212.5(a) of this chapter.
    (c) Aliens with documents. Any alien who appears to the inspecting 
officer to be inadmissible, but who does not fall within paragraph (b) 
of this section, may be detained, paroled, or paroled for deferred 
inspection by the inspecting officer. In determining whether or not an 
alien shall be detained, paroled or paroled for deferred inspection, the 
inspecting officer shall consider the likelihood that the alien will 
abscond or pose a security risk.
    (d) Service custody. The Service will assume custody of any alien 
subject to detention under Sec. 235.3 (b) or (c) of this section, except 
in the case of an alien who is presented as a Transit Without Visa 
(TWOV) passenger.
    (e) Notice to carriers. In the opinion of the examining immigration 
officer, it is not practical to resolve a question of admissability at 
the time of arrival of an alien passenger on a vessel or aircraft, the 
officer shall execute a Form I-259C to notify the agent, master, or 
commanding officer of the vessel or aircraft, if applicable, that the 
alien passenger may be excludable from the United States and in the 
event the alien is formally ordered excluded and deported, the carrier 
will be responsible for detention and transportation expenses to the 
last foreign port of embarkation as provided in Sec. 237.5 of this 
chapter.
    (f) Detention in Non-Service facility. Whenever an alien is taken 
into Service custody and detailed at a facility other than at a Service 
Processing Center, the public or private entities contracted to perform 
such service shall have been approved for such use by the Service's Jail 
Inspection Program or shall be performing such service under contract in 
compliance with the Standard Statement of Work for Contract Detention 
Facilities. Both programs are administered by the Detention and 
Deportation section having jurisdiction over the alien's place of 
detention. Under no circumstances shall an alien be detained in 
facilities not meeting the four mandatory criteria for usage. These are: 
(1) 24-Hour Supervision, (2) Conformance with Safety and Emergency 
Codes, (3) Food Service and (4) Availability of Emergency Medical Care.
    (g) Privilege of communication. The mandatory notification 
requirements of consular and diplomatic officers pursuant to 8 CFR 
242.2(g) apply to exclusion proceedings.

[47 FR 30046, July 9, 1982, as amended at 47 FR 46494, Oct. 19, 1982; 54 
FR 101, Jan. 4, 1989; 54 FR 6365, Feb. 9, 1989; 60 FR 16043, Mar. 29, 
1995]



Sec. 235.4  Endorsement of documents.

    The admitting immigration officer shall, by means of a stamp, record 
in each passport required to be presented the word ``Admitted'' and the 
date and place of admission. The same information shall, upon admission, 
be recorded on any immigrant visa, reentry permit or required Form I-94. 
The ``I-94 Departure Record'' part of Form I-94, properly endorsed, 
shall be returned to the alien for retention while in the United States. 
At the time of departure from the United States, the alien shall 
surrender the I-94 Departure Record to a representative of the carrier 
transporting the alien.

[48 FR 35349, Aug. 4, 1983]



Sec. 235.5  Preinspection.

    (a) In United States territories and possessions. In the case of any 
aircraft proceeding from Guam, Puerto Rico, or the Virgin Islands of the 
United States destined directly and without touching at a foreign port 
or place to any other of such places or to one of the States of the 
United States or the District of Columbia, the examination required by 
the act of the passengers and crew may be made prior to the departure of 
the aircraft, and in such event, final determination of admissibility 
shall be made immediately prior to such departure. The examination shall 
be conducted in accordance with sections 234, 235, 236, and 237 of the 
act and this part and parts 236 and 237 of this chapter,

[[Page 350]]

except that if it appears to the examining immigration officer that any 
person in the United States being examined under this section is prima 
facie deportable from the United States, further action with respect to 
his examination shall be deferred and further proceedings conducted as 
provided in section 242 of the Act and part 242 of this chapter. When 
the foregoing inspection procedure is applied to any aircraft, persons 
examined and found admissible shall be placed aboard the aircraft, or 
kept at the airport separate and apart from the general public until 
they are permitted to board the aircraft. No other person shall be 
permitted to depart on such aircraft until and unless he is found to be 
admissible as provided in this section.
    (b) In contiguous territory and adjacent islands. On and after 
December 24, 1952, in the case of any aircraft or vessel proceeding 
directly from a port or place in foreign contiguous territory or 
adjacent islands to a port of entry in the United States, the 
examination and inspection of passengers and crew required by the Act 
and final determination of admissibility may be made immediately prior 
to such departure at the port or place in foreign contiguous territory 
or adjacent islands and shall have the same effect under the act as 
though made at the destined port of entry in the United States.

[23 FR 3997, June 7, 1958, as amended at 24 FR 2583, Apr. 3, 1959; 50 FR 
11842, Mar. 26, 1985; 54 FR 101, Jan. 4, 1989]



Sec. 235.6  Referral to immigration judge.

    (a) Notice. If, in accordance with the provisions of section 235(b) 
of the Act, the examining immigration officer detains an alien for 
further inquiry before an immigration judge, he shall immediately sign 
and deliver to the alien a Notice to Alien Detained for Hearing by an 
Immigration Judge (Form I-122). If an asylum officer denies an 
application for asylum or withholding of deportation filed by an alien 
who is an applicant for admission or has been paroled under Sec. 212.5 
of this chapter, this Notice may be signed and delivered to the alien by 
the supervisory asylum officer or by the Assistant Commissioner, 
Refugees, Asylum and Parole. If the alien is unable to read or 
understand the notice, it shall be read and explained to him by an 
employee of the Service, through an interpreter, if necessary, prior to 
such further inquiry. In addition, the alien shall be advised of his 
right to representation by counsel of his choice at no expense to the 
Government, and of the availability of free legal services programs 
qualified under part 292a of this chapter and organizations recognized 
pursuant to Sec. 292.2 of this chapter, located in the district where 
the alien is being detained. He shall also be furnished with a list of 
such programs.
    (b) Certification for mental condition; medical appeal. An alien 
certified under paragraph (1), (2), (3), (4), or (5) of section 212(a) 
of the Act shall be advised by the examining immigration officer that he 
may appeal to a board of medical officers of the United States Public 
Health Service pursuant to section 234 of the Act. If such an appeal is 
taken, the district director shall arrange for the convening of the 
medical board.

[24 FR 6477, Aug. 12, 1959, as amended at 44 FR 4653, Jan. 23, 1979; 56 
FR 50812, Oct. 9, 1991]



Sec. 235.7  Referral of certain cases to district director.

    If the examining immigration officer has reason to believe that the 
cause of an alien's excludability can readily be removed by the posting 
of a bond in accordance with section 213 of the Act, or by the exercise 
of section 211, section 212(d) (3) or (4), or section 212(c) of the Act, 
or by granting permission to reapply for admission after deportation or 
removal, he may in lieu of detaining the alien for hearing in accordance 
with section 235(b) and section 236 of the Act refer the alien's case to 
the district director within whose district the port is located for 
consideration of such action and defer further examination pending the 
district director's decision. Refusal of a district director to 
authorize admission under section 213, or to grant an application for 
the benefits of section 211, section 212(d) (3) or (4), or section 
212(c), or to grant permission to reapply for admission after

[[Page 351]]

deportation or removal shall be without prejudice to the renewal of such 
application or the authorizing of such admission by the special inquiry 
officer without additional fee.

[28 FR 4251, Apr. 30, 1963]



Sec. 235.8  Temporary exclusion.

    (a) Report. Any immigration officer who temporarily excludes any 
alien under section 235(c) of the Act shall report the action promptly 
to the district director who has administrative jurisdiction over the 
port at which the alien arrived. The immigration officer shall, if 
possible, take a brief sworn question-and-answer statement from the 
alien, and the alien shall be notified by personal service of Form I-147 
of the action taken and the right to make written representations. If 
the subject of the report is an alien who seeks to enter the United 
States other than under section 101(a)(15)(D) of the Act, the district 
director shall forward the report to the regional commissioner for 
further action as provided in paragraph (b) of this section.
    (b) Action by regional commissioner. If the regional commissioner is 
satisfied that the alien is inadmissible to the United States under 
paragraph (27), (28), or (29) of section 212(a) of the Act and if the 
regional commissioner, in the exercise of his discretion, concludes that 
such inadmissibility is based on information of a confidential nature 
the disclosure of which would be prejudicial to the public interest, 
safety, or security, he may deny any hearing or further hearing by a 
special inquiry officer and order such alien excluded and deported, or 
enter such other order in the case as he deems appropriate. In any other 
case the regional commissioner may direct that an immigration officer 
shall further examine the alien as to his admissibility or that the 
alien be given a hearing or further hearing before a special inquiry 
officer.
    (c) Finality of decision. The decision of the regional commissioner 
provided for in paragraph (b) of this section shall be final and no 
appeal may be taken therefrom. The decision of the regional commissioner 
shall be in writing, signed by him and, unless it contains confidential 
matter, a copy shall be served on the alien. If the decision contains 
confidential matter, a separate order showing only the ultimate 
disposition of the case shall be signed by the regional commissioner and 
served on the alien.
    (d) Hearing by immigration judge. If the regional commissioner 
directs that an alien temporarily excluded be given a hearing or further 
hearing before an immigration judge, the hearing and all further 
proceedings in the matter shall be conducted in accordance with the 
provisions of section 236 and other applicable sections of the Act to 
the same extent as though the alien had been referred to an immigration 
judge by the examining immigration officer; except, that if confidential 
information, not previously considered in the matter, is adduced 
supporting the exclusion of the alien under paragraph (27), (28), or 
(29) of section 212(a) of the Act, the disclosure of which, in the 
discretion of the immigration judge, may be prejudicial to the public 
interest, safety, or security, the immigration judge may again 
temporarily exclude the alien under the authority of section 235(c) of 
the Act and further action shall be taken as provided in this section.

[22 FR 9791, Dec. 6, 1957; 22 FR 9519, Nov. 28, 1957, as amended at 48 
FR 8, Jan. 3, 1983; 48 FR 30350, July 1, 1983]



Sec. 235.9  Conditional entries.

    (a) Inspection of conditional entrant and refugee parolee as to 
admissibility for permanent residence. Each alien who has been admitted 
under section 203(a)(7) as a conditional entrant, or paroled under 
section 212(d)(5) of the Act as a refugee prior to September 30, 1980, 
and who is not otherwise eligible for retroactive adjustment of status 
to permanent resident, shall be required to appear before an immigration 
officer within one year following conditional entry or parole. If over 
14 years of age, the conditional entrant or parolee shall be 
interrogated under oath by an immigration officer and a determination of 
admissibility shall be made under parts 235 and 236 of this chapter. 
Except as provided in parts 245 and 249 of this chapter, an application 
under this part shall be the sole method of requesting the exercise of 
discretion under section 212 (g), (h), or (i) of the Act, insofar as it 
relates to

[[Page 352]]

the excludability of an alien in the United States. Any alien who is 
inspected and admitted under this part who is eligible for and wishes to 
apply for naturalization immediately shall be processed under 
Sec. 235.9(b)(3) of this chapter.
    (b) Request to ``roll back'' permanent residence date by permanent 
resident who was paroled into the United States as a refugee--(1) 
General. A request by a permanent resident who was originally paroled 
into the United States as a refugee before September 30, 1980 to ``roll 
back'' the date of acquiring permanent residence to the date of original 
parole as a refugee shall be made in writing to the district director 
having jurisdiction over the applicant's place of residence. Each 
request must be accompanied by the Alien Registration Card, Form I-551, 
previously issued to the applicant, and completed forms G-325 and FD-
258. Where an applicant is eligible for and wishes to apply immediately 
for naturalization, the request must contain a statement to that effect. 
The decision on the request shall be made by the district director. 
There is no appeal from the district director's decision.
    (2) Applicant for ``roll back'' who is not eligible for or who does 
not wish to file an application for naturalization immediately. Where 
the recipient of a ``roll back'' would not be immediately eligible to 
apply for naturalization, or if eligible, does not wish to do so 
immediately, the ``roll back'' request must be accompanied by three 
identical color photographs taken within the past thirty days. The 
photographs must comply with the requirements for an ADIT card. These 
requirements may be obtained from any office of the Immigration and 
Naturalization Service. If the request is approved, the applicant shall 
be furnished a new Alien Registration Card bearing the new date lawful 
admission for permanent residence is recorded.
    (3) Where ``roll back'' would make applicant immediately eligible 
for naturalization and applicant intends to file the application 
immediately. Where a ``roll back'' of the date of permanent residence 
under this regulation would make the applicant immediately eligible for 
naturalization, and the applicant indicates a desire to file an 
application for naturalization immediately, the district director shall 
receive the ``roll back'' application and process it. If the ``roll 
back'' application is granted, the new date lawful admission for 
permanent residence is recorded shall be entered on Form I-181 and 
placed in the applicant's file. The applicant shall then be furnished 
the appropriate forms and instructions for filing the application for 
naturalization. A new Alien Registration Card need not be issued under 
these circumstances. Where a new Alien Registration Card is not issued, 
Form I-181 will be so noted.
    (c) Termination of conditional entrant or refugee parole status. 
Whenever a district director has reason to believe that a conditional 
entrant under section 203(a)(7) of the Act or an alien paroled or a 
refugee under section 212(d)(5) of the Act before September 30, 1980, 
whose status has not otherwise been terminated or changed, it or has 
become inadmissible to the United States under any provision (except 
paragraph (20)) of section 212(a) of the Act, the district director 
shall, in the case of a parolee, comply with Sec. 212.5(d) of this 
chapter, and thereafter serve on either class of alien, Notice to Alien 
Detained for Hearing Before Immigration Judge, Form I-122, in accordance 
with Sec. 235.6 of this part. The alien shall be referred for a hearing 
before an immigration judge under sections 235, 236, and 237 of the Act 
and parts 235, 236, and 237 of this chapter. If the immigration judge 
determines that the alien is not inadmissible to the United States or, 
if inadmissible, that the alien is prima facie eligible for a waiver on 
the grounds of excludability under section 212 (g), (h), or (i) of the 
Act, the judge shall order the proceedings terminated and refer the 
matter to the district director for further proceedings under section 
203(g) of the Act. The order shall be without prejudice to renewing 
proceedings or instituting new proceedings under this section. There is 
no appeal from a decision by a district director denying an application 
for a waiver under section 212 (g), (h), or (i) of the Act, but the 
denial is without prejudice to the renewal of the application in 
proceedings before an immigration

[[Page 353]]

judge. If the immigration judge determines that the alien is 
inadmissible to the United States for permanent residence under any 
provision of the Act, except section 212(a)(20), and that the alien is 
not entitled to the benefits of section 212 (g), (h), or (i) of the Act, 
the judge shall order the termination of the alien's conditional entry 
and make such further order as may be proper. The decision of the 
immigration judge may be appealed under Sec. 236.7 of this chapter.

[48 FR 8, Jan. 3, 1983, as amended at 58 FR 48778, Sept. 20, 1993]



Sec. 235.10  U.S. Citizen Identification Card.

    (a) General. The U.S. Citizen Identification Card, Form I-197, is no 
longer issued by the Service but valid existing cards will continue to 
be acceptable documentation of U.S. citizenship. Possession of the 
identification card is not mandatory for any purpose. A U.S. Citizen 
Identification Card remains the property of the United States. Because 
the identification card is no longer issued, there are no provisions for 
replacement cards.
    (b) Surrender and voidance--(1) Institution of proceeding under 
section 236, 242 or 342 of the Act. A U.S. citizen identification card 
must be surrendered provisionally to a Service office upon notification 
by the district director that a proceeding under section 236, 242 or 342 
of the Act is being instituted against the person to whom the card was 
issued. The card shall be returned to the person if the final order in 
the proceeding does not result in voiding the card under this paragraph. 
A U.S. Citizen Identification Card is automatically void if the person 
to whom it was issued is determined to be an alien in a proceeding 
conducted under section 236 or 242 of the Act, or if a certificate, 
document, or record relating to that person is cancelled under section 
342 of the Act.
    (2) Investigation of validity of identification card. A U.S. Citizen 
Identification Card must be surrendered provisionally upon notification 
by a district director that the validity of the card is being 
investigated. The card shall be returned to the person who surrendered 
it if the investigation does not result in a determination adverse to 
his or her claim to be a United States citizen. When an investigation 
results in a tentative determination adverse to the applicant's claim to 
be a United States citizen, the applicant shall be notified by certified 
mail directed to his or her last known address. The notification shall 
inform the applicant of the basis for the determination and of the 
intention of the district director to declare the card void unless 
within 30 days the applicant objects and demands an opportunity to see 
and rebut the adverse evidence. Any rebuttal, explanation, or evidence 
presented by the applicant must be included in the record of proceeding. 
The determination whether the applicant is a United States citizen must 
be based on the entire record and the applicant shall be notified of the 
determination. If it is determined that the applicant is not a U.S. 
citizen, the applicant shall be notified of the reasons, and the card 
deemed void. There is no appeal from the district director's decision.
    (3) Admission of alienage. A U.S. Citizen Identification Card is 
void if the person to whom it was issued admits in a statement signed 
before an immigration officer that he or she is an alien and consents to 
the voidance of the card. Upon signing the statement the card must be 
surrendered to the immigration officer.
    (4) Surrender of void card. A void U.S. Citizen Identification Card 
which has not been returned to the Service must be surrendered without 
delay to an immigration officer or to the issuing office of the Service.
    (c) U.S. Citizen Identification Card previously issued on Form I-
179. A valid U.S. Citizen Identification Card issued on Form I-179 
continues to be valid subject to the provisions of this section.

[48 FR 9504, Mar. 7, 1983]



Sec. 235.11  Admission of conditional permanent residents.

    (a) General--(1) Conditional residence based on family relationship. 
An alien seeking admission to the United States with an immigrant visa 
as the spouse or son or daughter of a United States citizen or lawful 
permanent resident

[[Page 354]]

shall be examined to determine whether the conditions of section 216 of 
the Act apply.
    If so, the alien shall be admitted conditionally for a period of two 
years. At the time of admission, the alien shall be notified that the 
alien and his or her petitioning spouse must file a Petition to Remove 
the Conditions on Residence (Form I-751) within the 90-day period 
immediately preceding the second anniversary of the alien's admission 
for permanent residence.
    (2) Conditional residence based on entrepreneurship. An alien 
seeking admission to the United States with an immigrant visa as an 
alien entrepreneur (as defined in section 216A(f)(1) of the Act) or the 
spouse or unmarried minor child of an alien entrepreneur shall be 
admitted conditionally for a period of two years. At the time of 
admission, the alien shall be notified that the principal alien 
(entrepreneur) must file a Petition by Entrepreneur to Remove Conditions 
(Form I-829) within the 90-day period immediately preceding the second 
anniversary of the alien's admission for permanent residence.
    (b) Correction of endorsement on immigrant visa. If the alien is 
subject to the provisions of section 216 of the Act, but the 
classification endorsed on the immigrant visa does not so indicate, the 
endorsement shall be corrected and the alien admitted as a lawful 
permanent resident on a conditional basis if otherwise admissible. 
Conversely, if the alien is not subject to the provisions of section 
216, but the visa classification endorsed on the immigrant visa 
indicates that the alien is subject thereto (e.g., if the second 
anniversary of the marriage upon which the immigrant visa is based 
occurred after the issuance of the visa and prior to the alien's 
application for admission) the endorsement on the visa shall be 
corrected and the alien admitted as a lawful permanent resident without 
conditions, if otherwise admissible.
    (c) Expired conditional permanent resident status. The lawful 
permanent resident alien status of a conditional resident automatically 
terminates if the conditional basis of such status is not removed by the 
Service through approval of a Petition to Remove the Conditions on 
Residence (Form I-751) or, in the case of an alien entrepreneur (as 
defined in section 216A(f)(1) of the Act), a Petition by Entrepreneur to 
Remove Conditions (Form I-829). Therefore, an alien who is seeking 
admission as a returning resident subsequent to the second anniversary 
of the date on which conditional residence was obtained (except as 
provided in Sec. 211.1(b)(1) of this chapter) and whose conditional 
basis of such residence has not been removed pursuant to section 216(c) 
or 216A(c) of the Act, whichever is applicable, shall be placed under 
exclusion proceedings. However, in a case where conditional residence 
was based on a marriage, exclusion proceedings may be terminated and the 
alien may be admitted as a returning resident if the required petition 
(Form I-751) is filed jointly, or by the alien alone (if appropriate), 
and approved by the Service. In the case of an alien entrepreneur, 
exclusion proceedings may be terminated and the alien admitted as a 
returning resident if the required petition (Form I-829) is filed by the 
alien entrepreneur and approved by the Service.

[53 FR 30021, Aug. 10, 1988, as amended at 59 FR 26592, May 23, 1994]



Sec. 235.12  Northern Mariana identification card.

    (a) General. A Northern Mariana identification card to identify the 
holder as a United States citizen, may be issued to the following 
persons and their children under 18 years of age, who were born on or 
before November 3, 1986, and were not citizens or nationals of the 
United States, and did not owe allegiance to any foreign state on that 
date:
    (1) A person in the Northern Mariana Islands (NMI), and as of 
November 2, 1986, was a citizen of the Trust Territory of the Pacific 
Islands and was domiciled as of that date in the Commonwealth of the 
Northern Mariana Islands (CNMI) or the United States, or any territory 
or possession of the United States; or
    (2) A citizen of the Trust Territory of the Pacific Islands on 
November 2, 1986, who had been domiciled continuously in the NMI for the 
preceeding five years and who, unless under age, registered to vote in 
elections for the NMI

[[Page 355]]

District legislature or for any municipal election in the NMI prior to 
January 1, 1975; or
    (3) A person domiciled in the NMI on November 2, 1986, who although 
not a citizen of the Trust Territory of the Pacific Islands on that 
date, had been continuously domiciled in the NMI beginning prior to 
January 1, 1974.
    (b) Application. The Form I-777, Application for Issuance or 
Replacement of Northern Mariana Card shall be submitted to the Service 
office in the United States which has jurisdiction over the applicant's 
residence. The initial card application Form I-89 shall be completed and 
forwarded to the Immigration Card Facility with the word ``MARIANA'' 
block printed or stamped in the upper right-hand corner (side 1). A 
replacement card application shall be made on Form I-777 for a lost, 
mutilated, or destroyed card.
    (c) Duration of application period. The Northern Mariana 
identification card will be issued during a two year period to end on 
July 1, 1990. All cards issued are valid indefinitely subject to the 
provisions of this section. Replacement cards shall continue to be 
issued upon application on Form I-777.

[53 FR 23380, June 22, 1988]



Sec. 235.13  Automated inspection services.

    (a) PORTPASS Program--(1) Definitions--(i) Port Passenger 
Accelerated Service System (PORTPASS). A system in which certain ports-
of-entry (POEs) are identified and designated by the Service as 
providing access to the United States for a group of identified, low-
risk, border crossers. Alien participants in the PORTPASS program are 
personally inspected, identified, and screened in advance of approval 
for participation in the program by an immigration officer, and may 
apply to enter the United States through a dedicated commuter lane (DCL) 
or through an automated permit port (APP). Such advance inspection and 
identification, when the enrolled participant satisfies the conditions 
and requirements set fourth in this section, satisfies the reporting 
requirements of Sec. 235.1(a). Each successful use of PORTPASS 
constitutes a separate and completed inspection and application for 
entry by the alien program participants on the date PORTPASS is used. 
United States citizens who meet the eligibility requirements for 
participation are subject to all rules, procedures, and conditions for 
use set forth in this section.
    (ii) Automated Permit Port (APP). A POE designated by the Service to 
provide access to the United States by an identified, low-risk, border 
crosser through the use of automation when the POE is not staffed. An 
APP has limited hours of operation and is located at a remote location 
on a land border. This program is limited to the northern border of the 
United States.
    (iii) Dedicated Commuter Lane (DCL). A special lane set apart from 
the normal flow of traffic at a land border POE which allows an 
accelerated inspection for identified, low-risk travelers. This program 
is limited to the northern border of the United States and the 
California-Mexico border.
    (iv) DCL system costs fee. A fee charged to a participant to cover 
the cost of the implementation and operation of the PORTPASS system. If 
a participant wishes to enroll more than one vehicle for use in the 
PORTPASS system, he or she will be assessed an additional vehicle fee 
for each additional vehicle enrolled. Regardless of when the additional 
vehicle is enrolled, the expiration date for use of that vehicle in the 
DCL will be the same date that the respective participant's authorized 
use of the lane expires, or is otherwise revoked.
    (2) Designation of POEs for PORTPASS access. The following criteria 
shall be used by the Service in the selection of a POE when classifying 
the POE as having PORTPASS access:
    (i) The location has an identifiable group of low-risk border 
crossers;
    (ii) The institution of PORTPASS access will not significantly 
inhibit normal traffic flow;
    (iii) The POE selected for access via a DCL has a sufficient number 
of Service personnel to perform primary and secondary inspection 
functions.
    (3) General eligibility requirements for PORTPASS program 
applicants. Applicants to PORTPASS must be citizens or lawful permanent 
residents of the

[[Page 356]]

United States, or nonimmigrants determined to be eligible by the 
Commissioner of the Service. Non-United States citizens must meet all 
applicable documentary and entry eligibility requirements of the Act. 
Applicants must agree to furnish all information requested on the 
application, and must agree to terms set forth for use of the PORTPASS 
program. Use of the PORTPASS program constitutes application for entry 
into the United States. Criminal justice information databases will be 
checked to assist in determining the applicant's eligibility for the 
PORTPASS program at the time the Form I-823, Application--Alternative 
Inspection Services, is submitted. Criminal justice information on 
PORTPASS participants will be updated regularly, and the results will be 
checked electronically at the time of each approved participant's use of 
PORTPASS. Notwithstanding the provisions of 8 CFR part 264, fingerprints 
on Form FD-258 or in the manner prescribed by the Service may be 
required.
    (4) Application. (i) Application for PORTPASS access shall be made 
on Form I-823, Application--Alternative Inspection Services. 
Applications may be submitted during regular working hours at the 
principal Port-of-Entry having jurisdiction over the Port-of-Entry for 
which the applicant requests access. Applications may also be submitted 
by mail.
    (ii) Each person seeking PORTPASS access must file a separate 
application.
    (iii) The number of persons and vehicles which can use a DCL is 
limited numerically by the technology of the system. For this reason, 
distribution of applications at each POE may be limited.
    (iv) Applications must be supported by evidence of citizenship, and, 
in the case of lawful permanent residents of the United States, evidence 
of lawful permanent resident status in the United States. Alien 
applicants required to possess a valid visa must present documentation 
establishing such possession and any other documentation as required by 
the Act at the time of the application, and must be in possession of 
such documentation at the time of each entry, and at all times while 
present in the United States. Evidence of residency must be submitted by 
all applicants. Evidence of employment may be required to be furnished 
by the applicant. A current valid driver's license, and evidence of 
vehicle registration and insurance for the vehicle which will be 
occupied by the applicant as a driver or passenger when he or she uses 
the DCL or APP must be presented to the Service prior to approval of the 
application.
    (v) A completed Form I-823 must be accompanied by the fee as 
prescribed in Sec. 103.7(b)(1) of this chapter. Each PORTPASS applicant 
14 years-of-age or older must complete the application and pay the 
application fee. Applicants under the age of 14 will be required to 
complete the application, but will not be required to pay the 
application fee. An application for a replacement PORTPASS card must be 
made on the Form I-823, and filed with the fee prescribed in 
Sec. 103.7(b)(1). The district director having jurisdiction over the POE 
where the applicant requests access may, in his or her discretion, waive 
the application or replacement fee.
    (vi) If fingerprints are required to assist in a determination of 
eligibility at that POE, the applicant will be so advised by the Service 
prior to submitting his or her application. The applicant shall also be 
informed at that time of the current Federal Bureau of Investigation fee 
for conducting a fingerprint check. This fee must be paid by the 
applicant to the Service before any processing of the application shall 
occur. The fingerprint fee may be not be waived.
    (vii) Each applicant must present himself or herself for an 
inspection and/or positive identification at a time designated by the 
Service prior to approval of the application.
    (viii) Each vehicle that a PORTPASS participant desires to register 
in PORTPASS must be inspected and approved by the Service prior to use 
in the PORTPASS system. Evidence of valid, current registration and 
vehicle insurance must be presented to the Service at the time the 
vehicle is inspected. If the vehicle is not owned by the participant, 
the participant may be required to present written permission from the 
registered owner authorizing

[[Page 357]]

use of the vehicle in the PORTPASS program throughout the PORTPASS 
registration period.
    (ix) An applicant, whether an occupant or driver, may apply to use 
more than one vehicle in the DCL. The first vehicle listed on the Form 
I-823 will be designated as the applicant's primary vehicle. The second 
vehicle, if not designated by another applicant as his or her primary 
vehicle, is subject to the additional vehicle charge as prescribed by 
the Service.
    (x) An application may be denied in the discretion of the district 
director having jurisdiction over the POE where the applicant requests 
access. Notice of such denial shall be given to the applicant. There is 
no appeal from the denial, but denial is without prejudice to reapplying 
for this or any other Service benefit. Re-applications, or applications 
following revocation of permission to use the lane, will not be 
considered by the Service until 90 days have passed following the date 
of denial or revocation. Criteria which will be considered in the 
decision to approve or deny the application include the following: 
admissibility to the United States and documentation so evidencing, 
criminal history and/or evidence of criminality, purpose of travel, 
employment, residency, prior immigration history, possession of current 
driver's license, vehicle insurance and registration, and vehicle 
inspection.
    (xi) Applications approved by the Service will entitle the applicant 
to seek entry via a designated PORTPASS Program POE for a period of 1 
year from the date of approval of the application unless approval is 
otherwise withdrawn. An application for a replacement card will not 
extend the initial period of approval.
    (5) By applying for and participating in the PORTPASS program, each 
approved participant acknowledges and agrees to all of the following:
    (i) The installation and/or use of, in the vehicle approved for use 
in the PORTPASS program, any and all decals, devices, technology or 
other methodology deemed necessary by the Service to ensure inspection 
of the person(s) seeking entry through a DCL, in addition to any fee 
and/or monetary deposit assessed by the Service pending return of any 
and all such decals, devices, technology, and other methodology in 
undamaged condition.
    (ii) That all devices, decals, or other equipment, methodology, or 
technology used to identify or inspect persons or vehicles seeking entry 
via any PORTPASS program remains the property of the United States 
Government at all times, and must be surrendered upon request by the 
Service. Each participant agrees to abide by the terms set forth by the 
Service for use of any device, decal, or other equipment, method or 
technology.
    (iii) The payment of a system costs fee as determined by the Service 
to be necessary to cover the costs of implementing, maintaining, and 
operating the PORTPASS program.
    (iv) That each occupant of a vehicle applying for entry through 
PORTPASS must have current approval from the Service to apply for entry 
through the PORTPASS program in that vehicle.
    (v) That a participant must be in possession of any authorization 
document(s) issued for PORTPASS access and any other entry document(s) 
as required by the Act or by regulation at the time of each entry to the 
United States.
    (vi) That a participant must positively identify himself or herself 
in the manner prescribed by the Service at the time of each application 
for entry via the PORTPASS.
    (vii) That each use of PORTPASS constitutes a separate application 
for entry to the United States by the alien participant.
    (viii) That each participant agrees to be responsible for all 
contents of the vehicle that he or she occupies when using PORTPASS.
    (ix) That a participant may not import merchandise or transport 
controlled or restricted items using PORTPASS. The entry of any 
merchandise or goods must be in accordance with the laws and regulations 
of all other Federal inspection agencies.
    (x) That a participant must abide by all Federal, state and local 
laws regarding the importation of alcohol or agricultural products or 
the importation or possession of controlled substances as defined in 
section 101 of the

[[Page 358]]

Controlled Substance Act (21 U.S.C. Sec. 802).
    (xi) That a participant will be subject to random checks or 
inspections that may be conducted by the Service at any time and at any 
location, to ensure compliance.
    (xii) That current vehicle registration and, if applicable, current 
permission to use the vehicle in PORTPASS, and evidence of current 
vehicle insurance, shall be in the vehicle at all times during use of 
PORTPASS.
    (xiii) Participant agrees to notify the Service if a vehicle 
approved for use in a PORTPASS program is sold, stolen, damaged, or 
disposed of otherwise. If a vehicle is sold, it is the responsibility of 
the participant to remove or obliterate any identifying device or other 
authorization for participation in the program or at the time of sale 
unless otherwise notified by the Service. If any license plates are 
replaced on an enrolled vehicle, the participant must submit a properly 
executed Form I-823, without fee, prior to use of the vehicle in the 
PORTPASS program.
    (xiv) That APP-approved participants who wish to enter the United 
States through a POE other than one designated as an APP through which 
they may pass must present themselves for inspection or examination by 
an immigration officer during normal business hours. Entry to the United 
States during hours when a Port of Entry is not staffed may be made only 
through a POE designated as an APP.
    (b) Violation of condition of the PORTPASS program. A PORTPASS 
program participant who violates any condition of the PORTPASS program, 
or who has violated any immigration law or regulation, or a law or 
regulation of the United States Customs Service or other Federal 
Inspection Service, or who is otherwise determined by an immigration 
officer to be inadmissible to the United States or ineligible to 
participate in PORTPASS, may have the PORTPASS access revoked at the 
discretion of the district director or the chief patrol agent and may be 
subject to other applicable sanctions, such as criminal and/or 
administrative prosecution or deportation, as well as possible seizure 
of goods and/or vehicles.
    (c) Judicial review. Nothing in this section is intended to create 
any right or benefit, substantive or procedural, enforceable in law or 
equity by a party against the Department of Justice, the Immigration and 
Naturalization Service, their officers or any employees of the 
Department of Justice.

[61 FR 53831, Oct. 16, 1996]



PART 236--EXCLUSION OF ALIENS--Table of Contents




Sec.
236.1  Authority of immigration judges.
236.2  Hearing.
236.3  Applications for asylum or withholding of deportation.
236.4  Renewal of application for adjustment of status under section 245 
          of the Act.
236.5  Decision of the immigration judge; notice to the applicant.
236.6  Finality of order.
236.7  Appeals.
236.8  Fingerprinting of excluded aliens.
236.9  Visa Waiver Pilot Program.
236.10  Exclusion of alien seeking admission under section 101(a)(15)(S) 
          of the Act.

    Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1362.



Sec. 236.1  Authority of immigration judges.

    In determining cases referred for further inquiry as provided in 
section 235 of the Act, immigration judges shall have the powers and 
authority conferred upon them by the Act and this chapter. Subject to 
any specific limitation prescribed by the Act and this chapter, 
immigration judges shall also exercise the discretion and authority 
conferred upon the Attorney General by the Act as is appropriate and 
necessary for the disposition of such cases.

[42 FR 46045, Sept. 14, 1977]



Sec. 236.2  Hearing.

    (a) Opening. Exclusion hearings shall be closed to the public, 
unless the alien at his own instance requests that the public, including 
the press, be permitted to attend; in that event, the hearing shall be 
open, provided that the alien states for the record that he is waiving 
the requirement in section 236 of the Act that the inquiry shall be

[[Page 359]]

kept separate and apart from the public. When the hearing is to be open, 
depending upon physical facilities, reasonable limitation may be placed 
upon the number in attendance at any one time, with priority being given 
to the press over the general public. The Immigration Judge shall 
ascertain whether the applicant for admission is the person to whom Form 
I-122 was previously delivered by the examining immigration officer as 
provided in part 235 of this chapter; enter a copy of such form in 
evidence as an exhibit in the case; inform the applicant of the nature 
and purpose of the hearing; advise him of the privilege of being 
represented by an attorney of his own choice at no expense to the 
Government, and of the availability of free legal services programs 
qualified under part 292a of this chapter and organizations recognized 
pursuant to Sec. 292.2, of this chapter located in the district where 
his exclusion hearing is to be held; and shall ascertain that the 
applicant has received a list of such programs; and request him to 
ascertain then and there whether he desires representation; advise him 
that he will have a reasonable opportunity to present evidence in his 
own behalf, to examine and object to evidence against him, and to cross-
examine witnesses presented by the Government; and place the applicant 
under oath.
    (b) Procedure. The immigration judge shall receive and adduce 
material and relevant evidence, rule upon objections, and otherwise 
regulate the course of the hearing.
    (c) General attorney. The district director shall direct the chief 
legal officer to assign a general attorney to each case in which an 
applicant's nationality is in issue. The district director may direct 
the chief legal officer to assign a general attorney to any case in 
which the district director deems such assignment necessary or 
advantageous. The duties of the general attorney include, but are not 
limited to, the presentation of evidence and the interrogation, 
examination, and cross-examination of the applicant and other witnesses. 
Nothing contained herein diminishes the authority of an immigration 
judge to conduct proceedings under this part.
    (d) Depositions. The procedures specified in Sec. 242.14(e) of this 
chapter shall apply.
    (e) Record. The hearing before the immigration judge, including the 
testimony and exhibits, the immigration judge's decision, and all 
written orders, motions, appeals, and other papers filed in the 
proceeding shall constitute the record in the case. The hearing shall be 
recorded verbatim except for statements made off the record with the 
permission of the immigration judge.

[42 FR 46045, Sept. 14, 1977, as amended at 44 FR 4653, Jan. 23, 1979; 
46 FR 43956, Sept. 2, 1981]



Sec. 236.3  Applications for asylum or withholding of deportation.

    (a) If the alien expresses fear of persecution or harm upon return 
to his or her country of origin or to a country to which the alien may 
be deported after a determination of excludability from the United 
States pursuant to part 237 of this chapter, and the alien has not been 
referred to the immigration judge by an asylum officer in accordance 
with Sec. 208.14(b) of this chapter, the immigration judge shall:
    (1) Advise the alien that he may apply for asylum in the United 
States or withholding of deportation to that other country; and
    (2) Make available the appropriate application forms.
    (b) An application for asylum or withholding of deportation must be 
filed with the Immigration Court, pursuant to Sec. 208.4(c) of this 
chapter. Upon receipt of an application that has not been referred by an 
asylum officer, the Immigration Court shall forward a copy to the 
Department of State pursuant to Sec. 208.11 of this chapter and shall 
calendar the case for a hearing. The reply, if any, from the Department 
of State, unless classified under E.O. 12356 (3 CFR, 1982 Comp., p. 
166), shall be given to both the applicant and to the trial attorney 
representing the government.
    (c) Applications for asylum or withholding of deportation so filed 
will be decided by the immigration judge pursuant to the requirements 
and standards established in part 208 of this chapter after an 
evidentiary hearing

[[Page 360]]

that is necessary to resolve material factual issues in dispute. An 
evidentiary hearing extending beyond issues related to the basis for a 
mandatory denial of the application pursuant to 8 CFR 208.14 or 208.16 
is not necessary once the immigration judge has determined that such a 
denial is required.
    (1) Evidentiary hearings on applications for asylum or withholding 
of deportation will be closed to the public unless the applicant 
expressly requests that it be open pursuant to 8 CFR 236.2.
    (2) Nothing in this section is intended to limit the authority of 
the immigration judge properly to control the scope of any evidentiary 
hearing.
    (3) During the exclusion hearing, the applicant shall be examined 
under oath on his application and may present evidence and witnesses on 
his own behalf. The applicant has the burden of establishing that he is 
a refugee as defined in section 101(a)(42) of the Act pursuant to the 
standard set forth in Sec. 208.13 of this chapter.
    (4) The trial attorney for the government may call witnesses and 
present evidence for the record, including information classified under 
E.O. 12356 (3 CFR, 1982 Comp., p. 166), provided the immigration judge 
or the Board has determined that such information is relevant to the 
hearing. When the immigration judge receives such classified information 
he shall inform the applicant. The agency that provides the classified 
information to the immigration judge may provide an unclassified summary 
of the information for release to the applicant whenever it determines 
it can do so consistently with safeguarding both the classified nature 
of the information and its source. The summary should be as detailed as 
possible, in order that the applicant may have an opportunity to offer 
opposing evidence. A decision based in whole or in part on such 
classified information shall state that such information is material to 
the decision.
    (d) The decision of an immigration judge to grant or deny asylum or 
withholding of deportation shall be communicated to the applicant and to 
the trial attorney for the government. An adverse decision will state 
why asylum or withholding of deportation was denied.

[55 FR 30686, July 27, 1990, as amended at 59 FR 62302, Dec. 5, 1994; 60 
FR 34090, June 30, 1995]



Sec. 236.4  Renewal of application for adjustment of status under section 245 of the Act.

    An adjustment application by an alien paroled under section 
212(d)(5) of the Act, which has been denied by the district director, 
may be renewed in exclusion proceedings under section 236 of the Act 
before an immigration judge under the following two conditions: First, 
the denied application must have been properly filed subsequent to the 
applicant's earlier inspection and admission to the United States; 
second, the applicant's later absence from and return to the United 
States must have been under the terms of an advance parole authorization 
on Form I-512 granted to permit the applicant's absence and return to 
pursue the previously filed adjustment application.

[43 FR 16445, Apr. 19, 1978]



Sec. 236.5  Decision of the immigration judge; notice to the applicant.

    (a) Decision. The Immigration Judge shall inform the applicant of 
his or her decision in accordance with Sec. 3.35 of this chapter.
    (b) Advice to alien ordered excluded. An alien ordered excluded 
shall be furnished with Form I-296, Notice to Alien Ordered Excluded by 
Immigration Judge, at the time of an oral decision by the immigration 
judge or upon service of a written decision.
    (c) Holders of refugee travel documents. Aliens who are the holders 
of valid unexpired refugee travel documents may be ordered excluded only 
if they are found to be inadmissible under section 212(a) (9), (10), 
(12), (23), (27), (28), (29), or (31) of the Act, and it is determined 
that on the basis of the acts for which they are inadmissible there are 
compelling reasons of national security or public order for their 
exclusion. If the immigration judge finds that the alien is inadmissible 
but determines that there are no compelling reasons of national security 
or public order for exclusion, the immigration judge shall

[[Page 361]]

remand the case to the district director for parole.

[42 FR 46045, Sept. 14, 1977. Redesignated at 43 FR 16445, Apr. 19, 
1978, and amended at 52 FR 2939, Jan. 29, 1987]



Sec. 236.6  Finality of order.

    The decision of the Immigration Judge shall become final in 
accordance with Sec. 3.37 of this chapter.

[52 FR 2939, Jan. 29, 1987]



Sec. 236.7  Appeals.

    Except as limited by section 236 of the Act, an appeal from a 
decision of an Immigration Judge under this part may be taken by either 
party pursuant to Sec. 3.38 of this chapter.

[61 FR 18909, Apr. 29, 1996]



Sec. 236.8  Fingerprinting of excluded aliens.

    Every alien 14 years of age or older who is excluded from admission 
to the United States by an immigration judge shall be fingerprinted, 
unless during the preceding year he has been fingerprinted at an 
American consular office.

[42 FR 46045, Sept. 14, 1977. Redesignated at 43 FR 16445, Apr. 19, 
1978]



Sec. 236.9  Visa Waiver Pilot Program.

    Pursuant to section 217(b)(4)(A) of the Act, an alien who applies 
for admission to the United States under the provisions of that section 
must waive any right to review or appeal an immigration officer's 
determination as to the admissibility of the alien at a port of entry, 
other than on the basis of an application for asylum. An alien applicant 
for admission under section 217 of the Act shall be removed from the 
United States upon a determination by an immigration officer (port 
director, officer-in-charge, or officer acting in either capacity) that 
the alien is inadmissible in accordance with procedures in Sec. 217.4(b) 
of this chapter except that such an alien who applies for asylum in the 
United States shall be referred to an immigration judge for further 
inquiry as provided in section 235 of the Act and Sec. 236.3 of this 
part.

[53 FR 24903, June 30, 1988]



Sec. 236.10  Exclusion of alien seeking admission under section 101(a)(15)(S) of the Act.

    An alien who applies for admission under the provisions of section 
101(a)(15)(S) 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, which have not been previously waived 
by the Commissioner, will be taken into custody and will be subject to 
the exclusion procedures contained in 8 CFR part 236.

[60 FR 44268, Aug. 25, 1995]



PART 237--DEPORTATION OF EXCLUDED ALIENS--Table of Contents




Sec.
237.1  Stay of deportation of excluded alien.
237.2  Notice to surrender for deportation.
237.3  Cost of maintenance not assessed.
237.4  [Reserved]
237.5  Notice to transportation line of alien's exclusion.
237.6  Deportation.

    Authority: 8 U.S.C. 1103, 1227, and 1255.



Sec. 237.1  Stay of deportation of excluded alien.

    The district director in charge of the port of arrival may stay the 
immediate deportation of an excluded alien pursuant to sections 237 (a) 
and (d) of the act under such conditions as he may prescribe.

[23 FR 5818, Aug. 1, 1958]



Sec. 237.2  Notice to surrender for deportation.

    An alien who has been finally excluded pursuant to part 236 of this 
chapter may at any time surrender himself to the custody of the Service 
and shall surrender himself to such custody upon notice in writing of 
the time and place for his surrender. The Service may take the alien 
into custody at any time. An alien taken into custody either upon notice 
to surrender or by arrest shall not be deported less than 72 hours 
thereafter without his consent thereto filed in writing with the 
district director in charge of the place of his detention. An alien in

[[Page 362]]

foreign contiguous territory shall be informed that he may remain there 
in lieu of surrendering to the Service, but that he will be deemed to 
have acknowledged the execution of the order of exclusion and 
deportation in his case upon his failure to surrender at the time and 
place prescribed.

[30 FR 4411, Apr. 6, 1965]



Sec. 237.3  Cost of maintenance not assessed.

    A claim pursuant to section 237(a)(2)(B) of the Act shall be 
established to the satisfaction of the district director in charge of 
the port of arrival, from whose adverse decision no appeal shall lie. 
The district director shall afford the line a reasonable time within 
which to submit affidavits and briefs to support its claim.

[23 FR 5818, Aug. 1, 1958. Redesignated at 26 FR 2113, Mar. 11, 1961]
Sec. 237.4 [Reserved]



Sec. 237.5  Notice to transportation line of alien's exclusion.

    (a) An excluded alien shall, immediately or as promptly as the 
circumstances permit, be offered for deportation to the master, 
commanding officer, purser, person in charge, agent, owner, or consignee 
of the vessel or aircraft on which the alien is to be deported, as 
determined by the district director, with a written notice specifying 
the cause of exclusion, the class of travel in which such alien arrived 
and is to be deported, and with the return of any documentation which 
will assist in effecting his deportation. If special care and attention 
is required, the provisions of Sec. 243.7 of this chapter shall apply.
    (b) Failure of the carrier to accept for removal an alien who has 
been ordered excluded and deported shall result in the carrier being 
assessed any costs incurred by the Service for detention after the 
carrier's failure to accept the alien for removal including the cost of 
any transportation. The User Fee Account shall not be assessed for 
expenses incurred because of the carrier's violation of the provisions 
of section 237 of the Immigration and Nationality Act and this 
paragraph. The Service will, at the carriers option, retain custody of 
the excluded alien for an additional seven days beyond the date of the 
deportation/exclusion order. If, after the third day of this additional 
seven day period, the carrier has not made all the necessary 
transportation arrangements for the excluded alien to be returned to 
his/her point of embarkation by the end of the additional seven day 
period, the Service will make the arrangements and bill the carrier for 
its costs.

[27 FR 1479, Feb. 17, 1962, as amended at 54 FR 102, Jan. 4, 1989]



Sec. 237.6  Deportation.

    (a) Definitions of terms. For the purposes of this section, the 
following terms mean:
    (1) Adjacent island--as defined in section 101(b)(5) of the Act.
    (2) Foreign contiguous territory--any country sharing a common 
boundary with the United States.
    (3) Residence in foreign contiguous territory or adjacent island--
any physical presence, regardless of intent, in a foreign contiguous 
territory or an adjacent island if the government of such territory or 
island agrees to accept the alien.
    (4) Aircraft or vessel--any conveyance and other mode of travel by 
which arrival is effected.
    (5) Next available flight--is to be the carrier's next regularly 
scheduled departure to the excluded alien's point of embarkation 
regardless of seat availability. If the carrier's next regularly 
scheduled departure to the excluded aliens point of embarkation is full, 
the carrier has the option of arranging for return transportation on 
other carriers which service the excluded aliens point of embarkation.
    (b) Place to which deported. Any alien (other than an alien 
crewmember or an alien who boarded an aircraft or vessel in foreign 
contiguous territory or an adjacent island) who is ordered excluded 
shall be deported to the country where the alien boarded the vessel or 
aircraft on which the alien arrived in the United States. If that 
country refuses to accept the alien, the alien shall be deported to:
    (1) The country of which the alien is a subject, citizen, or 
national;

[[Page 363]]

    (2) The country where the alien was born;
    (3) The country where the alien has a residence; or
    (4) Any country willing to accept the alien.
    (c) Contiguous territory and adjacent islands. Any alien ordered 
excluded who boarded an aircraft or vessel in foreign contiguous 
territory or in any adjacent island shall be deported to such foreign 
contiguous territory or adjacent island if the alien is a native, 
citizen, subject, or national of such foreign contiguous territory or 
adjacent island, or if the alien has a residence in such foreign 
contiguous territory or adjacent island. Otherwise, the alien shall be 
deported, in the first instance, to the country in which is located the 
port at which the alien embarked for such foreign contiguous territory 
or adjacent island.
    (d) Land border pedestrian arrivals. Any alien ordered excluded who 
arrived at a land border on foot shall be deported in the same manner as 
if the alien had boarded a vessel or aircraft in foreign contiguous 
territory.

[47 FR 44237, Oct. 7, 1982, as amended at 54 FR 102, Jan. 4, 1989]



PART 238--CONTRACTS WITH TRANSPORTATION LINES--Table of Contents




Sec.
238.1  Contracts.
238.2  Transportation lines bringing aliens to the United States from or 
          through foreign contiguous territory or adjacent islands.
238.3  Aliens in immediate and continuous transit.
238.4  Preinspection outside the United States.
238.5  Aliens entering Guam pursuant to section 14 of Public Law 99-396, 
          ``Omnibus Territories Act''.

    Authority: 8 U.S.C. 1103, 1228; 8 CFR part 2.



Sec. 238.1  Contracts.

    The contracts with transportation lines referred to in section 
238(a) of the Act may be entered into by the Executive Associate 
Commissioner for Operations, or by an Immigration Officer designated by 
the Executive Associate Commissioner for Operations on behalf of the 
government and shall be documented on Form I-420. The contracts with 
transportation lines referred to in section 238(c) of the Act shall be 
made by the Commissioner on behalf of the government and shall be 
documented on Form I-426. The contracts with transportation lines 
desiring their passengers to be preinspected at places outside the 
United States shall be made by the Commissioner on behalf of the 
government and shall be documented on Form I-425; except that contracts 
for irregularly operated charter flights may be entered into by the 
Executive Associate Commissioner for Operations or an Immigration 
Officer designated by the Executive Associate Commissioner for 
Operations and having jurisdiction over the location where the 
inspection will take place.

[57 FR 59907, Dec. 17, 1992]



Sec. 238.2  Transportation lines bringing aliens to the United States from or through foreign contiguous territory or adjacent islands.

    Form I-420 shall be signed in duplicate and forwarded to the 
Headquarters Office of Inspections. After acceptance, each Regional 
Office of Inspections, the district office and the carrier will be 
furnished with one copy of the agreement. The transmittal letter to the 
Headquarters Office of Inspections shall indicate whether the signatory 
to the agreement is a subsidiary or affiliate of a line which has 
already signed a similar agreement. Correspondence regarding ancillary 
contracts for office space and other facilities to be furnished by 
transportation lines at Service stations in Canada shall be similarly 
handled.

[57 FR 59907, Dec. 17, 1992]



Sec. 238.3  Aliens in immediate and continuous transit.

    (a) Form I-426 agreements. A transportation line bringing aliens to 
the United States pursuant to Sec. 212.1(f)(1) of this chapter shall 
enter into an agreement on Form I-426. Such an agreement shall be 
negotiated directly by the Service's Headquarters Inspections Office and 
the head offices of the transportation lines.
    (b) Signatory lines. Currently effective agreements on Form I-426 
exist with the following:


[[Page 364]]


Achille Lauro--Armatore, Naples, Italy.
Aerlinte Eireann Teoranta (Irish Air Lines).
Aero Coach Aviation International, Inc.
Aero Costa Rica
Aeroflot Russian International Airlines
Aerolineas Argentinas.
Aerolineas Centrales De Colombia (ACES).
Aerolineas INI and CIA S.A.
Aerolineas Nicaraguenses, S.A. (Aeronica).
Aerolineas Peruanas, S.A.
AeroPeru (see Empresa de Transporte Aereo del Peru).
Aeroposta, S.A.
AeroTours Dominicano Airlines.
Aerovias Condor de Colombia Ltda.
Aerovias de Mexico, S.A. de C.V.
Aerovias Interamericanas de Panama, S.A. (Aerovias Panama Airways).
Aerovias Nacionales de Colombia (AVIANCA).
Aerovias Quis-queyana.
Air Afrique.
Air Aruba.
AirBC Limited.
Air B.V.I. Ltd.
Air Belgium.
Air Canada.
Air Club International Inc.
Air Columbus.
Air Espana (dba Air Europa).
Air Florida.
Air Gambia Limited.
Air-India International Corp.
Air Jamaica (1968) Ltd.
Air Manila, Inc.
Air Micronesia, Inc.
Air Nauru.
Air New Zealand, Ltd.
Air One, Inc.
Air Pacific, Inc.
Air Pacific, Ltd.
Air Panama Internacional.
Air Siam Air Company, Ltd.
Air Specialties Corp. d.b.a. Total Air.
Air Tungaru Corp.
Air West, Inc.
Alaska Airlines, Inc.
``ALCIONE'', Soc. di Navigazione p. A., Palermo.
Alfred C. Toepfer Schiffahrtsgesellschaft M.B.H.
ALIA--The Royal Jordanian Airline.
All Islands Air Taxi, Inc.
Alliance Air.
ALM-Dutch Antillean Airlines.
Aloha Airlines, Inc.
American Airlines, Inc.
American Banner Lines, Inc.
American Export Lines, Inc.
American Flyers Airline Corp.
American International Airways, Inc.
American President Lines, Ltd.
American Trans Air, Inc.
ANA All Nippon Airways.
Antone Sylvester Tug Services, Inc.
AREA, Aerovias Ecuatorianas C. Ltda.
``ARETUSA'', Soc. di Navigazione p. A., Palermo.
Argonaut Airways Corp.
Arista International Airlines, Inc.
Arosa Line, Inc., ``Panama.''
Arrow Airways, Inc.
Asiana Air.
Aspen Airways (dba United Express).
Athina Maritime Co., Ltd.
Atlantic Air BVI.
Atlantic Freighters, Ltd.
Atlantic Gulf Airlines.
Atlantic Oil Carriers, Ltd.
Atlantic Tankers, Ltd.
Atlantis Airlines, Ltd.
AUA Austrian Airlines.
Aviateca, S.A.
Aviation Services, Ltd. dba Freedom Air.
Aviacion Y Comercio, S.A. (Aviaco Airlines).
BAHAMASAIR.
Bahamas Airways, Ltd.
Balair AG.
Balkan Bulgarian.
Barber-Wilhelmsen Line, F.M.C. No. 7489 (Barber Steamship Lines, Inc., 
U.S.A. General Agents).
Belize Airways, Ltd.
Blue Star Line, Inc., The.
Braniff Airways, Inc.
Brazalian International Airlines (Real-Aerovias Brazil, S.A.).
Britannia Airways Limited.
British Airways (British Airways Board).
British Caledonian Airways Limited
British Car Carriers, Ltd., and Nerdrum Lines.
British Midland Airways, Ltd.
British West Indian Airways, Ltd.
Brodin Line.
BWIA International.
Canadian Airlines International, Ltd.
Canadian National Railway Co.
Canadian Pacific Air Lines, Ltd.
Canadian Pacific Railway Co.
Capitol Airways, Inc.
Caribbean Atlantic Airlines, Inc.
Caribbean Express, Inc.
Caribbean International Airways, Ltd.
Catamaran Cruiselines
Cathay Pacific Airways, Ltd.
Cayman Airways, Ltd.
Ceskoslovenske Aerolinie (Czechoslovak Airlines) Chandris America Lines 
Inc., as general agents for: Okeania S.A. (Australis), Chandris America 
Lines S.A. (Amerikanis), Australian Line S.A. (Ellinis), and 
Themistocles Nav. S.A. (Queen Frederica).
Challenge International Airlines.
Chandris (USA) Inc., as agents for Chandris Lines.
Chandris (USA) Inc., as agents for Mariblanca Navegacion S.A. and 
Compania Panamena Europea Navegacion Ltda. S.A.
China Airlines, Ltd.
China Merchants Steam Navigation Co., Ltd.
China Navigation Co. Ltd., The
China Union Lines, Ltd.

[[Page 365]]

Compagnia Genovese di Armemento
Compagnie Generale Transatlantique (French Line).
Compagnie Nationale Air France.
Companhia Colonial de Navegacao.
Compania Cubana de Aviacion, S.A.
Compania Dominicana de Aviacion, C. por A.
Compania Mexicana de Aviacion, S.A. (CMA).
Companhia Nacional de Navegacao, S.A.R.L.
Compania Nacional de Turismo Aereo Limitada.
Compania Panamena de Aviacion S.A. (COPA).
Compania Transatlantica Espanola, S.A.
Condor Flugdienst GmbH.
Continental Air Lines, Inc.
Continental/Air Micronesia.
Cunard Steamship Company, Ltd.
Daido Kaiun Kaisha, Ltd., (Daido Line).
Daiwa Navigation Co., Ltd., The.
Dan-Air Services, Ltd.
Delaware and Hudson Railroad Corp.
Delta Air Lines, Inc.
A. Demades & Owners--SS AXIOS
Den Norske Amerikalinje A/S (See Norwegian America Line).
Ditlev-Simonsen Lines.
Dominair.
Dominion Far East Line (Hong Kong) Ltd.
Dominion Navigation Co., Ltd.
Donaldson International Airways.
Dorado Wings.
East African Airways.
Egyptair.
El Al Israel Airlines.
``ELIOS'', Soc. di Navigazione p. A., Palermo.
Ellerman's Wilson Line, Ltd.
Empresa Ecuatoriana de Aviacion.
Empresa de Transporte Aereo del Pero (Aero-Peru).
S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines).
Empresa Guatemalteca de Aviacion.
Epirotiki Lines, Inc.
``Erice'', Soc. di Navigazione p.A., Palermo.
Eugenie Maritime Co., Ltd.
Europe-Canada Line.
Eva Air.
Evergreen International Airlines, Inc.
Executive Air Charter.
EXPRINTER (SUCRS, S.A.).
Facilities Management Corp.
Faucett Peruvian Airlines
Fern-Ville Lines.
Fiesta Cruise Lines, Inc.
Finnair Oy.
Five Star Airlines.
Florida Air, Inc.
Flugfelag Islands, H.F. (Iceland Airways).
Flying Tiger Line Inc., The
Furness-Withy and Co., Ltd.
Garuda Indonesia.
General Airways, Inc.
General Steam Navigation Co., Ltd., of Greece--Greek Line.
German Atlantic Line (North German Lloyd Passenger Agency, Inc., for).
Giacomo Costa fu Andrea (Linea ``C''), Genoa.
Global Chartering & Brokerage Co., Inc.
Globe Air Ltd. Basel, Switzerland.
Great Eastern Line.
Gray Coach Lines, Ltd.
Grey Goose Bus Lines, Ltd.
Greyhound Lines-East, Division of Greyhound Lines, Inc.
Grimaldi Siosa Lines Joint Service.
Guest Aerovias Mexico, S.A.
Gulf Air
Guy-America Airways, Inc.
Guyana Airways Corp.
Haiti Air.
Hamburg American Line.
Hapag/Lloyd A.G./North German Lloyd Passenger Agency, Inc.
Harbor Airlines, Inc.
Hawaiian Airlines.
Holland-America Line.
Home Lines Agency Inc., as agent for Home Lines Inc.
Horizon Airlines Industries, Inc.
Horn-Linie.
Hugo Stinnes Transozean Schiffahrts, gmbh, Mulheim-Ruhr, Germany.
Iberia Air Lines of Spain.
Iberia Lineas Aereas Espansolas.
Icelandic Airlines, Inc. (Loftleidir, H.F.).
Iiho Kaium Kaisha, Ltd.
Indo-China Steam Navigation Co., Ltd., The.
Inexadria Airways.
Intercontinental, U.S., Inc.
International Aircraft Services, Inc.
International Airlines, Inc.
Interocean Airways, S.A., Luxembourg.
Iran National Airlines Corporation.
Island Aviation Incorporated.
Italian Line, ``Italia'' Societa per Azioni di Navigazione, Genoa.
Jadrolinija Steamship Co.
J. D. Valenciana De Aviacion.
Japan Airlines.
Japan Airlines Co., Inc.
Jat-Yugoslav Airlines.
Jugoslavenska Linijska Plovidba and/or Jugolinija.
Kambara Kisen Co. Ltd.
Kawasaki Kisen Kaisha, Ltd.
KIWI International Airlines.
Klaveness Line.
Koninklijke Luchtvaart Maatschappij N. V. (K.L.M. Royal Dutch Airlines).
Korea Shipping Corp., Ltd., Seoul, Korea.
Korean Air Lines Co., Ltd.
Kulukundis Shipping Agency, Inc.
Laeisz, F., Hamburg, Germany.
Laker Airways Limited.
Lauretizen, J.
Leeward Islands Air Transport Services (LIAT).
Leisure International Airways.
Linea Aerea del Cobre, S.A. ``LADECO''.
Linea Aerea Nacional, Chile.

[[Page 366]]

Linea Aeropostal Venezolana (LAV).
Lineas Aereas Costarricenses, S.A. (LACSA).
Lineas Aereas de Nicaragua, S.A.
Lineas Aereas de Paraguay Sociedad Anonima
Lineas Aereas Taxader S.A.
Linee Aeree Italiane (ALITALIA).
Livanos Maritime Co., Ltd.
Lloyd Aero Boliviano S.A.
Lloyd International Airways, Ltd.
Lot-Polish Airlines.
LTU Lufttransport Unternehmen KG.
Lufthansa German Airlines (Deutsche Lufthansa Aktiengesellschaft).
Mackey Airlines, Inc.
Malaysian Airline System.
Malev Hungarian Airlines
Mall Airways, Inc.
Marchessini Lines.
Marine Mercante Nicaraguense, S.A. (Mamenic Line).
Maritime Central Airways, Ltd.
Maritime Company of the Philippines.
Martinair Holland, N.V.
Maui Airlines, Inc.
McCormick Shipping Corp.
``MEGRA'' Soc. di Navigazione p.A., Palermo.
Miami Air.
Middle East Airlines.
Mitsui Steamship Co., Ltd.
Montana Flugbetrieb.
Murray Hill Limousine Service Ltd.
N. V. Scheepvaart Maatschappij ``Transocean'' (Trans-Ocean Steamship 
Co.).
Naess Shipping Co., Inc.
National Airlines, Inc.
NATUMEX Lines--Naviera Truistica Mexicana S.A.
Nauru Pacific Line.
Naviera Aznar Sociedad Anonima.
Nederland Line.
Netherlands Ministry of Transport and Waterstaad Directorate-General of 
Shipping.
New Zealand Shipping Co., Ltd., Norton, Lilly & Co., Inc., General 
Agents.
Nicaraguense De Aviacion S.A. (NICA).
Nigeria Airways Limited.
Nihonkai Kisen Kaisha.
Nippon Cargo Airlines Co., Ltd.
Nippon Yusen Kaisha (N.Y.K. Line).
Nolisair International, Inc. (dba Nationair Canada)
Nordair Ltd.
North American
North Central Airlines Inc.
Northeast Airlines, Inc.
North German Lloyd Passenger Agency, Inc. (see Hapag/Lloyd A.G./North 
German Lloyd Passenger Agency, Inc.)
Northwest Airlines, Inc.
Norwegian America Line (Den Norske Amerikalinje A/S).
Norwegian Caribbean Lines.
Ocean Cargo Line, Ltd.
Ocean Tanker Line, Ltd. (Lavino Shipping Co., Philadelphia, Agents).
Ocean Tankers, Ltd.
Oceanic Steamship Co., The
Olsen Line, Fred (Fred Olsen & Co.).
Olympic Airways, S.A.
Ontario Central Airlines, Ltd.
Ontario Express, Ltd. (dba Canadian Partner)
Orient Overseas Line.
Orient Steam Navigation Co., Ltd.
Osaka Shosen Kaisha, Ltd.
Overseas National Airways.
Ozean/Stinnes Linien.
Pacific Australian Direct Line.
Pacific Far East Line, Inc.
Pacific Islands Airways, Inc.
Pacific Islands Transport Line A/S THORDAHL.
Pacific Micronesian Line, Inc.
Pacific Ocean Line.
Pacific Shipowners, Ltd., Suva, Fiji.
Pacific Steam Navigation Co.
Pacific Western Airlines, Ltd.
Pakistan International Airlines Corp.
Panoceanic Tanker Line, Ltd.
Peninsular & Occidental Steamship Co.
Peninsular & Oriental Steam Navigation Co.
Penn Central Co., The
Phillippine Air Lines.
Piedmont Aviation, Inc.
Pilgrim Aviation & Airlines, Inc., (d/b/a Pilgrim Airlines).
``POLINNIA'' Soc. di Navigazione p.A., Palermo.
Polynesian Airlines.
Pomair N.V.
President Airlines, Inc.
Presidential Airways, Inc.
P.R. Express.
Pro Air Services.
Provo Air, Inc.
Puerto Rico International Airlines, Inc.
Qantas Empire Airways, Ltd.
REAL S/A--Transportes Aereos.
Red Carpet Airlines, Inc.
Rederiaktiebolaget Nordstjernan (Johnson Line), Stockholm.
Republic Airlines, Inc.
Resort Commuter, Inc. (dba Resorts)
Rich International Airways, Inc.
Riddle Airlines, Inc.
Royal Air Maroc.
Royal Hawaiian Air Service.
Royal Mail Lines, Ltd.
Royal Netherlands Steamship Co.
Royal Rotterdam Lloyd.
SAETA.
Sabena Belgian Air Lines.
Sahsa Honduras Airlines.
Samoa Airlines.
San Juan Airlines.
Saturn Airways, Inc.
Saudi Arabian Airlines.
Scandinavian Airlines System, Inc.
Scindia Steam Navigation Co., Ltd.
Seven Seas Airlines, Inc.

[[Page 367]]

Shawnee Airlines, Inc.
Shinwa Kaiun Kaisha, Ltd.
Showa Shipping Co., Ltd.
Sicula Oceanica, S.A. (SIOSA Lines).
Singapore Airlines.
Skylink Airlines, Ltd.
Skystar International, Inc.
Skyworld Airlines (dba Ports of Call Air)
Societa Italiana di Armamento ``SIDARMA''.
Societa Italiana Transporti Marittimi of Genoa (Sitmar Line).
South African Airways.
South Pacific Air Lines.
Southern Airways, Inc.
Southern Air Transport, Inc.
Spantax S.A.
Standard Airway, Inc.
States Steamship Co.
Sterling Airways A/S.
SUEDFLUG, Sued-deutsche Fluggesellscharft mbH, Stuttgart.
SUN LAND Air Lines, Inc.
Surinam Airways Ltd.
Swedish American Line.
Swiss Air Transport Co., Ltd. (SWISSAIR).
TACA International Airlines, S.A.
Taiwan Navigation Co., Ltd.
Texas International Airlines, Inc.
Thai Airways International, Ltd.
The Eastern & Australian Steamship Co., Ltd.
Theofano Maritime Co., Ltd.
Time Air, Inc.
Tower Air, Inc.
Toyo Yusen Co., Ltd.
Transair Limited-Winnipeg, Manitoba.
Transamerica Airlines.
Transatlantic Steamship Co., Ltd. (Rederiaktiebolaget Transatlantic).
Transbrasil Airlines.
Trans Caribbean Airways, Inc.
Transavia Holland N.V.
Transcontinental S.A. de Transportes C.El.
Transglobe Airways, Ltd.
Translift Airways.
Trans Meridian Flying Services, Ltd.
Trans Micronesian Airways.
Transocean Airlines.
Transportation Corp. of America (Trans Caribbean Airways).
Transportes Aeros Nacionales, S.A. (TAN Airlines).
Transportes Aereos Portugueses S.A.R.L.
Trans World Airlines, Inc.
Transworld Express.
Trent Maritime Co., Ltd.
Triton Shipping, Inc.
Turkish Airlines.
Turks and Caicos.
Twentieth Century Airlines.
Union de Transports Aeriens--U.T.A.
United Air Lines, Inc.
United Philippine Line.
United States Lines, Inc.
United States Overseas Airlines, Inc.
United White Shipping Co., Ltd.
Universal Airlines, Inc.
U.S. Air, Inc.
USAfrica Airways, Inc.
Varig S.A. (Brasilian Airlines).
VASP Brazilian (Viacao Aerea Sao Paulo S.A.).
Venezuelan International Airlines, Inc.
VIA Rail Canada Inc.
Virgin Atlantic Airways, Ltd.
Wardair Canada Inc.
Western Airlines.
Westfal Larsen Line.
White Star Maritime Co., Ltd.
Wien Consolidated Airlines, Inc.
Winchester, J. H., & Co., as agents for Costa Line.
Windward Islands Airways International.
World Airways, Inc.
Wamashita Steamship Co., Ltd.
Ybarra & Co., Inc.
Y. Guahan Airways, Inc./Guam Marianas Air
Zim Israel Navigation Co., Ltd.
    (c) Carrier responsibility. Nothing contained within the provisons 
of section 286 of the Act shall be deemed to waive the carrier's 
liability for detention, transportation, and other expenses incurred in 
the bringing of aliens to the United States under the terms of this 
section.

[32 FR 9630, July 4, 1967]

    Editorial Note: For Federal Register citations affecting Sec. 238.3, 
see List of CFR Sections Affected in the Finding Aids section of this 
volume.



Sec. 238.4  Preinspection outside the United States.

    The following transportation lines have entered into agreements on 
Form I-425 for the preinspection of their passengers and crews at places 
outside the United States:

                                At Aruba

Air Aruba.
Airmark Aviation, Inc.
ALM Antillean Airlines.
American Airlines, Inc.
American Trans Air, Inc.
AvAtlantic.
Carnival Airlines.
Express One International, Inc.
Jet Fleet Corporation.
Miami Air International, Inc.
Rich International Airways, Inc.
Servicious Avensa S.A. (SERVIVENSA).

                               At Bermuda

Air Florida, Inc.
Air Venturers of Houston, Inc.
American Airlines, Inc. (Charter Flights only).

[[Page 368]]

American Eagle Airlines, Inc.
American Flyers Airline Corp.
AvAtlantic.
Braniff Airways, Inc.
British Airways (British Airways Board).
Capitol Airways, Inc.
Continental Airlines.
Delta Air Lines, Inc.
Flying Tiger Line Inc., The.
Furness, Withy and Co., Ltd.
Guest Aerovias Mexico, S.A.
Miami Air International, Inc.
Northeast Airlines, Inc.
Northeastern International Airways, Inc.
Northwest Airlines, Inc.
Piedmont Airlines.
Saturn Airways.
Standard Air Ways, Inc.
Swedish American Line Agency, Inc.
Trans International Airlines.
Trans World Airlines, Inc.
United Air Lines.
U.S. Air.
World Airways, Inc.

                               At Calgary

Air Canada
Air Niagara Express, Inc.
America West Airlines, Inc.
American Airlines, Inc.
Big Sky Airlines.
Canadian Airlines International, Ltd.
Canadian Pacific Airlines.
Cascade Airways, Inc.
Express One International, Inc.
Miami Air International, Inc.
Northwest Airlines, Inc.
Pacific Western Airlines, Ltd.
Time Air, Inc.
United Airlines, Inc.
Wardair Canada, Inc.
Western Airlines Inc.

                                At Dublin

Air Lingus.
American Trans Air, Inc.
Delta Airlines.
Tower Air.

                               At Edmonton

Air Canada.
Canadian Airlines International, Ltd.
Canadian Pacific Airlines.
Continental Airlines.
Delta Airlines, Inc.
Express One International, Inc.
Miami Air International, Inc.
Northwest Airlines, Inc.
Pacific Western Airlines.
Republic Airlines.
Wardair Canada, Inc.
Western Air Lines, Inc.

                               At Freeport

Aerocoach Aviation International, Inc.
Aerostar Airlines, Inc.
Air Florida, Inc.
Airways International, Inc.
Bahamas Air Holdings Ltd.
Caribbean Express, Inc.
Comair, Inc.
Delta Air Lines Inc.
Evergreen International Airlines, Inc.
Express One International, Inc.
Gulf Air Transport, Inc.
Gull Air, Inc.
Key Airlines, Inc.
Mackey International Airlines.
Miami Air International, Inc.
Midway Airlines.
Northeastern International Airways, Inc.
Rich International Airways, Inc.
Sun Country Airlines.
Trinity Air Bahamas.
U.S. Air, Inc.
United Airlines, Inc.

                               At Montreal

Air Alliance, Inc.
Air Canada.
Air Florida, Inc.
Air France.
Air Niagara Express, Inc.
Air Ontario, Limited.
American Airlines, Inc.
American Flyers Airline Corp.
Braniff Airways, Inc.
British Airways (British Airways Board).
Canadian Airlines International, Ltd.
Canadian Pacific Airlines, Ltd.
Capitol Airways, Inc.
Comair, Inc.
Continental Airlines.
Delta Air Lines, Inc.
Deutsche Lufthansa Aktiengesellschaft (Lufthansa German Airlines).
Eagle Airways (Bermuda) Ltd.
Eastern Provincial Airways (1963) Limited.
Express One International, Inc.
McCulloch International Airlines.
Miami Air International, Inc.
Nordair Ltee--Nordair Ltd.
Northeast Airlines, Inc.
Northwest Airlines.
Northwest Airlines, Inc.
Odyssey International.
Ozark Air Lines, Inc.
Pilgrim Aviation and Airlines, Inc.
Piedmont Aviation, Inc.
Quebecair.
Quebec/Air Quebec, Inc., (dba Intercanadian).
Republic Airlines, Inc.
Saturn Airways, Inc.
Trans-Florida Airlines, Inc.
Trans World Airlines, Inc.
Transair Limited.
United Air Lines, Inc.
U.S. Air, Inc.
Wardair Canada, Inc.
Western Skyways, Inc.
World Airways, Inc.
World Wide Airways, Inc.
Worldway Airlines Ltd.

[[Page 369]]

Wright Air Lines Inc.

                                At Nassau

Aerostar Airlines, Inc.
Air Canada.
Air Venturers of Houston, Inc.
American Flyers Airline Corp.
American International Airways.
American Trans Air.
Bahamasair Holdings Ltd.
Bahamas Airways, Ltd.
Best Airlines, Inc.
British Airways (British Airways Board).
Capitol Airways, Inc.
Challenge International Airlines.
Continental.
Delta Air Lines, Inc.
Eagle Airways (Bermuda), Ltd.
Executive Jet Aviation, Inc.
Express One International, Inc.
Florida Air, Inc.
Flying Tiger Line, Inc., The.
Great Lakes Airlines Limited.
International Air Bahama, Ltd.
Mackey International Airlines.
McCormick Shipping Corp., Eastern Shipping Corp. Agents.
Miami Air International, Inc.
Midway Airlines.
Modern Air Transport, Inc.
National Airlines, Inc.
Northeastern International Airways, Inc.
Piedmont Airlines.
Pro Air Services.
Rich International Airways, Inc.
Sun Country Airlines.
Trans Caribbean Airways, Inc.
Trans World Airlines, Inc.
Trinity Air Bahamas.
United Air Lines, Inc.
U.S. Air.
World Airways, Inc.

                           At Paradise Island

Express One International.
Paradise Island Airlines, Inc.

                            At Prince Rupert

State of Alaska Department of Public Works. Westours, Inc.

                               At Shannon

Aer Lingus.
Aeroflot.
American Trans Air.
Condor.
Gulf Air, Inc., (dba TransOcean Airways).
Tower Air.
Translift Airways Limited.

                               At Toronto

Air Canada.
Air Florida, Inc.
Air France.
Air Ontario, Limited.
American Airlines, Inc.
American Flyers Airline Corp.
Astral Aviation, Inc., (dba Skyway Airlines).
Atlantic Coast Airlines, (dba United Express).
Braniff Airways, Inc.
British United Airways (Services), Ltd.
British West Indian Airways.
Caledonian Airways (Prestwick), Ltd.
Canadian Airlines International, Ltd.
Canadian Pacific Air Lines, Ltd.
Capitol Airways, Inc.
Chautauqua Airlines, Inc., ( dba USAir Express).
Conifair Aviation Inc., (dba Royal Airlines).
Dan-Air Services, Ltd.
Eastern Provincial Airways (1963) Limited.
Express One International, Inc.
McCulloch International Airlines.
Miami Air International, Inc.
Nolisair International, Inc., (dba Nationair Canada).
Nordair Ltee--Nordair Ltd.
North Central Airlines, Inc.
Northwest Airlines, Inc.
Odyssey International
Ozark Air Lines, Inc.
Piedmont Aviation, Inc.
Pilgrim Aviation and Airlines, Inc.
Quebecair.
Quebec/Air Quebec, Inc., (dba Intercanadian).
Saturn Airways, Inc.
Standard Airways, Inc.
Trans World Airlines, Inc.
Transair Limited.
United Air Lines, Inc.
U.S. Air, Inc.
Vacationair.
Wardair Canada, Inc.
Wright Air Lines.
World Airways, Inc.
Worldways Canada Limited.
Yugoslav Airlines.

                              At Vancouver

Admiral Cruiselines.
AirBC.
AirCal, Inc.
Air Canada.
Air Niagara Express, Inc.
American Airlines, Inc.
American Flyers Airline Corp.
British Airways (British Airways Board).
Canadian Airlines International, Ltd.
Canadian Pacific Air Lines, Ltd.
Continental Airlines.
Costa Cruise Line.
Delta Airlines, Inc.
Empire Airlines, Inc.
Express One International, Inc.
Great American Airways, Inc.
Great Northern Airways, Ltd.
Harbor Airlines, Inc.
Holland America Cruises.
International Jet Air, Ltd.
Miami Air International, Inc.
Monarch Cruise Lines, Inc.
Nomads, Inc.

[[Page 370]]

P. & O. Inc.
P & O Lines (North America) Inc.
Pacific Interstate Airlines.
Pacific Western Airlines, Ltd.
Paquet Cruise Lines, Inc.
San Juan Airlines, Inc.
Skylink Airlines.
South Pacific Island Airways.
Standard Airways, Inc.
Sundance Cruises, Inc.
Trans World Airlines, Inc.
United Air Lines, Inc.
Universal Airlines, Inc.
VCHC Enterprises, Limited.
Wardair Canada, Inc.
Western Airlines, Inc.
World Airways, Inc.

                               At Victoria

Airwest Canada.
B.C. Stena Line, Ltd.
Black Ball Transport, Inc.
British Columbia Coast Steamship Service.
British Columbia Steamship Co. (1975), Ltd.
Canadian Airlines International, Ltd.
Canadian Pacific Railway Co.
Clipper Navigation, Inc.
Island Jetfoil Corporation.
Miami Air International, Inc.
Northwest Hydrofoil Lines, Inc.
Royal Cruise Line.
Washington State Ferries.
Yarmouth Cruises, Inc.

                               At Winnipeg

Aero Trades (Western) Ltd.
Air Canada.
Air Niagara Express, Inc.
Aspen Airways, (dba United Express).
Canadian Airlines International, Ltd.
CP Air.
Express One International, Inc.
Frontier Airlines, Inc.
Holiday Air of America.
Miami Air International, Inc.
Nordair Limited.
North Central Airlines.
Northwest Airlines, Inc.
Pacific Western Airlines, Ltd.
Trans Air, Ltd.
Trans World Airlines, Inc.
VCHC Enterprises, Limited.
Wardair Canada, Inc.

[32 FR 9630, July 4, 1967]

    Editorial Note: For Federal Register citations affecting Sec. 238.4, 
see List of CFR Sections Affected in the Finding Aids section of this 
volume.



Sec. 238.5  Aliens entering Guam pursuant to section 14 of Public Law 99-396, ``Omnibus Territories Act''.

    (a) Form I-760 agreements. A transportation line bringing aliens to 
Guam under the visa waiver provisions of Sec. 212.1(e) of this chapter 
shall enter into an agreement on Form I-760. Such agreements shall be 
negotiated directly by the Central Office and head offices of the 
transportation lines.
    (b) [Reserved]

[52 FR 48084, Dec. 18, 1987]



PART 239--SPECIAL PROVISIONS RELATING TO AIRCRAFT: DESIGNATION OF PORTS OF ENTRY FOR ALIENS ARRIVING BY CIVIL AIRCRAFT--Table of Contents




Sec.
239.1  Definitions.
239.2  Landing requirements.
239.3  Aircraft; how considered.
239.4  International airports for entry of aliens.

    Authority: 8 U.S.C. 1103, 1221, and 1229; 66 Stat. 173, 195, 203.



Sec. 239.1  Definitions.

    (a) Scheduled Airline. This term means any individual, partnership, 
corporation, or association engaged in air transportation upon regular 
schedules to, over, or away from the United States, or from one place to 
another in the United States, and holding a Foreign Air Carrier permit 
or a Certificate of Public Convenience and Necessity issued pursuant to 
the Federal Aviation Act of 1958 (72 Stat. 731).
    (b) International Airport. An international airport is one 
designated by the Commissioner for the entry of aliens with the prior 
approval of the Secretary of Commerce, Secretary of the Treasury and the 
Secretary of Health and Human Services.
    (c) Landing Rights Airport. An airport, although not designated as 
international, at which permission to land has been granted to aircraft 
operated by scheduled airlines by the Commissioner of Customs.

[49 FR 50018, Dec. 26, 1984]



Sec. 239.2  Landing requirements.

    (a) Place of landing. Aircraft carrying passengers or crew required 
to be inspected under the Act shall land at the international air ports 
of entry enumerated in part 100 of this chapter unless permission to 
land elsewhere shall

[[Page 371]]

first be obtained from the Commissioner of Customs in the case of 
aircraft operated by scheduled airlines, and in all other cases from the 
district director of Customs or other Customs officer having 
jurisdiction over the Customs port of entry nearest the intended place 
of landing. Notwithstanding the foregoing, aircraft carrying passengers 
or crew required to be inspected under the Act on flights originating in 
Cuba shall land only at Fort Lauderdale-Hollywood Airport, Fort 
Lauderdale, Florida, unless advance permission to land elsewhere has 
been obtained from the District Director of the Immigration and 
Naturalization Service at Miami, Florida.
    (b) Advance notice of arrival. Aircraft carrying passengers or crew 
required to be inspected under the Immigration and Nationality Act, 
except aircraft of a scheduled airline arriving in accordance with the 
regular schedule filed with the Service at the place of landing, shall 
furnish notice of the intended flight to the immigration officer at or 
nearest the intended place of landing, or shall furnish similar notice 
to the district director of Customs or other Customs officer in charge 
at such place. Such notice shall specify the type of aircraft, the 
registration marks thereon, the name of the aircraft commander, the 
place of last departure, the airport of entry, or other place at which 
landing has been authorized, number of alien passengers, number of 
citizen passengers, and the estimated time of arrival. The notice shall 
be sent in sufficient time to enable the officers designated to inspect 
the aircraft to reach the airport of entry or such other place of 
landing prior to the arrival of the aircraft.
    (c) Permission to discharge or depart. Aircraft carrying passengers 
or crew required to be inspected under the Immigration and Nationality 
Act shall not discharge or permit to depart any passenger or crewman 
without permission from an immigration officer.
    (d) Emergency or forced landing. Should any aircraft carrying 
passengers or crew required to be inspected under the Immigration and 
Nationality Act make a forced landing in the United States, the 
commanding officer or person in command shall not allow any passenger or 
crewman thereon to depart from the landing place without permission of 
an immigration officer, unless such departure is necessary for purposes 
of safety or the preservation of life or property. As soon as 
practicable, the commanding officer or person in command, or the owner 
of the aircraft, shall communicate with the nearest immigration officer 
and make a full report of the circumstances of the flight and of the 
emergency or forced landing.

[22 FR 9795, Dec. 6, 1957, as amended at 32 FR 9631, July 4, 1967; 45 FR 
29243, May 1, 1980; 49 FR 50019, Dec. 26, 1984; 54 FR 102, Jan. 4, 1989; 
54 FR 1050, Jan. 11, 1989]



Sec. 239.3  Aircraft; how considered.

    Except as otherwise specifically provided in the Immigration and 
Nationality Act and this chapter, aircraft arriving in or departing from 
the continental United States or Alaska directly from or to foreign 
contiguous territory or the French island of St. Pierre or Miquelon 
shall be regarded for the purposes of the Immigration and Nationality 
Act and this chapter as other transportation lines or companies arriving 
or departing over the land borders of the United States. Aliens on 
aircraft arriving overland in foreign contiguous territory on journeys 
which did not begin outside of North or South America or islands 
belonging to countries or to political subdivisions of these continents 
shall not be held to be subject to section 212(a)(24) of the Immigration 
and Nationality Act.

[22 FR 9795, Dec. 6, 1957]



Sec. 239.4  International airports for entry of aliens.

    International airports for the entry of aliens shall be those 
airports designated as such by the Commissioner. An application for 
designation of an airport as an international airport for the entry of 
aliens shall be made to the Commissioner and shall state whether the 
airport: (a) Has been approved by the Secretary of Commerce as a 
properly equipped airport, (b) has been designated by the Secretary of 
the Treasury as a port of entry for aircraft arriving in the United 
States from any place outside thereof and for the merchandise carried 
thereon, and (c) has been

[[Page 372]]

designated by the Secretary of Health, Education, and Welfare as a place 
for quarantine inspection. An airport shall not be so designated by the 
Commissioner without such prior approval and designation, and unless it 
appears to the satisfaction of the Commissioner that conditions render 
such designation necessary or advisable, and unless adequate facilities 
have been or will be provided at such airport without cost to the 
Federal Government for the proper inspection and disposition of aliens, 
including office space and such temporary detention quarters as may be 
found necessary. The designation of an airport as an international 
airport for the entry of aliens may be withdrawn whenever, in the 
judgment of the Commissioner, there appears just cause for such action.

[22 FR 9795, Dec. 6, 1957]



PART 240--TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED STATES--Table of Contents




Sec.
240.1  Definitions.
240.2  Eligibility.
240.3  Applicability of grounds of inadmissibility.
240.4  Ineligible aliens.
240.5  Temporary treatment benefits for eligible aliens.
240.6  Application.
240.7  Filing the application.
240.8  Appearance.
240.9  Evidence.
240.10  Decision by the district director or Administrative Appeals Unit 
          (AAU).
240.11  Renewal of application; appeal to the Board of Immigration 
          Appeals.
240.12  Employment authorization.
240.13  Termination of temporary treatment benefits.
240.14  Withdrawal of Temporary Protected Status.
240.15  Travel abroad.
240.16  Confidentiality.
240.17  Annual registration.
240.18  Issuance of charging documents; detention.
240.19  Termination of designation.
240.20  Waiver of fees.
240.21--240.39  [Reserved]

    Authority: 8 U.S.C. 1103, 1254a, 1254a note.

    Source: 56 FR 619, Jan. 7, 1991, unless otherwise noted.



Sec. 240.1  Definitions.

    As used in this part:
    Act means the Immigration and Nationality Act, as amended by the 
Immigration Act of 1990.
    Brief, casual, and innocent absence means a departure from the 
United States that satisfies the following criteria:
    (1) Each such absence was of short duration and reasonably 
calculated to accomplish the purpose(s) for the absence;
    (2) The absence was not the result of an order of deportation, an 
order of voluntary departure, or an administrative grant of voluntary 
departure without the institution of deportation proceedings; and
    (3) The purposes for the absence from the United States or actions 
while outside of the United States were not contrary to law.
    Charging document means Form I-221 (Order to Show Cause and Notice 
of Hearing), Form I-221S (Order to Show Cause, Notice of Hearing, and 
Warrant for Arrest of Alien) or Form I-122 (Notice to Applicant for 
Admission Detained for Hearing before Immigration Judge).
    Continuously physically present means actual physical presence in 
the United States for the entire period specified in the regulations. An 
alien shall not be considered to have failed to maintain continuous 
physical presence in the United States by virtue of brief, casual, and 
innocent absences as defined within this section.
    Continuously resided means residing in the United States for the 
entire period specified in the regulations. An alien shall not be 
considered to have failed to maintain continuous residence in the United 
States by reason of a brief, casual and innocent absence as defined 
within this section or due merely to a brief temporary trip abroad 
required by emergency or extenuating circumstances outside the control 
of the alien.
    Felony means a crime committed in the United States, punishable by 
imprisonment for a term of more than one year, regardless of the term 
such alien actually served, if any, except: When the offense is defined 
by the

[[Page 373]]

State as a misdemeanor and the sentence actually imposed is one year or 
less regardless of the term such alien actually served. Under this 
exception for purposes of section 244A of the Act, the crime shall be 
treated as a misdemeanor.
    Misdemeanor means a crime committed in the United States, either:
    (1) Punishable by imprisonment for a term of one year or less, 
regardless of the term such alien actually served, if any, or
    (2) A crime treated as a misdemeanor under the term ``felony'' of 
this section.
    For purposes of this definition, any crime punishable by 
imprisonment for a maximum term of five days or less shall not be 
considered a felony or misdemeanor.
    Prima facie means eligibility established with the filing of a 
completed application for Temporary Protected Status containing factual 
information that if unrebutted will establish a claim of eligibility 
under section 244A(c) of the Act.
    Register means to properly file, with the district director, a 
completed application, with proper fee, for Temporary Protected Status 
during the registration period designated under section 244A(b) of the 
Act.
    State means any foreign country or part thereof as designated by the 
Attorney General pursuant to section 244A(b) of the Act.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991]



Sec. 240.2  Eligibility.

    Except as provided in Secs. 240.3 and 240.4, an alien may in the 
discretion of the district director be granted Temporary Protected 
Status if the alien establishes that he or she:
    (a) Is a national, as defined in section 101(a)(21) of the Act, of a 
state designated under section 244A(b) of the Act;
    (b) Has been continuously physically present in the United States 
since the effective date of the most recent designation of that state;
    (c) Has continuously resided in the United States since such date as 
the Attorney General may designate;
    (d) Is admissible as an immigrant except as provided under 
Sec. 240.3;
    (e) Is not ineligible under Sec. 240.4; and
    (f)(1) Registers for Temporary Protected Status during the initial 
registration period; or
    (2) Is or was in valid immigrant or nonimmigrant status during the 
registration period, and registers no later than 30 days from the 
expiration of such status during any subsequent period of redesignation, 
or by February 3, 1994, whichever date is later.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991; 58 FR 
58937, Nov. 5, 1993]



Sec. 240.3  Applicability of grounds of inadmissibility.

    (a) Grounds of inadmissibility not to be applied. Paragraphs (4), 
(5) (A) and (B), and (7)(A)(i) of section 212(a) of the Act shall not 
render an alien ineligible for Temporary Protected Status.
    (b) Waiver of grounds of inadmissibility. Except as provided in 
paragraph (c) of this section, the Service may waive any other provision 
of section 212(a) of the Act 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 inadmissible 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 inadmissibility on Form I-601 (Application for waiver of grounds of 
excludability).
    (c) Grounds of inadmissibility that may not be waived. The Service 
may not waive the following provisions of section 212(a) of the Act:
    (1) Paragraphs (2)(A)(i), (2)(B), and (2)(C) (relating to criminals 
and drug offenses);
    (2) Paragraphs (3)(A), (3)(B), (3)(C), and (3)(D) (relating to 
national security); or
    (3) Paragraph (3)(E) (relating to those who assisted in the Nazi 
persecution).

[56 FR 619, Jan. 7, 1991, as amended at 58 FR 58937, Nov. 5, 1993]



Sec. 240.4  Ineligible aliens.

    An alien is ineligible for Temporary Protected Status if the alien:

[[Page 374]]

    (a) Has been convicted of any felony or two or more misdemeanors, as 
defined in Sec. 240.1, committed in the United States, or
    (b) Is an alien described in section 243(h)(2) of the Act.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991]



Sec. 240.5  Temporary treatment benefits for eligible aliens.

    (a) Prior to the registration period. Prior to the registration 
period established by the Attorney General, a national of a state 
designated by the Attorney General shall be afforded temporary treatment 
benefits upon the filing, after the effective date of such designation, 
of a completed application for Temporary Protected Status which 
establishes the alien's prima facie eligibility for benefits under 
section 244A of the Act. This application may be filed without fee. 
Temporary treatment benefits, if granted, shall terminate unless the 
registration fee is paid or a waiver is sought within the first thirty 
days of the registration period designated by the Attorney General. If 
the registration fee is paid or a waiver is sought within such thirty 
day period, temporary treatment benefits shall continue until terminated 
under Sec. 240.13. The denial of temporary treatment benefits prior to 
the registration period designated by the Attorney General shall be 
without prejudice to the filing of an application for Temporary 
Protected Status during such registration period.
    (b) During the registration period. Upon the filing of an 
application for Temporary Protected Status, the alien shall be afforded 
temporary treatment benefits, if the application establishes the alien's 
prima facie eligibility for Temporary Protected Status. Such temporary 
treatment benefits shall continue until terminated under Sec. 240.13.
    (c) Denied benefits. There shall be no appeal from the denial of 
temporary treatment benefits.

[56 FR 619, May 22, 1991, as amended at 56 FR 23497, May 22, 1991]



Sec. 240.6  Application.

    An application for Temporary Protected Status shall be made in 
accordance with Sec. 103.2 of this chapter except as provided herein. 
Each application must be filed with the fee as provided in Sec. 103.7 of 
this chapter, by each individual seeking Temporary Protected Status, 
except that the fee for Form I-765 will be charged only for those aliens 
who are nationals of El Salvador, and are between the ages of 14 and 65 
(inclusive), and are requesting work authorization. Each application 
must consist of a completed Application for Temporary Protected Status 
(Form I-821), Application for Employment Authorization (Form I-765), two 
completed fingerprint cards (Form FD-258) for every applicant who is 
fourteen years of age or older, two identification photographs (1\1/
2\'' x 1\1/2\''), and supporting evidence as provided in Sec. 240.9.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991; 58 FR 
58937, Nov. 5, 1993]



Sec. 240.7  Filing the application.

    (a) An application for Temporary Protected Status shall be filed 
with the district director having jurisdiction over the applicant's 
place of residence.
    (b) An application for Temporary Protected Status must be filed 
during the registration period established by the Attorney General, 
except in the case of an alien described in Sec. 240.2(f)(2).
    (c) Each applicant must pay a fee, as determined at the time of the 
designation of the foreign state, except as provided in Sec. 240.5(a).
    (d) If the alien has a pending deportation or exclusion proceeding 
before the immigration judge or Board of Immigration Appeals at the time 
a state is designated under section 244A(b) of the Act, the alien shall 
be given written notice concerning Temporary Protected Status. Such 
alien shall have the opportunity to submit an application for Temporary 
Protected Status to the district director under Sec. 240.7(a) during the 
published registration period unless the basis of the charging document, 
if established, would render the alien ineligible for Temporary 
Protected Status under Sec. 240.3(c) or 240.4. Eligibility for Temporary 
Protected Status in the latter instance shall be

[[Page 375]]

decided by the Executive Office for Immigration Review during such 
proceedings.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991; 58 FR 
58937, Nov. 5, 1993]



Sec. 240.8  Appearance.

    The applicant may be required to appear in person before an 
immigration officer. The applicant may be required to present 
documentary evidence to establish his or her eligibility. The applicant 
may have a representative as defined in Sec. 292.1 of this chapter 
present during any examination. Such representative shall not directly 
participate in the examination; however, such representative may consult 
with and provide advice to the applicant. The record of examination 
shall consist of the application, documents relating to the application, 
and the decision of the district director.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991]



Sec. 240.9  Evidence.

    (a) Documentation. Applicants shall submit all documentation as 
required in the instructions or requested by the Service. The Service 
may require proof of unsuccessful efforts to obtain documents claimed to 
be unavailable. If any required document is unavailable, an affidavit or 
other credible evidence may be submitted.
    (1) Evidence of identity and nationality. Each application must be 
accompanied by evidence of the applicant's identity and nationality, if 
available. If these documents are unavailable, the applicant shall file 
an affidavit showing proof of unsuccessful efforts to obtain such 
identity documents, explaining why the consular process is unavailable, 
and affirming that he or she is a national of the designated state. A 
personal interview before an immigration officer shall be required for 
each applicant who fails to provide documentary proof of identity or 
nationality. During this interview, the applicant may present any 
secondary evidence that he or she feels would be helpful in showing 
nationality. Acceptable evidence in descending order of preference may 
consist of:
    (i) Passport;
    (ii) Birth certificate accompanied by photo identification; and/or
    (iii) Any national identity document from the alien's country of 
origin bearing photo and/or fingerprint.
    (2) Proof of residence. Evidence to establish proof of continuous 
residence in the United States during the requisite period of time may 
consist of any of the following:
    (i) Employment records, which may consist of pay stubs, W-2 Forms, 
certification of the filing of Federal, State, or local income tax 
returns; letters from employer(s) or, if the applicant has been self 
employed, letters from banks, and other firms with whom he or she has 
done business. In all of the above, the name of the alien and the name 
of the employer or other interested organization must appear on the form 
or letter, as well as relevant dates. Letters from employers must be in 
affidavit form, and shall be signed and attested to by the employer 
under penalty of perjury. Such letters from employers must include:
    (A) Alien's address(es) at the time of employment;
    (B) Exact period(s) of employment;
    (C) Period(s) of layoff; and
    (D) Duties with the company.
    (ii) Rent receipts, utility bills (gas, electric, telephone, etc.), 
receipts, or letters from companies showing the dates during which the 
applicant received service;
    (iii) School records (letters, report cards, etc.) from the schools 
that the applicant or his or her children have attended in the United 
States showing name of school and period(s) of school attendance;
    (iv) Hospital or medical records showing medical treatment or 
hospitalization of the applicant or his or her children, showing the 
name of the medical facility or physician as well as the date(s) of the 
treatment or hospitalization;
    (v) Attestations by churches, unions, or other organizations of the 
applicant's residence by letter which:
    (A) Identifies applicant by name;
    (B) Is signed by an official whose title is also shown;
    (C) Shows inclusive dates of membership;

[[Page 376]]

    (D) States the address where applicant resided during the membership 
period;
    (E) Includes the seal of the organization impressed on the letter or 
is on the letterhead of the organization, if the organization has 
letterhead stationery;
    (F) Establishes how the attestor knows the applicant; and
    (G) Establishes the origin of the information being attested to.
    (vi) Additional documents to support the applicant's claim, which 
may include:
    (A) Money order receipts for money sent in or out of the country;
    (B) Passport entries;
    (C) Birth certificates of children born in the United States;
    (D) Bank books with dated transactions;
    (E) Correspondence between the applicant and other persons or 
organizations;
    (F) Social Security card;
    (G) Selective Service card;
    (H) Automobile license receipts, title, vehicle registration, etc;
    (I) Deeds, mortgages, contracts to which applicant has been a party;
    (J) Tax receipts;
    (K) Insurance policies, receipts, or letters; and/or
    (L) Any other relevant document.
    (3) Evidence of eligibility under section 244A(c)(2) of the Act. An 
applicant has the burden of showing that he or she is eligible for 
benefits under this part.
    (4) Evidence of valid immigrant or nonimmigrant status. In the case 
of an alien described in Sec. 240.2(f)(2), Form I-551 or Form I-94 must 
be submitted by the applicant.
    (b) Sufficiency of evidence. The sufficiency of all evidence will be 
judged according to its relevancy, consistency, credibility, and 
probative value. To meet his or her burden of proof the applicant must 
provide supporting documentary evidence of eligibility apart from his or 
her own statements.
    (c) Failure to timely respond. Failure to timely respond to a 
request for information, or to appear for a scheduled interview, without 
good cause, will be deemed an abandonment of the application and will 
result in a denial of the application for lack of prosecution. Such 
failure shall be excused if the request for information, or the notice 
of the interview was not mailed to the applicant's most recent address 
provided to the Service.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991; 58 FR 
58937, Nov. 5, 1993]



Sec. 240.10  Decision by the district director or Administrative Appeals Unit (AAU).

    (a) Temporary treatment benefits. The district director shall grant 
temporary treatment benefits to the applicant if the applicant 
establishes prima facie eligibility for Temporary Protected Status in 
accordance with Sec. 240.5.
    (b) Temporary Protected Status. Upon review of the evidence 
presented, the district director may approve or deny the application for 
Temporary Protected Status in the exercise of discretion, consistent 
with the standards for eligibility in Secs. 240.2, 240.3, and 240.4.
    (c) Denial by district director. The decision of the district 
director to deny Temporary Protected Status, a waiver of grounds of 
inadmissibility, or temporary treatment benefits shall be in writing 
served in person or by mail to the alien's most recent address provided 
to the Service and shall state the reason(s) for the denial. Except as 
otherwise provided in this section, the alien shall be given written 
notice of his or her right to appeal a decision denying Temporary 
Protected Status. To exercise such right, the alien shall file a notice 
of appeal, Form I-290B, with the district director who issued the 
denial. If an appeal is filed, the administrative record shall be 
forwarded to the AAU for review and decision, pursuant to authority 
delegated in Sec. 103.1(f)(2), except as otherwise provided in this 
section.
    (1) If the basis for the denial of the Temporary Protected Status 
constitutes a ground for deportability or excludability which renders 
the alien ineligible for Temporary Protected Status under Sec. 240.4 or 
inadmissible under Sec. 240.3(c), the decision shall include a charging 
document which sets forth such ground(s).
    (2) If such a charging document is issued, the alien shall not have 
the right

[[Page 377]]

to appeal the district director's decision denying Temporary Protected 
Status as provided in this subsection. The decision shall also apprise 
the alien of his or her right to a de novo determination of his or her 
eligibility for Temporary Protected Status in deportation or exclusion 
proceedings pursuant to Secs. 240.11 and 240.18.
    (d) Decision by AAU. The decision of the AAU shall be in writing 
served in person, or by mail to the alien's most recent address provided 
to the Service, and, if the appeal is dismissed, the decision shall 
state the reason(s) for the denial.
    (1) If the appeal is dismissed by the AAU under Sec. 240.18(b), the 
decision shall also apprise the alien of his or her right to a de novo 
determination of eligibility for Temporary Protected Status in 
deportation or exclusion proceedings.
    (2) If the appeal is dismissed by the AAU, the district director may 
issue a charging document if no charging document is presently filed 
with the Immigration Court.
    (3) If a charging document has previously been filed or is pending 
before the Immigration Court, either party may move to recalendar the 
case after the decision by the AAU.
    (e) Grant of temporary treatment benefits. (1) Temporary treatment 
benefits shall be evidenced by the issuance of an employment 
authorization document. The alien shall be given, in English and in the 
language of the designated state or a language that the alien 
understands, a notice of the registration requirements for Temporary 
Protected Status and a notice of the following benefits:
    (i) Temporary stay of deportation; and
    (ii) Temporary employment authorization.
    (2) Unless terminated under Sec. 240.13, temporary treatment 
benefits shall remain in effect until a final decision has been made on 
the application for Temporary Protected Status.
    (f) Grant of temporary protected status. (1) The decision to grant 
Temporary Protected Status shall be evidenced by the issuance of an 
alien registration document. For those aliens requesting employment 
authorization, the employment authorization document will act as alien 
registration.
    (2) The alien shall be provided with a notice, in English and in the 
language of the designated state or a language that the alien 
understands, of the following benefits:
    (i) The alien shall not be deported while maintaining Temporary 
Protected Status;
    (ii) Employment authorization;
    (iii) The privilege to travel abroad with the prior consent of the 
district director as provided in Sec. 240.15;
    (iv) For the purposes of adjustment of status under section 245 of 
the Act and change of status under section 248 of the Act, the alien is 
considered as being in, and maintaining, lawful status as a nonimmigrant 
while the alien maintains Temporary Protected Status.
    (v) An alien eligible to apply for Temporary Protected Status under 
Sec. 240.2(f)(2), who was prevented from filing a late application for 
registration because the regulations failed to provide him or her with 
this opportunity, will be considered to have been maintaining lawful 
status as a nonimmigrant until the benefit is granted.
    (3) The benefits contained in the notice are the only benefits the 
alien is entitled to under Temporary Protected Status.
    (4) Such notice shall also advise the alien of the following:
    (i) The alien must remain eligible for Temporary Protected Status;
    (ii) The alien must register annually with the District Office 
having jurisdiction over the alien's place of residence; and
    (iii) The alien's failure to comply with paragraphs (f)(4) (i) or 
(ii) of this section will result in the withdrawal of Temporary 
Protected Status, including work authorization granted under this 
Program, and may result in the alien's deportation from the United 
States.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991; 58 FR 
58937, Nov. 5, 1993; 60 FR 34090, June 30, 1995]



Sec. 240.11  Renewal of application; appeal to the Board of Immigration Appeals.

    If a charging document is served on the alien with a notice of 
denial or

[[Page 378]]

withdrawal of Temporary Protected Status, an alien may renew the 
application for Temporary Protected Status in deportation or exclusion 
proceedings. The decision of the immigration judge as to eligibility for 
Temporary Protected Status may be appealed to the Board of Immigration 
Appeals pursuant to Sec. 3.3 of this chapter. The provisions of this 
section do not extend the benefits of Temporary Protected Status beyond 
the termination of a state's designation pursuant to Sec. 240.19.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991]



Sec. 240.12  Employment authorization.

    (a) Upon approval of an application for Temporary Protected Status, 
the INS shall grant an employment authorization document valid during 
the initial period of the state's designation (and any extensions of 
such period) or twelve (12) months, whichever is shorter.
    (b) If the alien's Temporary Protected Status is withdrawn under 
Sec. 240.14, employment authorization expires upon notice of withdrawal 
or on the date stated on the employment authorization document, 
whichever occurs later.
    (c) If Temporary Protected Status is denied by the INS, employment 
authorization shall terminate upon notice of denial or at the expiration 
of the employment authorization document, whichever occurs later.
    (d) If the application is renewed or appealed in deportation or 
exclusion proceedings, or appealed to the Administrative Appeals Unit 
pursuant to Sec. 240.18(b), employment authorization will be extended 
during the pendency of the renewal and/or appeal.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991; 60 FR 
21975, May 4, 1995]



Sec. 240.13  Termination of temporary treatment benefits.

    (a) Temporary treatment benefits terminate upon a final 
determination with respect to the alien's eligibility for Temporary 
Protected Status.
    (b) Temporary treatment benefits terminate, in any case, sixty (60) 
days after the date that notice is published of the termination of a 
state's designation under section 244A(b)(3) of the Act.



Sec. 240.14  Withdrawal of Temporary Protected Status.

    (a) Authority of district director. The district director may 
withdraw the status of an alien granted Temporary Protected Status under 
section 244A of the Act at any time upon the occurrence of any of the 
following:
    (1) The alien was not in fact eligible at the time such status was 
granted, or at any time thereafter becomes ineligible for such status;
    (2) The alien has not remained continuously physically present in 
the United States from the date the alien was first granted Temporary 
Protected Status under this part. For the purpose of this provision, an 
alien granted Temporary Protected Status under this part shall be deemed 
not to have failed to maintain continuous physical presence in the 
United States if the alien departs the United States after first 
obtaining permission from the district director to travel pursuant to 
Sec. 240.15;
    (3) The alien fails without good cause to register with the Attorney 
General annually within thirty (30) days before the end of each 12-month 
period after the granting of Temporary Protected Status.
    (b) Decision by district director. (1) Withdrawal of an alien's 
status under paragraph (a) of this section shall be in writing and 
served by personal service pursuant to Sec. 103.5(a) of this chapter. If 
the ground for withdrawal is Sec. 240.14(a)(3), the notice shall provide 
that the alien has thirty (30) days within which to provide evidence of 
good cause for failure to register. If the alien fails to respond within 
thirty (30) days, Temporary Protected Status shall be withdrawn without 
further notice.
    (2) Withdrawal of the alien's Temporary Protected Status under 
paragraph (b)(1) of this section may subject the applicant to exclusion 
or deportation proceedings under section 236 or section 242 of the Act 
as appropriate.
    (3) If the basis for the withdrawal of Temporary Protected Status 
constitutes a ground of deportability or excludability which renders an 
alien ineligible for Temporary Protected

[[Page 379]]

Status under Sec. 240.4 or inadmissible under Sec. 240.3(c), the 
decision shall include a charging document which sets forth such 
ground(s) with notice of the right of a de novo determination of 
eligibility for Temporary Protected Status in deportation or exclusion 
proceedings. If the basis for withdrawal does not constitute such a 
ground, the alien shall be given written notice of his or her right to 
appeal to the AAU. Upon receipt of an appeal, the administrative record 
will be forwarded to the AAU for review and decision pursuant to the 
authority delegated under Sec. 103.1(f)(2). Temporary Protected Status 
benefits will be extended during the pendency of an appeal.
    (c) Decision by AAU. If a decision to withdraw Temporary Protected 
Status is entered by the AAU, the AAU shall notify the alien of the 
decision and the right to a de novo determination of eligibility for 
Temporary Protected Status in deportation or exclusion proceedings, if 
the alien is then deportable or excludable, as provided by 
Sec. 240.10(d).

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991]



Sec. 240.15  Travel abroad.

    (a) After the grant of Temporary Protected Status, the alien must 
remain continuously physically present in the United States under the 
provisions of section 244A(c)(3)(B) of the Act. The grant of Temporary 
Protected Status shall not constitute permission to travel abroad. 
Permission to travel may be granted by the district director pursuant to 
the Service's advance parole provisions. There is no appeal from a 
denial of advance parole.
    (b) Failure to obtain advance parole prior to the alien's departure 
from the United States may result in the withdrawal of Temporary 
Protected Status and/or the institution or recalendering of deportation 
or exclusion proceedings against the alien.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991]



Sec. 240.16  Confidentiality.

    The information contained in the application and supporting 
documents submitted by an alien shall not be released in any form 
whatsoever to a third party requester without a court order, or the 
written consent of the alien. For the purpose of this provision, a third 
party requester means any requester other than the alien, 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 purposes of enforcement of the Act or in 
any criminal proceeding.



Sec. 240.17  Annual registration.

    (a) Aliens granted Temporary Protected Status must register annually 
with the INS designated office having jurisdiction over their place of 
residence. Such registration will apply to nationals of those countries 
designated or redesignated for more than one year by the Attorney 
General pursuant to section 244A(b) of the Act. Registration may be 
accomplished by mailing or submitting in person, depending on the 
practice in place at the INS designated office, completed Forms I-821 
and I-765 within the thirty (30) day period prior to the anniversary of 
the grant of Temporary Protected Status (inclusive of such anniversary 
date). Form I-821 will be filed without fee. Form I-765 will be filed 
with fee only if the alien is requesting employment authorization. 
Completing the block on the I-821 attesting to the continued maintenance 
of the conditions of eligibility will generally preclude the need for 
supporting documents or evidence. The Service, however, reserves the 
right to request additional information and/or documentation on a case-
by-case basis.
    (b) Unless the Service determines otherwise, registration by mail 
shall suffice to meet the alien's registration requirements. However, as 
part of the registration process, an alien will generally have to appear 
in person in order to secure a renewal of employment authorization 
unless the Service determines that employment authorization will be 
extended in another fashion due to operational need. The Service may 
also request that an alien appear in person as part of the registration 
process. In such cases, failure to appear without good cause shall be 
deemed a failure to register under this chapter.

[[Page 380]]

    (c) Failure to register without good cause will result in the 
withdrawal of the alien's Temporary Protected Status.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991; 60 FR 
21975, May 4, 1995]



Sec. 240.18  Issuance of charging documents; detention.

    (a) A charging document may be issued against an alien granted 
Temporary Protected Status on grounds of deportability or excludability 
which would have rendered the alien statutorily ineligible for such 
status pursuant to Secs. 240.3(c) and 240.4. Aliens shall not be 
deported for a particular offense for which the Service has expressly 
granted a waiver. If the alien is deportable on a waivable ground, and 
no such waiver for the charged offense has been previously granted, then 
the alien may seek such a waiver in deportation or exclusion 
proceedings. The charging document shall constitute notice to the alien 
that his or her status in the United States is subject to withdrawal. A 
final order of deportation or exclusion against an alien granted 
Temporary Protected Status shall constitute a withdrawal of such status.
    (b) The filing of the charging document by the Service with the 
Immigration Court renders inapplicable any other administrative, 
adjudication or review of eligibility for Temporary Protected Status. 
The alien shall have the right to a de novo determination of his or her 
eligibility for Temporary Protected Status in the deportation or 
exclusion proceedings. Review by the Board of Immigration Appeals shall 
be the exclusive administrative appellate review procedure. If an appeal 
is already pending before the Administrative Appeals Unit, the district 
director shall notify the Administrative Appeals Unit of the filing of 
the charging document, in which case the pending appeal shall be 
dismissed and the record of proceeding returned to the district where 
the charging document was filed.
    (c) Upon denial of Temporary Protected Status by the Administrative 
Appeals Unit, the Administrative Appeals Unit shall immediately forward 
the record of proceeding to the district director having jurisdiction 
over the alien's place of residence. The district director shall, as 
soon as practicable, file a charging document with the Immigration Court 
if the alien is then deportable or excludable under section 241(a) or 
section 212(a) of the Act, respectively.
    (d) An alien who is determined by the Service to be deportable or 
excludable upon grounds which would have rendered the alien ineligible 
for such status as provided in Secs. 240.3(c) and 240.4 may be detained 
under the provisions of this chapter pending deportation or exclusion 
proceedings. Such alien may be removed from the United States upon entry 
of a final order of deportation or exclusion.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991; 60 FR 
34090, June 30, 1995]



Sec. 240.19  Termination of designation.

    Upon the termination of designation of a state, those nationals 
afforded temporary Protected Status shall, upon the sixtieth (60th) day 
after the date notice of termination is published in the Federal 
Register, or on the last day of the most recent extension of designation 
by the Attorney General, automatically and without further notice or 
right of appeal, lose Temporary Protected Status in the United States. 
Such termination of a state's designation is not subject to appeal.



Sec. 240.20  Waiver of fees.

    (a) Any of the fees prescribed in 8 CFR 103.7(b) which relate to 
applications to the district director or service center director for 
Temporary Protected Status may be waived if the applicant establishes 
that he or she is unable to pay the prescribed fee. The applicant will 
have established his or her inability to pay when the adjudicating 
officer concludes, on the basis of the requisite affidavit and of any 
other information submitted, that it is more probable than not that:
    (1) The applicant's gross income from all sources for the three-
month period prior to the filing of the fee waiver request, including 
income received or earned by any dependent in the United States, was 
equaled or exceeded by essential expenditures for such three-month 
period; and

[[Page 381]]

    (2) The applicant does not own, possess, or control assets 
sufficient to pay the fee without substantial hardship.
    (b) For purposes of this section, essential expenditures are limited 
to reasonable expenditures for rent, utilities, food, transportation to 
and from employment, and any essential extraordinary expenditures, such 
as essential medical expenses, or expenses for clothing, laundry, and 
child care, to the extent that the applicant can show that those 
expenditures made during the three-month period prior to the filing of 
the fee waiver request were reasonable and essential to his or her 
physical well-being or to earning a livelihood.
    (c) For purposes of this section, the TPS registration fee 
(including the fee for employment authorization, if applicable) shall be 
considered an essential expenditure. A fee waiver will be granted if the 
sum of the fees for TPS registration and employment authorization equals 
or exceeds income and assets that remain after deducting other essential 
expenditures.
    (d) If an adjudicating officer is satisfied that an applicant has 
established inability to pay, he or she shall not deny a fee waiver due 
to the cost of administering the TPS program.
    (e) For purposes of this section, the following documentation shall 
be required:
    (1) The applicant seeking a fee waiver must submit an affidavit, 
under penalty of perjury, setting forth information to establish that he 
or she satisfies the requirements of this section. The affidavit shall 
individually list:
    (i) The applicant's monthly gross income from each source for each 
of the three months prior to the filing of the fee waiver request;
    (ii) All assets owned, possessed, or controlled by the applicant or 
by his or her dependents;
    (iii) The applicant's essential monthly expenditures, itemized for 
each of the three months prior to the filing of the fee waiver request, 
including essential extraordinary expenditures; and
    (iv) The applicant's dependents in the United States, his or her 
relationship to those dependents, the dependents' ages, any income 
earned or received by those dependents, and the street address of each 
dependent's place of residence.
    (2) The applicant may also submit other documentation tending to 
substantiate his or her inability to pay.
    (f) If the adjudicating officer concludes based upon the totality of 
their circumstances that the information presented in the affidavit and 
in any other additional documentation is inaccurate or insufficient, the 
adjudicating officer may require that the applicant submit the following 
additional documents prior to the adjudication of a fee waiver:
    (1) The applicant's employment records, pay stubs, W-2 forms, 
letter(s) from employer(s), and proof of filing of a local, state, or 
federal income tax return. The same documents may also be required from 
the applicant's dependents in the United States.
    (2) The applicant's rent receipts, bills for essential utilities 
(for example, gas, electricity, telephone, water), food, medical 
expenses, and receipts for other essential expenditures.
    (3) Documentation to show all assets owned, possessed, or controlled 
by the applicant or by dependents of the applicant.
    (4) Evidence of the applicant's living arrangements in the United 
States (living with relative, living in his or her own house or 
apartment, etc.), and evidence of whether his or her spouse, children, 
or other dependents are residing in his or her household in the United 
States.
    (5) Evidence of the applicant's essential extraordinary expenditures 
or those of his or her dependents residing in the United States.
    (g) The adjudicating officer must consider the totality of the 
information submitted in each case before requiring additional 
information or rendering a final decision.
    (h) All documents submitted by the applicant or required by the 
adjudicating officer in support of a fee waiver request are subject to 
verification by the Service.
    (i) In requiring additional information, the adjudicating officer 
should consider that some applicants may have little or no documentation 
to substantiate their claims. An adjudicating officer may accept other 
evidence, such

[[Page 382]]

as an affidavit from a member of the community of good moral character, 
but only if the applicant provides an affidavit stating that more direct 
documentary evidence in unavailable.

[57 FR 34507, Aug. 5, 1992]
Secs. 240.21--240.39  [Reserved]



PART 241--CONTROLLED SUBSTANCE VIOLATIONS--Table of Contents




    Authority: 8 U.S.C. 1103, 1251, 1252, 1357; 8 CFR part 2.



Sec. 241.1  Controlled substance convictions.

    In determining the deportability 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 241(a)(2)(B)(i) of the Act, 
shall mean the same as that referenced in the Controlled Substances Act, 
21 U.S.C. 801, et seq., and shall include any substance contained in 
Schedules I through V of 21 CFR 1308.1, et seq. For the purposes of this 
section, the term controlled substance includes controlled substance 
analogues as defined in 21 U.S.C. 802(23) and 813.

[53 FR 9282, Mar. 22, 1988. Redesignated at 56 FR 8906, Mar. 4, 1991, 
and amended at 56 FR 38333, Aug. 13, 1991]



PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL--Table of Contents




Sec.
242.1  Order to show cause and notice of hearing.
242.2  Apprehension, custody, and detention.
242.3  Confined aliens, incompetents, and minors.
242.4  Fingerprints and photographs.
242.5  Voluntary departure prior to commencement of hearing.
242.6  Family Unity Program.
242.7  Cancellation proceedings.
242.7a  Waiver of documents; returning residents.
242.8  Immigration judges.
242.9  Trial attorney.
242.10  Representation by counsel.
242.11  Incompetent respondents.
242.12  Interpreter.
242.13  Postponement and adjournment of hearing.
242.14  Evidence.
242.15  Contents of record.
242.16  Hearing.
242.17  Ancillary matters, applications.
242.18  Decision of the immigration judge.
242.19  Notice of decision.
242.20  Finality of order.
242.21  Appeals.
242.22  Reopening or reconsideration.
242.23  Proceedings under section 242(f) of the Act.
242.24  Detention and release of juveniles.
242.25  Proceedings under section 242A(b) of the Act.
242.26  Deportation of S-5, S-6, and S-7 nonimmigrant.

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note, 1252a, 
1252b, 1254, 1362; 8 CFR part 2.



Sec. 242.1  Order to show cause and notice of hearing.

    (a) Commencement. Every proceeding to determine the deportability of 
an alien in the United States is commenced by the filing of an order to 
show cause with the Office of the Immigration Judge, except for an alien 
who has been admitted to the United States under the provisions of 
section 217 of the Act and Part 217 of this chapter other than such an 
alien who has applied for asylum in the United States. In the 
proceeding, the alien shall be known as the respondent. Orders to show 
cause may be issued by:
    (1) District directors (except foreign);
    (2) Deputy district directors (except foreign);
    (3) Assistant district directors for investigations;
    (4) Deputy assistant district directors for investigations;
    (5) Assistant district directors for deportation;
    (6) Deputy assistant district directors for deportation;
    (7) Assistant district directors for examinations;
    (8) Deputy assistant district directors for examinations;
    (9) Officers in charge (except foreign);
    (10) Assistant officers in charge (except foreign);
    (11) Chief patrol agents;
    (12) Deputy chief patrol agents;
    (13) Associate chief patrol agents;
    (14) Assistant chief patrol agents;

[[Page 383]]

    (15) Patrol agents in charge;
    (16) The Assistant Commissioner, Investigations;
    (17) Service center directors;
    (18) Supervisory asylum officers; or
    (19) Institutional Hearing Program Directors.
    (b) Statement of Nature of Proceedings. The Order to Show Cause 
shall contain a statement of the nature of the proceeding, the legal 
authority under which the proceeding is conducted, a concise statement 
of factual allegations informing the respondent of the act or conduct 
alleged to be in violation of the law, and a designation of the charge 
against the respondent and of the statutory provisions alleged to have 
been violated. The Order shall require the respondent to show cause why 
he should not be deported. The Order shall call upon the respondent to 
appear before an Immigration Judge for a hearing at a time and place 
which shall be specified by the Immigration Court.
    (c) Service. Service of the order to show cause may be accomplished 
either by personal service or by routine service; however, when routine 
service is used and the respondent does not appear for hearing or 
acknowledge in writing that he has received the order to show cause, it 
shall be reserved by personal service. When personal delivery of an 
order to show cause is made by an immigration officer, the contents of 
the order to show cause shall be explained and the respondent shall be 
advised that any statement he makes may be used against him. He shall 
also be advised of his right to representation by counsel of his own 
choice at no expense to the Government. He shall also be advised of the 
availability of free legal services programs qualified under part 292a 
of this chapter and organizations recognized pursuant to Sec. 292.2 of 
this chapter, located in the district where his deportation hearing will 
be held. He shall be furnished with a list of such programs, and a copy 
of Form I-618, Written Notice of Appeal Rights, regardless of the manner 
in which the service of the order to show cause was accomplished. 
Service of these documents shall be noted on Form I-213.
    (d) Visa Waiver Pilot Program. Pursuant to section 217(b)(4)(B) of 
the Act, an alien who has been admitted to the United States under the 
provisions of that section has waived any right to contest any action 
against him or her for deportation, other than on the basis of an 
application for asylum. An alien admitted to the United States under 
section 217 of the Act shall be taken into custody and removed from the 
United States upon a determination by an immigration officer (district 
director who has jurisdiction over the place where the alien is found) 
that the alien is deportable in accordance with procedures in 
Sec. 217.4(c) of this chapter, and without commencement of a proceeding 
under this part, except that such an alien who applies for asylum in the 
United States shall be brought into proceedings as otherwise provided in 
this part.

[22 FR 9796, Dec. 6, 1957, as amended at 44 FR 4653, Jan. 23, 1979; 52 
FR 2939, Jan. 29, 1987; 52 FR 3098, Jan. 30, 1987; 52 FR 5616, Feb. 25, 
1987; 53 FR 24903, June 30, 1988; 55 FR 1579, Jan. 17, 1990; 55 FR 
12627, Apr. 5, 1990; 56 FR 18502, Apr. 23, 1991; 56 FR 50812, Oct. 9, 
1991; 59 FR 42414, Aug. 17, 1994; 60 FR 34090, June 30, 1995; 61 FR 
8859, Mar. 6, 1996]



Sec. 242.2  Apprehension, custody, and detention.

    (a) Detainers in general. (1) A detainer may be issued only in the 
case of an alien who there is reason to believe is amenable to exclusion 
or deportation proceedings under any provision of law. The following 
immigration officers are hereby authorized to issue detainers:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Immigration inspectors;
    (v) Immigration examiners;
    (vi) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (vii) Immigration officers who need the authority to issue detainers 
in order to effectively accomplish their individual missions and who are 
designated, individually or as a class, by the Commissioner.
    (2) Availability of records. In order for the Service to accurately 
determine the propriety of issuing a detainer,

[[Page 384]]

serving an order to show cause, or taking custody of an alien in 
accordance with this section, the criminal justice agency requesting 
such action or informing the Service of a conviction or act which 
renders an alien excludable or deportable under any provision of law 
shall provide the Service with all documentary records and information 
available from the agency which reasonably relates to the alien's status 
in the United States, or which may have an impact on conditions of 
release.
    (3) Telephonic detainers. Issuance of a detainer in accordance with 
this section may be authorized telephonically, provided such 
authorizations are confirmed in writing on Form I-247, or by electronic 
communications transfer media (e.g. the National Law Enforcement 
Telecommunications System (NLETS)) within twenty-four hours of the 
telephonic authorization. The contents of the electronic transfer shall 
contain substantially the same language as the Form I-247.
    (4) Temporary detention at Service request. Upon a determination by 
the Service to issue a detainer for an alien not otherwise detained by a 
criminal justice agency, such agency shall maintain custody of the alien 
for a period not to exceed forty-eight hours, in order to permit 
assumption of custody by the Service.
    (5) Financial responsibility for detention. No detainer issued as a 
result of a determination made under this chapter shall incur any fiscal 
obligation on the part of the Service, until actual assumption of 
custody by the Service, except as provided in paragraph (a)(4) of this 
section.
    (b) Use of convictions. The term conviction as used in section 
242(i) of the Act means that--
    (1) There has been a conviction by a court of competent 
jurisdiction; and
    (2) All direct appeal rights have been exhausted or waived; or
    (3) The appeal period has lapsed.
    (c) Warrant of arrest. (1) At the time of issuance of the Order to 
Show Cause, or at any time thereafter and up to the time the respondent 
becomes the subject of a duly issued warrant of deportation, the 
respondent may be arrested and taken into custody under the authority of 
a warrant of arrest. In the case of a respondent convicted on or after 
November 18, 1988, of an aggravated felony as defined in section 
101(a)(43) of the Act, the respondent shall not be released from 
custody, either before or after a determination of deportability, unless 
the respondent has been lawfully admitted and the respondent 
demonstrates to the satisfaction of the district director that he or she 
is not a threat to the community and is likely to appear before any 
scheduled hearings. A warrant of arrest may be served only by those 
immigration officers listed in Sec. 287.5(e)(2) of this chapter. A 
warrant of arrest may be issued only by the following immigration 
officers:
    (i) District directors (except foreign);
    (ii) Deputy district directors (except foreign);
    (iii) Assistant district directors for investigations;
    (iv) Deputy assistant district directors for investigations;
    (v) Assistant district directors for deportation;
    (vi) Deputy assistant district directors for deportation;
    (vii) Assistant district directors for examinations;
    (viii) Deputy assistant district directors for examinations;
    (ix) Officers in charge (except foreign);
    (x) Assistant officers in charge (except foreign);
    (xi) Chief patrol agents;
    (xii) Deputy chief patrol agents;
    (xiii) Associate chief patrol agents;
    (xiv) Assistant chief patrol agents;
    (xv) Patrol agents in charge;
    (xvi) The Assistant Commissioner, Investigations; or
    (xvii) Institutional Hearing Program Directors.
    (2) If, after the issuance of a warrant of arrest, a determination 
is made not to serve it, any officer authorized to issue such warrant 
may authorize its cancellation. When a warrant of arrest is served under 
this part, the respondent shall have explained to him/her the contents 
of the order to show cause, the reason for the arrest and the right to 
be represented by counsel of his/her own choice at no expense to the 
Government. He/she shall also be advised of the availability of free 
legal services

[[Page 385]]

programs qualified under part 292a of this chapter and organizations 
recognized pursuant to Sec. 292.2 of this chapter, located in the 
district where the deportation hearing will be held. The respondent 
shall be furnished with a list of such programs, and a copy of Form I-
618, Written Notice of Appeal Rights. Service of these documents shall 
be noted on Form I-213. The respondent shall be advised that any 
statement made may be used against him/her. He/she shall also be 
informed whether custody is to be continued or, if release from custody 
has been authorized, of the amount and conditions of the bond or the 
conditions of release. Except in cases involving an alien convicted on 
or after November 18, 1988, of an aggravated felony as defined in 
section 101(a)(43) of the Act, a respondent on whom a warrant of arrest 
has been served may apply to any officer authorized by this section to 
issue such a warrant for release or for amelioration of the conditions 
under which he/she may be released. When serving the warrant of arrest 
and when determining any application pertaining thereto, the authorized 
officer shall furnish the respondent with a notice of decision, which 
may be on Form I-286, indicating whether custody will be continued or 
terminated, specifying any conditions under which release is permitted, 
and advising the respondent appropriately whether he/she may apply to an 
immigration judge pursuant to paragraph (d) of this section for release 
or modification of the conditions of release or whether he/she may 
appeal to the Board. A direct appeal to the Board from a determination 
by an officer authorized by this section to issue warrants shall not be 
allowed except as authorized by paragraph (d) of this section.
    (d) Authority of the Immigration Judge; Appeals. After an initial 
determination pursuant to paragraph (c) of this section, and at any time 
before a deportation order becomes administratively final, upon 
application by the respondent for release from custody or for 
amelioration of the conditions under which he or she may be released, an 
Immigration Judge may exercise the authority contained in section 242 of 
the Act to continue to detain a respondent in custody, or to release a 
respondent from custody, and to determine whether a respondent shall be 
released under bond, and the amount of the bond, if any. Application for 
the exercise of such authority shall be made pursuant to Sec. 3.19 of 
this chapter. In connection with such application, the Immigration Judge 
shall advise the respondent of his or her right to representation by 
counsel of his or her choice at no expense to the government. He or she 
shall also be advised of the availability of free legal services 
programs qualified under part 292a of this chapter and organizations 
recognized pursuant to Sec. 292.2 of this chapter, located in the 
district where his or her application is heard. The Immigration Judge 
shall ascertain that the respondent has received a list of such programs 
and a copy of Form I-618 Written Notice of Appeal Right. Moreover, if 
the respondent has been released from custody, an application for 
amelioration of conditions must be made within seven (7) days after the 
date of such release. Thereafter, application by a released respondent 
for modification of the terms of release may be made only to the 
District Director. Upon rendering a decision on an application under 
this section, the Immigration Judge (or the district director if he 
renders the decision) shall advise the alien of his or her appeal rights 
under this section. The alien and the Service may appeal to the Board of 
Immigration Appeals from any determination of the Immigration Judge as 
to custody status or bond, pursuant to Sec. 3.38 of this chapter. If the 
determination is appealed, a written memorandum shall be prepared by the 
Immigration Judge giving reasons for the decision. After a deportation 
order becomes administratively final, or if recourse to the Immigration 
Judge is no longer available because the seven day period established by 
this paragraph has expired, the respondent may appeal directly to the 
Board from a determination by the District Director, Acting District 
Director, Deputy District Director, Assistant District Director for 
Investigations, or Officer in charge of an office enumerated in 
Sec. 242.1(a). Such an appeal shall be perfected by filing a notice of

[[Page 386]]

appeal with the District Director within 10 days after the date when 
written notification of the determination is served upon the respondent 
and the Service, except that no appeal shall be allowed when the Service 
notifies the alien that it is ready to execute the order of deportation 
and takes him into custody for that purpose. Upon the filing of a notice 
of appeal from a District Director's determination, the District 
Director shall immediately transmit to the Board all records and 
information pertaining to that determination. The filing of an appeal 
from a determination of an Immigration Judge or a District Director 
shall not operate to delay compliance, during the pendency of the 
appeal, with the custody directive from which the appeal is taken, or to 
stay the administrative proceedings or deportation.
    (e) Revocation. When an alien who, having been arrested and taken 
into custody, has been released, such release may be revoked at any time 
in the discretion of the district director, acting district director, 
deputy district director, assistant district director for 
investigations, or officer in charge of an office enumerated in 
Sec. 242.1(a), in which event the alien may be taken into physical 
custody and detained. If detained, unless a breach has occurred, any 
outstanding bond shall be revoked and cancelled. The provisions of 
paragraph (d) of this section shall govern availability to the 
respondent of recourse to other administrative authority for release 
from custody.
    (f) Supervision. Until an alien against whom a final order of 
deportation has been outstanding for more than six months is deported, 
he shall be subject to supervision by a district director, acting 
district director, deputy district director, assistant district director 
for investigations, or officer in charge of an office enumerated in 
Sec. 242.1(a), and required to comply with the provisions of section 
242(d) of the Act relating to his availability for deportation.
    (g) Privilege of communication. Every detained alien shall be 
notified that he or she may communicate with the consular or diplomatic 
officers of the country of his or her nationality in the United States. 
Existing treaties require immediate communication with appropriate 
consular or diplomatic officers whenever nationals of the following 
countries are detained in exclusion or expulsion proceedings, whether or 
not requested by the alien and even if the alien requests that no 
communication be undertaken in his or her behalf:

Albania \1\
Antigua
Armenia
Azerbaijan
Bahamas
Barbados
Belarus
Belize
Brunei
Bulgaria
China (People's Republic of) \2\
Costa Rica
Cyprus
Czech Republic
Dominica
Fiji
Gambia, The
Georgia
Ghana
Grenada
Guyana
Hungary
Jamaica
Kazakhstan
Kiribati
Kuwait
Kyrgyzstan
Malaysia
Malta
Mauritius
Moldova
Mongolia
Nigeria
Philippines
Poland
Romania
Russian Federation
St. Kitts/Nevis
St. Lucia
St. Vincent/Grenadines
Seychelles
Sierra Leone
Singapore
Slovak Republic
South Korea
Tajikistan
Tanzania
Tonga
Trinidad/Tobago
Turkmenistan
Tuvalu
Ukraine
United Kingdom \3\
U.S.S.R.\4\
Uzbekistan
Zambia
    1. Arrangements with these countries provide that U.S. authorities 
shall notify responsible representatives within 72 hours of

[[Page 387]]

the arrest or detention of one of their nationals.
    2. When Taiwan nationals (who carry ``Republic of China'' passports) 
are detained, notification should be made to the nearest office of the 
Coordination Council for North American Affairs, the unofficial entity 
representing Taiwan's interests in the United States.
    3. British dependencies are also covered by this agreement. They 
are: Anguilla, British Virgin Islands, Hong Kong, Bermuda, Montserrat, 
and the Turks and Caicos Islands. Their residents carry British 
passports.
    4. All U.S.S.R. successor states are covered by this agreement. They 
are: Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, 
Moldova, Russian Federation, Tajikistan, Turkmenistan, Ukraine, and 
Uzbekistan.

    (h) Custody issues; release procedures. (1) A lawful permanent 
resident alien convicted of an aggravated felony may be released from 
custody, after having completed serving the sentence for such 
conviction, if the Attorney General determines that he or she is not a 
danger to the community and that he or she is likely to appear for all 
scheduled hearings. Review of each case to determine custody or release 
conditions shall include, but need not be limited to, consideration of 
the following factors:
    (i) Seriousness of the crime(s) of which convicted;
    (ii) Prior criminal history, especially the nature of the crimes and 
number of arrests;
    (iii) Sentence(s) imposed and time actually served;
    (iv) History of failures to appear for court (defaults);
    (v) Probation history;
    (vi) Evidence of rehabilitative effort or recidivism;
    (vii) Equities in the United States;
    (viii) Availability of relief from deportation and the likelihood of 
its being granted; and
    (ix) Prior immigration violations and history.
    (2) If, after consideration of all factors listed in paragraph 
(h)(1) of this section, it is determined that the alien is not a threat 
to public safety and is likely to appear for all scheduled hearings, he 
or she may be released from custody under such conditions as the 
Attorney General may prescribe, including the giving of a bond. If an 
appearance bond is prescribed as a condition of such release, it shall 
be in an appropriate and sufficient amount to encourage compliance with 
demands for appearance and with any other conditions of release.
    (i) Notification to Executive Office for Immigration Review of 
change in custody status. The Service shall notify the Immigration Court 
having administrative control over the Record of Proceeding of any 
change in custody location or of release from, or subsequent taking 
into, Service custody of a respondent/applicant pursuant to 8 CFR 
3.19(g).

[28 FR 8280, Aug. 13, 1963, as amended at 39 FR 20367, June 10, 1974; 39 
FR 20959, June 17, 1974; 40 FR 30470, July 21, 1975; 48 FR 31005, July 
6, 1983; 51 FR 34081, Sept. 25, 1986; 52 FR 2939, Jan. 29, 1987; 52 FR 
16372, May 5, 1987; 53 FR 9283, Mar. 22, 1988; 55 FR 1579, Jan. 17, 
1990; 55 FR 24859, June 19, 1990; 55 FR 43327, Oct. 29, 1990; 56 FR 
18503, Apr. 23, 1991; 56 FR 23214, May 21, 1991; 57 FR 11573, Apr. 6, 
1992; 57 FR 30898, July 13, 1992; 59 FR 42415, Aug. 17, 1994; 60 FR 
16043, Mar. 29, 1995; 60 FR 34090, June 30, 1995; 61 FR 8859, Mar. 6, 
1996]



Sec. 242.3  Confined aliens, incompetents, and minors.

    (a) Service. If the respondent is confined, or if he is an 
incompetent, or a minor under the age of 14, the order to show cause, 
and the warrant of arrest, if issued, shall be served in the manner 
prescribed in Sec. 242.1(c) upon the person or persons named in 
Sec. 103.5a(c) of this chapter.
    (b) Service custody; cost of maintenance. An alien confined because 
of physical or mental disability in an institution or hospital shall not 
be accepted into physical custody by the Service until an order of 
deportation has been entered and the Service is ready to deport the 
alien. When such an alien is an inmate of a public or private 
institution at the time of the commencement of the deportation 
proceedings, expenses for the maintenance of the alien shall not be 
incurred by the Government until he is taken into physical custody by 
the Service.

[22 FR 9796, Dec. 6, 1957, as amended at 37 FR 11470, June 8, 1972; 43 
FR 48620, Oct. 19, 1978]

[[Page 388]]



Sec. 242.4  Fingerprints and photographs.

    Every alien 14 years of age or older against whom proceedings are 
commenced under this part by service of an order to show cause shall be 
fingerprinted and photographed. Such fingerprints and photographs shall 
be made available to Federal, State, and local law enforcement agencies 
upon request to the district director or chief patrol agent having 
jurisdiction over the alien's record. Any such alien, regardless of his 
or her age, shall be photographed and/or fingerprinted if required by 
any immigration officer authorized to issue an order to show cause as 
listed in Sec. 242.1(a).

[59 FR 42415, Aug. 17, 1994]



Sec. 242.5  Voluntary departure prior to commencement of hearing.

    (a)(1) Authorized officers. The authority contained in section 
242(b) of the act to permit aliens to depart voluntarily from the United 
States may be exercised by district directors, district officers who are 
in charge of investigations, officers in charge, chief patrol agents, 
and service center directors, assistant district directors for 
Examinations, Director, Organized Crime Drug Enforcement Task Force, or 
Assistant Director, Organized Crime Drug Enforcement Task Force, (New 
York, NY; Houston, TX; Los Angeles, CA; and Miami, FL).
    (2) Authorization. Notwithstanding any other provision of this 
section, an alien convicted on or after November 18, 1988, of an 
aggravated felony as defined in section 101(a)(43) of the Act, shall not 
be eligible for voluntary departure prior to commencement of hearing. 
Voluntary departure may be granted to any alien who is statutorily 
eligible: (i) Who is a native of a foreign contiguous territory and not 
within the purview of class (vi) of this paragraph; or (ii) whose 
application for extension of stay as a nonimmigrant is being denied; or 
(iii) who has voluntarily surrendered himself to the Service; or (iv) 
who presents a valid travel document and confirmed reservation for 
transportation out of the United States within 30 days; or (v) who is an 
F-1, F-2, J-1, or J-2 nonimmigrant and who has lost such status solely 
because of a private bill introduced in his/her behalf; or (vi) who is 
admissible to the United States as an immigrant and: (A) Who is an 
immediate relative of a U.S. citizen, or (B) is otherwise exempt from 
the numerical limitation on immigrant visa issuance, or (C) has a 
priority date for an immigrant visa not more than 60 days later than the 
date show in the latest Visa Office Bulletin and has applied for an 
immigrant visa at an American Consulate which has accepted jurisdiction 
over the case, or (D) who is a third-preference alien with a priority 
date earlier than August 9, 1978, or (E) who is the beneficiary of an 
approved sixth-preference petition who satisfies Examinations without 
another petition that he/she can qualify for third preference and who 
cannot obtain a visa solely because a visa number is unavailable, and 
who has a priority date earlier than August 9, 1978; or (vii) who has 
been granted asylum and has not been granted parole status or a stay of 
deportation; (viii) in whose case the district director has determined 
there are compelling factors warranting grant of voluntary departure; or 
(ix) who is the child of a legalized alien currently residing in the 
United States, born during an authorized absence from the United States 
of the mother who is: (A) A legalized alien; or (B) An alien currently 
residing in the United States under voluntary departure pursuant to the 
Family Unity Program.
    (3) Periods of time/employment. (i) Except for paragraphs (a)(2) (v) 
through (ix) of this section, any grant of voluntary departure shall 
contain a time limitation of usually not more than 30 days, and an 
extension of the original voluntary departure time shall not be 
authorized except under meritorious circumstances, as determined on a 
case-by-case basis. Upon failure to depart, deportation proceedings will 
be initiated. As an exception to the 30-day voluntary departure period, 
an eligible alien under:
    (A) Paragraph (a)(2)(v) of this section may be granted voluntary 
departure in increments of 1 year conditioned upon the F-1 or J-1 alien 
maintaining a full course of study at an approved institution of 
learning, or upon abiding by the terms and conditions of the exchange

[[Page 389]]

program within the limitations imposed by 22 CFR 514.23; or
    (B) Paragraphs (a)(2)(vi) (A), (B), and (C) of this section may be 
granted voluntary departure until the American Consul issues an 
immigrant visa and, at the discretion of the district director, issuance 
may be in increments of 30 days, conditioned upon continuing 
availability of an immigrant visa as shown in the latest Visa Office 
Bulletin and upon the alien's diligent pursuit of efforts to obtain the 
visa; or
    (C) Paragraphs (a)(2)(vi) (D) and (E) of this section may be granted 
voluntary departure, conditioned upon the continued validity of the 
approved third- or sixth-preference petition, as appropriate, and the 
alien's retention of the status established in the petition for an 
indefinite period until an immigrant visa is available; or
    (D) Paragraphs (a)(2) (vii) and (viii) of this section may be 
granted voluntary departure in increments of time, not to exceed 1 year, 
as determined by the district director to be appropriate in the case; or
    (E) Paragraph (a)(2)(ix) of this section may be granted voluntary 
departure in increments of time, not to exceed 2 years.
    (ii) An alien eligible for voluntary departure in paragraphs (a)(2) 
(v) through (viii) of this section may apply for employment 
authorization under the appropriate citation in Sec. 274a.12 of this 
chapter.
    (b) Application. Any alien who believes himself or herself to be 
eligible for voluntary departure under section 242(b) of the Act may 
apply therefore at any office of the Service any time prior to the 
commencement of deportation proceedings against him or her. The officers 
designated in paragraph (a) of this section may deny or grant the 
application and determine the conditions under which the alien's 
departure shall be effected. An appeal shall not lie from a denial of an 
application for voluntary departure under this section, but the denial 
shall be without prejudice to the alien's right to apply for relief from 
deportation under any provision of law.
    (c) Revocation. If, subsequent to the granting of an application for 
voluntary departure under this section, it is ascertained that the 
application should not have been granted, that grant may be revoked 
without notice by any district director, district officer in charge of 
investigations, officer in charge, chief patrol agent, Director, 
Organized Crime Drug Enforcement Task Force, or Assistant Director, 
Organized Crime Drug Enforcement Task Force, (New York, NY; Houston, TX; 
Los Angeles, CA; and Miami, FL).

[23 FR 9123, Nov. 26, 1958, as amended at 29 FR 13242, Sept. 24, 1964; 
35 FR 16362, Oct. 20, 1970; 43 FR 29528, July 10, 1978; 45 FR 27917, 
Apr. 25, 1980; 46 FR 25598, May 8, 1981; 47 FR 49954, Nov. 4, 1982; 52 
FR 2940, Jan. 29, 1987; 55 FR 12627, Apr. 5, 1990; 55 FR 24859, June 19, 
1990; 56 FR 18503, Apr. 23, 1991; 60 FR 66067, Dec. 21, 1995]



Sec. 242.6  Family Unity Program.

    (a) General. Except as otherwise specifically provided in paragraph 
(b) of this section, the definitions contained in Title 8 of the Code of 
Federal Regulations shall apply to the administration of this section.
    (b) Definitions. As used in this section:
    Eligible immigrant means a qualified immigrant who is the spouse or 
unmarried child of a legalized alien.
    Legalized alien means an alien who:
    (i) Is a temporary or permanent resident under section 210 or 245A 
of the Act; or
    (ii) Is a permanent resident under section 202 of the Immigration 
Reform and Control Act of 1986 (Cuban/Haitian Adjustment).
    (c) Eligibility--(1) General. An alien who is not a lawful permanent 
resident is eligible to apply for benefits under the Family Unity 
Program if he or she establishes:
    (i) That he or she entered the United States before May 5, 1988 (in 
the case of a relationship to a legalized alien described in subsection 
(b)(2)(B) or (b)(2)(C) of section 301 of IMMACT 90)), or as of December 
1, 1988 (in the case of a relationship to a legalized alien described in 
subsection (b)(2)(A) of section 301 of IMMACT 90), and has been 
continuously residing in the United States since that date; and
    (ii) That on May 5, 1988 (in the case of a relationship to a 
legalized alien described in subsection (b)(2)(B) or

[[Page 390]]

(b)(2)(C) of section 301 of IMMACT 90), or as of December 1, 1988 (in 
the case of a relationship to a legalized alien described in subsection 
(b)(2)(A) of section 301 of IMMACT 90), he or she was the spouse of 
unmarried child of a legalized alien, and that he or she has been 
eligible continuously since that time for family-sponsored second 
preference immigrant status under section 203(a)(2) of the Act based on 
the same relationship.
    (2) Legalization application pending as of May 5, 1988 or December 
1, 1988. An alien whose legalization application was filed on or before 
May 5, 1988 (in the case of a relationship to a legalized alien 
described in subsection (b)(2)(B) or (b)(2)(C) of section 301 of IMMACT 
90), or as of December 1, 1988 (in the case of a relationship to a 
legalized alien described in subsection (b)(2)(A) of section 301 of 
IMMACT 90), but not approved until after that date will be treated as 
having been a legalized alien as of May 5, 1988 (in the case of a 
relationship to a legalized alien described in subsection (b)(2)(B) or 
(b)(2)(C) of section 301 of IMMACT 90), or as of December 1, 1988 (in 
the case of a relationship to a legalized alien described in subsection 
(b)(2)(A) of section 301 of IMMACT 90), for purposes of the Family Unity 
Program.
    (d) Ineligible aliens. The following categories of aliens are 
ineligible for benefits under the Family Unity Program:

    (1) An alien who is deportable under any paragraph in section 241(a) 
of the Act, except paragraphs (1)(A), (1)(B), (1)(C), and (3)(A); 
provided that an alien who is deportable under paragraph (1)(A) of such 
Act is also ineligible for benefits under the Family Unity Program if 
deportability is based upon an exclusion ground described in section 
212(a) (2) or (3) of the Act;
    (2) An alien who has been convicted of a felony or three or more 
misdemeanors in the United States; or
    (3) An alien described in section 243(h)(2) of the Act.
    (e) Filing--(1) General. An application for voluntary departure 
under the Family Unity Program must be filed at the Service Center 
having jurisdiction over the alien's place of residence. A Form I-817 
(Application for Voluntary Departure under the Family Unity Program) 
must be filed with the correct fee required in Sec. 103.7(b)(1) of this 
chapter and the required supporting documentation. A separate 
application with appropriate fee and documentation must be filed for 
each person claiming eligibility.
    (2) Decision. The Service Center director has sole jurisdiction to 
adjudicate an application for benefits under the Family Unity Program. 
The director will provide the applicant with specific reasons for any 
decision to deny an application. Denial of an application may not be 
appealed. An applicant who believes that the grounds for denial have 
been overcome may submit another application with the appropriate fee 
and documentation.
    (3) Referral of denied cases for consideration of issuance of Order 
to Show Cause. If an application is denied, the case will be referred to 
the district director with jurisdiction over the alien's place of 
residence for consideration of whether to issue an Order to Show Cause 
(OSC). After an initial denial, an applicant's case will not be referred 
for issuance of an OSC until 90 days from the date of the initial 
denial, to allow the alien the opportunity to file a new Form I-817 
application in order to attempt to overcome the basis of the denial. 
However, if the applicant is found not to be eligible for benefits under 
paragraph (d)(2) of this section, the Service reserves the right to 
issue an Order to Show Cause at any time after the initial denial.
    (4) Voluntary departure under Sec. 242.5 and eligibility for 
employment under Sec. 274a.12(c)(12). Children of legalized aliens 
residing in the United States, who were born during an authorized 
absence from the United States of mothers who are currently residing in 
the United States under voluntary departure pursuant to the Family Unity 
Program may be granted voluntary departure under Sec. 242.5(a)(2)(ix) 
for a period of 2 years.
    (5) Duration of voluntary departure under Sec. 242.6. An alien whose 
application for benefits under the Family Unity Program is approved will 
receive a 2-year period of voluntary departure. The 2-year period will 
begin on the date the Services approves the application.

[[Page 391]]

    (6) Employment authorization. An alien granted benefits under the 
Family Unity Program is authorized to be employed in the United States 
and may apply for an employment authorization document on Form I-765 
(Application for Employment Authorization). The application may be filed 
concurrently with Form I-817. The application must be accompanied by the 
correct fee required by Sec. 103.7(b)(1) of this chapter. The validity 
period of the employment authorization will coincide with the period of 
voluntary departure.
    (7) Travel outside the United States. An alien granted Family Unity 
Program benefits who intends to travel outside the United States 
temporarily must apply for advance authorization using Form I-131 
(Application for Travel Document). The authority to grant an application 
for advance authorization for an alien granted Family Unity Program 
benefits rests solely with the district director. An alien who is 
granted advance authorization and returns to the United States in 
accordance with such authorization, and who is found not to be 
excludable under section 212(a) (2) or (3) of the Act, shall be 
inspected and admitted in the same immigration status the alien had at 
the time of departure, and provided the remainder of the 2-year 
voluntary departure previously granted under the Family Unity Program.
    (8) Extension of voluntary departure. An application for an 
extension of voluntary departure under the Family Unity Program must be 
filed by the alien on Form I-817 along with the correct fee required in 
Sec. 103.7(b)(1) of this chapter and the required supporting 
documentation. The submission of a copy of the previous approval notice 
will assist in shortening the processing time. An extension may be 
granted if the alien continues to be eligible for benefits under the 
Family Unity Program. However, an extension may not be approved if the 
legalized alien is a lawful permanent resident, and a petition for 
family-sponsored immigrant status has not been filed in behalf of the 
applicant. In such case the Service will notify the alien of the reason 
for the denial and afford him or her the opportunity to file another 
Form I-817 once the petition, Form I-130, has been filed in behalf of 
him or her. No charging document will be issued for a period of 90 days.
    (9) Supporting documentation for extension application. Supporting 
documentation need not include documentation provided with the previous 
application(s). The extension application need only include changes to 
previous applications and evidence of continuing eligibility since the 
date of the prior approval.
    (f) Eligibility for Federal financial assistance programs. An alien 
granted Family Unity Program benefits based on a relationship to a 
legalized alien as defined in paragraph (b) of this section is 
ineligible for public welfare assistance in the same manner and for the 
same period as the legalized alien is ineligible for such assistance 
under sections 245A(h) or 210(f) of the Act, respectively.
    (g) Termination of Family Unity Program benefits--(1) Grounds for 
termination. The Service may terminate benefits under the Family Unity 
Program whenever the necessity for the termination comes to the 
attention of the Service. Such grounds will exist in situations 
including, but not limited to, those in which:
    (i) A determination is made that Family Unity Program benefits were 
acquired as the result of fraud or willful misrepresentation of a 
material fact;
    (ii) The beneficiary commits an act or acts which render him or her 
inadmissible as an immigrant or ineligible for benefits under the Family 
Unity Program;
    (iii) The legalized alien upon whose status benefits under the 
Family Unity Program were based loses his or her legalized status;
    (iv) The beneficiary is the subject of a final order of exclusion or 
deportation issued subsequent to the grant of benefits on any ground of 
deportability or excludability that would have rendered the alien 
ineligible for benefits under Sec. 242.6(d)(1) of this chapter, 
regardless of whether the facts giving rise to such ground occurred 
before or after the benefits were granted; or
    (v) A qualifying relationship to a legalized alien no longer exists.

[[Page 392]]

    (2) Notice procedure. Notice of intent to terminate and of the 
grounds thereof shall be served pursuant to the provisions of 
Sec. 103.5a of this chapter. The alien shall be given 30 days to respond 
to the notice and may submit to the Service additional evidence in 
rebuttal. Any final decision of termination shall also be served 
pursuant to the provisions of Sec. 103.5a of the chapter. Nothing in 
this section shall preclude the Service from commencing exclusion or 
deportation proceedings prior to termination of Family Unity Program 
benefits.
    (3) Effect of termination. Termination of benefits under the Family 
Unity Program, other than as a result of a final order of deportation or 
exclusion, shall render the alien amendable to exclusion or deportation 
proceedings under sections 236 or 242 of the Act, as appropriate.

[60 FR 66067, Dec. 21, 1995]



Sec. 242.7  Cancellation proceedings.

    (a) Cancellation of an order to show cause. Any officer authorized 
by Sec. 242.1(a) of this part to issue an order to show cause may cancel 
an order to show cause prior to jurisdiction vesting with the 
Immigration Judge pursuant to Sec. 3.14 of this chapter provided the 
officer is satisfied that:
    (1) The respondent is a national of the United States;
    (2) The respondent is not deportable under immigration laws;
    (3) The respondent is deceased;
    (4) The respondent is not in the United States;
    (5) The respondent was placed under proceedings for failure to file 
a timely petition as required by section 216(c) of the Act, but his or 
her failure to file a timely petition was excused in accordance with 
section 216(d)(2)(B) of the Act; or
    (6) The Order to Show Cause was improvidently issued.
    (b) Motion to dismiss. After commencement of proceedings pursuant to 
Sec. 3.14 of this chapter, any officer enumerated in paragraph (a) of 
this section may move for dismissal of the matter on the grounds set out 
under paragraph (a) of this section. Dismissal of the matter shall be 
without prejudice to the alien or the Service.
    (c) Motion for remand. After commencement of the hearing, any 
officer enumerated in paragraph (a) of this section may move for remand 
of the matter to district jurisdiction on the ground that the foreign 
relations of the United States are involved and require further 
consideration. Remand of the matter shall be without prejudice to the 
alien or the Service.
    (d) Warrant of arrest. When an order to show cause is cancelled or 
proceedings are terminated under this section any outstanding warrant of 
arrest is cancelled.
    (e) Termination of deportation proceedings by immigration judge. An 
immigration judge may terminate deportation proceedings to permit the 
respondent to proceed to a final hearing on a pending application or 
petition for naturalization when the respondent has established prima 
facie eligibility for naturalization and the matter involves 
exceptionally appealing or humanitarian factors; in every other case, 
the deportation hearing shall be completed as promptly as possible 
notwithstanding the pendency of an application for naturalization during 
any state of the proceedings.

[47 FR 49954, Nov. 4, 1982; 47 FR 51351, Nov. 15, 1982, as amended at 52 
FR 2940, Jan. 29, 1987; 52 FR 3099, Jan. 30, 1987; 52 FR 5616, Feb. 25, 
1987; 53 FR 30022, Aug. 10, 1988]



Sec. 242.7a  Waiver of documents; returning residents.

    Pursuant to the authority contained in section 211(b) of the Act, an 
alien previously lawfully admitted to the United States for permanent 
residence who, upon return from a temporary absence was excludable 
because of failure to have or to present a valid passport, immigrant 
visa, reentry permit, border crossing card, or other document required 
at the time of entry, may be granted a waiver of such requirement in the 
discretion of the district director: Provided, That such alien (a) was 
not otherwise excludable at the time of entry, or (b) having been 
otherwise excludable at the time of entry is with respect thereto 
qualified for an exemption from deportability under section 241(a)(1)(H) 
of the Act, and (c) is not otherwise subject to deportation. Denial of a 
waiver by the district director

[[Page 393]]

shall not be appealable but shall be without prejudice to renewal of an 
application and reconsideration in proceedings before the immigration 
judge.

[29 FR 6002, May 7, 1964, as amended at 56 FR 38333, Aug. 13, 1991]



Sec. 242.8  Immigration judges.

    (a) Authority. In any proceeding conducted under this part the 
immigration judge shall have the authority to determine deportability 
and to make decisions, including orders of deportation, as provided by 
section 242(b) and 242B of the Act; to reinstate orders of deportation 
as provided by section 242(f) of the Act; to determine applications 
under sections sections 208, 212(k), 241(a)(1)(E)(iii), 241(a)(1)(H), 
244, 245 and 249 of the Act; to determine the country to which an 
alien's deportation will be directed in accordance with section 243(a) 
of the Act; to order temporary withholding of deportation pursuant to 
section 243(h) of the Act; and to take any other action consistent with 
applicable law and regulations as may be appropriate. An immigration 
judge may certify his or her decision in any case to the Board of 
Immigration Appeals when it involves an unusually complex or novel 
question of law or fact. Nothing contained in this part shall be 
construed to diminish the authority conferred on immigration judges 
under section 103 of the Act.
    (b) Withdrawal and substitution of special inquiry officers. The 
special inquiry officer assigned to conduct the hearing shall at any 
time withdraw if he deems himself disqualified. If a hearing has begun 
but no evidence has been adduced other than by the respondent's pleading 
pursuant to Sec. 242.16(b), or if a special inquiry officer becomes 
unavailable to complete his duties within a reasonable time, or if at 
any time the respondent consents to a substitution, another special 
inquiry officer may be assigned to complete the case. The new special 
inquiry officer shall familiarize himself with the record in the case 
and shall state for the record that he has done so.

[22 FR 9797, Dec. 6, 1957, as amended at 47 FR 44237, Oct. 7, 1982; 56 
FR 38333, Aug. 13, 1991; 57 FR 11574, Apr. 6, 1992; 59 FR 26594, May 23, 
1994]



Sec. 242.9  Trial attorney.

    (a) Authority. When an additional immigration officer is assigned to 
a proceedings under this part to perform the duties of a trial attorney, 
he shall present on behalf of the Government evidence material to the 
issues of deportability and any other issues which may require 
disposition by the special inquiry officer. The trial attorney is 
authorized to appeal from a decision of the special inquiry officer 
pursuant to Sec. 242.21 and to move for reopening or reconsideration 
pursuant to Sec. 242.22.
    (b) Assignment. The district director shall direct the chief legal 
officer to assign a general attorney to each case within the provisions 
of Sec. 242.16(c) of this part, and to each case in which an 
unrepresented respondent is incompetent or under 16 years of age, and is 
not accompanied by a guardian, relative or friend. A general attorney 
shall be assigned to every case in which the Commissioner approves the 
submission of nonrecord information under Sec. 242.17(a) of this part. 
In his discretion, whenever he deems such assignment necessary or 
advantageous, the district director may direct the chief legal officer 
to assign a general attorney to any other case at any stage of the 
proceeding.

[27 FR 9646, Sept. 29, 1962, as amended at 32 FR 9631, July 4, 1967; 46 
FR 43956, Sept. 2, 1981]



Sec. 242.10  Representation by counsel.

    The respondent may be represented at the hearing by an attorney or 
other representative qualified under part 292 of this chapter.

[22 FR 9797, Dec. 6, 1957]



Sec. 242.11  Incompetent respondents.

    When it is impracticable for the respondent to be present at the 
hearing because of mental incompetency, the guardian, near relative, or 
friend who was served with a copy of the order to show cause shall be 
permitted to appear on behalf of the respondent. If such a person cannot 
reasonably be found or fails or refuses to appear, the

[[Page 394]]

custodian of the respondent shall be requested to appear on behalf of 
the respondent.

[22 FR 9797, Dec. 6, 1957]



Sec. 242.12  Interpreter.

    Any person acting as interpreter in a hearing before an Immigration 
Judge under this part shall be sworn to interpret and translate 
accurately, unless the interpreter is an employee of the United States 
Government, in which event no such oath shall be required.

[52 FR 2940, Jan. 29, 1987]



Sec. 242.13  Postponement and adjournment of hearing.

    After the commencement of the hearing, the Immigration Judge may 
grant a reasonable adjournment either at his or her own instance or, for 
good cause shown, upon application by the respondent or the Service.

[52 FR 2940, Jan. 29, 1987]



Sec. 242.14  Evidence.

    (a) Sufficiency. A determination of deportability shall not be valid 
unless it is found by clear, unequivocal and convincing evidence that 
the facts alleged as grounds for deportation are true.
    (b) [Reserved]
    (c) Use of prior statements. The special inquiry officer may receive 
in evidence any oral or written statement which is material and relevant 
to any issue in the case previously made by the respondent or any other 
person during any investigation, examination, hearing, or trial.
    (d) Testimony. Testimony of witnesses appearing at the hearing shall 
be under oath or affirmation administered by the special inquiry 
officer.
    (e) Depositions. The Immigration Judge may order the taking of 
depositions pursuant to Sec. 3.33 of this chapter.

[22 FR 9797, Dec. 6, 1957, as amended at 32 FR 2883, Feb. 15, 1967; 52 
FR 2940, Jan. 29, 1987]



Sec. 242.15  Contents of record.

    The hearing before the special inquiry officer, including the 
testimony, exhibits, applications and requests, the special inquiry 
officer's decision, and all written orders, motions, appeals, briefs, 
and other papers filed in the proceedings shall constitute the record in 
the case. The hearing shall be recorded verbatim except for statements 
made off the record with the permission of the special inquiry officer. 
In his discretion, the special inquiry officer may exclude from the 
record any arguments made in connection with motions, applications, 
requests, or objections, but in such event the person affected may 
submit a brief.

[26 FR 12112, Dec. 19, 1961]



Sec. 242.16  Hearing.

    (a) Opening. The Immigration Judge shall advise the respondent of 
his right to representation, at no expense to the Government, by counsel 
of his own choice authorized to practice in the proceedings and require 
him to state then and there whether he desires representation; advise 
the respondent of the availability of free legal services programs 
qualified under part 292a of this chapter and organizations recognized 
pursuant to Sec. 292.2 of this chapter, located in the district where 
the deportation hearing is being held; ascertain that the respondent has 
received a list of such programs, and a copy of Form I--618, Written 
Notice of Appeal Rights; advise the respondent that he will have a 
reasonable opportunity to examine and object to the evidence against 
him, to present evidence in his own behalf and to cross-examine 
witnesses presented by the Government; place the respondent under oath; 
read the factual allegations and the charges in the order to show cause 
to the respondent and explain them in nontechnical language, and enter 
the order to show cause as an exhibit in the record. Deportation 
hearings shall be open to the public, except that the Immigration Judge 
may, in his discretion and for the purpose of protecting witnesses, 
respondents, or the public interest, direct that the general public or 
particular individuals shall be excluded from the hearing in any 
specific case. Depending upon physical facilities, reasonable limitation 
may be placed upon the number in attendance at any one time, with 
priority being given to the press over the general public.
    (b) Pleading by respondent. The special inquiry officer shall 
require the respondent to plead to the order to show

[[Page 395]]

cause by stating whether he admits or denies the factual allegations and 
his deportability under the charges contained therein. If the respondent 
admits the factual allegations and admits his deportability under the 
charges and the special inquiry officer is satisfied that no issues of 
law or fact remain, the special inquiry officer may determine that 
deportability as charged has been established by the admissions of the 
respondent. The special inquiry officer shall not accept an admission of 
deportability from an unrepresented respondent who is incompetent or 
under age 16 and is not accompanied by a guardian, relative, or friend; 
nor from an officer of an institution in which a respondent is an inmate 
or patient. When, pursuant to this paragraph, the special inquiry 
officer may not accept an admission of deportability, he shall direct a 
hearing on the issues.
    (c) Issues of deportability. When deportability is not determined 
under the provisions of paragraph (b) of this section, the special 
inquiry officer shall request the assignment of a trial attorney, and 
shall receive evidence as to any unresolved issues, except that no 
further evidence need be received as to any facts admitted during the 
pleading. The respondent shall provide a court certified copy of a 
Judicial Recommendation Against Deportation to the special inquiry 
officer when such recommendation will be the basis of denying any 
charge(s) brought by the Service in the proceedings against the 
respondent. No Judicial Recommendation Against Deportation is effective 
against a charge of deportability under section 241(a)(11) of the Act or 
if the Judicial Recommendation Against Deportation was granted on or 
after November 29, 1990.
    (d) Additional charges. The Service may at any time during a hearing 
lodge additional charges of deportability, including factual 
allegations, against the respondent. Copies of the additional factual 
allegations and charges shall be submitted in writing for service on the 
respondent and entry as an exhibit in the record. The Immigration Judge 
shall read the additional factual allegations and charges to the 
respondent and explain them to him or her. The special inquiry officer 
shall advise the respondent if he is not represented by counsel that he 
may be so represented and also that he may have a reasonable time within 
which to meet the additional factual allegations and charges. The 
respondent shall be required to state then and there whether he desires 
a continuance for either of these reasons. Thereafter, the provisions of 
paragraph (b) of this section shall apply to the additional factual 
allegations and lodged charges.

[27 FR 9646, Sept. 29, 1962, as amended at 29 FR 13243, Sept. 24, 1964; 
32 FR 9632, July 4, 1967; 44 FR 4654, Jan. 23, 1979; 52 FR 2940, Jan. 
29, 1987; 56 FR 8907, Mar. 4, 1991]



Sec. 242.17  Ancillary matters, applications.

    (a) Creation of the status of an alien lawfully admitted for 
permanent residence. The respondent may apply to the immigration judge 
for suspension of deportation under section 244(a) of the Act; for 
adjustment of status under section 245 of the Act, or under section 1 of 
the Act of November 2, 1966, or under section 101 or 104 of the Act of 
October 28, 1977; or for the creation of a record of lawful admission 
for permanent residence under section 249 of the Act. The application 
shall be subject to the requirements of parts 244, 245, and 249 of this 
chapter. The approval of any application made to the immigration judge 
under section 245 of the Act by an alien spouse (as defined in section 
216(g)(1) of the Act) or by an alien entrepreneur (as defined in section 
216A(f)(1) of the Act), shall result in the alien's obtaining the status 
of lawful permanent resident on a conditional basis in accordance with 
the provisions of section 216 or 216A of the Act, whichever is 
applicable. However, the Petition to Remove the Conditions on Residence 
required by section 216(c) of the Act or the Petition by Entrepreneur to 
Remove Conditions required by section 216A(c) of the Act shall be made 
to the director in accordance with part 216 of the chapter. In 
conjunction with any application for creation of status of an alien 
lawfully admitted for permanent residence made to an immigration judge, 
if the respondent is inadmissible under any provision of section 212(a) 
of the Act and believes that he or she meets the eligibility 
requirements for

[[Page 396]]

a waiver of the ground of inadmissibility, he or she may apply to the 
immigration judge for such waiver. The immigration judge shall inform 
the respondent of his or her apparent eligibility to apply for any of 
the benefits enumerated in this paragraph and shall afford the 
respondent an opportunity to make application therefor during the 
hearing. In exercising discretionary power when considering an 
application under this paragraph, the immigration judge may consider and 
base the decision on information not contained in the record and not 
made available for inspection by the respondent, provided the 
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. Whenever the immigration judge believes that he or 
she can do so while safeguarding both the information and its source, 
the immigration judge should inform the respondent of the general nature 
of the information in order that the respondent may have an opportunity 
to offer opposing evidence. A decision based in whole or in part on such 
classified information shall state that the information is material to 
the decision.
    (b) Voluntary departure. The respondent may apply to the special 
inquiry officer for voluntary departure in lieu of deportation pursuant 
to section 244(e) of the Act and part 244 of this chapter.
    (c) Applications for asylum or withholding of deportation. (1) The 
immigration judge shall notify the respondent that if he is finally 
ordered deported his deportation will in the first instance be directed 
pursuant to section 243(a) of the Act to the country designated by the 
respondent and shall afford him an opportunity then and there to make 
such designation. The immigration judge shall then specify and state for 
the record the country, or countries in the alternative, to which 
respondent's deportation will be directed pursuant to section 243(a) of 
the Act if the country of his designation will not accept him into its 
territory, or fails to furnish timely notice of acceptance, or if the 
respondent declines to designate a country.
    (2) If the alien expresses fear of persecution or harm upon return 
to any of the countries to which the alien might be deported pursuant to 
paragraph (c)(1) of this section, and the alien has not previously filed 
an application for asylum or withholding of deportation that has been 
referred to the immigration judge by an asylum officer in accordance 
with Sec. 208.14(b) of this chapter, the immigration judge shall:
    (i) Advise the alien that he may apply for asylum in the United 
States or withholding of deportation to those countries; and
    (ii) Make available the appropriate application forms.
    (3) An application for asylum or withholding of deportation must be 
filed with the Immigration Court, pursuant to Sec. 208.4(c) of this 
chapter. Upon receipt of an application that has not been referred by an 
asylum officer, the Immigration Court shall forward a copy to the 
Department of State pursuant to Sec. 208.11 of this chapter and shall 
calendar the case for a hearing. The reply, if any, of the Department of 
State, unless classified under E.O. 12356 (3 CFR, 1982 Comp., p. 166), 
shall be given to both the applicant and to the trial attorney 
representing the government.
    (4) Applications for asylum or withholding of deportation so filed 
will be decided by the immigration judge pursuant to the requirements 
and standards established in part 208 of this chapter after an 
evidentiary hearing that is necessary to resolve factual issues in 
dispute. An evidentiary hearing extending beyond issues related to the 
basis for a mandatory denial of the application pursuant to 8 CFR 208.14 
or 208.16 is not necessary once the immigration judge has determined 
that such a denial is required.
    (i) Evidentiary hearings on applications for asylum or withholding 
of deportation will be open to the public unless the applicant expressly 
requests that it be closed.
    (ii) Nothing in this section is intended to limit the authority of 
the Immigration Judge properly to control the scope of any evidentiary 
hearing.

[[Page 397]]

    (iii) During the deportation hearing, the applicant shall be 
examined under oath on his application and may present evidence and 
witnesses in his own behalf. The applicant has the burden of 
establishing that he is a refugee as defined in section 101(a)(42) of 
the Act pursuant to the standard set forth in Sec. 208.13 of this 
chapter.
    (iv) The trial attorney for the government may call witnesses and 
present evidence for the record, including information classified under 
E.O. 12356 (3 CFR, 1982 Comp., p. 166), provided the immigration judge 
or the Board has determined that such information is relevant to the 
hearing. When the immigration judge receives such classified information 
he shall inform the applicant. The agency that provides the classified 
information to the immigration judge may provide an unclassified summary 
of the information for release to the applicant, whenever it determines 
it can do so consistently with safeguarding both the classified nature 
of the information and its source. The summary should be as detailed as 
possible, in order that the applicant may have an opportunity to offer 
opposing evidence. A decision based in whole or in part on such 
classified information shall state whether such information is material 
to the decision.
    (5) The decision of an immigration judge to grant or deny asylum or 
withholding of deportation shall be communicated to the applicant and to 
the trial attorney for the government. An adverse decision will state 
why asylum or withholding of deportation was denied.
    (d) Application for relief under sections 241(a)(1)(H) and 
241(a)(1)(E)(iii). The respondent may apply to the immigration judge for 
relief from deportation under sections 241(a)(1)(H) and 
241(a)(1)(E)(iii) of the Act.
    (e) General. An application under this section shall be made only 
during the hearing and shall not be held to constitute a concession of 
alienage or deportability in any case in which the respondent does not 
admit his alienage or deportability. However, nothing in this section 
shall prohibit the INS from using information supplied in an application 
for asylum or withholding of deportation submitted to an asylum officer 
pursuant to Sec. 208.2 of this chapter on or after January 4, 1995 as 
the basis for issuance of an Order to Show Cause under Sec. 242.1 or to 
establish alienage or deportability in a case referred to an immigration 
judge under Sec. 208.14(b) of this chapter. The respondent shall have 
the burden of establishing that he is eligible for any requested benefit 
or privilege and that it should be granted in the exercise of 
discretion. The respondent shall not be required to pay a fee on more 
than one application within paragraphs (a) and (c) of this section, 
provided that the minimum fee imposed when more than one application is 
made shall be determined by the cost of the application with the highest 
fee. When a motion to reopen or reconsider is made concurrently with an 
application for relief seeking one of the immigration benefits set forth 
in paragraphs (a) and (c) of this section, only the fee set forth in 
Sec. 103.7(b)(1) of this chapter for the motion must accompany the 
motion and application for relief. If such a motion is granted, the 
appropriate fee for the application for relief, if any, set forth in 8 
CFR 103.7(b)(1), must be paid within the time specified in order to 
complete the application. Nothing contained herein is intended to 
foreclose the respondent from applying for any benefit or privilege 
which he believes himself eligible to receive in proceedings under this 
part.

[26 FR 12112, Dec. 19, 1961, as amended at 34 FR 13921, Aug. 30, 1969; 
39 FR 25642, July 12, 1974; 39 FR 43055, Dec. 10, 1974; 43 FR 18644, May 
2, 1978; 45 FR 41393, June 19, 1980; 47 FR 12133, Mar. 22, 1982; 47 FR 
44237, Oct. 7, 1982; 47 FR 44990, Oct. 13, 1982; 53 FR 30022, Aug. 10, 
1988; 55 FR 30687, July 27, 1990; 56 FR 38333, Aug. 13, 1991; 59 FR 
26593, 26594, May 23, 1994; 59 FR 62302, Dec. 5, 1994; 60 FR 34090, June 
30, 1995; 61 FR 46374, Sept. 3, 1996]



Sec. 242.18  Decision of the immigration judge.

    (a) Contents. The decision of the immigration judge may be oral or 
written. Except when deportability is determined on the pleadings 
pursuant to Sec. 242.16(b), the decision of the immigration judge shall 
include a discussion of the evidence and findings as to deportability. 
The formal enumeration of findings is not required. The decision

[[Page 398]]

shall also contain a discussion of the evidence pertinent to any 
application made by the respondent under Sec. 242.17 and the reasons for 
granting or denying the request. The decision shall be concluded with 
the order of the immigration judge.
    (b) Summary decision. Notwithstanding the provisions of paragraph 
(a) of this section, in any case where deportability is determined on 
the pleadings pursuant to Sec. 242.16(b) and the respondent does not 
make an application under Sec. 242.17, or the respondent applies for 
voluntary departure only and the immigration judge grants the 
application, the immigration judge may enter a summary decision on Form 
I-38, if deportation is ordered, or on Form I-39, if voluntary departure 
is granted with an alternate order of deportation.
    (c) Order of the immigration judge. The order of the immigration 
judge shall direct the respondent's deportation, or the termination of 
the proceedings, or such other disposition of the case as may be 
appropriate. When deportation is ordered, the immigration judge shall 
specify the country, or countries in the alternate, to which 
respondent's deportation shall be directed. The immigration judge is 
authorized to issue orders in the alternative or in combination as he 
may deem necessary.

[26 FR 12112, Dec. 19, 1961, as amended at 59 FR 62302, Dec. 5, 1994]



Sec. 242.19  Notice of decision.

    (a) Written decision. A written decision shall be served upon the 
respondent and the trial attorney, together with the notice referred to 
in Sec. 3.3 of this chapter. Service by mail is complete upon mailing.
    (b) Oral decision. An oral decision shall be stated by the special 
inquiry officer in the presence of the respondent and the trail 
attorney, if any, at the conclusion of the hearing. Unless appeal from 
the decision is waived, the respondent shall be furnished with Notice of 
Appeal, Form EOIR-26, and advised of the provisions of Sec. 242.21. A 
typewritten copy of the oral decision shall be furnished at the request 
of the respondent or the trial attorney.
    (c) Summary decision. When the special inquiry officer renders a 
summary decision as provided in Sec. 242.18(b), he shall serve a copy 
thereof upon the respondent at the conclusion of the hearing. Unless 
appeal from the decision is waived, the respondent shall be furnished 
with Notice of Appeal, Form EOIR-26, and advised of the provisions of 
Sec. 242.21.

[26 FR 12212, Dec. 19, 1961, as amended at 27 FR 9647, Sept. 29, 1962; 
61 FR 18909, Apr. 29, 1996]



Sec. 242.20  Finality of order.

    The decision of the Immigration Judge shall become final in 
accordance with Sec. 3.39 of this chapter.

[52 FR 2941, Jan. 29, 1987, as amended at 59 FR 26595, May 23, 1994]



Sec. 242.21  Appeals.

    (a) Pursuant to part 3 of this chapter, an appeal shall lie from a 
decision of an Immigration Judge to the Board, except that no appeal 
shall lie from an order of deportation entered in absentia. The 
procedures regarding the filing of a Notice of Appeal (Form EOIR-26), 
fees, and briefs are set forth in Secs. 3.3, 3.31, and 3.38 of this 
chapter. An appeal shall be filed within 30 calendar days after the 
mailing of a written decision, the stating of an oral decision, or the 
service of a summary decision. The filing date is defined as the date of 
receipt of the Notice of Appeal by the Board of Immigration Appeals. The 
reasons for the appeal shall be stated in the Notice of Appeal (Form 
EOIR-26) in accordance with the provisions of Sec. 3.3(b) of this 
chapter. Failure to do so may constitute a ground for dismissal of the 
appeal by the Board pursuant to Sec. 3.1(d)(1-a) of this chapter.
    (b) Prohibited appeals; legalization or applications. An alien 
respondent defined in Sec. 245a.2(c) (6) or (7) of this chapter who 
fails to file an application for adjustment of status to that of a 
temporary resident within the prescribed period(s), and who is 
thereafter found to be deportable by decision of an immigration judge, 
shall not be permitted to appeal the finding of deportability

[[Page 399]]

based solely on refusal by the immigration judge to entertain such an 
application in deportation proceedings.

[29 FR 7236, June 3, 1964, as amended at 52 FR 16194, May 1, 1987; 53 FR 
10064, Mar. 29, 1988; 54 FR 29439, July 12, 1989; 61 FR 18909, Apr. 29, 
1996]



Sec. 242.22  Reopening or reconsideration.

    Motions to reopen or reconsider are subject to the requirements and 
limitations set forth in Sec. 3.23 of this chapter. The immigration 
judge may upon his/her own motion, or upon motion of the trial attorney 
or the respondent, reopen or reconsider any case in which he/she had 
made a decision, unless jurisdiction in the case is vested in the Board 
of Immigration Appeals under part 3 of this chapter. An order by the 
immigration judge granting a motion to reopen may be made on Form I-328. 
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; nor will any motion to reopen for the purpose of providing the 
respondent with an opportunity to make an application under Sec. 242.17 
be granted if respondent's rights to make such application were fully 
explained to him/her by the immigration judge and he/she was afforded an 
opportunity to do so at the hearing, unless circumstances have arisen 
thereafter on the basis of which the request is being made. The filing 
of a motion under this section with an immigration judge shall not serve 
to stay the execution of an outstanding decision; execution shall 
proceed unless the immigration judge who has jurisdiction over the 
motion specifically grants a stay of deportation. The immigration judge 
may stay deportation pending his/her determination of the motion and 
also pending the taking and disposition of an appeal from such 
determination. The filing of a motion to reopen pursuant to the 
provisions of Sec. 3.23(b)(4)(iii) of this chapter shall stay the 
deportation of the alien pending the disposition of the motion and the 
adjudication of any properly filed administrative appeal.

[52 FR 26470, July 15, 1987, as amended at 61 FR 18909, Apr. 29, 1996; 
61 FR 21065, May 9, 1996]



Sec. 242.23  Proceedings under section 242(f) of the Act.

    (a) Order to show cause. In the case of an alien within the 
provisions of section 242(f) of the Act, the order to show cause shall 
charge him with deportability under section 242(f) of the Act. The prior 
order of deportation and evidence of the execution thereof, properly 
identified, shall constitute prima facie cause for deportability under 
this section.
    (b) Applicable procedure. Except as otherwise provided in this 
section, proceedings under section 242(f) of the Act shall be conducted 
in general accordance with the rules prescribed in this part.
    (c) Deportability. In determining the deportability of an alien 
alleged to be within the purview of paragraph (a) of this section, the 
issues shall be limited solely to a determination of the identity of the 
respondent, i.e., whether the respondent is in fact an alien who was 
previously deported, or who departed while an order of deportation was 
outstanding; whether the respondent was previously deported as a member 
of any of the classes described in paragraph (2), (3) or (4) of section 
241(a) of the Act; and whether respondent has unlawfully reentered the 
United States.
    (d) Order. If deportability as charged in the order to show cause is 
established, the Immigration Judge shall order that the respondent be 
deported under the previous order of deportation in accordance with 
section 242(f) of the Act.
    (e) Trial attorney; additional charges. When a trial attorney is 
assigned to a proceeding under this section and additional charges are 
lodged against the respondent, the provisions of paragraphs (c) and (d) 
of this section shall cease to apply.

[26 FR 12282, Dec. 28, 1961, as amended at 27 FR 9647, Sept. 29, 1962; 
30 FR 2021, Feb. 13, 1965; 56 FR 38333, Aug. 13, 1991]

[[Page 400]]



Sec. 242.24  Detention and release of juveniles.

    (a) Juveniles. A juvenile is defined as an alien under the age of 
eighteen (18) years.
    (b) Release. Juveniles for whom bond has been posted, for whom 
parole has been authorized, or who have been ordered released on 
recognizance, shall be released pursuant to the following guidelines:
    (1) Juveniles shall be released, in order of preference, to: (i) A 
parent; (ii) legal guardian; or (iii) adult relative (brother, sister, 
aunt, uncle, grandparent) who are not presently in INS detention, unless 
a determination is made that the detention of such juvenile is required 
to secure his timely appearance before the Service or the immigration 
court or to ensure the juvenile's safety or that of others.

In cases where the parent, legal guardian or adult relative resides at a 
location distant from where the juvenile is detained, he or she may 
secure release at an INS office located near the parent, legal guardian, 
or adult relative.
    (2) If an individual specified in paragraph (b)(1) of this section 
cannot be located to accept custody of a juvenile, and the juvenile has 
identified a parent, legal guardian, or adult relative in INS detention, 
simultaneous release of the juvenile and the parent, legal guardian, or 
adult relative shall be evaluated on a discretionary case-by-case basis.
    (3) In cases where the parent or legal guardian is in INS detention 
or outside the United States, the juvenile may be released to such 
person as designated by the parent or legal guardian in a sworn 
affidavit, executed before an immigration officer or consular officer, 
as capable and willing to care for the juvenile's well-being. Such 
person must execute an agreement to care for the juvenile and to ensure 
the juvenile's presence at all future proceedings before the Service or 
an immigration judge.
    (4) In unusual and compelling circumstances and in the discretion of 
the district director or chief patrol agent, a juvenile may be released 
to an adult, other than those identified in paragraph (b)(1) of this 
section, who executes an agreement to care for the juvenile's well-being 
and to ensure the juvenile's presence at all future proceedings before 
the INS or an immigration judge.
    (c) Juvenile Coordinator. The case of a juvenile for whom detention 
is determined to be necessary should be referred to the Juvenile 
Coordinator, whose responsibilities should include, but not be limited 
to, finding suitable placement of the juvenile in a facility designated 
for the occupancy of juveniles. These may include juvenile facilities 
contracted by the INS, state or local juvenile facilities, or other 
appropriate agencies authorized to accommodate juveniles by the laws of 
the state or locality.
    (d) Detention. In the case of a juvenile for whom detention is 
determined to be necessary, for such interim period of time as is 
required to locate suitable placement for the juvenile, whether such 
placement is under paragraph (b) or (c) of this section, the juvenile 
may be temporarily held by INS authorities or placed in any INS 
detention facility having separate accommodations for juveniles.
    (e) Refusal of release. If a parent of a juvenile detained by the 
INS can be located, and is otherwise suitable to receive custody of the 
juvenile, and the juvenile indicates a refusal to be released to his/her 
parent, the parent(s) shall be notified of the juvenile's refusal to be 
released to the parent(s), and shall be afforded an opportunity to 
present their views to the district director, chief patrol agent or 
immigration judge before a custody determination is made.
    (f) Notice to parent of application for relief. If a juvenile seeks 
release from detention, voluntary departure, parole, or any form of 
relief from deportation, where it appears that the grant of such relief 
may effectively terminate some interest inherent in the parent-child 
relationship and/or the juvenile's rights and interests are adverse with 
those of the parent, and the parent is presently residing in the United 
States, the parent shall be given notice of the juvenile's application 
for relief, and shall be afforded an opportunity to present his or her 
views and assert his or her interest to the district director

[[Page 401]]

or immigration judge before a determination is made as to the merits of 
the request for relief.
    (g) Voluntary departure. Each juvenile apprehended in the immediate 
vicinity of the border who resides permanently in Mexico or Canada, 
shall be informed, prior to presentation of the voluntary departure 
form, that he or she may make a telephone call to a parent, close 
relative, a friend, or to an organization found on the free legal 
services list. Each other juvenile apprehended shall be provided access 
to a telephone and must in fact communicate with either a parent, adult 
relative, friend, or with an organization found on the free legal 
services list prior to presentation of the voluntary departure form. If 
the juvenile, of his or her own volition, asks to contact a consular 
officer, and does in fact make such contact the requirements of this 
section are satisfied.
    (h) Notice and Request for Disposition. When a juvenile alien is 
apprehended, he or she must be given a Notice and Request for 
Disposition. If the juvenile is under fourteen years of age or unable to 
understand the notice, the notice shall be read and explained to the 
juvenile in a language the juvenile understands. In the event a juvenile 
who has requested a hearing pursuant to the Notice subsequently decides 
to accept voluntary departure, a new Notice and Request for Disposition 
shall be given to, and signed by the juvenile.

[53 FR 17450, May 17, 1988]



Sec. 242.25  Proceedings under section 242A(b) of the Act.

    (a) Definitions. As used in this section--Deciding Service officer 
means a district director, chief patrol agent, or another immigration 
officer designated by a district director or chief patrol agent, who is 
not the same person as the issuing Service officer. Issuing Service 
officer means any Service officer listed in Sec. 242.1(a) as authorized 
to issue orders to show cause. Prima facie claim means a claim that, on 
its face and consistent with the evidence in the record of proceeding, 
demonstrates an alien's present statutory eligibility for a specific 
form of relief from deportation under the Immigration and Nationality 
Act (``the Act'').
    (b) Preliminary consideration and Notice of Intent to issue a Final 
Administrative Deportation Order; commencement of proceedings--(1) Basis 
of Service charge. An issuing Service officer shall cause to be served 
upon an alien a Notice of Intent to issue a Final Administrative 
Deportation Order (Notice of Intent, Form I-851), if the officer is 
satisfied that there is sufficient evidence, based upon questioning of 
the alien by an immigration officer and upon any other evidence 
obtained, to support a finding that the individual:
    (i) Is an alien;
    (ii) Has not been lawfully admitted for permanent residence;
    (iii) Has been convicted (as demonstrated by one or more of the 
sources listed in Sec. 3.41 of this chapter) of an aggravated felony and 
such conviction has become final;
    (iv) Is deportable under section 241(a)(2)(A)(iii) of the Act; and
    (v) Does not appear statutorily eligible for any relief from 
deportation under the Act.
    (2) Notice. (i) Deportation proceedings under section 242A(b) of the 
Act shall commence upon personal service of the Notice of Intent upon 
the alien, as prescribed by Secs. 103.5a(a)(2) and 103.5a(c)(2) of this 
chapter. The Notice of Intent shall set for the preliminary 
determinations and inform the alien of the Service's intention to issue 
a Final Administrative Deportation Order (Final Administrative 
Deportation Order, Form I-851A) without a hearing before an Immigration 
Judge. This Notice shall constitute the charging document. The Notice of 
Intent shall include allegations of fact and conclusions of law. It 
shall advise that the alien: has the privilege of being represented by 
counsel of the alien's choosing, at no expense to the Government, as 
long as counsel is authorized to practice in deportation proceedings; 
may inspect the evidence supporting the Notice of Intent; and may rebut 
the charges within ten (10) calendar days after service of such Notice 
(or thirteen (13) calendar days if service of the Notice was by mail).
    (ii) The Notice of Intent also shall advise the alien that he or she 
may designate in writing, within ten (10) calendar days of service of 
the Notice

[[Page 402]]

of Intent (or thirteen (13) calendar days if service is by mail), the 
country to which he or she chooses to be deported in accordance with 
section 243 of the Act, in the event that a Final Administrative 
Deportation Order is issued, and that the Service will honor such 
designation only to the extent permitted under the terms, limitations, 
and conditions of section 243 of the Act.
    (iii) The Service shall provide the alien with a list of available 
free legal services programs qualified under part 292a of this chapter 
and organizations recognized pursuant to part 292 of this chapter, 
located within the district or sector where the Notice of Intent is 
issued.
    (iv) The Service must either provide the alien with a written 
translation of the Notice of Intent or explain the contents of the 
Notice of Intent to the alien in the alien's native language or in a 
language that the alien understands.
    (c) Alien's response--(1) Time for response. The alien will have ten 
(10) calendar days from service of the Notice of Intent, or thirteen 
(13) calendar days if service is by mail, to file a response to the 
Notice. If the final date for filing such a response falls on a 
Saturday, Sunday, or legal holiday, the response shall be considered due 
on the next business day. In the response, the alien may: Designate his 
or her choice of country for deportation; submit a written response 
rebutting the allegations supporting the charge and/or requesting the 
opportunity to review the Government's evidence; and/or request in 
writing an extension of time for response, stating the specific reasons 
why such an extension is necessary. Alternatively, the alien may, in 
writing, choose to accept immediate issuance of a Final Administrative 
Deportation Order. The deciding Service officer may extend the time for 
response for good cause shown. A request for extension of time for 
response will not automatically extend the period for the response. The 
alien will be permitted to file a response outside the prescribed period 
only if the deciding Service officer permits it. The alien must send the 
response to the deciding Service officer at the address provided in the 
Notice of Intent.
    (2) Nature of rebuttal or request to review evidence. (i) If an 
alien chooses to rebut the allegations contained in the Notice, the 
alien's written response must indicate which finding(s) are being 
challenged and should be accompanied by affidavit(s), documentary 
information, or other specific evidence supporting the challenge. If the 
alien asserts that he or she is entitled to statutory relief from 
deportation, the alien also should include with the response a completed 
and signed application designed for the relief sought.
    (ii) If an alien's written response requests the opportunity to 
review the Government's evidence, the Service shall serve the alien with 
a copy of the evidence in the record of proceeding upon which the 
Service is relying to support the charge. The alien may, within ten (10) 
calendar days following service of the Government's evidence (thirteen 
(13) calendar days if service is by mail), furnish a final response in 
accordance with paragraph (c)(1) of this section. If the alien's final 
response is a rebuttal of the allegations, such a final response should 
be accompanied by affidavit(s), documentary information, or other 
specific evidence supporting the challenge. If the alien asserts that he 
or she is entitled to statutory relief from deportation, the alien also 
should include with the final response a completed and signed 
application designed for the relief sought.
    (d) Determination by deciding Service officer--(1) No response 
submitted or concession of deportability. If the deciding Service 
officer does not receive a timely response and the evidence in the 
record of processing establishes deportability by clear, convincing, and 
unequivocal evidence, or if the alien concedes deportability, then the 
deciding Service officer shall issue and cause to be served upon the 
alien a Final Administrative Deportation Order that states the reasons 
for the deportation decision. The alien may knowingly and voluntarily 
waive in writing the 30-day waiting period before execution of the final 
order of deportation provided in paragraph (f) of this section.
    (2) Response submitted--(i) Insufficient rebuttal; no prima facie 
claim or genuine

[[Page 403]]

issue of material fact: If the alien timely submits a rebuttal to the 
allegations, but the deciding Service officer finds that deportability 
is established by clear, convincing, and unequivocal evidence in the 
record of proceeding, and that the alien has not demonstrated a prima 
facie claim of eligibility for relief from deportation under the Act, 
the deciding Service officer shall issue and cause to be served upon the 
alien a Final Administrative Deportation Order that states the reasons 
for the deportation decision.
    (ii) Additional evidence required. (A) If the deciding Service 
officer finds that the record of proceeding, including the alien's 
timely rebuttal, raises a genuine issue of material fact regarding the 
preliminary findings, the deciding Service officer may either obtain 
additional evidence from any source, including the alien, or cause to be 
issued an order to show cause to initiate deportation proceedings under 
section 242(b) of the Act. The deciding Service officer also may obtain 
additional evidence from any source, including the alien, if the 
deciding Service officer deems that such additional evidence may aid the 
officer in the rendering of a decision.
    (B) If the deciding Service officer considers additional evidence 
from a source other than the alien, that evidence shall be made a part 
of the record of proceeding, and shall be provided to the alien. If the 
alien elects to submit a response to such additional evidence, such 
response must be filed with the Service within ten (10) calendar days of 
service of the additional evidence (or thirteen (13) calendar days if 
service is by mail). If the deciding Service officer finds, after 
considering all additional evidence, that deportability is established 
by clear, convincing, and unequivocal evidence in the record of 
proceeding, and that the alien does not have a prima facie claim of 
eligibility for relief from deportation under the Act, the deciding 
Service officer shall issue and cause to be served upon the alien a 
Final Administrative Deportation Order that states the reasons for the 
deportation decision.
    (iii) Statutory eligibility for relief; conversion to proceedings 
under section 242(b) of the Act. If the deciding Service officer finds 
that the alien is not amenable to deportation under section 242A(b) of 
the Act or has presented a prima facie claim of statutory eligibility 
for a specific form of relief from deportation, the deciding Service 
officer shall terminate the expedited proceedings under section 242A(b) 
of the Act, and shall, where appropriate, cause to be issued an order to 
show cause for the purpose of initiating an Immigration Judge proceeding 
under section 242(b) of the Act.
    (3) Termination of proceedings by deciding Service officer. Only the 
deciding Service officer may terminate proceedings under section 242A(b) 
of the Act, in accordance with this section.
    (e) Proceedings commenced under section 242(b) of the act. In any 
proceeding commenced under section 242(b) of the Act, if it appears that 
the respondent alien is subject to deportation pursuant to section 
242A(b) of the Act, the Immigration Judge may, upon the Service's 
request, terminate the case and, upon such termination, the Service may 
commence administrative proceedings under section 242A(b) of the Act. 
However, in the absence of any such request, the Immigration Judge shall 
complete the pending proceeding commenced under section 242(b) of the 
Act.
    (f) Executing final deportation order of deciding Service officer--
(1) Time of execution. Upon the issuance of a Final Administrative 
Deportation Order, the Service shall issue a warrant of deportation in 
accordance with 8 CFR 243.2; such warrant shall be executed no sooner 
than 30 calendar days after the date the Final Administrative 
Deportation Order is issued, unless the alien knowingly, voluntarily and 
in writing waives the 30-day period. The 72-hour provisions of 
Sec. 243.3(b) of this chapter shall not apply.
    (2) Country to which alien is to be deported. The deciding Service 
officer shall designate the country of deportation in the manner 
prescribed by section 243(a) of the Act.
    (g) Arrest and detention. At the time of issuance of a Notice of 
Intent or at any time thereafter and up to the time the alien becomes 
the subject of a warrant of deportation, the alien may be arrested and 
taken into custody under

[[Page 404]]

the authority of a warrant of arrest issued by an officer listed in 
Sec. 242.2(c)(1) of this chapter. Pursuant to section 242(a)(2)(A) of 
the Act, the deciding Service officer shall not release an alien who has 
not been lawfully admitted. Pursuant to section 242(a)(2)(B) of the Act, 
the deciding Service officer may release an alien who has been lawfully 
admitted if, in accordance with Sec. 242.2(h) of this chapter, the alien 
demonstrates that he or she is not a threat to the community and is 
likely to appear at any scheduled hearings. The decision of the deciding 
Service officer concerning custody or bond shall not be administratively 
appealable during proceedings initiated under section 242A(b) of the Act 
and this section.
    (h) Record of proceeding. The Service shall maintain a record of 
proceeding for judicial review of the Final Administrative Deportation 
Order sought by any petition for review. The record of proceeding shall 
include, but not necessarily be limited to: the charging document 
(Notice of Intent); the Final Administrative Deportation Order 
(including any supplemental memorandum of decision); the alien's 
response, if any; all evidence in support of the charge; and any 
admissible evidence, briefs, or documents submitted by either party 
respecting deportability or relief from deportation.
    (i) Effective March 3, 1997, the Service will cease issuance of both 
Form I-851 and Form I-851A. The Service retains the authority to execute 
at any time Form I-851A that is final before March 3, 1997. The Service 
will resume the issuance of Form I-851 and Form I-851A after April 1, 
1997, pursuant to regulations implementing section 238(b) of the Act, as 
amended by the Illegal Immigration Reform and Responsibility Act of 
1996.

[60 FR 43961, Aug. 24, 1995, as amended at 61 FR 69020, Dec. 31, 1996]

    Effective Date Note: At 61 FR 69020, Dec. 31, 1996, Sec. 242.25 was 
amended by adding a new paragraph (i), effective Mar. 3, 1997.



Sec. 242.26  Deportation of S-5, S-6, and S-7 nonimmigrant.

    (a) Condition of classification. As a condition of classification 
and continued stay in classification pursuant to section 101(a)(15)(S) 
of the Act, nonimmigrants in S classification must have executed Form I-
854, Part B, certifying that they have knowingly waived their right to a 
deportation hearing and right to contest, other than on the basis of an 
application for withholding of deportation, any deportation action, 
including detention pending deportation, instituted before lawful 
permanent resident status is obtained.
    (b) Determination of deportability. A determination to deport an 
alien classified pursuant to section 101(a)(15)(S) of the Act shall be 
made by the district director having jurisdiction over the place where 
the alien is located.
    (1) A determination to deport such an alien shall be based on one or 
more of the deportation grounds listed in section 241 of the Act based 
on conduct committed after, or conduct or a condition not disclosed to 
the Service prior to, the alien's classification as an S nonimmigrant 
under section 101(a)(15)(S) of the Act, or for a violation of, or 
failure to adhere to, the particular terms and conditions of status in S 
nonimmigrant classification.
    (c) Deportation procedures. (1) A district director who determines 
to deport an alien witness or informant in S nonimmigrant classification 
shall notify the Commissioner, the Assistant Attorney General, Criminal 
Division, and the relevant LEA 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.
    (2) A district director, who has provided notice as set forth in 
paragraph (c)(1) of this section and who has been advised by the 
Commissioner that the Assistant Attorney General, Criminal Division, has 
not objected, shall issue a warrant of deportation. The alien shall 
immediately be arrested and taken into custody by the district director

[[Page 405]]

initiating the deportation. An alien classified under the provisions of 
section 101(a)(15)(S) of the Act who is determined, pursuant to a 
warrant issued by a district director, to be deportable from the United 
States shall be deported from the United States to his or her country of 
nationality or last residence. The LEA who requested the alien's 
presence in the United States 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 Untied States and, in any event, 
shall notify the Commissioner of the alien's departure.
    (d) Withholding of deportation. An alien classified pursuant to 
section 101(a)(15)(S) of the Act who applies for withholding of 
deportation shall have 10 days from the date the warrant of deportation 
is served upon the alien to file an application for such relief with the 
district director initiating the deportation order. The procedures 
contained in 8 CFR 208.2 and 208.16 shall apply to such an alien who 
applies for withholding of deportation.

[60 FR 44268, Aug. 25, 1995]



PART 243--DEPORTATION OF ALIENS IN THE UNITED STATES--Table of Contents




Sec.
243.1  Final order of deportation.
243.2  Warrant of deportation.
243.3  Expulsion.
243.4  Stay of deportation.
243.5  Self-deportation.
243.6  Notice to transportation line.
243.7  Special care and attention for aliens.
243.8  Imposition of sanctions.

    Authority: 8 U.S.C. 1103, 1253.

    Source: 26 FR 12113, Dec. 19, 1961, unless otherwise noted.



Sec. 243.1  Final order of deportation.

    Except as otherwise required by section 242(c) of the Act for the 
specific purposes of that section, an order of deportation, including an 
alternate order of deportation coupled with an order of voluntary 
departure, made by the special inquiry officer in proceedings under part 
242 of this chapter shall become final upon dismissal of an appeal by 
the Board of Immigration Appeals, upon waiver of appeal, or upon 
expiration of the time allotted for an appeal when no appeal is taken; 
or, if such an order is issued by the Board or approved by the Board 
upon certification, it shall be final as of the date of the Board's 
decision.



Sec. 243.2  Warrant of deportation.

    A Form I-205, Warrant of deportation, based upon the final 
administrative order of deportation in the alien's case shall be issued 
by a district director. The district director shall exercise the 
authority contained in section 243 of the Act to determine at whose 
expense the alien shall be deported and whether his/her mental or 
physical condition requires personal care and attention en route to his/
her destination.

[54 FR 39337, Sept. 26, 1989]



Sec. 243.3  Expulsion.

    (a) Execution of Order. Except in the exercise of discretion by the 
district director, and for such reasons as are set forth in 
Sec. 212.5(a) of this chapter, once an order of deportation becomes 
final, an alien shall be taken into custody and the order shall be 
executed. For the purposes of this part, an order of deportation is 
final and subject to execution upon the date when any of the following 
occurs:
    (1) A grant of voluntary departure expires;
    (2) An immigration judge enters an order of deportation without 
granting voluntary departure or other relief, and the alien respondent 
waives his or her right to appeal;
    (3) The Board of Immigration Appeals enters an order of deportation 
on appeal, without granting voluntary departure or other relief; or
    (4) A federal district or appellate court affirms an administrative 
order of deportation in a petition for review or habeas corpus action.
    (b) Service of decision. In the case of an order entered by any of 
the authorities enumerated above, the order shall be executed no sooner 
than 72 hours after service of the decision, regardless of whether the 
alien is in Service custody, provided that such period may be waived on 
the knowing and voluntary request of the alien. Nothing in this

[[Page 406]]

paragraph shall be construed, however, to preclude assumption of custody 
by the Service at the time of issuance of the final order.

[51 FR 23042, June 25, 1986]



Sec. 243.4  Stay of deportation.

    Any request of an alien under a final administrative order of 
deportation for a stay of deportation, except a request for withholding 
of deportation pursuant to section 243(h) of the Act, shall be filed on 
Form I-246 with the district director having jurisdiction over the place 
where the alien is at the time of filing. The district director, in his 
discretion, may grant a stay of deportation for such time and under such 
conditions as he may deem appropriate. Written notice of the disposition 
of the alien's request shall be served upon him and any notice of denial 
shall include specific reasons therefor; however, neither the making of 
the request nor the failure to receive notice of disposition of the 
request shall relieve the alien from strict compliance with any 
outstanding notice to surrender for deportation. Denial by the district 
director of a request for a stay is not appealable but such denial shall 
not preclude the Board from granting a stay in connection with a motion 
to reopen or a motion to reconsider as provided in part 3 of this 
chapter, nor such denial preclude the special inquiry officer, in his 
discretion, from granting a stay in connection with, and pending his 
determination of, a motion to reopen or a motion to reconsider a case 
falling within his jurisdiction pursuant to Sec. 242.22 of this chapter, 
and also pending an appeal from such determination.

[40 FR 50702, Oct. 31, 1975]



Sec. 243.5  Self-deportation.

    A district director may permit an alien ordered deported to depart 
at his own expense to a destination of his own choice. Any alien who has 
departed from the United States while an order of deportation is 
outstanding shall be considered to have been deported in pursuance of 
law, except that an alien who departed before the expiration of the 
voluntary departure time granted in connection with an alternate order 
of deportation shall not be considered to have been so deported.

[29 FR 6485, May 19, 1964]



Sec. 243.6  Notice to transportation line.

    When a transportation line is responsible for the expenses of an 
alien's deportation, notification shall be made to such line on Form I-
284, when applicable, and Form I-288. If special care and attention is 
required, notification to this effect shall be placed on Form I-288.



Sec. 243.7  Special care and attention for aliens.

    When a transportation line is responsible for the expenses of an 
alien's deportation, the alien shall be delivered to the master, 
commanding officer, or the officer in charge of the vessel or aircraft 
on which the alien will be deported, who shall be given Forms I-287, I-
287A, and I-287B. The reverse of Form I-287A shall be signed by the 
officer of the vessel or aircraft to whom the alien has been delivered 
and immediately returned to the immigration officer effecting delivery. 
Form I-287B shall be retained by the receiving officer and subsequently 
filled out by the agents or persons therein designated and returned by 
mail to the district director named on the form. The transportation line 
shall at its own expense forward the alien from the foreign port of 
disembarkation to the final destination specified on Form I-287. The 
special care and attention shall be continued to such final destination, 
except when the foreign public officers decline to allow such attendant 
to proceed and themselves take charge of the alien, in which case this 
fact shall be recorded by the transportation line on the reverse of Form 
I-287B. If the transportation line fails, refuses, or neglects to 
provide the necessary special care and attention or comply with the 
directions of Form I-287, the district director shall thereafter and 
without notice employ suitable persons, at the expense of the 
transportation line, and effect such deportation.



Sec. 243.8  Imposition of sanctions.

    The provisions of section 243(g) of the Act have been applied to 
residents of the Union of Soviet Socialist Republics

[[Page 407]]

(USSR), Czechoslovakia, and Cuba. These provisions do not apply to an 
alien who is residing in Estonia, Latvia, or Lithuania who is not a 
national, citizen, or subject of the Union of Soviet Socialist 
Republics. These provisons also do not apply to an alien who is residing 
in Cuba and can be classified as an immediate relative as defined in 
section 201(b) or a returning resident as defined in section 
101(a)(27)(A). The sanctions imposed on residents of the Union of Soviet 
Socialist Republics, Czechoslovakia pursuant to section 243(g) may be 
waived in an individual case for the beneficiary of a petition accorded 
a status under section 201(b) or section 203(a) of the Act. The 
sanctions upon the USSR, Czechoslovakia may be waived upon an individual 
request by the Department of State in behalf of a visa applicant. Upon 
approval of a visa petition or upon an individual request by the 
Department of State in behalf of a visa applicant, the district director 
shall determine whether sanctions shall be waived. However, the regional 
commissioner or the Deputy Commissioner, may direct that any case or 
class of cases be referred to him or her for any such determination. The 
consular officer shall be notified of any determination made with 
respect to the waiver of sanctions if a visa petition is approved. If 
the sanctions are not waived, the notice informing the petitoner that 
the petition has been approved shall also notfiy him or her that the 
sanctions imposed by section 243(g) of the Act have not been waived.

[48 FR 39034, Aug. 29, 1983, as amended at 56 FR 48730, Sept. 26, 1991]



PART 244--SUSPENSION OF DEPORTATION AND VOLUNTARY DEPARTURE--Table of Contents




Sec.
244.1  Application.
244.2  Extension of time to depart.

    Authority: 8 U.S.C. 1103, 1252, 1254; 8 CFR part 2.



Sec. 244.1  Application.

    Notwithstanding any other provision of this chapter, an alien who is 
deportable because of a conviction on or after November 18, 1988, for an 
aggravated felony as defined in section 101(a)(43) of the Act, shall not 
be eligible for voluntary departure as prescribed in part 242 of this 
chapter and section 244 of the Act. Pursuant to part 242 of this chapter 
and section 244 of the Act an immigration judge may authorize the 
suspension of an alien's deportation; or, if the alien establishes that 
he/she is willing and has the immediate means with which to depart 
promptly from the United States, an immigration judge may authorize the 
alien to depart voluntarily from the United States in lieu of 
deportation within such time as may be specified by the immigration 
judge when first authorizing voluntary departure, and under such 
conditions as the district director shall direct. An application for 
suspension of deportation shall be made on Form EOIR-40.

[46 FR 25598, May 8, 1981, as amended at 55 FR 24859, June 19, 1990; 60 
FR 37328, July 20, 1995]



Sec. 244.2  Extension of time to depart.

    Authority to reinstate or extend the time within which to depart 
voluntarily specified initially by an immigration judge or the Board is 
within the sole jurisdiction of the district director, except that an 
immigration judge or the Board may reinstate voluntary departure in a 
deportation proceeding that has been reopened for a purpose other than 
solely making an application for voluntary departure. A request by an 
alien for reinstatement or an extension of time within which to depart 
voluntarily shall be filed with the district director having 
jurisdiction over the alien's place of residence. Written notice of the 
district director's decision shall be served upon the alien and no 
appeal may be taken therefrom.

[52 FR 24982, July 2, 1987]



PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE--Table of Contents




Sec.
245.1  Eligibility.
245.2  Application.
245.3  Adjustment of status under section 13 of the Act of September 11, 
          1957, as amended.

[[Page 408]]

245.4  Documentary requirements.
245.5  Medical examination.
245.6  Interview.
245.7  Adjustment of status of certain Soviet and Indochinese parolees 
          under the Foreign Operations Appropriations Act for Fiscal 
          Year 1990 (Pub. L. 101-167).
245.8  Adjustment of status as a special immigrant under section 
          101(a)(27)(K) of the Act.
245.9  Adjustment of Status of Certain Nationals of the People's 
          Republic of China under Public Law 102-404.
245.10  Adjustment of status upon payment of additional sum under Public 
          Law 103-317.
245.11  Adjustment of aliens in S nonimmigrant classification.

    Authority: 8 U.S.C. 1101, 1103, 1182, 1255; 8 CFR part 2.



Sec. 245.1  Eligibility.

    (a) General. Any alien who is physically present in the United 
States, except for an alien who is ineligible to apply for adjustment of 
status under paragraph (b) or (c) of this section, may apply for 
adjustment of status to that of a lawful permanent resident of the 
United States if the applicant is eligible to receive an immigrant visa 
and an immigrant visa is immediately available at the time of filing of 
the application. A special immigrant described under section 
101(a)(27)(J) of the Act shall be deemed, for the purpose of applying 
the adjustment to status provisions of section 245(a) of the Act, to 
have been paroled into the United States, regardless of the actual 
method of entry into the United States.
    (b) Restricted aliens. The following categories of aliens are 
ineligible to apply for adjustment of status to that of a lawful 
permanent resident alien under section 245 of the Act, unless the alien 
establishes eligibility under the provisions of section 245(i) of the 
Act and Sec. 245.10, is not included in the categories of aliens 
prohibited from applying for adjustment of status listed in 
Sec. 245.1(c), is eligible to receive an immigrant visa, and has an 
immigrant visa immediately available at the time of filing the 
application for adjustment of status:
    (1) Any alien who entered the United States in transit without a 
visa;
    (2) Any alien who, on arrival in the United States, was serving in 
any capacity on board a vessel or aircraft or was destined to join a 
vessel or aircraft in the United States to serve in any capacity 
thereon;
    (3) Any alien who was not admitted or paroled following inspection 
by an immigration officer;
    (4) Any alien who, on or after January 1, 1977, was employed in the 
United States without authorization prior to filing an application for 
adjustment of status. This restriction shall not apply to an alien who 
is:
    (i) An immediate relative as defined in section 201(b) of the Act;
    (ii) A special immigrant as defined in section 101(a)(27)(H) or (J) 
of the Act;
    (iii) Eligible for the benefits of Public Law 101-238 (the 
Immigration Nursing Relief Act of 1989) and files an application for 
adjustment of status on or before October 17, 1991; or
    (iv) Eligible for the benefits of Public Law 101-238 (the 
Immigration Nursing Relief Act of 1989), and has not entered into or 
continued in unauthorized employment on or after November 29, 1990.
    (5) Any alien who on or after November 6, 1986 is not in lawful 
immigration status on the date of filing his or her application for 
adjustment of status, except an applicant who is an immediate relative 
as defined in section 201(b) or a special immigrant as defined in 
section 101(a)(27) (H), (I), or (J).
    (6) Any alien who files an application for adjustment of status on 
or after November 6, 1986, who has failed (other than through no fault 
of his or her own or for technical reasons) to maintain continuously a 
lawful status since entry into the United States, except an applicant 
who is an immediate relative as defined in section 201(b) of the Act or 
a special immigrant as defined in section 101(a)(27) (H), (I), or (J) of 
the Act;
    (7) Any alien admitted as a visitor under the visa waiver provisions 
of Sec. 212.1(e) of this chapter.
    (8) Any alien admitted as a Visa Waiver Pilot Program visitor under 
the provisions of section 217 of the Act and part 217 of this chapter 
other than an immediate relative as defined in section 201(b) of the 
Act.
    (c) Ineligible aliens. The following categories of aliens are 
ineligible to apply for adjustment of status to that of a

[[Page 409]]

lawful permanent resident alien under section 245 of the Act:
    (1) Any nonpreference alien who is seeking or engaging in gainful 
employment in the United States who is not the beneficiary of a valid 
individual or blanket labor certification issued by the Secretary of 
Labor or who is not exempt from certification requirements under 
Sec. 212.8(b) of this chapter;
    (2) Except for an alien who is applying for residence under the 
provisions of section 133 of the Immigration Act of 1990, any alien who 
has or had the status of an exchange visitor under section 101(a)(15)(J) 
of the Act and who is subject to the foreign residence requirement of 
section 212(e) of the Act, unless the alien has complied with the 
foreign residence requirement or has been granted a waiver of that 
requirement, under that section. An alien who has been granted a waiver 
under section 212(e)(iii) of the Act based on a request by a State 
Department of Health (or its equivalent) under Pub. L. 103-416 shall be 
ineligible to apply for adjustment of status under section 245 of the 
Act if the terms and conditions specified in section 214(k) of the Act 
and Sec. 212.7(c)(9) of this chapter have not been met;
    (3) Any alien who has nonimmigrant status under paragraph (15)(A), 
(15)(E), or (15)(G) of section 101(a) of the Act, or has an occupational 
status which would, if the alien were seeking admission to the United 
States, entitle the alien to nonimmigrant status under those paragraphs, 
unless the alien first executes and submits the written waiver required 
by section 247(b) of the Act and part 247 of this chapter; and
    (4) Any alien who claims immediate relative status under section 
201(b) or preference status under sections 203(a) or 203(b) of the Act, 
unless the applicant is the beneficiary of a valid unexpired visa 
petition filed in accordance with part 204 of this chapter.
    (5) Any alien who is already an alien lawfully admitted to the 
United States for permanent residence on a conditional basis pursuant to 
section 216 or 216A of the Act, regardless of any other quota or non-
quota immigrant visa classification for which the alien may otherwise be 
eligible.
    (6) Any alien admitted to the United States as a nonimmigrant fiance 
as defined in section 101(a)(15)(K) of the Act, unless the alien is 
applying for adjustment of status based upon a marriage which was 
contracted within 90 days of entry with the United States citizen who 
filed a petition on behalf of the alien pursuant to Sec. 214.2(k) of 
this chapter.
    (7) A nonimmigrant classified pursuant to section 101(a)(15)(S) of 
the Act, unless the nonimmigrant is applying for adjustment of status 
pursuant to the request of a law enforcement authority, the provisions 
of section 101(a)(15)(S) of the Act, and 8 CFR 245.11.
    (8) Any alien who seeks to adjust status based upon a marriage which 
occurred on or after November 10, 1986, and while the alien was in 
deportation or exclusion proceedings, or judicial proceedings relating 
thereto.
    (i) Commencement of proceedings. The period during which the alien 
is in deportation or exclusion proceedings, or judicial proceedings 
relating thereto commences:
    (A) With the issuance of the Order to Show Case and Notice of 
Hearing (Form I-221) prior to June 20, 1991;
    (B) With the filing of the Order to Show Cause and Notice of Hearing 
(Form I-221) issued on or after June 20, 1991 with the Immigration 
Court; or
    (C) With the issuance of the Notice to Applicant for Admission 
Detained for Hearing before Immigration Judge (Form I-122).
    (ii) Termination of Proceedings. The period during which the alien 
is in deportation or exclusion proceedings, or judicial proceedings 
relating thereto terminates:
    (A) 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;
    (B) When the alien departs from the United States pursuant to an 
order of exclusion;
    (C) When the alien is found not to be excludable or deportable from 
the United States;

[[Page 410]]

    (D) When the Order to Show Cause is canceled pursuant to 8 CFR 
242.7(a);
    (E) When the proceedings are terminated by the immigration judge or 
the Board of Immigration Appeals; or
    (F) When a petition for review or an action for habeas corpus is 
granted by a Federal Court on judicial review.
    (iii) Exemptions. This prohibition shall no longer apply if:
    (A) The alien is found not to be excludable or deportable from the 
United States;
    (B) The Order to Show Cause is canceled pursuant to 8 CFR 242.7(a);
    (C) Proceedings are terminated by the immigration judge or Board of 
Immigration Appeals;
    (D) A petition for review or an action for habeas corpus is granted 
by a Federal Court on judicial review;
    (E) The alien has resided outside the United States for two or more 
years following the marriage; or
    (F) The alien establishes that the marriage is bona fide 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 a petition.
    (iv) Request for exemption. No application or fee is required to 
request the exemption under section 245(e) of the Act. The request must 
be made in writing and submitted with the Form I-485. Application for 
Permanent Residence. The request must state the basis for requesting 
consideration for the exemption and must be supported by documentary 
evidence establishing eligibility for the exemption.
    (v) Evidence to establish eligibility for the bona fide marriage 
exemption. Section 204(g) of the Act provides that certain visa 
petitions based upon marriages entered into during deportation, 
exclusion or related judicial proceedings may be approved only if the 
petitioner provides clear and convincing evidence that the marriage is 
bona fide. Evidence that a visa petition based upon the same marriage 
was approved under the bona fide marriage exemption to section 204(g) of 
the Act will be considered primary evidence of eligibility for the bona 
fide marriage exemption provided in this part. The applicant will not be 
required to submit additional evidence to qualify for the bona fide 
marriage exemption provided in this part, unless the district director 
determines that such additional evidence is needed. In cases where the 
district director notifies the applicant that additional evidence is 
required, the applicant must submit documentary evidence which clearly 
and convincingly establishes 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. Such evidence may include:
    (A) Documentation showing joint ownership of property;
    (B) Lease showing joint tenancy of a common residence;
    (C) Documentation showing commingling of financial resources;
    (D) Birth certificates of children born to the applicant and his or 
her spouse;
    (E) Affidavits of third parties having knowledge of the bona fides 
of the marital relationship, or
    (F) Other documentation establishing that the marriage was not 
entered into in order to evade the immigration laws of the United 
States.
    (vi) Decision. An application for adjustment of status filed during 
the prohibited period shall be denied, unless the applicant establishes 
eligibility for an exemption from the general prohibition.
    (vii) Denials. The denial of an application for adjustment of status 
because the marriage took place during the prohibited period shall be 
without prejudice to the consideration of a new application or a motion 
to reopen a previously denied application, if deportation or exclusion 
proceedings are terminated while the alien is in the United States. The 
denial shall also be without prejudice to the consideration of a new 
application or motion to reopen the adjustment of status application, if 
the applicant presents clear and convincing evidence establishing 
eligibility for the bona fide marriage exemption contained in this part.

[[Page 411]]

    (viii) Appeals. An application for adjustment of status to lawful 
permanent resident which is denied by the district director solely 
because the applicant failed to establish eligibility for the bona fide 
marriage exemption contained in this part may be appealed to the 
Associate Commissioner, Examinations, in accordance with 8 CFR part 103. 
The appeal to the Associate Commissioner, Examinations, shall be the 
single level of appellate review established by statute.
    (d) Definitions--(1) Lawful immigration status. For purposes of 
section 245(c)(2) of the Act, the term ``lawful immigration status'' 
will only describe the immigration status of an individual who is:
    (i) In lawful permanent resident status;
    (ii) An alien admitted to the United States in nonimmigrant status 
as defined in section 101(a)(15) of the Act, whose initial period of 
admission has not expired or whose nonimmigrant status has been extended 
in accordance with part 214 of this chapter;
    (iii) In refugee status under section 207 of the Act, such status 
not having been revoked;
    (iv) In asylee status under section 208 of the Act, such status not 
having been revoked;
    (v) In parole status which has not expired, been revoked or 
terminated; or
    (vi) Eligible for the benefits of Public Law 101-238 (the 
Immigration Nursing Relief Act of 1989) and files an application for 
adjustment of status on or before October 17, 1991.
    (2) No fault of the applicant or for technical reasons. The 
parenthetical phrase other than through no fault of his or her own or 
for technical reasons shall be limited to:
    (i) Inaction of another individual or organization designated by 
regulation to act on behalf of an individual and over whose actions the 
individual has no control, if the inaction is acknowledged by that 
individual or organization (as, for example, where a designated school 
official certified under Sec. 214.2(f) of this chapter or an exchange 
propram sponsor under Sec. 214.2(j) of this chapter did not provide 
required notification to the Service of continuation of status, or did 
not forward a request for continuation of status to the Service); or
    (ii) A technical violation resulting from inaction of the Service 
(as for example, where an applicant establishes that he or she properly 
filed a timely request to maintain status and the Service has not yet 
acted on that request). An individual whose refugee or asylum status has 
expired through passage of time, but whose status has not been revoked, 
will be considered to have gone out of status for a technical reason.
    (iii) A technical violation caused by the physical inability of the 
applicant to request an extension of nonimmigrant stay from the Service 
either in person or by mail (as, for example, an individual who is 
hospitalized with an illness at the time nonimmigrant stay expires). The 
explanation of such a technical violation shall be accompanied by a 
letter explaining the circumstances from the hospital or attending 
physician.
    (iv) A technical violation resulting from the Service's application 
of the maximum five/six year period of stay for certain H-1 nurses only 
if the applicant was subsequently reinstated to H-1 status in accordance 
with the terms of Public Law 101-656 (Immigration Amendments of 1988).
    (3) Effect of departure. The departure and subsequent reentry of an 
individual who was employed without authorization in the United States 
after January 1, 1977 does not erase the bar to adjustment of status in 
section 245(c)(2) of the Act. Similarly, the departure and subsequent 
reentry of an individual who has not maintained a lawful immigration 
status on any previous entry into the United States does not erase the 
bar to adjustment of status in section 245(c)(2) of the Act for any 
application filed on or after November 6, 1986.
    (e) Special categories--(1) Alien medical graduates. Any alien who 
is a medical graduate qualified for special immigrant classification 
under section 101(a)(27)(H) of the Act and is the beneficiary of an 
approved petition as required under section 204(a)(1)(E)(i) of the Act 
is eligible for adjustment of status. An accompanying spouse and 
children also may apply for adjustment

[[Page 412]]

of status under this section. Temporary absences from the United States 
for 30 days or less, during which the applicant was practicing or 
studying medicine, do not interrupt the continuous presence requirement. 
Temporary absences authorized under the Service's advance parole 
procedures will not be considered interruptive of continuous presence 
when the alien applies for adjustment of status.
    (2) Adjustment of certain nurses who were in H-1 nonimmigrant status 
on September 1, 1989 (Pub. L. 101-238)--(i) Eligibility. An alien is 
eligible to apply for adjustment of status without regard to the 
numerical limitations of sections 201 and 202 of the Act if:
    (A) The applicant was admitted to the United States in, or had been 
granted a change of status to, nonimmigrant status under section 
101(a)(15)(H)(i) of the Act on or before September 1, 1989, to perform 
services as a registered nurse (regardless of the date upon which the 
applicant's authorization to remain in the United States expired or will 
expire), and the applicant had not thereafter been granted a change to 
status to any other nonimmigrant classification prior to September 1, 
1989,
    (B) The applicant has been employed in the United States as a 
registered nurse for an aggregate of three years prior to the date of 
application for adjustment of status,
    (C) The applicant's continued employment as a registered nurse meets 
the standards established for certification described in section 
212(a)(5)(A)(i) of the Act,
    (D) The applicant is the beneficiary of:
    (1) A valid, unexpired visa petition filed prior to October 1, 1991, 
which has been approved to grant the applicant preference status under 
section 202(a) (3) or (6) of the Act (as in effect prior to October 1, 
1991), and is deemed by operation of the automatic conversion provisions 
of section 4 of Public Law 102-110 (the Armed Forces Immigration 
Adjustment Act of 1991), to be effective to grant the applicant 
preference status under section 203(b) (2) or (3) of the Act (as in 
effect on and after October 1, 1991) because of his or here occupation 
as a registered nurse, provided the application for adjustment of status 
is approved no later than October 1, 1993, or
    (2) A valid, unexpired visa petition filed on or after October 1, 
1991, which has been approved to grant the applicant preference, status 
under section 203(b) (1), (2), or (3) of this Act (as in effect on and 
after October 1, 1991) because of his or her occupation as a registered 
nurse, and
    (E) The applicant properly files an application for adjustment of 
status under the provisions of section 245 of the Act.
    (ii) Application period. To benefit from the provisions of Public 
Law 101-238, an alien must properly file an application for adjustments 
of status under section 245 of the Act on or before March 20, 1995.
    (iii) Application. An applicant for the benefits of Public Law 101-
238 must file an application for adjustment of status on Form I-485, 
accompanied by the fee and supporting documents described in Sec. 245.2 
of this part. Beneficiaries of Public Law 101-238 must also submit:
    (A) Evidence that the applicant is the beneficiary of:
    (1) A valid, unexpired visa petition filed prior to October 1, 1991, 
which has been approved to grant the applicant preference status under 
section 203(a) (3) or (6) of the Act (as in effect prior to October 1, 
1991) and is deemed by operation of the automatic conversion provisions 
of section 4 of Public Law 101-110 to be effective to grant the 
applicant preference status under section 203(b) (2) or (3) of the Act 
(as in effect on and after October 1, 1991) because of his or her 
occupation as a registered nurse, provided the application for 
adjustment of status is approved no later than October 1, 1993, or
    (2) A valid, unexpired visa petition filed on or after October 1, 
1991, which has been approved to grant the applicant preference status 
under section 203(b) (1), (2), or (3) of the Act (as in effect on and 
after October 1, 1991) because of his or her occupation as a registered 
nurse, and

    (B) A request, made on Form ETA 750 submitted in duplicate, for a 
determination by the district director that the alien is qualified for 
and will engage in the occupation of registered

[[Page 413]]

nurse, as currently listed on Schedule A (20 CFR part 656),
    (C) Evidence showing that the applicant has been employed in the 
United States as a registered nurse for an aggregate of three years 
prior to the date the application for adjustment of status is filed, in 
the form of:
    (1) Letters from employers stating the beginning and ending dates of 
employment as a registered nurse, or
    (2) Other evidence of employment as a registered nurse, such as pay 
receipts supported by affidavits of co-workers, which is accompanied by 
evidence that the nurse has made reasonable efforts to obtain employment 
letter(s), but has been unable to do so because the current or former 
employer refuses to issue the letter or has gone out of business,
    (D) Evidence that the applicant was licensed, either temporarily or 
permanently, as a registered nurse during all periods of qualifying 
employment, and
    (E) Evidence which establishes that the applicant was in the United 
States in H-1 nonimmigrant status for the purpose of performing services 
as a registered nurse on September 1, 1989.
    (iv) Effect of section 245(c)(2). An applicant for the benefits of 
the adjustment of status provisions of Public Law 101-238 must establish 
eligibility for adjustment of status under all provisions of section 245 
unless those provisions have specifically been waived.
    (A) Application for adjustment of status filed on or before October 
17, 1991. An applicant who qualifies for the benefits of Public Law 101-
238, who properly files an application for adjustment of status on or 
before October 17, 1991, may be granted adjustment of status even though 
the alien has engaged or is engaging in unauthorized employment. For 
purposes of adjustment of status, the applicant will be considered to 
have continuously maintained a lawful nonimmigrant status throughout his 
or her stay in the United States as a nonimmigrant and to be in lawful 
nonimmigrant status at the time the application is filed.
    (B) Application for adjustment of status filed after October 17, 
1991. An alien who files an application for adjustment of status after 
October 17, 1991, will not automatically be considered as having 
maintained lawful nonimmigrant status. An alien who files for adjustment 
after this date will be subject to the statutory bar of section 
245(c)(2) of the Act and will be ineligible to apply for adjustment of 
status if he or she has failed to continuously maintain lawful 
nonimmigrant status (other than through no fault of his or her own or 
for technical reasons); if he or she was not in lawful nonimmigrant 
status at the time the application was filed; or if he or she was 
employed without authorization on or after November 29, 1990. 
Unauthorized employment which has been waived as a basis for 
ineligibility for adjustment of status may not be used as the basis of a 
determination that the applicant is ineligible for adjustment of status 
due to failure to continuously maintain lawful nonimmigrant status.
    (C) Motions to reopen. Public Law 101-649 (the Immigration Act of 
1990), which became law on November 29, 1990, retroactively amended 
Public Law 101-238 (the Immigration Nursing Relief Act of 1989). An 
alien whose application for adjustment of status under the provisions of 
Public Law 101-238 was denied by the district director before November 
29, 1990, because of unauthorized employment, failure to continuously 
maintain a lawful nonimmigrant status, or not being in lawful 
immigration status at the time of filing, may file a motion to reopen 
the adjustment application. The motion to reopen must be made in 
accordance with the provisions of 8 CFR 103.5. The district director 
will reopen the application for adjustment of status and enter a new 
decision based upon the provisions of Public Law 101-238, as amended by 
Public Law 101-649. Any other alien whose application for adjustment of 
status was denied may file a motion to reopen or reconsider in 
accordance with normal statutory and regulatory provisions.
    (v) Description of qualifying employment. Qualifying employment as a 
registered nurse may have taken place at any time before the alien files 
the application for adjustment of status. It may have occurred before, 
on, or after the enactment of Public Law 101-238. All qualifying 
employment must have occurred in the United States. The

[[Page 414]]

qualifying employment as a registered nurse may have occurred while the 
alien was in any immigration status, provided that the alien had been 
admitted in or changed to H-1 status for the purpose of performing 
services as a registered nurse on or before September 1, 1989, and had 
not thereafter changed from H-1 status to any other status before 
September 1, 1989. The employment need not have been continuous, 
provided the applicant can establish that he or she engaged in 
qualifying employment for a total of three or more years. Qualifying 
employment may include periods when the applicant possessed a 
provisional, temporary, interim, or other permit or license authorizing 
the applicant to perform services as a registered nurse; provided the 
license or permit was issued or recognized by the State Board of Nursing 
of the state in which the employment was performed. Qualifying 
employment may not include periods when the applicant performed duties 
as a registered nurse in violation of any state law regulating the 
employment of registered nurses in that state.
    (vi) Effect of enactment on spouse or child--(A) Spouse or child 
accompanying principal alien. The accompanying spouse or child of an 
applicant for adjustment of status who benefits from Public Law 101-238, 
may also apply for adjustment of status. All benefits and limitations of 
this section, including those resulting from the implementation of the 
adjustment of status provisions of section 162(f) of Public Law 101-649, 
apply equally to the principal applicant and his or her accompanying 
spouse or child.
    (B) Spouse or child residing outside the United States or ineligible 
for adjustment of status. A spouse or child who is ineligible to apply 
for adjustment of status as an accompanying spouse or child is not 
immediately eligible for issuance of an immigrant visa under the 
provisions of Public Law 101-238. However, the spouse or child may be 
eligible for visa issuance under other provisions of the Act.
    (1) Existing relationship. A spouse or child acquired by the 
principal alien prior to the approval of the principal's adjustment of 
status application may be accorded the derivative priority date and 
preference category of the principal alien. The spouse or child may use 
the priority date and category when it becomes current, in accordance 
with existing limitations outlined in sections 201 and 202 of the Act. 
The priority date is not considered immediately available for these 
family members under Public Law 101-238.
    (2) Relationship entered into after adjustment of status is 
approved. An alien who acquires lawful permanent residence under the 
provisions of Public Law 101-238 may file a petition under section 204 
of the Act for an alien spouse, unmarried son or unmarried daughter in 
accordance with existing laws and regulations. The priority date is not 
considered immediately available for these family members under Public 
Law 101-238.
    (3) Special immigrant juveniles. Any alien qualified for special 
immigrant classification under section 101(a)(27)(J) of the Act shall be 
deemed, for the purpose of section 245(a) of the Act, to have been 
paroled into the United States, regardless of the alien's actual method 
of entry into the United States. Neither the provisions of section 
245(c)(2) nor the exclusion provisions of sections 212(a)(4), (5)(A), or 
(7)(A) of the Act shall apply to a qualified special immigrant under 
section 101(a)(27)(J) of the Act. The exclusion provisions of sections 
212(a)(2)(A), (2)(B), (2)(C) (except for so much of such paragraph as 
related to a single offense of simple possession of 30 grams or less of 
marijuana), (3)(A), (3)(B), (3)(C), or (3)(E) of the Act may not be 
waived. Any other exclusion provision may be waived on an individual 
basis for humanitarian purposes, family unity, or when it is otherwise 
in the public interest; however, the relationship between the alien and 
the alien's natural parents or prior adoptive parents shall not be 
considered a factor in a discretionary waiver determination.
    (f) Concurrent applications to overcome exclusionary grounds. Except 
as provided in parts 235 and 249 of this chapter, an application under 
this part shall be the sole method of requesting the exercise of 
discretion under section 212 (g), (h), (i), and (k) of the Act, as they 
relate to the excludability of an

[[Page 415]]

alien in the United States. Any applicant for adjustment under this part 
may also apply for the benefits of section 212(c) of the Act, for 
permission to reapply after deportation or removal under section 
212(a)(17) of the Act, and for the benefits of section 212(a)(28)(I)(ii) 
of the Act. No fee is required for filing an application to overcome the 
exclusionary grounds of the Act if filed concurrently with an 
application for adjustment of status under the provisions of the Act of 
October 28, 1977, and of this part.
    (g) Availability of immigrant visas under section 245 and priority 
dates--(1) Availability of immigrant visas under section 245. An alien 
is ineligible for the benefits of section 245 of the Act unless an 
immigrant visa is immediately available to him or her at the time the 
application is filed. If the applicant is a preference alien, the 
current Department of State Bureau of Consular Affairs Visa Bulletin 
will be consulted to determine whether an immigrant visa is immediately 
available. An immigrant visa is considered available for accepting and 
processing the application Form I-485 if the preference category 
applicant has a priority date on the waiting list which is earlier than 
the date shown in the Bulletin (or the Bulletin shows that numbers for 
visa applicants in his or her category are current), and (if the 
applicant is seeking status pursuant to section 203(b) of the Act) the 
applicant presents evidence that the appropriate petition filed on his 
or her behalf has been approved. An immigrant visa is also considered 
immediately available if the applicant establishes eligibility for the 
benefits of Public Law 101-238. Information concerning the immediate 
availability of an immigrant visa may be obtained at any Service office.
    (2) Priority dates. The priority date of an applicant who is seeking 
the allotment of an immigrant visa number under one of the preference 
classes specified in section 203(a) or 203(b) of the Act by virtue of a 
valid visa petition approved in his or her behalf shall be fixed by the 
date on which such approved petition was filed.
    (h) Conditional basis of status. Whenever an alien spouse (as 
defined in section 216(g)(1) of the Act), an alien son or daughter (as 
defined in section 216(g)(2) of the Act), an alien entrepreneur (as 
defined in section 216A(f)(1) of the Act), or an alien spouse or child 
(as defined in section 216A(f)(2) of the Act) is granted adjustment of 
status to that of lawful permanent residence, the alien shall be 
considered to have obtained such status on a conditional basis subject 
to the provisions of section 216 or 216A of the Act, as appropriate.

(Title I of Pub. L. 95-145 enacted Oct. 28, 1977 (91 Stat. 1223), sec. 
103 of the Immigration and Nationality Act (8 U.S.C. 1103). Interpret or 
apply secs. 101, 212, 242 and 245 (8 U.S.C. 1101, 1182, 1252 and 1255))

[30 FR 14778, Nov. 30, 1965]

    Editorial Note: For Federal Register citations affecting Sec. 245.1, 
see the List of Sections Affected in the Finding Aids section of this 
volume.



Sec. 245.2  Application.

    (a) General--(1) Jurisdiction. An alien who believes he meets the 
eligibility requirements of section 245 of the Act or section 1 of the 
Act of November 2, 1966, and Sec. 245.1 of this chapter shall apply to 
the director having jurisdiction over his place of residence unless 
otherwise instructed in 8 CFR part 245. After an alien has been served 
with an order to show cause or warrant of arrest, his application for 
adjustment of status under section 245 of the Act or section 1 of the 
Act of November 2, 1966 shall be made and considered only in proceedings 
under part 242 of this chapter. An adjustment application by an alien 
paroled under section 212(d)(5) of the Act, which has been denied by the 
director, may be renewed in exclusion proceedings under section 236 of 
the Act only under the following two conditions: First, the denied 
application must have been properly filed subsequent to the applicant's 
earlier inspection and admission to the United States; second, the 
applicant's later absence from and return to the United States must have 
been under the terms of an advance parole authorization on Form I-512 
granted to permit the applicant's absence and return to pursue the 
previously filed adjustment application.
    (2) Proper filing of application--(i) Under section 245. Before an 
application

[[Page 416]]

for adjustment of status under section 245 of the Act may be considered 
properly filed, a visa must be immediately available. If a visa would be 
immediately available upon approval of a visa petition, the application 
will not be considered properly filed unless such petition has first 
been approved. If an immediate relative petition filed for 
classification under section 201(b)(2)(A)(i) of the Act or a preference 
petition filed for classification under section 203(a) of the Act is 
submitted simultaneously with the adjustment application, the adjustment 
application shall be retained for processing only if approval of the 
visa petition would make a visa immediately available at the time of 
filing the adjustment application. If the visa petition is subsequently 
approved, the date of filing the adjustment application shall be deemed 
to be the date on which the accompanying petition was filed.
    (ii) Under the Act of November 2, 1966. An application for the 
benefits of section 1 of the Act of November 2, 1966 is not properly 
filed unless the applicant was inspected and admitted or paroled into 
the United States subsequent to January 1, 1959. An applicant is 
ineligible for the benefits of the Act of November 2, 1966 unless he or 
she has been physically present in the United States for one year 
(amended from two years by the Refugee Act of 1980).
    (3) Submission of documents--(i) General. A separate application 
shall be filed by each applicant for benefits under section 245, or the 
Act of November 2, 1966. Each application shall be accompanied by an 
executed Form G-325A, if the applicant has reached his or her 14th 
birthday. Form G-325A shall be considered part of the application. An 
application under this part shall be accompanied by the document 
specified in the instructions which are attached to the application.
    (ii) Under section 245. An application for adjustment of status is 
submitted on Form I-485, Application for Permanent Residence. The 
application must be accompanied by the appropriate fee as explained in 
the instructions to the application.
    (iii) Under section 245(i). An alien who seeks adjustment of status 
under the provisions of section 245(i) of the Act must file Form I-485, 
with the required fee. The alien must also file Supplement A to Form I-
485, with any required additional sum.
    (iv) Under the Act of November 2, 1966. An application for 
adjustment of status is made on Form I-485A. The application must be 
accompanied by Form I-643, Health and Human Services Statistical Data 
Sheet. The application must include a clearance from the local police 
jurisdiction for any area in the United States when the applicant has 
lived for six months or more since his or her 14th birthday.
    (4) Effect of departure--(i) General. The effect of a departure from 
the United States is dependent upon the law under which the applicant is 
applying for adjustment.
    (ii) Under section 245. The departure from the United States of an 
applicant who is under deportation proceedings shall be deemed an 
abandonment of the application constituting grounds for termination of 
the deportation proceeding by reason of the departure. The departure of 
an applicant who is not under deportation proceedings shall be deemed an 
abandonment of his or her application constituting grounds for 
termination, unless the applicant was previously granted advance parole 
by the Service for such absence, and was inspected upon returning to the 
United States. If the application of an individual granted advance 
parole is subsequently denied, the applicant will be subject to the 
exclusion provisions of section 236 of the Act. No alien granted advance 
parole and inspected upon return shall be entitled to a deportation 
hearing.
    (iii) Under the Act of November 2, 1966. If an applicant who was 
admitted or paroled subsequent to January 1, 1959, later departs from 
the United States temporarily with no intention of abandoning his or her 
residence, and is readmitted or paroled upon return, the temporary 
absence shall be disregarded for purposes of the applicant's ``last 
arrival'' into the United States in regard to cases filed under section 
1 of the Act of November 2, 1966.
    (5) Decision--(i) General. The applicant shall be notified of the 
decision of the director and, if the application is denied, the reasons 
for the denial.

[[Page 417]]

    (ii) Under section 245. If the application is approved, the 
applicant's permanent residence shall be recorded as of the date of the 
order approving the adjustment of status. An application for adjustment 
of status as a preference alien shall not be approved until an immigrant 
visa number has been allocated by the Department of State, except when 
the applicant has established eligibility for the benefits of Public Law 
101-238. No appeal lies from the denial of an application by the 
director, but the applicant retains the right to renew his or her 
application in proceedings under part 242 of this chapter, or under part 
236 if the applicant is a parolee and meets the two conditions outlined 
in Sec. 245.2(a)(1). At the time of renewal of the application, an 
applicant does not need to meet the statutory requirement of section 
245(c) of the Act, or the regulatory requirements of Sec. 245.1(g), if 
in fact those requirements were met at the time the renewed application 
was initially filed with the director.
    (iii) Under the Act of November 2, 1966. If the application is 
approved, the applicant's permanent residence shall be recorded in 
accordance with the provisions of section 1. No appeal lies from the 
denial of an application by the director, but the applicant retains the 
right to renew his or her application in proceedings under part 242 of 
this chapter, or under part 236, if the applicant is a parolee and meets 
the two conditions outlined in paragraph 1 of Sec. 245.2(a)(1).
    (b) Application under section 2 of the Act of November 2, 1966. An 
application by a native or citizen of Cuba or by his spouse or child 
residing in the United States with him, who was lawfully admitted to the 
United States for permanent residence prior to November 2, 1966, and who 
desires such admission to be recorded as of an earlier date pursuant to 
section 2 of the Act of November 2, 1966, shall be made on Form I-485A. 
The application shall be accompanied by the Alien Registration Receipt 
Card, Form I-151 or I-551, issued to the applicant in connection with 
his lawful admission for permanent residence, and shall be submitted to 
the director having jurisdiction over the applicant's place of residence 
in the United States. The decision on the application shall be made by 
the director. No appeal shall lie from his decision. If the application 
is approved, the applicant will be furnished with a replacement of his 
Form I-151 or I-551 bearing the new date as of which the lawful 
admission for permanent residence has been recorded.
    (c) Application under section 214(d). An application for permanent 
resident status pursuant to section 214(d) of the Act shall be filed on 
Form I-485 with the director having jurisdiction over the applicant's 
place of residence. A separate application shall be filed by each 
applicant. If the application is approved, the director shall record the 
lawful admission of the applicant as of the date of approval. The fee 
previously paid for filing the application shall be considered payment 
of the required visa fees, as of the date of the approval of the 
application. The applicant shall be notified of the decision and, if the 
application is denied, of the reasons therefor. No appeal shall lie from 
the denial of an application by the director but such denial shall be 
without prejudice to the alien's right to renew his application in 
proceedings under part 242 of this chapter.

[30 FR 14778, Nov. 30, 1965]

    Editorial Note: For Federal Register citations affecting Sec. 245.2, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



Sec. 245.3  Adjustment of status under section 13 of the Act of September 11, 1957, as amended.

    Any application for benefits under section 13 of the Act of 
September 11, 1957, as amended, must be filed on Form I-485 with the 
director having jurisdiction over the applicant's place of residence. 
The benefits under section 13 are limited to aliens who were admitted 
into the United States under section 101, paragraphs (a)(15)(A)(i), 
(a)(15)(A)(ii), (a)(15)(G)(i), or (a)(15)(G)(ii) of the Immigration and 
Nationality Act who performed diplomatic or semi-diplomatic duties and 
to their immediate families, and who establish that there are compelling 
reasons why the applicant or the member of the applicant's immediate 
family is

[[Page 418]]

unable to return to the country represented by the government which 
accredited the applicant and that adjustment of the applicant's status 
to that of an alien lawfully admitted for permanent residence would be 
in the national interest. Aliens whose duties were of a custodial, 
clerical, or menial nature, and members of their immediate families, are 
not eligible for benefits under section 13. In view of the annual 
limitation of 50 on the number of aliens whose status may be adjusted 
under section 13, any alien who is prima facie eligible for adjustment 
of status to that of a lawful permanent resident under another provision 
of law shall be advised to apply for adjustment pursuant to such other 
provision of law. An applicant for the benefits of section 13 shall not 
be subject to the labor certification requirement of section 212(a)(14) 
of the Immigration and Nationality Act. The applicant shall be notified 
of the decision and, if the application is denied, of the reasons for 
the denial and of the right to appeal under the provisions of part 103 
of this chapter. Any applications pending with the Service before 
December 29, 1981 must be resubmitted to comply with the requirements of 
this section.

(Secs. 103, 245, of the Immigration and Nationality Act, as amended; 71 
Stat. 642, as amended, sec. 17, Pub. L. 97-116, 95 Stat. 1619 (8 U.S.C. 
1103, 1255, 1255b))

[47 FR 44238, Oct. 7, 1982, as amended at 59 FR 33905, July 1, 1994]



Sec. 245.4  Documentary requirements.

    The provisions of part 211 of this chapter relating to the 
documentary requirements for immigrants shall not apply to an applicant 
under this part.

(Secs. 103, 214, 245 Immigration and Nationality Act, as amended; (8 
U.S.C. 1103, 1184, 8 U.S.C. 1255, Sec. 2, 96 Stat. 1157, 8 U.S.C. 1255 
note))

[30 FR 14779, Nov. 30, 1965. Redesignated at 48 FR 4770, Feb. 3, 1983, 
and further redesignated at 52 FR 6322, Mar. 3, 1982, and further 
redesignated at 56 FR 49481, Oct. 2, 1991]



Sec. 245.5  Medical examination.

    Pursuant to section 234 of the Act, an applicant for adjustment of 
status shall be required to have a medical examination by a designated 
civil surgeon, whose report setting forth the findings of the mental and 
physical condition of the applicant shall be incorporated into the 
record. A medical examination shall not be required of an applicant for 
adjustment of status who entered the United States as a non-immigrant 
fiance or fiancee of a United States citizen as defined in section 
101(a)(15)(K) of the Act pursuant to Sec. 214.2(k) of this chapter if 
the applicant was medically examined prior to, and as a condition of, 
the issuance of the nonimmigrant visa; provided that the medical 
examination must have occurred not more than one year prior to the date 
of application for adjustment of status. Any applicant certified under 
paragraphs (1)(A)(ii) or (1)(A)(iii) 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.

[56 FR 49841, Oct. 2, 1991]



Sec. 245.6  Interview.

    Each applicant for adjustment of status under this part shall be 
interviewed by an immigration officer. This interview may be waived in 
the case of a child under the age of 14; when the applicant is clearly 
ineligible under section 245(c) of the Act or Sec. 245.1 of this 
chapter; or when it is determined by the Service that an interview is 
unnecessary.

[57 FR 49375, Nov. 2, 1992]



Sec. 245.7  Adjustment of status of certain Soviet and Indochinese parolees under the Foreign Operations Appropriations Act for Fiscal Year 1990 (Pub. L. 101-
          167).

    (a) Application. Each person applying for benefits under section 
599E of Public Law 101-167 must file Form I-485 (Application for Lawful 
Permanent Residence) with the director having jurisdiction over the 
applicant's place of residence and must pay the appropriate fee. Each 
application shall be accompanied by Form I-643 (Health and Human 
Services Statistical Data Sheet), the results of a medical examination 
given in accordance with Sec. 245.8 of this part, and, if the applicant 
has reached his or her 14th birthday but is not over 79 years of age, 
Form G-325A

[[Page 419]]

and an applicant fingerprint card (Form FD-258).
    (b) Aliens eligible to apply for adjustment. The benefits of this 
section shall only apply to an alien who:
    (1) Was a national of the Soviet Union, Vietnam, Laos, or Cambodia, 
and
    (2) Was inspected and granted parole into the United States during 
the period beginning on August 15, 1988, and ending on September 30, 
1990, after being denied refugee status.
    (c) Eligibility. Benefits under Section 599E of Public Law 101-167 
are limited to any alien described in paragraph (b) of this section who:
    (1) Applies for such adjustment,
    (2) Has been physically present in the United States for at least 
one year and is physically present in the United States on the date the 
application for such adjustment is filed,
    (3) Is admissible to the United States as an immigrant, except as 
provided in paragraph (d) of this section, and
    (4) Pays a fee for the processing of such application.
    (d) Waiver of certain grounds for inadmissibility. The provisions of 
paragraphs (14), (15), (20), (21), (25), (28) (other than subparagraph 
(F), and (32) of section 212(a) of the Act shall not apply to adjustment 
under this section. The Attorney General may waive any other provision 
of section 212(a) (other than paragraph (23)(B), (27), (29), or (33)) 
with respect to such an adjustment for humanitarian purposes, to assure 
family unity, or when it is otherwise in the public interest.
    (e) Date of approval. Upon approval of such an application for 
adjustment of status, the Attorney General shall create a record of the 
alien's admission as a lawful permanent resident as of the date of the 
alien's inspection and parole described in paragraph (b)(2) of this 
section.
    (f) No offset in number of visas available. When an alien is granted 
the status of having been lawfully admitted for permanent residence 
under this section, the Secretary of State shall not be required to 
reduce the number of immigrant visas authorized to be issued under the 
Immigration and Nationality Act.

[55 FR 24860, July 19, 1990. Redesingated at 56 FR 49841, Oct. 2, 1991, 
as amended at 59 FR 33905, July 1, 1994]



Sec. 245.8  Adjustment of status as a special immigrant under section 101(a)(27)(K) of the Act.

    (a) Application. Each person applying for adjustment of status as a 
special immigrant under section 101(a)(27)(K) of the Act must file a 
Form I-485, Application to Register Permanent Residence or Adjust 
Status, with the director having jurisdiction over the applicant's place 
of residence. Benefits under this section are limited to aliens who have 
served honorably (or are enlisted to serve) in the Armed Forces of the 
United States for at least 12 years, and their spouses and children. For 
purposes of this section, special immigrants described in section 
101(a)(27)(K) of the Act and his or her spouse and children shall be 
deemed to have been paroled into the United States pursuant to section 
245(g) of the Act. Each applicant must file a separate application with 
the appropriate fee.
    (b) Eligibility. The benefits of this section shall apply only to an 
alien described in section 101(a)(27)(K) of the Act who applies for such 
adjustment. The accompanying spouse or child of an applicant for 
adjustment of status who benefits from Public Law 102-110 may also apply 
for adjustment of status. The provisions of section 245(c) of the Act do 
not apply to the principal Armed Forces special immigrant or to his or 
her spouse or child.
    (c) Interview of the applicant. Upon completion of the adjustment of 
status interview for a special immigrant under section 101(a)(27)(K) of 
the Act, the director shall make a prima facie determination regarding 
eligibility for naturalization benefits if the applicant is to be 
granted status as an alien lawfully admitted for permanent residence. If 
the director determines that the applicant is immediately eligible for 
naturalization under section 328 or 329 of the Act, the director shall 
advise the applicant that he or she is eligible to apply for 
naturalization on Form N-400, Application to File Petition for 
Naturalization. If the applicant wishes

[[Page 420]]

to apply for naturalization, the director shall instruct the applicant 
concerning the requirements for naturalization and provide him or her 
with the necessary forms.
    (d) Spouse or child outside the United States. When a spouse or 
child of an alien granted special immigrant status under section 
101(a)(27)(K) of the Act is outside the United States, the principal 
alien may file Form I-824, Application for Action on an Approved 
Application or Petition, with the office which approved the original 
application.
    (e) Deportation provisions of section 241. If the Service is made 
aware by notification from the appropriate executive department or by 
any other means that a section 101(a)(27)(K) special immigrant who has 
already been granted permanent residence fails to complete his or her 
total active duty service obligation for reasons other than an honorable 
discharge, the alien may become subject to the deportation provisions of 
section 241 of the Act, provided the alien is in one or more of the 
classes of deportable aliens specified in section 241 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.
    (f) Rescission proceedings under section 246 of the Act. If the 
Service determines that a military special immigrant under section 
101(a)(27)(K) of the Act was not in fact eligible for adjustment of 
status, the Service may pursue rescission proceedings under section 246 
of the Act.

[57 FR 33862, July 31, 1992, as amended at 58 FR 50836, Sept. 29, 1993]



Sec. 245.9  Adjustment of Status of Certain Nationals of the People's Republic of China under Public Law 102-404.

    (a) Principal applicant status. All nationals of the People's 
Republic of China who qualify under the provisions of paragraph (b) of 
this section may apply for adjustment of status as principals in their 
own right, regardless of age or marital status. Nationals of other 
countries who meet the requirements of paragraphs (b) and (c) of this 
section may apply for adjustment of status as qualified family members.
    (b) Aliens eligible to apply for adjustment. An alien is eligible to 
apply for adjustment of status under the provisions of Public Law 102-
404, if the alien:
    (1) Is a national of the People's Republic of China or a qualified 
family member of an eligible national of the People's Republic of China;
    (2) Was in the United States at some time between June 5, 1989, and 
April 11, 1990, inclusive, or would have been in the United States 
during this time period except for a brief, casual, and innocent 
departure from this country;
    (3) Has resided continuously in the United States since April 11, 
1990, except for brief, casual, and innocent absences;
    (4) Was not physically present in the People's Republic of China for 
more than a cumulative total of 90 days between April 11, 1990, and 
October 9, 1992;
    (5) Is admissible to the United States as an immigrant, unless the 
basis for excludability has been waived;
    (6) Establishes eligibility for adjustment of status under all 
provisions of section 245 of the Act, unless the basis for ineligibility 
has been waived; and
    (7) Properly files an application for adjustment of status under 
section 245 of the Act.
    (c) Qualified family member who is not a national of the People's 
Republic of China. A qualified family member within the meaning of this 
section includes the spouse, child, son, or daughter of a national of 
the People's Republic of China who is eligible for benefits under the 
provisions of paragraph (b) of this section, provided that:
    (1) He or she qualified as the spouse or child (as defined in 
section 101(b)(1) of the Act) of an eligible national of the People's 
Republic of China as of April 11, 1990; and
    (2) The qualifying relationship continues to exist, or the family 
member is a son or daughter of an eligible national of the People's 
Republic of China and the family member was unmarried and under the age 
of 21 on April 11, 1990.

[[Page 421]]

    (d) Waivers of excludability under section 212(a). An applicant for 
the benefits of the adjustment of status provisions of Public Law 102-
404 automatically exempted from compliance with the requirements of 
section 212(a)(5) and 212(a)(7)(A) of the Act. A Public Law 102-404 
applicant may also apply for one or more waivers of excludability under 
section 212(a) of the Act, except for excludability under section 
212(a)(2)(C), 212(a)(3)(A), 212(a)(3)(B), 212(a)(3)(C) or 212(a)(3)(E) 
of the Act.
    (e) Waiver of the two-year foreign residence requirement of section 
212(e). An applicant for the benefits of the adjustment of status 
provisions of Public Law 102-404 is automatically exempted from 
compliance with the two-year foreign residence requirement of section 
212(e) of the Act.
    (f) Waiver of section 245(c) of the Act. Public Law 102-404 provides 
that the provisions of section 245(c) of the Act shall not apply to 
persons applying for the adjustment of status benefits of Public Law 
102-404.
    (g) Application. Each applicant must file an application for 
adjustment of status on Form I-485, Application to Register Permanent 
Residence or Adjust Status, accompanied by the prescribed fee, and the 
supporting documents specified on the instructions to Form I-485 and 
described in Sec. 245.2. Secondary evidence may be submitted if the 
applicant is unable to obtain the required primary evidence. Applicants 
who are nationals of the People's Republic of China should complete Part 
2 of Form I-485 by checking box ``h--other'' and writing ``CSPA--
Principal'' next to that block. Applicants who are not nationals of the 
People's Republic of China should complete Part 2 of Form I-485 by 
checking box ``h--other'' and writing ``CSPA--Qualified Family Member'' 
next to that block. Each applicant for the benefits of Public Law 102-
404 must also submit evidence of eligibility for the adjustment of 
status benefits of Public Law 102-404:
    (1) A photocopy of all pages of the applicant's most recent passport 
or an explanation of why the applicant does not have a passport;
    (2) An attachment on a plain piece of paper showing:
    (i) The date of the applicant's last arrival in the United States 
before or on April 11, 1990;
    (ii) The date of each departure the applicant made from the United 
States since that arrival (if the applicant did not depart the United 
States after the initial date of arrival, the applicant should write ``I 
was in the United States on April 11, 1990, and I have not departed the 
United States since April 11, 1990'');
    (iii) The reason for each departure; and
    (iv) The date of each return to the United States.
    (3) An attachment on a plain piece of paper showing:
    (i) The date the applicant arrived in the People's Republic of 
China; and
    (ii) The date the applicant left the People's Republic of China for 
each trip the applicant made to the People's Republic of China between 
April 11, 1990, and October 9, 1992 (if the applicant did not travel to 
the People's Republic of China, the applicant should write ``I was not 
in the People's Republic of China between April 11, 1990, and October 9, 
1992'');
    (4) A copy of evidence showing that the applicant was found eligible 
for benefits under E.O. 12711, such as deferred enforced departure 
(DED), employment authorization, and/or waiver of the two-year foreign 
residence requirement, if the applicant previously applied for benefits 
under E.O. 12711; and
    (5) Primary or secondary evidence of a qualifying family 
relationship to an eligible national of the People's Republic of China, 
such as a birth or marriage certificate, if the applicant is a qualified 
family member who is not a national of the People's Republic of China.
    (h) Secondary evidence. If any required primary evidence is 
unavailable, church or school records, or other secondary evidence 
pertinent to the facts in issue, may be submitted. If such documents are 
unavailable, affidavits may be submitted. The applicant may submit as 
many types of secondary evidence as necessary to establish the birth, 
marriage, or other event. Documentary evidence establishing that primary 
evidence is unavailable need

[[Page 422]]

not accompany secondary evidence of birth or marriage in the People's 
Republic of China.
    (i) Filing. The application period begins on July 1, 1993. To 
benefit from the provisions of Public Law 102-404 (the Chinese Student 
Protection Act of 1992), an alien must properly file an application for 
adjustment of status under section 245 of the Act on or before June 30, 
1994. All applications for the benefits of Public Law 102-404 must be 
submitted by mail to the Service Center having jurisdiction over the 
applicant's place of residence in the United States. Pursuant to the 
deactivation clause of Public Law 102-404, if the President of the 
United States determines and certifies to Congress before July 1, 1993, 
that conditions in the People's Republic of China permit persons covered 
by Public Law 102-404 to safely return to the People's Republic of 
China, no applications for lawful permanent resident status under Public 
Law 102-404 will be processed or granted.
    (j) Immigrant classification and assignment of priority date. Public 
Law 102-404 provides eligible applicants with automatic classifications 
as immigrants under section 203(b)(3)(A)(i) of the Act. No immigrant 
visa petition is required and applicants need not meet the usual 
requirements for classification as skilled workers. The applicant's 
priority date shall be the date his or her application for adjustment of 
status under Public Law 102-404 is properly filed with the Service.
    (k) Effect of immigrant visa number limitations. Eligible Public Law 
102-404 applicants are exempt from the per-country immigrant visa number 
limitations of section 202(a)(2) of the Act. Eligible Public Law 102-404 
applicants may file an application for adjustment of status under Public 
Law 102-404 without regard to immigrant visa number limitations of 
sections 202(a)(2) and 203(b)(3)(A)(i) of the Act. However, the 
adjustment of status application may not be approved and adjustment of 
status to that of a lawful permanent resident of the United States may 
not be granted until a visa number becomes available for the applicant 
under the worldwide allocation of immigrant visa numbers for employment-
based aliens under section 203(b)(3)(A)(i) of the Act. The applicant may 
request initial or continued employment authorization during this period 
by filing Form I-765, Application for Employment Authorization. If the 
applicant needs to travel outside the United States during this period, 
he or she may file a request for advance parole on Form I-131, 
Application for Travel Document.
    (l) Decision. In the case of an application for adjustment of status 
filed pursuant to the provisions of Public Law 102-404, the authority 
conferred upon district directors in 8 CFR part 245 to accept and 
adjudicate an application for adjustment of status under section 245 of 
the Act is delegated exclusively to the service center director having 
jurisdiction over the applicant's place of residence in the United 
States. If the service center director transfers the application to the 
district director, authority to adjudicate an application for adjustment 
of status filed pursuant to the provisions of Public Law 102-404 lies 
with the district director having jurisdiction over the applicant's 
place of residence.
    (m) Effect of enactment on family members other than qualified 
family members. The adjustment of status benefits and waivers provided 
by Public Law 102-404 do not apply to a spouse or child who is not a 
qualified family member as defined in paragraph (c) of this section. 
However, a spouse or child whose relationship to the principal alien was 
established prior to the approval of the principal's adjustment of 
status application may be accorded the derivative priority date and 
preference category of the principal alien, in accordance with the 
provisions of section 203(d) of the Act. The spouse or child may use the 
priority date and category when it becomes current, in accordance with 
the limitations set forth in sections 201 and 202 of the Act. Persons 
who are unable to maintain lawful nonimmigrant status in the United 
States and are not immediately eligible to apply for adjustment of 
status may request voluntary departure pursuant to 8 CFR part 242. 
Persons who have been granted voluntary departure may request employment 
authorization by filing

[[Page 423]]

Form I-765, Application for Employment Authorization.

[58 FR 35838, July 1, 1993]



Sec. 245.10  Adjustment of status upon payment of additional sum under Public Law 103-317.

    (a) Eligibility. Any alien who is included in the categories of 
restricted aliens under Sec. 245.1(b) may apply for adjustment of status 
under section 245 of the Act if the alien:
    (1) Is physically present in the United States;
    (2) Is eligible for immigrant classification and has an immigrant 
visa number immediately available at the time of filing for adjustment 
of status;
    (3) Is not excludable from the United States under any provision of 
section 212 of the Act, or all grounds for excludability have been 
waived;
    (4) Properly files Form I-485, Application to Register Permanent 
Residence or Adjust Status on or after October 1, 1994, with the fee 
required for that application;
    (5) Properly files Supplement A to Form I-485 on or after October 1, 
1994;
    (6) Pay an additional sum of five times the fee required for filing 
Form I-485, unless payment of the additional sum is waived under section 
245(i) of the Act; and
    (7) Will adjust status under section 245 of the Act to that of a 
lawful permanent resident of the United States on or after October 1, 
1994, and before October 1, 1997.
    (b) Payment of additional sum. An applicant filing under the 
provisions of section 245(i) of the Act must pay the standard adjustment 
of status filing fee, as shown on Form I-485 and contained in 
Sec. 103.7(b)(1) of this chapter. The applicant must also pay an 
additional sum of five times the standard filing fee, unless at the time 
the application for adjustment of status is filed, the alien is:
    (1) Unmarried and less than 17 years of age;
    (2) The spouse of a legalized alien, qualifies for and has properly 
filed Form I-817, Application for Voluntary Departure under the Family 
Unity Program, and submits a copy of his or her receipt or approval 
notice for filing Form I-817; or
    (3) The child of a legalized alien, is unmarried and less than 21 
years of age, qualifies for and has properly filed Form I-817, and 
submits a copy of his or her receipt or approval notice for filing Form 
I-817.
    (c) Application period. An application for the adjustment of status 
benefits of section 245(i) of the Act may not be filed before October 1, 
1994. An application for the adjustment of status benefits of section 
245(i) of the Act cannot be granted on or after October 1, 1997. A 
prospective applicant who is seeking the benefits of section 245(i) of 
the Act must file the application sufficiently in advance of October 1, 
1997, to ensure that it may be completed before that date.
    (d) Adjustment application filed on or after October 1, 1994, 
without Supplement A to Form I-485. An adjustment of status applicant 
will be allowed the opportunity to amend an adjustment of status 
application filed on or after October 1, 1994, to request consideration 
under the provisions of section 245(i) of the Act, if it appears that 
the alien is not otherwise ineligible for adjustment of status. The 
applicant will be notified in writing of the intent to deny the 
adjustment of status application unless Supplement A to Form I-485 and 
any required additional sum is filed within thirty days of the date of 
the notice.
    (e) Applications for Adjustment of Status filed before October 1, 
1994. The provisions of section 245(i) of the Act shall not apply to an 
application for adjustment of status that was filed before October 1, 
1994. The provisions of section 245(i) of the Act shall also not apply 
to a motion to reopen or reconsider an application for adjustment of 
status if the application for adjustment of status was filed before 
October 1, 1994. If otherwise eligible for adjustment of status under 
the provisions of section 245(i) of the Act, the alien may file a new 
application for adjustment of status, accompanied by the required filing 
fee, Supplement A to Form I-485, and any additional sum required by 
section 245(i) of the Act.

[59 FR 51095, Oct. 7, 1994; 59 FR 53020, Oct. 20, 1994]

[[Page 424]]



Sec. 245.11  Adjustment of aliens in S nonimmigrant classification.

    (a) Eligibility. An application on Form I-854, requesting that an 
alien witness or informant in S nonimmigrant classification be allowed 
to adjust status to that of lawful permanent resident, may only be filed 
by the federal or state law enforcement authority (``LEA'') (which shall 
include a federal or state court or a United States Attorney's Office) 
that originally requested S classification for the alien. The completed 
application shall be filed with the Assistant Attorney General, Criminal 
Division, Department of Justice, who will forward only properly 
certified applications to the Commissioner, Immigration and 
Naturalization Service, for approval. Upon receipt of an approved Form 
I-854 allowing the S nonimmigrant to adjust status to that of lawful 
permanent resident, the alien may proceed to file with that Form, Form 
I-485, Application to Register Permanent Residence or Adjust Status, 
pursuant to the following process.
    (1) Request to allow S nonimmigrant to apply for adjustment of 
status to that of lawful permanent resident. The LEA that requested S 
nonimmigrant classification for an S nonimmigrant witness or informant 
pursuant to section 101(a)(15)(S) of the Act may request that the 
principal S nonimmigrant be allowed to apply for adjustment of status by 
filing Form I-854 with the Assistant Attorney General, Criminal 
Division, in accordance with the instructions on, or attached to, that 
form and certifying that the alien has fulfilled the terms of his or her 
admission and classification. The same Form I-854 may be used by the LEA 
to request that the principals nonimmigrant's spouse, married and 
unmarried sons and daughters, regardless of age, and parents who are in 
derivative S nonimmigrant classification and who are qualified family 
members as described in paragraph (b) of this section similarly be 
allowed to apply for adjustment of status pursuant to section 
101(a)(15)(S) of the Act.
    (2) Certification. Upon receipt of an LEA's request for the 
adjustment of an alien in S nonimmigrant classification on Form I-854, 
the Assistant Attorney General, Criminal Division, shall review the 
information and determine whether to certify the request to the 
Commissioner in accordance with the instructions on the form.
    (3) Submission of requests for adjustment of status to the 
Commissioner. No application by an LEA on Form I-854 requesting the 
adjustment to lawful permanent resident status of an S nonimmigrant 
shall be forwarded to the Commissioner unless first certified by the 
Assistant Attorney General, Criminal Division.
    (4) Decision on request to allow adjustment of S nonimmigrant. The 
Commissioner shall make the final decision on a request to allow an S 
nonimmigrant to apply for adjustment of status to lawful permanent 
resident.
    (i) In the event the Commissioner decides to deny an application on 
Form I-854 to allow an S nonimmigrant to apply for adjustment of status, 
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.
    (ii) Upon approval of the request on Form I-854, the Commissioner 
shall forward a copy of the approved form to the Assistant Attorney 
General and the S nonimmigrant, notifying them that the S nonimmigrant 
may proceed to file Form I-485 and request adjustment of status to that 
of lawful permanent resident, and that, to be eligible for adjustment of 
status, the nonimmigrant must otherwise:
    (A) Meet the requirements of paragraph (b) of this section, if 
requesting adjustment as a qualified family member of the certified 
principal S nonimmigrant witness or informant;
    (B) Be admissible to the United States as an immigrant, unless the

[[Page 425]]

ground of excludability has been waived;
    (C) Establish eligibility for adjustment of status under all 
provisions of section 245 of the Act, unless the basis for ineligibility 
has been waived; and
    (D) Properly file with his or her Form I-485, Application to 
Register Permanent Residence or Adjust Status, the approved Form I-854.
    (b) Family members--(1) Qualified family members. A qualified family 
member of an S nonimmigrant includes the spouse, married or unmarried 
son or daughter, or parent of a principal S nonimmigrant who meets the 
requirements of paragraph (a) of this section, provided that:
    (i) The family member qualified as the spouse, married or unmarried 
son or daughter, or parent (as defined in section 101(b) of the Act) of 
the principal S nonimmigrant when the family member was admitted as or 
granted a change of status to that of a nonimmigrant under section 
101(a)(15)(S) of the Act;
    (ii) The family member was admitted in S nonimmigrant classification 
to accompany, or follow to join, the principal S-5 or S-6 alien pursuant 
to the LEA's request;
    (iii) The family member is not excludable from the United States as 
a participant in Nazi persecution or genocide as described in section 
212(a)(3)(E) of the Act;
    (iv) The qualifying relationship continues to exist; and
    (v) The principal alien has adjusted status, has a pending 
application for adjustment of status or is concurrently filing an 
application for adjustment of status under section 101(a)(15)(S) of the 
Act.
    (vi) Paragraphs (b)(1)(iv) and (v) of this section do not apply if 
the alien witness or informant has died and, in the opinion of the 
Attorney General, was in compliance with the terms of his or her S 
classification under section 245(i) (1) and (2) of the Act.
    (2) Other family member. The adjustment provisions in this section 
do not apply to a family member who has not been classified as an S 
nonimmigrant pursuant to a request on Form I-854 or who does not 
otherwise meet the requirements of paragraph (b) of this section. 
However, a spouse or an unmarried child who is less than 21 years old, 
and whose relationship to the principal S nonimmigrant or qualified 
family member was established prior to the approval of the principal S 
nonimmigrant's adjustment of status application, may be accorded the 
priority date and preference category of the principal S nonimmigrant or 
qualified family member, in accordance with the provisions of section 
203(d) of the Act. Such a spouse or child:
    (i) May use the principal S nonimmigrant or qualified member's 
priority date and category when it becomes current, in accordance with 
the limitations set forth in sections 201 and 202 of the Act;
    (ii) May seek immigrant visa issuance abroad or adjustment of status 
to that of a lawful permanent resident of the United States when the 
priority date becomes current for the spouse's or child's country of 
chargeability under the fourth employment-based preference 
classification;
    (iii) Must meet all the requirements for immigrant visa issuance or 
adjustment of status, unless those requirements have been waived;
    (iv) Is not applying for adjustment of status under 101(a)(15)(S) of 
the Act, is not required to file Form I-854, and is not required to 
obtain LEA certification; and
    (v) Will lose eligibility for benefits if the child marries or has 
his or her twenty-first birthday before being admitted with an immigrant 
visa or granted adjustment of status.
    (c) Waivers of excludability. An alien seeking to adjust status 
pursuant to the provisions of section 101(a)(15)(S) of the Act may not 
be denied adjustment of status for conduct or a condition which:
    (1) Was disclosed to the Attorney General prior to admission; and
    (2) Was specifically waived pursuant to the waiver provisions set 
forth at section 212(d)(1) and 212(d)(3) of the Act.
    (d) Application. Each S nonimmigrant requesting adjustment of status 
under section 101(a)(15)(S) of the Act must:
    (1) File Form I-485, with the prescribed fee, accompanied by the 
approved Form I-854, and the supporting

[[Page 426]]

documents specified in the instructions to Form I-485 and described in 8 
CFR 245.2. Secondary evidence may be submitted if the nonimmigrant is 
unable to obtain the required primary evidence as provided in 8 CFR 
103.2(b)(2). The S nonimmigrant applying to adjust must complete Part 2 
of Form I-485 by checking box ``h-other'' and writing ``S'' or ``S-
Qualified Family Member.'' Qualified family members must submit 
documentary evidence of the relationship to the principal S nonimmigrant 
witness or informant.
    (2) Submit detailed and inclusive evidence of eligibility for the 
adjustment of status benefits of S classification, which shall include:
    (i) A photocopy of all pages of the alien's most recent passport or 
an explanation of why the alien does not have a passport; or
    (ii) An attachment on a plain piece of paper showing the dates of 
all arrivals and departures from the United States in S nonimmigrant 
classification and the reason for each departure; and
    (iii) Primary evidence of a qualifying relationship to the principal 
S nonimmigrant, such as birth or marriage certificate. If any required 
primary evidence is unavailable, church or school records, or other 
secondary evidence may be submitted. If such documents are unavailable, 
affidavits may be submitted as provided in 8 CFR 103.2(b)(2).
    (e) Priority date. The S nonimmigrant's priority date shall be the 
date his or her application for adjustment of status as an S 
nonimmigrant is properly filed with the Service.
    (f) Visa number limitation. An adjustment of status application 
under section 101(a)(15)(S) of the Act may be filed regardless of the 
availability of immigrant visa numbers. The adjustment of status 
application may not, however, be approved and the alien's adjustment of 
status to that of lawful permanent resident of the United States may not 
be granted until a visa number becomes available for the alien under the 
worldwide allocation for employment-based immigrants under section 
201(d) and section 203(b)(4) of the Act. The alien may request initial 
or continued employment authorization while the adjustment application 
is pending by filing Form I-765, Application for Employment 
Authorization. If the alien needs to travel outside the United States 
during this period, he or she may file a request for advance parole on 
Form I-131, Application for Travel Document.
    (g) Filing and decision. An application for adjustment of status 
filed by an S nonimmigrant under section 101(a)(15)(S) of the Act shall 
be filed with the district director having jurisdiction over the alien's 
place of residence. Upon approval of adjustment of status under this 
section, the district director shall record the alien's lawful admission 
for permanent residence as of the date of such approval. The district 
director shall notify the Commissioner and the Assistant Attorney 
General, Criminal Division, of the adjustment.
    (h) Deportation under section 241 of the Act. Nothing in this 
section shall prevent an alien adjusted pursuant to the terms of these 
provisions from being deported for conviction of a crime of moral 
turpitude committed within 10 years after being provided lawful 
permanent residence under this section or for any other ground under 
section 241 of the Act.
    (i) Denial of application. In the event the district director 
decides to deny an application on Form I-485 and an approved Form I-854 
to allow an S nonimmigrant to adjust status, 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. A denial 
of an adjustment application under this paragraph may not be renewed in 
subsequent deportation proceedings.

[60 FR 44269, Aug. 25, 1995; 60 FR 52248, Oct. 5, 1995]

[[Page 427]]



    PART 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--Table of Contents





Sec.
245a.1  Definitions.
245a.2  Application for temporary residence.
245a.3  Application for adjustment from temporary to permanent resident 
          status.
245a.4  Adjustment to lawful resident status of certain nationals of 
          countries for which extended voluntary departure has been made 
          available.
245a.5  Temporary disqualification of certain newly legalized aliens 
          from receiving benefits from programs of financial assistance 
          furnished under federal law.

    Authority: 8 U.S.C. 1101, 1103, 1255a and 1255a note.

    Source: 52 FR 16208, May 1, 1987, unless otherwise noted.



Sec. 245a.1  Definitions.

    As used in this chapter:
    (a) Act means the Immigration and Nationality Act, as amended by The 
Immigration Reform and Control Act of 1986.
    (b) Service means the Immigration and Naturalization Service (INS).
    (c)(1) Resided continuously as used in section 245A(a)(2) of the 
Act, means that the alien shall be regarded as having resided 
continuously in the United States if, at the time of filing of the 
application for temporary resident status:

An alien who after appearing for a scheduled interview to obtain an 
immigrant visa at a Consulate or Embassy in Canada or Mexico but who 
subsequently is not issued an immigrant visa and who is paroled back 
into the United States, pursuant to the stateside criteria program, 
shall be regarded as having been granted advance parole by the Service.
    (i) No single absence from the United States has exceeded forty-five 
(45) days, and the aggregate of all absences has not exceeded one 
hundred and eighty (180) days between January 1, 1982 through the date 
the application for temporary resident status is filed, unless the alien 
can establish that due to emergent reasons, his or her return to the 
United States could not be accomplished within the time period allowed;
    (ii) The alien was maintaining residence in the United States; and
    (iii) The alien's departure from the United States was not based on 
an order of deportation.

An alien who has been absent from the United States in accordance with 
the Service's advance parole procedures shall not be considered as 
having interrupted his or her continuous residence as required at the 
time of filing an application.
    (2) Continuous residence, as used in section 245A(b)(1)(B) of the 
Act, means that the alien shall be regarded as having resided 
continuously in the United States if, at the time of applying for 
adjustment from temporary residence to permanent resident status: No 
single absence from the United States has exceeded thirty (30) days, and 
the aggregate of all absences has not exceeded ninety (90) days between 
the date of granting of lawful temporary resident status and of applying 
for permanent resident status, unless the alien can establish that due 
to emergent reasons the return to the United States could not be 
accomplished within the time period(s) allowed.
    (d) In the term alien's unlawful status was known to the government, 
the term government means the Immigration and Naturalization Service. An 
alien's unlawful status was known to the government only if:
    (1) The Service received factual information constituting a 
violation of the alien's nonimmigrant status from any agency, bureau or 
department, or subdivision thereof, of the Federal government, and such 
information was stored or otherwise recorded in the official Service 
alien file, whether or not the Service took follow-up action on the 
information received. In order to meet the standard of information 
constituting a violation of the alien's nonimmigrant status, the alien 
must have made a clear statement or declaration to the other federal 
agency, bureau or department that he or she was in violation of 
nonimmigrant status; or
    (2) An affirmative determination was made by the Service prior to 
January

[[Page 428]]

1, 1982 that the alien was subject to deportation proceedings. Evidence 
that may be presented by an alien to support an assertion that such a 
determination was made may include, but is not limited to, official 
Service documents issued prior to January 1, 1982, i.e., Forms I-94, 
Arrival-Departure Records granting a period of time in which to depart 
the United States without imposition of proceedings; Forms I-210, 
Voluntary Departure Notice letter; and Forms I-221, Order to Show Cause 
and Notice of Hearing. Evidence from Service records that may be used to 
support a finding that such a determination was made may include, but is 
not limited to, record copies of the aforementioned forms and other 
documents contained in alien files, i.e., Forms I-213, Record of 
Deportable Alien;
     Unexecuted Forms I-205, Warrant of Deportation; Forms I-265, 
Application for Order to Show Cause and Processing Sheet; Forms I-541, 
Order of Denial of Application for Extension of Stay granting a period 
of time in which to depart the United States without imposition of 
proceedings, or any other Service record reflecting that the alien's 
nonimmigrant status was considered by the Service to have terminated or 
the alien was otherwise determined to be subject to deportation 
proceedings prior to January 1, 1982, whether or not deportation 
proceedings were instituted; or
    (3) A copy of a response by the Service to any other agency which 
advised that agency that a particular alien had no legal status in the 
United States or for whom no record could be found.
    (4) The applicant produces documentation from a school approved to 
enroll foreign students under Sec. 214.3 which establishes that the said 
school forwarded to the Service a report that clearly indicated the 
applicant had violated his or her nonimmigrant student status prior to 
January 1, 1982. A school may submit an affirmation that the school did 
forward to the Service the aforementioned report and that the school no 
longer has available copies of the actual documentation sent. In order 
to be eligible under this part, the applicant must not have been 
reinstated to nonimmigrant student status.
    (e) The term to make a determination as used in Sec. 245a.2(t)(3) of 
this part means obtaining and reviewing all information required to 
adjudicate an application for the benefit sought and making a decision 
thereon. If fraud, willful misrepresentation or concealment of a 
material fact, knowingly providing a false writing or document, 
knowingly making a false statement or representation, or any other 
activity prohibited by section 245A(c)(6) of the Act is established 
during the process of making the determination on the application, the 
Service shall refer to the United States Attorney for prosecution of the 
alien or of any person who created or supplied a false writing or 
document for use in an application for adjustment of status under this 
part.
    (f) The term continuous physical presence as used in section 
245A(a)(3)(A) of the Act means actual continuous presence in the United 
States since November 6, 1986 until filing of any application for 
adjustment of status. Aliens who were outside of the United States on 
the date of enactment or departed the United States after enactment may 
apply for legalization if they reentered prior to May 1, 1987, provided 
they meet the continuous residence requirements, and are otherwise 
eligible for legalization.
    (g) Brief, casual, and innocent means a departure authorized by the 
Service (advance parole) subsequent to May 1, 1987 of not more than 
thirty (30) days for legitimate emergency or humanitarian purposes 
unless a further period of authorized departure has been granted in the 
discretion of the district director or a departure was beyond the 
alien's control.
    (h) The term brief and casual absences as used in section 
245a(b)(3)(A) of the Act permits temporary trips abroad as long as the 
alien establishes a continuing intention to adjust to lawful permanent 
resident status. However, such absences must comply with 
Sec. 245a.3(b)(2) of this chapter in order for the alien to maintain 
continuous residence as specified in the Act.
    (i) Public cash assistance means income or needs-based monetary 
assistance to include, but not limited to,

[[Page 429]]

supplemental security income received by the alien 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).
    (j) Legalization Office means local offices of the Immigration and 
Naturalization Service which accept and process applications for 
Legalization or Special Agricultural Worker status, under the authority 
of the INS district directors in whose districts such offices are 
located.
    (k) Regional Processing Facility means Service offices established 
in each of the four Service regions to adjudicate, under the authority 
of the INS Directors of the Regional Processing Facilities, applications 
for adjustment of status under section 210, 245A(a) or 245A(b)(1) of the 
Act.
    (l) Designated entity means any state, local, church, community, 
farm labor organization, voluntary organization, association of 
agricultural employers or individual determined by the Service to be 
qualified to assist aliens in the preparation of applications for 
Legalization status.
    (m) The term family unity as used in section 245(d)(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 under 18 
years of age who are not members of some other household, and parents 
who reside regularly in the household of the family group.
    (n) The term prima facie as used in section 245(e)(1) and (2) of the 
Act means eligibility is established if the applicant presents a 
completed I-687 and specific factual information which in the absence of 
rebuttal will establish a claim of eligibility under this part.
    (o) Misdemeanor means a crime committed in the United States, either 
(1) punishable by imprisonment for a term of one year or less, 
regardless of the term such alien actually served, if any, or (2) a 
crime treated as a misdemeanor under 8 CFR 245a.1(p). For purposes of 
this definition, any crime punishable by imprisonment for a maximum term 
of five days or less shall not be considered a misdemeanor.
    (p) Felony means a crime committed in the United States, punishable 
by imprisonment for a term of more than one year, regardless of the term 
such alien actually served, if any, except: When the offense is defined 
by the State as a misdemeanor and the sentence actually imposed is one 
year or less regardless of the term such alien actually served. Under 
this exception, for purposes of 8 CFR part 245a, the crime shall be 
treated as a misdemeanor.
    (q) Subject of an Order to Show Cause means actual service of the 
Order to Show Cause upon the alien through the mail or by personal 
service.
    (r) A qualified designated entity in good-standing with the Service 
means those designated entities whose cooperative agreements were not 
suspended or terminated by the Service or those whose agreements were 
not allowed to lapse by the Service prior to January 30, 1989 (the 
expiration date of the INS cooperative agreements for all designated 
entities), or those whose agreements were not terminated for cause by 
the Service subsequent to January 30, 1989.
    Subsequent to January 30, 1989, and throughout the period ending on 
November 6, 1990, a QDE in good-standing may: (1) Serve as an authorized 
course provider under Sec. 245a.3(b)(5)(i)(C) of this chapter; (2) 
Administer the IRCA Test for Permanent Residency (proficiency test), 
provided an agreement has been entered into with and authorization has 
been given by INS under Sec. 245a.1(s)(5) of this chapter; and, (3) 
Certify as true and complete copies of original documents submitted in 
support of Form I-698 in the format prescribed in Sec. 245a.3(d)(2) of 
this chapter.
    (s) Satisfactorily pursuing, as used in section 245A(b)(1)(D)(i)(II) 
of the Act, means:
    (1) An applicant for permanent resident status has attended a 
recognized program for at least 40 hours of a minimum 60-hour course as 
appropriate for

[[Page 430]]

his or her ability level, and is demonstrating progress according to the 
performance standards of the English/citizenship course prescribed by 
the recognized program in which he or she is enrolled (as long as 
enrollment occurred on or after May 1, 1987, course standards include 
attainment of particular functional skills related to communicative 
ability, subject matter knowledge, and English language competency, and 
attainment of these skills is measured either by successful completion 
of learning objectives appropriate to the applicant's ability level, or 
attainment of a determined score on a test or tests, or both of these); 
or
    (2) An applicant presents a high school diploma or general 
educational development diploma (GED) from a school in the United 
States. A GED gained in a language other than English is acceptable only 
if a GED English proficiency test has been passed. (The curriculum for 
both the high school diploma and the GED must have included at least 40 
hours of instruction in English and U.S. history and government); or
    (3) An applicant has attended for a period of one academic year (or 
the equivalent thereof according to the standards of the learning 
institution), a state recognized, accredited learning institution in the 
United States and that institution certifies such attendance (as long as 
the curriculum included at least 40 hours of instruction in English and 
U.S. history and government); or
    (4) An applicant has attended courses conducted by employers, 
social, community, or private groups certified (retroactively, if 
necessary, as long as enrollment occurred on or after May 1, 1987, and 
the curriculum included at least 40 hours of instruction in English and 
U.S. history and government) by the district director or the Director of 
the Outreach Program under Sec. 245a.3(b)(5)(i)(D) of this chapter; or
    (5) An applicant attests to having completed at least 40 hours of 
individual study in English and U.S. history and government and passes 
the proficiency test for legalization, called the IRCA Test for 
Permanent Residency, indicating that the applicant is able to read and 
understand minimal functional English within the context of the history 
and government of the United States. Such test may be given by INS, as 
well as, State Departments of Education (SDEs) (and their accredited 
educational agencies) and Qualified Designated Entities in good-standing 
(QDEs) upon agreement with and authorization by INS. Those SDEs and QDEs 
wishing to participate in this effort should write to the Director of 
the INS Outreach Program at 425 ``I'' Street, NW., Washington, DC 20536, 
for further information.
    (t) Minimal understanding of ordinary English as used in section 
245A(b)(1)(D)(i) of the Act means an applicant can satisfy basic 
survival needs and routine social demands. The person can handle jobs 
that involve following simple oral and very basic written communication.
    (u) Curriculum means a defined course for an instructional program. 
Minimally, the curriculum prescribes what is to be taught, how the 
course is to be taught, with what materials, and when and where. The 
curriculum must:
    (1) Teach words and phrases in ordinary, everyday usage;
    (2) Include the content of the Federal Citizenship Text series as 
the basis for curriculum development (other texts with similar content 
may be used in addition to, but not in lieu of, the Federal Citizenship 
Text series);
    (3) Be designed to provide at least 60 hours of instruction per 
class level;
    (4) Be relevant and educationally appropriate for the program focus 
and the intended audience; and
    (5) Be available for examination and review by INS as requested.
    (v) The term developmentally disabled means the same as the term 
developmental disability defined in section 102(5) of the Developmental 
Disabilities Assistance and Bill of Rights Act of 1987, Public Law 100-
146. As a convenience to the public, that definition is printed here in 
its entirety:

    The term developmental disability means a severe, chronic disability 
of a person which:
    (1) Is attributable to a mental or physical impairment or 
combination of mental and physical impairments;
    (2) Is manifested before the person attains age twenty-two;
    (3) Is likely to continue indefinitely;

[[Page 431]]

    (4) Results in substantial functional limitations in three or more 
of the following areas of major life activity: (i) Self-care, (ii) 
receptive and expressive language, (iii) learning, (iv) mobility, (v) 
self direction, (vi) capacity for independent living, and (vii) economic 
self-sufficiency; and
    (5) Reflects the person's need for a combination and sequence of 
special, interdisciplinary, or generic care, treatment, or other 
services which are of lifelong or extended duration and are individually 
planned and coordinated.

[52 FR 16208, May 1, 1987, as amended at 52 FR 43845, Nov. 17, 1987; 53 
FR 9863, Mar. 28, 1988; 53 FR 23382, June 22, 1988; 53 FR 43992, Oct. 
31, 1988; 54 FR 29448, July 12, 1989; 56 FR 31061, July 9, 1991]



Sec. 245a.2  Application for temporary residence.

    (a) Application period for temporary residence. (1) An alien who has 
resided unlawfully in the United States since January 1, 1982, who 
believes that he or she meets the eligibility requirements of section 
245A of the Act must make application within the twelve month period 
beginning on May 5, 1987 and ending on May 4, 1988, except as provided 
in the following paragraphs.
    (2)(i) [Reserved]
    (ii) An alien who is the subject of an Order to Show Cause issued 
under section 242 of the Act during the period beginning on May 5, 1987 
and ending on April 4, 1988 must file an application for adjustment of 
status to that of a temporary resident prior to the thirty-first day 
after the issuance of the Order to Show Cause.
    (iii) An alien who is the subject of an Order to Show Cause issued 
under section 242 of the Act during the period beginning on April 5, 
1988 and ending on May 4, 1988 must file an application for adjustment 
of status to that of a temporary resident not later than May 4, 1988.
    (iv) An alien, described in paragraphs (a)(2)(i) through (iii) of 
this section, who fails to file an application for adjustment of status 
to that of a temporary resident under section 245A(a) of the Act during 
the respective time period(s), will be statutorily ineligible for such 
adjustment of status.
    (b) Eligibility. The following categories of aliens, who are 
otherwise eligible to apply for legalization, may file for adjustment to 
temporary residence status:
    (1) An alien (other than an alien who entered as a nonimmigrant) who 
establishes that he or she entered the United States prior to January 1, 
1982, and who has thereafter resided continuously in the United States 
in an unlawful status, and who has been physically present in the United 
States from November 6, 1986, until the date of filing the application.
    (2) An alien who establishes that he or she entered the United 
States as a nonimmigrant prior to January 1, 1982, and whose period of 
authorized admission expired through the passage of time prior to 
January 1, 1982, and who has thereafter resided continuously in the 
United States in an unlawful status, and who has been physically present 
in the United States from November 6, 1986, until the date of filing the 
application.
    (3) An alien who establishes that he or she entered the United 
States as a nonimmigrant prior to January 1, 1982, and whose unlawful 
status was known to the Government as of January 1, 1982, and who has 
thereafter resided continuously in the United States in an unlawful 
status, and who has been physically present in the United States from 
November 6, 1986, until the date of filing the application.
    (4) An alien described in paragraphs (b) (1) through (3) of this 
section who was at any time a nonimmigrant exchange visitor (as defined 
in section 101(a)(15)(J) of the Act), must establish that he or she was 
not subject to the two-year foreign residence requirements of section 
212(e) or has fulfilled that requirement or has received a waiver of 
such requirements and has resided continuously in the United States in 
unlawful status since January 1, 1982.
    (5) An alien who establishes that he or she was granted voluntary 
departure, voluntary return, extended voluntary departure or placed in 
deferred action category by the Service prior to January 1, 1982 and who 
has thereafter resided continuously in such status in the United States 
and who has been physically present in the United States from November 
6, 1986 until the date of filing the application.

[[Page 432]]

    (6) An alien who establishes that he or she was paroled into the 
United States prior to January 1, 1982, and whose parole status 
terminated prior to January 1, 1982, and who has thereafter resided 
continuously in such status in the United States, and who has been 
physically present in the United States from November 6, 1986, until the 
date of filing the application.
    (7) An alien who establishes that he or she is a Cuban or Haitian 
Entrant who was physically present in the United States prior to January 
1, 1982, and who has thereafter resided continuously in the United 
States, and who has been physically present in the United States from 
November 6, 1986, until the date of filing the application, without 
regard to whether such alien has applied for adjustment of status 
pursuant to section 202 of the Act.
    (8) An alien's eligibility under the categories described in section 
245(a)(2)(b) (1) through (7) and (9) through (15) shall not be affected 
by entries to the United States subsequent to January 1, 1982 that were 
not documented on Service Form I-94, Arrival-Departure Record.
    (9) An alien who would be otherwise eligible for legalization and 
who was present in the United States in an unlawful status prior to 
January 1, 1982, and reentered the United States as a nonimmigrant, such 
entry being documented on Service Form I-94, Arrival-Departure Record, 
in order to return to an unrelinquished unlawful residence.
    (10) An alien described in paragraph (b)(9) of this section must 
receive a waiver of the excludable charge 212(a)(19) as an alien who 
entered the United States by fraud.
    (11) A nonimmigrant who entered the United States for duration of 
status (``D/S'') is one of the following classes, A, A-1, A-2, G, G-1, 
G-2, G-3 or G-4, whose qualifying employment terminated or who ceased to 
be recognized by the Department of State as being entitled to such 
classification prior to January 1, 1982, and who has thereafter 
continued to reside in the United States in an unlawful status. An alien 
who was a dependent family member and who may be otherwise eligible for 
legalization may be considered a member of this class of eligible aliens 
if the dependent family member was also in A and G status when the 
principal A or G alien's status terminated or ceased to be recognized by 
the Department of State.
    (12) A nomimmigrant who entered the United States for duration of 
status (``D/S'') in one of the following classes, F, F-1, or F-2, who 
completed a full course of study, including practical training and whose 
time period if any to depart the United States after completion of study 
expired prior to January 1, 1982 and who has remained in the United 
States in an unlawful status since that time. A dependent F-2 alien 
otherwise eligible who was admitted into the United States with a 
specific time period, as opposed to duration of status, documented on 
Service Form I-94, Arrival-Departure Record that extended beyond January 
1, 1982 is considered eligible if the principal F-1 alien is found 
eligible.
    (13) An alien who establishes that he or she is a member of the 
class in the Silva-Levi lawsuit (No. 76-C-4268 (N.D. ILL. March 22, 
1977)); that is, an alien from an independent country of the Western 
Hemisphere who was present in the United States prior to March 11, 1977, 
and was known by the Immigration and Naturalization Service (INS) to 
have a priority date for the issuance of an immigrant visa between July 
1, 1968 and December 31, 1976, inclusive, and who was clearly eligible 
for an immigrant visa.
    (14) An alien who filed an asylum application prior to January 1, 
1982 and whose application was subsequently denied or whose application 
has not yet been decided is considered an alien in an unlawful status 
known to the government.
    (15) An alien, otherwise eligible who departed the United States and 
was paroled into the United States on or before May 1, 1987 in order to 
return to an unrelinquished unlawful residence.
    (c) Ineligible aliens. (1) An alien who has been convicted of a 
felony, or three or more misdemeanors.
    (2) An alien who has assisted in the persecution of any person or 
persons on account of race, religion, nationality, membership in a 
particular social group or political opinion.

[[Page 433]]

    (3) An alien excludable under the provisions of section 212(a) of 
the Act whose grounds of excludability may not be waived, pursuant to 
section 245A(d)(2)(B)(ii) of this Act.
    (4) An alien who at any time was a nonimmigrant exchange visitor who 
is subject to the two-year foreign residence requirement unless the 
requirement has been satisfied or waived pursuant to the provisions of 
section 212(e) of the Act who has resided continuously in the United 
States in an unlawful status since January 1, 1982.
    (5) [Reserved]
    (6) An alien who is the subject of an Order to Show Cause issued 
under section 242 of the Act during the period beginning on May 5, 1987 
and ending on April 4, 1988 who does not file an application for 
adjustment of status to that of temporary resident under section 245A(a) 
of the Act prior to the thirty-first day after issuance of the order.
    (7) An alien who is the subject of an Order to Show Cause issued 
under section 242 of the Act during the period beginning on April 5, 
1988 and ending on May 4, 1988 who does not file an application for 
adjustment of status to that of a temporary resident under section 
245A(a) of the Act prior to May 5, 1988.
    (8) An alien who was paroled into the United States prior to January 
1, 1982 and whose parole status terminated or expired subsequent to 
January 1, 1982, except an alien who was granted advance parole.
    (d) Documentation. Evidence to support an alien's eligibility for 
the legalization program shall include documents establishing proof of 
identity, proof of residence, and proof of financial responsibility, as 
well as photographs, a completed fingerprint card (Form FD-258), and a 
completed medical report of examination (Form I-693). All documentation 
submitted will be subject to Service verification. Applications 
submitted with unverifiable documentation may be denied. Failure by an 
applicant to authorize release to INS of information protected by the 
Privacy Act and/or related laws in order for INS to adjudicate a claim 
may result in denial of the benefit sought. Acceptable supporting 
documents for these three categories are discussed below.
    (1) Proof of identity. Evidence to establish identity is listed 
below in descending order of preference:
    (i) Passport;
    (ii) Birth certificate;
    (iii) Any national identity document from the alien's country of 
origin bearing photo and fingerprint (e.g., a ``cedula'' or 
``cartilla'');
    (iv) Driver's license or similar document issued by a state if it 
contains a photo;
    (v) Baptismal Record/Marriage Certificate; or
    (vi) Affidavits.
    (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. The applicant's true identity is established 
pursuant to the requirements of paragraph (d)(1) of this section. The 
assumed name must appear in the documentation provided by the applicant 
to establish eligibility. To meet the requirements of this paragraph 
documentation must be submitted to prove the common identity, i.e., that 
the assumed name was in fact used by the applicant.
    (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, 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 affiant under the assumed name 
in question will carry greater weight.
    (3) Proof of residence. Evidence to establish proof of continuous 
residence in the United States during the requisite period of time may 
consist of any combination of the following:
    (i) Past employment records, which may consist of pay stubs, W-2 
Forms,

[[Page 434]]

certification of the filing of Federal income tax returns on IRS Form 
6166, state verification of the filing of state income tax returns, 
letters from employer(s) or, if the applicant has been in business for 
himself or herself, letters from banks and other firms with whom he or 
she has done business. In all of the above, the name of the alien and 
the name of the employer or other interested organization must appear on 
the form or letter, as well as relevant dates. Letters from employers 
should be on employer letterhead stationery, if the employer has such 
stationery, and must include:
    (A) Alien's address at the time of employment;
    (B) Exact period of employment;
    (C) Periods of layoff;
    (D) Duties with the company;
    (E) Whether or not the information was taken from official company 
records; and
    (F) Where records are located and whether the Service may have 
access to the records.

If the records are unavailable, an affidavit form-letter stating that 
the alien's employment records are unavailable and why such records are 
unavailable may be accepted in lieu of (3)(i)(E) and (3)(i)(F) of this 
paragraph. This affidavit form-letter shall be signed, attested to by 
the employer under penalty of perjury, and shall state the employer's 
willingness to come forward and give testimony if requested.
    (ii) Utility bills (gas, electric, phone, etc.), receipts, or 
letters from companies showing the dates during which the applicant 
received service are acceptable documentation.
    (iii) School records (letters, report cards, etc.) from the schools 
that the applicant or their children have attended in the United States 
must show name of school and periods of school attendance.
    (iv) Hospital or medical records showing treatment or 
hospitalization of the applicant or his or her children must show the 
name of the medical facility or physician and the date(s) of the 
treatment or hospitalization.
    (v) Attestations by churches, unions, or other organizations to the 
applicant's residence by letter which:
    (A) Identifies applicant by name;
    (B) Is signed by an official (whose title is shown);
    (C) Shows inclusive dates of membership;
    (D) States the address where applicant resided during membership 
period;
    (E) Includes the seal of the organization impressed on the letter or 
the letterhead of the organization, if the organization has letterhead 
stationery;
    (F) Establishes how the author knows the applicant; and
    (G) Establishes the origin of the information being attested to.
    (vi) Additional documents to support the applicant's claim may 
include:
    (A) Money order receipts for money sent in or out of the country;
    (B) Passport entries;
    (C) Birth certificates of children born in the United States;
    (D) Bank books with dated transactions;
    (E) Letters or correspondence between applicant and another person 
or organization;
    (F) Social Security card;
    (G) Selective Service card;
    (H) Automobile license receipts, title, vehicle registration, etc.;
    (I) Deeds, mortgages, contracts to which applicant has been a party;
    (J) Tax receipts;
    (K) Insurance policies, receipts, or letters; and
    (L) Any other relevant document.
    (4) Proof of financial responsibility. An applicant for adjustment 
of status under this part is subject to the provisions of section 
212(a)(15) of the Act relating to excludability of aliens likely to 
become public charges. Generally, the evidence of employment submitted 
under paragraph (d)(3)(i) of this section will serve to demonstrate the 
alien's financial responsibility during the documented period(s) of 
employment. If the alien's period(s) of residence in the United States 
include significant gaps in employment or if there is reason to believe 
that the alien may have received public assistance while employed, the 
alien may be required to provide proof that he or she has not received 
public cash assistance. An applicant for residence who is determined 
likely to become a public charge and is unable to overcome this 
determination

[[Page 435]]

after application of the special rule will be denied adjustment. The 
burden of proof to demonstrate the inapplicability of this provision of 
law lies with the applicant who may provide:
    (i) Evidence of a history of employment (i.e., employment letter, W-
2 Forms, income tax returns, etc.);
    (ii) Evidence that he/she is self-supporting (i.e., bank statements, 
stocks, other assets, etc.); or
    (iii) Form I-134, Affidavit of Support, completed by a spouse in 
behalf of the applicant and/or children of the applicant or a parent in 
behalf of children which guarantees complete or partial financial 
support. Acceptance of the affidavit of support shall be extended to 
other family members where family circumstances warrant.
    (5) 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 resided in the United States for the 
requisite periods, is admissible to the United States under the 
provisions of section 245a of the Act, and is otherwise eligible for 
adjustment of status under this section. 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 paragraph (d) of this section.
    (6) Evidence. The sufficiency of all evidence produced by the 
applicant will be judged according to its probative value and 
credibility. To meet his or her burden of proof, an applicant must 
provide evidence of eligibility apart from his or her own testimony. In 
judging the probative value and credibility of the evidence submitted, 
greater weight will be given to the submission of original 
documentation.
    (e) Filing of application. (1) The application must be filed on Form 
I-687 at an office of a designated entity or at a Service Legalization 
Office within the jurisdiction of the District wherein the applicant 
resides. If the application is filed with a designated entity, the alien 
must have consented to having the designated entity forward the 
application to the legalization office. In the case of applications 
filed at a legalization office, the district director may, at his or her 
discretion:
    (i) Require the applicant to file the application in person; or
    (ii) Require the applicant to file the application by mail; or
    (iii) Permit the filing of applications either by mail or in person.

    The applicant must appear for a personal interview at the 
legalization office as scheduled. If the applicant is 14 years of age or 
older, the application must be accompanied by a completed Form FD-258 
(Applicant Card).
    (2) At the time of the interview, wherever possible, original 
documents must be submitted except 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, original 
documents, even if accompanied by certified copies, may be temporarily 
retained for forensic examination by the Document Analysis Unit at the 
Regional Processing Facility having jurisdiction over the legalization 
office to which the documents were submitted.
    (3) A separate application (I-687) must be filed by each eligible 
applicant. All fees required by Sec. 103.7(b)(1) of this chapter must be 
submitted in the exact amount in the form of a money order, cashier's 
check, or certified bank check, made payable to the Immigration and 
Naturalization Service. No personal checks or currency will be

[[Page 436]]

accepted. Fees will not be waived or refunded under any circumstances.
    (f) Filing date of application. The date the alien submits a 
completed application to a Service Legalization Office or designated 
entity shall be considered the filing date of the application, provided 
that in the case of an application filed at a designated entity the 
alien has consented to having the designated entity forward the 
application to the Service Legalization Office having jurisdiction over 
the location of the alien's residence. The designated entities are 
required to forward completed applications to the appropriate Service 
Legalization Office within sixty days of receipt.
    (g) Selective Service registration. At the time of filing an 
application under this section, male applicants over the age of 17 and 
under the age of 26 are required to be registered under the Military 
Selective Service Act. An applicant shall present evidence that he has 
previously registered under that Act in the form of a letter of 
acknowledgement from the Selective Service System, or such alien shall 
present a completed and signed Form SSS-1 at the time of filing Form I-
687 with the Immigration and Naturalization Service or a designated 
entity. Form SSS-1 will be forwarded to the Selective Service System by 
the Service.
    (h) Continuous residence. (1) For the purpose of this Act, an 
applicant for temporary resident status shall be regarded as having 
resided continuously in the United States if, at the time of filing of 
the application:
    (i) No single absence from the United States has exceeded forty-five 
(45) days, and the aggregate of all absences has not exceeded one 
hundred and eighty (180) days between January 1, 1982 through the date 
the application for temporary resident status is filed, unless the alien 
can establish that due to emergent reasons, his or her return to the 
United States could not be accomplished within the time period allowed;
    (ii) The alien was maintaining a residence in the United States; and
    (iii) The alien's departure from the United States was not based on 
an order of deportation.
    (2) An alien who has been absent from the United States in 
accordance with the Service's advance parole procedures shall not be 
considered as having interrupted his or her continuous residence as 
required at the time of filing an application under this section.
    (i) Medical examination. An applicant under this part shall be 
required to submit to an examination by a designated civil surgeon at no 
expense to the government. The designated civil surgeon shall report on 
the findings of the mental and physical condition of the applicant and 
the determination of the alien's immunization status. Results of the 
medical examinaton must be presented to the Service at the time of 
interview and shall be incorporated into the record. Any applicant 
certified under paragraphs (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.
    (j) Interview. Each applicant, regardless of age, must appear at the 
appropriate Service Office and must be fingerprinted for the purpose of 
issuance of an employment authorization document and Form I-688. Each 
applicant shall be interviewed by an immigration officer, except that 
the interview may be waived for a child under 14, or when it is 
impractical because of the health or advanced age of the applicant.
    (k) Applicability of exclusion grounds--(1) Grounds of exclusion not 
to be applied. The following paragraphs of section 212(a) of the Act 
shall not apply to applicants for temporary resident status: (14) 
Workers entering without Labor Certification; (20) immigrants not in 
possession of a valid entry document; (21) visas issued without 
compliance with section 203; (25) illiterates; and (32) graduates of 
non-accredited medical schools.
    (2) Waiver of grounds of exclusion. Except as provided in paragraph 
(k)(3) of this section, the Attorney General 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

[[Page 437]]

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 
filed jointly with an application for temporary residence under this 
section, it shall be accepted for processing at the legalization office. 
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 must be in the form of a money order, cashier's 
check, or bank check. No personal checks or currency will be accepted. 
Fees will not be waived or refunded under any circumstances. An 
application for waiver of grounds of excludability under this part shall 
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 except that in cases involving clear 
statutory ineligibility or admitted fraud, such application may be 
denied by the district director in whose jurisdiction the application is 
filed, and in cases returned to a Service Legalization Office for re-
interview, such application may be approved at the discretion of the 
district director. The applicant shall be notified of the decision and, 
if the application is denied, of the reason therefor. Appeal from an 
adverse decision under this part may be taken by the applicant on Form 
I-694 within 30 days after the service of the notice only to the 
Service's Administrative Appeals Unit pursuant to the provisions of 
Sec. 103.3(a) of this chapter.
    (3) Grounds of exclusion that may not be waived. Notwithstanding any 
other provision of the Act, the following provisions of section 212(a) 
may not be waived by the Attorney General under paragraph (k)(2) of this 
section:
    (i) Paragraphs (9) and (10) (criminals);
    (ii) Paragraph (23) (narcotics) except for a single offense of 
simple possession of thirty grams or less of marijuana;
    (iii) Paragraphs (27) (prejudicial to the public interest), (28) 
(communist), and (29) (subversive);
    (iv) Paragraph (33) (participated in Nazi persecution).
    (4) Special rule for determination of public charge. An alien who 
has a consistent employment history which shows the ability to support 
himself or herself even though his or her income may be below the 
poverty level, may be admissible. The alien's employment history need 
not be continuous in that it is uninterrupted. It should be continuous 
in the sense that the alien 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 
without recourse to public cash assistance. This regulation is 
prospective in that the Service shall determine, based on the alien'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.
    (5) Public assistance and criminal history verification. 
Declarations by an applicant that he or she has not been the recipient 
of public cash assistance and/or has not had a criminal record are 
subject to a verification of facts by the Service. The applicant must 
agree to fully cooperate in the verification process. Failure to assist 
the Service in verifying information necessary for the adjudication of 
the application may result in a denial of the application.
    (l) Continous physical presence since November 6, 1986. (1) An alien 
applying for adjustment to temporary resident status must establish that 
he or she has been continuously physically present in the United States 
since November 6, 1986. Aliens who were outside of the United States on 
the date of enactment or departed the United States

[[Page 438]]

after enactment may apply for legalization if they reentered prior to 
May 1, 1987, and meet the continuous residence requirements and are 
otherwise eligible for legalization.
    (2) A brief, casual and innocent absence means a departure 
authorized by the Service (advance parole) subsequent to May 1, 1987 of 
not more than thirty (30) days for legitimate emergency or humanitarian 
purposes unless a further period of authorized departure has been 
granted in the discretion of the district director or a departure was 
beyond the alien's control.
    (m) Departure. (1) During the time period from the date that an 
alien's application establishing prima facie eligibility for temporary 
resident status is reviewed at a Service Legalization Office and the 
date status as a temporary resident is granted, the alien applicant can 
only be readmitted to the United States provided his or her departure 
was authorized under the Service's advance parole provisions contained 
in Sec. 212.5(e) of this chapter.
    (2) An alien whose application for temporary resident status has 
been approved may be admitted to the United States upon return as a 
returning temporary resident provided he or she:
    (i) Is not under deportation proceedings, such proceedings having 
been instituted subsequent to the approval of temporary resident status. 
A temporary resident alien will not be considered deported if that alien 
departs the United States while under an outstanding order of 
deportation issued prior to the approval of temporary resident status;
    (ii) Has not been absent from the United States more than thirty 
(30) days on the date application for admission is made;
    (iii) Has not been absent from the United States for an aggregate 
period of more than 90 days since the date the alien was granted lawful 
temporary resident status;
    (iv) Presents Form I-688;
    (v) Presents himself or herself for inspection; and
    (vi) Is otherwise admissible.
    (3) The periods of time in paragraph (m)(2)(ii) and (m)(2)(iii) of 
this section may be waived at the discretion of the Attorney General in 
cases where the absence from the United States was due merely to a brief 
temporary trip abroad due to emergent or extenuating circumstances 
beyond the alien's control.
    (n)(1) Employment and travel authorization; general. Authorization 
for employment and travel abroad for temporary resident status 
applicants under section 245A(a) of the Act may only be granted by a 
Service Office. INS district directors will determine the Service 
location for the completion of processing of travel documentation. In 
the case of an application which has been filed with a designated 
entity, employment authorization may only be granted by the Service 
after the application has been properly received at the Service Office.
    (2) Employment authorization prior to the granting of temporary 
resident status. (i) Permission to travel abroad and accept employment 
may be granted to the applicant after an interview has been conducted in 
connection with an application establishing prima facie eligibility for 
temporary resident status. Permission to travel abroad may be granted in 
emergent circumstances in accordance with the Service's advance parole 
provisions contained in Sec. 212.5(e) of this chapter after an interview 
has been conducted in connection with an application establishing prima 
facie eligiblity for temporary resident status.
    (ii) If an interview appointment cannot be scheduled within 30 days 
from the date an application is filed at a Service office, authorization 
to accept employment will be granted, valid until the scheduled 
appointment date. Employment authorization, both prior and subsequent to 
an interview, will be restricted to increments of 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.

[[Page 439]]

    (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, authorizing employment and travel abroad.
    (4) Revocation of employment authorization upon denial of temporary 
resident status. Upon denial of an application for adjustment to 
temporary resident status the alien will be notified that if a timely 
appeal is not submitted, employment authorization shall be automatically 
revoked on the final day of the appeal period.
    (o) Decision. The applicant shall be notified in writing of the 
decision, and, if the application is denied, of the reason therefor. An 
appeal from an adverse decision under this part may be taken by the 
applicant on Form I-694.
    (p) Appeal process. An adverse decision under this part may be 
appealed to the Associate Commissioner, Examinations (Administrative 
Appeals Unit). Any appeal with the required fee shall be filed with the 
Regional Processing Facility within thirty (30) days after service of 
the notice of denial in accordance with the procedures of Sec. 103.3(a) 
of this chapter. An appeal received after the thirty (30) day period has 
tolled will not be accepted. The thirty (30) day period includes any 
time required for service or receipt by mail.
    (q) Motions. The Regional Processing Facility director may sua 
sponte reopen and reconsider any adverse decision. When an appeal to the 
Associate Commissioner, Examinations (Administrative Appeals Unit) has 
been filed, the INS director of the Regional Processing Facility may 
issue a new decision that will grant the benefit which has been 
requested. The director's new decision must be served on the appealing 
party within 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.
    (r) Certifications. The Regional Processing Facility director may, 
in accordance with Sec. 103.4 of this chapter, certify a decision to the 
Associate Commissioner, Examinations (Administrative Appeals Unit) when 
the case involves an unusually complex or novel question of law or fact. 
The party affected shall be given notice of such certification and of 
the right to submit a brief within thirty (30) days from service of the 
notice.
    (s) Date of adjustment to temporary residence. 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 
indicated on the application fee receipt issued at Service Legalization 
Office.
    (t) Limitation on access to information and confidentiality. (1) No 
person other than a sworn officer or employee of the Justice Department 
or bureau of agency thereof, will be permitted to examine individual 
applications, except employees of designated entities where applications 
are filed with the same designated entity. For purposes of this part, 
any individual employed under contract by the Service to work in 
connection with the legalization program shall be considered an 
``employee of the Justice Department or bureau or agency thereof.''
    (2) Files and records prepared by designated entites 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) No information furnished pursuant to an application for 
legalization under this section shall be used for any purpose except: 
(i) To make a determination on the application; or, (ii) for the 
enforcement of the provisions encompassed in section 245A(c)(6) of the 
Act, except as provided in paragraph (t)(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

[[Page 440]]

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 245A(c)(6) of the 
Act, the Service shall refer the matter to the United States Attorney 
for prosecution of the alien or of any person who created or supplied a 
false writing or document for use in an application for adjustment of 
status under this part.
    (5) Information obtained in a granted legalization application and 
contained in the applicant's file is subject to subsequent review in 
reference to future benefits applied for (including petitions for 
naturalization and permanent resident status for relatives).
    (u) Termination of temporary resident staus--(1) Termination of 
temporary resident status; General. The status of an alien lawfully 
admitted for temporary residence under section 245A(a)(1) of the Act may 
be terminated at any time in accordance with section 245A(b)(2) of the 
Act. It is not necessary that a final order of deportation be entered in 
order to terminate temporary resident status. The temporary resident 
status may be terminated upon the occurence of any of the following:
    (i) It is determined that the alien was ineligible for temporary 
residence under section 245A of this Act;
    (ii) The alien commits an act which renders him or her inadmissible 
as an immigrant, unless a waiver is secured pursuant to 
Sec. 245a.2(k)(2).
    (iii) The alien is convicted of any felony, or three or more 
misdemeanors;
    (iv) The alien fails to file for adjustment of status from temporary 
resident to permanent resident on Form I-698 within forty-three (43) 
months of the date he/she was granted status as a temporary resident 
under Sec. 245a.1 of this part.
    (2) Procedure--(i) Termination by the Service. Except as provided in 
paragraph (u)(2)(ii) of this section, termination of an alien's 
temporary resident status under paragraph (u)(1) of this section will be 
made before instituting deportation proceedings against a temporary 
resident alien and only on notice sent to the alien by certified mail 
directed to his or her last known address, and to his or her 
representative, if any. 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). Any appeal 
with the required fee shall be filed with the regional processing 
facility within thirty (30) days after the service of the notice of 
termination. If no appeal is filed within that period, the 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 upon entry of final order of deportation or 
exclusion. (A) The Service may institute deportation or exclusion 
proceedings against a temporary resident alien without regard to the 
procedures set forth in paragraph (u)(2)(i) of this section:
    (1) If the ground for deportation arises under section 
241(a)(2)(A)(iii) of the Act (8 U.S.C. 1251(a)(2)(A)(iii));
    (2) If the ground for deportation arises after the acquisition of 
temporary resident status, and the basis of such ground of deportation 
is not waivable pursuant to section 245A(d)(2)(B)(ii) of the Act (8 
U.S.C. 1255a(d)(2)(B)(ii)); or
    (3) If the ground for exclusion arises after the acquisition of 
temporary resident status and is not waivable pursuant to section 
245A(d)(2)(B)(ii) of the Act (8 U.S.C. 1255a(d)(2)(B)(ii)).
    (B) In such cases, the entry of a final order of deportation or 
exclusion will

[[Page 441]]

automatically terminate an alien's temporary resident status acquired 
under section 245A(a)(1) of the Act.
    (3) Termination not construed as rescission under section 246. For 
the purposes of this part the phrase termination of status of an alien 
granted lawful temporary residence under section 245A(a) of the Act 
shall not be construed to necessitate a rescission of status as 
described in section 246 of the Act, and the proceedings required by the 
regulations issued thereunder shall not apply.
    (4) Return to unlawful status after termination. Termination of the 
status of any alien previously adjusted to lawful temporary residence 
under section 245A(a) of the Act shall act to return such alien to the 
unlawful status held prior to the adjustment, and render him or her 
amenable to exclusion or deportation proceedings under section 236 or 
242 of the Act, as appropriate.
    (v) Ineligibility for immigration benefits. An alien whose status is 
adjusted to that of a lawful temporary resident under section 245A of 
the Act is not entitled to submit a petition pursuant to section 
203(a)(2) or to any other benefit or consideration accorded under the 
Act to aliens lawfuly admitted for permanent residence.
    (w) Declaration of Intending Citizen. An alien who has been granted 
the status of temporary resident under section 245A(a)(1) of this Act 
may assert a claim of discrimination on the basis of citizenship status 
under section 274B of the Act only if he or she has previously filed 
Form I-772 (Declaration of Intending Citizen) after being granted such 
status. The Declaration of Intending Citizen is not required as a basis 
for filing a petition for naturalization; nor shall it be regarded as a 
right to United States citizenship; nor shall it be regarded as evidence 
of a person's status as a resident.

[52 FR 16208, May 1, 1987, as amended at 52 FR 43845, 43846, Nov. 17, 
1987; 53 FR 23382, June 22, 1988; 54 FR 29449, July 12, 1989; 56 FR 
31061, July 9, 1991; 58 45236, Aug. 27, 1993; 60 FR 21040, May 1, 1995; 
60 FR 21975, May 4, 1995; 61 FR 46536, Sept. 4, 1996]



Sec. 245a.3  Application for adjustment from temporary to permanent resident status.

    (a) Application period for permanent residence. (1) An alien may 
submit an application for lawful permanent resident status, with fee, 
immediately subsequent to the granting of lawful temporary resident 
status. Any application received prior to the alien's becoming eligible 
for adjustment to permanent resident status will be administratively 
processed and held by the INS, but will not be considered filed until 
the beginning of the nineteenth month after the date the alien was 
granted temporary resident status as defined in Sec. 245a.2(s) of this 
chapter.
    (2) No application shall be denied for failure to timely apply 
before the end of 43 months from the date of actual approval of the 
temporary resident application.
    (3) The Service Center Director shall sua sponte reopen and 
reconsider without fee any application which was previously denied for 
late filing. No additional fee will be required for those applications 
which are filed during the twelve month extension period but prior to 
July 9, 1991.
    (b) Eligibility. Any alien who has been lawfully admitted for 
temporary resident status under section 245A(a) of the Act, such status 
not having been terminated, may apply for adjustment of status of that 
of an alien lawfully admitted for permanent residence if the alien:
    (1) Applies for such adjustment anytime subsequent to the granting 
of temporary resident status but on or before the end of 43 months from 
the date of actual approval of the termporary resident application. The 
alien need not be physically present in the United States at the time of 
application; however, the alien must establish continuous residence in 
the United States in accordance with the provisions of paragraph (b)(2) 
of this section and must be physically present in the United States at 
the time of interview and/or processing for permanent resident status 
(ADIT processing);

[[Page 442]]

    (2) Establishes continuous residence in the United States since the 
date the alien was granted such temporary residence status. An alien 
shall be regarded as having resided continuously in the United States 
for the purpose of this part if, at the time of applying for adjustment 
from temporary to permanent resident status, or as of the date of 
eligibility for permanent residence, whichever is later, no single 
absence from the United States has exceeded thirty (30) days, and the 
aggregate of all absences has not exceeded ninety (90) days between the 
date of approval of the temporary resident application, Form I-687 (not 
the ``roll-back'' date) and the date the alien applied or became 
eligible for permanent resident status, whichever is later, unless the 
alien can establish that due to emergent reasons or circumstances beyond 
his or her control, the return to the United States could not be 
accomplished within the time period(s) allowed. A single absence from 
the United States of more than 30 days, and aggregate absences of more 
than 90 days during the period for which continuous residence is 
required for adjustment to permanent residence, shall break the 
continuity of such residence, unless the temporary resident can 
establish to the satisfaction of the district director or the Director 
of the Regional Processing Facility that he or she did not, in fact, 
abandon his or her residence in the United States during such period;
    (3) Is admissible to the United States as an immigrant, except as 
otherwise provided in paragraph (g) of this section; and has not been 
convicted of any felony, or three or more misdemeanors; and
    (4)(i)(A) Can demonstrate that the alien meets the requirements of 
section 312 of the Immigration and Nationality Act, as amended (relating 
to minimal understanding of ordinary English and a knowledge and 
understanding of the history and government of the United States); or
    (B) Is satisfactorily pursuing a course of study recognized by the 
Attorney General to achieve such an understanding of English and such a 
knowledge and understanding of the history and government of the United 
States.
    (ii) The requirements of paragraph (b)(4)(i) of this section must be 
met by each applicant. However, these requirements shall be waived 
without formal application for persons who, as of the date of 
application or the date of eligibility for permanent residence under 
this part, whichever date is later, are:
    (A) Under 16 years of age; or
    (B) 65 years of age or older; or
    (C) Over 50 years of age who have resided in the United States for 
at least 20 years and submit evidence establishing the 20-year 
qualification requirement. Such evidence must be submitted pursuant to 
the requirements contained in Section 245a.2(d)(3) of this chapter; or
    (D) Developmentally disabled as defined at Sec. 245a.1(v) of this 
chapter. Such persons must submit medical evidence concerning their 
developmental disability; or
    (E) Physically unable to comply. The physical disability must be of 
a nature which renders the applicant unable to acquire the four language 
skills of speaking, understanding, reading, and writing English in 
accordance with the criteria and precedence established in OI 
312.1(a)(2)(iii) (Interpretations). Such persons must submit medical 
evidence concerning their physical disability.
    (iii) (A) Literacy and basic citizenship skills may be demonstrated 
for purposes of complying with paragraph (b)(4)(i)(A) of this section 
by:
    (1) Speaking and understanding English during the course of the 
interview for permanent resident status. An applicant's ability to read 
and write English shall be tested by excerpts from one or more parts of 
the Federal Textbooks on Citizenship at the elementary literacy level. 
The test of an applicant's knowledge and understanding of the history 
and form of government of the United States shall be given in the 
English language. The scope of the testing shall be limited to subject 
matter covered in the revised (1987) Federal Textbooks on Citizenship or 
other approved training material. The test questions shall be selected 
from a list of 100 standardized questions developed by the Service. In 
choosing the subject matter and in phrasing questions, due

[[Page 443]]

consideration shall be given to the extent of the applicant's education, 
background, age, length of residence in the United States, opportunities 
available and efforts made to acquire the requisite knowledge, and any 
other elements or factors relevant to an appraisal of the adequacy of 
his or her knowledge and understanding; or
    (2) By passing a standardized section 312 test (effective 
retroactively as of November 7, 1988) such test being given in the 
English language by the Legalization Assistance Board with the 
Educational Testing Service (ETS) or the California State Department of 
Education with the Comprehensive Adult Student Assessment System 
(CASAS). The scope of the test is based on the 1987 edition of the 
Federal Textbooks on Citizenship series written at the elementary 
literacy level. An applicant may evidence passing of the standardized 
section 312 test by submitting the approved testing organization's 
standard notice of passing test results at the time of filing Form I-
698, subsequent to filing the application but prior to the interview, or 
at the time of the interview. The test results may be independently 
verified by INS, if necessary.
    (B) An applicant who fails to pass the English literacy and/or the 
U.S. history and government tests at the time of the interview, shall be 
afforded a second opportunity after six (6) months (or earlier, at the 
request of the applicant) to pass the tests, submit evidence of passing 
an INS approved section 312 standardized examination or submit evidence 
of fulfillment of any one of the ``satisfactorily pursuing'' 
alternatives listed at Sec. 245a.1(s) of this chapter. The second 
interview shall be conducted prior to the denial of the application for 
permanent residence and may be based solely on the failure to pass the 
basic citizenship skills requirements. An applicant whose period of 
eligibility expires prior to the end of the six-month re-test period, 
shall still be accorded the entire six months within which to be re-
tested.
    (iv) To satisfy the English language and basic citizenship skills 
requirements under the ``satisfactorily pursuing'' standard as defined 
at Sec. 245a.1(s) of this chapter the applicant must submit evidence of 
such satisfactory pursuit in the form of a ``Certificate of Satisfactory 
Pursuit'' (Form I-699) issued by the designated school or program 
official attesting to the applicant's satisfactory pursuit of the course 
of study as defined at Sec. 245a.1(s)(1) and (4) of this chapter; or a 
high school diploma or general educational development diploma (GED) 
under Sec. 245a.1(s)(2) of this chapter; or certification on letterhead 
stationery from a state recognized, accredited learning institution 
under Sec. 245a.1(s)(3) of this chapter; or evidence of having passed 
the IRCA Test for Permanent Residency under Sec. 245a.1(s)(5) of this 
chapter. Such applicants shall not then be required to demonstrate that 
they meet the requirements of Sec. 245a.3(b)(4)(i)(A) of this chapter in 
order to be granted lawful permanent residence provided they are 
otherwise eligible. Evidence of ``Satisfactory Pursuit'' may be 
submitted at the time of filing Form I-698, subsequent to filing the 
application but prior to the interview, or at the time of the interview 
(the applicant's name and A90M number must appear on any such evidence 
submitted). An applicant need not necessarily be enrolled in a 
recognized course of study at the time of application for permanent 
residency.
    (v) Enrollment in a recognized course of study as defined in 
Sec. 245a.3(b)(5) and issuance of a ``Certificate of Satisfactory 
Pursuit'' must occur subsequent to May 1, 1987.
    (5) A course of study in the English language and in the history and 
government of the United States shall satisfy the requirement of 
paragraph (b)(4)(i) of this section if the course materials for such 
instruction include textbooks published under the authority of section 
346 of the Act, and it is
    (i) Sponsored or conducted by: (A) An established public or private 
institution of learning recognized as such by a qualified state 
certifying agency; (B) An institution of learning approved to issue 
Forms I-20 in accordance with Sec. 214.3 of this chapter; (C) A 
qualified designated entity within the meaning of section 245A(c)(2) of 
the Act, in good-standing with the Service; or (D) Is certified by the 
district director in whose jurisdiction the program is conducted, or is 
certified by the Director of the Outreach Program nationally.

[[Page 444]]

    (ii) A program seeking certification as a course of study recognized 
by the Attorney General under paragraph (b)(5)(i)(D) of this section 
shall file Form I-803, Petition for Attorney General Recognition to 
Provide Course of Study for Legalization: Phase II, with the Director of 
Outreach for national level programs or with the district director 
having jurisdiction over the area in which the school or program is 
located. In the case of local programs, a separate petition must be 
filed with each district director when a parent organization has schools 
or programs in more than one INS district. A petition must identify by 
name and address those schools or programs included in the petition. No 
fee shall be required to file Form I-803;
    (A) The Director of Outreach and the district directors may approve 
a petition where they have determined that (1) a need exists for a 
course of study in addition to those already certified under 
Sec. 245a.3(b)(5)(i) (A), (B), or (C); and/or (2) of this chapter the 
petitioner has historically provided educational services in English and 
U.S. history and government but is not already certified under 
Sec. 245a.3(b)(5)(i)(A), (B), or (C); and (3) of this chapter the 
petitioner is otherwise qualified to provide such course of study;
    (B) Upon approval of the petition the Director of Outreach and 
district directors shall issue a Certificate of Attorney General 
Recognition on Form I-804 to the petitioner. If the petition is denied, 
the petitioner shall be notified in writing of the decision therefor. No 
appeal shall lie from a denial of Form I-803, except that in such case 
where the petitions of a local, cross-district program are approved in 
one district and denied in another within the same State, the petitioner 
may request review of the denied petition by the appropriate Regional 
Commissioner. The Regional Commissioner shall then make a determination 
in this case;
    (C) Each district director shall compile and maintain lists of 
programs approved under paragraph (b)(5)(i)(D) of this section within 
his or her jurisdiction. The Director of Outreach shall compile and 
maintain lists of approved national level programs.
    (6) Notice of participation. All courses of study recognized under 
Sec. 245a.3(b)(5)(i)(A) through (C) of this chapter which are already 
conducting or will conduct English and U.S. history and government 
courses for temporary residents must submit a Notice of Participation to 
the district director in whose jurisdiction the program is conducted. 
Acceptance of ``Certificates of Satisfactory Pursuit'' (Form I-699) 
shall be delayed until such time as the course provider submits the 
Notice of Participation, which notice shall be in the form of a letter 
typed on the letterhead of the course provider (if available) and 
include the following:
    (i) The name(s) of the school(s)/program(s).
    (ii) The complete addresses and telephone numbers of sites where 
courses will be offered, and class schedules.
    (iii) The complete names of persons who are in charge of conducting 
English and U.S. history and government courses of study.
    (iv) A statement that the course of study will issue ``Certificates 
of Satisfactory Pursuit'' to temporary resident enrollees according to 
INS regulations.
    (v) A list of designated officials of the recognized course of study 
authorized to sign ``Certificates of Satisfactory Pursuit'', and samples 
of their original signatures.
    (vi) A statement that if a course provider charges a fee to 
temporary resident enrollees, the fee will not be excessive.
    (vii) Evidence of recognition under 8 CFR 245a.3(b)(5)(i)(A), (B), 
or (C) (e.g., certification from a qualified state certifying agency; 
evidence of INS approval for attendance by nonimmigrant students, such 
as the school code number, or the INS identification number from the QDE 
cooperative agreement).
The course provider shall notify the district director, in writing, of 
any changes to the information contained in the Notice of Participation 
subsequent to its submission within ten (10) days of such change.
A Certificate of Attorney General Recognition to Provide Course of Study 
for Legalization (Phase II), Form I-804, shall be issued to course 
providers who have submitted a Notice of Participation in accordance 
with the provisions

[[Page 445]]

of this section by the distict director. A Notice of Participation 
deficient in any way shall be returned to the course provider to correct 
the deficiency. Upon the satisfaction of the district director that the 
deficiency has been corrected, the course provider shall be issued Form 
I-804. Each district director shall compile and maintain lists of 
recognized courses within his or her district.
    (7) Fee structure. No maximum fee standard will be imposed by the 
Attorney General. However, if it is believed that a fee charged is 
excessive, this factor alone will justify non-certification of the 
course provider by INS as provided in Sec. 245a.3(b)(10) and/or (12) of 
this section. Once fees are established, any change in fee without prior 
approval of the district director or the Director of Outreach may 
justify de-certification. In determining whether or not a fee is 
excessive, district directors and the Director of Outreach shall 
consider such factors as the means of instruction, class size, 
prevailing wages of instructors in the area of the program, and 
additional costs such as rent, materials, utilities, insurance, and 
taxes. District directors and the Director of Outreach may also seek the 
assistance of various Federal, State and local entities as the need 
arises (e.g., State Departments of Education) to determine the 
appropriateness of course fees.
    (8) The Citizenship textbooks to be used by applicants for lawful 
permanent residence under section 245A of the Act shall be distributed 
by the Service to appropriate representatives of public schools. These 
textbooks may otherwise be purchased from the Superintendent of 
Documents, Government Printing Office, Washington, DC 20402, and are 
also available at certain public institutions.
    (9) Maintenance of Student Records. Course providers conducting 
courses of study recognized under Sec. 245a.3(b)(5) of this chapter 
shall maintain for each student, for a period of three years from the 
student's enrollment, the following information and documents:
    (i) Name (as copied exactly from the I-688A or I-688);
    (ii) A-number (90 million series);
    (iii) Date of enrollment;
    (iv) Attendance records;
    (v) Assessment records;
    (vi) Photocopy of signed ``Certificate of Satisfactory Pursuit'' 
issued to the student.
    (10) Issuance of ``Certificate of Satisfactory Pursuit'' (I-699). 
(i) Each recognized course of study shall prepare a standardized 
certificate that is signed by the designated official. The Certificate 
shall be issued to an applicant who has attended a recognized course of 
study for at least 40 hours of a minimum of 60-hour course as 
appropriate for his or her ability level, and is demonstrating progress 
according to the performance standards of the English and U.S. history 
and government course prescribed. Such standards shall conform with the 
provisions of Sec. 245a.1(s) of this chapter.
    (ii) The district director shall reject a certificate if it is 
determined that the certificate is fraudulent or was fraudulently 
issued.
    (iii) The district director shall reject a Certificate if it is 
determined that the course provider is not complying with INS 
regulations. In the case of non-compliance, the district director will 
advise the course provider in writing of the specific deficiencies and 
give the provider thirty (30) days within which to correct such 
deficiencies.
    (iv) District directors will accept Certificates from course 
providers once it is determined that the deficiencies have been 
satisfactorily corrected.
    (v) Course providers which engage in fraudulent activities or fail 
to conform with INS regulations will be removed from the list of INS 
approved programs. INS will not accept Certificates from these 
providers.
    (vi) Certificates may be accepted if a program is cited for 
deficiencies or decertified at a later date and no fraud was involved.
    (vii) Certificates shall not be accepted from a course provider that 
has been decertified unless the alien enrolled in and had been issued a 
certificate prior to the decertification, provided that no fraud was 
involved.
    (viii) The appropriate State agency responsbile for SLIAG funding 
shall be notified of all decertifications by the district director.
    (11) Designated official. (i) The designated official is the 
authorized person from each recognized course of

[[Page 446]]

study whose signature appears on all ``Certificates of Satisfactory 
Pursuit'' issued by that course;
    (ii) The designated official must be 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;
    (iii) (A) The head of the school system or school, the director of 
the Qualified Designated Entity, the head of a program approved by the 
Attorney General, or the president or owner of other institutions 
recognized by the Attorney General must specify a designated official. 
Such designated official may not delegate this designation to any other 
person. Each school or institution may have up to three (3) designated 
officials at any one time. In a multi-campus institution, each campus 
may have up to three (3) designated officials at any one time;
    (B) Each designated official shall have read and otherwise be 
familiar with the ``Requirements and Guidelines for Courses of Study 
Recognized by the Attorney General''. The signature of a designated 
official shall affirm the official's compliance with INS regulations;
    (C) The name, title, and sample signature of each designated 
official for each recognized course of study shall be on file with the 
district director in whose jurisdiction the program is conducted.
    (12) Monitoring by INS. (i) INS Outreach personnel in conjunction 
with the district director shall monitor the course providers in each 
district in order to:
    (A) Assure that the program is a course of study recognized by the 
Attorney General under the provisions of Sec. 245a.3(b)(5).
    (B) Verify the existence of curriculm as defined in Sec. 245a.1(u) 
on file for each level of instruction provided in English language and 
U.S. history and government classes.
    (C) Assure that ``Certificates of Satisfactory Pursuit'' are being 
issued in accordance with Sec. 245a.3(b)(10).
    (D) Assure that records are maintained on each temporary resident 
enrollee in accordance with Sec. 245a.3(b)(9).
    (E) Assure that fees (if any) assessed by the course provider are in 
compliance in accordance with Sec. 245a.3(b)(7).
    (ii) If INS has reason to believe that the service is not being 
provided to the applicant, INS will issue a 24-hour minimum notice to 
the service provider before any site visit is conducted.
    (iii) If it is determined that a course provider is not performing 
according to the standards established in either Sec. 245a.3(b)(10) or 
(12) of this chapter, the district director shall institute 
decertification proceedings. Notice of Intent to Decertify shall be 
provided to the course provider. The course provider has 30 days within 
which to correct performance according to standards established. If 
after the 30 days, the district director is not satisfied that the basis 
for decertification has been overcome, the course provider will be 
decertified. The appropriate State agency shall be notified in 
accordance with Sec. 245a.3(b)(10)(viii) of this chapter. A copy of the 
notice of decertification shall be sent to the State agency.
    (13) Courses of study recognized by the Attorney General as defined 
at Sec. 245a.3(b)(5) of this chapter shall provide certain standards for 
the selection of teachers. Since some programs may be in locations where 
selection of qualified staff is limited, or where budget constraints 
restrict options, the following list of qualities for teacher selection 
is provided as guidance. Teacher selections should include as many of 
the following qualities as possible:
    (i) Specific training in Teaching English to Speakers of Other 
Languages (TESOL);
    (ii) Experience as a classroom teacher with adults;
    (iii) Cultural sensitivity and openness;
    (iv) Familiarity with compentency-based education;
    (v) Knowledge of curriculum and materials adaptation;
    (vi) Knowledge of a second language.
    (c) Ineligible aliens. (1) An alien who has been convicted of a 
felony, or three or more misdemeanors in the United States.
    (2) An alien who is inadmissible to the United States as an 
immigrant, except as provided in Sec. 245a.3(g)(1).

[[Page 447]]

    (3) An alien who was previously granted temporary resident status 
pursuant to section 245A(a) of the Act who has not filed an application 
for permanent resident status under section 245A(b)(1) of the Act by the 
end of 43 months from the date of actual approval of the temporary 
resident application.
    (4) An alien who was not previously granted temporary resident 
status under section 245A(a) of the Act.
    (5) An alien whose temporary resident status has been terminated 
under Sec. 245a.2(u) of this chapter
    (d) Filing the application. The provisions of part 211 of this 
chapter relating to the documentary requirements for immigrants shall 
not apply to an applicant under this part.
    (1) The application must be filed on Form I-698. Form I-698 must be 
accompanied by the correct fee and documents specified in the 
instructions. The application will be mailed to the director having 
jurisdiction over the applicant's place of residence.
    (2) Certification of documents. The submission of original documents 
is not required at the time of filing Form I-698. A copy of a document 
submitted in support of Form I-698 filed pursuant to section 245A(b) of 
the Act and this part may be accepted, though unaccompanied by the 
original, if the copy is certified as true and complete by
    (i) An attorney in the format prescribed in Sec. 204.2(j)(1) of this 
chapter; or
    (ii) An alien's representative in the format prescribed in 
Sec. 204.2(j)(2) of this chapter; or
    (iii) A qualified designated entity (QDE) in good standing as 
defined in Sec. 245a.1(r) of this chapter, if the copy bears a 
certification by the QDE in good-standing, typed or rubber-stamped in 
the following language:

    I certify that I have compared this copy with its original and it is 
a true and complete copy.

Signed:_________________________________________________________________
Date:___________________________________________________________________
Name:___________________________________________________________________
QDE in good-standing representative
Name of QDE in good-standing:___________________________________________
Address of QDE in good-standing:________________________________________
INS-QDE Cooperative Agreement Number:___________________________________

    (iv) Authentication. Certification of documents must be 
authenticated by an original signature. A facsimile signature on a 
rubber stamp will not be acceptable.
    (v) Original documents. Original documents must be presented when 
requested by the Service. 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 which are submitted in evidence must be 
certified as true and complete by such parties and must bear their seal 
or signature or the signature and title of persons authorized to act in 
their behalf. At the discretion of the district director and/or the 
Regional Processing Facility director, original documents may be kept 
for forensic examination.
    (3) A separate application (I-698) must be filed by each eligible 
applicant. All fees required by Sec. 103.7(b)(1) of this chapter must be 
submitted in the exact amount in the form of a money order, cashier's 
check or certified bank check. No personal checks or currency will be 
accepted. Fees will not be waived or refunded under any circumstances.
    (4) Applicants who filed for temporary resident status prior to 
December 1, 1987, are required to submit the results of a serologic test 
for HIV virus on Form I-693, ``Medical Examination of Aliens Seeking 
Adjustment of Status'', completed by a designated civil surgeon, unless 
the serologic test for HIV was performed and the results were submitted 
on Form I-693 when the applicant filed for temporary resident status. 
Applicants who did submit an I-693 reflecting a serologic test for HIV 
was performed prior to December 1, 1987, must submit evidence of this 
fact when filing the I-698 application in order to be relieved from the 
requirement of submitting another I-693. If such evidence is not 
available, applicants may note on their I-698 application their prior 
submission of the results of the serologic test for HIV. This 
information shall then be verified at the Regional Processing Facility. 
Applicants having to submit an I-693 pursuant to this section are not 
required

[[Page 448]]

to have a complete medical examination. All HIV-positive applicants 
shall be advised that a waiver of the ground of excludability under 
section 212(a)(6) of the Act is available and shall be provided the 
opportunity to apply for the waiver. To be eligible for the waiver, the 
applicant must establish that:
    (i) The danger to the public health of the United States created by 
the alien's admission to the United States is minimal,
    (ii) The possibility of the spread of the infection created by the 
alien's admission to the United States is minimal, and
    (iii) There will be no cost incurred by any government agency 
without prior consent of that agency. Provided these criteria are met, 
the waiver may be granted only for humanitarian purposes, to assure 
family unity, or when the granting of such a waiver is in the public 
interest in accordance with Sec. 245a.3(g)(2) of this chapter.
    (5) If necessary, the validity of an alien's temporary resident card 
(I-688) will be extended in increments of one (1) year until such time 
as the decision on an alien's properly filed application for permanent 
residence becomes final.
    (6) An application lacking the proper fee or incomplete in any way 
shall be returned to the applicant with request for the proper fee, 
correction, additional information, and/or documentation. Once an 
application has been accepted by the Service and additional information 
and/or documentation is required, the applicant shall be sent a notice 
to submit such information and/or documentation. In such case the 
application Form I-698 shall be retained at the RPF. If a response to 
this request is not received within 60 days, a second request for 
correction, additional information, and/or documentation shall be made. 
If the second request is not complied with by the end of 43 months from 
the date the application for temporary residence, Form I-687, was 
approved the application for permanent residence will be adjudicated on 
the basis of the existing record.
    (e) Interview. Each applicant regardless of age, must appear at the 
appropriate Service office and must be fingerprinted for the purpose of 
issuance of Form I-551. Each applicant shall be interviewed by an 
immigration officer, except that the adjudicative interview may be 
waived for a child under 14, or when it is impractical because of the 
health or advanced age of the applicant. An applicant failing to appear 
for the scheduled interview may, for good cause, be afforded another 
interview. Where an applicant fails to appear for two scheduled 
interviews, his or her application shall be held in abeyance until the 
end of 43 months from the date the application for temporary residence 
was approved and adjudicated on the basis of the existing record.
    (f) Numerical limitations. The numerical limitations of sections 201 
and 202 of the Act do not apply to the adjustment of aliens to lawful 
permanent resident status under section 245A(b) of the Act.
    (g) Applicability of exclusion grounds--(1) Grounds of exclusion not 
to be applied. The following paragraphs of section 212(a) of the Act 
shall not apply to applicants for adjustment of status from temporary 
resident to permanent resident status: (14) workers entering without 
labor certification; (20) immigrants not in possession of valid entry 
documents; (21) visas issued without compliance of section 203; (25) 
illiterates; and (32) graduates of non-accredited medical schools.
    (2) Waiver of grounds of excludability. Except as provided in 
paragraph (g)(3) of this section, the Service may waive any 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 otherwise in the public interest. In any case where a 
provision of section 212(a) of the Act has been waived in connection 
with an alien's application for lawful temporary resident status under 
section 245A(a) of the Act, no additional waiver of the same ground of 
excludability will be required when the alien applies for permanent 
resident status under section 245A(b)(1) of the Act. In the event that 
the alien was excludable under any provision of section 212(a) of the 
Act at the time of temporary residency and failed to apply for a waiver 
in connection with the application for

[[Page 449]]

temporary resident status, or becomes excludable subsequent to the date 
temporary residence was granted, a waiver of the ground of 
excludability, if available, will be required before permanent resident 
status may be granted.
    (3) Grounds of exclusion that may not be waived. Notwithstanding any 
other provisions of the Act the following provisions of section 212(a) 
of the Act may not be waived by the Attorney General under paragraph 
(g)(2) of this section:
    (i) Paragraphs (9) and (10) (criminals);
    (ii) Paragraph (15) (public charge) except for an alien who is or 
was an aged, blind, or disabled individual (as defined in section 
1614(a)(1) of the Social Security Act);
    (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) (subversives);
    (v) Paragraph (33) (participated in Nazi persecution).
    (4) Determination of Likely to become a public charge and Special 
Rule. Prior to use of the special rule for determination of public 
charge, paragraph (g)(4)(iii) of this section, an alien must first be 
determined to be excludable under section 212(a)(15) of the Act. If the 
applicant is determined to be likely to become a public charge, he or 
she may still be admissible under the terms of the Special Rule.
    (i) In determining whether an alien is likely to become a public 
charge financial responsibility of the alien is to be established by 
examining the totality of the alien's circumstances at the time of his 
or her application for legalization. The existence or absence of a 
particular factor should never be the sole criteria for determining if 
an alien is likely to become a public charge. The determination of 
financial responsibility should be a prospective evaluation based on the 
alien's age, health, income, and vocation.
    (ii) The Special Rule for determination of public charge, paragraph 
(g)(4)(iii) of this section, is to be applied only after an initial 
determination that the alien is inadmissible under the provisions of 
section 212(a)(15) of the act.
    (iii) Special Rule. An alien who has a consistent employment history 
which shows the ability to support himself or herself even though his or 
her income may be below the poverty level is not excludable under 
paragraph (g)(3)(ii) of this section. The alien's employment history 
need not be continuous in that it is uninterrupted. It should be 
continuous in the sense that the alien 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 
without recourse to public cash assistance. The Special Rule is 
prospective in that the Service shall determine, based on the alien'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. It is not 
necessary to file a waiver in order to apply the Special Rule for 
Determination of Public Charge.
    (5) Public cash assistance and criminal history verification. 
Declarations by an applicant that he or she has not been the recipient 
of public cash assistance and/or has not had a criminal record are 
subject to a verification of facts by the Service. The applicant must 
agree to fully cooperate in the verification process. Failure to assist 
the Service in verifying information necessary for proper adjudication 
may result in denial of the application.
    (h) Departure. An applicant for adjustment to lawful permanent 
resident status under section 245A(b)(1) of the Act who was granted 
lawful temporary resident status under section 245A(a) of the Act, shall 
be permitted to return to the United States after such brief and casual 
trips abroad, as long as the alien reflects a continuing intention to 
adjust to lawful permanent resident status. However, such absences from 
the United States must not exceed the periods of time specified in 
Sec. 245a.3(b)(2)

[[Page 450]]

of this chapter in order for the alien to maintain continuous residence 
as specified in the Act.
    (i) Decision. The applicant shall be notified in writing of the 
decision, and, if the application is denied, of the reason therefor. 
Applications for permanent residence under this chapter will not be 
denied at local INS offices (districts, suboffices, and legalization 
offices) until the entire record of proceeding has been reviewed. An 
application will not be denied if the denial is based on adverse 
information not previously furnished to the Service by the alien without 
providing the alien an opportunity to rebut the adverse information and 
to present evidence in his or her behalf. If inconsistencies are found 
between information submitted with the adjustment application and 
information previously furnished to the Service, the applicant shall be 
afforded the opportunity to explain discrepancies or rebut any adverse 
information. A party affected under this part by an adverse decision is 
entitled to file an appeal on Form I-694. If an application is denied, 
work authorization will be granted until a final decision has been 
rendered on an appeal or until the end of the appeal period if no appeal 
is filed. An applicant whose appeal period has ended is no longer 
considered to be an Eligible Legalized Alien for the purposes of the 
administration of State Legalization Impact Assistance Grants (SLIAG) 
funding. An alien whose application is denied will not be required to 
surrender his or her temporary resident card (I-688) until such time as 
the appeal period has tolled, or until expiration date of the I-688, 
whichever date is later. After exhaustion of an appeal, an applicant who 
believes that the grounds for denial have been overcome may submit 
another application with fee, provided that the application is submitted 
within his or her eligibility period.
    (j) Appeal process. An adverse decision under this part may be 
appealed to the Associate Commissioner, Examinations (Administrative 
Appeals Unit) the appellate authority designated in Sec. 103.1(f)(2). 
Any appeal shall be submitted to the Regional Processing Facility with 
the required fee within thirty (30) days after service of the Notice of 
Denial in accordance with the procedures of Sec. 103.3(a) of this 
chapter. An appeal received after the thirty (30) day period has tolled 
will not be accepted. The thirty (30) day period for submitting an 
appeal begins three days after the notice of denial is mailed. If a 
review of the Record of Proceeding (ROP) is requested by the alien or 
his or her legal representative and an appeal has been properly filed, 
an additional thirty (30) days will be allowed for this review from the 
time the Record of Proceeding is photocopied and mailed. A brief may be 
submitted with the appeal form or submitted up to thirty (30) calendar 
days from the date of receipt of the appeal form at the Regional 
Processing Facility. Briefs filed after submission of the appeal should 
be mailed directly to the Regional Processing Facility. For good cause 
shown, the time within which a brief supporting an appeal may be 
submitted may be extended by the Director of the Regional Processing 
Facility.
    (k) Motions. The Regional Processing Facility director may reopen 
and reconsider any adverse decision sua sponte. When an appeal to the 
Associate Commissioner, Examinations (Administrative Appeals Unit) has 
been filed, the INS director of the Regional Processing Facility may 
issue a new decision that will grant the benefit which has been 
requested. The director's new 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.
    (l) Certifications. The Regional Processing Facility director or 
district director may, in accordance with Sec. 103.4 of this chapter, 
certify a decision to the Associate Commissioner, Examinations 
(Administrative Appeals Unit) when the case involves an unusually 
complex or novel question of law or fact. The decision on an appealed 
case subsequently remanded back to either the Regional Processing 
Facility director or the district director will be certified to the 
Administrative Appeals Unit.
    (m) Date of adjustment to permanent residence. The status of an 
alien whose

[[Page 451]]

application for permanent resident status is approved shall be adjusted 
to that of a lawful permanent resident as of the date of filing of the 
application for permanent residence or the eligibility date, whichever 
is later. For purposes of making application to petition for 
naturalization, the continuous residence requirements for naturalization 
shall begin as of the date the alien's status is adjusted to that of a 
person lawfully admitted for permanent residence under this part.
    (n) Limitation on access to information and confidentiality. (1) No 
person other than a sworn officer or employee of the Department of 
Justice or bureau of agency thereof, will be permitted to examine 
individual applications. For purposes of this part, any individual 
employed under contract by the Service to work in connection with the 
Legalization Program shall be considered an employee of the Department 
of Justice or bureau or agency thereof.
    (2) No information furnished pursuant to an application for 
permanent resident status under this section shall be used for any 
purpose except: (i) To make a determination on the application; or (ii) 
for the enforcement of the provisions encompassed in section 245A(c)(6) 
of the Act, except as provided in paragraph (n)(3) of this section.
    (3) 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 245A(c)(6) of the Act, the Service shall 
refer the matter to the United States Attorney for prosecution of the 
alien and/or of any person who created or supplied a false writing or 
document for use in an application for adjustment of status under this 
part.
    (4) Information contained in granted legalization files may be used 
by the Service at a later date to make a decision (i) On an immigrant 
visa petition or other status filed by the applicant under section 
204(a) of the Act; (ii) On a naturalization application submitted by the 
applicant; (iii) For the preparation of reports to Congress under 
section 404 of IRCA, or; (iv) For the furnishing of information, at the 
discretion of the Attorney General, in the same manner and circumstances 
as census information may be disclosed by the Secretary of Commerce 
under section 8 of title 13, Unites States Code.
    (o) Rescission. Rescission of adjustment of status under 245a shall 
occur under the guidelines established in section 246 of the Act.

[54 FR 29449, July 12, 1989; 54 FR 43384, Oct. 24, 1989; as amended at 
56 FR 31061, July 9, 1991; 57 FR 3926, Feb. 3, 1992; 59 FR 33905, July 
1, 1994]



Sec. 245a.4  Adjustment to lawful resident status of certain nationals of countries for which extended voluntary departure has been made available.

    (a) Definitions. As used in this section: (1) Act means the 
Immigration and Nationality Act, as amended by the Immigration Reform 
and Control Act of 1986.
    (2) Service means the Immigration and Naturalization Service (INS).
    (3) Resided continuously means that the alien shall be regarded as 
having resided continuously in the United States if, at the time of 
filing of the application for temporary resident status:
    (i) No single absence from the United States has exceeded 45 days, 
and the aggregate of all absences has not exceeded 180 days between July 
21, 1984, through the date the application for temporary resident status 
is filed, unless the alien can establish that due to emergent reasons, 
his or her return to the United States could not be accomplished within 
the time period allowed;
    (ii) The alien was maintaining residence in the United States; and
    (iii) The alien's departure from the United States was not based on 
an order of deportation.

An alien who has been absent from the United States in accordance with 
the Service's advance parole procedures shall not be considered as 
having interrupted his or her continuous residence as required at the 
time of filing an application. An alien who, after appearing for a 
scheduled interview to obtain an immigrant visa at a Consulate or 
Embassy in Canada or Mexico but who

[[Page 452]]

subsequently is not issued an immigrant visa and who is paroled back 
into the United States pursuant to the stateside criteria program, shall 
be considered as having resided continuously.
    (4) Continous residence means that the alien shall be regarded as 
having resided continously in the United States if, at the time of 
applying for adjustment from temporary residence to permanent resident 
status: No single absence from the United States has exceeded 30 days, 
and the aggregate of all absences has not exceeded 90 days between the 
date on which lawful temporary resident status was granted and the date 
permanent resident status was applied for, unless the alien can 
establish that due to emergent reasons or extenuating circumstances 
beyond his or her control, the return to the United States could not be 
accomplished within the time period(s) allowed. A single absence from 
the United States of more than 30 days, and aggregate absences of more 
than 90 days during the period for which continuous residence is 
required for adjustment to permanent resident status, shall break the 
continuity of such residence unless the temporary resident can establish 
to the satisfaction of the district director that he or she did not, in 
fact, abandon his or her residence in the United States during such 
period.
    (5) To make a determination means obtaining and reviewing all 
information required to adjudicate an application for the benefit sought 
and making a decision thereon. If fraud, willful misrepresentation or 
concealment of a material fact, knowingly providing a false writing or 
document, knowingly making a false statement or representation, or any 
other activity prohibited by the Act is established during the process 
of making the determination on the application, the Service shall refer 
the matter to the United States Attorney for prosecution of the alien or 
of any person who created or supplied a false writing or document for 
use in an application for adjustment of status under this part.
    (6) Continuous physical presence means actual continuous presence in 
the United States since December 22, 1987, until filing of any 
application for adjustment of status. Aliens who were outside of the 
United States after enactment may apply for temporary residence if they 
reentered prior to March 21, 1988, provided they meet the continuous 
residence requirements, and are otherwise eligible for legalization.
    (7) Brief, casual, and innocent means a departure authorized by the 
Service (advance parole) subsequent to March 21, 1988, for not more than 
30 days for legitimate emergency or humanitarian purposes unless a 
further period of authorized departure has been granted in the 
discretion of the district director or a departure was beyond the 
alien's control.
    (8) Brief and casual means temporary trips abroad as long as the 
alien establishes a continuing intention to adjust to lawful permanent 
resident status. However, such absences must not exceed the specific 
periods of time required in order to maintain continuous residence.
    (9) Certain nationals of countries for which extended voluntary 
departure has been made available on the basis of a nationality group 
determination at any time during the 5-year period ending on November 1, 
1987 is limited to nationals of Poland, Afghanistan, Ethiopia, and 
Uganda.
    (10) Public cash assistance means income or need-based monetary 
assistance to include, but not limited to, supplemental security income 
received by the alien 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).
    (11) Designated entity means any state, local, church, community, 
farm labor organization, voluntary organization, association of 
agricultural employers or individual determined by the Service to be 
qualified to assist aliens in the preparation of applications for 
legalization status.

[[Page 453]]

    (12) Through the passage of time means through the expiration date 
of the nonimmigrant permission to remain in the United States, including 
any extensions and/or change of status.
    (13) Prima facie eligibility means eligibility is established if the 
applicant presents a completed I-687 and specific factual information 
which in the absence of rebuttal will establish a claim of eligibility 
under this part.
    (b) Application for temporary residence--(1) Application for 
temporary residence. (i) An alien who is a national of Poland, Uganda, 
Ethiopia, or Afghanistan who has resided continuously in the United 
States since prior to July 2l, 1984, and who believes that he or she 
meets the eligibility requirements of section 245A of the Act must make 
application within the 21-month period beginning on March 21, 1988, and 
ending on December 22, 1989.
    (ii) An alien who fails to file an application for adjustment of 
status to that of a temporary resident under Sec. 245A.4 of this part 
during the time period, will be statutorily ineligible for such 
adjustment of status.
    (2) Eligibility (i) The following categories of aliens who are not 
otherwise excludable under section 212(a) of the Act are eligible to 
apply for status to that of a person admitted for temporary residence:
    (A) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, (other than an alien who entered as a nonimmigrant) who 
establishes that he or she entered the United States prior to July 21, 
1984, and who has thereafter resided continuously in the United States, 
and who has been physically present in the United States from December 
22, 1987, until the date of filing the application.
    (B) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, and establishes that he or she entered the United States as 
a nonimmigrant prior to July 21, 1984, and whose period of authorized 
admission expired through the passage of time prior to January 21, 1985, 
and who has thereafter resided continuously in the United States, and 
who has been physically present in the United States from December 22, 
1987, until the date of filing the application.
    (C) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, and establishes that he or she entered the United States as 
a nonimmigrant prior to July 21, 1984, and who applied for asylum prior 
to July 21, 1984, and who has thereafter resided continuously in the 
United States, and who has been physically present in the United States 
from December 22, 1987, until the date of filing the application.
    (D) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, who would otherwise be eligible for temporary resident 
status and who establishes that he or she resided continuously in the 
United States prior to July 21, 1984, and who subsequently reentered the 
United States as a nonimmigrant in order to return to an unrelinquished 
residence. An alien described in this paragraph must have received a 
waiver of 212(a)(19) as an alien who entered the United States by fraud.
    (E) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, and was a nonimmigrant who entered the United States in the 
classification A, A-1, A-2, G, G-1, G-2, G-3, or G-4, for Duration of 
Status (D/S), and whose qualifying employment terminated or who ceased 
to be recognized by the Department of State as being entitled to such 
classification prior to January 21, 1985, and who thereafter continued 
to reside in the United States.
    (F) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, and who was a nonimmigrant who entered the United States as 
an F, F-1, or F-2 for Duration of Status (D/S), and who completed a full 
course of studies, including practical training (if any), and whose time 
period to depart the United States after completion of studies expired 
prior to January 21, 1985, and who has thereafter continued to reside in 
the United States. Those students placed in a nunc pro tunc retroactive 
student status which would otherwise preclude their eligibility for 
legalization under this section, must present evidence that they had 
otherwise terminated their status during the requisite time period. A 
dependent F-2

[[Page 454]]

alien otherwise eligible who was admitted into the United States with a 
specific time period, as opposed to duration of status, documented on 
Service Form I-94, Arrival-Departure Record that extended beyond July 
21, 1984 is considered eligible if the principal F-1 alien is found 
eligible.
    (3) Ineligible aliens. (i) An alien who has been convicted of a 
felony, or three or more misdemeanors.
    (ii) An alien who has assisted in the persecution of any person or 
persons on account of race, religion, nationality, membership in a 
particular social group, or political opinion.
    (iii) An alien excludable under the provisions of section 212(a) of 
the Act whose grounds of excludability may not be waived.
    (4) Documentation. Evidence to support an alien's eligibility for 
temporary residence status shall include documents establishing proof of 
identity, proof of nationality, proof of residence, and proof of 
financial responsibility, as well as photographs, a completed 
fingerprint card (Form FD-258), and a completed medical report of 
examination (Form I-693). All documentation submitted will be subject to 
Service verification. Applications submitted with unverifiable 
documentation may be denied. Failure by an applicant to authorize 
release to INS of information protected by the Privacy Act and/or 
related laws in order for INS to adjudicate a claim may result in denial 
of the benefit sought. Acceptable supporting documents for the four 
categories of documentation are discussed as follows:
    (i) Proof of identity. Evidence to establish identity is listed 
below in descending order of preference:
    (A) Passport;
    (B) Birth certificate;
    (C) Any national identity document from the alien's country of 
origin bearing photo and fingerprint;
    (D) Driver's license or similar document issued by a state if it 
contains a photo;
    (E) Baptismal Record/Marriage Certificate; or
    (F) Affidavits.
    (ii) Proof of nationality. Evidence to establish nationality is 
listed as follows:
    (A) Passport;
    (B) Birth certificate;
    (C) Any national identity document from the alien's country of 
origin bearing photo and fingerprint;
    (D) Other credible documents, including those created by, or in the 
possession of the INS, or any other documents (excluding affidavits) 
that, when taken singly, or together as a whole, establish the alien's 
nationality.
    (iii) Assumed names--(A) 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. The applicant's true identity is established 
pursuant to the requirements of paragraph (b)(4)(i) and (ii) of this 
section. The assumed name must appear in the documentation provided by 
the applicant to establish eligibility. To meet the requirement of this 
paragraph, documentation must be submitted to prove the common identity, 
i.e., that the assumed name was in fact used by the applicant.
    (B) 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, 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.
    (iv) Proof of residence. Evidence to establish proof of continuous 
residence in the United States during the requisite period of time may 
consist of any combination of the following:
    (A) Past employment records, which may consist of pay stubs, W-2 
Forms, certification of the filing of Federal income tax returns on IRS 
Form 6166, a state verification of the filing of state income tax 
returns, letters from employer(s) or, if the applicant has been

[[Page 455]]

in business for himself or herself, letters from banks and other firms 
with whom he or she has done business. In all of the above, the name of 
the alien and the name of the employer or other interested organizations 
must appear on the form or letter, as well as relevant dates. Letters 
from employers should be on employer letterhead stationery, if the 
employer has such stationery, and must include:
    (1) Alien's address at the time of employment;
    (2) Exact period of employment;
    (3) Periods of layoff;
    (4) Duties with the company;
    (5) Whether or not the information was taken from official company 
records; and
    (6) Where records are located, whether the Service may have access 
to the records.

If the records are unavailable, an affidavit form letter stating that 
the alien's employment records are unavailable and why such records are 
unavailable may be accepted in lieu of paragraphs (b)(4)(iv)(A)(5) and 
(6) of this section. This affidavit form letter shall be signed, 
attested to by the employer under penalty of perjury, and shall state 
the employer's willingness to come forward and give testimony if 
requested.
    (B) Utility bills (gas, electric, phone, etc.) receipts, or letters 
from companies showing the dates during which the applicant received 
service are acceptable documentation.
    (C) School records (letters, report cards, etc.) from the schools 
that the applicant or his or her children have attended in the United 
States must show the name of school and periods of school attendance.
    (D) Hospital or medical records showing treatment or hospitalization 
of the applicant or his or her children must show the name of the 
medical facility or physician and the date(s) of the treatment or 
hospitalization.
    (E) Attestations by churches, unions, or other organizations as to 
the applicant's residence by letter which:
    (1) Identify applicant by name;
    (2) Are signed by an official (whose title is shown);
    (3) Show inclusive dates of membership;
    (4) State the address where applicant resided during membership 
period;
    (5) Include the seal of the organization impressed on the letter or 
the letterhead of the organization, if the organization has letterhead 
stationery;
    (6) Establish how the author knows the applicant; and
    (7) Establish the origin of the information being attested to.
    (F) Additional documents to support the applicant's claim may 
include:
    (1) Money order receipts for money sent into or out of the country;
    (2) Passport entries;
    (3) Birth certificates of children born in the United States;
    (4) Bank books with dated transactions;
    (5) Letters or correspondence between applicant and other person or 
organization;
    (6) Social Security card;
    (7) Selective Service card;
    (8) Automobile license receipts, title, vehicle registration, etc.;
    (9) Deeds, mortgages, contracts to which applicant has been a party;
    (10) Tax receipts;
    (11) Insurance policies, receipts, or letters; and
    (12) Any other relevant document.
    (v) Proof of financial responsibility. An applicant for adjustment 
of status under this part is subject to the provisions of section 
212(a)(15) of the Act relating to excludability of aliens likely to 
become public charges. Generally, the evidence of employment submitted 
under paragraph (b)(4)(iv)(A) of this section will serve to demonstrate 
the alien's financial responsibility during the documented period(s) of 
employment. If the alien's period(s) of residence in the United States 
include significant gaps in employment or if there is reason to believe 
that the alien may have received public assistance while employed, the 
alien may be required to provide proof that he or she has not received 
public cash assistance. An applicant for residence who is determined 
likely to become a public charge and is unable to overcome this 
determination after application of the Special Rule under paragraph 
(b)(11)(iv)(C) of this section will be denied adjustment. The burden of 
proof to demonstrate the inapplicability of this provision of law

[[Page 456]]

lies with the applicant who may provide:
    (A) Evidence of a history of employment (i.e., employment letter, W-
2 forms, income tax returns, etc.);
    (B) Evidence that he/she is self-supporting (i.e., bank statements, 
stocks, other assets, etc.); or
    (C) Form I-134. Affidavit of Support, completed by a spouse on 
behalf of the applicant and/or children of the applicant or a parent in 
behalf of children which guarantees complete or partial financial 
support. Acceptance of the Affidavit of Support shall be extended to 
other family members in unusual family circumstances.

Generally, the evidence of employment submitted under paragraph 
(b)(4)(iv)(A) of this section will serve to demonstrate the alien's 
financial responsibility during the documented period(s) of employment. 
If the alien's period(s) of residence in the United States include 
significant gaps in employment or if there is reason to believe that the 
alien may have received public assistance while employed, the alien may 
be required to provide proof that he or she has not received public cash 
assistance. An applicant for residence who is likely to become a public 
charge will be denied adjustment.
    (vi) 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 resided in the United States for the 
requisite periods, is admissible to the United States under the 
provisions of section 245A of the Act, and is otherwise eligible for 
adjustment of status under this section. The inference to be drawn from 
the documentation provided shall depend on the extent of the 
documentation, its credibility and amenability to verification.
    (vii) Evidence. The sufficiency of all evidence produced by the 
applicant will be judged according to its probative value and 
credibility. To meet his or her burden of proof, an applicant must 
provide evidence of eligibility apart from his or her own testimony. In 
judging the probative value and credibility of the evidence submitted, 
greater weight will be given to the submission of original 
documentation.
    (5) Filing of application. (i) The application must be filed on Form 
I-687 at an office of a designated entity or at a Service office within 
the jurisdiction of the district where the applicant resides. If the 
application is filed with a designated entity, the alien must have 
consented to having the designated entity forward the application to the 
Service office. In the case of applications filed at a Service office, 
the district director may, at his or her discretion:
    (A) Require the applicant to file the application in person; or
    (B) Require the applicant to file the application by mail; or
    (C) Permit the filing of applications whether by mail or in person.

The applicant must appear for a personal interview at the Service office 
as scheduled. If the applicant is 14 years of age or older, the 
application must be accompanied by a completed Form FD-258 (Applicant 
Card).
    (ii) At the time of the interview, whenever possible, original 
documents must be submitted except the following: Official government 
records; employment or employment-related records maintained by 
employers, union, 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 the original document is desired by the 
applicant, the document 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, 
original documents, even if accompanied by certified copies, may be 
temporarily retained for forensic examination by the Document Analysis 
Unit at the Regional Processing Facility having jurisdiction over the 
Service office

[[Page 457]]

to which the documents were submitted.
    (iii) A separate application (I-687) must be filed by each eligible 
applicant. All fees required by Sec. 103.7(b)(1) of this chapter must be 
submitted in the exact amount in the form of a money order, cashier's 
check, or certified 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.
    (6) Filing date of application. The date the alien submits a 
completed application to a Service office or designated entity shall be 
considered the filing date of the application, provided that in the case 
of an application filed at a designated entity the alien has consented 
to having the designated entity forward the application to the Service 
office having jurisdiction over the location of the alien's residence. 
Designated entities are required to forward completed applications to 
the appropriate Service office within 60 days of receipt.
    (7) Selective Service registration. At the time of filing an 
application under this section, male applicants over the age of 17 and 
under the age of 26, are required to be registered under the Military 
Selective Service Act. An applicant shall present evidence that he has 
previously registered under that Act in the form of a letter of 
acknowledgement from the Selective Service System, or such alien shall 
present a completed and signed Form SSS-1 at the time of filing Form I-
687 with the Immigration and Naturalization Service or a designated 
entity. Form SSS-1 will be forwarded to the Selective Service System by 
the Service.
    (8) Continuous residence. (i) For the purpose of this Act, an 
applicant for temporary residence status shall be regarded as having 
resided continuously in the United States if, at the time of filing of 
the application:
    (A) No single absence from the United States has exceeded 45 days, 
and the aggregate of all absences has not exceeded 180 days between July 
2l, 1984, through the date the application for temporary resident status 
is filed, unless the alien can establish that due to emergent reasons, 
his or her return to the United States could not be accomplished within 
the time period allowed;
    (B) The alien was maintaining a residence in the United States; and
    (C) The alien's departure from the United States was not based on an 
order of deportation.
    (ii) An alien who has been absent from the United States in 
accordance with the Service's advance parole procedures shall not be 
considered as having interrupted his or her continuous residence as 
required at the time of filing an application under this section.
    (9) Medical examination. (i) An applicant under this part shall be 
required to submit to an examination by a designated civil surgeon at no 
expense to the government. The designated civil surgeon shall report on 
the findings of the mental and physical condition of the applicant and 
the determination of the alien's immunization status on Form I-693, 
``Medical Examination of Aliens Seeking Adjustment of Status, (Pub. L. 
99-603)''. Results of the medical examination must be presented to the 
Service at the time of interview and shall be incorporated into the 
record. Any applicant certified under paragraphs (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.
    (ii) All applicants who file for temporary resident status are 
required to include the results of a serological test for the HIV virus 
on the I-693. All HIV-positive applicants shall be advised that a waiver 
is available and shall be provided with the opportunity to apply for a 
waiver.
    (10) Interview. Each applicant, regardless of age, must appear at 
the appropriate Service office and must be fingerprinted for the purpose 
of issuance of an employment authorization document and Form I-688. Each 
applicant shall be interviewed by an immigration officer, except that 
the interview may be waived for a child under 14 years of age, or when 
it is impractical because of the health or advanced age of the 
applicant.
    (11) Applicability of exclusion grounds--(i) Grounds of exclusion 
not to be applied. Paragraphs (14), (workers entering

[[Page 458]]

without labor certification); (20), (immigrants not in possession of a 
valid entry document); (21), (visas issued without compliance with 
section 203); (25), (illiterates); and (32) (graduates of non-accredited 
medical schools) of section 212(a) of the Act shall not apply to 
applicants for temporary resident status.
    (ii) Waiver of grounds of exclusion. Except as provided in paragraph 
(b)(11)(iii) of this section, the Attorney General 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 filed jointly with an 
application for temporary residence under this section, it shall be 
accepted for processing at the Service office. If an application for 
waiver of grounds of excludability is submitted after the alien's 
preliminary interview at the Service 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 must be in the form of a money order, cashier's check, or bank 
check. No personal checks or currency will be accepted. Fees will not be 
waived or refunded under any circumstances. An application for waiver of 
grounds of excludability under this part shall be approved or denied by 
the director of the Regional Processing Facility in whose jurisdiction 
the alien's application for adjustment of status was filed except that 
in cases involving clear statutory ineligibility or fraud, such 
application may be denied by the district director in whose jurisdiction 
the application is filed, and in cases returned to a Service office for 
re-interview, such application may be approved at the discretion of the 
district director. The applicant shall be notified of the decision and, 
if the application is denied, of the reason therefore. Appeal from an 
adverse decision under this part may be taken by the applicant on Form 
I-694 within 30 days after the service of the notice only to the 
Service's Administrative Appeals Unit pursuant to the provisions of 
section 103.3(a) of this chapter.
    (iii) Grounds of exclusion that may not be waived. Notwithstanding 
any other provision of the Act, the following provisions of section 
212(a) may not be waived by the Attorney General under paragraph 
(b)(11)(ii) of this section:
    (A) Paragraphs (9) and (10) (criminals);
    (B) Paragraph (23) (narcotics) except for a single offense of simple 
possession of thirty grams or less of marijuana;
    (C) Paragraphs (27) (prejudicial to the public interest), (28) 
(communist), and (29) (subversive);
    (D) Paragraph (33) (participated in Nazi persecution).
    (iv) Determination of Likely to become a public charge and the 
special rule. (A) Prior to use of the special rule for determination of 
public charge, an alien must first be determined to be excludable under 
section 212(a)(15) of the Act. If the applicant is determined to be 
likely to become a public charge, he or she may still be admissible 
under the terms of the Special Rule.
    (B) In determining whether an alien is likely to become a public 
charge, financial responsibility of the alien is to be established by 
examining the totality of the alien's circumstances at the time of his 
or her application for legalization. The existence or absence of a 
particular factor should never be the sole criterion for determining if 
an alien is likely to become a public charge. The determination of 
financial responsibility should be a prospective evaluation based on the 
alien's age, health, income and vocation.
    (C) An alien who has a consistent employment history which shows the 
ability to support himself or herself even though his or her income may 
be below the poverty level may be admissible under this section. The 
alien's employment history need not be continuous in that it is 
uninterrupted. It should be continuous in the sense that the alien shall 
be regularly attached to the workforce, has an income over a substantial 
period of the applicable time,

[[Page 459]]

and has demonstrated the capacity to exist on his or her income without 
recourse to public cash assistance. The Special Rule is prospective in 
that the Service shall determine, based on the alien'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. It is not necessary to file a waiver in order to 
apply the Special Rule for Determination of Public Charge.
    (v) Public assistance and criminal history verification. 
Declarations by an applicant that he or she has not been the recipient 
of public cash assistance and/or has not had a criminal record are 
subject to a verification of facts by the Service. The applicant must 
agree to fully cooperate in the verification process. Failure to assist 
the Service in verifying information necessary for the adjudication of 
the application may result in a denial of the application.
    (12) Continuous physical presence since December 22, 1987. (i) An 
alien applying for adjustment to temporary resident status must 
establish that he or she has been continuously physically present in the 
United States since December 22, 1987. Aliens who were outside of the 
United States on the date of enactment or departed the United States 
after enactment may apply for legalization if they reentered prior to 
March 21, 1988, and meet the continuous residence requirements and are 
otherwise eligible for legalization.
    (ii) A brief, casual and innocent absence means a departure 
authorized by the Service (advance parole) subsequent to March 21, 1988, 
of not more than thirty (30) days for legitimate emergency or 
humanitarian purposes unless a further period of authorized departure 
has been granted in the discretion of the district director or a 
departure was beyond the alien's control.
    (13) Departure. (i) During the time period from the date that an 
alien's application establishing prima facie eligibility for temporary 
resident status is reviewed at a Service office and the date status as a 
temporary resident is granted, the alien applicant can be readmitted to 
the United States provided his or her departure was authorized under the 
Service's advance parole provisions contained in Sec. 212.5(e) of this 
chapter.
    (ii) An alien whose application for temporary resident status has 
been approved may be admitted to the United States upon return as a 
returning temporary resident provided he or she:
    (A) Is not under deportation proceedings, such proceedings having 
been instituted subsequent to the approval of temporary resident status. 
A temporary resident alien will not be considered deported if that alien 
departs the United States while under an outstanding order of 
deportation issued prior to the approval of temporary resident status;
    (B) Has not been absent from the United States for more than 30 days 
on the date application for admission is made;
    (C) Has not been absent from the United States for an aggregate 
period of more than 90 days since the date the alien was granted lawful 
temporary resident status;
    (D) Presents Form I-688;
    (E) Presents himself or herself for inspection; and
    (F) Is otherwise admissible.
    (iii) The periods of time in paragraphs (b)(13)(ii)(B) and (C) of 
this section may be waived at the discretion of the Attorney General in 
cases where the absence from the United States was due merely to a brief 
and casual trip abroad due to emergent or extenuating circumstances 
beyond the alien's control.
    (14) Employment and travel authorization--(i) General. Authorization 
for employment and travel abroad for temporary resident status 
applicants under this section may be granted only by a Service office. 
INS district directors will determine the Service location for the 
completion of processing travel documentation. In the case of an 
application which has been filed with a designated entity, employment 
authorization may be granted by the Service only after the application 
has been properly received at the Service office.

[[Page 460]]

    (ii) Employment and travel authorization prior to the granting of 
temporary resident status. (A) Permission to travel abroad and accept 
employment may be granted to the applicant after an interview has been 
conducted in connection with an application establishing prima facie 
eligibility for temporary resident status. Permission to travel abroad 
may be granted in emergent circumstances in accordance with the 
Service's advance parole provisions contained in Sec. 212.5(e) of this 
chapter after an interview has been conducted in connection with an 
application establishing prima facie eligibility for temporary resident 
status.
    (B) If an appointment cannot be scheduled within 30 days, 
authorization to accept employment will be granted, valid until the 
scheduled appointment date. The appointment letter will be endorsed with 
the temporary employment authorization. An employment authorization 
document will be given to the applicant after an interview has been 
completed by an immigration officer unless a formal denial is issued by 
a Service office. This temporary employment authorization will be 
restricted to six-months duration, pending final determination on the 
application for temporary resident status.
    (iii) Employment and travel authorization upon grant of temporary 
resident status. Upon grant of an application for adjustment to 
temporary resident status by a Regional Processing Facility, the 
processing facility will forward a notice of approval to the alien at 
his or her last known address, or to his or her legal representative. 
The alien will be required to return to the appropriate INS office, 
surrender the I-688A or employment authorization document previously 
issued, and obtain Form I-688, Temporary Resident Card, authorizing 
employment and travel abroad.
    (iv) Revocation of employment authorization upon denial of temporary 
resident status. Upon denial of an application for adjustment to 
temporary resident status, the alien will be notified that if a timely 
appeal is not submitted, employment authorization shall be automatically 
revoked on the final day of the appeal period. An applicant whose appeal 
period has ended is no longer considered to be an Eligible Legalized 
Alien for the purposes of the administration of State Legalization 
Impact Assistance Grants (SLIAG) funding.
    (15) Decision. The applicant shall be notified in writing of the 
decision. If the application is denied, the reason(s) for the decision 
shall be provided to the applicant. An appeal from an adverse decision 
under this part may be taken by the applicant on Form I-694.
    (16) Appeal process. An adverse decision under this part may be 
appealed to the Associate Commissioner, Examinations (Administrative 
Appeals Unit), the appellate authority designated in Sec. 103.1(f)(2). 
Any appeal shall be submitted to the Regional Processing Facility (RPF) 
with the required fee within 30 days after service of the Notice of 
Denial in accordance with the procedures of Sec. 103.3(a) of this 
chapter. An appeal received after the 30-day period will not be 
accepted. The 30-day period for submission of an appeal begins three 
days after the Notice of Denial is mailed as provided in Sec. 103.5a(b) 
of this Act. If a review of the Record of Proceeding (ROP) is requested 
by the alien or his or her legal representative and an appeal has been 
properly filed, an additional 30 days will be allowed for this review 
beginning at the time the ROP is mailed. A brief may be submitted with 
the appeal form or submitted up to 30 calendar days from the date of 
receipt of the appeal form at the RPF. Briefs filed after submission of 
the appeal should be mailed directly to the RPF. For good cause shown, 
the time within which a brief supporting an appeal may be submitted may 
be extended by the Director of the Regional Processing Facility.
    (17) Motions. The Regional Processing Facility director may sua 
sponte reopen and reconsider any adverse decision. When an appeal to the 
Associate Commissioner, Examinations (Administrative Appeals Unit) has 
been filed, the INS director of the Regional Processing Facility may 
issue a new decision granting the benefit which has been requested. The 
director's new decision must be served on the appealing party within 45 
days of receipt of any briefs

[[Page 461]]

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.
    (18) Certifications. The Regional Processing Facility director may, 
in accordance with Sec. 103.4 of this chapter, certify a decision to the 
Associate Commissioner, Examinations (Administrative Appeals Unit) when 
the case involves an unusually complex or novel question of law or fact. 
The decision on an appealed case subsequently remanded to the Regional 
Processing Facility director will be certified to the Administrative 
Appeals Unit.
    (19) Date of adjustment to temporary residence. 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 
indicated on the application fee receipt issued at the Service office.
    (20) Termination of temporary resident status--(i) Termination of 
temporary resident status (General). The status of an alien lawfully 
admitted for temporary residence under Sec. 245a.4 of this part may be 
terminated at any time. It is not necessary that a final order of 
deportation be entered in order to terminate temporary resident status. 
The temporary resident status may be terminated upon the occurrence of 
any of the following:
    (A) It is determined that the alien was ineligible for temporary 
residence under Sec. 245a.4 of this part;
    (B) The alien commits an act which renders him or her inadmissible 
as an immigrant unless a waiver is obtained, as provided in this part;
    (C) The alien is convicted of any felony, or three or more 
misdemeanors;
    (D) The alien fails to file for adjustment of status from temporary 
resident to permanent resident within 31 months of the date he or she 
was granted status as a temporary resident.
    (ii) Procedure. Termination of an alien's status will be made only 
on notice to the alien sent by certified mail directed to his or her 
last known address, and, if applicable, 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 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 reason for the termination, and further notify the 
alien that any Service Form 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 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). Any appeal along with the required fee, shall be filed 
with the Regional Processing Facility within 30 days after the service 
of the notice of termination. If no appeal is filed within that period, 
the 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.
    (iii) Termination not construed as rescission under section 246. For 
the purposes of this part the phrase termination of status of an alien 
granted lawful temporary residence under this section shall not be 
construed to necessitate a rescission of status as described in section 
246 of the Act, and the proceedings required by the regulations issued 
thereunder shall not apply.
    (iv) Return to unlawful status after termination. Termination of the 
status of any alien previously adjusted to lawful temporary residence 
shall act to return such alien to the status held prior to the 
adjustment, and render him or her amenable to exclusion or deportation 
proceedings under sections 236 or 242 of the Act, as appropriate.
    (21) Ineligibility for immigration benefits. An alien whose status 
is adjusted to that of a lawful temporary resident under Sec. 245a.4 of 
this part is not entitled to submit a petition pursuant to section 
203(a)(2), nor is such alien entitled to any other benefit or 
consideration accorded under the Act to aliens lawfully admitted for 
permanent residence.

[[Page 462]]

    (22) Declaration of intending citizen. An alien who has been granted 
the status of temporary resident under Sec. 245a.4 of this part may 
assert a claim of discrimination on the basis of citizenship status 
under section 274B of the Act only if he or she has previously filed 
Form I-772 (Declaration of Intending Citizen) after being granted such 
status. The Declaration of Intending Citizen is not required as a basis 
for filing a petition for naturalization; nor shall it be regarded as a 
right to United States citizenship; nor shall it be regarded as evidence 
of a person's status as a resident.
    (23) Limitation on access to information and confidentiality. (i) No 
person other than a sworn officer or employee of the Department of 
Justice or bureau or agency thereof, will be permitted to examine 
individual applications. For purposes of this part, any individual 
employed under contract by the Service to work in connection with the 
Legalization Program shall be considered an employee of the Department 
of Justice or bureau or agency thereof.
    (ii) No information furnished pursuant to an application for 
temporary or permanent resident status under this section shall be used 
for any purpose except:
    (A) To make a determination on the application; or,
    (B) for the enforcement of the provisions encompassed in section 
245A(c)(6) of the Act, except as provided in paragraph (b)(23)(iii) of 
this section.
    (iii) 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 245A(c)(6) of the Act, the Service shall 
refer the matter to the United States Attorney for prosecution of the 
alien or of any person who created or supplied a false writing or 
document for use in an application for adjustment of status under this 
part.
    (iv) Information contained in granted legalization files may be used 
by the Service at a later date to make a decision on an immigrant visa 
petition (or other status petition) filed by the applicant under section 
204(a), or for naturalization applications submitted by the applicant.
    (c) Adjustment from temporary to permanent resident status. The 
provisions of Sec. 245a.3 of this part shall be applied to aliens 
adjusting to permanent residence under this part.

[54 FR 6505, Feb. 13, 1989, as amended at 54 FR 29455, July 12, 1989; 54 
FR 47676, Nov. 16, 1989; 60 FR 21976, May 4, 1995]



Sec. 245a.5  Temporary disqualification of certain newly legalized aliens from receiving benefits from programs of financial assistance furnished under federal 
          law.

    (a) Except as provided in Sec. 245a.5(b), any alien who has obtained 
the status of an alien lawfully admitted for temporary residence 
pursuant to section 245A of the Act (Adjustment of Status of Certain 
Entrants Before January 1, 1982, to that of Person Admitted for Lawful 
Residence) or 210A of the Act (Determinations of Agricultural Labor 
Shortages and Admission of Additional Special Agricultural Workers) is 
ineligible, for a period of five years from the date such status was 
obtained, for benefits financed directly or indirectly, in whole or in 
part, through the programs identified in Sec. 245a.5(c) of this chapter.
    (b)(1) Section 245a.5(a) shall not apply to a Cuban or Haitian 
entrant (as defined in paragraph (1) or (2)(A) of section 501(e) of 
Public Law 96-422, as in effect on April 1, 1983), or in the case of 
assistance (other than aid to families with dependent children) which is 
furnished to an alien who is an aged, blind, or disabled individual (as 
defined in section 1614(a)(1) of the Social Security Act).
     (2) With respect to any alien who has obtained the status of an 
alien lawfully admitted for temporary residence pursuant to section 210A 
of the Act only, assistance furnished under the Legal Services 
Corporation Act (42 U.S.C. 2996, et seq.) or title V of the Housing Act 
of 1949 (42 U.S.C. l471 et seq.) shall not be construed to be financial 
assistance referred to in Sec. 245a.5(a).

[[Page 463]]

    (3) Section 245a.5(a) shall not apply to benefits financed through 
the programs identified in Sec. 245a.5(c), which are marked with an 
asterisk (*), except to the extent that such benefits:
    (i) Consist of, or are financed by, financial assistance in the form 
of grants, wages, loan, loan guarantees, or otherwise, which is 
furnished by the Federal Government directly, or indirectly through a 
State or local government or a private entity, to eligible individuals 
or to private suppliers of goods or services to such individuals, or is 
furnished to a State or local government that provides to such 
individuals goods or services of a kind that is offered by private 
suppliers, and
    (ii) Are targeted to individuals in financial need; either (A) in 
order to be eligible, individuals must establish that their income or 
wealth is below some maximum level, or, with respect to certain loan or 
loan guarantee programs, that they are unable to obtain financing from 
alternative sources, or at prevailing interest rates, or at rates that 
would permit the achievement of program goals, or (B) distribution of 
assistance is directed, geographically or otherwise, in a way that is 
intended to primarily benefit persons in financial need, as evidenced by 
references to such intent in the authorizing legislation.
    (c) The programs of Federal financial assistance referred to in 
Sec. 245a.5(a) are those identified in the list set forth below. The 
General Services Administration (GSA) Program Numbers set forth in the 
right column of the program list refer to the program identification 
numbers used in the Catalog of Federal Domestic Assistance, published by 
the United States General Services Administration, as updated through 
December, 1986.

------------------------------------------------------------------------
                                                                   GSA  
                                                                 Program
                                                                 Numbers
------------------------------------------------------------------------
Department of Agriculture:                                              
    Farm Operating Loans......................................    10.406
    Farm Ownership Loans......................................    10.407
Department of Health and Human Services:                                
    Assistance Payments--Maintenance Assistance (Maintenance            
     Assistance; Emergency Assistance; State Aid; Aid to                
     Families with Dependent Children)........................    13.780
    Low-Income Home Energy Assistance.........................    13.789
    *Community Services Block Grant...........................    13.792
    *Community Services Block Grant--Discretionary Awards.....    13.793
Department of Housing and Urban Development:                            
    Mortgage Insurance--Housing in Older, Declining Areas               
     (223(e)).................................................    14.123
    Mortgage Insurance--Special Credit Risks (237)............    14.140
    *Community Development Block Grants/Entitlement Grants....    14.218
    *Community Development Block Grants/Small Cities Program            
     (Small Cities)...........................................    14.219
    Section 312 Rehabilitation Loans (312)....................    14.220
    *Urban development action grants..........................    14.221
    *Community Development Block Grants/State's Program.......    14.228
    Section 221(d)(3) Mortgage Insurance for Multifamily                
     Rental Housing for Low and Moderate Income Families                
     (Below Market Interest Rate).............................    14.136
Department of Labor:                                                    
    Senior Community Service Employment Program (SCSEP).......    17.235
Office of Personnel Management:                                         
    Federal Employment for Disadvantaged Youth--Part-Time               
     (Stay-in-School Program).................................    27.003
    Federal Employment for Disadvantaged Youth--Summer (Summer          
     Aides)...................................................    27.004
Small Business Administration:                                          
    Small Business Loans (7(a) Loans).........................    59.012
Department of Energy:                                                   
    Weatherization Assistance for Low-Income Persons..........    81.042
Department of Education:                                                
    Patricia Roberts Harris Fellowships (Graduate and                   
     Professional Study; Graduate and Professional Study                
     Opportunity Fellowships; Public Service Education                  
     Fellowships).............................................    84.094
    Legal Training for the Disadvantaged (The American Bar              
     Association Fund for Public Education)...................    84.136
    Allen J. Ellender Fellowship Program (Ellender Fellowship)    84.148
Legal Services Corporation:                                             
    Payments to Legal Services Corporation....................  ........
------------------------------------------------------------------------


[54 FR 29437, July 12, 1989, as amended at 54 FR 49964, Dec. 4, 1989]



PART 246--RESCISSION OF ADJUSTMENT OF STATUS--Table of Contents




Sec.
246.1  Notice.
246.2  Allegations admitted; no answer filed; no hearing requested.
246.3  Allegations contested or denied; hearing requested.
246.4  Special inquiry officer's authority; withdrawal and substitution.
246.5  Hearing.
246.6  Decision and order.
246.7  Appeals.
246.8  Reopening or reconsideration.
246.9  Surrender of Form I-151 or I-551.

    Authority: 8 U.S.C. 1103, 1254, 1255, 1256, 1259.


[[Page 464]]


    Source: 27 FR 10789, Nov. 6, 1962, unless otherwise noted.



Sec. 246.1  Notice.

    If it appears to a district director that a person residing in his 
district was not in fact eligible for the adjustment of status made in 
his case, a proceeding shall be commenced by the personal service upon 
such person of a notice of intention to rescind which shall inform him 
of the allegations upon which it is intended to rescind the adjustment 
of his status. In such a proceeding the person shall be known as the 
respondent. The notice shall also inform the respondent that he may 
submit, within thirty days from the date of service of the notice, an 
answer in writing under oath setting forth reasons why such rescission 
shall not be made, and that he may, within such period, request a 
hearing before a special inquiry officer in support of, or in lieu of 
his written answer. The respondent shall further be informed that he may 
have the assistance of or be represented by counsel or representative of 
his choice qualified under part 292 of this chapter, without expense of 
the Government, in the preparation of his answer or in connection with 
his hearing, and that he may present such evidence in his behalf as may 
be relevant to the rescission.

[28 FR 6737, June 29, 1963, as amended at 37 FR 11471, June 8, 1972]



Sec. 246.2  Allegations admitted; no answer filed; no hearing requested.

    If the answer admits all the allegations in the notice, or if no 
answer is filed within the thirty-day period, or if no hearing is 
requested within such period, and the status of that of a permanent 
resident was acquired through suspension of deportation under section 
19(c) of the Immigration Act of February 5, 1917, or under section 244 
of the Immigration and Nationality Act, the district director shall 
forward the respondent's file containing a copy of the notice and the 
answer, if any, to the regional commissioner for further action in 
accordance with section 246 of the Immigration and Nationality Act. If 
the answer admits the allegations in the notice, or if no answer is 
filed within the thirty-day period, or if no hearing is requested within 
such period, and the status of that of a permanent resident was acquired 
through adjustment of status under section 245 or 249 of the Immigration 
and Nationality Act, the district director shall rescind the adjustment 
of status previously granted, and no appeal shall lie from his decision.



Sec. 246.3  Allegations contested or denied; hearing requested.

    If, within the prescribed time following service of the notice 
pursuant to Sec. 246.1, the respondent has filed an answer which 
contests or denies any allegation in the notice, or a hearing is 
requested, a hearing pursuant to Sec. 246.5 shall be conducted by a 
special inquiry officer and the procedures specified in Secs. 242.10, 
242.11, 242.12, 242.13, 242.14 (c), (d) and (e), and 242.15 of this 
chapter shall apply.

[29 FR 13243, Sept. 24, 1964]



Sec. 246.4  Special inquiry officer's authority; withdrawal and substitution.

    In any proceeding conducted under this part, the special inquiry 
officer shall have authority to interrogate, examine, and cross-examine 
the respondent and other witnesses, to present and receive evidence, to 
determine whether adjustment of status shall be rescinded, to make 
decisions thereon, including an appropriate order, and to take any other 
action consistent with applicable provisions of law and regulations as 
may be appropriate to the disposition of the case. Nothing contained in 
this part shall be construed to diminish the authority conferred on 
special inquiry officers by the Act. The special inquiry officer 
assigned to conduct a hearing shall, at any time, withdraw if he deems 
himself disqualified. If a hearing has begun but no evidence has been 
adduced other than the notice and answer, if any, pursuant to 
Secs. 246.1 and 246.2, or if a special inquiry officer becomes 
unavailable to complete his duties within a reasonable time, or if at 
any time the respondent consents to a substitution, another special 
inquiry officer may be assigned to complete the case. The new special 
inquiry officer shall familiarize himself with the record in the case 
and shall state for the record that he has done so.

[[Page 465]]



Sec. 246.5  Hearing.

    (a) Trial attorney. The Government shall be represented at the 
hearing by a trial attorney who shall have authority to present 
evidence, and to interrogate, examine, and cross-examine the respondent 
and other witnesses. The trial attorney is authorized to appeal from a 
decision of the special inquiry officer pursuant to Sec. 246.7 and to 
move for reopening or reconsideration pursuant to Sec. 246.8.
    (b) Opening. The special inquiry officer shall advise the respondent 
of the nature of the proceeding and the legal authority under which it 
is conducted; advise the respondent of his right to representation, at 
no expense to the Government, by counsel of his own choice qualified 
under part 292 of this chapter and require him to state then and there 
whether he desires representation; advise the respondent that he will 
have a reasonable opportunity to examine and object to the evidence 
against him, to present evidence in his own behalf, and to cross-examine 
witnesses presented by the Government; place the respondent under oath; 
read the allegations in the notice to the respondent and explain them in 
nontechnical language, and enter the notice and respondent's answer, if 
any, as exhibits in the record.
    (c) Pleading by respondent. The special inquiry officer shall 
require the respondent to state for the record whether he admits or 
denies the allegations contained in the notice, or any of them, and 
whether he concedes that his adjustment of status should be rescinded. 
If the respondent admits all of the allegations and concedes that the 
adjustment of status in his case should be rescinded under the 
allegations set forth in the notice, and the special inquiry officer is 
satisfied that no issues of law or fact remain, he may determine that 
rescission as alleged has been established by the respondent's 
admissions. The allegations contained in the notice shall be taken as 
admitted when the respondent, without reasonable cause, fails or refuses 
to attend or remain in attendance at the hearing.



Sec. 246.6  Decision and order.

    The decision of the special inquiry officer may be oral or written. 
Except when a determination of rescission is based on the respondent's 
admissions pursuant to Sec. 246.5(c), the decision shall include a 
discussion of the evidence and findings as to rescission. The formal 
enumeration of findings is not required. The order shall direct either 
that the proceeding be terminated or that the adjustment of status be 
rescinded. If status was adjusted through suspension of deportation, the 
rescission order shall further provide that the matter be referred to 
Congress pursuant to section 246 of the Immigration and Nationality Act. 
Service of the decision and finality of the order of the special inquiry 
officer shall be in accordance with, and as stated in Secs. 242.19 (a) 
and (b) and 242.20 of this chapter.



Sec. 246.7  Appeals.

    Pursuant to part 3 of this chapter, an appeal shall lie from a 
decision of an Immigration Judge under this part to the Board of 
Immigration Appeals. An appeal shall be taken within 30 days after the 
mailing of a written decision or the stating of an oral decision. The 
reasons for the appeal shall be specifically identified in the Notice of 
Appeal (Form EOIR-26); failure to do so may constitute a ground for 
dismissal of the appeal by the Board.

[61 FR 18910, Apr. 29, 1996; 61 FR 32924, June 26, 1996]



Sec. 246.8  Reopening or reconsideration.

    Except as otherwise provided in this section, a motion to reopen or 
reconsider shall be subject to the requirements of Sec. 103.5 of this 
chapter. The special inquiry officer may upon his own motion, or upon 
motion of the trial attorney or the respondent, reopen or reconsider any 
case in which he has made a decision, unless jurisdiction in the case is 
vested in the Board under part 3 of this chapter. A motion to reopen 
will not be granted by a special inquiry officer unless he 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.



Sec. 246.9  Surrender of Form I-151 or I-551.

    A respondent whose status as a permanent resident has been rescinded 
in

[[Page 466]]

accordance with section 246 of the Immigration and Nationality Act and 
this part, shall, upon demand, promptly surrender to the district 
director having administrative jurisdiction over the office in which the 
action under this part was taken, the Form I-151 or I-551 issued to him 
at the time of the grant of permanent resident status.

[27 FR 10789, Nov. 6, 1962, as amended at 45 FR 32657, May 19, 1980]



PART 247--ADJUSTMENT OF STATUS OF CERTAIN RESIDENT ALIENS--Table of Contents




Sec.
247.1  Scope of part.
247.11  Notice.
247.12  Disposition of case.
247.13  Disposition of Form I-508.
247.14  Surrender of documents.

    Authority: Secs. 101, 103, 247, 66 Stat. 166, 173, 218; 8 U.S.C. 
1101, 1103, 1257.



Sec. 247.1  Scope of part.

    The provisions of this part apply to an alien who is lawfully 
admitted for permanent residence and has an occupational status which, 
if he were seeking admission to the United States, would entitle him to 
a nonimmigrant status under paragraph (15)(A) or (15)(G) of section 
101(a) of the Act, and to his immediate family; also, an alien who was 
lawfully admitted for permanent residence and has an occupational status 
which, if he were seeking admission to the United States, would entitle 
him to a nonimmigrant status under paragraph (15)(E) of section 101(a) 
of the Act, and to his spouse and children.

[22 FR 9801, Dec. 6, 1957]



Sec. 247.11  Notice.

    If it appears to a district director that an alien residing in his 
district, who was lawfully admitted for permanent residence, has an 
occupational status described in section 247 of the Act, he shall cause 
a notice on Form I-509 to be served on such alien by personal service 
informing him that it is proposed to adjust his status, unless the alien 
requests that he be permitted to retain his status as a resident alien 
and executes and files with such district director a Form I-508 (Waiver 
of Rights, Privileges, Exemptions and Immunities) and, if a French 
national receiving salary from the French Republic, Form I-508F 
(election as to tax exemption under the Convention between the United 
States and the French Republic), within 10 days after service of the 
notice, or the alien, within such 10-day period, files with the district 
director a written answer under oath setting forth reasons why his 
status should not be adjusted. The notice shall also advise the person 
that he may, within such period and upon his request have an opportunity 
to appear in person, in support or in lieu of his written answer, before 
an immigration officer designated for that purpose. The person shall 
further be advised that he may have the assistance of counsel without 
expense to the Government of the United States in the preparation of his 
answer or in connection with such personal appearance, and may examine 
the evidence upon which it is proposed to base such adjustment.

[22 FR 9801, Dec. 6, 1957, as amended at 37 FR 11471, June 8, 1972]



Sec. 247.12  Disposition of case.

    (a) Allegations admitted or no answer filed. If the waiver Form I-
508 and, if applicable, Form I-508F is not filed by the alien within the 
time prescribed, and the answer admits the allegations in the notice, or 
no answer is filed, the district director shall place a notation on the 
notice describing the alien's adjusted nonimmigrant status and shall 
cause a set of Forms I-94 to be prepared evidencing the nonimmigrant 
classification to which the alien has been adjusted and no appeal shall 
lie from such decision. Form I-94A shall be delivered to the alien and 
shall constitute notice to him of such adjustment. The alien's 
nonimmigrant status shall be for such time, under such conditions, and 
subject to such regulations as are applicable to the particular 
nonimmigrant status granted and shall be subject to such other terms and 
conditions, including the exaction of bond as the district director may 
deem appropriate.
    (b) Answer filed; personal appearance. Upon receipt of an answer 
asserting a defense to the allegations made in the notice without 
requesting a personal appearance, or if a personal appearance

[[Page 467]]

is requested or directed, the case shall be assigned to an immigration 
officer. Pertinent evidence, including testimony of witnesses, shall be 
incorporated in the record. The immigration officer shall prepare a 
report summarizing the evidence and containing his findings and 
recommendation. The record, including the report and recommendation of 
the immigration officer, shall be forwarded to the district director who 
caused the notice to be served. The district director shall note on the 
report of the immigration officer whether he approves or disapproves the 
recommendation of the immigration officer. If the decision of the 
district director is that the matter be terminated, the alien shall be 
informed of such decision. If the decision of the district director is 
that the status of the alien should be adjusted to that of a 
nonimmigrant, his decision shall provide that unless the alien, within 
10 days of receipt of notification of such decision, requests permission 
to retain his status as an immigrant and files with the district 
director Form I-508 and, if applicable, Form I-508F, the alien's 
immigrant status be adjusted to that of a nonimmigrant. The alien shall 
be informed of such decision and of the reasons therefor, and of his 
right to appeal in accordance with the provisions of part 103 of this 
chapter. If the alien does not request that he be permitted to retain 
status and file the Form I-508 and, if applicable, Form I-508F within 
the period provided therefor, the district director, without further 
notice to the alien, shall cause a set of Forms I-94 to be prepared 
evidencing the nonimmigrant classification to which the alien has been 
adjusted. Form I-94A shall be delivered to the alien. The alien's 
nonimmigrant status shall be for such time, under such conditions, and 
subject to such regulations as are applicable to the particular 
nonimmigrant status created and shall be subject to such other terms and 
conditions, including the exaction of bond, as the district director may 
deem appropriate.

[22 FR 9801, Dec. 6, 1957, as amended at 23 FR 9124, Nov. 26, 1958; 35 
FR 13829, Sept. 1, 1970]



Sec. 247.13  Disposition of Form I-508.

    If Form I-508 is executed and filed, the duplicate copy thereof 
(noted to show the election made on Form I-508F, if applicable) shall be 
filed in the office of the Assistant Commissioner, Administrative 
Division, and may be made available for inspection by any interested 
officer or agency of the United States.

[35 FR 13829, Sept. 1, 1970]



Sec. 247.14  Surrender of documents.

    An alien whose status as a permanent resident has been adjusted to 
that of a nonimmigrant in accordance with section 247 of the Act and 
this part, shall, upon demand, promptly surrender to the district 
director having administrative jurisdiction over the office in which the 
action under this part was taken any documents (such as Form I-151 or I-
551 or any other form of alien-registration receipt card, immigrant 
identification card, resident alien's border-crossing identification 
card (Form I-187), certificate of registry, or certificate of lawful 
entry) in his possession evidencing his former permanent resident 
status.

[22 FR 9802, Dec. 6, 1957, as amended at 45 FR 32657, May 19, 1980]



PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION--Table of Contents




Sec.
248.1  Eligibility.
248.2  Ineligible classes.
248.3  Application.

    Authority: 8 U.S.C. 1101, 1103, 1184, 1187, 1258; 8 CFR part 2.



Sec. 248.1  Eligibility.

    (a) General. Except for those classes enumerated in Sec. 248.2, any 
alien lawfully admitted to the United States as a nonimmigrant, 
including an alien who acquired such status pursuant to section 247 of 
the Act, who is continuing to maintain his nonimmigrant status, may 
apply to have his nonimmigrant classification changed to any 
nonimmigrant classification other than that of a fiancee or fiance under 
section 101(a)(15)(K) of the Act, or as an

[[Page 468]]

alien in transit under section 101(a)(15)(C) of the Act.
    (b) Timely filing and maintenance of status. A change of status may 
not be approved for an alien who failed to maintain the previously 
accorded status or whose 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, where it is demonstrated 
at the time of filing that:
    (1) The failure to file a timely application was due to 
extraordinary circumstances beyond the control of the applicant or 
petitioner, and the Service finds the delay commensurate with the 
circumstances;
    (2) The alien has not otherwise violated his or her nonimmigrant 
status;
    (3) The alien remains a bona fide nonimmigrant; and
    (4) The alien is not the subject of deportation proceedings under 8 
CFR part 242.
    (c) Change of nonimmigrant classification to that of a nonimmigrant 
student. A nonimmigrant applying for a change to classification as a 
student under sections 101(a)(15)(F)(i) or 101(a)(15)(M)(i) of the Act 
is not considered ineligible for such a change solely because the 
applicant may have started attendance at school before the application 
was submitted. The district director shall deny an application for a 
change to classification as a student under section 101(a)(15)(M)(i) of 
the Act if the applicant intends to pursue the course of study solely in 
order to qualify for a subsequent change of nonimmigrant classification 
to that of an alien temporary worker under section 101(a)(15)(H) of the 
Act. Furthermore, an alien may not change from classification as a 
student under section 101(a)(15)(M)(i) of the Act to that of a student 
under section 101(a)(15)(F)(i) of the Act.
    (d) Application for change of nonimmigrant classification from that 
of a student under section 101(a)(15)(M)(i) to that described in section 
101(a)(15)(H). A district director shall deny an application for change 
of nonimmigrant classification from that of an M-1 student to that of an 
alien temporary worker under section 101(a)(15)(H) of the Act if the 
education or training which the student received while an M-1 student 
enables the student to meet the qualifications for temporary worker 
classification under section 101(a)(15)(H) of the Act.
    (e) Change of nonimmigrant classification to that as described in 
section 101(a)(15)(N). An application for change to N status shall not 
be denied on the grounds the applicant is an intending immigrant. Change 
of status shall be granted for three years not to exceed termination of 
eligibility under section 101(a)(15)(N) of the Act. Employment 
authorization pursuant to section 274(A) of the Act may be granted to an 
alien accorded nonimmigrant status under section 101(a)(15)(N) of the 
Act. Employment authorization is automatically terminated when the alien 
changes status or is no longer eligible for classification under section 
101(a)(15)(N) of the Act.

[36 FR 9001, May 18, 1971, as amended at 48 FR 14592, Apr. 5, 1983; 52 
FR 11621, Apr. 10, 1987; 59 FR 1465, Jan. 11 1994]



Sec. 248.2  Ineligible classes.

    The following categories of aliens are not eligible to change their 
nonimmigrant status under section 248 of the Act:
    (a) Any alien in immediate and continuous transit through the United 
States without a visa;
    (b) Any alien classified as a nonimmigrant under section 101(a)(15) 
(C), (D), (K), or (S) of the Act;
    (c) Any alien admitted as a nonimmigrant under section 101(a)(15)(J) 
of the Act, or who acquired such status after admission in order to 
receive graduate medical education or training, whether or not the alien 
was subject to, received a waiver of, or fulfilled the two-year foreign 
residence requirement of section 212(e) of the Act. This restriction 
shall not apply when the alien is a foreign medical graduate who was 
granted a waiver under section 212(e)(iii) of the Act pursuant to a 
request made by a State Department of Public Health (or its equivalent) 
under Pub. L. 103-416, and the alien complies with the terms and 
conditions imposed on the waiver under section 214(k) of

[[Page 469]]

the Act and the implementing regulations at Sec. 212.7(c)(9) of this 
chapter. A foreign medical graduate who was granted a waiver under Pub. 
L. 103-416 and who does not fulfill the requisite 3-year employment 
contract or otherwise comply with the terms and conditions imposed on 
the waiver is ineligible to apply for change of status to any other 
nonimmigrant classification; and
    (d) Any alien classified as a nonimmigrant under section 
101(a)(15)(J) of the Act (other than an alien described in paragraph (c) 
of this section) who is subject to the foreign residence requirement of 
section 212(e) of the Act and who has not received a waiver of the 
residence requirement, except when the alien applies to change to a 
classification under section 101(a)(15)(A) or (G) of the Act.
    (e) Any alien admitted as a visitor under the visa waiver provisions 
of Sec. 212.1(e) of this chapter.
    (f) Any alien admitted as a Visa Waiver Pilot Program visitor under 
the provisions of section 217 of the Act and part 217 of this chapter.

[47 FR 44238, Oct. 7, 1982, as amended at 48 FR 41017, Sept. 13, 1983; 
52 FR 48084, Dec. 18, 1987; 53 FR 24903, June 30, 1988; 60 FR 26683, May 
18, 1995; 60 FR 44271, Aug. 25, 1995]



Sec. 248.3  Application.

    (a) Change of status on Form I-129. An employer seeking the services 
of an alien as 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, must, where the alien is 
already in the U.S. and does not currently hold such status, apply for a 
change of status on Form I-129. The form must be filed with the fee 
required in Sec. 103.7 of this chapter and the initial evidence 
specified in Sec. 214.2 of this chapter and on the petition form. 
Dependents holding derivative status may be included in the petition if 
the form is for only one worker. In all other cases, dependents of the 
worker should file on Form I-539.
    (b) Change of status on Form I-539. Any nonimmigrant who desires a 
change of status to any nonimmigrant classification, other than those 
listed in paragraph (a) of this section, or to E-1 or E-2 classification 
as the spouse or child of a principal E-1 or E-2, must apply for a 
change of status on Form I-539. The application must be filed with the 
fee required in Sec. 103.7 of this chapter and any initial evidence 
specified in the applicable provisions of Sec. 214.2 of this chapter, 
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 co-applicants are his or her spouse and/or 
children who hold derivative nonimmigrant status based on the 
principal's nonimmigrant status.
    (c) Special provisions for change of nonimmigrant classification to, 
or from, a position classified under section 101(a)(15) (A) or (G) of 
the Act. Each application for change of nonimmigrant classification to, 
or from, a position classified under section 101(a)(15)(A) or (G) must 
be filed on Form I-539 and be accompanied by a Form I-566, completed and 
endorsed in accordance with the instructions on that form. If the 
Department of State recommends against the change, the application shall 
be denied. An application for a change of classification by a principal 
alien in a position classified A-1, A-2, G-1, G-2, G-3, or G-4 shall be 
processed without fee. Members of the principal alien's immediate family 
who are included on the principal alien's application shall also be 
processed without fee.
    (d) [Reserved]
    (e) Change of classification not required. The following do not need 
to request a change of classification:
    (1) An alien classified as a visitor for business under section 
101(a)(15)(B) of the Act who intends to remain in the United States 
temporarily as a visitor for pleasure during the period of authorized 
admission; or
    (2) An alien classified under sections 101(a)(15)(A) or 
101(a)(15)(G) of the Act as a member of the immediate family of a 
principal alien classified under the same section, or an alien 
classified under section 101(a)(15) (E), (F), (H), (I), (J), (L), or (M) 
of the Act as the spouse or child who accompanied or followed to join a 
principal alien who is classified under the same section, to attend 
school in the United States, as long as the immediate family member, 
spouse

[[Page 470]]

or child continues to be qualified for and maintains the status under 
which the family member, spouse or child is classified.
    (f) Approval of application. If the application is granted, the 
applicant shall be notified of the decision and granted a new period of 
time to remain in the United States without the requirement of filing a 
separate application and paying a separate fee for an extension of stay. 
The applicant's nonimmigrant status under his new classification shall 
be subject to the terms and conditions applicable generally to such 
classification and to such other additional terms and conditions, 
including exaction of bond, which the district director deems 
appropriate to the case.
    (g) Denial of application. When the application is denied, the 
applicant shall be notified of the decision and the reasons for the 
denial. There is no appeal from the denial of the application under this 
chapter.
    (h) Change to S nonimmigrant classification. An eligible state or 
federal law enforcement agency (``LEA''), which shall include a state or 
federal court or a United States Attorney's Office, may seek to change 
the nonimmigrant classification of a nonimmigrant lawfully admitted to 
the United States, except those enumerated in Sec. 248.2 of this 
chapter, to that of an alien witness or informant pursuant to section 
101(a)(15)(S) of the Act by filing with the Assistant Attorney General, 
Criminal Division, Form I-539, Application to Extend/Change Nonimmigrant 
Status, with the appropriate fee, and Form I-854, Inter-Agency Alien 
Witness and Informant Record, with attachments establishing eligibility 
for the change of nonimmigrant classification.
    (1) If the Assistant Attorney General, Criminal Division, certifies 
the request for S nonimmigrant classification in accordance with the 
procedures set forth in 8 CFR 214.2(t), the Assistant Attorney General 
shall forward the LEA's request on Form I-854 with Form I-539 to the 
Commissioner. No request for change of nonimmigrant classification to S 
classification may proceed to the Commissioner unless it has first been 
certified by the Assistant Attorney General, Criminal Division.
    (2) In the event the Commissioner decides to deny an application to 
change nonimmigrant classification to 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 
deny.

[36 FR 9001, May 18, 1971, as amended at 48 FR 14593, Apr. 5, 1983; 48 
FR 41017, Sept. 13, 1983; 48 FR 44763, Sept. 30, 1983; 50 FR 25697, June 
21, 1985; 59 FR 1466, Jan. 11, 1994; 60 FR 44271, Aug. 25, 1995]



PART 249--CREATION OF RECORDS OF LAWFUL ADMISSION FOR PERMANENT RESIDENCE--Table of Contents




Sec.
249.1  Waiver of inadmissibility.
249.2  Application.
249.3  Reopening and reconsideration.

    Authority: Secs. 103, 212, 249, 66 Stat. 173, 182, as amended, 219, 
as amended; 8 U.S.C. 1103, 1182, 1259.



Sec. 249.1  Waiver of inadmissibility.

    In conjunction with an application under section 249 of the Act, an 
otherwise eligible alien who is inadmissible under paragraph (9), (10), 
or (12) of section 212(a) of the Act or so much of paragraph (23) of 
section 212(a) of the Act as relates to a single offense of simple 
possession of 30 grams or less of marihuana may request a waiver of such 
ground of inadmissibility under section 212(h) of the Act. Any alien 
within the classes described in subparagraphs (B) through (H) of section 
212(a)(28) of the Act may apply for the benefits of section 
212(a)(28)(I)(ii) in conjunction with an application under section 249 
of the Act.

[47 FR 44238, Oct. 7, 1982]

[[Page 471]]



Sec. 249.2  Application.

    (a) Jurisdiction. An application by an alien who has been served 
with an order to show cause or warrant of arrest shall be considered 
only in proceedings under part 242 of this chapter. In any other case, 
an alien who believes he or she meets the eligibility requirements of 
section 249 of the Act shall apply to the district director having 
jurisdiction over his or her place of residence. The application shall 
be made on Form I-485 and shall be accompanied by Form G-325A, which 
shall be considered part of the application. The application shall also 
be accompanied by documentary evidence establishing continuous residence 
in the United States since prior to January 1, 1972, or since entry and 
prior to July 1, 1924. All documents must be submitted in accordance 
with Sec. 103.2(b) of this chapter. Documentary evidence may include any 
records of official or personal transactions or recordings of events 
occurring during the period of claimed residence. Affidavits of credible 
witnesses may also be accepted. Persons unemployed and 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 residence. The 
numerical limitations of sections 201 and 202 of the Act shall not 
apply.
    (b) Decision. The applicant shall be notified of the decision and, 
if the application is denied, of the reasons therefor. If the 
application is granted, a Form I-551, showing that the applicant has 
acquired the status of an alien lawfully admitted for permanent 
residence, shall not be issued until the applicant surrenders any other 
document in his or her possession evidencing compliance with the alien 
registration requirements of former or existing law. No appeal shall lie 
from the denial of an application by the district director, but such 
denial shall be without prejudice to the alien's right to renew the 
application in proceedings under part 242 of this chapter.

[52 FR 6322, Mar. 3, 1987]



Sec. 249.3  Reopening and reconsideration.

    An applicant who alleged entry and residence since prior to July 1, 
1924, but in whose case a record was created as of the date of approval 
of the application because evidence of continuous residence prior to 
July 1, 1924, was not submitted, may have his case reopened and 
reconsidered pursuant to Sec. 103.5 of this chapter. Upon the submission 
of satisfactory evidence, a record of admission as of the date of 
alleged entry may be created.

[29 FR 11494, Aug. 11, 1964]



PART 250--REMOVAL OF ALIENS WHO HAVE FALLEN INTO DISTRESS--Table of Contents




Sec.
250.1  Application.
250.2  Removal authorization.

    Authority: Secs. 103, 250, 66 Stat. 173, 219; 8 U.S.C. 1103, 1260.



Sec. 250.1  Application.

    Application for removal shall be made on Form I-243. No appeal shall 
lie from the decision of the district director.

[22 FR 9802, Dec. 6, 1957]



Sec. 250.2  Removal authorization.

    If the district director grants the application he shall issue an 
authorization for the alien's removal on Form I-202. Upon issuance of 
the authorization, or as soon thereafter as practicable, the alien may 
be removed from the United States at government expense.

[22 FR 9802, Dec. 6, 1957]



PART 251--ARRIVAL MANIFESTS AND LISTS: SUPPORTING DOCUMENTS--Table of Contents




Sec.
251.1  Arrival manifests and lists.
251.2  Notification of illegal landings.
251.3  Departure manifests and lists for vessels.
251.4  Departure manifests and lists for aircraft.
251.5  Exemptions for private vessels and aircraft.


[[Page 472]]


    Authority: 8 U.S.C. 1103, 1182, 1221, 1281, 1282.



Sec. 251.1  Arrival manifests and lists.

    (a) Vessels--(1) General. The master or agent of every vessel 
arriving in the United States from a foreign place or an outlying 
possession of the United States shall present to the immigration officer 
at the port where the immigration inspection is performed a manifest of 
all crewmen on board on Form I-418, Passenger List-Crew List, in 
accordance with the instructions contained thereon.
    (2) Longshore work notations. The master of the vessel or his or her 
agent shall indicate in writing immediately below the name of the last 
alien listed on the Form I-418 whether or not D crewmen aboard the 
vessel will be used to perform longshore work at any United States port 
before the vessel departs the United States.
    (i) If no longshore work will be performed, no further notation 
regarding longshore work is required.
    (ii) If longshore work will be performed, the master or agent shall 
note which exception listed in section 258 of the Act permits the work. 
The exceptions are:
    (A) The hazardous cargo exception;
    (B) The prevailing practice exception in accordance with a port's 
collective bargaining agreements;
    (C) The prevailing practice exception at a port where there is no 
collective bargaining agreement, but for which the vessel files an 
attestation;
    (D) The prevailing practice exception for automated vessels; and
    (E) The reciprocity exception.
    (iii) If longshore work will be performed under the hazardous cargo 
exception, the vessel must either be a tanker or be transporting dry 
bulk cargo that qualifies as hazardous. All tankers qualify for the 
hazardous cargo exception, except for a tanker that has been gas-freed 
to load non-hazardous dry bulk commodities.
    (A) To invoke the exception for tankers, the master or agent shall 
note on the manifest that the vessel is a qualifying tanker.
    (B) If the vessel is transporting dry bulk hazardous cargo, the 
master or agent shall note on the manifest that the vessel's dry bulk 
cargo is hazardous and shall show the immigration officer the dangerous 
cargo manifest which is signed by the master or an authorized 
representative of the owner, and which under 46 CFR 148.02 must be kept 
in a conspicuous place near the bridge house.
    (iv) If longshore work will be performed under the prevailing 
practice exception, the master or agent shall note on the manifest each 
port at which longshore work will be performed under this exception. 
Additionally, for each port the master or agent shall note either that:
    (A) The practice of nonimmigrant crewmen doing longshore work is in 
accordance with all collective bargaining agreements covering 30 percent 
or more of the longshore workers in the port;
    (B) The port has no collective bargaining agreement covering 30 
percent or more of the longshore workers in the port and an attestation 
has been filed with the Secretary of Labor;
    (C) An attestation that was previously filed is still valid and the 
vessel continues to comply with the conditions stated in that 
attestation; or
    (D) The longshore work consists of operating an automated, self-
unloading conveyor belt or a vacuum-actuated system.
    (v) If longshore work will be performed under the reciprocity 
exception, the master or agent shall note on the manifest that the work 
will be done under the reciprocity exception, and will note the 
nationality of the vessel's registry and the nationality or 
nationalities of the holders of a majority of the ownership interest in 
the vessel.
    (vi) Notations for Great Lakes vessels. (A) A manifest shall not be 
required for a vessel of United States, Canadian, or British registry 
engaged solely in traffic on the Great Lakes or the St. Lawrence River 
and connecting waterways, herein designated as a Great Lakes vessel, 
unless nonimmigrant crewmen intend to do longshore work at a port in the 
United States.
    (B) If nonimmigrant crewmen will do longshore work, the master of 
agent of the vessel shall note on the manifest which exception in 
section 258 of the

[[Page 473]]

Act permits the work and any other notations described in paragraphs 
(a)(2)(ii) through (a)(2)(v) of this section required by the exception 
invoked.
    (C) A manifest shall be required for crewmen of other than United 
States, Canadian, or British citizenship and shall contain the same 
information regarding longshore work as is required of other vessels.
    (D) After submission of a manifest on the first voyage of a calendar 
year, a manifest shall not be required on subsequent arrivals unless a 
nonimmigrant crewman of other than Canadian or British citizenship is 
employed on the vessel who was not aboard and listed on the last prior 
manifest, or a change has occurred regarding the performance of 
longshore work in the United States by nonimmigrant crewmen, or a change 
has occurred in the exception that the master or agent of the vessel 
wishes to invoke which was not noted on the last prior manifest.
    (3) The master or agent of a vessel that only bunkers at a United 
States port pursuant to 8 CFR 235.1(d)(7) shall annotate Form I-418 to 
indicate the time, date, and place of bunkering.
    (4) If documentation is required to support an exception, as 
described in 8 CFR 258.2, it must accompany the manifest.
    (b) Aircraft. The captain or agent of every aircraft arriving in the 
United States from a foreign place or from an outlying possession of the 
United States, except an aircraft arriving in the United States directly 
from Canada on a flight originating in that country, shall present to 
the immigration officer at the port where the inspection is performed a 
manifest on the Bureau of Customs Form 7507 or on the International 
Civil Aviation Organization's General Declaration of all the alien 
crewmembers on board, including alien crewmembers who are returning to 
the United States after taking an aircraft of the same line from the 
United States to a foreign place or alien crewmembers who are entering 
the United States as passengers solely for the purpose of taking an 
aircraft of the same line from the United States to a foreign port. The 
captain or agent of an aircraft that only refuels at the United States 
port pursuant to Sec. 235.1(d)(7) of this part must annotate the 
manifest to indicate the time, date and place of refueling. The surname, 
given name, and middle initial of each alien crewman listed also shall 
be shown on the manifest. In addition, the captain or agent of the 
aircraft shall indicate in writing immediately below the name of the 
last alien listed on the Form or Declaration, the number of United 
States citizen crewmen on board, if any. If there are no alien crewmen 
aboard, the captain or agent shall indicate in writing on the Form or 
Declaration the number of United States citizen crewmen, followed by a 
statement that there are no alien crewmen.
    (c) Additional documents. The master, captain, or agent shall 
prepare as a part of the manifest, when one is required for presentation 
to an immigration officer, a completely executed set of Forms I-95 for 
each alien crewman on board, except: (1) An alien immigrant crewman in 
possession of a valid immigrant visa, reentry permit, or alien 
registration receipt card on or I-551;
    (2) a Canadian or British citizen crewman serving on a vessel plying 
solely between Canada and the United States; or
    (3) a crewman seeking conditional landing privileges under section 
252(a)(1) of the Act who is in possession of an unmutilated alien 
crewman landing permit and identification card (Form I-184) or an 
unmutilated conditional landing permit (Form I-95) with space for 
additional endorsements previously issued to him or her as a member of 
the crew of the same vessel or an aircraft of the same line on his or 
her last prior arrival in the United States, following which he or she 
departed from the United States as a member of the crew of the same 
vessel or an aircraft of the same line.
    (d) Immigration officer notations on arrival manifests. (1) Upon 
completion of the examination of each crewman listed on the Form I-418 
presented by the master or agent of an arriving vessel, the immigration 
officer shall place one of the following symbols in column (5) of the 
Form I-418 opposite the name of the crewman: ``USC'' for a crewman 
admitted as a United States citizen;

[[Page 474]]

``RP'' or ``ARC'' to indicate respectively the presentation of a reentry 
permit or an alien registration receipt card, Form I-151 or I-551, for a 
crewman admitted as a lawful permanent resident; ``D-1'' for an alien 
crewman granted a conditional landing permit under section 252(a)(1) of 
the Act; ``D-2'' for an alien crewman granted a conditional landing 
permit under section 252(a)(2) of the Act; ``Parolee'' for an alien 
crewman paroled pursuant to section 212(d)(5) of the Act; and 
``Refused'' for a nonimmigrant crewman whose request for a landing 
permit has been refused.
    (2) The immigration officer shall note on the Form I-410, Receipt 
for Crew List, whether or not nonimmigrant crewmen will perform 
longshore work in the United States, and if so:
    (i) Under which exception in section 258 of the Act it will be 
performed; and
    (ii) What type of documentation accompanied the manifest to support 
the exception invoked.
    (3) The examining immigration officer shall sign his or her name, 
title, and the date of the inspection following the last entry on the 
Form I-418. The master of the vessel shall be furnished Form I-410 as a 
receipt for the Form I-418 arrival manifest, and the immigration officer 
shall list on the Form I-410 both the information regarding longshore 
work described in 8 CFR 251.1(a)(2) and the names of all crewmen who 
have been refused conditional landing permits.

[30 FR 6777, May 19, 1965, as amended at 32 FR 9632, July 4, 1967; 34 FR 
12560, Aug. 1, 1969; 34 FR 19799, Dec. 18, 1969; 45 FR 32658, May 19, 
1980; 46 FR 43827, Sept. 1, 1981; 56 FR 26017, June 6, 1991; 57 FR 
40833, Sept. 8, 1992; 58 FR 48779, Sept. 20, 1993]



Sec. 251.2  Notification of illegal landings.

    As soon as discovered, the master or agent of any vessel from which 
an alien crewman has illegally landed or deserted in the United States 
shall inform the immigration officer in charge of the port where the 
illegal landing or desertion occurred, in writing, of the name, 
nationality, passport number and, if known, the personal description, 
circumstances and time of such illegal landing or desertion of such 
alien crewman, and furnish any other information and documents which 
might aid in his apprehension, including any passport surrendered 
pursuant to Sec. 252.1(d) of this chapter. Failure to file notice of 
illegal landing or desertion and to furnish any surrendered passport 
within 24 hours of the time of such landing or desertion becomes known 
shall be regarded as lack of compliance with section 251(d) of the Act.

[28 FR 209, Jan. 9, 1963]



Sec. 251.3  Departure manifests and lists for vessels.

    (a) Form I-418, Crew List. The master or agent of every vessel 
departing from the United States shall submit to the immigration officer 
at the port from which such vessel is to depart directly to some foreign 
place or outlying possession of the United States, except when a 
manifest is not required pursuant to Sec. 251.1(a), a single Form I-418, 
Crew List, completed in accordance with the instructions contained 
herein. Every item in the heading of the Form I-418 must be completed 
and the following endorsement shall be placed on the first line of the 
form: ``Arrival Crew List, Form I-418, filed at (show United States port 
of entry).'' Submission of a Form I-418 which lacks that endorsement or 
which lacks other essential information shall be regarded as lack of 
compliance with section 251(c) of the Act.
    (b) Added crewmen. Under a heading ``Added Crewmen,'' list the names 
of all nonresident alien crewmen who were not members of the crew and 
manifested on Form I-418 as such on the occasion of the vessel's last 
arrival in the United States and attach for each name on the list the 
Form I-95 or Form I-94 given to the alien crewman when he last arrived 
in the United States. If that form is unavailable, a new Form I-95 shall 
be prepared and attached to the Form I-418.
    (c) Separated crewman. Under a heading ``Separated Crewmen,'' list 
the names of all alien crewmen, other than alien permanent residents of 
the United States, who were listed on the arrival Form I-418, as members 
of the crew on the occasion of the vessel's last arrival in the United 
States but who for any reason are not departing with the

[[Page 475]]

vessel, and for each such separated crewman show his nationality, 
passport number, specific port and date of separation, and the reasons 
for failure to depart. If an application to pay off or discharge an 
alien crewman has been granted subsequent to the vessel's arrival, the 
triplicate copy of the relating Form I-408 shall be attached to the Form 
I-418. The list required by paragraph (b) of this section and this 
paragraph may be incorporated in a single Form I-418, if space permits. 
The required lists need not be submitted for Canadian or British citizen 
crewmen of Great Lakes vessels.
    (d) No changes in crew. When there are no added and separated 
crewmen as described in this section, the Form I-418 shall be endorsed 
with the notation ``No changes in nonresident alien crew upon 
departure.''

[30 FR 6777, May 19, 1965, as amended at 33 FR 17137, Nov. 19, 1968]



Sec. 251.4  Departure manifests and lists for aircraft.

    (a) Bureau of Customs Form 7507 or International Civil Aviation 
Organization's General Declaration. The captain or agent of every 
aircraft departing from the United States for a foreign place or an 
outlying possession of the United States, except an aircraft departing 
from the United States directly to Canada on a flight terminating in 
that country, shall submit to the immigration officer at the port from 
which such aircraft is to depart on the Bureau of Customs Form 7507 or 
on the International Civil Aviation Organization's General Declaration a 
list of all alien crewmen on board, including alien crewmen who arrived 
in the United States as crewmen on an aircraft of the same line and who 
are departing as passengers. The surname, given name, and middle initial 
of each such alien crewman listed shall be shown. In addition, the 
captain or agent of the aircraft shall indicate in writing immediately 
below the name of the last alien listed on such form or declaration, the 
number of U.S. citizen crewmen on board, if any. If there are no alien 
crewmen aboard, the captain or agent shall indicate in writing on the 
form or declaration the number of U.S. citizen crewmen, followed by a 
statement that there are no alien crewmen.
    (b) Notification of changes in employment for aircraft. The agent of 
the air transportation line shall immediately notify in writing the 
nearest immigration office of the termination of employment in the 
United States of each alien employee of the line furnishing the name, 
birthdate, birthplace, nationality, passport number, and other available 
information concerning such alien. The procedure to follow in obtaining 
permission to pay off or discharge an alien crewman in the United States 
after initial immigration inspection, other than an alien lawfully 
admitted for permanent residence, is set forth in Sec. 252.1(h) of this 
chapter.

[30 FR 6777, May 19, 1965, as amended at 33 FR 17137, Nov. 19, 1968; 34 
FR 12561, Aug. 1, 1969]



Sec. 251.5  Exemptions for private vessels and aircraft.

    The provisions of this part relating to submission of arrival and 
departure manifests and lists shall not apply to a private vessel or a 
private aircraft not engaged directly or indirectly in the carriage of 
persons or cargo for hire.

[32 FR 9632, July 4, 1967]



PART 252--LANDING OF ALIEN CREWMEN--Table of Contents




Sec.
252.1  Examination of crewmen.
252.2  Revocation of conditional landing permits; deportation.
252.3  Great Lakes vessels and tugboats arriving in the United States 
          from Canada; special procedures.
252.4  Permanent landing permit and identification card.
252.5  Special procedures for deserters from Spanish or Greek ships of 
          war.

    Authority: 8 U.S.C. 1103, 1184, 1258, 1281, 1282.



Sec. 252.1  Examination of crewmen.

    (a) Detention prior to examination. All persons employed in any 
capacity on board any vessel or aircraft arriving in the United States 
shall be detained on board the vessel or at the airport of arrival by 
the master or agent of such vessel or aircraft until admitted or

[[Page 476]]

otherwise permitted to land by an officer of the Service.
    (b) Classes of aliens subject to examination under this part. The 
examination of every alien crewman arriving in the United States shall 
be in accordance with this part and not otherwise except that the 
following classes of persons employed on vessels or aircraft shall be 
examined in accordance with the provisions of parts 235, 236, and 237 of 
this chapter: (1) Aliens in possession of an immigrant visa, reentry 
permit, or a Form I-551 alien registration receipt card, applying for 
admission as immigrants; (2) Canadian or British citizen crewmen serving 
on vessels plying solely between Canada and the United States; or (3) 
Canadian or British citizen crewmen of aircraft arriving in a State of 
the United States directly from Canada on flights originating in that 
country. The crew of a vessel arriving at a United States port which may 
not require inspection by or clearance from the Bureau of Customs is, 
nevertheless, subject to examination under this part; however, the 
master of such a vessel, is not required to present Form I-95 for any 
crewman who is not an applicant for a conditional landing permit.
    (c) Requirements for admission. Every alien crewman applying for 
landing privileges in the United States must make his application in 
person before an immigration officer, present whatever documents are 
required, be photographed and fingerprinted as the district director may 
require, and establish to the satisfaction of the immigration officer 
that he is not subject to exclusion under any provision of the law and 
is entitled clearly and beyond doubt to landing privileges in the United 
States.
    (d) Authorization to land. The immigration officer in his discretion 
may grant an alien crewman authorization to land temporarily in the 
United States for: (1) Shore leave purposes during the period of time 
the vessel or aircraft is in the port of arrival or other ports in the 
United States to which it proceeds directly without touching at a 
foreign port or place, not exceeding 29 days in the aggregate, if the 
immigration officer is satisfied that the crewman intends to depart on 
the vessel on which he arrived or on another aircraft of the same 
transportation line, and the crewman's passport is surrendered for safe 
keeping to the master of the arriving vessel, or (2) the purpose of 
departing from the United States as a crewman on a vessel other than the 
one on which he arrived, or departing as a passenger by means of other 
transportation, within a period of 29 days, if the immigration officer 
is satisfied that the crewman intends to depart in that manner, that 
definite arrangements for such departure have been made, and the 
immigration officer has consented to the pay off or discharge of the 
crewman from the vessel on which he arrived. A crewman granted a 
conditional permit to land under section 252(a)(1) of the Act and 
paragraph (d)(1) of this section is required to depart with his vessel 
from its port of arrival and from each other port in the United States 
to which it thereafter proceeds coastwise without touching at a foreign 
port or place; however, he may rejoin his vessel at another port in the 
United States before it touches at a foreign port or place if he has 
advance written permission from the master or agent to do so.
    (e) Conditional permits to land. Unless the crewman is in possession 
of Form I-184 and is landed under paragraph (d)(1) of this section, the 
immigration officer shall give to each alien nonimmigrant crewman 
permitted to land a copy of the Form I-95 presented by the crewman, 
endorsed to show the date and place of admission and the type of 
conditional landing permit.
    (f) Change of status. An alien nonimmigrant crewman landed pursuant 
to the provisions of this part shall be ineligible for any extension of 
stay or for a change of nonimmigrant classification under part 248 of 
this chapter. A crewman admitted under paragraph (d)(1) of this section 
may, if still maintaining status, apply for a conditional landing permit 
under paragraph (d)(2) of this section. The application shall not be 
approved unless an application on Form I-408, filed pursuant to 
paragraph (h) of this section, has been approved authorizing the master 
or agent of the vessel on which the crewman arrived to pay off or 
discharge the crewman and unless evidence is presented

[[Page 477]]

by the master or agent of the vessel to which the crewman will be 
transferred that a specified position on that vessel has been authorized 
for him or that satisfactory arrangements have been completed for the 
repatriation of the alien crewman. If the application is approved, the 
crewman shall be given a new Form I-95 endorsed to show landing 
authorized under paragraph (d)(2) of this section for the period 
necessary to accomplish his scheduled reshipment, which shall not exceed 
29 days from the date of his landing, upon surrendering any conditional 
landing permit previously issued to him on Form I-95.
    (g) Refusal of conditional landing permit. When an alien crewman is 
refused a conditional landing permit for any reason, the Form I-95 
presented by him at time of examination shall be endorsed ``Permission 
to land temporarily at all U.S. ports is refused'' and the Form I-95 
shall be given to the master or agent of the vessel or aircraft and, in 
the case of vessels, the alien crewman's name shall be listed on the 
Form I-410 delivered to the master of the vessel upon completion of the 
examination of the crew. If an alien crewman who has been refused a 
conditional landing permit is in possession of Form I-184, the Form I-
184 shall be lifted by the examining immigration officer and, except in 
the case of an alien crewman who is refused a conditional landing permit 
solely because he is not in possession of a valid passport or visa, the 
Form I-184 shall be voided. In the case of an alien crewman refused a 
conditional landing permit because he is not in possession of a valid 
passport or visa, the Form I-184 shall be delivered to the master or 
agent of the vessel with instructions to return it to the alien crewman 
after the vessel has departed from the United States.
    (h) Authorization to pay off or discharge an alien crewman. 
Application to pay off or discharge an alien crewman, except an alien 
lawfully admitted for permanent residence, shall be made by the owner, 
agent, consignee, charterer, master, or commanding officer of the vessel 
or aircraft on which the alien crewman arrived on Form I-408 filed with 
the immigration officer having jurisdiction over the area in which the 
vessel or aircraft is located at the time of application. The applicant 
shall be notified of the decision, and, if the application is denied, of 
the reasons therefor. There shall be no appeal from the denial of an 
application on Form I-408.

[23 FR 2788, Apr. 26, 1958, as amended at 27 FR 11875, Dec. 1, 1962; 29 
FR 13243, Sept. 24, 1964; 29 FR 14432, Oct. 21, 1964; 32 FR 9633, July 
4, 1967; 33 FR 9332, June 26, 1968; 33 FR 17137, Nov. 19, 1968; 58 FR 
48779, Sept. 20, 1993]



Sec. 252.2  Revocation of conditional landing permits; deportation.

    An alien permitted to land conditionally under Sec. 252.1(d)(1) may, 
within the period of time for which he was permitted to land, be taken 
into custody by any immigration officer without a warrant of arrest and 
be transferred to the vessel upon which he arrived in the United States, 
if such vessel is in any port of the United States and has not been in a 
foreign port or place since the crewman was issued his condition landing 
permit, upon a determination by the immigration officer that the alien 
crewman is not a bona fide crewman or that he does not intend to depart 
on the vessel on which he arrived in the United States. The conditional 
landing permit of such an alien crewman shall be taken up and revoked by 
the immigration officer, and a notice on Form I-259 to detain and deport 
such alien crewman shall be served on the agent for the vessel, and if 
they are available, on the owner and the master or commanding officer of 
the vessel. Form I-99 shall be served on the crewman when he is taken 
into custody or as soon as practicable thereafter. On the written 
request of the master of the vessel, the crewman may be detained and 
deported, both at the expense of the transportation line on whose vessel 
he arrived in the United States, other than on the vessel on which he 
arrived in the United States, if detention or deportation on such latter 
vessel is impractical.

[29 FR 15253, Nov. 13, 1964]



Sec. 252.3  Great Lakes vessels and tugboats arriving in the United States from Canada; special procedures.

    (a) United States vessels and tugboats. An immigration examination 
shall not

[[Page 478]]

be required of any crewman aboard a Great Lakes vessel of United States 
registry or a tugboat of United States registry arriving from Canada at 
a port of the United States who has been examined and admitted by an 
immigration officer as a member of the crew of the same vessel or 
tugboat or of any other vessel or tugboat of the same company during the 
current calendar year.
    (b)  Canadian or British vessels or tugboats. An immigration 
examination shall not be required of any crewman aboard a Great Lakes 
vessel of Canadian or British registry or a tugboat of Canadian or 
British registry arriving from Canada at a port of the United States for 
a period of less than 29 days who has been examined and admitted by an 
immigration officer as a member of the crew of the same vessel or 
tugboat or of any other vessel or tugboat of the same company during the 
current calendar year, and is either a British or Canadian citizen or is 
in possession of a valid Form I-95 previously issued to him as a member 
of the crew of the same vessel or tugboat or of any other vessel or 
tugboat of the same company, and does not request or require landing 
privileges in the United States beyond the time the vessel or tugboat 
will be in port, and will depart with the vessel or tugboat to Canada.

[41 FR 24700, June 18, 1976]



Sec. 252.4  Permanent landing permit and identification card.

    A Form I-184 is valid until revoked. It shall be revoked when an 
immigration officer finds that the crewman is in the United States in 
willful violation of the terms and conditions of his admission, or that 
he is inadmissible to the United States. On revocation, the Form I-184 
shall be surrendered to an immigration officer. No appeal shall lie from 
the revocation of Form I-184.

[43 FR 37174, Aug. 22, 1978]



Sec. 252.5  Special procedures for deserters from Spanish or Greek ships of war.

    (a) General. Under E.O. 11267 of January 19, 1966 (31 FR 807) and 28 
CFR 0.109, and E.O. 11300 of August 17, 1966, (31 FR 11009), and 28 CFR 
0.110, the Commissioner and immigration officers (as defined in 
Sec. 103.1(i) of this chapter) are designated as ``competent national 
authorities'' on the part of the United States within the meaning of 
Article XXIV of the 1903 Treaty of Friendship and General Relations 
between the United States and Spain (33 Stat. 2105, 2117), and ``local 
authorities'' and ``competent officers'' on the part of the United 
States within the meaning of Article XIII of the Convention between the 
United States and Greece (33 Stat. 2122, 2131).
    (b) Application for restoration. On application of a Consul General, 
Consul, Vice-Consul, or Consular-Agent of the Spanish or Greek 
Government, made in writing pursuant to Article XXIV of the treaty, or 
Article XIII of the Convention, respectively, stipulating for the 
restoration of crewmen deserting, stating that the person named therein 
has deserted from a ship of war of that government, while in any port of 
the United States, and on proof by the exhibition of the register, crew 
list, or official documents of the vessel, or a copy or extract 
therefrom, duly certified, that the person named belonged, at the time 
of desertion, to the crew of such vessel, such person shall be taken 
into custody by any immigration officer without a warrant of arrest. 
Written notification of charges shall be served on the individual when 
he is taken into custody or as soon as practical thereafter.
    (c) Examination. Within a reasonable period of time after the 
arrest, the individual shall be accorded an examination by the district 
director, acting district director, or the deputy district director 
having jurisdiction over the place of arrest. He shall be informed that 
he may have the assistance of or be represented by a counsel or 
representative of his choice qualified under part 292 of this chapter 
without expense to the Government, and that he may present such evidence 
in his behalf as may be relevant to this proceeding. If, upon the 
completion of such examination, it is determined that: (1) The 
individual sought by the Spanish or Greek authorities had deserted from 
a Spanish or Greek ship of war in a United States port; (2) the 
individual actually arrested and detained is the

[[Page 479]]

person sought; (3) this individual is not a citizen of the United 
States; and (4) this individual had not previously been arrested for the 
same cause and set at liberty because he had been detained for more than 
3 months, or more than 2 months in the case of a deserter from a Greek 
ship of war, from the day of his arrest without the Spanish or Greek 
authorities having found an opportunity to send him home, the individual 
shall be served with a copy of the findings, from which no appeal shall 
lie, and be surrendered forthwith to the Spanish or Greek authorities if 
they are prepared to remove him from the United States. On written 
request of the Spanish or Greek authorities, the individual shall be 
detained, at their expense, for a period not exceeding 3 months or 2 
months, respectively, from the day of arrest to afford opportunity to 
arrange for his departure from the United States.
    (d) Timely departure not effected. If the Spanish authorities delay 
in sending the individual home for more than 3 months, or if the Greek 
authorities delay in sending the individual home for more than 2 months, 
from the day of his arrest, the individual shall be dealt with as any 
other alien unlawfully in the United States under the deportation 
provisions of the Immigration and Nationality Act, as amended.
    (e) Commission of crime. If the individual has committed any crime 
or offense in the United States, he shall not be placed at the disposal 
of the consul until after the proper tribunal having jurisdiction in his 
case shall have pronounced sentence, and such sentence shall have been 
executed.

[31 FR 12774, Sept. 30, 1966]



PART 253--PAROLE OF ALIEN CREWMEN--Table of Contents




Sec.
253.1  Parole.
253.2  Termination of parole.

    Authority: 8 U.S.C. 1103, 1182, 1282, 1283, 1285.



Sec. 253.1  Parole.

    (a) General. When a crewman is paroled into the United States 
pursuant to the provisions of this part under the provisions of section 
212(d)(5) of the Act, he shall be given Form I-94, reflecting the terms 
of parole. A notice on Form I-259 shall be served upon the agent, and, 
if available, upon the owner and master or commanding officer of the 
vessel or aircraft, which shall specify the purpose of the parole and 
the conditions under which the alien crewman is paroled into the United 
States. The Form I-259 shall also specify the Service office to which 
the alien crewman is to be presented for inspection upon termination of 
the parole. The guarantee of payment for medical and other related 
expenses required by section 253 of the Act shall be executed by the 
owner, agent, consignee, commanding officer or master on Form I-510.
    (b) Afflicted crewman. Any alien crewman afflicted with 
feeblemindedness, insanity, epilepsy, tuberculosis in any form, leprosy, 
or any dangerous contagious disease, or an alien crewman suspected of 
being so afflicted shall upon arrival at the first port of call in the 
United States, be paroled to the medical institution designated by the 
district director in whose district the port is located, in the custody 
(other than during the period of time he is in such medical institution) 
of the agent of the vessel or aircraft on which such alien arrived in 
the United States and at the expense of the transportation line for a 
period initially not to exceed thirty days, for treatment and 
observation, under the provisions of section 212(d)(5) of the Act. 
Unless the Public Health Surgeon at the first port certifies that such 
parole be effected immediately for emergent reasons, the district 
director may defer execution of parole to a subsequent port of the 
United States to which the vessel or aircraft will proceed, if 
facilities not readily available at the first port are readily available 
at such subsequent port of call. Notice to remove an afflicted alien 
crewman shall be served by the examining immigration officer upon the 
master or agent of the vessel or aircraft on Form I-259 and shall 
specify the date when and the place to which such alien crewman shall be 
removed and the reasons therefor.
    (c) Disabled crewman. Any alien crewman who becomes disabled in any 
port

[[Page 480]]

of the United States, whom the master or agent of the vessel or aircraft 
is obliged under foreign law to return to another country, may be 
paroled into the United States under the provisions of section 212(d)(5) 
of the Act for the period of time and under the conditions set by the 
district director in whose district the port is located, in the custody 
of the agent of the vessel or aircraft for the purpose of passing 
through the United States and transferring to another vessel or aircraft 
for departure to such foreign country, by the most direct and 
expeditious route.
    (d) Shipwrecked or castaway seamen or airmen. A shipwrecked or 
castaway alien seaman or airman who is rescued by or transferred at sea 
to a vessel or aircraft destined directly for the United States and who 
is brought to the United States on such vessel or aircraft other than as 
a member of its crew shall be paroled into the United States under the 
provisions of section 212(d)(5) of the Act for the period of time and 
under the conditions set by the district director in whose district the 
port is located, in the custody of the appropriate foreign consul or the 
agent of the aircraft or vessel which was wrecked or from which such 
seaman or airman was removed, for the purpose of treatment or 
observation in a hospital, if such is required, and for departure to the 
appropriate foreign country by the most direct and expeditious route.
    (e) Medical treatment or observation. Any alien crewman denied a 
conditional landing permit or whose conditional landing permit issued 
under Sec. 252.1(d)(1) of this chapter is revoked may, upon the request 
of the master or agent, be paroled into the United States under the 
provisions of section 212(d)(5) of the Act in the custody of the agent 
of the vessel or aircraft and at the expense of the transportation line 
for medical treatment or observation.
    (f) Crewman, stowaway, or alien temporarily excluded under section 
235(c) alleging persecution. Any alien crewman, stowaway, or alien 
temporarily excluded under section 235(c) of the Act who alleges that he 
cannot return to his country of nationality or last habitual residence 
(if not a national of any country) because of fear of persecution in 
that country on account of race, religion, nationality, membership in a 
particular social group, or political opinion, is eligible to apply for 
asylum or withholding of deportation under part 208 of this chapter.
    (1) If the alien is on a vessel or other conveyance and makes such 
fear known to an immigration inspector or other official making an 
examination on the conveyance, he shall be promptly removed from the 
conveyance. If the alien makes his fear known to an official while off 
such conveyance, he shall not be returned to the conveyance but shall be 
retained in or transferred to the custody of the Service.
    (2) In either case, the alien shall be provided the appropriate 
application forms and such other information as is required by 
Sec. 208.5 of this chapter and may then have ten (10) days within which 
to file an application for such relief with the District Director having 
jurisdiction over the port of entry from which the applicant seeks entry 
into the United States. The District Director, pursuant to Sec. 208.4(a) 
of this chapter, shall immediately forward any such application to an 
Asylum Officer with jurisdiction over his district.
    (3) Pending adjudication of the application by the Asylum Officer, 
the applicant may be detained by the Service, or paroled into the 
custody of the ship's agent or otherwise paroled in accordance with 
Sec. 212.5 of this chapter and shall not be excluded or deported before 
a decision is rendered by the Asylum Officer on his asylum application.
    (4) A decision denying asylum to an alien crewman or stowaway, but 
not an alien temporarily excluded under section 235(c) of this chapter, 
may be appealed directly to the Board of Immigration Appeals. Such 
appeal must be filed within ten (10) days of the Asylum Officer's 
decision by filing a notice of appeal on Form I-290A with the District 
Director, who shall immediately forward the notice to the Asylum 
Officer. The Asylum Officer shall transmit the notice of appeal, his 
decision, and the record on which that decision was based, to the Board 
of Immigration Appeals. The filing of a notice of appeal shall stay the 
exclusion or deportation

[[Page 481]]

of the applicant pending decision on the appeal by the Board.
    (g) Other crewmen. In the discretion of the district director, any 
alien crewman not within the purview of paragraphs (b) through (f) of 
this section may for other emergent reasons or for reasons deemed 
strictly in the public interest be paroled into the United States under 
the provisions of section 212(d)(5) of the Act for the period of time 
and under the conditions set by the district director having 
jurisdiction over the area where the alien crewman is located.

[22 FR 9804, Dec. 6, 1957, as amended at 26 FR 11797, Dec. 8, 1961; 32 
FR 4341, Mar. 22, 1967; 32 FR 9633, July 4, 1967; 55 FR 30687, July 27, 
1990]



Sec. 253.2  Termination of parole.

    (a) General. At the expiration of the period of parole authorized by 
the district director, or when the purpose of the parole has been 
served, whichever is earlier, the agent upon whom the relating Form I-
259 was served as provided in Sec. 253.1, shall present the alien 
crewman for inspection to an immigration officer at the Service office 
specified in the Form I-259. If the agent cannot present the alien 
crewman, the agent shall immediately submit a report of the reasons 
therefor to the district director. The district director shall take such 
further action as the circumstances may require. If the vessel or 
aircraft on which the alien crewman arrived in the United States is 
still in the United States when he is presented for inspection, he shall 
be treated as an applicant for a conditional landing permit and his case 
shall be dealt with in the same manner as any other applicant for a 
conditional landing permit. If the vessel or aircraft on which the alien 
crewman arrived in the United States departed before he was presented 
for inspection, the agent shall be directed by means of written notice 
on Form I-259 to arrange for the removal of the alien crewman from the 
United States, and if such alien crewman thereafter departs voluntarily 
from the United States within the time specified by the district 
director, such departure shall not be considered a deportation within 
the meaning of this section.
    (b) Revocation of parole. When an immigration officer has reason to 
believe that an alien crewman paroled into the United States pursuant to 
the provisions of Sec. 253.1 has violated the conditions of parole, the 
immigration officer may take such alien crewman into custody without a 
warrant of arrest. Following such action, the alien crewman shall be 
accorded, without undue delay, an examination by another immigration 
officer. If it is determined on the basis of such examination that the 
individual detained is an alien crewman who was paroled into the United 
States pursuant to the provisions of Sec. 253.1 and that he has violated 
the conditions of the parole or has remained in the United States beyond 
the period authorized by the district director, the district director 
shall cause to be served upon the alien crewman a written notice that 
his parole has been revoked, setting forth the reasons for such action. 
If the vessel or aircraft upon which the alien crewman arrived in the 
United States is still in the United States, the alien crewman shall be 
delivered to that vessel or aircraft and Form I-259 shall be served upon 
the master or commanding officer of the vessel or aircraft directing 
that the alien crewman be detained on board the vessel or aircraft and 
deported from the United States. A copy of Form I-259 shall also be 
served on the agent for the vessel or aircraft. If the vessel or 
aircraft upon which the alien crewman arrived in the United States has 
departed from the United States, the agent or owner of the vessel or 
aircraft shall be directed by means of a notice on Form I-259 to effect 
the deportation of the alien crewman from the United States. Pending 
deportation, the alien crewman shall be continued in custody, unless the 
district director authorizes his release on parole under such 
conditions, including the posting of a suitable bond, as the district 
director may prescribe.

[32 FR 4342, Mar. 22, 1967]



PART 258--LIMITATIONS ON PERFORMANCE OF LONGSHORE WORK BY ALIEN CREWMEN--Table of Contents




Sec.
258.1 Limitations--General.

[[Page 482]]

258.2 Exceptions.
258.3 Action upon arrival.

    Authority: 8 U.S.C. 1101, 1103, 1281; 8 CFR part 2.

    Source: 57 FR 40834, Sept. 8, 1992, unless otherwise noted.



Sec. 258.1  Limitations--General.

    (a) Longshore work defined. Longshore work means any activity 
relating to the loading and unloading of cargo, the operation of cargo-
related equipment [whether or not integral to the vessel], and the 
handling of mooring lines on the dock when the vessel is made fast or 
let go, in the United States or the coastal waters thereof.
    (1) Longshore work is not included in the term ``normal operation 
and service on board a vessel'' for the purposes of section 
101(a)(15)(D)(i) of the Act except as provided in sections 258 (c) or 
(d) of the Act.
    (2) A vessel that uses nonimmigrant crewmen to perform longshore 
work, other than the activities allowed in particular circumstances 
under Sec. 258.2 (a)(2), (b), or (c) of this part, shall be subject to a 
fine under section 251(d) of the Act.
    (b) Port defined. For purposes of this section, the term port means 
a geographic area, either on a seacoast, lake, river, or other navigable 
body of water, which contains one or more publicly or privately owned 
terminals, piers, docks, or maritime facilities, which is commonly 
regarded as a port by other government maritime related agencies, such 
as the Maritime Administration.



Sec. 258.2  Exceptions.

    Any master or agent who uses nonimmigrant crewmen to perform 
longshore work at any United States port under the exceptions provided 
for in paragraphs (a)(2), (b), or (c) of this section must so indicate 
on the crew manifest and shall note under which exception the work will 
be performed.
    (a) Hazardous cargo. (1) The term longshore work does not include 
the loading and unloading of any cargo for which the Secretary of 
Transportation has prescribed regulations under authority contained in 
chapter 37 of title 46, United States Code, section 311 of the Federal 
Water Pollution Control Act, section 4106 of the Oil Pollution Act of 
1990, or section 105 or 106 of the Hazardous Materials Transportation 
Act.
    (2) In order to invoke the hazardous cargo exception for safety and 
environmental protection, the master or agent shall note on the manifest 
that the vessel is a qualifying tanker or carries hazardous dry bulk 
cargo.
    (i) All tankers qualify for the hazardous cargo exception, including 
parcel tankers, except for a tanker that has been gas-freed to transport 
non-hazardous dry bulk commodities.
    (ii) In order for a vessel to qualify for the hazardous cargo 
exception as a dry bulk hazardous cargo carrier, the master or agent 
must show the immigration officer the dangerous cargo manifest that is 
required by Coast Guard regulation 46 CFR 148.02-3(a) to be kept near 
the bridge house.
    (b) Prevailing practice exception. (1) Nonimmigrant crewmen may 
perform longshore work under this exception if:
    (i) There is in effect in the local port one or more collective 
bargaining agreements, each covering at least 30 percent of the persons 
performing longshore work at the port, and each of which permits the 
longshore activity to be performed by the nonimmigrant crewman, or
    (ii) There is no collective bargaining agreement in effect in the 
local port covering at least 30 percent of the persons performing 
longshore work at the port, and the employer of the crewmen has filed an 
attestation with the Secretary of Labor that the Secretary of Labor has 
accepted.
    (2) Documentation to be presented under the prevailing practice 
exception. (i) If the master or agent states on the manifest, Form I-
418, that nonimmigrant crewmen will perform longshore work at a port 
under the prevailing practice exception as permitted by all collective 
bargaining agreements covering 30 percent or more of the persons 
performing longshore work at the port, then the master or agent must 
present to the examining immigration officer an affidavit from the local 
stevedore. The stevedore or a union representative of the employees' 
association must state on the affidavit that all bargaining agreements 
covering 30

[[Page 483]]

percent or more of the longshore workers at the port allow nonimmigrant 
crewmen either to perform all longshore work or to perform those 
specified longshore activities that crewmen on the vessel intend to 
perform.
    (ii) Where there is no collective bargaining agreement in effect at 
a port covering at least 30 percent of the persons who do longshore 
work, and the master or agent states on the manifest that nonimmigrant 
crewmen will perform such work under the prevailing practice exception, 
then the master or agent shall present a copy of the notification 
received from the Secretary of Labor that the attestation required for 
this exception has been accepted.
    (iii) When an unanticipated emergency occurs, the master or agent of 
a vessel may file an attestation with the Secretary of Labor up to the 
date on which crewmen perform longshore work.
    (A) If, because of an unanticipated emergency, crewmen on a vessel 
perform longshore work under the prevailing practice exception at a 
port, a revised manifest shall be submitted together with complete 
documentation, as specified in paragraph (b)(2)(ii) of this section, 
within 14 days of the longshore work having been done. Failure to 
present the required documentation may result in a fine under section 
251 of the Act.
    (B) All documents submitted after inspection shall be sent to the 
Immigration and Naturalization Service seaport office that inspected the 
vessel.
    (iv) Attestations are valid for one year from the date of filing and 
cover nonimmigrant crewmen landing during that period if the master or 
agent states on the manifest that the vessel's crew continue to comply 
with the conditions in the attestation. When the vessel's master or 
agent intends to use a previously accepted attestation that is still 
valid, the master or agent shall submit a copy of the notification from 
the Secretary of Labor that the attestation was accepted and shall note 
on the manifest that the vessel continues to comply with the conditions 
of the attestation.
    (3) Use of automated self-unloading conveyor belt or vacuum-actuated 
system on a vessel. An automated self-unloading conveyor belt or a 
vacuum-actuated system may be operated by a nonimmigrant crewman under 
the prevailing practice exception when no collective bargaining 
agreement at the local port prevents it. The master or agent is not 
required to file an attestation for nonimmigrant crewmen to perform such 
activity in such a circumstance unless the Secretary of Labor has 
determined that such activity is not the prevailing practice at that 
port, and has publicized this finding. When invoking this exception, the 
master or agent of the vessel shall annotate the manifest that the 
longshore work consists of operating a self-unloading conveyor belt or a 
vacuum-actuated system on the vessel under the prevailing practice 
exception.
    (4) Sanctions upon notification by the Secretary of Labor. If the 
Immigration and Naturalization Service is notified by the Secretary of 
Labor that an entity has either misrepresented facts in its attestation 
or has failed to meet a condition attested to, then the Immigration and 
Naturalization Service will take the necessary steps to prevent the 
landing of vessels owned or chartered by the offending entity in 
accordance with section 258(c)(E)(i) of the Act. The Service may also 
impose a sanction as provided in that section, including the prohibition 
of any vessel owned or chartered by the violating entity from landing at 
any United States port for up to one year.
    (5) The three variations of the prevailing practice exception--
collective bargaining agreement, attestation process, and automated 
equipment--are port specific. If a vessel is to use nonimmigrant crewmen 
to perform longshore work under the prevailing practice exception, the 
appropriate documentation required under paragraph (b)(2) of this 
section must be presented for each port at which the longshore work will 
be performed.
    (c) Reciprocity exception. Nonimmigrant crewmen may perform 
longshore work in a United States port under this exception if:
    (1) The vessel on which the crewmen serve is registered in a country 
that does not prohibit crewmen aboard United States vessels from 
performing

[[Page 484]]

longshore work, or a specified longshore activity, when United States 
vessels land in that country, as determined by the Secretary of State; 
and
    (2) The master or agent presents an affidavit from the crewmen's 
employer or the vessel's owner that a majority of the ownership interest 
in the vessel is held by nationals of a country or countries that do not 
prohibit such longshore activity by crewmen aboard United States vessels 
when they land in those countries.
    (d) Vessels that qualify for multiple exceptions. A vessel that 
qualifies for more than one exception under this section may invoke the 
exception that the master or agent chooses.
    (e) Lack of documentation required by an exception. If a vessel 
invokes an exception to the prohibition against nonimmigrant crewmen 
performing longshore work, but lacks any documentation required to 
accompany the manifest when invoking the exception, then the vessel's 
crewmen shall not perform longshore work. If the longshore work is 
performed despite the lack of documentation that the immigration officer 
has noted on the Form I-410, then the vessel is subject to fine under 
section 251(d) of the Act.



Sec. 258.3  Action upon arrival.

    (a) The master or agent of the vessel shall state on the manifest at 
the first port of entry:
    (1) Whether or not nonimmigrant crewmen aboard the vessel will 
perform longshore work at any port before departing the United States; 
and
    (2) If nonimmigrant crewmen will perform longshore work, which 
exception in section 258 of the Act permits them to do so.
    (b) If nonimmigrant crewmen will perform longshore work, the master 
or agent of the vessel shall present with the manifest any documentation 
required by 8 CFR 258.2 for the exception invoked.
    (c) If, at the time of inspection, the master or agent fails to 
present the documentation required for the exception invoked, then the 
vessel is prohibited from using nonimmigrant crewmen to perform 
longshore work. If crewmen aboard the vessel perform longshore work 
despite the prohibition, the vessel is subject to fine under section 
251(d) of the Act.
    (d) The examining immigration officer shall give the master or agent 
a Receipt for Crew List, Form I-410, on which the officer shall note 
whether or not nonimmigrant crewmen will do longshore work at any port 
of call and, if so, under which exception. The officer shall also note 
which documentation supporting the exception accompanied the manifest, 
and any failure to present documentation which failure would prohibit 
crewmen from performing longshore work under the exception that the 
vessel invoked.
    (e) If a vessel's crewmen perform longshore activity not sanctioned 
by an exception but performed to prevent the imminent destruction of 
goods or property; severe damage to vessels, docks, or real estate; 
possible environmental contamination; or possible injury or death to a 
person, a concise report of the incident shall be made within 14 days of 
the incident to the Immigration and Naturalization Service seaport 
office that performed the inspection. If the Service agrees that the 
situation was one of imminent danger requiring immediate action, no fine 
will be imposed for the performance of a longshore activity in this 
isolated instance.
    (f) Failure to deliver true and complete information on the manifest 
or any documentation required to support an exception may result in a 
fine against the owner, agent, consignee, master, or commanding officer 
under section 251(d) of the Act.



PART 264--REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED STATES--Table of Contents




264.1  Registration and fingerprinting.
264.2  Application for creation of record of permanent residence.
264.4  Application to replace a Nonresident Alien Border Crossing Card.
264.5  Application for a replacement Alien Registration Card.
264.6  Application for an initial or replacement Form I-94, Nonimmigrant 
          Arrival-Departure Document, or Form I-95, Crewmen's Landing 
          Permit.

    Authority: 8 U.S.C. 1103, 1201, 1201a, 1301-1305.

[[Page 485]]



Sec. 264.1  Registration and fingerprinting.

    (a) Prescribed registration forms. The following forms are 
prescribed as registration forms:

                           Form No. and Class

I-67, Inspection Record--Hungarian refugees (Act of July 25, 1958).
I-94, Arrival-Departure Record--Aliens admitted as nonimmigrants; aliens 
paroled into the United States under section 212(d)(5) of the 
Immigration and Nationality Act; aliens whose claimed entry prior to 
July 1, 1924, cannot be verified, they having satisfactorily established 
residence in the United States since prior to July 1, 1924; aliens 
lawfully admitted to the United States for permanent residence who have 
not been registered previously; aliens who are granted permission to 
depart without the institution of deportation proceedings or against 
whom deportation proceedings are being instituted.
I-95, Crewmen's Landing Permit--Crewmen arriving by vessel or aircraft.
I-175, Application for Nonresident Alien Canadian Border Crossing Card--
Citizens of Canada or British subjects residing in Canada.
I-181, Memorandum of Creation of Record of Lawful Permanent Residence--
Aliens presumed to be lawfully admitted to the United States under 8 CFR 
101.1.
I-190, Application for Nonresident Alien Mexican Border Crossing Card--
Citizens of Mexico residing in Mexico.
I-485, Application for Status as Permanent Resident--Applicants under 
sections 245 and 249 of the Immigration and Nationality Act as amended, 
and section 13 of the Act of September 11, 1957.
I-485A, Application by Cuban Refugee for Permanent Residence--Applicants 
under section 1 of the Act of November 2, 1966.
I-590, Registration for Classification as Refugee--Escapee--Refugee-
escapees paroled pursuant to section 1 of the Act of July 14, 1960.
I-687, Application for Status as a Temporary Resident--Applicants under 
section 245A of the Immigration and Nationality Act, as amended.
I-691, Notice of Approval for Status as a Temporary Resident--Aliens 
adjusted to lawful temporary residence under 8 CFR 210.2 and 245A.2.
I-698, Application to Adjust Status from Temporary to Permanent 
Resident--Applicants under section 245A of the Immigration and 
Nationality Act, as amended.
I-700, Application for Status as a Temporary Resident--Applicants under 
section 210 of the Immigration and Nationality Act, as amended.
I-817, Application for Voluntary Departure under the Family Unity 
Program.

    (b) Evidence of registration. The following forms constitute 
evidence of registration:

                           Form No. and Class

I-94, Arrival-Departure Record--Aliens admitted as nonimmigrants; aliens 
paroled into the United States under section 212(d)(5) of the 
Immigration and Nationality Act; aliens whose claimed entry prior to 
July 1, 1924, cannot be verified, they having satisfactorily established 
residence in the United States since prior to July 1, 1924; and aliens 
granted permission to depart without the institution of deportation 
proceedings.
I-95, Crewmen's Landing Permit--Crewmen arriving by vessel or aircraft.
I-184, Alien Crewman Landing Permit and Identification Card--Crewmen 
arriving by vessel.
I-185, Nonresident Alien Canadian Border Crossing Card--Citizens of 
Canada or British subjects residing in Canada.
I-186, Nonresident Alien Mexican Border Crossing Card--Citizens of 
Mexico residing in Mexico.
I-221, Order to Show Cause and Notice of Hearing--Aliens against whom 
deportation proceedings are being instituted.
I-221S, Order to Show Cause, Notice of Hearing, and Warrant for Arrest 
of Alien--Aliens against whom deportation proceedings are being 
instituted.
I-551, Alien Registration Receipt Card--Lawful permanent resident of the 
United States.
I-688, Temporary Resident Card-Lawful temporary residents of the United 
States.
I-688A, Employment Authorization Card.
I-688B, Employment Authorization Document.
I-766, Employment Authorization Document.

    (c) Replacement of registration. Any alien whose evidence of 
registration has been lost, mutilated, or destroyed, shall immediately 
apply for new evidence of registration.
    (1) Temporary residents. Application by an alien lawfully admitted 
for temporary residence for Form I-688, Temporary Resident Card, shall 
be made on Form I-695. (i) Who can file. An I-695 application may be 
filed by a lawful temporary resident:
    (A) To replace a lost, stolen, or detroyed card;
    (B) To replace a mutilated card;
    (C) To change a name or other biographic data.

[[Page 486]]

    (ii) Fee. An I-695 application must be submitted with the fee 
required by Sec. 103.7(b)(1) of this chapter.
    (iii) Accompanying documents--(A) Photographs. An I-695 application 
must be filed with two color photographs meeting the specifications on 
the application form.
    (B) Prior evidence of alien registration. Any Form I-688 in the 
applicant's possession must be submitted with the application.
    (C) Evidence of name or other biographic change. An I-695 
application filed under paragraph (c)(2)(i)(C) of this section must be 
filed with the order, issued by a court of competent jurisdiction, 
changing the applicant's name, or with the applicant's marriage 
certificate. An application to change other biographic data on a card 
must be filed with documentary evidence conclusively establishing the 
new data.
    (iv) Filing--(A) Where to file. An application by an alien within 
the United States for replacement of evidence of registration shall be 
submitted to the legalization or Service office having jurisdiction over 
the applicant's place of residence in the United States. An alien 
outside the United States shall appear at an American Consulate or 
Service office abroad and present a full account of the circumstances 
involving the loss or destruction of Form I-688. A cable shall be sent 
to the Service's Central Office Records Management Branch for 
verification of status. Subsequent to verification that temporary 
residence was granted, a transportation letter will be issued to the 
temporary resident alien. Upon entry to the United States, the alien 
shall submit the I-695 to the legalization or Service office having 
jurisdiction over the applicant's place of residence in the United 
States.
    (B) Camera ready card. Prior to the issuance of Form I-688, all 
applicants, regardless of age, shall appear at the appropriate 
legalization or Service office for placement of fingerprint and 
signature on I-688.
    (v) Processing--(A) Interview. An alien who files application Form 
I-695 may be required to appear in person before an immigration officer 
prior to the adjudication of the application and be interviewed under 
oath concerning his or her eligibility for issuance of I-688 as evidence 
of his or her registration.
    (B) Waiver of requirements. The Service may waive the photograph, 
interview or the placement of fingerprint and signature on the I-688 for 
a child under 14 or when it is impractical because of the health or 
advanced age of the applicant.
    (C) Fingerprint chart. An applicant may be required to present a 
completed fingerprint chart, FD-258.
    (vi) Decision. The decision on an application for replacement of 
evidence of registration shall be made by the Regional Processing 
Facility director having jurisdiction over the alien's place of 
residence in the United States. No appeal shall lie from the decision of 
the Regional Processing Facility director denying the application.
    (d) Surrender of registration. If an alien is naturalized, dies, 
permanently departs, or is deported from the United States, or evidence 
of registration is found by a person other than the one to whom such 
evidence was issued, the person in possession of the document shall 
forward it to a Service office.
    (e) Fingerprinting waiver. (1) Fingerprinting is waived for 
nonimmigrant aliens admitted as foreign government officials and 
employees; international organization representatives, officers and 
employees; NATO representatives, officers and employees, and holders of 
diplomatic visas while they maintain such nonimmigrant status. 
Fingerprinting is also waived for other nonimmigrant aliens, while they 
maintain nonimmigrant status, who are nationals of countries which do 
not require fingerprinting of United States citizens temporarily 
residing therein.
    (2) Fingerprinting is waived for every nonimmigrant alien not 
included in paragraph (e)(1) of this section who departs from the United 
States within one year of his admission, provided he maintains his 
nonimmigrant status during that time; each such alien not previously 
fingerprinted shall apply therefor at once if he remains in the United 
States in excess of one year.
    (3) Every nonimmigrant alien not previously fingerprinted shall 
apply therefor at once upon his failure to maintain his nonimmigrant 
status.

[[Page 487]]

    (f) Registration and fingerprinting of certain nonimmigrants. 
Notwithstanding the provisions included in paragraphs (e)(1) and (e)(2) 
of this section, the Attorney General may designate, by a comprehensive 
public notice in the Federal Register, that certain nonimmigrants of 
specific countries are required to be registered and fingerprinted upon 
arrival in the United States. This requirement shall not apply to those 
nonimmigrants applying for admission to the United States under section 
101(a)(15)(A) or 101(a)(15)(G) of the Immigration and Nationality Act. 
Those aliens so designated by the Attorney General who apply for 
admission to the United States shall be registered on Form I-94 
(Arrival/Departure Record), and may be fingerprinted on Form FD-258 
(Fingerprint Chart), and photographed by the Service at the Port-of-
Entry where the aliens apply for admission to the United States.
    (g) Registration and fingerprinting of children who reach age 14. 
Within 30 days after reaching the age of 14, any alien in the United 
States not exempt from alien registration under the act and this chapter 
shall present himself to a Service office for registration in accordance 
with section 262(b) of the Act, and for fingerprinting unless 
fingerprinting is waived pursuant to paragraph (e) of this section. He 
shall submit Form I-90 if he is a lawful permanent resident. If such 
alien is a lawful permanent resident of the United States and is 
temporarily absent from the United States when he reaches the age of 14, 
he shall comply with the foregoing within 30 days of his return to the 
United States. The alien, if a lawful permanent resident of the United 
States, shall surrender his prior evidence of alien registration and 
shall be issued Form I-551 bearing a photograph submitted by him in 
accordance with the instructions on Form I-90. In the case of an alien 
who is not a lawful permanent resident, the alien's Form I-94 or I-95 
shall be noted to show that he has been registered and the date of 
registration.
    (h) Temporary evidence of registration. Form I-94, appropriately 
endorsed, may be issued as temporary evidence of registration and lawful 
admission for permanent residence to a lawful permanent resident alien 
who is departing temporarily from the United States and has applied on 
Form I-90 for issuance of Form I-551, if the district director is unable 
to issue and deliver the Form I-551 prior to the alien's contemplated 
return to the United States. The alien shall surrender such Form I-94 to 
the Service upon receipt of Form I-551.
    (i) Copy of Form I-94. An attorney or representative as defined in 
Sec. 1.1 of this chapter who is representing an alien before the Service 
or the Board may make and retain, solely for information purposes, a 
copy of the Form I-94 (Arrival-Departure Record) issued to and in the 
possession of the alien. Such copy shall not be used for any other 
purpose.

[25 FR 10495, Nov. 2, 1960]

    Editorial Note: For Federal Register citations affecting Sec. 264.1, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



Sec. 264.2  Application for creation of record of permanent residence.

    (a) Jurisdiction. An applicant who believes that he/she is eligible 
for presumption of lawful admission for permanent residence under 
Sec. 101.1 or Sec. 101.2 of this chapter or for lawful permanent 
residence as a person born in the United States to a foreign diplomatic 
officer under Sec. 101.3 of this chapter shall submit his/her 
application for creation of a record of lawful permanent residence to 
the Service office having jurisdiction over the applicant's place of 
residence in the United States. The applicant must be physically present 
in the United States at the time of submission of his/her application.
    (b) Applicant under eighteen years old. If the applicant is under 
eighteen years old, the applicant's parent or legal guardian shall 
prepare and sign the application in the applicant's behalf.
    (c) Filing application--(1) Presumption of lawful admission for 
permanent residence. An applicant who believes that he/she is eligible 
for presumption of lawful admission for permanent residence under 
Sec. 101.1 or Sec. 101.2 of this chapter shall submit the following:
    (i) A completed Form I-485, with the fee required in 8 CFR 
103.7(b)(1) and

[[Page 488]]

any initial evidence required on the application form and in this 
section.
    (ii) Form G-325A, Biographic Information.
    (iii) The applicant's fingerprints on Form FD-258.
    (iv) A list of all the applicant's arrivals in and departures from 
the United States.
    (v) A statement signed by the applicant indicating the basis of the 
applicant's claim to presumption of lawful admission for permanent 
residence.
    (vi) Documentary evidence substantiating the applicant's claim to 
presumption of lawful admission for permanent residence, including proof 
of continuous residence in the United States.
    (vii) Two photographs prepared in accordance with the specifications 
outlined in the instructions on the application form. The immigration 
officer to whom the application is submitted, however, may waive the 
photographs for just cause.
    (2) Lawful permanent residence as a person born in the United States 
under diplomatic status. An applicant who believes that he/she is 
eligible for lawful permanent residence as a person born in the United 
States to a foreign diplomatic officer under Sec. 101.3 of this chapter 
shall submit the following:
    (i) A completed Form I-485, with the fee required in 8 CFR 
103.7(b)(1) and any initial evidence required in this application form 
and in this section.
    (ii) Form G-325A, Biographic Information.
    (iii) The applicant's fingerprints on Form FD-258.
    (iv) The applicant's birth certificate.
    (v) An executed Form I-508, Waiver of Rights, Privileges, 
Exemptions, and Immunities.
    (vi) Official confirmation of the diplomatic classification and 
occupational title of the applicant's parent(s) at the time of the 
applicant's birth.
    (vii) A list of all the applicant's arrivals in and departures from 
the United States.
    (viii) Proof of continuous residence in the United States.
    (ix) Two photographs prepared in accordance with the specifications 
outlined in the instructions on the application form. The immigration 
officer to whom the application is submitted, however, may waive the 
photographs for just cause.
    (3) Applicant under fourteen years old. An applicant under fourteen 
years old shall not submit Form G-325A, Biographic Information, or his/
her fingerprints on Form FD-258.
    (d) Personal appearance. Each applicant, including an applicant 
under eighteen years of age, must submit his/her application in person. 
This requirement may be waived at the discretion of the immigration 
officer to whom the application is submitted because of confinement of 
age, physical infirmity, illiteracy, or other compelling reason.
    (e) Interview. The applicant may be required to appear in person 
before an immigration officer prior to adjudication of the application 
to be interviewed under oath concerning his/her eligibility for creation 
of a record of lawful permanent residence.
    (f) Decision. The decision regarding creation of a record of lawful 
permanent residence for an alien eligible for presumption of lawful 
admission for permanent residence or for a person born in the United 
States to a foreign diplomatic officer will be made by the district 
director having jurisdiction over the applicant's place of residence.
    (g) Date of record of lawful permanent residence--(1) Presumption of 
lawful admission for permanent residence. If the application is granted, 
the applicant's permanent residence will be recorded as of the date of 
the applicant's arrival in the United States under the conditions which 
caused him/her to be eligible for presumption of lawful admission for 
permanent residence.
    (2) Lawful permanent residence as a person born in the United States 
under diplomatic status. If the application is granted, the applicant's 
permanent residence will be recorded as of his/her date of birth.
    (h) Denied application. If the application is denied, the decision 
may not be appealed.

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

[47 FR 941, Jan. 8, 1982, as amended at 58 FR 48779, Sept. 20, 1993]

[[Page 489]]



Sec. 264.4  Application to replace a Nonresident Alien Border Crossing Card.

    An application for a replacement Nonresident Alien Border Crossing 
Card must be filed pursuant to Sec. 212.6(e) of this chapter. An 
application for a replacement Form I-185, Nonresident Alien Canadian 
Border Crossing Card, must be filed on Form I-175. A fee as prescribed 
in Sec. 103.7(b)(1) of this chapter must be submitted at time of 
application. An application for a replacement Form I-586, Nonresident 
Alien Border Crossing Card, must be filed on Form I-190. A fee as 
prescribed in Sec. 103.7(b)(1) of this chapter must be submitted at time 
of application to replace a lost, stolen, or mutilated card.

[60 FR 40069, Aug. 7, 1995]



Sec. 264.5  Application for a replacement Alien Registration Card.

    (a) General. An application for a replacement alien registration 
card must be filed on Form I-90 with the initial evidence required on 
the application form and with the fee specified in 8 CFR 103.7(b)(1); 
except that no fee is required for an application filed pursuant to 
paragraphs (b)(7) through (b)(9) of this section, or paragraphs (d)(2) 
or (d)(4) of this section.
    (b) Permanent residents required to file. A permanent resident shall 
apply for a replacement alien registration card:
    (1) When the previous card has been lost, stolen, or destroyed;
    (2) When the existing card will be expiring within six months;
    (3) When the existing card has been mutilated;
    (4) When the bearer's name or other biographic information has been 
legally changed since issuance of the existing card;
    (5) When the applicant is taking up actual residence in the United 
States after having been a commuter, or is a permanent resident taking 
up commuter status;
    (6) When the applicant has been automatically converted to permanent 
resident status;
    (7) When the previous card was issued but never received;
    (8) When the bearer of the card reaches the age of 14 years, unless 
the existing card will expire prior to the bearer's 16th birthday; or
    (9) If the existing card bears incorrect data on account of Service 
error.
    (c) Other filings by a permanent resident.
    (1) A permanent resident shall apply on Form I-90 to replace a prior 
edition of the alien registration card issued on Form AR-3, AR-103, or 
I-151.
    (2) A permanent resident may apply on Form I-90 to replace any 
edition of the alien registration card for any other reason not 
specified in paragraphs (b) and (c)(1) of this section.
    (d) Conditional permanent residents required to file. A conditional 
permanent resident whose card is expiring shall apply to remove the 
conditions on residence on Form I-751. A conditional permanent resident 
shall apply on Form I-90:
    (1) To replace a card that was lost, stolen, or destroyed;
    (2) To replace a card that was issued but never received;
    (3) Where the prior card has been mutilated;
    (4) Where the prior card is incorrect on account of Service error; 
or
    (5) Where his or her name or other biographic data has changed since 
the card was issued.
    (e) Application process--(1) Accompanying documents--(i) 
Photographs. An I-90 application must be filed with two color 
photographs meeting the specifications on the application form.
    (ii) Prior evidence of alien registration. An I-90 application filed 
under paragraph (b) (2), (3), (4), (5), (8), or (9) of this section must 
include the prior Alien Registration Receipt Card or other evidence of 
permanent residence or commuter status.
    (iii) Evidence of name or other biographic change. An I-90 
application filed under paragraph (b)(4) of this section must include 
the order, issued by a court of competent jurisdiction, changing the 
applicant's name, or with the applicant's marriage certificate. An 
application to change other biographic data on a card must include 
documentary evidence conclusively establishing the new data.
    (iv) Fingerprint chart. An I-90 application filed under paragraph 
(b)(8) of this

[[Page 490]]

section must be filed with a completed Form FD-258 Fingerprint Chart.
    (2) Filing--(i) Where to file. An I-90 application shall be filed by 
the applicant with the Service office that has jurisdiction over his or 
her place of residence, except for those applicants filing an I-90 
pursuant to paragraph (b)(6) of this section, who shall file the 
application with the Director of the Service Center having jurisdiction 
over his or her place of residence. If the applicant's place of 
residence is outside the United States and there is no Service office in 
that foreign country, the application shall be filed by the applicant, 
in person, at the American Consulate with jurisdiction over his or her 
place of residence.
    (ii) Data collection form. An applicant must execute the signature 
and fingerprint blocks of Form I-89, Data Collection Form, at a Service 
office when filing an I-90 application.
    (3) Miscellaneous--(i) Interview. An applicant may be required to 
appear before an immigration officer or consular officer and be 
interviewed under oath concerning eligibility.
    (ii) Waiver of requirements. The Service may waive the photograph, 
in person filing, and I-89 execution requirements of this section in 
cases of confinement due to advanced age or physical infirmity.
    (f) Decision. If an application is denied, the applicant shall be 
notified of the reasons for denial. No appeal shall lie from this 
decision.
    (g) Eligibility for a card while in deportation or exclusion 
proceedings. A person in exclusion proceedings shall be entitled to 
evidence of permanent resident status until ordered excluded. Such 
evidence shall be in the form of a temporary Form I-551 issued for a 
period sufficient to accomplish the exclusion proceedings. A person in 
deportation proceedings shall be entitled to evidence of permanent 
resident status until ordered deported or excluded. Issuance of an alien 
registration card to a person in exclusion or deportation proceedings, 
provided the person had status as a lawful permanent resident when the 
proceeding commenced, shall not affect those proceedings.

[58 FR 48779, Sept. 20, 1993, as amended at 59 FR 1466, Jan. 11, 1994; 
59 FR 33905, July 1, 1994]



Sec. 264.6  Application for an initial or replacement Form I-94, Nonimmigrant Arrival-Departure Document, or Form I-95, Crewmen's Landing Permit.

    (a) General. An application for a new or replacement Form I-94 or 
replacement Form I-95 must be made on Form I-102. The application must 
be filed with the fee required in Sec. 103.7 of this chapter and the 
initial evidence required on the application form.
    (b) Filing. An application may be approved if filed by an alien in 
the United States who:
    (1) Applies to replace a lost or stolen Form I-94 or Form I-95 that 
had been issued to him or her;
    (2) Applies to replace a mutilated Form I-94 or Form I-95 issued to 
him or her; or
    (3) Was not issued a Form I-94 pursuant to Sec. 235.1(f)(1)(i), 
(iii), (iv), (v), or (vi) of this chapter, when last admitted as a 
nonimmigrant, has not since been issued a Form I-94, and now requires a 
Form I-94.
    (c) Processing. A pending application filed under paragraph (a) of 
this section shall be considered temporary evidence of registration. If 
the application is approved, the document shall be issued. There is no 
appeal from the denial of an application filed on Form I-102.

[59 FR 1466, Jan. 11, 1994]



PART 265--NOTICES OF ADDRESS--Table of Contents




    Authority: Secs. 103, 265 of the Immigration and Nationality Act, as 
amended by sec. 11, Pub. L. 97-166, 95 Stat. 1617 (8 U.S.C. 1103, 1305).



Sec. 265.1  Forms.

    Except for those exempted by section 263(b) of the Act, all aliens 
in the United States required to register under section 262 of the Act 
shall report each change of address and new address within 10 days on 
Form AR-11. This form is available at post offices and Service offices 
in the United States.

[[Page 491]]

The completed form must be mailed to the Department of Justice, 
Immigration and Naturalization Service, Washington, DC 20536.

[47 FR 44239, Oct. 7, 1982]



PART 270--PENALTIES FOR DOCUMENT FRAUD--Table of Contents




Sec.
270.1  Definitions.
270.2  Enforcement procedures.
270.3  Penalties.

    Authority: 8 U.S.C. 1101, 1103, and 1324c.

    Source: 57 FR 33866, July 31, 1992, unless otherwise noted.



Sec. 270.1  Definitions.

    For the purpose of this part--
    Document means an instrument on which is recorded, by means of 
letters, figures, or marks, matters which may be used to fulfill any 
requirement of the Act. The term ``document'' includes, but is not 
limited to, an application required to be filed under the Act and any 
other accompanying document or material;
    Entity means any legal entity, including, but not limited to, a 
corporation, partnership, joint venture, governmental body, agency, 
proprietorship, or association, including an agent or anyone acting 
directly or indirectly in the interest thereof.



Sec. 270.2  Enforcement procedures.

    (a) Procedures for the filing of complaints. Any person or entity 
having knowledge of a violation or potential violation of section 274C 
of the Act may submit a signed, written complaint to the Service office 
having jurisdiction over the business or residence of the potential 
violator or the location where the violation occurred. The signed, 
written complaint must contain sufficient information to identify both 
the complainant and the alleged violator, including their names and 
addresses. The complaint should also contain detailed factual 
allegations relating to the potential violation including the date, time 
and place of the alleged violation and the specific act or conduct 
alleged to constitute a violation of the Act. Written complaints may be 
delivered either by mail to the appropriate Service office or by 
personally appearing before any immigration officer at a Service office.
    (b) Investigation. When the Service receives complaints from a third 
party in accordance with paragraph (a) of this section, it shall 
investigate only those complaints which, on their face, have a 
substantial probability of validity. The Service may also conduct 
investigations for violations on its own initiative, and without having 
received a written complaint. If it is determined after investigation 
that the person or entity has violated section 274C of the Act, the 
Service may issue and serve upon the alleged violator a Notice of Intent 
to Fine.
    (c) Issuance of a subpoena. Service officers shall have reasonable 
access to examine any relevant evidence of any person or entity being 
investigated. The Service may issue subpoenas pursuant to its authority 
under sections 235(a) and 287 of the Act, in accordance with the 
procedures set forth in Sec. 287.4 of this chapter.
    (d) Notice of Intent to Fine. The proceeding to assess 
administrative penalties under section 274C of the Act is commenced when 
the Service issues a Notice of Intent to Fine. Service of this notice 
shall be accomplished by personal service pursuant to Sec. 103.5a(a)(2) 
of this chapter. Service is effective upon receipt, as evidenced by the 
certificate of service or the certified mail return receipt. The person 
or entity identified in the Notice of Intent to Fine shall be known as 
the respondent. The Notice of Intent to Fine may be issued by an officer 
defined in Sec. 242.1 of this chapter or by an INS port director 
designated by his or her district director.
    (e) Contents of the Notice of Intent to Fine. (1) The Notice of 
Intent to Fine shall contain the basis for the charge(s) against the 
respondent, the statutory provisions alleged to have been violated, and 
the monetary amount of the penalty the Service intends to impose.
    (2) The Notice of Intent to Fine shall provide the following 
advisals to the respondent:
    (i) That the person or entity has the right to representation by 
counsel of his or her own choice at no expense to the government;

[[Page 492]]

    (ii) That any statement given may be used against the person or 
entity;
    (iii) That the person or entity has the right to request a hearing 
before an administrative law judge pursuant to 5 U.S.C. 554-557, and 
that such request must be filed with INS within 60 days from the service 
of the Notice of Intent to Fine; and
    (iv) That if a written request for a hearing is not timely filed, 
the Service will issue a final order from which there is no appeal.
    (f) Request for hearing before an administrative law judge. If a 
respondent contests the issuance of a Notice of Intent to Fine, the 
respondent must file with the INS, within 60 days of the Notice of 
Intent to Fine, a written request for a hearing before an administrative 
law judge. Any written request for a hearing submitted in a foreign 
language must be accompanied by an English language translation. A 
request for hearing is deemed filed when it is either received by the 
Service office designated in the Notice of Intent to Fine, or addressed 
to such office, stamped with the proper postage, and postmarked within 
the 60-day period. In computing the 60-day period prescribed by this 
section, the day of service of the Notice of Intent to Fine shall not be 
included. In the request for a hearing, the respondent may, but is not 
required to, respond to each allegation listed in the Notice of Intent 
to Fine. A respondent may waive the 60-day period in which to request a 
hearing before an administrative law judge and ask that the INS issue a 
final order from which there is no appeal. Prior to execution of the 
waiver, a respondent who is not a United States citizen will be advised 
that a waiver of a section 274C hearing will result in the issuance of a 
final order and that the respondent will be excludable and/or deportable 
from the United States pursuant to the Act.
    (g) Failure to file a request for hearing. If the respondent does 
not file a written request for a hearing within 60 days of service of 
the Notice of Intent to Fine, the INS shall issue a final order from 
which there shall be no appeal.
    (h) Issuance of the final order. A final order may be issued by an 
officer defined in Sec. 242.1 of this chapter, by an INS port director 
designated by his or her district director, or by the Director of the 
INS National Fines Office.
    (i) Service of the final order--(1) Generally. Service of the final 
order shall be accomplished by personal service pursuant to 
Sec. 103.5a(a)(2) of this chapter. Service is effective upon receipt, as 
evidenced by the certificate of service or the certified mail return 
receipt.
    (2) Alternative provisions for service in a foreign country. When 
service is to be effected upon a party in a foreign country, it is 
sufficient if service of the final order is made: (i) In the manner 
prescribed by the law of the foreign country for service in that country 
in an action in any of its courts of general jurisdiction; or
    (ii) As directed by the foreign authority in response to a letter 
rogatory, when service in either case is reasonably calculated to give 
actual notice; or
    (iii) When applicable, pursuant to Sec. 103.5a(a)(2) of this 
chapter.

Service is effective upon receipt of the final order. Proof of service 
may be made as prescribed by the law of the foreign country, or, when 
service is pursuant to Sec. 103.5a(a)(2) of this chapter, as evidenced 
by the certificate of service or the certified mail return receipt.
    (j) Declination to file charges for document fraud committed by 
refugees at the time of entry. The Service shall not issue a Notice of 
Intent to Fine for acts of document fraud committed by an alien pursuant 
to direct departure from a country in which the alien has a well-founded 
fear of persecution or from which there is a significant danger that the 
alien would be returned to a country in which the alien would have a 
well-founded fear of persecution, provided that the alien has presented 
himself or herself without delay to an INS officer and shown good cause 
for his or her illegal entry or presence. Other acts of document fraud 
committed by such an alien may result in the issuance of a Notice of 
Intent to Fine and the imposition of civil money penalties.



Sec. 270.3  Penalties.

    (a) Criminal penalties. Nothing in section 274C of the Act shall be 
construed

[[Page 493]]

to diminish or qualify any of the penalties available for activities 
prohibited by this section but proscribed as well in title 18, United 
States Code.
    (b) Civil penalties. A person or entity may face civil penalties for 
a violation of section 274C of the Act. Civil penalties may be imposed 
by the Service or by an administrative law judge for violations under 
section 274C of the Act. The Service may charge multiple violations of 
section 274C of the Act in a single Notice of Intent to Fine, and may 
impose separate penalties for each such unlawful act in a single 
proceeding or determination. However, in determining whether an offense 
is a first offense or a subsequent offense, a finding of more than one 
violation in the course of a single proceeding or determination will be 
counted as a single offense.
    (1) A respondent found by the Service or an administrative law judge 
to have violated section 274C of the Act shall be subject to an order:
    (i) To cease and desist from such behavior; and
    (ii) To pay a civil penalty according to the following schedule:
    (A) First offense. Not less than $250 and not more than $2,000 for 
each fraudulent document or each proscribed activity described in 
section 274C (a)(1)-(a)(4) of the Act, or
    (B) Subsequent offenses. Not less than $2,000 and not more than 
$5,000 for each fraudulent document or each proscribed activity 
described in section 274C (a)(1)-(a)(4) of the Act.
    (2) Where an order is issued to a respondent composed of distinct, 
physically separate subdivisions each of which provides separately for 
the hiring, recruiting, or referring for a fee for employment (without 
reference to the practices of, and not under the common control of or 
common control with, another subdivision), each subdivision shall be 
considered a separate person or entity.



PART 271--DILIGENT AND REASONABLE EFFORTS TO PREVENT THE UNAUTHORIZED ENTRY OF ALIENS BY THE OWNERS OF RAILROAD LINES, INTERNATIONAL BRIDGES OR TOLL ROADS--Table of Contents




    Authority: 8 U.S.C. 1103 and 1321.



Sec. 271.1  Procedures for inspections.

    (a) Applicability. The following terms and conditions apply to those 
owners or operators of railroad lines, international bridges, or toll 
roads, which provide a means for an alien to come to the United States.
    (b) Inspection of facility. Based upon a written request by the 
owners or operators, the INS district director or his designee shall 
inspect the facility or method utilized in order to ensure that owners 
and operators have acted diligently in taking adequate steps to prevent 
the unlawful entry of aliens into the United States. Such measures may 
include but are not necessarily limited to fencing, barricades, 
lighting, or security guards. If the district director determines that 
preventive measures are inadequate, he or she shall advise the owners or 
operators in writing, citing the reasons for such determination. If the 
owners or operators believe the requirements of the district director to 
be excessive or unnecessary, they may request that the Regional 
Commissioner having jurisdiction over the location where the facility is 
located, review the district director's requirements. The Regional 
Commissioner shall advise the owners or operators in writing of the 
results of his or her review.
    (c) Preventive measures and certification. Upon a determination by 
the district director that reasonable and adequate preventive measures 
have been taken by the owners and operators, he or she shall certify 
that the owners and operators shall not be liable for the penalty 
described in section 271(a), so long as the facility or method

[[Page 494]]

utilized is maintained in the condition in which approved and certified.
    (d) Revocation of certification. The District Director having 
jurisdiction over the location where the facility is located, in his or 
her discretion, may at any time, conduct an inspection of said facility 
to determine if any violation is occurring. If the facility is found to 
be not in compliance, said certification will be revoked.

[53 FR 26036, July 11, 1988]



PART 274--SEIZURE AND FORFEITURE OF CONVEYANCES--Table of Contents




Sec.
274.1  Definitions.
274.2  Officers authorized to seize conveyances.
274.3  Custody and duties of custodian.
274.4  Conveyances subject to seizure; termination of interest.
274.5  Return to owner of seized conveyance not subject to forfeiture; 
          opportunity for personal interview.
274.6  Proof of property interest.
274.7  Appraisal.
274.8  Notice to owner and lienholder of seizure.
274.9  Advertisement.
274.10  Judicial forfeiture proceedings upon claim and bond.
274.11  Administrative forfeiture.
274.12  Judicial forfeiture.
274.13  Petitions for relief from forfeiture; filing.
274.14  Time for filing petitions.
274.15  Remission.
274.16  Mitigation.
274.17  Restoration of proceeds or appraised value.
274.18  Provisions applicable to particular situations.
274.19  Determinations on petitions; reconsideration.
274.20  Compromise of judicial forfeiture proceedings.

    Authority: 8 U.S.C. 1103, 1324(b).

    Source: 53 FR 43187, Oct. 26, 1988, unless otherwise noted.



Sec. 274.1  Definitions.

    The following definitions apply to the following terms in this part:
    (a) The term appraised value means the estimated price at the time 
and place of seizure, if such or similar property were freely offered 
for sale.
    (b) The term beneficial owner means a person who has dominion and 
control over a conveyance, as well as a property interest therein.
    (c) The term claimant means any person who asserts a property 
interest in a seized or forfeited conveyance through a personal 
interview or by filing a claim and a bond or a petition for relief from 
forfeiture.
    (d) The term common carrier means an express carrier, a freight 
forwarder, a motor common carrier, a rail carrier, a sleeping car 
carrier, and a water common carrier, as each of those terms is defined 
in 49 U.S.C. 10102; and an air carrier and a foreign air carrier, as 
each of those terms is defined in 49 U.S.C. 1301.
    (e) The term consenting party or privy to the illegal act means that 
the person knew of the illegal activity. A person shall be presumed to 
have knowledge of an illegal activity if the facts and circumstances are 
such that a person would reasonably be expected to know of the illegal 
activity.
    (f) The term conveyance means a vessel, vehicle, or aircraft as used 
in section 274(b) of the Act. A trailer shall be considered a vehicle if 
it is being towed or readily capable of being towed. An immobilized 
house trailer which has been placed on permanent foundations, which is 
not readily mobile, is not a vehicle.
    (g) The term custodian means the regional commissioner or the U.S. 
Marshals Service.
    (h) The date of an action in conjunction with the term filed means 
the following:
    (1) Date of receipt in the office specified in this part for filing, 
if filing is by personal delivery;
    (2) Date of postmark, if filing is by mail to the office specified 
in this part for filing;
    (3) Date five days prior to date of receipt in the office specified 
in this part for filing, if filing is by mail to the office specified in 
this part for filing and date of postmark is missing or illegible; or
    (4) Date of receipt in the office specified in this part for filing, 
if filing is by mail to any other office.
    (i) The term lien means in interest created by a conditional sales 
contract, mortgage, title retention contract, debt reduced to a judicial 
judgment

[[Page 495]]

upon which there has been an execution or an attachment against a 
conveyance, or other security interest in a conveyance. A lienholder is 
the holder of such an interest.
    (j) The term net equity means the amount of monetary interest of a 
lienholder in a conveyance. Net equity is to be computed by determining 
the amount of unpaid principal and unpaid interest as of the date of 
seizure, and by adding to that amount the unpaid interest calculated 
from the date of seizure through the last full month prior to the date 
of the determination granting relief from forfeiture. The rate of 
interest to be used in this computation will be the annual percentage 
rate specified in the security agreement which is the basis of the 
interest of the lienholder. In this computation there shall be no 
allowances for unearned extended warranty, insurance, or service 
contract charges incurred after the date of seizure, nor allowances for 
dealer reserves, attorneys fees, or other similar charges.
    (k) The term owner means a person who has the right to possess and 
use a conveyance to the exclusion of other persons. A person who has 
complied with the state formalities for a title or a registration for a 
conveyance is not the owner if such person does not have sufficient 
actual beneficial interest in the conveyance. In the consideration of a 
petition for relief from forfeiture the mere existence of a community 
property interest without proof of financial contribution to the 
purchase of a conveyance will not be deemed a property interest. 
Ownership is the interest that an owner has in a conveyance.
    (l) The term person means an individual, partnership, corporation, 
joint business enterprise, or other entity capable of owning a 
conveyance.
    (m) The term petitioner means a person filing a petition for relief 
from forfeiture of a seized conveyance.
    (n) The term property interest means ownership, lien, or other 
legally cognizable interest in or legal entitlement to possession of a 
conveyance existing on the date of seizure of the conveyance. A person 
who has complied with the state formalities of a title or a registration 
for a conveyance may not have sufficient actual beneficial interest or 
other legally cognizable interest in a conveyance. In the consideration 
of a petition for relief from forfeiture the mere existence of a 
community property interest without proof of financial contribution to 
the purchase of a conveyance will not be deemed a property interest.
    (o) The term record means an arrest for a related crime followed by 
a conviction, except that a single arrest and conviction and the 
expiration of any sentence imposed as a result of the conviction, all of 
which occurred more than ten years prior to the date a claimant acquired 
a property interest in the seized or forfeited conveyance, is not 
considered a record; provided that two convictions of related crimes 
shall always be considered a record regardless of when the convictions 
occurred; and provided that the regional commissioner may consider as 
constituting a record an arrest for a related crime or series of arrests 
for related crimes in which the charge or charges were subsequently 
dismissed for reasons other than acquittal or lack of evidence.
    (p) The term regional commissioner means the Regional Commissioner 
of the Service for the region in which a conveyance is seized, or the 
designee of that Regional Commissioner.
    (q) The term related crime means any crime similar in nature to or 
related to the illegal bringing in, harboring, transportation, entry, 
reentry, or importation of aliens.
    (r) The term reputation means repute for related crimes with a law 
enforcement agency or among law enforcement officers or in the community 
generally, including any pertient neighborhood or other area.
    (s) The term seizure means the act of taking a conveyance into the 
custody of the Service for the express purpose of considering forfeiture 
pursuant to section 274(b) of the Act and this part.
    (t) The term state means any state or any like political division of 
any geographical territory defined in section 101(a)(38) of the Act as 
being part of the United States or any state or any like political 
division of any geographical territory of any other nation or territory, 
unless otherwise limited in this part.

[[Page 496]]

    (u) The term sufficient actual beneficial interest means the 
interest in a conveyance of a beneficial owner.
    (v) The term violator means a person whose use of or actions with 
regard to a conveyance in violation of the law subjected the conveyance 
to seizure pursuant to section 274(b) of the Act and this part.



Sec. 274.2  Officers authorized to seize conveyances.

    For the purpose of carrying out the provisions of section 274(b) of 
the Act and this part, any immigration officer is authorized and 
designated by the Commissioner to seize a conveyance.



Sec. 274.3  Custody and duties of custodian.

    Any conveyance seized pursuant to section 274(b) of the Act and this 
part shall be stored in a location designated by the custodian. The 
custodian is to receive and maintain in storage all conveyances seized 
and all conveyances forfeited pursuant to section 274(b) of the Act and 
this part. After the custodian is notified that all proceedings, 
administrative or judicial, have been completed and that all petitions 
for relief from forfeiture have been finally adjudicated, a conveyance 
is available for disposition according to law. The custodian is 
authorized to dispose of any conveyances pursuant to section 274(b) of 
the Act and any other applicable statutes or regulations relative to 
disposal; and to perform other duties, not inconsistent with the 
provisions of the Act, regarding seized and forfeited conveyances and 
the proceeds of sales thereof, as are imposed on the U.S. Customs 
Service with respect to seizures under the Customs statutes, including 
the maintenance of appropriate records concerning the seizure and 
disposition of conveyances.



Sec. 274.4  Conveyances subject to seizure; termination of interest.

    (a) Any conveyance which an immigration officer has probable cause 
to believe has been or is being used in the commission of a violation of 
section 274(a) of the Act is subject to seizure.
    (b) Any property interest in a conveyance is automatically 
terminated as of the date of the seizure, if the conveyance is later 
declared forfeited. Any provision of any state law which recognizes a 
continuing property interest or right to reinstatement of a property 
interest in a conveyance has no effect after the date of the seizure of 
the conveyance, if the conveyance is later declared forfeited.
    (c) The custodian is authoized to execute a document of title to 
convey ownership of a conveyance declared forfeited pursuant to section 
274(b) of the Act and this part.



Sec. 274.5  Return to owner of seized conveyance not subject to forfeiture; opportunity for personal interview.

    (a) The Service shall attempt with due diligence to ascertain the 
ownership of any conveyance seized pursuant to section 274(b) of the Act 
and this part, in order to determine whether the conveyance is subject 
to forfeiture.
    (b) The following conveyances are not subject to forfeiture:
    (1) A conveyance used by any person as a common carrier, unless it 
appears that the owner or other person in charge was a consenting party 
or privy to the illegal use of the conveyance; and
    (2) A conveyance established by the owner to have been unlawfully in 
the possession of a person other than the owner in violation of the 
criminal laws of the United States or of any state of the United States 
as defined in section 101(a)(38) of the Act.
    (c) The owner of a seized conveyance shall be informed of the right 
to request a personal interview with an immigration officer and to 
present evidence to establish:
    (1) That the conveyance was not subject to seizure; or
    (2) That the conveyance is not subject to forfeiture; or
    (3) That the conveyance was used in an act to which the owner was 
not privy, or did not consent, and the owner took all reasonable steps 
to prevent the illegal use of the conveyance.
    If it is determined that the owner has established that paragraphs 
(c)(1) or (c)(2) of this section apply to the seized conveyance, that 
seized conveyance shall be returned to the owner as provided in 
paragraph (e) of this section; and if it is determined that the owner

[[Page 497]]

has established that paragraph (c)(3) of this section applies to the 
seized conveyance, that seized conveyance may be returned to the owner 
as provided in paragraph (d) of this section.
    (d) At any time after seizure the regional commissioner may 
determine that it is in the best interests of justice not to pursue 
forfeiture of a seized conveyance which is otherwise subject to 
forfeiture. If such a determination is made, that seized conveyance 
shall be returned to the owner as provided in paragraph (e) of this 
section.
    (e) The owner of a seized conveyance to be returned pursuant to 
paragraphs (c) or (d) of this section will be notified of the conditions 
of obtaining possession and that possession of the seized conveyance 
must be taken within 20 days of receipt of notice of the availability of 
the seized conveyance for return. If the owner has not complied with the 
conditions of obtaining possession and taken possession of the seized 
conveyance within that 20 day period, that seized conveyance shall be 
considered voluntarily abandoned to the United States, and the custodian 
shall dispose of that seized conveyance as provided in Sec. 274.3 of 
this part. The conditions of obtaining possession of a seized conveyance 
available for return pursuant to paragraphs (c) and (d) of this section 
are as follows:
    (1) If paragraph (c)(1) of this section applies to the seized 
conveyance, there shall be no conditions for obtaining possession;
    (2) If paragraphs (c)(2), (c)(3), or (d) of this section apply to 
the seized conveyance, the owner shall pay all costs and expenses of 
seizure and shall execute an instrument holding the United States, its 
agents and employees, harmless from all claims which may result from the 
seizure and return of the seized conveyance.
    (f) If a seized conveyance being returned to the owner pursuant to 
this section is the subject of judicial forfeiture proceedings, the 
regional commissioner shall notify the United States Attorney that a 
determination has been made that the seized conveyance is to be returned 
to the owner and request that the judicial forfeiture proceedings be 
terminated.



Sec. 274.6  Proof of property interest.

    The burden of proof is on a claimant to establish that the asserted 
property interest in a seized conveyance existed on the date of seizure 
of that conveyance by submission of sufficient satisfactory original 
documentation or certified copies of the original documentation. If the 
claimant fails to present documentation showing compliance with required 
state formalities it will be presumed that a property interest in a 
seized conveyance did not exist on the date of seizure of that 
conveyance.



Sec. 274.7  Appraisal.

    The regional commissioner shall determine the appraised value of a 
seized conveyance by consulting accepted reference guides to conveyance 
values or experts in conveyance values. If there is no market for a 
conveyance at the place of seizure, the value of the conveyance in the 
principal market nearest the place of seizure shall be considered.



Sec. 274.8  Notice to owner and lienholder of seizure.

    Whenever a conveyance is seized, a notice must be given to the owner 
and any known lienholder notifying them of the seizure of the conveyance 
and its consideration for forfeiture. The notice must be accompanied by 
copies of this part, section 274 of the Act, and the proposed 
advertisement, if an advertisement is required pursuant to Sec. 274.9 of 
this part. The owner shall be specifically informed of the provisions of 
Secs. 274.5, 274.10, 274.13, 274.14, 274.15, 274.16, and 274.17 of this 
part.



Sec. 274.9  Advertisement.

    (a) If the appraised value of a seized conveyance does not exceed 
the monetary amount set forth in title 19 U.S.C. 1607 the regional 
commissioner shall cause an advertisement of the seizure to be published 
once a week for at least three successive weeks in a newspaper of 
general circulation in the federal judicial district in which the 
seizure occurred.
    (b) The advertisement must:
    (1) Describe the conveyance seized and indicate the identification 
number, if any;

[[Page 498]]

    (2) State the time and place of seizure;
    (3) State that the seized conveyance is subject to forfeiture except 
as provided in Sec. 274.5(b) of this part;
    (4) State that the Service is considering forfeiture of the seized 
conveyance and sale or other disposal, if declared forfeited; and
    (5) State that any prospective petitioners for relief from 
forfeiture should submit their petitions pursuant to Secs. 274.13, 
274.14, 274.15, 274.16, and 274.17 of this part within 30 days of 
publication of the advertisement.

[53 FR 43187, Oct. 26, 1988, as amended at 56 FR 8686, Mar. 1, 1991]



Sec. 274.10  Judicial forfeiture proceedings upon claim and bond.

    (a) Any person claiming ownership of a seized conveyance with an 
appraised value that does not exceed the monetary amount set forth in 
title 19 U.S.C. 1607, may obtain judicial forfeiture proceedings in 
United States District Court by filing a claim and a bond as follows:
    (1) The claim must set forth the basis of the claimed ownership and 
allege why the conveyance was not subject to seizure;
    (2) The claim must be filed in the office specified in the notice 
and the advertisement as provided in Sec. 274.8 and Sec. 274.9 of this 
part within 20 days of the date of first publication of the 
advertisement;
    (3) The claim must be accompanied by a bond in the amount of the 
lesser of $5,000 or ten percent of the appraised value of the seized 
conveyance, but in no event less than $250, in the form of cash or 
certified check; and
    (4) If the bond is in the form of a check, it must be drawn payable 
to the Department of Justice. The costs and expenses of the judicial 
forefeiture proceedings will be paid from the bond, following completion 
of the proceedings. Any balance remaining shall be returned to the 
claimant.
    (b) The regional commissioner may waive the bond requirement in the 
manner provided in Sec. 103.7(c)(1) of this chapter.
    (c) The filing of a claim and a bond does not entitle the claimant 
to possession of the conveyance.

[53 FR 43187, Oct. 26, 1988, as amended at 56 FR 8686, Mar. 1, 1991]



Sec. 274.11  Administrative forfeiture.

    If the appraised value of a seized conveyance does not exceed the 
monetary amount set forth in title 19 U.S.C. 1607, and a claim and a 
bond are not filed within 20 days of the date of first publication of 
the advertisement as provided in Sec. 274.9 of this part, the regional 
commissioner may declare the seized conveyance forfeited. The regional 
commissioner shall execute the declaration of forfeiture. The custodian 
shall dispose of the forfeited conveyance as provided in Sec. 274.3 of 
this part.

[53 FR 43187, Oct. 26, 1988, as amended at 56 FR 8686, Mar. 1, 1991]



Sec. 274.12  Judicial forfeiture.

    If the appraised value of a seized conveyance exceeds the monetary 
amount set forth in title 19 U.S.C. 1607, or a claim and a bond have 
been filed for a seized conveyance with an appraised value that does not 
exceed the monetary amount set forth in title 19 U.S.C. 1607, as 
provided in Sec. 274.10(a) of this part, the regional commissioner shall 
transmit the claim and bond, as well as a copy of the advertisement as 
provided in Sec. 274.9 of this part and a complete statement of the 
facts and circumstances surrounding the seizure to the United States 
Attorney for the federal judicial district in which the conveyance was 
seized for commencement of judicial forfeiture proceedings pursuant to 
section 274(b) of the Act and this part.

[53 FR 43187, Oct. 26, 1988, as amended at 56 FR 8686, Mar. 1, 1991]



Sec. 274.13  Petitions for relief from forfeiture; filing.

    (a) Any person having a property interest in any seized conveyance 
may file a petition for relief from forfeiture. A petition must comply 
with the provisions of this section and Secs. 274.14, 274.15, 274.16, 
and 274.17 of this part and be filed with the regional commissioner if

[[Page 499]]

the seized conveyance has not been referred to a United States Attorney 
pursuant to Sec. 274.12 of this part for the commencement of judicial 
forfeiture proceedings. If such a referral has occurred, a petition must 
comply with the provisions of 28 CFR 9.3 and be filed with the United 
States Attorney.
    (b) A petition must be executed and sworn to by the petitioner or by 
duly authorized counsel for the petitioner upon information and belief.
    (c) A petition must include the following:
    (1) A complete description of the conveyance, including 
identification number, if any, and the date and place of seizure;
    (2) A complete statement of the property interest in the seized 
conveyance asserted by the petitioner, which property interest must be 
established as provided in Sec. 274.6 of this part; and
    (3) The facts and circumstances, with satisfactory proof thereof, 
relied upon by the petitioner to justify relief from forfeiture.
    (d) Filing of a petition does not extend the time for filing a claim 
and a bond.
    (e) If a petition is received by or a petition without a 
determination issued thereon is in the possession of the regional 
commissioner which asserts a property interest in a seized conveyance 
which is the subject of a referral to a United States Attorney for 
commencement of judicial forfeiture proceedings, the regional 
commissioner shall transmit the petition and a recommendation thereon to 
the United States Attorney. The regional commissioner shall notify the 
petitioner of the transmittal. Upon receipt of such a petition, the 
United States Attorney shall forward a copy of the petition, the 
recommendation of the regional commissioner, and the recommendation of 
the United States Attorney to the Director, Asset Forfeiture Office, 
Criminal Division, Department of Justice.



Sec. 274.14  Time for filing petitions.

    (a) Petitions for the reliefs of remission or mitigation of 
forfeitute should be filed within 30 days of the date of first 
publication of the advertisement as provided in Sec. 274.9 of this part. 
After a seized conveyance has been declared forfeited and placed in 
official use, sold, or otherwise disposed of according to law, petitions 
for the reliefs of remission or mitigation of forfeiture shall not be 
accepted.
    (b) Petitions for the relief of restoration of proceeds of sale or 
the appraised value of a seized and forfeited conveyance placed in 
official use or otherwise disposed of according to law must be filed 
within 90 days of the sale of the seized and forfeited conveyance or 
within 90 days that the seized and forfeited conveyance is placed in 
official use or otherwise disposed of according to law.



Sec. 274.15  Remission.

    (a) The regional commissioner shall not grant remission of 
forfeiture unless the petitioner establishes:
    (1) A property interest in the conveyance;
    (2) That at no time did the petitioner have any knowledge or reason 
to believe that the conveyance was being or would be used in violation 
of the law, including satisfying any applicable provisions of 
Sec. 274.18 of this part;
    (3) That the petitioner had no knowldege of the particular violation 
which subjected the conveyance to seizure and forfeiture;
    (4) That the petitioner had no knowledge that the owner nor anyone 
else using or able to use the conveyance had any record or reputation; 
had
    (5) That the petitioner had taken all reasonable steps to prevent 
the illegal use of the conveyance.
    (b) Remission of forfeiture can only be granted after a seized 
conveyance has been declared forfeited.
    (c) Grant of remission of forfeiture must be conditioned upon:
    (1) Payment to the custodian of all costs and expenses of the 
seizure and forfeiture; or, in the case of a lienholder-petitioner, 
payment of all costs and expenses of the seizure and forfeiture or the 
amount by which the appraised value exceeds the net equity of the 
lienholder-petitioner in the conveyance, whichever is greater;
    (2) Execution of an instrument by the petitioner holding the United 
States, its agents and employees, harmless

[[Page 500]]

from all claims which may result from the grant of remission of 
forfeiture;
    (3) Execution of an agreement by the petitioner that no property 
interest in the conveyance will be transferred to any violator; and
    (4) Any other terms or conditions as the regional commissioner 
determines to be appropriate, including a provision for liquidated 
damages to guarantee compliance with any of the provisions of the 
agreement or terms and conditions of the remission of forfeiture.
    (d) The following provisions apply only to an owner-petitioner that 
is granted remission of forfeiture:
    (1) Within 20 days after receipt of the determination, that owner-
petitioner shall comply with the conditions of remission and take 
possession of the forfeited conveyance; and
    (2) If that owner-petitioner does not comply with the provisions of 
paragraph (d)(1) of this section, the forfeited conveyance shall be 
placed in official use, sold, or otherwise disposed of by the custodian 
as provided in Sec. 274.3 of this part. The proceeds of a sale of the 
forfeited conveyance shall be applied first to all costs and expenses of 
the seizure, forfeiture, and sale and any remaining balance shall be 
paid to that owner-petitioner. If the forfeited conveyance is placed in 
official use or otherwise disposed of, that owner-petitioner shall be 
paid an amount equal to the appraised value of the conveyance minus all 
costs and expenses of the seizure, forfeiture, and disposal.
    (e) The following provisions apply only to a lienholder-petitioner 
that is granted remission of forfeiture:
    (1) That lienholder-petitioner shall receive payment of the net 
equity of that lienholder-petitioner, if the forfeited conveyance is 
placed in official use or otherwise disposed of according to law; or 
either possession of the forfeited conveyance, or a monetary amount not 
to exceed the net equity of that lienholder-petitioner from a sale of 
the forfeited conveyance;
    (2) Within 20 days after receipt of the determination, that 
lienholder-petitioner shall comply with the conditions of remission and 
take possession of the forfeited conveyance; and
    (3) If that lienholder-petitioner does not comply with the 
provisions of paragraph (e)(2) of this section, the forfeited conveyance 
shall be placed in official use, sold, or otherwise disposed of by the 
custodian as provided in Sec. 274.3 of this part. The proceeds of a sale 
shall be applied first to all costs and expenses of the seizure, 
forfeiture, and sale and any remaining balance not exceeding the net 
equity of that lienholder-petitioner shall be paid to that lienholder-
petitioner. If the forfeited conveyance is placed in official use or 
otherwise disposed of, that lienholder-petitioner shall be paid the net 
equity of that lienholder-petitioner minus all costs and expenses of the 
seizure, forfeiture, and disposal.



Sec. 274.16  Mitigation.

    (a) The regional commissioner may grant mitigation of forfeiture of 
a seized conveyance to a petitioner, including a violator. To be 
eligible for the relief of mitigation of forfeiture, a petitioner must 
establish that transfer of ownership of the forfeited conveyance to the 
petitioner promotes the interests of justice and does not diminish the 
deterrent effect of section 274(b) of the Act.
    (b) A grant of mitigation of forfeiture shall be in the form of a 
monetary penalty imposed upon the petitioner in addition to any other 
amounts chargeable as a condition to the grant of the relief of 
remission of forfeiture. This penalty is considered as an item of cost 
payable by the petitioner.
    (c) Mitigation of forfeiture can only be granted after a seized 
conveyance has been declared forfeited.
    (d) A grant of mitigation of forfeiture must be conditioned upon:
    (1) Execution of an instrument by the petitioner holding the United 
States, its agents and employees, harmless from all claims which may 
result from the grant of mitigation of forfeiture;
    (2) Execution of an agreement that no property interest in the 
conveyance will be transferred to any violator, or any other violator if 
the petitioner is a violator; and
    (3) Any other terms or conditions as the regional commissioner 
determines to be appropriate, including a provision for liquidated 
damages to guarantee compliance with any provisions of the

[[Page 501]]

agreement or terms and conditions of the mitigation of forfeiture.
    (e) The following provisions apply only to an owner-petitioner that 
is granted mitigation of forfeiture:
    (1) Within 20 days after receipt of the determination, that owner-
petitioner shall comply with the conditions of mitigation and take 
possession of the forfeited conveyance; and
    (2) If that owner-petitioner does not comply with the provisions of 
paragraph (e)(1) of this section, the forfeited conveyance shall be 
placed in official use, sold, or otherwise disposed of by the custodian 
under Sec. 274.3 of this part. The proceeds of a sale of the forfeited 
conveyance shall be applied first to all costs and expenses of the 
seizure, forfeiture, and sale and any remaining balance shall be paid to 
that owner-petitioner. If the forfeited conveyance is placed in official 
use or otherwise disposed of, that owner-petitioner shall be paid an 
amount equal to the appraised value of the conveyance minus all costs 
and expenses of the seizure, forfeiture, and disposal.
    (f) The following provisions apply only to a lienholder-petitioner 
that is granted mitigation of forfeiture:
    (1) That lienholder-petitioner shall receive payment of the net 
equity of that lienholder-petitioner, if the forfeited conveyance is 
retained for official use; or either possession of the forfeited 
conveyance, or a monetary amount not to exceed the net equity of that 
lienholder-petitioner from the sale of the forfeited conveyance;
    (2) Within 20 days after receipt of the determination, that 
lienholder-petitioner shall comply with the conditions of mitigation and 
take possession of the forfeited conveyance; and
    (3) If the lienholder-petitioner does not comply with the provisions 
of paragraph (f)(2) of this section, the forfeited conveyance shall be 
placed in official use, sold, or otherwise disposed of by the custodian 
as provided in Sec. 274.3 of this part. The proceeds of a sale shall be 
applied first to all costs and expenses of the seizure, forfeiture, and 
sale and any remaining balance not exceeding the net equity of that 
lienholder-petitioner shall be paid to that lienholder-petitioner. If 
the forfeited conveyance is placed in official use or otherwise disposed 
of, that lienholder-petitioner shall be paid the net equity of that 
lienholder-petitioner minus all costs and expenses of the seizure, 
forfeiture, and disposal.



Sec. 274.17  Restoration of proceeds or appraised value.

    (a) The regional commissioner shall not grant restoration of 
proceeds of sale or the appraised value of a conveyance placed in 
official use or otherwise disposed of according to law unless the 
petitioner establishes that the petitioner:
    (1) Did not know of the seizure prior to the declaration of 
forfeiture;
    (2) Was in such circumstances as prevented the petitioner from 
knowing thereof; and
    (3) Would otherwise have been granted the relief of remission of 
forfeiture.
    (b) A grant of restoration of proceeds of sale or the appraised 
value of a conveyance placed in official use or otherwise disposed of 
according to law must be conditioned upon:
    (1) Execution of an instrument by the petitioner holding the United 
States, its agents and employees, harmless from all claims which may 
result from the grant of restoration of proceeds of sale or the 
appraised value of a conveyance placed in official use or otherwise 
disposed of according to law; and
    (2) Any other terms or conditions as the regional commissioner 
determines to be appropriate.



Sec. 274.18  Provisions applicable to particular situations.

    (a) A straw purchaser is a person who purchases in his own name a 
conveyance for another person, the real purchaser, who has a record or 
reputation. A lienholder-petitioner that knows, or has reason to 
believe, that a purchaser of a conveyance is a straw purchaser, must 
satisfy the requirements of Sec. 274.15(a) of this part as to both the 
straw purchaser and the real purchaser to be eligible for a grant of 
remission of forfeiture. This provision applies where money is borrowed 
on the security of property held in the name of the straw purchaser for 
the real purchaser.
    (b) A petitioner engaged in the business of leasing conveyances must 
satisfy the requirements of Sec. 274.15(a) of

[[Page 502]]

this part as to all lessees and sublessees or other persons having any 
interest under a lease of the subject conveyance on the date of seizure 
of that conveyance to be eligible for a grant of remission of 
forfeiture.
    (c) In the consideration of a petition for relief from forfeiture 
the mere existence of a community property interest without proof of 
financial contribution to the purchase of a conveyance will not be 
deemed to have been a property interest in a seized and forfeited 
conveyance.
    (d) A petitioner that submits a petition for remission of forfeiture 
as a subrogee must satisfy the requirements of Sec. 274.15(a) of this 
part as to all prior possessors of the subrogated interest in the seized 
and forfeited conveyance to be eligible for a grant of remission of 
forfeiture.



Sec. 274.19  Determinations on petitions; reconsideration.

    (a) Upon consideration of a petition for relief from forfeiture and 
all of the facts and circumstances surrounding the seizure of a 
conveyance, the regional commissioner shall issue a written 
determination. In making that determination the regional commissioner 
shall presume that the evidence is sufficient to support forfeiture of 
the conveyance. No hearing shall be held on any petitions for relief 
from forfeiture under this part.
    (b) The regional commissioner may deny relief from forfeiture when 
there are unusual circumstances regarding a seizure which provide 
reasonable grounds for concluding that remission or mitigation of the 
forfeiture would be contrary to the interests of justice and would 
diminish the deterrent effect of section 274(b) of the Act, even if the 
petitioner has satisfactorily established compliance with the 
administrative conditions applicable to and eligibility for relief from 
forfeiture.
    (c) Relief from forfeiture shall not be granted to any petitioner 
who has a subordinate property interest to another petitioner until the 
petition of the petitioner with the superior property interest has been 
finally adjudicated nor until any claim or petition of the owner has 
been finally adjudicated.
    (d) The determination on a petition shall set forth either the 
conditions upon which relief has been granted and the procedures for 
obtaining possession of the forfeited conveyance or other relief 
granted; or the reasons for denial of relief from forfeiture and the 
procedures for requesting reconsideration. The determination on a 
petition shall be mailed to the petitioner or duly authorized counsel of 
the petitioner.
    (e) Any request for reconsideration of a denial of relief from 
forfeiture must be submitted to the regional commissioner within 10 days 
of receipt of the determination on the petition. Such request for 
reconsideration can only be based on evidence recently developed or not 
previously considered.
    (f) Only one request for reconsideration of a denial of relief from 
forfeiture shall be considered.



Sec. 274.20  Compromise of judicial forfeiture proceedings.

    Judicial forfeiture proceedings commenced pursuant to section 274(b) 
of the Act and this part may be compromised by the United States 
Attorney only with the concurrence of the Director, Asset Forfeiture 
Office, Criminal Division, Department of Justice. In evaluating a 
compromise, the United States Attorney shall consider the probabilities 
for successfully prosecuting the judicial forfeiture proceedings and the 
terms of the compromise offer. The United States Attorney shall consult 
with the regional commissioner before recommending a compromise.



PART 274a--CONTROL OF EMPLOYMENT OF ALIENS--Table of Contents




                    Subpart A--Employer Requirements

Sec.
274a.1  Definitions.
274a.2  Verification of employment eligibility.
274a.3  Continuing employment of unauthorized aliens.
274a.4  Good faith defense.
274a.5  Use of labor through contract.
274a.6  State employment agencies.
274a.7  Pre-enactment provisions for employees hired prior to November 
          7, 1986.
274a.8  Prohibition of indemnity bonds.
274a.9  Enforcement procedures.
274a.10  Penalties.

[[Page 503]]

274a.11  [Reserved]

                   Subpart B--Employment Authorization

274a.12  Classes of aliens authorized to accept employment.
274a.13  Application for employment authorization.
274a.14  Termination of employment authorization.

    Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.

    Source: 52 FR 16221, May 1, 1987, unless otherwise noted.



                    Subpart A--Employer Requirements



Sec. 274a.1  Definitions.

    For the purpose of this part--
    (a) The term unauthorized alien means, with respect to employment of 
an alien at a particular time, that the alien is not at that time 
either: (1) Lawfully admitted for permanent residence, or (2) authorized 
to be so employed by this Act or by the Attorney General;
    (b) The term entity means any legal entity, including but not 
limited to, a corporation, partnership, joint venture, governmental 
body, agency, proprietorship, or association;
    (c) The term hire means the actual commencement of employment of an 
employee for wages or other remuneration. For purposes of section 
274A(a)(4) of the Act and Sec. 274a.5 of this part, a hire occurs when a 
person or entity uses a contract, subcontract or exchange entered into, 
renegotiated or extended after November 6, 1986, to obtain the labor of 
an alien in the United States, knowing that the alien is an unauthorized 
alien;
    (d) The term refer for a fee means the act of sending or directing a 
person or transmitting documentation or information to another, directly 
or indirectly, with the intent of obtaining employment in the United 
States for such person, for remuneration whether on a retainer or 
contingency basis; however, this term does not include union hiring 
halls that refer union members or non-union individuals who pay union 
membership dues;
    (e) The term recruit for a fee means the act of soliciting a person, 
directly or indirectly, and referring that person to another with the 
intent of obtaining employment for that person, for remuneration whether 
on a retainer or contingency basis; however, this term does not include 
union hiring halls that refer union members or non-union individuals who 
pay union membership dues;
    (f) The term employee means an individual who provides services or 
labor for an employer for wages or other remuneration but does not mean 
independent contractors as defined in paragraph (j) of this section or 
those engaged in casual domestic employment as stated in paragraph (h) 
of this section;
    (g) The term employer means a person or entity, including an agent 
or anyone acting directly or indirectly in the interest thereof, who 
engages the services or labor of an employee to be performed in the 
United States for wages or other remuneration. In the case of an 
independent contractor or contract labor or services, the term employer 
shall mean the independent contractor or contractor and not the person 
or entity using the contract labor;
    (h) The term employment means any service or labor performed by an 
employee for an employer within the United States, including service or 
labor performed on a vessel or aircraft that has arrived in the United 
States and has been inspected, or otherwise included within the 
provisions of the Anti-Reflagging Act codified at 46 U.S.C. 8704, but 
not including duties performed by nonimmigrant crewmen defined in 
sections 101 (a)(10) and (a)(15)(D) of the Act. However, employment does 
not include casual employment by individuals who provide domestic 
service in a private home that is sporadic, irregular or intermittent;
    (i) The term State employment agency means any State government unit 
designated to cooperate with the United States Employment Service in the 
operation of the public employment service system;
    (j) The term independent contractor includes individuals or entities 
who carry on independent business, contract to do a piece of work 
according to their own means and methods, and are subject to control 
only as to results. Whether an individual or entity is an

[[Page 504]]

independent contractor, regardless of what the individual or entity 
calls itself, will be determined on a case-by-case basis. Factors to be 
considered in that determination include, but are not limited to, 
whether the individual or entity: supplies the tools or materials; makes 
services available to the general public; works for a number of clients 
at the same time; has an opportunity for profit or loss as a result of 
labor or services provided; invests in the facilities for work; directs 
the order or sequence in which the work is to be done and determines the 
hours during which the work is to be done. The use of labor or services 
of an independent contractor are subject to the restrictions in section 
274A(a)(4) of the Act and Sec. 274a.5 of this part;
    (k) The term pattern or practice means regular, repeated, and 
intentional activities, but does not include isolated, sporadic, or 
accidental acts;
    (l)(1) The term knowing includes not only actual knowledge but also 
knowledge which may fairly be inferred through notice of certain facts 
and circumstances which would lead a person, through the exercise of 
reasonable care, to know about a certain condition. Constructive 
knowledge may include, but is not limited to, situations where an 
employer:
    (i) Fails to complete or improperly completes the Employment 
Eligibility Verification Form, I-9;
    (ii) Has information available to it that would indicate that the 
alien is not authorized to work, such as Labor Certification and/or an 
Application for Prospective Employer; or
    (iii) Acts with reckless and wanton disregard for the legal 
consequences of permitting another individual to introduce an 
unauthorized alien into its work force or to act on its behalf.
    (2) Knowledge that an employee is unauthorized may not be inferred 
from an employee's foreign appearance or accent. Nothing in this 
definition should be interpreted as permitting an employer to request 
more or different documents than are required under section 274(b) of 
the Act or to refuse to honor documents tendered that on their face 
reasonably appear to be genuine and to relate to the individual.

[52 FR 16221, May 1, 1987, as amended at 53 FR 8612, Mar. 16, 1988; 55 
FR 25931, June 25, 1990; 56 FR 41783, Aug. 23, 1991]



Sec. 274a.2  Verification of employment eligibility.

    (a) General. This section states the requirements and procedures 
persons or entities must comply with when hiring, or when recruiting or 
referring for a fee, or when continuing to employ individuals in the 
United States. For purposes of complying with section 274A(b) of the Act 
and this section, all references to recruiters and referrers for a fee 
are limited to a person or entity who is either an agricultural 
association, agricultural employer, or farm labor contractor (as defined 
in section 3 of the Migrant and Seasonal Agricultural Worker Protection 
Act, 29 U.S.C. 1802). The Form I-9, Employment Eligibility Verification 
Form, has been designated by the Service as the form to be used in 
complying with the requirements of this section. The Form I-9 may be 
obtained in limited quantities at INS District Offices, or ordered from 
the Superintendent of Documents, Washington, DC 20402. Employers may 
electronically generate blank Forms I-9, provided that: the resulting 
form is legible; there is no change to the name, content, or sequence of 
the data elements and instructions; no additional data elements or 
language are inserted; and the paper used meets the standards for 
retention and production for inspection specified under Sec. 274a.2(b). 
When copying or printing the Form I-9, the text of the two-sided form 
may be reproduced by making either double-sided or single-sided copies. 
Employers need only complete the Form I-9 for individuals who are hired 
after November 6, 1986 and continue to be employed after May 31, 1987. 
Employers shall have until September 1, 1987 to complete the Form I-9 
for individuals hired from November 7, 1986 through May 31, 1987. 
Recruiters and referrers for a fee need complete the Form I-9 only for 
those individuals who are recruited or referred and hired after May 31, 
1987. In conjunction with completing the Form I-9, an employer or 
recruiter or referrer for a fee must examine documents

[[Page 505]]

that evidence the identity and employment eligibility of the individual. 
The employer or recruiter or referrer for a fee and the individual must 
each complete an attestation on the Form I-9 under penalty of perjury.
    (b) Employment verification requirements--(1) Examination of 
documents and completion of Form I-9.
    (i) A person or entity that hires or recruits or refers for a fee an 
individual for employment must ensure that the individual properly:
    (A) Complete section 1--``Employee Information and Verification''--
on the Form I-9 at the time of hire; or if an individual is unable to 
complete the Form I-9 or needs it translated, someone may assist him or 
her. The preparer or translator must read the Form to the individual, 
assist him or her in completing Section 1--``Employee Information and 
Verification,'' and have the individual sign or mark the Form in the 
appropriate place. The preparer or translator must then complete the 
``Preparer/Translator Certification'' portion of the Form I-9; and
    (B) Present to the employer or the recruiter or referrer for a fee 
documentation as set forth in paragraph (b)(1)(v) of this section 
establishing his or her identity and employment eligibility within the 
time limits set forth in paragraphs (b)(1)(ii) through (b)(1)(v) of this 
section.
    (ii) Except as provided in paragraph (b)(1)(viii) of this section, 
an employer, his or her agent, or anyone acting directly or indirectly 
in the interest thereof, must within three business days of the hire:
    (A) Physically examine the documentation presented by the individual 
establishing identity and employment eligibility as set forth in 
paragraph (b)(1)(v) of this section and ensure that the documents 
presented appear to be genuine and to relate to the individual; and
    (B) Complete section 2--``Employer Review and Verification''--of the 
Form I-9.
    (iii) An employer, his or her agent, or anyone acting directly or 
indirectly in the interest thereof, who hires an individual for 
employment for duration of less than three business days must comply 
with paragraphs (b)(1)(ii)(A) and (b)(1)(ii)(B) of this section at the 
time of the hire. A receipt for the application of such documentation, 
as described in paragraph (b)(1)(vi) of this section, may not be 
accepted by the employer.
    (iv) A recruiter or referrer for a fee for employment must comply 
with paragraphs (b)(1)(ii)(A) and (b)(1)(ii)(B) of this section within 
three business days of the date the referred individual is hired by the 
employer. Recruiters and referrers may designate agents to complete the 
employment verification procedures on their behalf including but not 
limited to notaries, national associations, or employers. If a recruiter 
or referrer designates an employer to complete the employment 
verification procedures, the employer need only provide the recruiter or 
referrer with a photocopy of the Form I-9.
    (v) The individual may present either an original document which 
establishes both employment authorization and identity, or an original 
document which establishes employment authorization and a separate 
original document which establishes identity. The identification number 
and expiration date (if any) of all documents must be noted in the 
appropriate space provided on the Form I-9.
    (A) The following documents, so long as they appear to relate to the 
individual presenting the document, are acceptable to evidence both 
identity and employment eligibility:
    (1) United States passport (unexpired or expired);
    (2) Certificate of United States Citizenship, INS Form N-560 or N-
561;
    (3) Certificate of Naturalization, INS Form N-550 or N-570;
    (4) An unexpired foreign passport which:
    (i) Contains an unexpired stamp therein which reads, ``Processed for 
I-551. Temporary Evidence of Lawful Admission for permanent residence. 
Valid until ______. Employment authorized.'' or
    (ii) Has attached thereto a Form I-94 bearing the same name as the 
passport and contains an employment authorization stamp, so long as the 
period of endorsement has not yet expired and

[[Page 506]]

the proposed employment is not in conflict with any restrictions or 
limitations identified on the Form I-94.
    (5) Alien Registration Receipt Card, INS Form I-551;
    (6) An unexpired Employment Authorization Document issued by the 
Immigration and Naturalization Service which contains a photograph, Form 
I-766; Form I-688, Form I-688A, or Form I-688B;
    (7) [Reserved]
    (8) An unexpired reentry permit, INS Form I-327;
    (9) An unexpired Refugee Travel document, INS Form I-571;
    (10) [Reserved]
    (B) The following documents are acceptable to establish identity 
only:
    (1) For individuals 16 years of age or older:
    (i) A driver's license or identification card containing a 
photograph, issued by a state (as defined in section 101(a)(36) of the 
Act) or an outlying possession of the United States (as defined by 
section 101(a)(29) of the Act). If the driver's license or 
identification card does not contain a photograph, identifying 
information shall be included such as: name, date of birth, sex, height, 
color of eyes, and address;
    (ii) School identification card with a photograph;
    (iii) Voter's registration card;
    (vi) U.S. military card or draft record;
    (v) Identification card issued by federal, state, or local 
government agencies or entities. If the identification card does not 
contain a photograph, identifying information shall be included such as: 
name, date of birth, sex, height, color of eyes, and address;
    (vi) Military dependent's identification card;
    (vii) Native American tribal documents;
    (viii) United States Coast Guard Merchant Mariner Card;
    (ix) Driver's license issued by a Canadian government authority;
    (2) For individuals under age 18 who are unable to produce a 
document listed in paragraph (b)(1)(v)(B)(1) of this section, the 
following documents are acceptable to establish identity only:
    (i) School record or report card;
    (ii) Clinic doctor or hospital record;
    (iii) Daycare or nursery school record.
    (3) Minors under the age of 18 who are unable to produce one of the 
identity documents listed in paragraph (b)(1)(v)(B) (1) or (2) of this 
section are exempt from producing one of the enumerated identity 
documents if:
    (i) The minor's parent or legal guardian completes on the Form I-9 
Section 1--``Employee Information and Verification'' and in the space 
for the minor's signature, the parent or legal guardian writes the 
words, ``minor under age 18.''
    (ii) The minor's parent or legal guardian completes on the Form I-9 
the ``Preparer/Translator certification.''
    (iii) The employer or the recruiter or referrer for a fee writes in 
Section 2--``Employer Review and Verification'' under List B in the 
space after the words ``Document Identification #'' the words, ``minor 
under age 18.''
    (4) Individuals with handicaps, who are unable to produce one of the 
identity documents listed in paragraph (b)(1)(v)(B) (1) or (2) of this 
section, who are being placed into employment by a nonprofit 
organization, association or as part of a rehabilitation program, may 
follow the procedures for establishing identity provided in this section 
for minors under the age of 18, substituting where appropriate, the term 
``special placement'' for ``minor under age 18'', and permitting, in 
addition to a parent or legal guardian, a representative from the 
nonprofit organization, association or rehabilitation program placing 
the individual into a position of employment, to fill out and sign in 
the appropriate section, the Form I-9. For purposes of this section the 
term individual with handicaps means any person who
    (i) Has a physical or mental impairment which substantially limits 
one or more of such person's major life activities,
    (ii) Has a record of such impairment, or
    (iii) Is regarded as having such impairment.
    (C) The following are acceptable documents to establish employment 
authorization only:

[[Page 507]]

    (1) A social security number card other than one which has printed 
on its face ``not valid for employment purposes'';
    (2) A Certification of Birth Abroad issued by the Department of 
State, Form FS-545;
    (3) A Certification of Birth Abroad issued by the Department of 
State, Form DS-1350;
    (4) An original or certified copy of a birth certificate issued by a 
State, county, municipal authority or outlying possession of the United 
States bearing an official seal;
    (5) Native American tribal document;
    (6) United States Citizen Identification Card, INS Form I-197;
    (7) Identification card for use of resident citizen in the United 
States, INS Form I-179;
    (8) An unexpired employment authorization document issued by the 
Immigration and Naturalization Service.
    (vi) If an individual is unable to provide the required document or 
documents within the time periods specified in paragraphs (b)(1) (ii) 
and (iv) of this section, the individual must present a receipt for the 
application of the replacement document or documents within three 
business days of the hire and present the required document or documents 
within 90 days of the hire. This section is not applicable to an alien 
who indicates that he or she does not have work authorization at the 
time of hire.
    (vii) If an individual's employment authorization expires, the 
employer, recruiter or referrer for a fee must reverify on the Form I-9 
to reflect that the individual is still authorized to work in the United 
States; otherwise the individual may no longer be employed, recruited, 
or referred. Reverification on the Form I-9 must occur not later than 
the date work authorization expires. In order to reverify on the Form I-
9, the employee or referred individual must present a document that 
either shows continuing employment eligibility or is a new grant of work 
authorization. The employer or the recruiter or referrer for a fee must 
review this document, and if it appears to be genuine and to relate to 
the individual, reverify by noting the document's identification number 
and expiration date on the Form I-9.
    (viii) An employer will not be deemed to have hired an individual 
for employment if the individual is continuing in his or her employment 
and has a reasonable expectation of employment at all times.
    (A) An individual is continuing in his or her employment in one of 
the following situations:
    (1) An individual takes approved paid or unpaid leave on account of 
study, illness or disability of a family member, illness or pregnancy, 
maternity or paternity leave, vacation, union business, or other 
temporary leave approved by the employer;
    (2) An individual is promoted, demoted, or gets a pay raise;
    (3) An individual is temporarily laid off for lack of work;
    (4) An individual is on strike or in a labor dispute;
    (5) An individual is reinstated after disciplinary suspension for 
wrongful termination, found unjustified by any court, arbitrator, or 
administrative body, or otherwise resolved through reinstatement or 
settlement;
    (6) An individual transfers from one distinct unit of an employer to 
another distinct unit of the same employer; the employer may transfer 
the individual's Form I-9 to the receiving unit;
    (7) An individual continues his or her employment with a related, 
successor, or reorganized employer, provided that the employer obtains 
and maintains from the previous employer records and Forms I-9 where 
applicable. For this purpose, a related, successor, or reorganized 
employer includes:
    (i) The same employer at another location;
    (ii) An employer who continues to employ some or all of a previous 
employer's workforce in cases involving a corporate reorganization, 
merger, or sale of stock or assets;
    (iii) An employer who continues to employ any employee of another 
employer's workforce where both employers belong to the same multi-
employer association and the employee continues to work in the same 
bargaining unit under the same collective bargaining agreement. For 
purposes of this subsection, any agent designated to

[[Page 508]]

complete and maintain the Form I-9 must record the employee's date of 
hire and/or termination each time the employee is hired and/or 
terminated by an employer of the multi-employer association; or
    (8) An individual is engaged in seasonal employment.
    (B) The employer who is claiming that an individual is continuing in 
his or her employment must also establish that the individual expected 
to resume employment at all times and that the individual's expectation 
is reasonable. Whether an individual's expectation is reasonable will be 
determined on a case-by-case basis taking into consideration several 
factors. Factors which would indicate that an individual has a 
reasonable expectation of employment include, but are not limited to, 
the following:
    (1) The individual in question was employed by the employer on a 
regular and substantial basis. A determination of a regular and 
substantial basis is established by a comparison of other workers who 
are similarly employed by the employer;
    (2) The individual in question complied with the employer's 
established and published policy regarding his or her absence;
    (3) The employer's past history of recalling absent employees for 
employment indicates a likelihood that the individual in question will 
resume employment with the employer within a reasonable time in the 
future;
    (4) The former position held by the individual in question has not 
been taken permanently by another worker;
    (5) The individual in question has not sought or obtained benefits 
during his or her absence from employment with the employer that are 
inconsistent with an expectation of resuming employment with the 
employer within a reasonable time in the future. Such benefits include, 
but are not limited to, severance and retirement benefits;
    (6) The financial condition of the employer indicates the ability of 
the employer to permit the individual in question to resume employment 
within a reasonable time in the future; or
    (7) The oral and/or written communication between employer, the 
employer's supervisory employees and the individual in question 
indicates that it is reasonably likely that the individual in question 
will resume employment with the employer within a reasonable time in the 
future.
    (2) Retention and Inspection of Form I-9. (i) Form I-9 must be 
retained by an employer or a recruiter or referrer for a fee for the 
following time periods:
    (A) In the case of an employer, three years after the date of the 
hire or one year after the date the individual's employment is 
terminated, whichever is later; or
    (B) In the case of a recruiter or referrer for a fee, three years 
after the date of the hire.
    (ii) Any person or entity required to retain Forms I-9 in accordance 
with this section shall be provided with at least three days notice 
prior to an inspection of the Forms I-9 by officers of the Service, the 
Special Counsel for Immigration-Related Unfair Employment Practices, or 
the Departmet of Labor. At the time of inspection, Forms I-9 must be 
made available in their original form or on microfilm or microfiche at 
the location where the request for production was made. If Forms I-9 are 
kept at another location, the person or entity must inform the officer 
of the Service, the Special Counsel for Immigration-Related Unfair 
Employment Practices, or the Department of Labor of the location where 
the forms are kept and make arrangements for the inspection. Inspections 
may be performed at an INS office. A recruiter or referrer for a fee who 
has designated an employer to complete the employment verification 
procedures may present a photocopy of the Form I-9 in lieu of presenting 
the Form I-9 in its original form or on microfilm or microfiche, as set 
forth in paragraph (b) (1) (iv) of this section. Any refusal or delay in 
presentation of the Forms I-9 for inspection is a violation of the 
retention requirements as set forth in section 274A(b) (3) of the Act. 
No Subpoena or warrant shall be required for such inspection, but the 
use of such enforcement tools is not precluded. In addition, if the 
person or entity has not complied with a request to present the Forms I-
9, any Service officer listed in Sec. 287.4 of this chapter may compel 
production of the Forms I-

[[Page 509]]

9 and any other relevant documents by issuing a subpoena. Nothing in 
this section is intended to limit the Service's subpoena power under 
section 235(a) of the Act.
    (iii) The following standards shall apply to Forms I-9 presented on 
microfilm or microfiche submitted to an officer of the Service, the 
Special Counsel for Immigration-Related Unfair Employment Practices, or 
the Department of Labor: Microfilm, when displayed on a microfilm reader 
(viewer) or reproduced on paper must exhibit a high degree of legibility 
and readability. For this purpose, legibility is defined as the quality 
of a letter or numeral which enables the observer to positively and 
quickly identify it to the exclusion of all other letters or numerals. 
Readability is defined as the quality of a group of letters or numerals 
being recognizable as words or whole numbers. A detailed index of all 
microfilmed data shall be maintained and arranged in such a manner as to 
permit the immediate location of any particular record. It is the 
responsibility of the employer, recruiter or referrer for a fee:
    (A) To provide for the processing, storage and maintenace of all 
microfilm, and
    (B) To be able to make the contents thereof available as required by 
law. The person or entity presenting the microfilm will make available a 
reader-printer at the examination site for the ready reading, location 
and reproduction of any record or records being maintained on microfilm. 
Reader-printers made available to an officer of the Service, the Special 
Counsel for Immigration-Related Unfair Employment Practices, or the 
Department of Labor shall provide safety features and be in clean 
condition, properly maintained and in good working order. The reader-
printers must have the capacity to display and print a complete page of 
information. A person or entity who is determined to have failed to 
comply with the criteria established by this regulation for the 
presentation of microfilm or microfiche to the Service, the Special 
Counsel for Immigration-Related Unfair Employment Practices, or the 
Department of Labor, and at the time of the inspection does not present 
a properly completed Form I-9 for the employee, is in violation of 
section 274A(a)(1)(B) of the Act and Sec. 274a.2(b)(2).
    (3) Copying of documentation. An employer, or a recruiter or 
referrer for a fee may, but is not required to, copy a document 
presented by an individual solely for the purpose of complying with the 
verification requirements of this section. If such a copy is made, it 
must be retained with the Form I-9. The retention requirements in 
paragraph (b)(2) of this section do not apply to the photocopies. The 
copying of any such document and retention of the copy does not relieve 
the employer from the requirement to fully complete section 2 of the 
Form I-9. An employer, recruiter or referrer for a fee should not, 
however, copy the documents only of individuals of certain national 
origins or citizenship statuses. To do so may violate section 274B of 
the Act.
    (4) Limitation on use of Form I-9. Any information contained in or 
appended to the Form I-9, including copies of documents listed in 
paragraph (c) of this section used to verify an individual's identity or 
employment eligibility, may be used only for enforcement of the Act and 
sections 1001, 1028, 1546, or 1621 of title 18, United States Code.
    (c) Employment verification requirements in the case of hiring an 
individual who was previously employed. (1) When an employer hires an 
individual whom that person or entity has previously employed, if the 
employer has previously completed the Form I-9 and complied with the 
verification requirements set forth in paragraph (b) of this section 
with regard to the individual, the employer may (in lieu of completing a 
new Form I-9) inspect the previously completed Form I-9 and:
    (i) If upon inspection of the Form I-9, the employer determines that 
the Form I-9 relates to the individual and that the individual is still 
eligible to work, that previously executed Form I-9 is sufficient for 
purposes of section 274A(b) of the Act if the individual is hired within 
three years of the date of the initial execution of the Form I-9 and the 
employer updates the Form I-9 to reflect the date of rehire; or

[[Page 510]]

    (ii) If upon inspection of the Form I-9, the employer determines 
that the individual's employment authorization has expired, the employer 
must reverify on the Form I-9 in accordance with paragraph (b)(1)(vii); 
otherwise the individual may no longer be employed.
    (2) For purposes of retention of the Form I-9 by an employer for a 
previously employed individual hired pursuant to paragraph (c)(1) of 
this section, the employer shall retain the Form I-9 for a period of 
three years commencing from the date of the initial execution of the 
Form I-9 or one year after the individual's employment is terminated, 
whichever is later.
    (d) Employment verification requirements in the case of recruiting 
or referring for a fee an individual who was previously recruited or 
referred. (1) When a recruiter or referrer for a fee refers an 
individual for whom that recruiter or referrer for a fee has previously 
completed a Form I-9 and complied with the verification requirements set 
forth in paragraph (b) of this section with regard to the individual, 
the recruiter or referrer may (in lieu of completing a new Form I-9) 
inspect the previously completed Form I-9 and:
    (i) If upon inspection of the Form I-9, the recruiter or referrer 
for a fee determines that the Form I-9 relates to the individual and 
that the individual is still eligible to work, that previously executed 
Form I-9 is sufficient for purposes of section 274A(b) of the Act if the 
individual is referred within three years of the date of the initial 
execution of the Form I-9 and the recruiter or referrer for a fee 
updates the Form I-9 to reflect the date of rehire; or
    (ii) If upon inspection of the Form I-9, the recruiter or referrer 
determines that the individual's employment authorization has expired, 
the recruiter or referrer for a fee must reverify on the Form I-9 in 
accordance with paragraph (b)(1)(vii) of this section; otherwise the 
individual may no longer be recruited or referred.
    (2) For purposes of retention of the Form I-9 by a recruiter or 
referrer for a previously recruited or referred individual pursuant to 
paragraph (d)(1) of this section, the recruiter or referrer shall retain 
the Form I-9 for a period of three years from the date of the rehire.

[52 FR 16221, May 1, 1987, as amended at 53 FR 8612, Mar. 16, 1988; 55 
FR 25932, June 25, 1990; 56 FR 41784-41786, Aug. 23, 1991; 58 FR 48780, 
Sept. 20, 1993; 61 FR 46537, Sept. 4, 1996; 61 FR 52236, Oct. 7, 1996]



Sec. 274a.3  Continuing employment of unauthorized aliens.

    An employer who continues the employment of an employee hired after 
November 6, 1986, knowing that the employee is or has become an 
unauthorized alien with respect to that employment, is in violation of 
section 274A(a)(2) of the Act.

[52 FR 16221, May 1, 1987, as amended at 53 FR 8613, Mar. 16, 1988]



Sec. 274a.4  Good faith defense.

    An employer or a recruiter or referrer for a fee for employment who 
shows good faith compliance with the employment verification 
requirements of Sec. 274a.2(b) of this part shall have established a 
rebuttable affirmative defense that the person or entity has not 
violated section 274A(a)(1)(A) of the Act with respect to such hiring, 
recruiting, or referral.



Sec. 274a.5  Use of labor through contract.

    Any person or entity who uses a contract, subcontract, or exchange 
entered into, renegotiated, or extended after November 6, 1986, to 
obtain the labor or services of an alien in the United States knowing 
that the alien is an unauthorized alien with respect to performing such 
labor or services, shall be considered to have hired the alien for 
employment in the United States in violation of section 274A(a)(1)(A) of 
the Act.

[55 FR 25934, June 25, 1990]



Sec. 274a.6  State employment agencies.

    (a) General. Pursuant to sections 274A(a)(5) and 274A(b) of the Act, 
a state employment agency as defined in Sec. 274a.1 of this part may, 
but is not required to, verify identity and employment eligibility of 
individuals referred for employment by the agency. However, should a 
state employment agency choose to do so, it must:

[[Page 511]]

    (1) Complete the verification process in accordance with the 
requirements of Sec. 274a.2(b) of this part provided that the individual 
may not present receipts in lieu of documents in order to complete the 
verification process as otherwise permitted by Sec. 274a.2(b)(1)(vi) of 
this part; and
    (2) Complete the verification process prior to referral for all 
individuals for whom a certification is required to be issued pursuant 
to paragraph (c) of this section.
    (b) Compliance with the provisions of section 274A of the Act. A 
state employment agency which chooses to verify employment eligibility 
of individuals pursuant to Sec. 274a.2(b) of this part shall comply with 
all provisions of section 274A of the Act and the regulations issued 
thereunder.
    (c) State employment agency certification. (1) A state employment 
agency which chooses to verify employment eligibility pursuant to 
paragraph (a) of this section shall issue to an employer who hires an 
individual referred for employment by the agency, a certification as set 
forth in paragraph (d) of this section. The certification shall be 
transmitted by the state employment agency directly to the employer, 
personally by an agency official, or by mail, so that it will be 
received by the employer within 21 business days of the date that the 
referred individual is hired. In no case shall the certification be 
transmitted to the employer from the state employment agency by the 
individual referred. During this period:
    (i) The job order or other appropriate referral form issued by the 
state employment agency to the employer, on behalf of the individual who 
is referred and hired, shall serve as evidence, with respect to that 
individual, of the employer's compliance with the provisions of section 
274A(a)(1)(B) of the Act and the regulations issued thereunder.
    (ii) In the case of a telephonically authorized job referral by the 
state employment agency to the employer, an appropriate annotation by 
the employer shall be made and shall serve as evidence of the job order. 
The employer should retain the document containing the annotation where 
the employer retains Forms I-9.
    (2) Job orders or other referrals, including telephonic 
authorizations, which are used as evidence of compliance pursuant to 
paragraph (c)(1)(i) of this section shall contain:
    (i) The name of the referred individual;
    (ii) The date of the referral;
    (iii) The job order number or other applicable identifying number 
relating to the referral;
    (iv) The name and title of the referring state employment agency 
official; and
    (v) The telephone number and address of the state employment agency.
    (3) A state employment agency shall not be required to verify 
employment eligibility or to issue a certification to an employer to 
whom the agency referred an individual if the individual is hired for a 
period of employment not to exceed 3 days in duration. Should a state 
agency choose to verify employment eligibility and to issue a 
certification to an employer relating to an individual who is hired for 
a period of employment not to exceed 3 days in duration, it must verify 
employment eligibility and issue certifications relating to all such 
individuals. Should a state employment agency choose not to verify 
employment eligibility or issue certifications to employers who hire, 
for a period not to exceed 3 days in duration, agency-referred 
individuals, the agency shall notify employers that, as a matter of 
policy, it does not perform verifications for individuals hired for that 
length of time, and that the employers must complete the identity and 
employment eligibility requirements pursuant to Sec. 274a.2(b) of this 
part. Such notification may be incorporated into the job order or other 
referral form utilized by the state employment agency as appropriate.
    (4) An employer to whom a state employment agency issues a 
certification relating to an individual referred by the agency and hired 
by the employer, shall be deemed to have complied with the verification 
requirements of Sec. 274a.2(b) of this part provided that the employer:
    (i) Reviews the identifying information contained in the 
certification to ensure that it pertains to the individual hired;

[[Page 512]]

    (ii) Observes the signing of the certification by the individual at 
the time of its receipt by the employer as provided for in paragraph 
(d)(13) of this section;
    (iii) Complies with the provisions of Sec. 274a.2(b)(1)(vii) of this 
part by either:
    (A) Updating the state employment agency certification in lieu of 
Form I-9, upon expiration of the employment authorization date, if any, 
which was noted on the certification issued by the state employment 
agency pursuant to paragraph (d)(11) of this section; or
    (B) By no longer employing an individual upon expiration of his or 
her employment authorization date noted on the certification;
    (iv) Retains the certification in the same manner prescribed for 
Form I-9 in Sec. 274a.2(b)(2) of this part, to wit, three years after 
the date of the hire or one year after the date the individual's 
employment is terminated, whichever is later; and
    (v) Makes it available for inspection to officers of the Service or 
the Department of Labor, pursuant to the provisions of section 
274A(b)(3) of the Act, and Sec. 274a.2(b)(2) of this part.
    (5) Failure by an employer to comply with the provisions of 
paragraph (c)(4)(iii) of this section shall constitute a violation of 
section 274A(a)(2) of the Act and shall subject the employer to the 
penalties contained in section 274A(e)(4) of the Act, and Sec. 274a.10 
of this part.
    (d) Standards for state employment agency certifications. All 
certifications issued by a state employment agency pursuant to paragraph 
(c) of this section shall conform to the following standards. They must:
    (1) Be issued on official agency letterhead;
    (2) Be signed by an appropriately designated official of the agency;
    (3) Bear a date of issuance;
    (4) Contain the employer's name and address;
    (5) State the name and date of birth of the individual referred;
    (6) Identify the position or type of employment for which the 
individual is referred;
    (7) Bear a job order number relating to the position or type of 
employment for which the individual is referred;
    (8) Identify the document or documents presented by the individual 
to the state employment agency for the purposes of identity and 
employment eligibility verification;
    (9) State the identifying number or numbers of the document or 
documents described in paragraph (d)(8) of this section;
    (10) Certify that the agency has complied with the requirements of 
section 274A(b) of the Act concerning verification of the identity and 
employment eligibility of the individual referred, and has determined 
that, to the best of the agency's knowledge, the individual is 
authorized to work in the United States;
    (11) Clearly state any restrictions, conditions, expiration dates or 
other limitations which relate to the individual's employment 
eligibility in the United States, or contain an affirmative statement 
that the employment authorization of the referred individual is not 
restricted;
    (12) State that the employer is not required to verify the 
individual's identity or employment eligibility, but must retain the 
certification in lieu of Form I-9;
    (13) Contain a space or a line for the signature of the referred 
individual, requiring the individual under penalty of perjury to sign 
his or her name before the employer at the time of receipt of the 
certification by the employer; and
    (14) State that counterfeiting, falsification, unauthorized issuance 
or alteration of the certification constitutes a violation of federal 
law pursuant to title 18, U.S.C. 1546.
    (e) Retention of Form I-9 by state employment agencies. A Form I-9 
utilized by a state employment agency in verifying the identity and 
employment eligibility of an individual pursuant to Sec. 274a.2(b) of 
this part must be retained by a state employment agency for a period of 
three years from the date that the individual was last referred by the 
agency and hired by an employer. A state employment agency may retain a 
Form I-9 either in its original form, or on microfilm or microfiche.
    (f) Retention of state employment agency certifications. A 
certification issued by a state employment agency pursuant to this 
section shall be retained:

[[Page 513]]

    (1) By a state employment agency, for a period of three years from 
the date that the individual was last referred by the agency and hired 
by an employer, and in a manner to be determined by the agency which 
will enable the prompt retrieval of the information contained on the 
original certification for comparison with the relating Form I-9;
    (2) By the employer, in the original form, and in the same manner 
and location as the employer has designated for retention of Forms I-9, 
and for the period of time provided in paragraph (c)(4)(iv) of this 
section.
    (g) State employment agency verification requirements in the case of 
an individual who was previously referred and certified. When a state 
employment agency refers an individual for whom the verification 
requirements have been previously complied with and a Form I-9 
completed, the agency shall inspect the previously completed Form I-9:
    (1) If, upon inspection of the Form, the agency determines that the 
Form I-9 pertains to the individual and that the individual remains 
authorized to be employed in the United States, no additional 
verification need be conducted and no new Form I-9 need be completed 
prior to issuance of a new certification provided that the individual is 
referred by the agency within 3 years of the execution of the initial 
Form I-9.
    (2) If, upon inspection of the Form, the agency determines that the 
Form I-9 pertains to the individual but that the individual does not 
appear to be authorized to be employed in the United States based on 
restrictions, expiration dates or other conditions annotated on the Form 
I-9, the agency shall not issue a certification unless the agency 
follows the updating procedures pursuant to Sec. 274a.2(b)(1)(vii) of 
this part; otherwise the individual may no longer be referred for 
employment by the state employment agency.
    (3) For the purposes of retention of the Form I-9 by a state 
employment agency pursuant to paragraph (e) of this section, for an 
individual previously referred and certified, the state employment 
agency shall retain the Form for a period of 3 years from the date that 
the individual is last referred and hired.
    (h) Employer verification requirements in the case of an individual 
who was previously referred and certified. When an employer rehires an 
individual for whom the verification and certification requirements have 
been previously complied with by a state employment agency, the employer 
shall inspect the previously issued certification.
    (1) If, upon inspection of the certification, the employer 
determines that the certification pertains to the individual and that 
the individual remains authorized to be employed in the United States, 
no additional verification need be conducted and no new Form I-9 or 
certification need be completed provided that the individual is rehired 
by the employer within 3 years of the issuance of the initial 
certification, and that the employer follows the same procedures for the 
certification which pertain to Form I-9, as specified in 
Sec. 274a.2(c)(1)(i) of this part.
    (2) If, upon inspection of the certification, the employer 
determines that the certification pertains to the individual but that 
the certification reflects restrictions, expiration dates or other 
conditions which indicate that the individual no longer appears 
authorized to be employed in the United States, the employer shall 
verify that the individual remains authorized to be employed and shall 
follow the updating procedures for the certification which pertain to 
Form I-9, as specified in Sec. 274a.2(c)(1)(ii) of this part; otherwise 
the individual may no longer be employed.
    (3) For the purposes of retention of the certification by an 
employer pursuant to this paragraph for an individual previously 
referred and certified by a state employment agency and rehired by the 
employer, the employer shall retain the certification for a period of 3 
years after the date that the individual is last hired, or one year 
after the date the individual's employment is terminated, whichever is 
later.

[52 FR 43053, Nov. 9, 1987]

[[Page 514]]



Sec. 274a.7  Pre-enactment provisions for employees hired prior to November 7, 1986.

    (a) The penalty provisions set forth in section 274A (e) and (f) of 
the Act for violations of sections 274A(a)(1)(B) and 274A(a)(2) of the 
Act shall not apply to employees who were hired prior to November 7, 
1986, and who are continuing in their employment and have a reasonable 
expectation of employment at all times (as set forth in 
Sec. 274a.2(b)(1)(viii)), except those individuals described in section 
274a.2 (b)(1)(viii)(A)(7)(iii) and (b)(1)(viii)(A)(8).
    (b) For purposes of this section, an employee who was hired prior to 
November 7, 1986 shall lose his or her pre-enactment status if the 
employee:
    (1) Quits; or
    (2) Is terminated by the employer; the term termination shall 
include, but is not limited to, situations in which an employee is 
subject to seasonal employment; or
    (3) Is excluded or deported from the United States or departs the 
United States under a grant of voluntary departure; or
    (4) Is no longer continuing his or her employment (or does not have 
a reasonable expectation of employment at all times) as set forth in 
Sec. 274a.2(b)(1)(viii).

[52 FR 16221, May 1, 1987, as amended at 53 FR 8613, Mar. 16, 1988; 55 
FR 25935, June 25, 1990; 56 FR 41786, Aug. 23, 1991]



Sec. 274a.8  Prohibition of indemnity bonds.

    (a) General. It is unlawful for a person or other entity, in hiring 
or recruiting or referring for a fee for employment of an individual, to 
require the individual to post a bond or security, to pay or agree to 
pay an amount, or otherwise to provide a financial guarantee or 
indemnity, against any potential liability arising under this part 
relating to such hiring, recruiting, or referring of the individual. 
However, this prohibition does not apply to performance clauses which 
are stipulated by agreement between contracting parties.
    (b) Penalty. Any person or other entity who requires any individual 
to post a bond or security as stated in this section shall, after notice 
and opportunity for an administrative hearing in accordance with section 
274A(e)(3)(B) of the Act, be subject to a civil fine of $1,000 for each 
violation and to an administrative order requiring the return to the 
individual of any amounts received in violation of this section or, if 
the individual cannot be located, to the general fund of the Treasury.



Sec. 274a.9  Enforcement procedures.

    (a) Procedures for the filing of complaints. Any person or entity 
having knowledge of a violation or potential violation of section 274A 
of the Act may submit a signed, written complaint in person or by mail 
to the Service office having jurisdiction over the business or residence 
of the potential violator. The signed, written complaint must contain 
sufficient information to identify both the complainant and the 
potential violator, including their names and addresses. The complaint 
should also contain detailed factual allegations relating to the 
potential violation including the date, time and place of the alleged 
violation and the specific act or conduct alleged to constitute a 
violation of the Act. Written complaints may be delivered either by mail 
to the appropriate Service office or by personally appearing before any 
immigration officer at a Service office.
    (b) Investigation. The Service may conduct investigations for 
violations on its own initiative and without having received a written 
complaint. When the Service receives a complaint from a third party, it 
shall investigate only those complaints that have a reasonable 
probability of validity. If it is determined after investigation that 
the person or entity has violated section 274A of the Act, the Service 
may issue and serve a Notice of Intent to Fine or a Warning Notice upon 
the alleged violator. Service officers shall have reasonable access to 
examine any relevant evidence of any person or entity being 
investigated.
    (c) Warning notice. The Service and/or the Department of Labor may 
in their discretion issue a Warning Notice to a person or entity alleged 
to have violated section 274A of the Act. This Warning Notice will 
contain a statement of the basis for the violations and

[[Page 515]]

the statutory provisions alleged to have been violated.
    (d) Notice of Intent to Fine. The proceeding to assess 
administrative penalties under section 274A of the Act is commenced when 
the Service issues a Notice of Intent to Fine on Form I-763. Service of 
this Notice shall be accomplished pursuant to part 103 of this chapter. 
The person or entity identified in the Notice of Intent to Fine shall be 
known as the respondent. The Notice of Intent to Fine may be issued by 
an officer defined in Sec. 242.1 of this chapter with concurrence of a 
Service attorney.
    (1) Contents of the Notice of Intent to Fine. (i) The Notice of 
Intent to Fine will contain the basis for the charge(s) against the 
respondent, the statutory provisions alleged to have been violated, and 
the penalty that will be imposed.
    (ii) The Notice of Intent to Fine will provide the following 
advisals to the respondent:
    (A) That the person or entity has the right to representation by 
counsel of his or her own choice at no expense to the government;
    (B) That any statement given may be used against the person or 
entity;
    (C) That the person or entity has the right to request a hearing 
before an Administrative Law Judge pursuant to 5 U.S.C. 554-557, and 
that such request must be made within 30 days from the service of the 
Notice of Intent to Fine ;
    (D) That the Service will issue a final order in 45 days if a 
written request for a hearing is not timely received and that there will 
be no appeal of the final order.
    (e) Request for Hearing Before an Administrative Law Judge. If a 
respondent contests the issuance of a Notice of Intent to Fine, the 
respondent must file with the INS, within thirty days of the service of 
the Notice of Intent to Fine, a written request for a hearing before an 
Administrative Law Judge. Any written request for a hearing submitted in 
a foreign language must be accompanied by an English language 
translation. A request for a hearing is not deemed to be filed until 
received by the Service office designated in the Notice of Intent to 
Fine. In computing the thirty day period prescribed by this section, the 
day of service of the Notice of Intent to Fine shall not be included. If 
the Notice of Intent to Fine was served by ordinary mail, five days 
shall be added to the prescribed thirty day period. In the request for a 
hearing, the respondent may, but is not required to, respond to each 
allegation listed in the Notice of Intent to Fine.
    (f) Failure to file a request for hearing. If the respondent does 
not file a request for a hearing in writing within thirty days of the 
day of service of the Notice of Intent to Fine (thirty-five days if 
served by ordinary mail), the INS shall issue a final order from which 
there is no appeal.

[52 FR 16221, May 1, 1987, as amended at 53 FR 8613, Mar. 16, 1988; 55 
FR 25935, June 25, 1990; 56 FR 41786, Aug. 23, 1991; 61 FR 52236, Oct. 
7, 1996]



Sec. 274a.10  Penalties.

    (a) Criminal penalties. Any person or entity which engages in a 
pattern or practice of violations of subsection (a)(1)(A) or (a)(2) of 
the Act shall be fined not more than $3,000 for each unauthorized alien, 
imprisoned for not more than six months for the entire pattern or 
practice, or both, notwithstanding the provisions of any other Federal 
law relating to fine levels.
    (b) Civil penalties. A person or entity may face civil penalties for 
a violation of section 274A of the Act. Civil penalties may be imposed 
by the Service or an administrative law judge for violations under 
section 274A of the Act. In determining the level of the penalties that 
will be imposed, a finding of more than one violation in the course of a 
single proceeding or determination will be counted as a single offense. 
However, a single offense will include penalties for each unauthorized 
alien who is determined to have been knowingly hired or recruited or 
referred for a fee.
    (1) A respondent found by the Service or an administrative law judge 
to have knowingly hired, or to have knowingly recruited or referred for 
a fee, an unauthorized alien for employment in the United States or to 
have knowingly continued to employ an unauthorized alien in the United 
States, shall be subject to the following order:

[[Page 516]]

    (i) To cease and desist from such behavior;
    (ii) To pay a civil fine according to the following schedule:
    (A) First offense--not less than $250 and not more than $2,000 for 
each unauthorized alien, or
    (B) Second offense--not less than $2,000 and not more than $5,000 
for each unauthorized alien; or
    (C) More than two offenses--not less than $3,000 and not more than 
$10,000 for each unauthorized alien; and
    (iii) To comply with the requirements of section 274a.2(b) of this 
part, and to take such other remedial action as is appropriate.
    (2) A respondent determined by the Service (if a respondent fails to 
request a hearing) or by an administrative law judge to have failed to 
comply with the employment verification requirements as set forth in 
Sec. 274a.2(b) of this part, shall be subject to a civil penalty in an 
amount of not less than $100 and not more than $1,000 for each 
individual with respect to whom such violation occurred. In determining 
the amount of the penalty, consideration shall be given to:
    (i) The size of the business of the employer being charged;
    (ii) The good faith of the employer;
    (iii) The seriousness of the violation;
    (iv) Whether or not the individual was an unauthorized alien; and
    (v) The history of previous violations of the employer.
    (3) Where an order is issued with respect to a respondent composed 
of distinct, physically separate subdivisions which do their own hiring, 
or their own recruiting or referring for a fee for employment (without 
reference to the practices of, and under the control of, or common 
control with another subdivision) the subdivision shall be considered a 
separate person or entity.
    (c) Enjoining pattern or practice violations. If the Attorney 
General has reasonable cause to believe that a person or entity is 
engaged in a pattern or practice of employment, recruitment or referral 
in violation of section 274A(a)(1)(A) or (2) of the Act, the Attorney 
General may bring civil action in the appropriate United States District 
Court requesting relief, including a permanent or temporary injunction, 
restraining order, or other order against the person or entity, as the 
Attorney General deems necessary.

[52 FR 16221, May 1, 1987, as amended at 55 FR 25935, June 25, 1990; 56 
FR 41786, Aug. 23, 1991]
Sec. 274a.11  [Reserved]



                   Subpart B--Employment Authorization



Sec. 274a.12  Classes of aliens authorized to accept employment.

    (a) Aliens authorized employment incident to status. Pursuant to the 
statutory or regulatory reference cited, the following classes of aliens 
are authorized to be employed in the United States without restrictions 
as to location or type of employment as a condition of their admission 
or subsequent change to one of the indicated classes. Any alien who is 
within a class of aliens described in paragraphs (a)(3) through (a)(8) 
or (a)(10) through (a)(13) of this section, and who seeks to be employed 
in the United States, must apply to the Service for a document 
evidencing such employment authorization.
    (1) An alien who is a lawful permanent resident (with or without 
conditions pursuant to section 216 of the Act), as evidenced by Form I-
551 issued by the Service. An expiration date on the Form I-551 reflects 
only that the card must be renewed, not that the bearer's work 
authorization has expired;
    (2) An alien admitted to the United States as a lawful temporary 
resident pursuant to sections 245A or 210 of the Act, as evidenced by an 
employment authorization document issued by the Service;
    (3) An alien admitted to the United States as a refugee pursuant to 
section 207 of the Act for the period of time in that status, as 
evidenced by an employment authorization document issued by the Service;
    (4) An alien paroled into the United States as a refugee for the 
period of time in that status, as evidenced by an employment 
authorization document issued by the Service;
    (5) An alien granted asylum under section 208 of the Act for the 
period of

[[Page 517]]

time in that status, as evidenced by an employment authorization 
document issued by the Service;
    (6) An alien admitted to the United States as a nonimmigrant fiance 
or fiancee pursuant to section 101(a)(15)(K) of the Act, or an alien 
admitted as the child of such alien, for the period of admission of the 
United States, as evidenced by an employment authorization document 
issued by the Service;
    (7) An alien admitted as a parent (N-8) or dependent child (N-9) of 
an alien granted permanent residence under section 101(a)(27)(I) of the 
Act, as evidenced by an employment authorization document issued by the 
Service;
    (8) An alien admitted to the United States as a citizen of the 
Federated States of Micronesia (CFA/FSM) or of the Marshall Islands 
(CFA/MIS) pursuant to agreements between the United States and the 
former trust territories, as evidenced by an employment authorization 
document issued by the Service;
    (9)  [Reserved]
    (10) An alien granted withholding of deportation under section 
243(h) of the Act for the period of time in that status, as evidenced by 
an employment authorization document issued by the Service; or
    (11) An alien who has been granted extended voluntary departure by 
the Attorney General as a member of a nationality group pursuant to a 
request by the Secretary of State. Employment is authorized for the 
period of time in that status as evidenced by an employment 
authorization document issued by the Service;
    (12) An alien granted Temporary Protected Status under section 244A 
of the Act for the period of time in that status, as evidenced by an 
employment authorization document issued by the Service; or
    (13) An alien granted voluntary departure by the Attorney General 
under the Family Unity Program established by section 301 of the 
Immigration Act of 1990, as evidenced by an employment authorization 
document issued by the Service.
    (b) Aliens authorized for employment with a specific employer 
incident to status. The following classes of nonimmigrant aliens are 
authorized to be employed in the United States by the specific employer 
and subject to the restrictions described in the section(s) of this 
chapter indicated as a condition of their admission in, or subsequent 
change to, such classification. An alien in one of these classes is not 
issued an employment authorization document by the Service:
    (1) A foreign government official (A-1 or A-2), pursuant to 
Sec. 214.2(a) of this chapter. An alien in this status may be employed 
only by the foreign government entity;
    (2) An employee of a foreign government official (A-3), pursuant to 
Sec. 214.2(a) of this chapter. An alien in this status may be employed 
only by the foreign government official;
    (3) A foreign government official in transit (C-2 or C-3), pursuant 
to Sec. 214.2(c) of this chapter. An alien in this status may be 
employed only by the foreign government entity;
    (4)  [Reserved]
    (5) A nonimmigrant treaty trader (E-1) or treaty investor (E-2), 
pursuant to Sec. 214.2(e) of this chapter. An alien in this status may 
be employed only by the treaty-qualifying company through which the 
alien attained the status. Employment authorization does not extend to 
the dependents of the principal treaty trader or treaty investor (also 
designated ``E'1'' or ``E-2''), other than those specified in paragraph 
(c)(2) of this section;
    (6) A nonimmigrant (F-1) student who is in valid nonimmigrant 
student status and pursuant to 8 CFR 214.2(f) is seeking:
    (i) On-campus employment for not more than twenty hours per week 
when school is in session or full-time employment when school is not in 
session if the student intends and is eligible to register for the next 
term or session. Part-time on-campus employment is authorized by the 
school and no specific endorsement by a school official or Service 
officer is necessary;
    (ii) Part-time off-campus employment authorization based on an 
approved attestation from the employer pursuant to 8 CFR 214.2(f) and 
who presents an I-20 ID endorsed by the designated school official; or

[[Page 518]]

    (iii) Curricular practical training (internships, cooperative 
training programs, or work-study programs which are part of an 
established curriculum) after having been enrolled full-time in a 
Service-approved institution for at least nine months. Curricular 
practical training (part-time or full-time) is authorized by the 
Designated School Official on the student's I-20 ID; no Service 
endorsement is necessary.
    (7) A representative of an international organization (G-1, G-2, G-
3, or G-4), pursuant to Sec. 214.2(g) of this chapter. An alien in this 
status may be employed only by the foreign government entity or the 
international organization;
    (8) A personal employee of an official or representative of an 
international organization (G-5), pursuant to Sec. 214.2(g) of this 
chapter. An alien in this status may be employed only by the official or 
representative of the international organization;
    (9) A temporary worker or trainee (H-1, H-2A, H-2B, or H-3), 
pursuant to Sec. 214.2(h) of this chapter. An alien in this status may 
be employed only by the petitioner through whom the status was obtained;
    (10) An information media representative (I), pursuant to 
Sec. 214.2(i) of this chapter. An alien in this status may be employed 
only for the sponsoring foreign news agency or bureau. Employment 
authorization does not extend to the dependents of an information media 
representative (also designated ``I'');
    (11) An exchange visitor (J-1), pursuant to Sec. 214.2(j) of this 
chapter and 22 CFR 514.24. An alien in this status may be employed only 
by the exchange visitor program sponsor or appropriate designee and 
within the guidelines of the program approved by the United States 
Information Agency as set forth in the Certificate of Eligibility (Form 
IAP-66) issued by the program sponsor;
    (12) An intra-company transferee (L-1), pursuant to Sec. 214.2(1) of 
this chapter. An alien in this status may be employed only by the 
petitioner through whom the status was obtained;
    (13) An alien having extraordinary ability in the sciences, arts, 
education, business, or athletics (0-1), and an accompanying alien (0-
2), pursuant to Sec. 214.2(o) of this chapter. An alien in this status 
may be employed only by the petitioner through whom the status was 
obtained;
    (14) An athlete, artist or entertainer (P-1, P-2 or P-3), pursuant 
to Sec. 214.2(p) of this chapter. An alien in this status may be 
employed only by the petitioner through whom the status was obtained;
    (15) An international cultural exchange visitor (Q), pursuant to 
Sec. 214.2(q) of this chapter. An alien in this status may only be 
employed by the petitioner through whom the status was obtained;
    (16) An alien having a religious occupation, pursuant to 
Sec. 214.2(r) of this chapter. An alien in this status may be employed 
only by the religious organization through whom the status was obtained;
    (17) Officers and personnel of the armed services of nations of the 
North Atlantic Treaty Organization, and representatives, officials, and 
staff employees of NATO (NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 and 
NATO-6), pursuant to Sec. 214.2(o) of this chapter. An alien in this 
status may be employed only by NATO;
    (18) An attendant, servant or personal employee (NATO-7) of an alien 
admitted as a NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6, 
pursuant to Sec. 214.2(o) of this chapter. An alien admitted under this 
classification may be employed only by the NATO alien through whom the 
status was obtained;
    (19) A nonimmigrant pursuant to section 214(e) of the Act. An alien 
in this status must be engaged in business activities at a professional 
level in accordance with the provisions of Chapter 16 of the North 
American Free Trade Agreement (NAFTA); or
    (20) A nonimmigrant alien within the class of aliens described in 
paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12), 
(b)(13), (b)(14), (b)(16), and (b)(19) of this section whose status has 
expired but who has filed a timely application for an extension of such 
stay pursuant to Secs. 214.2 or 214.6 of this chapter. These aliens are 
authorized to continue employment with the same employer for a period 
not to exceed 240 days beginning

[[Page 519]]

on the date of the expiration of the authorized period of stay. Such 
authorization shall be subject to any conditions and limitations noted 
on the initial authorization. However, if the district director or 
service center director adjudicates the application prior to the 
expiration of this 240 day period and denies the application for 
extension of stay, the employment authorization under this paragraph 
shall automatically terminate upon notification of the denial decision.
    (c) Aliens who must apply for employment authorization. An alien 
within a class of aliens described in this section must apply for work 
authorization. If authorized, such an alien may accept employment 
subject to any restrictions stated in the regulations or cited on the 
employment authorization document:
    (1) An alien spouse or unmarried dependent child; son or daughter of 
a foreign government official (A-1 or A-2) pursuant to Sec. 214.2(a)(2) 
of this chapter and who presents a fully executed Form I-566 bearing the 
endorsement of an authorized representative of the Department of State;
    (2) An alien spouse or unmarried dependent son or daughter of an 
alien employee of the Coordination Council for North American Affairs 
(E-1) pursuant to Sec. 214.2(e) of this chapter;
    (3) A nonimmigrant (F-1) student who:
    (i) Is seeking employment for purposes of optional practical 
training pursuant to 8 CFR 214.2(f), provided the alien will be employed 
only in an occupation which is directly related to his or her area of 
studies and that he or she presents an I-20 ID endorsed by the 
designated school official;
    (ii) Has been offered employment under the sponsorship of an 
international organization within the meaning of the International 
Organization Immunities Act (59 Stat. 669) and who presents a written 
certification from the international organization that the proposed 
employment is within the scope of the organization's sponsorship. The F-
1 student must also present an I-20 ID endorsed by the DSO in the last 
30 days; or
    (iii) Is seeking employment because of severe economic hardship 
pursuant to 8 CFR 214.2(f)(9)(ii)(C) and has filed the Form I-20, Form 
I-538 and any other supporting materials such as affidavits which 
further detail the unforeseen economic circumstances that require the 
student to seek employment authorization and evidence the fact that the 
student has attempted to find employment under 8 CFR 214.2(f)(9)(ii)(B);
    (4) An alien spouse or unmarried dependent child; son or daughter of 
an officer of, representative to, or employee of an international 
organization (G-1, G-3 or G-4) pursuant to Sec. 214.2(g) of this chapter 
who presents a fully executed Form I-566 bearing the endorsement of an 
authorized representative of the Department of State;
    (5) An alien spouse or minor child of an exchange visitor (J-2) 
pursuant to Sec. 214.2(j) of this chapter;I11(6) A nonimmigrant (M-1) 
student seeking employment for practical training pursuant to 8 CFR 
214.2(m) following completion of studies. The alien may be employed only 
in an occupation or vocation directly related to his or her course of 
study as recommended by the endorsement of the designated school 
official on the I-20 ID;
    (6) A nonimmigrant (M-1) student seeking employment for practical 
training pursuant to 8 CFR 214.2(m) following completion of studies. The 
alien may be employed only in an occupation or vocation directly related 
to his or her course of study as recommended by the endorsement of the 
designated school official on the I-20 ID;
    (7) A dependent of an alien classified as NATO-1 through NATO-7 
pursuant to Sec. 214.2(n) of this chapter;
    (8) An alien who has filed a complete application for asylum or 
withholding of deportation pursuant to part 208 of this chapter, whose 
application has not been decided, and who is eligible to apply for 
employment authorization under Sec. 208.7 of this chapter because the 
150-day period set forth in that section has expired. Employment 
authorization may be granted according to the provisions of Sec. 208.7 
of this chapter in increments to be determined by the Commissioner and 
shall expire on a specified date;
    (9) An alien who has filed an application for adjustment of status 
to lawful

[[Page 520]]

permanent resident pursuant to part 245 of this chapter. Employment 
authorization shall be granted in increments not exceeding one year 
during the period the application is pending (including any period when 
an administrative appeal or judicial review is pending) and shall expire 
on a specified date;
    (10) An alien who has filed an application for suspension of 
deportation pursuant to part 244 of this chapter. Employment 
authorization shall be granted in increments not exceeding one year 
during the period the application is pending (including any period when 
an administrative appeal or judicial review is pending) and shall expire 
on a specified date;
    (11) An alien paroled into the United States temporarily for 
emergency reasons or reasons deemed strictly in the public interest 
pursuant to Sec. 212.5 of this chapter;
    (12) A deportable alien granted voluntary departure, either prior to 
or after a hearing, for reasons set forth in Sec. 242.5(a)(2) (v), (vi), 
(viii), or (ix) of this chapter, may be granted permission to be 
employed for that period of time prior to the date set for voluntary 
departure including any extension granted beyond such date, if the alien 
establishes an economic need to work. Factors which may be considered in 
adjudicating the application for employment authorization of such an 
alien granted voluntary departure include, but are not limited to, the 
following:
    (i) The length of voluntary departure granted;
    (ii) The existence of a dependent spouse and/or children in the 
United States who rely on the alien for support;
    (iii) Whether there is a reasonable chance that legal status may 
ensure in the near future; and
    (iv) Whether there is a reasonable basis for consideration of 
discretionary relief.
    (13) [Reserved]
    (14) An alien who has been granted deferred action, an act of 
administrative convenience to the government which gives some cases 
lower priority, if the alien establishes an economic necessity for 
employment;
    (15) [Reserved]
    (16) Any alien who has filed an application for creation of record 
of lawful admission for permanent residence pursuant to part 249 of this 
chapter. Employment authorization shall be granted in increments not 
exceeding one year during the period the application is pending 
(including any period when an administrative appeal or judicial review 
is pending) and shall expire on a specific date;
    (17) A nonimmigrant visitor for business (B-1) who:
    (i) Is a personal or domestic servant who is accompanying or 
following to join an employer who seeks admission into, or is already 
in, the United States as a nonimmigrant defined under sections 
101(a)(15) (B), (E), (F), (H), (I), (J), (L) or section 214(e) of the 
Act. The personal or domestic servant shall have a residence abroad 
which he or she has no intention of abandoning and shall demonstrate at 
least one year's experience as a personal or domestic servant. The 
nonimmigrant's employer shall demonstrate that the employer/employee 
relationship has existed for at least one year prior to the employer's 
admission to the United States; or, if the employer/employee 
relationship existed for less than one year, that the employer has 
regularly employed (either year-round or seasonally) personal or 
domestic servants over a period of several years preceding the 
employer's admission to the United States;
    (ii) Is a domestic servant of a United States citizen accompanying 
or following to join his or her United States citizen employer who has a 
permanent home or is stationed in a foreign country, and who is visiting 
temporarily in the United States. The employer/employee relationship 
shall have existed prior to the commencement of the employer's visit to 
the United States; or
    (iii) Is an employee of a foreign airline engaged in international 
transportation of passengers freight, whose position with the foreign 
airline would otherwise entitle the employee to classification under 
section 101(a)(15)(E)(i) of the Immigration and Nationality Act, and who 
is precluded from such classification solely because the employee is not 
a national of the country of the airline's nationality or because there 
is no treaty of commerce and

[[Page 521]]

navigation in effect between the United States and the country of the 
airline's nationality.
    (18) An alien against whom a final order of deportation exists and 
who is released on an order of supervision under the authority contained 
in section 242(d) of the Act may be granted employment authorization if 
the district director determines that employment authorization is 
appropriate. Factors which may be considered by the district director in 
adjudicating the application for employment authorization include, but 
are not limited to, the following:
    (i) The existence of economic necessity to be employed;
    (ii) The existence of a dependent spouse and/or children in the 
United States who rely on the alien for support; and
    (iii) The anticipated length of time before the alien can be removed 
from the United States.
    (19) An alien applying for Temporary Protected Status pursuant to 
section 244A of the Act shall apply for employment authorization only in 
accordance with the procedures set forth in part 240 of this chapter.
    (20) Any alien who has filed a completed legalization application 
pursuant to section 210 of the Act (and part 210 of this chapter). 
Employment authorization shall be granted in increments not exceeding 1 
year during the period the application is pending (including any period 
when an administrative appeal is pending) and shall expire on a 
specified date.
    (21) A principal nonimmigrant witness or informant in S 
classification, and qualified dependent family members.
    (22) Any alien who has filed a completed legalization application 
pursuant to section 245A of the Act (and part 245a of this chapter). 
Employment authorization shall be granted in increments not exceeding 1 
year during the period the application is pending (including any period 
when an administrative appeal is pending) and shall expire on a 
specified date.
    (d) Basic criteria to establish economic necessity. Title 45--Public 
Welfare, Poverty Guidelines, 45 CFR 1060.2 should be used as the basic 
criteria to establish eligibility for employment authorization when the 
alien's economic necessity is identified as a factor. The alien shall 
submit an application for employment authorization listing his or her 
assets, income, and expenses as evidence of his or her economic need to 
work. Permission to work granted on the basis of the alien's application 
for employment authorization may be revoked under Sec. 274a.14 of this 
chapter upon a showing that the information contained in the statement 
was not true and correct.

[52 FR 16221, May 1, 1987]

    Editorial Note: For Federal Register citations affecting 
Sec. 274a.12, see the List of CFR Sections Affected in the Finding Aids 
section of this volume.



Sec. 274a.13  Application for employment authorization.

    (a) General. Aliens authorized to be employed under 
Sec. 274a.12(a)(3)-(8) and (10)-(13) must file an Application for 
Employment Authorization (Form I-765) in order to obtain documentation 
evidencing this fact.
    (1) Aliens who may apply for employment authorization under 
Sec. 274a.12(c) of this part, except for those who may apply under 
Sec. 274a.12(c)(8), shall file a Form I-765 with the director having 
jurisdiction over applicant's residence, or the director having 
jurisdiction over the port of entry at which the alien applies, or with 
such other Service office as the Commissioner may designate. The 
approval of applications filed under Sec. 274a.12(c) of this part, 
except for Sec. 274a.12(c)(8), shall be within the discretion of the 
director or such other officer as the Commissioner may designate. Where 
economic necessity has been identified as a factor, the alien must 
provide information regarding his or her assets, income, and expenses in 
accordance with instructions on Form I-765.
    (2) An initial Application for Employment Authorization (Form I-765) 
for asylum applicants under 274a.12(c)(8) of this part shall be filed in 
accordance with instructions on or attached to Form I-765 with the 
appropriate Service Center or with such other Service office as the 
Commissioner may designate. The applicant

[[Page 522]]

also must submit a copy of the underlying application for asylum or 
withholding of deportation, together with evidence that the application 
has been filed in accordance with Secs. 208.3 and 208.4 of this chapter. 
An application for an initial employment authorization or for a renewal 
of employment authorization filed in relation to a pending claim for 
asylum shall be adjudicated in accordance with Sec. 208.7 of this 
chapter. An application for renewal or replacement of employment 
authorization submitted in relation to a pending claim for asylum, as 
provided in Sec. 208.7 of this chapter, shall be filed, with fee or 
application for waiver of such fee, in accordance with the instructions 
on or attached to Form I-765 with the appropriate Service Center or with 
such other Service office as the Commissioner may designate.
    (b) Approval of application. If the application is granted, the 
alien shall be notified of the decision and issued an INS employment 
authorization document valid for a specific period and subject to any 
terms and conditions as noted.
    (c) Denial of application. If the application is denied, the 
applicant shall be notified in writing of the decision and the reasons 
for the denial. There shall be no appeal from the denial of the 
application.
    (d) Interim employment authorization. The district director shall 
adjudicate the application within 90 days from the date of receipt of 
the application by the INS, except in the case of an initial application 
for employment authorization under Sec. 274a.12(c)(8), which is governed 
by paragraph (a)(2) of this section. Failure to complete the 
adjudication within 90 days will result in the grant of an employment 
authorization document for a period not to exceed 240 days. Such 
authorization shall be subject to any conditions noted on the employment 
authorization document. However, if the director adjudicates the 
application prior to the expiration date of the interim employment 
authorization and denies the individual's employment authorization 
application, the interim employment authorization granted under this 
section shall automatically terminate as of the date of the director's 
adjudication and denial.

[52 FR 16221, May 1, 1987, as amended at 55 FR 25937, June 25, 1990; 56 
FR 41787, Aug. 23, 1991; 59 FR 33905, July 1, 1994; 59 FR 62303, Dec. 5, 
1994; 60 FR 21976, May 4, 1995]



Sec. 274a.14  Termination of employment authorization.

    (a) Automatic termination of employment authorization. (1) 
Employment authorization granted under Sec. 274a.12(c) of this chapter 
shall automatically terminate upon the occurrence of one of the 
following events:
    (i) The expiration date specified by the Service on the employment 
authorization document is reached;
    (ii) Exclusion or deportation proceedings are instituted (however, 
this shall not preclude the authorization of employment pursuant to 
Sec. 274a.12(c) of this part where appropriate); or
    (iii) The alien is granted voluntary departure.
    (2) Termination of employment authorization pursuant to this 
paragraph does not require the service of a notice of intent to revoke; 
employment authorization terminates upon the occurrence of any event 
enumerated in paragraph (a)(1) of this section.
    However, automatic revocation under this section does not preclude 
reapplication for employment authorization under Sec. 274.12(c) of this 
part.
    (b) Revocation of employment authorization--(1) Basis for revocation 
of employment authorization. Employment authorization granted under 
Sec. 274a.12(c) of this chapter may be revoked by the district director:
    (i) Prior to the expiration date, when it appears that any condition 
upon which it was granted has not been met or no longer exists, or for 
good cause shown; or
    (ii) Upon a showing that the information contained in the 
application is not true and correct.
    (2) Notice of intent to revoke employment authorization. When a 
district director determines that employment authorization should be 
revoked prior to the expiration date specified by the Service, he or she 
shall serve written notice of intent to revoke the employment 
authorization. The notice will

[[Page 523]]

cite the reasons indicating that revocation is warranted. The alien will 
be granted a period of fifteen days from the date of service of the 
notice within which to submit countervailing evidence. The decision by 
the district director shall be final and no appeal shall lie from the 
decision to revoke the authorization.
    (c) Automatic termination of temporary employment authorization 
granted prior to June 1, 1987. (1) Temporary employment authorization 
granted prior to June 1, 1987, pursuant to 8 CFR 274a.12(c) 
(Sec. 109.1(b) contained in the 8 CFR edition revised as of January 1, 
1987), shall automatically terminate on the date specified by the 
Service on the document issued to the alien, or on December 31, 1996, 
whichever is earlier. Automatic termination of temporary employment 
authorization does not preclude a subsequent application for temporary 
employment authorization.
    (2) A document issued by the Service prior to June 1, 1987, that 
authorized temporary employment authorization for any period beyond 
December 31, 1996, is null and void pursuant to paragraph (c)(1) of this 
section. The alien shall be issued a new employment authorization 
document upon application to the Service if the alien is eligible for 
temporary employment authorization pursuant to 274A.12(c).
    (3) No notice of intent to revoke is necessary for the automatic 
termination of temporary employment authorization pursuant to this part.

[52 FR 16221, May 1, 1987, as amended at 53 FR 8614, Mar. 16, 1988; 53 
FR 20087, June 1, 1988; 61 FR 46537, Sept. 4, 1996]


PART 280--IMPOSITION AND COLLECTION OF FINES--Table of Contents




Sec.
280.1  Notice of intention to fine; administrative proceedings not 
          exclusive.
280.2  Special provisions relating to aircraft.
280.3  Departure of vessel or aircraft prior to denial of clearance.
280.4  Data concerning cost of transportation.
280.5  Mitigation or remission of fines.
280.6  Bond to obtain clearance; form.
280.7  Approval of bonds or acceptance of cash deposit to obtain 
          clearance.
280.11  Notice of intention to fine; procedure.
280.12  Answer and request or order for interview.
280.13  Disposition of case.
280.14  Record.
280.15  Notice of final decision to district director of customs.
280.21   Seizure of aircraft.
280.51  Application for mitigation or remission.
280.52  Payment of fines.

    Authority: 8 U.S.C. 1103, 1221, 1223, 1227, 1229, 1253, 1281, 1283, 
1284, 1285, 1286, 1322, 1323, and 1330; 66 Stat. 173, 195, 197, 201, 
203, 212, 219, 221-223, 226, 227, 230.

    Source: 22 FR 9807, Dec. 6, 1957, unless otherwise noted.



Sec. 280.1  Notice of intention to fine; administrative proceedings not exclusive.

    Whenever a district director or the Associate Commissioner for 
Examinations, or the Director for the National Fines Office has reason 
to believe that any person has violated any of the provisions of the 
Immigration and Nationality Act and has thereby become liable to the 
imposition of an administrative fine under the Immigration and 
Nationality Act, he shall cause a Notice of Intention to Fine, Form I-
79, to be served as provided in this part. Nothing in this subchapter 
shall affect, restrict, or prevent the institution of a civil suit, in 
the discretion of the Attorney General, under the authority contained in 
section 280 of the Immigration and Nationality Act.

[22 FR 9807, Dec. 6, 1957, as amended at 54 FR 18649, May 2, 1989]


Sec. 280.2  Special provisions relating to aircraft.

    In any case in which the imposition of a fine is predicated upon an 
alleged violation of a regulation promulgated under authority of section 
239 of the Immigration and Nationality Act, the procedure prescribed in 
this part shall be followed and the aircraft involved shall not be 
granted clearance pending determination of the question of liability to 
the payment of any fine, or while the fine remains unpaid; but clearance 
may be granted prior to the determination of such question upon the 
deposit of a sum sufficient to cover such fine or of a bond with 
sufficient surety to secure the payment thereof, approved by the 
Commisioner. If the alleged violation was by the owner or person in 
command of the aircraft, the penalty

[[Page 524]]

provided for shall be a lien against the aircraft, which, except as 
provided in Sec. 280.21, shall be seized by the district director or by 
an immigration officer designated by the district director, and placed 
in the custody of the customs officer who is in charge of the port of 
entry or customs station nearest the place of seizure. If the owner or 
owners of the airport at which such aircraft is located are the owners 
of the seized aircraft, the aircraft shall be removed to another 
suitable place for storage if practicable.

[22 FR 9807, Dec. 6, 1957, as amended at 32 FR 17651, Dec. 12, 1967; 56 
FR 26020, June 6, 1991]



Sec. 280.3  Departure of vessel or aircraft prior to denial of clearance.

    If any vessel or aircraft which is subject to the imposition of a 
fine shall have departed from the United States prior to the denial of 
clearance by the district director of customs and such vessel or 
aircraft is subsequently found in the United States, a Notice of 
Intention to Fine, Form I-79, shall be served as provided in this part, 
if such form has not been previously served for the same violation. 
Clearance of such vessel or aircraft shall be withheld by the district 
director of customs, and the procedure prescribed in this part shall be 
followed to the same extent and in the same manner as though the vessel 
or aircraft had not departed from the United States. Aircraft subject to 
the provisions of Sec. 280.2, which shall have departed from the United 
States prior to the time of seizure could be effected, shall be subject 
to all of the provisions of this part, if subsequently found in the 
United States, to the same extent as though it had not departed from the 
United States.

[22 FR 9807, Dec. 6, 1957, as amended at 32 FR 17651, Dec. 12, 1967]



Sec. 280.4  Data concerning cost of transportation.

    Within five days after request therefor, transportation companies 
shall furnish to the district director or the Associate Commissioner for 
Examinations, or the Director for the National Fines Office pertinent 
information contained in the original transportation contract of all 
rejected aliens whose cases are within the purview of any of the 
provisions of the Immigration and Nationality Act relating to refund of 
passage monies, and shall specify the exact amounts paid for 
transportation from the initial point of departure (which point shall be 
indicated) to the foreign port of embarkation, from the latter to the 
port of arrival in the United States and from the port of arrival to the 
inland point of destination, respectively, and also the amount paid for 
headtax, if any.

[22 FR 9807, Dec. 6, 1957, as amended at 54 FR 18649, May 2, 1989]



Sec. 280.5  Mitigation or remission of fines.

    In any case in which mitigation or remission of a fine is authorized 
by the Immigration and Nationality Act, the party served with Notice of 
Intention to Fine may apply in writing to the district director or the 
Associate Commissioner for Examinations, or the Director for the 
National Fines Office for such mitigation or remission.

[22 FR 9807, Dec. 6, 1957, as amended at 54 FR 18649, May 2, 1989]



Sec. 280.6  Bond to obtain clearance; form.

    A bond to obtain clearance of a vessel or aircraft under section 
231, 237, 239, 243, 251, 253, 254, 255, 256, 272, or 273 of the 
Immigration and Nationality Act shall be filed on Form I-310.

[22 FR 9807, Dec. 6, 1957, as amended at 54 FR 102, Jan. 4, 1989]



Sec. 280.7  Approval of bonds or acceptance of cash deposit to obtain clearance.

    The district director of customs is authorized to approve the bond, 
or accept the sum of money which is being offered for deposit under any 
provision of the Immigration and Nationality Act or by this chapter for 
the purpose of obtaining clearance of a vessel or aircraft with the 
exception of sections 239, 251(d), 255, 256, 272, and 273(d) in which 
the Commissioner of the Immigration and Naturalization Service is 
authorized to approve the bond or accept the sum of money which is being 
offered for deposit.

[22 FR 9807, Dec. 6, 1957, as amended at 32 FR 17651, Dec. 12, 1967; 56 
FR 26020, June 6, 1991]

[[Page 525]]



Sec. 280.11  Notice of intention to fine; procedure.

    Notice of Intention to Fine, Form I-79, shall be prepared in 
triplicate, with one additional copy for each additional person on whom 
the service of such notice is contemplated. The notice shall be 
addressed to any or all of the available persons subject to fine. A copy 
of the notice shall be served by personal service on each such person. 
If the notice is delivered personally, the person upon whom it is served 
shall be requested to acknowledge such service by signing his name to 
the duplicate and triplicate copies. The officer effecting such service 
shall attest to the service by signing his name thereon and shall 
indicate thereon the date and place of service. If the person so served 
refuses to acknowledge service, or if service is made by leaving it at 
an office or mailing it, the person making such service shall indicate 
the method and date on the duplicate and triplicate copies of Form I-79, 
and shall sign his name upon such copies. The duplicate copy shall be 
retained by the district director of immigration and naturalization or 
the Associate Commissioner for Examinations, or the Director for the 
National Fines Office and the triplicate copy shall be delivered 
directly to the district director of customs for the district in which 
the vessel or aircraft is located, and the district director of customs 
shall withhold clearance until deposit is made or bond furnished as 
provided in the Immigration and Nationality Act. If the vessel or 
aircraft is located in a customs district which is outside the 
jurisdiction of the office of the Service having jurisdiction over the 
matter, the triplicate copy shall be forwarded to the office of the 
Service nearest such customs district for delivery to the district 
director of customs.

[22 FR 9807, Dec. 6, 1957, as amended at 32 FR 17651, Dec. 12, 1967; 37 
FR 11471, June 8, 1972; 54 FR 18649, May 2, 1989]



Sec. 280.12  Answer and request or order for interview.

    Within 30 days following the service of the Notice of Intention to 
Fine (which period the district director or the Associate Commissioner 
for Examinations, or the Director for the National Fines Office may 
extend for an additional period of 30 days upon good cause being shown), 
any person upon whom a notice under this part has been served may file 
with the district director or the Associate Commissioner for 
Examinations, or the Director for the National Fines Office a written 
defense, in duplicate, under oath setting forth the reasons why a fine 
should not be imposed, or if imposed, why it should be mitigated or 
remitted if permitted by the Immigration and Nationality Act, and 
stating whether a personal appearance is desired. Documentary evidence 
shall be submitted in support of such defense and a brief may be 
submitted in support of any argument made. If a personal interview is 
requested, the evidence in opposition to the imposition of the fine and 
in support of the request for mitigation or remission may be presented 
at such interview. An interview shall be conducted if requested by the 
party as provided hereinabove or, if directed at any time by the Board, 
the Commissioner, or the district director or the Associate Commissioner 
for Examinations, or the Director for the National Fines Office.

[22 FR 9807, Dec. 6, 1957, as amended at 54 FR 18649, May 2, 1989]



Sec. 280.13  Disposition of case.

    (a) Allegations admitted or no answer filed. If a request for 
personal appearance is not filed and (1) the answer admits the 
allegations in the notice, or (2) no answer is filed, the district 
director or the Associate Commissioner for Examinations, or the Director 
for the National Fines Office shall enter such order in the case as he 
deems appropriate and no appeal from his decision may be taken.
    (b) Answer filed; personal appearance. Upon receipt of an answer 
asserting a defense to the allegations in the notice without requesting 
a personal appearance, or if a personal appearance is requested or 
directed, the case shall be assigned to an immigration officer. The 
immigration officer shall prepare a report summarizing the evidence and 
containing his findings and recommendation. The record, including the 
report and recommendation of the immigration officer, shall be forwarded 
to the district director or the Associate Commissioner for Examinations, 
or the

[[Page 526]]

Director for the National Fines Office. The district director or the 
Associate Commissioner for Examinations, or the Director for the 
National Fines Office shall note on the report of the immigration 
officer whether he approves or disapproves the recommendation of the 
immigration officer. The person shall be informed in writing of the 
decision of the district director or the Associate Commissioner for 
Examinations, or the Director for the National Fines Office and, if his 
decision is that a fine shall be imposed or that the requested 
mitigation or remission shall not be granted, of the reasons for such 
decision. From the decision of the district director or the Associate 
Commissioner for Examinations, or the Director for the National Fines 
Office an appeal may be taken to the Board within 15 days after the 
mailing of the notification of decision as provided in part 3 of this 
chapter.

[22 FR 9808, Dec. 6, 1957, as amended at 23 FR 9124, Nov. 26, 1958; 54 
FR 18649, May 2, 1989]



Sec. 280.14  Record.

    The record made under Sec. 280.13 shall include the request for the 
interview or a reference to the order directing the interview; the 
medical certificate, if any; a copy of any record of hearing before a 
Board of Special Inquiry, Hearing Examiner, Hearing Officer, or Special 
Inquiry Officer which is relevant to the fine proceedings; the duplicate 
copy of the Notice of Intention to Fine; the evidence upon which such 
Notice was based; the duplicate of any notices to detain, deport, 
deliver, or remove aliens; notice to pay expenses; evidence as to 
whether any deposit was made or bond furnished in accordance with the 
Immigration and Nationality Act; reports of investigations conducted; 
documentary evidence and testimony adduced at the interview; the 
original of any affidavit or brief filed in opposition to the imposition 
of fine; the application for mitigation or remission; and any other 
relevant matter.



Sec. 280.15  Notice of final decision to district director of customs.

    At such time as the decision under this part is final, the regional 
administrative officer shall be furnished a copy of the decision by the 
district director of immigration and naturalization or the Associate 
Commissioner for Examinations, or the Director for the National Fines 
Office. The regional administrative officer shall notify the district 
director of customs who was furnished a copy of the Notice of Intention 
to Fine of the final decision made in the case. Such notification need 
not be made if the regional administrative officer has been previously 
furnished with a notice of collection of the amount of the penalty by 
the district director of customs.

[32 FR 17651, Dec. 12, 1967, as amended at 54 FR 18649, May 2, 1989]



Sec. 280.21  Seizure of aircraft.

    Seizure of an aircraft under the authority of section 239 of the Act 
and Sec. 280.2 will not be made if such aircraft is damaged to an extent 
that its value is less than the amount of the fine which may be imposed. 
If seizure of an aircraft for violation of section 239 of the Act is to 
be made, Form G-297 (Order to Seize Aircraft) and Form G-298 (Public 
Notice of Seizure) shall be prepared in septuple and the originals 
furnished to the immigration officer who will effect the seizure. The 
original of Form G-297, properly endorsed as to date and place of 
seizure, shall be returned for retention in the relating file after 
seizure is effected. The original of Form G-298 shall be placed on the 
seized aircraft and a copy retained in the file. Copies of both forms 
shall be served upon the owner of the aircraft and the pilot if other 
than the owner. Copies shall also be furnished the district director of 
customs and the United States Attorney for the district in which the 
seizure was made. In addition, immediately upon the seizure of an 
aircraft, or prior thereto, if circumstances permit, a full report of 
the facts in the case shall be submitted by the district director to the 
United States Attorney for the district in which the seizure was made, 
together with copies of Form G-296 (Report of Violation) and Form I-79 
(Notice of Intention to Fine). The report shall include the cost 
incurred in seizing and guarding the aircraft and an estimate

[[Page 527]]

of the further additional cost likely to be incurred.

[29 FR 14433, Oct. 21, 1964, as amended at 32 FR 17651, Dec. 12, 1967]



Sec. 280.51  Application for mitigation or remission.

    (a) When application may be filed. An application for mitigation or 
remission of a fine may be filed as provided under Sec. 280.12 of this 
part; or, within 30 days after the date of receipt of the district 
director's or the Associate Commissioner for Examinations, or the 
Director for the National Fines Office's decision to impose a fine 
whether or not the applicant responded to the Notice of Intention to 
Fine.
    (b) Form and contents of application. An application for mitigation 
or remission shall be filed in duplicate under oath and shall include 
information, supported by documentary evidence, as to the basis of the 
claim to mitigation or remission, and as to the action, if any, which 
may have been taken by the applicant, or as to the circumstances present 
in the case which, in the opinion of the applicant, justified the 
granting of his application.
    (c) Disposition of application. The application, if filed with the 
answer, shall be disposed of as provided in Sec. 280.13. In any other 
case the application shall be considered and decided by the district 
director or the Associate Commissioner for Examinations, or the Director 
for the National Fines Office from whose decision an appeal may be taken 
to the Board within 15 days after the mailing of the notification of 
decision as provided in part 3 of this chapter.

[22 FR 9808, Dec. 6, 1957, as amended at 23 FR 9124, Nov. 26, 1958; 46 
FR 28624, May 28, 1981; 54 FR 18649, May 2, 1989]



Sec. 280.52  Payment of fines.

    (a) All fines assessed pursuant to sections 231(d); 237(b); 239; 
251(d); 254(a); 255; 256; 271(a); 272, 273 and 274(c) of the Act shall 
be made payable to and collected by the Service.
    (b) All fines collected pursuant to sections 271(a) and 273 of the 
Act shall be deposited in the Immigration User Fee Account established 
in accordance with the provisions of section 286 of the Act.
    (c) From the amounts collected under paragraphs (a) and (b) of this 
section, the increase in penalties collected resulting from the 
amendments made by sections 203(b), 543(a), and 544 of the Immigration 
Act of 1990, shall be credited to the appropriation for activities 
authorized under section 280(b) of the Act.

[56 FR 26020, June 6, 1991]



PART 286--IMMIGRATION USER FEE--Table of Contents




Sec.
286.1  Definitions.
286.2  Fee for arrival of passengers aboard commercial aircraft or 
          commercial vessels.
286.3  Exceptions.
286.4  Fee collection responsibility.
286.5  Remittance and statement procedures.
286.6  Maintenance of records.
286.7  Penalties.
286.8  Establishment of pilot programs for the charging of a land border 
          fee for inspection services.
286.9  Fee for processing applications and issuing documentation at land 
          border Ports-of-Entry.

    Authority: 8 U.S.C. 1103, 1356; 8 CFR part 2.

    Source: 53 FR 5757, Feb. 26, 1988, unless otherwise noted.



Sec. 286.1  Definitions.

    The following definitions apply to the following terms in this part:
    (a) The term adjacent islands means Anguilla, Antigua, Aruba, 
Bahamas, Barbados, Barbuda, Bermuda, Bonaire, British Virgin Islands, 
Cayman Islands, Cuba, Curacao, Dominica, the Dominican Republic, 
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 possessions bordering on the Caribbean Sea.
    (b) The term collector means an air or sea carrier, travel agent, 
tour wholesaler, or other entity which collects, but may or may not be 
required to remit, fees pursuant to this part.

[[Page 528]]

    (c) The term commercial aircraft means any civilian aircraft being 
used to transport persons or property for compensation or hire.
    (d) The term commercial vessel means any civilian vessel being used 
to transport persons or property for compensation or hire.
    (e) The term Associate Commissioner, Finance means the Office of the 
Associate Commissioner, Finance, Immigration and Naturalization Service, 
Room 6307, 425 I Street NW., Washington, DC 20536.
    (f) The term fee means the immigration user fee.
    (g) The term port of entry means a port or place designated by the 
Commissioner at which a person may apply for admission into the United 
States.
    (h) The term remitter means an air or sea carrier, travel agent, 
tour wholesaler, or other entity which collects, including receipt of 
fees collected by collectors which are not required to remit fees, and 
remits fees pursuant to this part.
    (i) The term territories or possessions of the United States means 
American Samoa, Baker Island, Howland Island, Jarvis Island, Johnston 
Atoll, Kingman Reef, Midway, the Northern Mariana Islands, Swains 
Island, Palmyra Island, and Wake Island.
    (j) The term document for transportation means any document accepted 
by a carrier in return for transportation.
    (k) The term United States, when used in a geographical sense, means 
the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and 
the Virgin Islands of the United States.

[53 FR 5757, Feb. 26, 1988, as amended at 59 FR 49349, Sept. 28, 1994]



Sec. 286.2  Fee for arrival of passengers aboard commercial aircraft or commercial vessels.

    (a) Under the provisions of section 286(b) of the Act, a $6.00 fee 
per individual is charged and collected by the Commissioner for the 
immigration inspection of each passenger aboard a commercial aircraft or 
commercial vessel, arriving at a Port-of-Entry in the United States, or 
for the preinspection of a passenger in a place outside the United 
States prior to such arrival, except as provided in Sec. 286.3.
    (b) Each commercial aircraft and vessel carrier or ticket-selling 
agent whose monthly collections in any month exceed $50,000 shall submit 
a summary statement showing the amount of user fees collected that 
month. The summary statement is due on the last business day of the 
following month. This information shall be forwarded to the Immigration 
and Naturalization Service, Chief, Fee Analysis and Operations Branch, 
425 I Street, NW., Room 6307, Washington, DC 20536. For the months of 
December, March, June, and August, the quarterly remittance and 
statement required by Sec. 286.5 will serve as the monthly report for 
those months. Therefore, a monthly report is required for all other 
months in which monthly collections exceed $50,000.

[59 FR 49348, Sept. 28, 1994]



Sec. 286.3  Exceptions.

    The fee set forth in Sec. 286.2 of this part shall not be charged or 
collected from passengers who fall within any one of the following 
categories:
    (a) Persons, other than aircraft passengers, whose travel originated 
in Canada, Mexico, the adjacent islands, and territories or possessions 
of the United States;
    (b) Persons directly connected with the operation, navigation, or 
business of the commercial aircraft or commercial vessel including 
working crew, deadheading crew, U.S. Federal Aviation Administration 
inspectors, sky marshals, and commercial airline or commercial vessel 
employees on official business;
    (c) Persons who are listed as foreign diplomats on the accreditation 
list maintained by the U.S. Department of State or who are in possession 
of a diplomatic visa (A-1 and 2, G-1 thru 4) valid for entry into the 
United States;
    (d) Persons who are passengers on any commercial aircraft or 
commercial vessel owned or operated exclusively by the Government of the 
United States or a foreign government, including any agency or political 
subdivision thereof, so long as that aircraft or vessel is not 
transporting any persons or property for commercial purposes.
    (e) Persons who are passengers on commercial aircraft or commercial

[[Page 529]]

vessels under contract to the U.S. Department of Defense, if they have 
been preinspected outside of the United States under a joint Service and 
U.S. Department of Defense military inspection program;
    (f) Persons arriving on an aircraft or vessel due to an emergency or 
forced landing when the original destination of the aircraft or vessel 
was not the United States; and
    (g) Persons transiting the United States who are not inspected by 
the Service. Transit without visa passengers who are inspected by the 
Service are not excepted from payment of the fee under this section.

[53 FR 5757, Feb. 26, 1988, as amended at 59 FR 49348, Sept. 28, 1994]



Sec. 286.4  Fee collection responsibility.

    (a) It is the responsibility of the air or sea carriers, travel 
agents, tour wholesalers, or other parties, which issue tickets or 
documents for transportation on or after December 1, 1986, to collect 
the fee set forth in Sec. 286.2 of this part from all passengers 
transported to the United States who are not excepted under Sec. 286.3 
of this part.
    (b) Tickets and documents for transportation shall be marked by the 
collector of the fee to indicate that the required fee has been 
collected. Such markings shall be in accordance with the procedures set 
forth in the ARC Industry Agents Handbook, the SATO Ticketing Handbook, 
or compatible procedures set forth in the operations manual of 
individual collectors.
    (c) It is the responsibility of the carrier transporting a passenger 
from the United States to collect the fee upon departure, if the 
passenger was not excepted under Sec. 286.3 of this part and tickets or 
documents for transportation of the passenger do not reflect collection 
of the fee at the time of issuance. If at the time of departure such a 
passenger refuses to pay the fee, the carrier shall record the full 
name, complete address, nationality, passport number, and alien file 
number, if any, of the passenger and immediately notify the Associate 
Commissioner, Finance.

[53 FR 5757, Feb. 26, 1988, as amended at 59 FR 49349, Sept. 28, 1994]



Sec. 286.5  Remittance and statement procedures.

    (a) The air or sea carrier whose ticket stock or document for 
transportation reflects collection of the fee is responsible for 
remittance of the fee to the Service. The travel agent, tour wholesaler, 
or other entity, which issues their own non-carrier related ticket or 
document for transportation to an air or sea passenger who is not 
excepted from the fee pursuant to Sec. 286.3 of this part, is 
responsible for remittance of the fee to the Service, unless by contract 
the carrier will remit the fee.
    (b)(1) Fee remittances shall be sent to the Immigration and 
Naturalization Service, at a designated Treasury depository, for receipt 
no later than 31 days after the close of the calendar quarter in which 
the fees are collected, except the fourth quarter payment for fees 
collected shall be made on the date that is 10 days before the end of 
the U.S. Government's fiscal year, and the first quarter payment shall 
include any collections made in the preceding quarter that were not 
remitted with the previous payment. The fourth quarter payment shall 
include collections for the months of July and August. The fiscal year 
referenced is the U.S. Government's fiscal year which begins on October 
1 and ends on September 30.
    (2) Late payments will be subject to interest, penalty, and handling 
charges as provided in the Debt Collection Act of 1982 (31 U.S.C. 3717). 
Refunds by a remitter of fees collected in conjunction with unused 
tickets or documents for transportation shall be netted against the next 
subsequent remittance.
    (c) Along with the remittance, as set forth in paragraph (b) of this 
section, each remitter making such remittance shall attach a statement 
which sets forth the following:
    (1) Name and address;
    (2) Taxpayer identification number;
    (3) Calendar quarter covered by the payment;
    (4) Interest and penalty charges; and
    (5) Total amount collected and remitted.
    (d) Remittances shall be made in U.S. dollars by check or money 
order through a U.S. bank, to Associate Commissioner, Finance, INS.

[[Page 530]]

    (e) Annually, each U.S. based remitter, which retains an independent 
accountant and which remits $10,000 or more in fees in any one calendar 
quarter, shall submit to the Associate Commissioner, Finance a report 
from the independent accountant in accordance with the Statement on 
Standards for Attestation Engagements on the application of Passenger 
User Fee Collection and Remittance Procedures established by the 
American Institute of Certified Public Accountants and the Service, to 
the Associate Commissioner, Finance. Each foreign-based remitter, which 
retains an independent accountant and which remits $10,000 or more in 
fees in any one calendar quarter, shall submit a similar report to the 
Associate Commissioner, Finance from the independent accountant in 
accordance with generally accepted accounting principles of their 
respective countries. These reports from the independent accountants are 
to be submitted for receipt by the Associate Commissioner, Finance no 
later than ninety (90) days after the close of the fiscal year of each 
remitter. Each remitter, which does not retain an independent accountant 
or which does not remit $10,000 or more in any one calendar quarter, 
shall certify under oath on each statement submitted pursuant to 
paragraph (c) of this section that they have complied with the 
applicable statutes and regulations.
    (f) The Commissioner reserves the right to conduct an independent 
audit of any collector or remitter not providing the report or 
certification required pursuant to paragraph (e) of this section or 
based upon other information indicating non-compliance in order to 
assure the accuracy of the remittances of fees collected and remitted 
and compliance with the applicable statutes and regulations.
    (g) In order to enforce compliance with the provisions of this part, 
the Commissioner may issue a subpoena requiring the production of 
records, evidence, and witnesses pursuant to the procedures set forth in 
Sec. 287.4 of this chapter. The authority to issue a subpoena pursuant 
to this section is limited to the Commissioner, Deputy Commissioner, 
Associate Commissioner for Management, Director for Program Inspection, 
all Regional Commissioners; and all District Directors.

[53 FR 5757, Feb. 26, 1988, as amended at 55 FR 729, Jan. 9, 1990; 59 FR 
49348, 49349, Sept. 28, 1994]



Sec. 286.6  Maintenance of records.

    Each collector and remitter shall maintain records necessary for the 
Service to verify the accuracy of fees collected and remitted and to 
otherwise determine compliance with the applicable statutes and 
regulations. Such records shall be maintained for a period of two years 
from the date of fee collection. Each remitter shall advise the 
Associate Commissioner, Finance of the name, address, and telephone 
number of a responsible officer who shall have the authority to verify 
and produce any records required to be maintained under this part. The 
Associate Commissioner, Finance shall be promptly notified of any 
changes of the responsible officer.

[53 FR 5757, Feb. 26, 1988, as amended at 59 FR 49349, Sept. 28, 1994]



Sec. 286.7  Penalties.

    Failure of any air or sea carrier to comply with the provisions of 
section 286 of the Act and this part shall subject it to one or more of 
the following:
    (a) Termination of existing agreements under the provisions of 
section 238 of the Act; and
    (b) Suspension of enroute inspections or preinspections.



Sec. 286.8  Establishment of pilot programs for the charging of a land border fee for inspection services.

    Under the provisions of section 286(q) of the Act, the Service may 
establish pilot programs at one or more land border ports-of-entry to 
charge fees for immigration inspection services to be collected by the 
Commissioner. Individual ports-of-entry selected by the Commissioner to 
participate in such pilot programs may charge a fee to enhance 
inspection services and to recover the cost of:
    (a) Hiring additional immigration inspectors, including all 
associated personnel costs such as salary, benefits, and overtime;

[[Page 531]]

    (b) Expansion, operation, and maintenance of information systems for 
nonimmigrant control;
    (c) Construction costs, including those associated with adding new 
primary traffic lanes (with the concurrence of the General Services 
Administration);
    (d) Procuring detection devices and conducting training to identify 
fraudulent documents used by applicants for entry to the United States;
    (e) Other administrative costs associated with the PORTPASS Program; 
and
    (f) Costs associated with the administration of the Land Border 
Inspection Fee account.

[60 FR 50390, Sept. 29, 1995, as amended at 61 FR 53833, Oct. 16, 1996]


Sec. 286.9  Fee for processing applications and issuing documentation at land border Ports-of-Entry.

    (a) General. A fee may be charged and collected by the Commissioner 
for the processing and issuance of specified Service documents at land 
border Ports-of-Entry. These fees, as specified in Sec. 103.7(b)(1) of 
this chapter, shall be dedicated to funding the cost of providing 
application-processing services at land border ports.
    (b) Forms for which a fee may be charged. (1) A nonimmigrant alien 
who is required to be issued, or requests to be issued, Form I-94, 
Arrival/Departure Record, for admission at a land border Port-of-Entry 
must remit the required fee for issuance of Form I-94 upon determination 
of admissibility.
    (2) A nonimmigrant alien applying for admission at a land border 
Port-of-Entry as a Visa Waiver Pilot Program applicant pursuant to 
Sec. 217.2(c) or Sec. 217.3(c) of this chapter must remit the required 
fee for issuance of Form I-94W upon determination of admissibility.
    (3) A Mexican national in possession of a valid nonresident alien 
border crossing card or nonimmigrant B-1/B-2 visa who is required to be 
issued Form I-444, Mexican Border Visitors Permit, pursuant to 
Sec. 235.1(g) of this chapter, must remit the required fee for issuance 
of Form I-444 upon determination of admissibility.
    (4) A citizen or lawful permanent resident alien of the United 
States, Canadian national, or lawful permanent resident of Canada having 
a common nationality with Canadians, who requests Form I-68, Canadian 
Border Boat Landing Permit, pursuant to Sec. 235.1(e) of this chapter, 
for entry to the United States from Canada as an eligible pleasure 
boater on a designated body of water, must remit the required fee at 
time of application for Form I-68.
    (5) A Canadian national or a lawful permanent resident of Canada 
having a common nationality with nationals of Canada, who submits Form 
I-175, Application for Nonresident Alien Canadian Border Crossing Card, 
must remit the required fee at time of application for Form I-185.
    (6) A Mexican national who submits Form I-190, Application for 
Nonresident Alien Mexican Border Crossing Card, for replacement of a 
lost, stolen, or mutilated Form I-586, Nonresident Alien Border Crossing 
Card, must remit the required fee at time of application for a 
replacement Form I-586.

[60 FR 40069, Aug. 7, 1995]


PART 287--FIELD OFFICERS; POWERS AND DUTIES--Table of Contents



Sec.
287.1  Definitions.
287.2  Disposition of criminal cases.
287.3  Disposition of cases of aliens arrested without warrant.
287.4  Subpoena.
287.5  Exercise of power by immigration officers.
287.6  Proof of official records.
287.7  Detainer provisions under section 287(d)(3) of the Act.
287.8  Standards for enforcement activities.
287.9  Criminal search warrant and firearms policies.
287.10  Expedited internal review process.
287.11  Scope.

    Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357; 8 CFR 
part 2.


Sec. 287.1  Definitions.

    (a)(1) External boundary. The term external boundary, as used in 
section 287(a)(3) of the Act, means the land boundaries and the 
territorial sea of the United States extending 12 nautical miles from 
the baselines of the United States determined in accordance with 
international law.

[[Page 532]]

    (2) Reasonable distance. The term reasonable distance, as used in 
section 287(a) (3) of the Act, means within 100 air miles from any 
external boundary of the United States or any shorter distance which may 
be fixed by the district director, or, so far as the power to board and 
search aircraft is concerned any distance fixed pursuant to paragraph 
(b) of this section.
    (b) Reasonable distance; fixing by district directors. In fixing 
distances not exceeding 100 air miles pursuant to paragraph (a) of this 
section, district directors shall take into consideration topography, 
confluence of arteries of transportation leading from external 
boundaries, density of population, possible inconvenience to the 
traveling public, types of conveyances used, and reliable information as 
to movements of persons effecting illegal entry into the United States: 
Provided, That whenever in the opinion of a district director a distance 
in his district of more than 100 air miles from any external boundary of 
the United States would because of unusual circumstances be reasonable, 
such district director shall forward a complete report with respect to 
the matter to the Commissioner, who may, if he determines that such 
action is justified, declare such distance to be reasonable.
    (c) Patrolling the border. The phrase patrolling the border to 
prevent the illegal entry of aliens into the United States as used in 
section 287 of the Immigration and Nationality Act means conducting such 
activities as are customary, or reasonable and necessary, to prevent the 
illegal entry of aliens into the United States.
    (d) Arrested by federal, state, or local law enforcement official. 
The term arrested, as used in section 287(d) of the Act (as amended by 
section 1701 (Subtitle M) of the Anti-Drug Abuse Act of 1986, Pub. L. 
99-509), means that an alien has been--
    (1) Physically taken into custody for a criminal violation of the 
controlled substance laws; and
    (2) Subsequently booked, charged or otherwise officially processed; 
or
    (3) Provided an initial appearance before a judicial officer where 
the alien has been informed of the charges and the right to counsel.
    (e) Law enforcement or other official. The phrase law enforcement 
official (or other official), as used in section 287(d) of the Act, and 
Sec. 242.2(a) of this part means an officer or employee of an agency 
engaged in the administration of criminal justice pursuant to statute or 
executive order, including (1) courts; (2) a government agency or 
component which performs the administration of criminal justice as 
defined in 28 CFR part 20 including performance of any of the following 
activities: detection, apprehension, detention, pretrial release, post-
trial release, prosecution, adjudication, correctional supervision, or 
rehabilitation of accused persons or criminal offenders.
    (f) Controlled substance. The term controlled substance, as used in 
section 287(d)(3) of the Act, shall mean the same as that referenced in 
the Controlled Substances Act, 21 U.S.C. 801 et seq., and shall include 
any substance contained in Schedules I through V of 21 CFR 1308.1 et 
seq. For the purposes of this chapter, the term controlled substance 
includes controlled substance analogues as defined in 21 U.S.C. 802(23) 
and 813.
    (g) Basic immigration law enforcement training. The phrase basic 
immigration law enforcement training, as used in Secs. 287.5 and 287.8 
of this part, means the successful completion of one of the following 
courses of training provided at the Immigration Officer Academy or 
Border Patrol Academy: Immigration Officer Basic Training Course after 
1971; Border Patrol Basic Training Course after 1950; and Immigration 
Detention Enforcement Officer Basic Training Course after 1977; or 
training substantially equivalent thereto as determined by the 
Commissioner with the approval of the Deputy Attorney General. The 
phrase basic immigration law enforcement training also means the 
successful completion of the Other than Permanent Full-Time (OTP) 
Immigration Inspector Basic Training Course after 1991 in the case of 
individuals who are OTP immigration inspectors. Conversion by OTP 
immigration

[[Page 533]]

to any other status requires training applicable to that position.

[22 FR 9808, Dec. 6, 1957, as amended at 29 FR 13244, Sept. 24, 1964; 53 
FR 9283, Mar. 22, 1988; 57 FR 47258, Oct. 15, 1992; 59 FR 42415, Aug. 
17, 1994]



Sec. 287.2  Disposition of criminal cases.

    Whenever a district director or chief patrol agent has reason to 
believe that there has been a violation punishable under any criminal 
provision of the laws administered or enforced by the Service, he or she 
shall immediately initiate an investigation to determine all the 
pertinent facts and circumstances and shall take such further action as 
he or she deems necessary. In no case shall this investigation prejudice 
the right of an arrested person to be taken without unnecessary delay 
before a United States magistrate judge, a United States district judge, 
or, if necessary, a judicial officer empowered in accordance with 18 
U.S.C. 3041 to commit persons charged with offenses against the laws of 
the United States.

[59 FR 42415, Aug. 17, 1994]



Sec. 287.3  Disposition of cases of aliens arrested without warrant.

    An alien arrested without a warrant of arrest under the authority 
contained in section 287(a)(2) of the Immigration and Nationality Act 
shall be examined as therein provided by an officer other than the 
arresting officer. If no other qualified officer is readily available 
and the taking of the alien before another officer would entail 
unnecessary delay, the arresting officer, if the conduct of such 
examination is a part of the duties assigned to him/her, may examine the 
alien. If such examining officer is satisfied that there is prima facie 
evidence establishing that the arrested alien was entering or attempting 
to enter the United States in violation of the immigration laws, he/she 
shall refer the case to an immigration judge for further inquiry in 
accordance with parts 235 and 236 of this chapter or take whatever other 
action may be appropriate or required under the laws or regulations 
applicable to the particular case. If the examining officer is satisfied 
that there is prima facie evidence establishing that the arrested alien 
is in the United States in violation of the immigration laws, further 
action in the case shall be taken as provided in part 242 of this 
chapter. After the examining officer has determined that formal 
proceedings under sections 236, 237, or 242 of the Act, will be 
instituted, an alien arrested without warrant of arrest shall be advised 
of the reason for his/her arrest and the right to be represented by 
counsel of his/her choice, at no expense to the government. The alien 
shall also be provided with a list of the available free legal services 
programs qualified under part 292a of this chapter and organizations 
recognized pursuant to Sec. 292.2 of this chapter which are located in 
the district where the deportation hearing will be held. It shall be 
noted on Form I-213 that such a list was provided to the alien. The 
alien shall also be advised that any statement made may be used against 
him/her in a subsequent proceeding and that a decision will be made 
within 24 hours as to whether he/she will be continued in custody or 
released on bond or recognizance. Unless voluntary departure has been 
granted pursuant to Sec. 242.5 of this chapter, the alien's case shall 
be presented promptly, and in any event within 24 hours, for a 
determination as to whether there is prima facie evidence that the 
arrested alien is in the United States in violation of law and for 
issuance of an order to show cause and warrant of arrest as prescribed 
in part 242 of this chapter.

[51 FR 34082, Sept. 25, 1986]



Sec. 287.4  Subpoena.

    (a) Who may issue--(1) Criminal or civil investigations. All 
District Directors, Deputy District Directors, Chief Patrol Agents, 
Deputy Chief Patrol Agents, Assistant Chief Patrol Agents, Officers-in-
Charge, Patrol Agents in Charge, Assistant District Directors, 
Investigations, Supervisory Criminal Investigators (Anti-Smuggling), 
Regional Directors, Office of Professional Responsibility, Service 
Center Directors, and Assistant District Directors for Examinations, may 
issue a subpoena requiring the production of records and evidence for 
use in criminal or civil investigations.

[[Page 534]]

    (2) Proceedings other than naturalization proceedings--(1) Prior to 
commencement of proceedings. All District Directors, Deputy District 
Directors, Chief Patrol Agents, Deputy Chief Patrol Agents, and 
Officers-in-Charge, may issue a subpoena requiring the attendance of 
witnesses or the production of documentary evidence, or both, for use in 
any proceeding under this chapter, other than under part 335 of this 
Chapter, or any application made ancillary to the proceeding.
    (ii) Subsequent to commencement of any proceeding. (A) In any 
proceeding under this chapter, other than under part 335 of this 
chapter, and in any proceeding ancillary thereto, an immigration judge 
having jurisdiction over the matter may, upon his/her own volition or 
upon application of a trial attorney, the alien, or other party 
affected, issue subpoenas requiring the attendance of witnesses or for 
the production of books, papers and other documentary evidence, or both.
    (B) Application for subpoena. A party applying for a subpoena shall 
be required, as a condition precedent to its issuance, to state in 
writing or at the proceeding, what he/she expects to prove by such 
witnesses or documentary evidence, and to show affirmatively that he/she 
has made diligent effort, without success, to produce the same.
    (C) Issuance of subpoena. Upon being satisfied that a witness will 
not appear and testify or produce documentary evidence and that the 
witness' evidence is essential, the immigration judge shall issue a 
subpoena.
    (D) Appearance of witness. If the witness is at a distance of more 
than 100 miles from the place of the proceeding, the subpoena shall 
provide for the witnesses' appearance at the Service office nearest to 
the witness to respond to oral or written interrogatories, unless the 
Service indicates that there is no objection to bringing the witness the 
distance required to enable him/her to testify in person.
    (b) Form of subpoena. All subpoenas shall be issued on Form I-138.
    (1) Criminal or civil investigations. The subpoena shall command the 
person or entity to which it is addressed to attend and to give 
testimony at a time or place specified. A subpoena shall also command 
the person or entity to which it is addressed to produce the books, 
papers, or documents specified in the subpoena. A subpoena may direct 
the taking of a deposition before an officer of the Service.
    (2) Proceedings other than naturalization proceedings. Every 
subpoena issued under the provisions of this section shall state the 
title of the proceeding and shall command the person to whom it is 
directed to attend and to give testimony at a time and place specified. 
A subpoena shall also command the person to whom it is directed to 
produce the books, papers, or documents specified in the subpoena. A 
subpoena may direct the making of a deposition before an officer of the 
Service.
    (c) Service. A subpoena issued under this section may be served by 
any person, over 18 years of age not a party to the case, designated to 
make such service by the District Director, Deputy District Director, 
Chief Patrol Agent, Deputy Chief Patrol Agent, Assistant Chief Patrol 
Agent, Patrol Agent in Charge, Officer in Charge, Assistant District 
Director, Investigations, Supervisory Criminal Investigator (Anti-
Smuggling), Regional Director, and Office of Professional 
Responsibility, having administrative jurisdiction over the office in 
which the subpoena is issued. Service of the subpoena shall be made by 
delivering a copy thereof to the person named therein and by tendering 
to him/her the fee for one day's attendance and the mileage allowed by 
law by the United States District Court for the district in which the 
testimony is to be taken. When the subpoena is issued on behalf of the 
Service, fee and mileage need not be tendered at the time of service. A 
record of such service shall be made and attached to the original copy 
of the subpoena.
    (d) Invoking aid of court. If a witness neglects or refuses to 
appear and testify as directed by the subpoena served upon him/her in 
accordance with the provisions of this section, the officer issuing the 
subpoena shall request the United States Attorney for the district in 
which the subpoena was issued to report such neglect or refusal to the

[[Page 535]]

United States District Court and to request such court to issue an order 
requiring the witness to appear and testify and to produce the books, 
papers or documents designated in the subpoena. If the subpoena was 
issued by an immigration judge, he/she shall request the District 
Director in the district in which the subpoena was issued to take the 
action referred to in the previous sentence in the event the witness 
neglects or refuses to appear and testify as directed by the subpoena 
served upon him.

[50 FR 30134, July 24, 1985; 50 FR 47205, Nov. 15, 1985, as amended at 
60 FR 56937, Nov. 13, 1995]



Sec. 287.5  Exercise of power by immigration officers.

    (a) Power and authority to interrogate and administer oaths. Any 
immigration officer as defined in Sec. 103.1(q) of this chapter is 
hereby authorized and designated to exercise anywhere in or outside the 
United States the power conferred by:
    (1) Section 287(a)(1) of the Act to interrogate, without warrant, 
any alien or person believed to be an alien concerning his or her right 
to be, or to remain, in the United States, and
    (2) Section 287(b) of the Act to administer oaths and to take and 
consider evidence concerning the privilege of any person to enter, 
reenter, pass through, or reside in the United States; or concerning any 
matter which is material or relevant to the enforcement of the Act and 
the administration of the Immigration and Naturalization Service.
    (b) Power and authority to patrol the border. (1) Section 287(a)(3) 
of the Act authorizes designated immigration officers, as listed in 
paragraph (b)(2) of this section, to board and search for aliens, 
without warrant, any vessel within the territorial waters of the United 
States and any railway car, aircraft, conveyance, or vehicle within a 
reasonable distance from any external boundary of the United States; and 
within a distance of twenty-five miles from any such external boundary 
to have access, without warrant, to private lands, but not dwellings, 
for the purpose of patrolling the border to prevent the illegal entry of 
aliens into the United States.
    (2) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the power to patrol the border 
conferred by section 287(a)(3) of the Act:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Immigration inspectors (seaport operations only);
    (iv) Immigration examiners and deportation officers when in the 
uniform of an immigration inspector and performing inspections or 
supervising other immigration inspectors performing inspections (seaport 
operations only);
    (v) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (vi) Immigration officers who need the authority to patrol the 
border under section 287(a)(3) of the Act in order to effectively 
accomplish their individual missions and who are designated, 
individually or as a class, by the Commissioner.
    (c) Power and authority to arrest. (1) Arrests of aliens under 
section 287(a)(2) of the Act for immigration violations.
    (i) Section 287(a)(2) of the Act authorizes designated immigration 
officers, as listed in paragraph (c)(1)(ii) of this section, to arrest 
any alien, without warrant, who in the presence or view of the 
immigration officer is entering or attempting to enter the United States 
in violation of any law or regulation made in pursuance of law 
regulating the admission, exclusion, or expulsion of aliens, or to 
arrest any alien in the United States if the immigration officer has 
reason to believe that the alien is in the United States in violation of 
any such law or regulation and is likely to escape before a warrant can 
be obtained for his or her arrest. When making an arrest, the designated 
immigration officer shall adhere to the provisions of the enforcement 
standard governing the conduct of arrests in Sec. 287.8(c).
    (ii) The following immigration officers who have successfully 
completed

[[Page 536]]

basic immigration law enforcement training are hereby authorized and 
designated to exercise the arrest power conferred by section 287(a)(2) 
of the Act:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Immigration inspectors;
    (E) Immigration examiners;
    (F) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (G) Immigration officers who need the authority to arrest aliens 
under section 287(a)(2) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner.
    (2) Arrests of persons under section 287(a)(4) of the Act for 
felonies regulating the admission, exclusion, or expulsion of aliens. 
(i) Section 287(a)(4) of the Act authorizes designated immigration 
officers, as listed in paragraph (c)(2)(ii) of this section, to arrest 
persons, without warrant, for felonies that have been committed and that 
are cognizable under any law of the United States regulating the 
admission, exclusion, or expulsion of aliens, if the immigration officer 
has reason to believe that the person is guilty of such felony and if 
there is a likelihood of the person escaping before a warrant can be 
obtained for his or her arrest. When making an arrest, the designated 
immigration officer shall adhere to the provisions of the enforcement 
standard governing the conduct of arrests in Sec. 287.8(c) of this part.
    (ii) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the arrest power conferred by 
section 287(a)(4) of the Act:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Immigration inspectors;
    (E) Immigration examiners;
    (F) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (G) Immigration officers who need the authority to arrest persons 
under section 287(a)(4) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner with the approval of the Deputy Attorney 
General.
    (3) Arrests of persons under section 287(a)(5)(A) of the Act for any 
offense against the United States. (i) Section 287(a)(5)(A) of the Act 
authorizes designated immigration officers, as listed in paragraph 
(c)(3)(ii) of this section, to arrest persons, without warrant, for any 
offense against the United States if the offense is committed in the 
immigration officer's presence while the immigration officer is 
performing duties relating to the enforcement of the immigration laws at 
the time of the arrest and there is a likelihood of the person escaping 
before a warrant can be obtained for his or her arrest. When making an 
arrest, the designated immigration officer shall adhere to the 
provisions of the enforcement standard governing the conduct of arrests 
in Sec. 287.8(c).
    (ii) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the arrest power conferred by 
section 287(a)(5)(A) of the Act:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Immigration inspectors (permanent full-time immigration 
inspectors only);
    (E) Immigration examiners when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (F) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (G) Immigration officers who need the authority to arrest persons 
under section 287(a)(5)(A) of the Act in order to effectively accomplish 
their individual missions and who are designated,

[[Page 537]]

individually or as a class, by the Commissioner with the approval of the 
Deputy Attorney General.
    (4) Arrests of person under section 287(a)(5)(B) of the Act for any 
felony. (i) Section 287(a)(5)(B) of the Act authorizes designated 
immigration officers, as listed in paragraph (c)(4)(iii) of this 
section, to arrest persons, without warrant, for any felony cognizable 
under the laws of the United States if:
    (A) The immigration officer has reasonable grounds to believe that 
the person to be arrested has committed or is committing such a felony;
    (B) The immigration officer is performing duties relating to the 
enforcement of the immigration laws at the time of the arrest;
    (C) There is a likelihood of the person escaping before a warrant 
can be obtained for his or her arrest; and
    (D) The immigration officer has been certified as successfully 
completing a training program which covers such arrests and the 
standards with respect to the enforcement activities of the Service as 
defined in Sec. 287.8.
    (ii) When making an arrest, the designated immigration officer shall 
adhere to the provisions of the enforcement standard governing the 
conduct of arrests in Sec. 287.8(c).
    (iii) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the arrest power conferred by 
section 287(a)(5)(B) of the Act:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Immigration inspectors (permanent full-time immigration 
inspectors only);
    (E) Immigration examiners when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (F) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (G) Immigration officers who need the authority to arrest persons 
under section 287(a)(5)(B) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner with the approval of the Deputy Attorney 
General.
    (iv) Notwithstanding the authorization and designation set forth in 
paragraph (c)(4)(iii) of this section, no immigration officer is 
authorized to make an arrest for any felony under the authority of 
section 287(a)(5)(B) of the Act until such time as he or she has been 
certified by the Director of Training as successfully completing a 
training course encompassing such arrests and the standards for 
enforcement activities as defined in Sec. 287.8 of this part. Such 
certification shall be valid for the duration of the immigration 
officer's continuous employment, unless it is suspended or revoked by 
the Commissioner or the Commissioner's designee for just cause.
    (5) Arrests of persons under section 274(a) of the Act who bring in, 
transport, or harbor certain aliens, or induce them to enter. (i) 
Section 274(a) of the Act authorizes designated immigration officers, as 
listed in paragraph (c)(5)(ii) of this section, to arrest persons who 
bring in, transport, or harbor aliens, or induce them to enter the 
United States in violation of law. When making an arrest, the designated 
immigration officer shall adhere to the provisions of the enforcement 
standard governing the conduct of arrests in Sec. 287.8(c).
    (ii) The following immigration officers who have successfully 
completed basic immigration law enforcement training are authorized and 
designated to exercise the arrest power conferred by section 274(a) of 
the Act:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Immigration inspectors;
    (E) Immigration examiners when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (F) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (G) Immigration officers who need the authority to arrest persons 
under

[[Page 538]]

section 274(a) of the Act in order to effectively accomplish their 
individual missions and who are designated, individually or as a class, 
by the Commissioner with the approval of the Deputy Attorney General.
    (6) Custody and transportation of previously arrested persons. In 
addition to the authority to arrest pursuant to a warrant of arrest in 
paragraph (e)(2)(i) of this section, detention enforcement officers who 
have successfully completed basic immigration law enforcement training 
are hereby authorized and designated to take and maintain custody of and 
transport any person who has been arrested by an immigration officer 
pursuant to paragraphs (c)(1) through (c)(5) of this section.
    (d) Power and authority to conduct searches. (1) Section 287(c) of 
the Act authorizes designated immigration officers, as listed in 
paragraph (d)(2) of this section, to conduct a search, without warrant, 
of the person and of the personal effects in the possession of my person 
seeking admission to the United States if the immigration officer has 
reasonable cause to suspect that grounds exist for exclusion from the 
United States under the Act that would be disclosed by such search.
    (2) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the power to conduct searches 
conferred by section 287(c) of the Act:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Immigration inspectors;
    (v) Immigration examiners;
    (vi) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (vii) Immigration officers who need the authority to conduct 
searches under section 287(c) of the Act in order to effectively 
accomplish their individual missions and who are designated, 
individually or as a class, by the Commissioner.
    (e) Power and authority to execute warrants--(1) Search warrants. 
The following immigration officers who have successfully completed basic 
immigration law enforcement training are hereby authorized and 
designated to exercise the power conferred by section 287(a) of the Act 
to execute a search warrant:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above, and
    (iv) Immigration officers who need the authority to execute search 
warrants under section 287(a) of the Act in order to effectively 
accomplish their individual missions and who are designated, 
individually or as a class, by the Commissioner with the approval of the 
Deputy Attorney General.
    (2) Arrest warrants--(1) Immigration violations. The following 
immigration officers who have successfully completed basic immigration 
law enforcement training are hereby authorized and designated to 
exercise the power pursuant to section 287(a) of the Act to execute 
warrants of arrest for administrative immigration violations issued 
under section 242 of the Act or to execute warrants of criminal arrest 
issued under the authority of the United States:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Detention enforcement officers (warrants of arrest for 
administrative immigration violations only);
    (E) Immigration inspectors;
    (F) Immigration examiners when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (G) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (H) Immigration officers who need the authority to execute arrest 
warrants for immigration violations under section 287(a) of the Act in 
order to effectively accomplish their individual missions and who are 
designated, individually or as a class, by the Commissioner, for 
warrants of arrest for administrative immigration violations,

[[Page 539]]

and with the approval of the Deputy Attorney General, for warrants of 
criminal arrest.
    (ii) Non-immigration violations. The following immigration officers 
who have successfully completed basic immigration law enforcement 
training are hereby authorized and designated to exercise the power to 
execute warrants of criminal arrest for non-immigration violations 
issued under the authority of the United States:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (E) Immigration officers who need the authority to execute warrants 
of arrest for non-immigration violations under section 287(a) of the Act 
in order to effectively accomplish their individual missions and who are 
designated, individually or as a class, by the Commissioner with the 
approval of the Deputy Attorney General.
    (f) Power and authority to carry firearms. The following immigration 
officers who have successfully completed basic immigration enforcement 
training are hereby authorized and designated to exercise the power 
conferred by section 287(a) of the Act to carry firearms provided that 
they are individually qualified by training and experience to handle and 
safely operate the firearms they are permitted to carry, maintain 
proficiency in the use of such firearms, and adhere to the provisions of 
the enforcement standard governing the use of force in Sec. 287.8(a):
    (1) Border patrol agents, including aircraft pilots;
    (2) Special agents;
    (3) Deportation officers;
    (4) Detention enforcement officers;
    (5) Immigration inspectors;
    (6) Immigration examiners when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (7) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (8) Immigration officers who need the authority to carry firearms 
under section 287(a) of the Act in order to effectively accomplish their 
individual missions and who are designated, individually or as a class, 
by the Commissioner with the approval of the Deputy Attorney General.

[59 FR 42415, Aug. 17, 1994]



Sec. 287.6  Proof of official records.

    (a) Domestic. In any proceeding under this chapter, an official 
record or entry therein, when admissible for any purpose, shall be 
evidenced by an official publication thereof, or by a copy attested by 
the official having legal custody of the record or by an authorized 
deputy.
    (b) Foreign: Countries not Signatories to Convention. (1) In any 
proceeding under this chapter, an official record or entry therein, when 
admissible for any purpose, shall be evidenced by an official 
publication thereof, or by a copy attested by an officer so authorized. 
This attested copy in turn may but need not be certified by any 
authorized foreign officer both as to the genuineness of the signature 
of the attesting officer and as to his/her official position. The 
signature and official position of this certifying foreign officer may 
then likewise be certified by any other foreign officer so authorized, 
thereby creating a chain of certificates.
    (2) The attested copy, with the additional foreign certificates if 
any, must be certified by an officer in the Foreign Service of the 
United States, stationed in the foreign country where the record is 
kept. This officer must certify the genuineness of the signature and the 
official position either of (i) the attesting officer; or (ii) any 
foreign officer whose certification of genuineness of signature and 
official position relates directly to the attestation or is in a chain 
of certificates of genuineness of signature and official position 
relating to the attestation.
    (c) Foreign: Countries Signatory to Convention Abolishing the 
Requirement of Legislation for Foreign Public Document. (1) In any 
proceeding under this chapter, a public document or entry therein, when 
admissible for any purpose,

[[Page 540]]

may be evidenced by an official publication, or by a copy properly 
certified under the Convention. To be properly certified, the copy must 
be accompanied by a certificate in the form dictated by the Convention. 
This certificate must be signed by a foreign officer so authorized by 
the signatory country, and it must certify (i) the authenticity of the 
signature of the person signing the document; (ii) the capacity in which 
that person acted, and (iii) where appropriate, the identity of the seal 
or stamp which the document bears.
    (2) No certification is needed from an officer in the Foreign 
Service of public documents.
    (3) In accordance with the Convention, the following are deemed to 
be public documents:
    (i) Documents emanating from an authority or an official connected 
with the courts of tribunals of the state, including those emanating 
from a public prosecutor, a clerk of a court or a process server;
    (ii) Administrative documents;
    (iii) Notarial acts; and
    (iv) Official certificates which are placed on documents signed by 
persons in their private capacity, such as official certificates 
recording the registration of a document or the fact that it was in 
existence on a certain date, and official and notarial authentication of 
signatures.
    (4) In accordance with the Convention, the following are deemed not 
to be public documents, and thus are subject to the more stringent 
requirements of Sec. 287.6(b) above:
    (i) Documents executed by diplomatic or consular agents; and
    (ii) Administrative documents dealing directly with commercial or 
customs operations.
    (d) Canada. In any proceedings under this chapter, an official 
record or entry therein, issued by a Canadian governmental entity within 
the geographical boundaries of Canada, when admissible for any purpose, 
shall be evidenced by a certified copy of the original record attested 
by the official having legal custody of the record or by an authorized 
deputy.

[50 FR 37834, Sept. 18, 1985, as amended at 54 FR 39337, Sept. 26, 1989; 
54 FR 48851, Nov. 28, 1989]



Sec. 287.7  Detainer provisions under section 287(d)(3) of the Act.

    (a) Detainers in general. (1) A detainer may be issued only in the 
case of an alien who there is reason to believe is amenable to exclusion 
or deportation proceedings under any provision of law. The following 
immigration officers are hereby authorized to issue detainers under 
section 287(d)(3) of the Act:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Immigration inspectors;
    (v) Immigration examiners;
    (vi) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (vii) Immigration officers who need the authority to issue detainers 
under section 287(d)(3) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner.
    (2) Availability of records. In order for the Service to accurately 
determine the propriety of issuing a detainer, serving an order to show 
cause, or taking custody of an alien in accordance with this section, 
the criminal justice agency requesting such action or informing the 
service of a conviction or act which renders an alien excludable or 
deportable under any provision of law shall provide the Service with all 
documentary records and information available from the agency which 
reasonably relates to the alien's status in the United States, or which 
may have an impact on conditions of release.
    (3) Telephonic detainers. Issuance of a detainer in accordance with 
this section may be authorized telephonically, provided such 
authorizations are confirmed in writing on Form I-247, or by electronic 
communications transfer media (e.g. the National Law Enforcement 
Telecommunications System (NLETS)) within twenty-four hours of

[[Page 541]]

the telephonic authorization. The contents of the electronic transfer 
shall contain substantially the same language as the Form I-247.
    (4) Temporary detention at Service request. Upon a determination by 
the Service to issue a detainer for an alien not otherwise detained by a 
criminal justice agency, such agency shall maintain custody of the alien 
for a period not to exceed forty-eight hours, in order to permit 
assumption of custody by the Service.
    (5) Financial responsibility for detention. No detainer issued as a 
result of a determination made under this chapter shall incur any fiscal 
obligation on the part of the Service, until actual assumption of 
custody by the Service, except as provided in paragraph (a)(4) of this 
section.

[53 FR 9283, Mar. 22, 1988, as amended at 55 FR 43327, Oct. 29, 1990; 59 
FR 42418, August 17, 1994]



Sec. 287.8  Standards for enforcement activities.

    The following standards for enforcement activities contained in this 
section must be adhered to by every immigration officer involved in 
enforcement activities. Any violation of this section shall be reported 
pursuant to Sec. 287.10.
    (a) Use of force--(1) Non-deadly force. (i) Non-deadly force is any 
use of force other than that which is considered deadly force as defined 
in paragraph (a)(2) of this section.
    (ii) Non-deadly force may be used only when a designated immigration 
officer, as listed in paragraph (a)(1)(iv) of this section, has 
reasonable grounds to believe that such force is necessary.
    (iii) A designated immigration officer shall always use the minimum 
non-deadly force necessary to accomplish the officer's mission and shall 
escalate to a higher level of non-deadly force only when such higher 
level of force is warranted by the actions, apparent intentions, and 
apparent capabilities of the suspect, prisoner, or assailant.
    (iv) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the power conferred by section 
287(a) of the Act to use non-deadly force should circumstances warrant 
it:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Detention enforcement officers;
    (E) Immigration inspectors;
    (F) Immigration examiners when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (G) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (H) Immigration officers who need the authority to use non-deadly 
force under section 287(a) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner.
    (2) Deadly force. (i) Deadly force is any use of force that is 
likely to cause death or serious bodily harm.
    (ii) Deadly force may be used only when a designated immigration 
officer, as listed in paragraph (a)(2)(iii) of this section, has 
reasonable grounds to believe that such force is necessary to protect 
the designated immigration officer or other persons from the present 
danger of death or serious bodily harm.
    (iii) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the power conferred by section 
287(a) of the Act to use deadly force should circumstances warrant it:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Detention enforcement officers;
    (E) Immigration inspectors;
    (F) Immigration examiners when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (G) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and

[[Page 542]]

    (H) Immigration officers who need the authority to use deadly force 
under section 287(a) of the Act in order to effectively accomplish their 
individual missions and who are designated, individually or as a class, 
by the Commissioner with the approval of the Deputy Attorney General.
    (b) Interrogation and detention not amounting to arrest. (1) 
Integration is questioning designed to elicit specific information. An 
immigration officer, like any other person, has the right to ask 
questions of anyone as long as the immigration officer does not restrain 
the freedom of an individual, not under arrest, to walk away.
    (2) If the immigration officer has a reasonable suspicion, based on 
specific articulable facts, that the person being questioned is, or is 
attempting to be, engaged in an offense against the United States or is 
an alien illegally in the United States, the immigration officer may 
briefly detain the person for questioning.
    (3) Information obtained from this questioning may provide the basis 
for a subsequent arrest, which must be effected only by a designated 
immigration officer, as listed in Sec. 287.5(c). The conduct of arrests 
is specified in paragraph (c) of this section.
    (c) Conduct of arrests--(1) Authority. Only designated immigration 
officers are authorized to make an arrest. The list of designated 
immigration officers varies depending on the type of arrest as listed in 
Sec. 287.5(c)(1) through (c)(5).
    (2) General procedures. (i) An arrest shall be made only when the 
designated immigration officer has reason to believe that the person to 
be arrested has committed an offense against the United States or is an 
alien illegally in the United States.
    (ii) A warrant of arrest shall be obtained whenever possible prior 
to the arrest.
    (iii) At the time of the arrest, the designated immigration officer 
shall, as soon as it is practical and safe to do so:
    (A) Identify himself or herself as an immigration officer who is 
authorized to execute an arrest; and
    (B) State that the person is under arrest and the reason for the 
arrest.
    (iv) With respect to an alien arrested and administratively charged 
with being in the United States in violation of law, the arresting 
officer shall adhere to the procedures set forth in Sec. 287.3 if the 
arrest is made without a warrant, and to the procedures set forth in 
Sec. 242.2(c)(2) of this chapter if the arrest is made with a warrant.
    (v) With respect to a person arrested and charged with a criminal 
violation of the laws of the United States, the arresting officer shall 
advise the person of the appropriated rights as required by law at the 
time of the arrest, or as soon thereafter as practicable. It is the duty 
of the immigration officer to assure that the warnings are given in a 
language the subject understands, and that the subject acknowledges that 
the warnings are understood. The fact that a person has been advised of 
his or her rights shall be documented on appropriate Service forms and 
made a part of the arrest record.
    (vi) Every person arrested and charged with a criminal violation of 
the laws of the United States shall be brought without unnecessary delay 
before a United States magistrate judge, a United States district judge 
or, if necessary, a judicial officer empowered in accordance with 18 
U.S.C. 3041 to commit persons charged with such crimes. Accordingly, the 
immigration officer shall contact an Assistant United States Attorney to 
arrange for an initial appearance.
    (vii) The use of threats, coercion, or physical abuse by the 
designated immigration officer to induce a suspect to waive his or her 
rights or to make a statement is prohibited.
    (d) Transportation--(1) Vehicle transportation. All persons will be 
transported in a manner that ensures the safety of the persons being 
transported. When persons arrested or detained are being transported by 
vehicle, each person will be searched as thoroughly as circumstances 
permit before being placed in the vehicle. The person being transported 
shall not be handcuffed to the frame or any part of the moving vehicle 
or an object in the moving vehicle. The person being transported shall 
not be left unattended during transport unless the immigration officer 
needs to perform a law enforcement function.

[[Page 543]]

    (2) Airline transportation. The escorting officer(s) must abide by 
all Federal Aviation Administration and airline carrier rules and 
regulations pertaining to weapons and the transportation of prisoners.
    (e) Vehicular pursuit. (1) A vehicular pursuit is an active attempt 
by a designated immigration officer, as listed in paragraph (e)(2) of 
this section, in a designated pursuit vehicle to apprehend fleeing 
suspects who are attempting to avoid apprehension. A designated pursuit 
vehicle is defined as a vehicle equipped with emergency lights and 
siren, placed in or on the vehicle, that emit audible and visual signals 
in order to warn others that emergency law enforcement activities are in 
progress.
    (2) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to initiate a vehicular pursuit:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Supervisory personnel who are responsible for supervising the 
activities of those officers listed above; and
    (iii) Immigration officers who need the authority to initiate a 
vehicular pursuit in order to effectively accomplish their individual 
mission and who are designated, individually or as a class, by the 
Commissioner.
    (f) Site inspections. (1) Site inspections are Service enforcement 
activities undertaken to locate and identify aliens illegally in the 
United States, or aliens engaged in unauthorized employment, at 
locations where there is a reasonable suspicion, based on articulable 
facts, that such aliens are present.
    (2) An immigration officer may not enter into the non-public areas 
of a business, a residence including the curtilage of such residence, or 
a farm or other outdoor agricultural operation, except as provided in 
section 287(a)(3) of the Act, for the purpose of questioning the 
occupants or employees concerning their right to be or remain in the 
United States unless the officer has either a warrant or the consent of 
the owner or other person in control of the site to be inspected. When 
consent to enter is given, the immigration officer must note on the 
officer's report that consent was given and, if possible, by whom 
consent was given. If the immigration officer is denied access to 
conduct a site inspection, a warrant may be obtained.
    (3) Adequate records must be maintained noting the results of every 
site inspection, including those where no illegal aliens are located.
    (4) Nothing in this section prohibits an immigration officer from 
entering into any area of a business or other activity to which the 
general public has access or onto open fields that are not farms or 
other outdoor agricultural operations without a warrant, consent, or any 
particularized suspicion in order to question any person whom the 
officer believes to be an alien concerning his or her right to be or 
remain in the United States.

[59 FR 42418, Aug. 17, 1994]



Sec. 287.9  Criminal search warrant and firearms policies.

    (a) A search warrant should be obtained prior to conducting a search 
in a criminal investigation unless a specific exception to the warrant 
requirement is authorized by statute or recognized by the courts. Such 
exceptions may include, for example, the consent of the person to be 
searched, exigent circumstances, searches incident to a lawful arrest, 
and border searches. The Commissioner shall promulgate guidelines 
governing officers' conduct relating to search and seizure.
    (b) In using a firearm, an officer shall adhere to the standard of 
conduct set forth in Sec. 287.8(a)(2). An immigration officer may carry 
only firearms (whether Service issued or personally owned) that have 
been approved pursuant to guidelines promulgated by the Commissioner. 
The Commissioner shall promulgate guidelines with respect to:
    (1) Investigative procedures to be followed after a shooting 
incident involving an officer;
    (2) Loss or theft of an approved firearm;
    (3) Maintenance of records with respect to the issuance of firearms 
and ammunition; and

[[Page 544]]

    (4) Procedures for the proper care, storage, and maintenance of 
firearms, ammunition, and related equipment.

[59 FR 42420, Aug. 17, 1994]



Sec. 287.10  Expedited internal review process.

    (a) Violations of standards for enforcement activities. Alleged 
violations of the standards for enforcement activities established in 
accordance with the provisions of Sec. 287.8 shall be investigated 
expeditiously consistent with the policies and procedures of the Office 
of Professional Responsibility and the Office of the Inspector General 
of the Department of Justice and pursuant to guidelines to be 
established by the Attorney General. Within the Immigration and 
Naturalization Service, the Office of Internal Audit is responsible for 
coordinating the reporting and disposition of allegations.
    (b) Complaints. Any persons wishing to lodge a complaint pertaining 
to violations of enforcement standards contained in Sec. 287.8 may 
contact the Department of Justice, P.O. Box 27606, Washington, DC, 
20038-7606, or telephone 1-800-869-4499.
    (c) Expedited processing of complaints. When an allegation or 
complaint of violation of Sec. 287.8 is lodged against an employee or 
officer of the Service, the allegation or complaint shall be referred 
promptly for investigation in accordance with the policies and 
procedures of the Department of Justice. At the conclusion of an 
investigation of an allegation or complaint of violation of Sec. 287.8, 
the investigative report shall be referred promptly for appropriate 
action in accordance with the policies and procedures of the Department 
of Justice.
    (d) Unsubstantiated complaints. When an investigative report does 
not support the allegation, the employee or officer against whom the 
allegation was made shall be informed in writing that the matter has 
been closed as soon as practicable. No reference to the allegation shall 
be filed in the official's or employee's official personnel file.
    (e) Jurisdiction of other Department of Justice organizations. 
Nothing in this section alters or limits, is intended to alter or limit, 
or shall be construed to alter or limit, the jurisdiction or authority 
conferred upon the Office of the Inspector General, the Office of 
Professional Responsibility, the Federal Bureau of Investigation, the 
United States Attorneys, the Criminal Division or the Civil Rights 
Division, or any other component of the Department of Justice, or any 
other order of the Department of Justice establishing policy or 
procedures for the administration of standards of conduct within the 
Department of Justice.

[59 FR 42420, Aug. 17, 1994]



Sec. 287.11  Scope.

    With regard to this part, these regulations provide internal 
guidance on specific areas of law enforcement authority. These 
regulations do not, are not intended to, and shall not be construed to 
exclude, supplant, or limit otherwise lawful activities of the 
Immigration and Naturalization Service or the Attorney General. These 
regulations do not, are not intended to, shall not be construed to, and 
may not be relied upon to create any rights, substantive or procedural, 
enforceable at law by any party in any matter, civil or criminal. The 
Attorney General shall have exclusive authority to enforce these 
regulations through such administrative and other means as he or she may 
deem appropriate.

[59 FR 42420, Aug. 17, 1994]



PART 289--AMERICAN INDIANS BORN IN CANADA--Table of Contents




Sec.
289.1  Definition.
289.2  Lawful admission for permanent residence.
289.3  Recording the entry of certain American Indians born in Canada.

    Authority: Secs. 103, 262, 289, 66 Stat. 173, 224, 234; 8 U.S.C. 
1103, 1302, 1359; 45 Stat. 401, 54 Stat. 670; 8 U.S.C. 226a, 451.



Sec. 289.1  Definition.

    The term American Indian born in Canada as used in section 289 of 
the Act includes only persons possessing 50 per centum or more of the 
blood of the American Indian race. It does not include a person who is 
the spouse or child of such an Indian or a person whose membership in an 
Indian tribe

[[Page 545]]

or family is created by adoption, unless such person possesses at least 
50 per centum or more of such blood.

[29 FR 11494, Aug. 11, 1964]



Sec. 289.2  Lawful admission for permanent residence.

    Any American Indian born in Canada who at the time of entry was 
entitled to the exemption provided for such person by the Act of April 
2, 1928 (45 Stat. 401), or section 289 of the Act, and has maintained 
residence in the United States since his entry, shall be regarded as 
having been lawfully admitted for permanent residence. A person who does 
not possess 50 per centum of the blood of the American Indian race, but 
who entered the United States prior to December 24, 1952, under the 
exemption provided by the Act of April 2, 1928, and has maintained his 
residence in the United States since such entry shall also be regarded 
as having been lawfully admitted for permanent residence. In the absence 
of a Service record of arrival in the United States, the record of 
registration under the Alien Registration Act, of 1940 (54 Stat. 670; 8 
U.S.C. 451), or section 262 of the Act, or other satisfactory evidence 
may be accepted to establish the date of entry.

[29 FR 11494, Aug. 11, 1964]



Sec. 289.3  Recording the entry of certain American Indians born in Canada.

    The lawful admission for permanent residence of an American Indian 
born in Canada shall be recorded on Form I-181.

[33 FR 7485, May 21, 1968]



PART 292--REPRESENTATION AND APPEARANCES--Table of Contents




Sec.
292.1  Representation of others.
292.2  Organizations qualified for recognition; requests for 
          recognition; withdrawal of recognition; accreditation of 
          representatives; roster.
292.3  Discipline of attorneys and representatives.
292.4  Appearances.
292.5  Service upon and action by attorney or representative of record.
292.6  Interpretation.

    Authority: 8 U.S.C. 1103, 1252b, 1362.



Sec. 292.1  Representation of others.

    (a) A person entitled to representation may be represented by any of 
the following:
    (1) Attorneys in the United States. Any attorney as defined in 
Sec. 1.1(f) of this chapter.
    (2) Law students and law graduates not yet admitted to the bar. A 
law student who is enrolled in an accredited law school, or a law 
graduate who is not yet admitted to the bar, provided that:
    (i) He or she is appearing at the request of the person entitled to 
representation;
    (ii) In the case of a law student, he or she has filed a statement 
that he or she is participating, under the direct supervision of a 
faculty member or an attorney, in a legal aid program or clinic 
conducted by a law school or non-profit organization, and that he or she 
is appearing without direct or indirect remuneration from the alien he 
or she represents;
    (iii) In the case of a law graduate, he or she has filed a statement 
that he or she is appearing under the supervision of a licensed attorney 
or accredited representative and that he or she is appearing without 
direct or indirect remuneration from the alien he or she represents; and
    (iv) The law student's or law graduate's appearance is permitted by 
the official before whom he or she wishes to appear (namely an 
Immigration Judge, district director, officer-in-charge, regional 
commissioner, the Commissioner, or the Board). The official or officials 
may require that a law student be accompanied by the supervising faculty 
member or attorney.
    (3) Reputable individuals. Any reputable individual of good moral 
character, provided that:
    (i) He is appearing on an individual case basis, at the request of 
the person entitled to representation;
    (ii) He is appearing without direct or indirect renumeration and 
files a written declaration to that effect;
    (iii) He has a pre-existing relationship or connection with the 
person entitled to representation (e.g., as a relative, neighbor, 
clergyman, business associate or personal friend), provided

[[Page 546]]

that such requirement may be waived, as a matter of administrative 
discretion, in cases where adequate representation would not otherwise 
be available; and
    (iv) His appearance is permitted by the official before whom he 
wished to appear (namely, a special inquiry officer, district director, 
officer-in-charge, regional commissioner, the Commissioner, or the 
Board), provided that such permission shall not be granted with respect 
to any individual who regularly engages in immigration and 
naturalization practice or preparation, or holds himself out to the 
public as qualified to do so.
    (4) Accredited representatives. A person representing an 
organization described in Sec. 292.2 of this chapter who has been 
accredited by the Board.
    (5) Accredited officials. An accredited official, in the United 
States, of the government to which an alien owes allegiance, if the 
official appears solely in his official capacity and with the alien's 
consent.
    (6) Attorneys outside the United States. An attorney other than one 
described in Sec. 1.1(f) of this chapter who is licensed to practice law 
and is in good standing in a court of general jurisdiction of the 
country in which he/she resides and who is engaged in such practice. 
Provided that he/she represents persons only in matters outside the 
geographical confines of the United States as defined in section 
101(a)(38) of the Act, and that the Service official before whom he/she 
wishes to appear allows such representation as a matter of discretion.
    (b) Persons formerly authorized to practice. A person, other than a 
representative of an organization described in Sec. 292.2 of this 
chapter, who on December 23, 1952, was authorized to practice before the 
Board and the Service may continue to act as a representative, subject 
to the provisions of Sec. 292.3 of this chapter.
    (c) Former employees. No person previously employed by the 
Department of Justice shall be permitted to act as a representative in 
any case in violation of the provisions of 28 CFR 45.735-7.
    (d) Amicus curiae. The Board may grant permission to appear, on a 
case-by-case basis, as amicus curiae, to an attorney or to an 
organization represented by an attorney, if the public interest will be 
served thereby.
    (e) Except as set forth in this section, no other person or persons 
shall represent others in any case.

[40 FR 23271, May 29. 1975, as amended at 53 FR 7728, Mar. 10, 1988; 55 
FR 49251, Nov. 27, 1990; 61 FR 53610, Oct. 15, 1996]



Sec. 292.2  Organizations qualified for recognition; requests for recognition; withdrawal of recognition; accreditation of representatives; roster.

    (a) Qualifications of organizations. A non-profit religious, 
charitable, social service, or similar organization established in the 
United States and recognized as such by the Board may designate a 
representative or representatives to practice before the Service and the 
Board. Such organization must establish to the satisfaction of the Board 
that:
    (1) It makes only nominal charges and assesses no excessive 
membership dues for persons given assistance; and
    (2) It has at its disposal adequate knowledge, information and 
experience.
    (b) Requests for recognition. An organization having the 
qualifications prescribed in paragraph (a) of this section may file an 
application for recognition on a Form G-27 directly with the Board, 
along with proof of service of a copy of the application on the district 
director having jurisdiction over the area in which the organization is 
located. The district director, within 30 days from the date of service, 
shall forward to the Board a recommendation for approval or disapproval 
of the application and the reasons therefor, or request a specified 
period of time in which to conduct an investigation or otherwise obtain 
relevant information regarding the applicant. The district director 
shall include proof of service of a copy of such recommendation or 
request on the organization. The organization shall have 30 days in 
which to file a response with the Board to a recommendation by a 
district director that is other than favorable, along with proof of 
service of a copy of such response on the district director. If the 
Board approves a request for time to

[[Page 547]]

conduct an investigation, or in its discretion remands the application 
to the district director for further information, the organization shall 
be advised of the time granted for such purpose. The Service shall 
promptly forward the results of any investigation or inquiry to the 
Board, along with its recommendations for approval or disapproval and 
the reasons therefor, and proof of service of a copy of the submission 
on the organization. The organization shall have 30 days from the date 
of such service to file a response with the Board to any matters raised 
therein, with proof of service of a copy of the response on the district 
director. Requests for extensions of filing times must be submitted in 
writing with the reasons therefor and may be granted by the Board in its 
discretion. Oral argument may be heard before the Board in its 
discretion at such date and time as the Board may direct. The 
organization and Service shall be informed by the Board of the action 
taken regarding an application. Any recognized organization shall 
promptly notify the Board of any changes in its name, address, or public 
telephone number.
    (c) Withdrawal of recognition. The Board may withdraw the 
recognition of any organization which has failed to maintain the 
qualifications required by Sec. 292.2(a). Withdrawal of recognition may 
be accomplished in accordance with the following procedure:
    (1) The Service, by the district director within whose jurisdiction 
the organization is located, may conduct an investigation into any 
organization it believes no longer meets the standards for recognition.
    (2) If the investigation establishes to the satisfaction of the 
district director that withdrawal proceedings should be instituted, he 
shall cause a written statement of the grounds upon which withdrawal is 
sought to be served upon the organization, with notice to show cause why 
its recognition should not be withdrawn. The notice will call upon the 
organization to appear before a special inquiry officer for a hearing at 
a time and place stated, not less than 30 days after service of the 
notice.
    (3) The special inquiry officer shall hold a hearing, receive 
evidence, make findings of fact, state his recommendations, and forward 
the complete record to the Board.
    (4) The organization and the Service shall have the opportunity of 
appearing at oral argument before the Board at a time specified by the 
Board.
    (5) The Board shall consider the entire record and render its 
decision. The order of the Board shall constitute the final disposition 
of the proceedings.
    (d) Accreditation of representatives. An organization recognized by 
the Board under paragraph (b) of this section may apply for 
accreditation of persons of good moral character as its representatives. 
An organization may apply to have a representative accredited to 
practice before the Service alone or the Service and the Board 
(including practice before immigration judges). An application for 
accreditation shall fully set forth the nature and extent of the 
proposed representative's experience and knowledge of immigration and 
naturalization law and procedure and the category of accreditation 
sought. No individual may submit an application on his or her own 
behalf. An application shall be filed directly with the Board, along 
with proof of service of a copy of the application on the district 
director having jurisdiction over the area in which the requesting 
organization is located. The district director, within 30 days from the 
date of service, shall forward to the Board a recommendation for 
approval or disapproval of the application and the reasons therefor, or 
request a specified period of time in which to conduct an investigation 
or otherwise obtain relevant information regarding the applicant. The 
district director shall include proof of service of a copy of such 
recommendation or request on the organization. The organization shall 
have 30 days in which to file a response with the Board to a 
recommendation by a distrct director that is other than favorable, with 
proof of service of a copy of such response on the district director. If 
the Board approves a request for time to conduct an investigation, or in 
its discretion remands the application to the district director for 
further information, the organization shall be advised of the time 
granted for such purpose. The district director shall

[[Page 548]]

promptly forward the results of any investigation or inquiry to the 
Board, along with a recommendation for approval or disapproval and the 
reasons therefor, and proof of service of a copy of the submission on 
the organization. The organization shall have 30 days from the date of 
service to file a response with the Board to any matters raised therein, 
with proof or service of a copy of the response on the district 
director. Requests for extensions of filing times must be submitted in 
writing with the reasons therefor and may be granted by the Board in its 
discretion. Oral argument may be heard before the Board in its 
discretion at such date and time as the Board may direct. The Board may 
approve or disapprove an application in whole or in part and shall 
inform the organization and the district director of the action taken 
with regard to an application. The accreditation of a representative 
shall be valid for a period of three years only; however, the 
accreditation shall remain valid pending Board consideration of an 
application for renewal of accreditation if the application is filed at 
least 60 days before the third anniversary of the date of the Board's 
prior accreditation of the representative. Accreditation terminates when 
the Board's recognition of the organization ceases for any reason or 
when the representative's employment or other connection with the 
organization ceases. The organization shall promptly notify the Board of 
such changes.
    (e) Roster. The Board shall maintain an alphabetical roster of 
recognized organizations and their accredited representatives. A copy of 
the roster shall be furnished to the Commissioner and he shall be 
advised from time to time of changes therein.

[40 FR 23272, May 29, 1975, as amended at 49 FR 44086, Nov. 2, 1984]



Sec. 292.3  Discipline of attorneys and representatives.

    (a) Grounds. The Immigration Judge, Board, or Attorney General may 
suspend or bar from further practice before the Executive Office for 
Immigration Review or the Service, or may take other appropriate 
disciplinary action against, an attorney or representative if it is 
found that it is in the public interest to do so. Appropriate 
disciplinary sanctions may include disbarment, suspension, reprimand or 
censure, or such other sanction as deemed appropriate. The suspension, 
disbarment, or imposition of other appropriate disciplinary action 
against an attorney or representative who is within one or more of the 
following categories shall be deemed to be in the public interest, for 
the purposes of this part, but the enumeration of the following 
categories does not constitute the exclusive grounds for discipline in 
the public interest:
    (1) Who charges or receives, either directly or indirectly, any fee 
or compensation for services which may be deemed to be grossly excessive 
in relation to the services performed, or who, being an accredited 
representative of an organization recognized under Sec. 1.1(j) of this 
chapter, charges or receives either directly or indirectly any fee or 
compensation for services rendered to any person, except that an 
accredited representative of such an organization may be regularly 
compensated by the organization of which he is an accredited 
representative;
    (2) Who, with intent to defraud or deceive, bribes, attempts to 
bribe, coerces, or attempts to coerce, by any means whatsoever, any 
person, including a party to a case, or an officer or employee of the 
Service or Board, to commit an act or to refrain from performing an act 
in connection with any case;
    (3) Who willfully misleads, misinforms, or deceives an officer or 
employee of the Department of Justice concerning any material and 
relevant fact in connection with a case;
    (4) Who willfully deceives, misleads, or threatens any party to a 
case concerning any matter relating to the case;
    (5) Who solicits practice in any unethical or unprofessional manner, 
including but not limited to, the use of runners.
    (6) Who represents, as an associate, any person who, known to him, 
solicits practice in any unethical or unprofessional manner, including, 
but not

[[Page 549]]

limited to, the use of runners, or advertising his availability to 
handle immigration, naturalization, or nationality matters;
    (7) Who has been temporarily suspended, and such suspension is still 
in effect, or permanently disbarred, from practice in any court, 
Federal, State (including the District of Columbia), territorial, or 
insular;
    (8) Who is temporarily suspended, and such suspension is still in 
effect, or permanently disbarred, from practice in a representative 
capacity before any executive department, board, commission, or other 
governmental unit, Federal, State (including the District of Columbia), 
territorial, or insular;
    (9) Who, by use of his name, personal appearance, or any device, 
aids and abets any person to practice during the period of his 
suspension or disbarment, such suspension or disbarment being known to 
him;
    (10) Who willfully made false and material statements or 
representations with respect to his qualifications or authority to 
represent others in any case;
    (11) Who engages in contumelious or otherwise obnoxious conduct with 
respect to a case in which he acts in a representative capacity, which 
in the opinion of the Board, would constitute cause for suspension or 
disbarment if the case was pending before a court, or which, in such a 
judicial proceeding, would constitute a contempt of court;
    (12) Who, having been furnished with a copy of any portion of the 
record in a case, willfully fails to surrender such copy upon final 
disposition of the case or upon demand, or willfully and without 
authorization makes and retains a copy of the material furnished;
    (13) Who has been convicted of a felony, or, having been convicted 
of any crime is sentenced to imprisonment for a term of more than one 
year; or
    (14) Who has falsely certified a copy of a document as being a true 
and complete copy of an original.
    (15) Who has engaged in frivolous behavior in a proceeding before an 
Immigration Judge, the Board of Immigration Appeals, or any other 
administrative appellate body under title II of the Immigration and 
Nationality Act.
    (i) An attorney or representative engages in frivolous behavior when 
he or she knows or reasonably should have known that his or her actions 
lack an arguable basis in law or in fact, or are taken for an improper 
purpose, such as to cause unnecessary delay. Actions that, if taken 
improperly, may be subject to discipline include, but are not limited 
to, the making of an argument on any factual or legal question, the 
submission of an application for discretionary relief, the filing of a 
motion, or the filing of an appeal. The signature of an attorney or an 
accredited representative on any filing, application, motion, appeal, 
brief, or other paper constitutes certification by the signer that the 
signer has read the filing, application, motion, appeal, brief, or other 
paper, and that, to the best of the signer's knowledge, information, and 
belief, formed after reasonable inquiry, the document is well grounded 
in fact, is warranted by existing law or by a good faith argument for 
the extension, modification, or reversal of existing law, and is not 
interposed for any improper purpose;
    (ii) The imposition of disciplinary action for frivolous behavior 
under this section in no way limits the Board's authority summarily to 
dismissal an appeal pursuant to 8 CFR 3.1(d)(1-a).
    (b) Procedure--(1) Non-Service attorneys and accredited 
representatives--(i) Investigation of charges. Complaints regarding the 
conduct of attorneys and representatives practicing before the Service 
or the Executive Office for Immigration Review pursuant to 8 CFR 292.1 
shall be investigated by the Service.
    (ii) Service and filing of charges. If an investigation establishes, 
to the satisfaction of the Service, that disciplinary proceedings should 
be instituted, the General Counsel of the Service shall cause a copy of 
written charges to be served upon the attorney/representative either by 
personal service or by registered mail. The General Counsel shall also 
file the written charges with the Office of the Chief Immigration Judge 
immediately after service of the charges upon the attorney/
representative.
    (iii) Service and filing of answer. The attorney/representative 
shall answer the charges, in writing, within thirty (30) days after the 
date of service, and

[[Page 550]]

shall file the answer with the Office of the Chief Immigration Judge. 
Failure of the attorney/representative to answer the written charges in 
a timely manner shall constitute an admission that the facts and legal 
statements in the written charges are correct. The attorney/
representative shall also serve a copy of the answer on the General 
Counsel. Proof of service on the opposing party must be included with 
all documents filed.
    (iv) Hearing. The Chief Immigration Judge shall designate an 
Immigration Judge to hold a hearing and render a decision in the matter. 
The designated Immigration Judge shall notify the attorney/
representative and the Service as to the time and the place of the 
hearing. At the hearing, the attorney/representative may be represented 
by an attorney at no expense to the Government and the Service shall be 
represented by an attorney. At the hearing, the attorney/representative 
shall have a reasonable opportunity to examine and object to the 
evidence presented by the Service, to present evidence on his or her own 
behalf, and to cross-examine witnesses presented by the Service. The 
Service shall bear the burden of proving the grounds for disciplinary 
action by clear, convincing, and unequivocal evidence. The record of the 
hearing shall conform to the requirements of 8 CFR 242.15.
    (v) Decision. The Immigration Judge shall consider the record and 
render a decision in the case, including that the evidence presented 
does not sufficiently prove grounds for disciplinary action or that 
disciplinary action is justified. If the Immigration Judge finds that 
the evidence presented does sufficiently prove grounds for disciplinary 
action, the appropriate sanction shall be ordered. If the Immigration 
Judge orders a suspension, the Immigration Judge shall set an amount of 
time for the suspension.
    (vi) Appeal. Either party may appeal the decision of the Immigration 
Judge to the Board. The appeal must be filed within ten (10) days from 
the date of the decision, if oral, or thirteen (13) days from the date 
of mailing of the decision, if written. The appeal must be filed with 
the Immigration Court holding the hearing. If an appeal is not filed in 
a timely manner, or if the appeal is waived, the decision of the 
Immigration Judge is final. If a case is appealed in a timely manner, 
the Board shall consider the record and render a decision. Receipt of 
briefs and the hearing of oral argument shall be at the discretion of 
the Board. The Board's decision shall be final except when a case is 
certified to the Attorney General pursuant to 8 CFR 3.1(h).
    (2) Service attorneys. Complaints regarding the frivolous behavior 
of Service attorneys within the scope of Sec. 292.3(a)(15) shall be 
directed to, and investigated by, the Office of Professional 
Responsibility of the Department of Justice. If disciplinary action is 
warranted, it shall be administered pursuant to the attorney 
disciplinary procedures of the Department of Justice.

[23 FR 2672, Apr. 23, 1958, as amended at 23 FR 9124, Nov. 26, 1958; 34 
FR 12213, July 24, 1969; 36 FR 11903, June 23, 1971; 52 FR 24981, July 
2, 1987; 57 FR 11574, Apr. 6, 1992; 60 FR 34090, June 30, 1995]



Sec. 292.4  Appearances.

    (a) An appearance shall be filed on the appropriate form by the 
attorney or representative appearing in each case. During Immigration 
Judge or Board proceedings, withdrawal and/or substitution of counsel is 
permitted only in accordance with Secs. 3.16 and 3.36 respectively. 
During proceedings before the Service, substitution may be permitted 
upon the written withdrawal of the attorney or representative of record, 
or upon notification of the new attorney or representative. When an 
appearance is made by a person acting in a representative capacity, his 
or her personal appearance or signature shall constitute a 
representation that under the provisions of this chapter he or she is 
authorized and qualified to represent. Further proof of authority to act 
in a representative capacity may be required. A notice of appearance 
entered in application or petition proceedings must be signed by the 
applicant or petitioner to authorize representation in order for the 
appearance to be recognized by the Service.
    (b) Availability of records. During the time a case is pending, and 
except as otherwise provided in Sec. 103.2(b) of this

[[Page 551]]

chapter, a party to a proceeding or his attorney or representative shall 
be permitted to examine the record of proceeding in a Service office. He 
may, in conformity with Sec. 103.10 of this chapter, obtain copies of 
Service records or information therefrom and copies of documents or 
transcripts of evidence furnished by him. Upon request, he may in 
addition, be loaned a copy of the testimony and exhibits contained in 
the record of proceeding upon giving his receipt for such copies and 
pledging that it will be surrendered upon final disposition of the case 
or upon demand. If extra copies of exhibits do not exist, they shall not 
be furnished free on loan; however, they shall be made available for 
copying or purchase of copies as provided in Sec. 103.10 of this 
chapter.

[23 FR 2673, Apr. 23, 1958, as amended at 32 FR 9633, July 4, 1967; 52 
FR 2941, Jan. 29, 1987; 59 FR 1466, Jan. 11, 1994]



Sec. 292.5  Service upon and action by attorney or representative of record.

    (a) Representative capacity. Whenever a person is required by any of 
the provisions of this chapter to give or be given notice; to serve or 
be served with any paper other than a warrant of arrest or a subpoena; 
to make a motion; to file or submit an application or other document; or 
to perform or waive the performance of any act, such notice, service, 
motion, filing, submission, performance, or waiver shall be given by or 
to, served by or upon, made by, or requested of the attorney or 
representative of record, or the person himself if unrepresented.
    (b) Right to representation. Whenever an examination is provided for 
in this chapter, the person involved shall have the right to be 
represented by an attorney or representative who shall be permitted to 
examine or cross-examine such person and witnesses, to introduce 
evidence, to make objections which shall be stated succinctly and 
entered on the record, and to submit briefs. Provided, that nothing in 
this paragraph shall be construed to provide any applicant for admission 
in either primary or secondary inspection the right to representation, 
unless the applicant for admission has become the focus of a criminal 
investigation and has been taken into custody.

[37 FR 11471, June 8, 1972 and 45 FR 81733, Dec. 12, 1980; 46 FR 2025, 
Jan. 8, 1981; 58 FR 49911, Sept. 24, 1993]



Sec. 292.6  Interpretation.

    Interpretations of this part will be made by the Board of 
Immigration Appeals, subject to the provisions of part 3 of this 
chapter.

[32 FR 9633, July 4, 1967]



PART 292a--LISTING OF FREE LEGAL SERVICES PROGRAMS--Table of Contents




Sec.
292a.1  Listing.
292a.2  Qualifications.
292a.3  Applications.
292a.4  Approval and denial of applications.
292a.5  Removal of an organization from list.

    Authority: Sec. 103; 8 U.S.C. 1103, interpret or apply secs. 242 and 
292 (8 U.S.C. 1252 and 1362).

    Source: 44 FR 4654, Jan. 23, 1979, unless otherwise noted.



Sec. 292a.1  Listing.

    District directors and officers-in-charge shall maintain a current 
list of organizations qualified under this part and organizations 
recognized under Sec. 292.2 of this chapter which have applied for 
listing under Sec. 292a.3 of this part, located within their respective 
jurisdictions, for the purpose of providing aliens in deportation or 
exclusion proceedings with a list of such organizations as prescribed in 
this chapter.

[45 FR 43681, June 30, 1980]



Sec. 292a.2  Qualifications.

    Except for an organization which is recognized under Sec. 292.2 of 
this chapter and is available to render legal services in deportation or 
exclusion proceedings, an organization which seeks to have its name 
appear on the Service lists must show that it is established in the 
United States, provides free legal services to indigent aliens, has on 
its staff attorneys as defined in Sec. 1.1(f) of this chapter or 
retains, at no expense to the alien, attorneys as defined in Sec. 1.1(f) 
of this chapter, who are available to render such free legal services

[[Page 552]]

by representation in deportation or exclusion proceedings. Bar 
associations which provide a referral service of attorneys who render 
pro bono assistance to aliens in deportation or exclusion proceedings 
may also qualify to have their names appear on the Service list. Listing 
of an organization qualified under this part is not equivalent to 
recognition under Sec. 292.2 of this chapter.

[44 FR 4654, Jan. 23, 1979, as amended at 45 FR 43681, June 30, 1980]



Sec. 292a.3  Applications.

    Applications by organizations to qualify for listing under this part 
shall be submitted to the district director or officer-in-charge having 
jurisdiction over each area in which free legal services are being 
provided by the organization. The application shall be supported by a 
declaration signed by an authorized officer of the organization that the 
organization complies with all the qualifications set out in 
Sec. 292a.2.



Sec. 292a.4  Approval and denial of applications.

    District Directors or officers-in-charge shall have the authority to 
grant or deny an application submitted by an organization under this 
part, within their respective jurisdiction. If an application is denied, 
the applicant shall be notified of the decision in writing giving the 
grounds of such denial. Denial must be based on the failure of the 
organization to meet the qualifications specified in Sec. 292a.2. The 
organization shall be advised of its right to appeal in accordance with 
Secs. 103.1 and 103.3 of this chapter.

[50 FR 2040, Jan. 15, 1985]



Sec. 292a.5  Removal of an organization from list.

    If the district director or officer-in-charge is satisfied that an 
organization listed under Sec. 292a.1 does not meet the qualifications 
as set out in Sec. 292a.2, he/she shall notify the organization 
concerned, in writing, of his/her intention to remove its name from the 
Service list. The organization may submit an answer within 30 days from 
the date the notice was served. If, after considering the answer by the 
organization, in the event an answer is submitted, the district director 
or officer-in-charge determines that the organization does not qualify 
under Sec. 292a.2, he/she shall remove its name from the list. Removal 
must be based on the failure of the organization to meet the 
qualifications specified in Sec. 292a.2 of this chapter. The 
organization shall be advised of its right to appeal in accordance with 
Secs. 103.1 and 103.3 of this chapter. If an organization applies to the 
district director or officer-in-charge to have its name removed from the 
Service list, that request shall be honored.

[49 FR 41015, Oct. 19, 1984]



PART 293--DEPOSIT OF AND INTEREST ON CASH RECEIVED TO SECURE IMMIGRATION BONDS--Table of Contents




Sec.
293.1  Computation of interest.
293.2  Interest rate.
293.3  Simple interest table.
293.4  Payment of interest.

    Authority: Sec. 103, 66 Stat. 173; 8 U.S.C. 1103. Interprets and 
applies sec. 293, 84 Stat. 413.

    Source: 36 FR 13677, July 23, 1971, unless otherwise noted.



Sec. 293.1  Computation of interest.

    Interest shall be computed from the date of deposit occurring after 
April 27, 1966, or from the date cash deposited in the postal savings 
system ceased to accrue interest, to and including the date of 
withdrawal or date of breach of the immigration bond, whichever occurs 
first. For purposes of this section, the date of deposit shall be the 
date shown on the Receipt of Immigration Officer for the cash received 
as security on an immigration bond. The date of withdrawal shall be the 
date upon which the interest is certified to the Treasury Department for 
payment. The date of breach shall be the date as of which the 
immigration bond was concluded to have been breached as shown on Form I-
323, Notice--Immigration Bond Breached. In counting the number of days 
for which interest shall be computed, the day on which the cash was 
deposited, or the day which cash deposited in the postal savings system 
ceased to accrue interest, shall not be

[[Page 553]]

counted; however, the day of withdrawal or the day of breach of the 
immigration bond shall be counted. Interest shall be computed at the 
rate determined by the Secretary of the Treasury and set forth in 
Sec. 293.2. The simple interest table in Sec. 293.3 shall be utilized in 
the computation of interest under this part.



Sec. 293.2  Interest rate.

    The Secretary of the Treasury has determined that effective from 
date of deposit occurring after April 27, 1966, the interest rate shall 
be 3 per centum per annum.



Sec. 293.3  Simple interest table.

    Following is a simple interest table from which computation of 
interest at 3 per centum per annum on a principal of $1,000 for a 
fractional 365-day year may be derived by addition only. The interest is 
stated in the form of a decimal fraction of $1.

                                                                        
                            Days                               Interest 
                                                                        
1..........................................................    0821 9178
2..........................................................    1643 8356
3..........................................................    2465 7534
4..........................................................    3287 6712
5..........................................................    4109 5890
6..........................................................    4931 5068
7..........................................................    5753 4246
8..........................................................    6575 3424
9..........................................................    7397 2602
                                                                        

    Example: 3% on $500 for 93 days:

                                                                        
                                                   Days                 
                                                                        
                                                      90     $7.3972 602
                                                       3      .2465 7534
                                                ------------------------
Interest on $1,000.............................       93    $7.6438 3554
Interest on $500...............................  .......           $3.82
                                                                        



Sec. 293.4  Payment of interest.

    Interest shall be paid only at time of disposition of principal cash 
when the immigration bond has been withdrawn or declared breached.



PART 299--IMMIGRATION FORMS--Table of Contents




Sec.
299.1  Prescribed forms.
299.2  Distribution of Service forms.
299.3  Forms available from the Superintendent of Documents.
299.4  Reproduction of Public Use Forms by public and private entities.
299.5  Display of control numbers.

    Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.



Sec. 299.1  Prescribed forms.

    The forms listed below are hereby prescribed for use in compliance 
with the provisions of subchapter A and B of this chapter. To the 
maximum extent feasible, the forms used should bear the edition date 
shown or a subsequent edition date.

----------------------------------------------------------------------------------------------------------------
               Form No.                              Edition date                             Title             
----------------------------------------------------------------------------------------------------------------
AR-11.................................  10-01-85..............................  Alien's Change of Address Card. 
CDC 4.222-1...........................  10-84.................................  Statement in Support of         
                                                                                 Application for Waiver of      
                                                                                 Excludability (Under section   
                                                                                 212(a)(1), Immigration and     
                                                                                 Nationality Act).              
CDC 42.10.............................  04-81.................................  Interstate Reciprocal           
                                                                                 Notification of Disease.       
CDC 75.17.............................  04-82.................................  Report on Alien with            
                                                                                 Tuberculosis not Considered    
                                                                                 Active.                        
CDC 75.18.............................  04-82.................................  Report on Alien with            
                                                                                 Tuberculosis Waiver.           
EOIR-40...............................  11-94.................................  Application for Suspension of   
                                                                                 Deportation.                   
FD-258................................  12-29-82..............................  Applicant Fingerprint Card.     
G-28..................................  10-25-79..............................  Notice of Entry of Appearance as
                                                                                 Attorney or Representative.    
G-56..................................  05-01-83..............................  General Call-in-Letter.         
G-296.................................  09-12-58..............................  Report of Violation.            
G-297.................................  05-28-70..............................  Order to Seize Aircraft.        
G-298.................................  09-12-58..............................  Public Notice of Seizure.       
G-325.................................  10-01-82..............................  Biographic Information.         
G-325A................................  10-01-82..............................  Biographic Information.         
G-325B................................  10-01-82..............................  Biographic Information.         
G-325C................................  10-01-82..............................  Biographic Information.         
G-639.................................  03-21-94..............................  Freedom of Information Act/     
                                                                                 Privacy Act Request.           
G-658.................................  11-01-75..............................  Record of Information Disclosure
                                                                                 (Privacy Act).                 
I-9...................................  11-21-91..............................  Employment Eligibility          
                                                                                 Verification.                  
I-17..................................  04-11-91..............................  Petition for Approval of School 
                                                                                 for Attendance by Nonimmigrant 
                                                                                 Students.                      
I-17A.................................  05-01-83..............................  Designated School Officials.    
I-17B.................................  05-01-83..............................  School System Attachment.       
I-20A-B/I-20ID........................  04-27-88..............................  Certificate of Eligibility for  
                                                                                 Nonimmigrant (F-1) Student     
                                                                                 Status--For Academic and       
                                                                                 Language Students.             
I-20M-N/I-20ID........................  05-03-90..............................  Certificate of Eligibility for  
                                                                                 Nonimmigrant (M-1) Student     
                                                                                 Status--For Vocational         
                                                                                 Students.                      

[[Page 554]]

                                                                                                                
I-68..................................  09-01-84..............................  Canadian Border Boat Landing    
                                                                                 Permit.                        
I-72..................................  04-01-83..............................  Form letter for Returning       
                                                                                 Deficient Applications/        
                                                                                 Petitions.                     
I-79..................................  05-15-70..............................  Notice of Intention to Fine     
                                                                                 Under Immigration and          
                                                                                 Nationality Act.               
I-90..................................  07-28-92..............................  Application to Replace Alien    
                                                                                 Registration Receipt Card.     
I-92..................................  06-01-73..............................  Aircraft/Vessel Report.         
I-94..................................  04-15-86..............................  Arrival-Departure Record.       
I-94W.................................  05-29-91..............................  Nonimmigrant Visa Waiver Arrival/
                                                                                 Departure Document.            
I-95AB................................  10-01-84..............................  Crewman's Landing Permit.       
I-102.................................  06-13-95..............................  Application for Replacement/    
                                                                                 Initial Nonimmigrant Arrival/  
                                                                                 Departure Document.            
I-104.................................  11-01-84..............................  Alien Address Report Card.      
I-122.................................  05-04-79..............................  Notice to Applicant for         
                                                                                 Admission Detained for Hearing 
                                                                                 before Immigration Judge.      
I-129.................................  12-11-91..............................  Petition for a Nonimmigrant     
                                                                                 Worker.                        
I-129F................................  04-11-91..............................  Petition for Alien Fiance(e).   
I-129S................................  12-20-91..............................  Nonimmigrant Petition Based on  
                                                                                 Blanket L Petition.            
I-130.................................  04-11-91..............................  Petition for Alien Relative.    
I-131.................................  12-10-91..............................  Application for Travel Document.
I-134.................................  12-01-84..............................  Affidavit of Support.           
I-138.................................  07-01-83..............................  Subpoena.                       
I-140.................................  12-02-91..............................  Immigrant Petition for Alien    
                                                                                 Worker.                        
I-141.................................  04-21-69..............................  Medical Certificate.            
I-147.................................  10-01-83..............................  Notice of Temporary Exclusion.  
I-171.................................  03-04-82..............................  Notice of Approval of Relative  
                                                                                 Immigrant Visa Petition.       
I-171C................................  07-01-83..............................  Notice of Approval or Extension 
                                                                                 of Nonimmigrant Visa Petition  
                                                                                 of H or L Alien.               
I-171F................................  10-14-76..............................  Notice of Approval of           
                                                                                 Nonimmigrant Visa Petition for 
                                                                                 Fiance or Fiancee.             
I-171H................................  12-15-82..............................  Notice of Favorable             
                                                                                 Determination Concerning       
                                                                                 Application for Advance        
                                                                                 Processing of Orphan Petition. 
I-175.................................  04-01-75..............................  Application for Nonresident     
                                                                                 Alien's Canadian Border        
                                                                                 Crossing Card.                 
I-180.................................  09-01-81..............................  Notice of Voidance of Form I-186
                                                                                 or Denial of Form I-190.       
I-181.................................  03-01-83..............................  Memorandum of Creation of Record
                                                                                 of Lawful Permanent Residence. 
I-185.................................  01-01-75..............................  Nonresident Alien Canadian      
                                                                                 Border Crossing Card.          
I-190.................................  03-01-75..............................  Application for Nonresident     
                                                                                 Alien Mexican Border Crossing  
                                                                                 Card.                          
I-191.................................  04-11-91..............................  Application for Advance         
                                                                                 Permission to Return to        
                                                                                 Unrelinquished Domicile.       
I-192.................................  04-11-91..............................  Application for Advance         
                                                                                 Permission to Enter as         
                                                                                 Nonimmigrant.                  
I-193.................................  04-11-91..............................  Application for Waiver of       
                                                                                 Passport and/or Visa.          
I-194.................................  02-01-82..............................  Notice of Approval of Advance   
                                                                                 Permission to Enter as         
                                                                                 Nonimmigrant (Pursuant to Sec. 
                                                                                 212(d)(3) (A) or (B) of the    
                                                                                 Act).                          
I-202.................................  11-15-79..............................  Authorization for Removal.      
I-205.................................  11-29-79..............................  Warrant of Deportation.         
I-212.................................  04-11-91..............................  Application for Permission to   
                                                                                 Reapply for Admission Into the 
                                                                                 United States After Deportation
                                                                                 or Removal.                    
I-221.................................  06-12-92..............................  Order to Show Cause and Notice  
                                                                                 of Hearing.                    
I-243.................................  09-27-75..............................  Application for Removal.        
I-246.................................  01-15-86..............................  Application for Stay of         
                                                                                 Deportation.                   
I-247.................................  03-01-83..............................  Immigration Detainer--Notice of 
                                                                                 Action.                        
I-259.................................  10-01-69..............................  Notice to Detain, Deport,       
                                                                                 Remove, or Present Aliens.     
I-259C................................  03-28-91..............................  Notice to Carrier--             
                                                                                 Acknowledgement by Carrier of  
                                                                                 Arrival of Possible Excludable 
                                                                                 Alien.                         
I-260.................................  06-01-73..............................  Notice to Take Testimony of     
                                                                                 Witness.                       
I-284.................................  12-20-66..............................  Notice to Transportation Line   
                                                                                 Regarding Deportation and      
                                                                                 Detention Expenses of Detained 
                                                                                 Alien.                         
I-286.................................  06-12-92..............................  Notification to Alien of        
                                                                                 Conditions of Release of       
                                                                                 Detention.                     
I-287.................................  04-10-72..............................  Special Care and Attention for  
                                                                                 Alien.                         
I-288.................................  02-20-62..............................  Notice to Transportation Line   
                                                                                 Regarding Deportation Expenses 
                                                                                 of Alien Completely Ready for  
                                                                                 Deportation.                   
I-290A................................  10-31-79..............................  Notice of Appeal to the Board of
                                                                                 Immigration Appeals.           
I-290B................................  01-04-91..............................  Notice of Appeal to the         
                                                                                 Administrative Appeals Unit    
                                                                                 (AAU).                         
I-290C................................  01-04-91..............................  Notice of Certification.        
I-291.................................  11-01-83..............................  Decision on Application for     
                                                                                 Status as Permanent Resident.  
I-292.................................  10-26-90..............................  Decision.                       
I-296.................................  12-15-82..............................  Notice to Alien Ordered Excluded
                                                                                 by Immigration Judge.          
I-305.................................  05-01-76..............................  Receipt of Immigration Officer--
                                                                                 United States Bond or Notes, or
                                                                                 Cash, Accepted as Security on  
                                                                                 Immigration Bond.              
I-310.................................  04-16-62..............................  Bond for Payment of Sums and    
                                                                                 Fines Imposed under Immigration
                                                                                 and Nationality Act (Term or   
                                                                                 Single Entry).                 
I-312.................................  04-15-76..............................  Designation of Attorney in Fact.

[[Page 555]]

                                                                                                                
I-320B................................  09-01-75..............................  Agreement Between Employer of   
                                                                                 Alien Labor and the United     
                                                                                 States.                        
I-323.................................  03-15-77..............................  Notice--Immigration Bond        
                                                                                 Breached.                      
I-327.................................  02-10-93..............................  Permit to Reenter the United    
                                                                                 States.                        
I-351.................................  06-01-74..............................  Bond Riders.                    
I-352.................................  06-01-84..............................  Immigration Bond.               
I-356.................................  09-27-75..............................  Request for Cancellation of     
                                                                                 Public Charge Bond.            
I-360.................................  09-19-91..............................  Petition for Amerasian,         
                                                                                 Widow(er), or Special          
                                                                                 Immigrant.                     
I-361.................................  07-01-84..............................  Affidavit of Financial Support  
                                                                                 and Intent to Petition for     
                                                                                 Legal Custody for Pub. L. 97-  
                                                                                 359 Amerasian.                 
I-365.................................  07-01-84..............................  Notice of Completion of         
                                                                                 Preliminary Processing of      
                                                                                 Petition for Public Law 97-359 
                                                                                 Amerasian.                     
I-391.................................  03-14-77..............................  Notice--Immigration Bond        
                                                                                 Cancelled.                     
I-408.................................  12-12-91..............................  Application to Pay Off or       
                                                                                 Discharge Alien Crewman.       
I-410.................................  05-01-83..............................  Receipt for Crew List.          
I-418.................................  07-01-74..............................  Passenger List-Crew List.       
I-420.................................  06-11-92..............................  Agreement (Land-Border) Between 
                                                                                 Transportation Line and United 
                                                                                 States.                        
I-421.................................  06-29-58..............................  Agreement (Overseas) Between    
                                                                                 Transportation Line and United 
                                                                                 States.                        
I-425.................................  03-24-77..............................  Agreement (For Preinspection    
                                                                                 at____) Between Transportation 
                                                                                 Line and United States.        
I-426.................................  05-01-65..............................  Immediate and Continuous Transit
                                                                                 Agreement Between a            
                                                                                 Transportation Line and United 
                                                                                 States of America (special     
                                                                                 direct transit procedure).     
I-444.................................  04-01-83..............................  Mexican Border Visitors Permit. 
I-485.................................  09-09-92..............................  Application to Register         
                                                                                 Permanent Residence or Adjust  
                                                                                 Status.                        
I-508.................................  10-01-80..............................  Waiver of Rights, Privileges,   
                                                                                 Exemptions, and Immunities.    
I-508F................................  06-01-70..............................  Waiver of Rights, Privileges,   
                                                                                 Exemptions, and Immunities     
                                                                                 (Under section 247(b) of the   
                                                                                 Act and under the Convention   
                                                                                 between the United States of   
                                                                                 America and the French Republic
                                                                                 with respect to Taxes on Income
                                                                                 and Property).                 
I-509.................................  05-31-83..............................  Notice of Proposed Change of    
                                                                                 Status.                        
I-510.................................  11-15-82..............................  Guarantee of Payment.           
I-512.................................  10-01-82..............................  Authorization for Parole of an  
                                                                                 Alien into the United States.  
I-515.................................  08-02-83..............................  Notice to Student or Exchange   
                                                                                 Visitor.                       
I-516.................................  08-01-83..............................  Notice of Approval or           
                                                                                 Continuation of School         
                                                                                 Approval.                      
I-517.................................  08-01-83..............................  Review of School Approval.      
I-526.................................  12-02-91..............................  Immigrant Petition by Alien     
                                                                                 Entrepreneur.                  
I-538.................................  10-29-91..............................  Certification by Designated     
                                                                                 School Official.               
I-539.................................  12-02-91..............................  Application to Extend/Change    
                                                                                 Nonimmigrant Status.           
I-541.................................  02-06-89..............................  Order of Denial of Application  
                                                                                 for Extension of Stay or       
                                                                                 Student Employment or Student  
                                                                                 Transfer.                      
I-543.................................  12-01-83..............................  Order of Denial of Application  
                                                                                 for Change of Nonimmigrant     
                                                                                 Status.                        
I-551.................................  01-31-77..............................  Alien Registration Receipt Card.
I-566.................................  02-11-91..............................  Inter-Agency Record of          
                                                                                 Individual Requesting Change/  
                                                                                 Adjustment to, or from, A or G 
                                                                                 Status; or Requesting A or G   
                                                                                 Dependent Employment           
                                                                                 Authorization.                 
I-571.................................  02-10-93..............................  Refugee Travel Document.        
I-586.................................  04-30-77..............................  Nonresident Alien Border        
                                                                                 Crossing Card.                 
I-589.................................  11-16-94..............................  Application for Asylum and for  
                                                                                 Withholding of Deportation.    
I-590.................................  11-13-92..............................  Registration for Classification 
                                                                                 as Refugee.                    
I-594.................................  11-01-83..............................  Notice to Appear for Adjustment 
                                                                                 of Status.                     
I-600.................................  04-11-91..............................  Petition to Classify Orphan as  
                                                                                 an Immediate Relative.         
I-600A................................  04-11-91..............................  Application for Advance         
                                                                                 Processing of Orphan Petition. 
I-601.................................  04-11-91..............................  Application for Waiver of       
                                                                                 Grounds of Excludability.      
I-602.................................  10-01-85..............................  Application by Refugee for      
                                                                                 Waiver on Grounds of           
                                                                                 Excludability.                 
I-607.................................  02-01-72..............................  Order Re Waiver of Excludability
                                                                                 Pursuant to Section 212(h), (i)
                                                                                 and Permission to Reapply.     
I-612.................................  04-11-91..............................  Application for Waiver of the   
                                                                                 Foreign Residence Requirement  
                                                                                 of section 212(e) of the       
                                                                                 Immigration and Nationality    
                                                                                 Act, as amended.               
I-613.................................  03-30-83..............................  Request for United States       
                                                                                 Information Agency             
                                                                                 Recommendation section 212(e)  
                                                                                 Waiver.                        
I-644.................................  11-01-82..............................  Supplementary Statement for     
                                                                                 Graduate Medical Trainees.     
I-688.................................  01-01-89..............................  Temporary Resident Card.        
I-688A................................  05-87.................................  Employment Authorization Card.  
I-688B................................  08-07-93..............................  Employment Authorization Card.  
I-690.................................  02-14-87..............................  Application for Waiver of       
                                                                                 Grounds of Excludability under 
                                                                                 sections 245A or 210 of the    
                                                                                 Immigration and Nationality    
                                                                                 Act.                           
I-692.................................  06-07-89..............................  Notice of Denial, Temporary     
                                                                                 Resident.                      
I-693.................................  09-01-87..............................  Medical Examination of Aliens   
                                                                                 Seeking Adjustment of Status.  
I-694.................................  11-09-88..............................  Notice of Appeal of Decision    
                                                                                 under section 210 or 245A of   
                                                                                 the Immigration and Nationality
                                                                                 Act.                           

[[Page 556]]

                                                                                                                
I-695.................................  02-24-87..............................  Application for Replacement of  
                                                                                 Form I-688A, Employment        
                                                                                 Authorization Card, or Form I- 
                                                                                 688, Temporary Residence Card  
                                                                                 (Under Pub. L. 99-603).        
I-697A................................  01-26-90..............................  Change of Address Card for      
                                                                                 Legalization, Special          
                                                                                 Agricultural Workers (SAW), and
                                                                                 Replenishment Agricultural     
                                                                                 Workers (RAW).                 
I-698.................................  11-09-88..............................  Application to Adjust Status    
                                                                                 from Temporary to Permanent    
                                                                                 Resident (Under section 245A of
                                                                                 Pub. L. 99-603).               
I-699.................................  10-20-88..............................  Certificate of Satisfactory     
                                                                                 Pursuit.                       
I-730.................................  11-01-85..............................  Refugee/Asylee Relative         
                                                                                 Petition.                      
I-736.................................  09-08-88..............................  Guam Visa Waiver Information.   
I-751.................................  12-04-91..............................  Petition to Remove Conditions on
                                                                                 Residence.                     
I-760.................................  07-22-87..............................  Agreement Between Transportation
                                                                                 Line, Operating Between Foreign
                                                                                 Territory and Guam, and United 
                                                                                 States.                        
I-762.................................  11-30-87..............................  Citation Pursuant to Section    
                                                                                 274A of the Immigration and    
                                                                                 Nationality Act.               
I-765.................................  04-25-95..............................  Application for Employment      
                                                                                 Authorization.                 
I-766.................................  01-03-96..............................  Employment Authorization        
                                                                                 Document.                      
I-775.................................  05-12-94..............................  Visa Waiver Pilot Program       
                                                                                 Agreement.                     
I-777.................................  06-16-88..............................  Application for Issuance or     
                                                                                 Replacement of Northern Mariana
                                                                                 Card.                          
I-791.................................  05-26-88..............................  Visa Waiver Pilot Program       
                                                                                 Information Form.              
I-817.................................  09-10-91..............................  Application for Voluntary       
                                                                                 Departure under the Family     
                                                                                 Unity Program.                 
I-821.................................  05-22-91..............................  Application for Temporary       
                                                                                 Protected Status.              
I-823.................................  09-10-96..............................  Application--Alternative        
                                                                                 Inspection Services.           
I-824.................................  10-01-91..............................  Application for Action on an    
                                                                                 Approved Application or        
                                                                                 Petition.                      
I-850.................................  05-21-96..............................  Application for Certification   
                                                                                 for Designated Fingerprint     
                                                                                 Services.                      
I-850A................................  05-21-96..............................  Attestation by Designated       
                                                                                 Fingerprinting Service         
                                                                                 Certified to Take Fingerprints.
I-851.................................  04-06-95..............................  Notice of Intent to Issue Final 
                                                                                 Administrative Deportation     
                                                                                 Order.                         
I-851A................................  04-06-95..............................  Final Administrative Deportation
                                                                                 Order.                         
I-854.................................  06-20-95..............................  Inter-Agency Alien Witness and  
                                                                                 Informant Record.              
IAP-66................................  10-78.................................  Certificate of Eligiblity for   
                                                                                 Exchange Visitor Status.       
ICAO..................................  ......................................  International Civil Aviation    
                                                                                 Organization's General         
                                                                                 Declaration.                   
MA 7-50...............................  04-70.................................  Application for Alien Employment
                                                                                 Certification. (Part I--       
                                                                                 Statement of Qualifications of 
                                                                                 Aliens MA 7-50A). (Part II--Job
                                                                                 Offer for Alien Employment MA 7-
                                                                                 50B).                          
OF-157................................  02-88.................................  Medical Examination of          
                                                                                 Applicants for United States   
                                                                                 Visas.                         
7507..................................  03-69.................................  Bureau of Customs' General      
                                                                                 Declaration.                   
----------------------------------------------------------------------------------------------------------------


[59 FR 25556, May 17, 1994; 59 FR 35978, July 14, 1994, as amended at 60 
FR 9774, Feb. 22, 1995; 60 FR 37328, July 20, 1995; 60 FR 43962, Aug. 
24, 1995; 60 FR 44271, Aug. 25, 1995; 60 FR 50390, Sept. 29, 1995; 61 FR 
28013, June 4, 1996; 61 FR 46537, Sept. 4, 1996; 61 FR 47800, Sept. 11, 
1996; 61 FR 53833, Oct. 16, 1996]



Sec. 299.2  Distribution of Service forms.

    The distribution of official Immigration and Naturalization 
applications, petitions, and related forms is as follows:
    (a) Any officer or employee of the Service may issue official 
application or petition and related forms to the person for whose use 
the form is intended or to a person identified as a representative of 
the intended user in the quantity required for filing the application or 
petition and related forms.
    (b) A small quantity, twenty-five (25) copies, may be issued to 
organizations an practitioners who make written request to the Regional 
Commissioner for the geographic location of the requester if such forms 
have not been made available for purchase from the Superintendent of 
Documents, Washington, DC 20402.
    (c) Voluntary agencies (VOLAGS) participating in the Outreach 
Program of the Service who make written request to the Regional 
Commissioner for the geographic location of the requester may be 
furnished Service forms gratis in the volumes requested.

[43 FR 14304, Apr. 5, 1978, as amended at 45 FR 6777, Jan. 30, 1980; 45 
FR 21611, Apr. 2, 1980]



Sec. 299.3  Forms available from Superintendent of Documents.

    The Immigration and Naturalization Service forms listed in this 
section may be obtained, upon prepayment,

[[Page 557]]

from the Superintendent of Documents, who is authorized to print these 
forms for sale to the public. Prices are set by the Superintendent of 
Documents, Government Printing Office, and are subject to change without 
notice. A small supply of these forms shall be set aside by immigration 
officers for free distribution and official use.

------------------------------------------------------------------------
                                            GPO Stock No. (S/  Price per
                 Form No.                           N)          100/pad 
------------------------------------------------------------------------
G-28......................................    027-002-00218-1      14.00
G-325A....................................    027-002-00277-6      21.00
G-325B....................................    027-002-00349-7      13.00
I-9.......................................    027-002-00417-5      13.00
I-20AB/I-20ID.............................    027-002-00373-0      25.00
I-20MN....................................    027-002-00403-5      26.00
I-90......................................    027-002-00433-7      21.00
I-92......................................    027-002-00124-9       5.00
I-94 (English)............................    027-002-00318-7      11.00
I-95AB....................................    027-002-00311-0      27.00
I-129.....................................    027-002-00436-1  \1\ 31.00
I-129F....................................    027-002-00389-6      26.00
I-129S....................................    027-002-00425-6      17.00
I-130.....................................    027-002-00432-9      32.00
I-131.....................................    027-002-00424-8      11.00
I-134.....................................    027-002-00315-2      25.00
I-140.....................................    027-002-00429-9      11.00
I-408.....................................    027-002-00431-1      14.00
I-418.....................................    027-002-00320-9      11.00
I-485.....................................    027-002-00434-5      37.00
I-538.....................................    027-002-00435-3      14.00
I-539.....................................    027-002-00420-5      14.00
I-693.....................................    027-002-00355-1      43.00
I-698.....................................    027-002-00375-6      18.00
I-751.....................................    027-002-00422-1      15.00
I-765.....................................    027-002-00441-8      49.00
I-817.....................................    027-002-00415-9      36.00
I-824.....................................    027-002-00423-0      10.00
N-400.....................................    027-002-00419-1      17.00
------------------------------------------------------------------------
\1\ Per 50.                                                             


[59 FR 25558, May 17, 1994, as amended at 61 FR 47800, Sept. 11, 1996]



Sec. 299.4  Reproduction of Public Use Forms by public and private entities.

    (a) Duplication requirements. All forms required for applying for a 
specific benefit in compliance with the immigration and naturalization 
regulations, including those which have been made available for purchase 
by the Superintendent of Documents as listed in Sec. 299.3, may be 
printed or otherwise reproduced. Such reproduction must be by an 
appropriate duplicating process and at the expense of the public or 
private entity. Forms printed or reproduced by public or private 
entities shall be:
    (1) In black ink or dye that will not fade or ``feather'' within 20 
years, and
    (2) Conform to the officially printed forms currently in use with 
respect to:
    (i) Size,
    (ii) Wording and language,
    (iii) Arrangement, style and size of type, and
    (iv) Paper specifications.
    (b) Requirements for electronic generation. Public or private 
entities may electronically generate forms required for applying for a 
specific benefit, in compliance with the immigration and naturalization 
regulations, at their own expense. This includes forms that have been 
made available for purchase by the Superintendent of Documents, as 
listed in Sec. 299.3 provided that each form satisfies the following 
requirements:
    (1) An electronic reproduction must be complete, containing all 
questions which appear on the official form. The wording and punctuation 
of all data elements and identifying information must match exactly. No 
data elements may be added or deleted. The sequence and format for each 
item on the form must be replicated to mirror the authorized agency 
form. Each item must be printed on the same page in the same location. 
Likewise, multiple-part sets may be printed as single sheets provided 
that the destination of the carbon copy is clearly identified on the 
bottom of the form. Private entities must reproduce forms on the same 
colored paper that is used on the official form. In the case of the Form 
I-20 A-B/I-20ID, Certificate of Eligibility for Nonimmigrant (F-1) 
Student Status--For Academic and Language Students, private entities may 
generate this form in single-page format rather than double-sided 
format, provided that the student's name, school, and date of birth is 
printed in a shaded box on the top of page 4 of the form, using the same 
type size and font style as the body of the form.
    (2) The final form must match the design, format, and dimensions of 
the official form. All blocks must remain the same size and lines must 
remain the same length. No variations will be permissible.
    (3) The final form must be approved for use by the Director, Policy 
Directives and Instructions Branch. The form should be mailed to the 
address

[[Page 558]]

listed in paragraph (e) of this section for approval.
    (c) The accuracy of electronically generated forms is the 
responsibility of the private entities. Changes to existing forms, as 
announced by the Service, must be promptly incorporated into the private 
entity software program application. Deviations from the aforementioned 
standards may result in the return or denial of the applicant's 
application/petition for a particular benefit.
    (d) Electronic printers that provide for near-letter-quality 
documents should be used to generate electronic forms. Dot matrix 
printers that are only capable of producing draft quality documents 
should not be used for form generation, but may be used for the entry of 
data in a preprinted form where appropriate.
    (e) Any form with poor print quality or other defect which renders 
it illegible, difficult to read, or displays added or missing data 
elements, will be rejected by the Service. Any problems regarding the 
acceptability of a specific electronic version of a particular Service 
form may be brought to the attention of the Director, Policy Directives 
and Instructions Branch, 425 ``I'' Street, NW., Room 5307, Washington, 
DC 20536, telephone number (202) 514-3048.

[59 FR 25558, May 17, 1994, as amended at 61 FR 47801, Sept. 11, 1996]



Sec. 299.5  Display of control numbers.

    The following listing includes the Immigration and Naturalization 
Service public use forms and reports which are cited for use throughout 
Title 8 of the Code of Federal Regulations, Chapter I. The information 
collection requirements contained in this title have been approved by 
the Office of Management and Budget (OMB) under the provisions of the 
Paperwork Reduction Act. The form numbers, titles, and OMB control 
numbers read as follows:

------------------------------------------------------------------------
                                                             Currently  
         INS form No.                INS form title        assigned OMB 
                                                            control No. 
------------------------------------------------------------------------
AR-11.........................  Alien's Change of              1115-0003
                                 Address Card.                          
G-79A.........................  Data Relating to               1115-0044
                                 Beneficiary of Private                 
                                 Bill.                                  
G-146.........................  Nonimmigrant Checkout          1115-0075
                                 Letter.                                
G-325.........................  Biographic Information..       1115-0066
G-639.........................  Freedom of Information/        1115-0087
                                 Privacy Act Request.                   
G-845.........................  Document Verification          1115-0122
                                 Request.                               
G-845S........................  Document Verification          1115-0122
                                 Request (SAVE).                        
G-845T........................  Document Verification          1115-0122
                                 Request (TVS).                         
G-884.........................  Request for the Return         1115-0162
                                 of Original Document(s).               
G-942.........................  Applicant Survey........       1115-0188
I-9...........................  Employment Eligibility         1115-0136
                                 Verification.                          
I-17..........................  Petition for Approval of       1115-0070
                                 School for Attendance                  
                                 by Nonimmigrant                        
                                 Students.                              
I-20A-B/I-20ID................  Certificate of                 1115-0051
                                 Eligibility of                         
                                 Nonimmigrant (F-1)                     
                                 Student Status--For                    
                                 Academic and Language                  
                                 Students.                              
I-20M-N/I-20ID................  Verification of                1115-0051
                                 Eligibility for                        
                                 Nonimmigrant (M-1)                     
                                 Student Status for                     
                                 Vocational Students.                   
I-43..........................  Baggage and Personal           1115-0063
                                 Effects of Detained                    
                                 Alien.                                 
I-68..........................  Canadian Border Boat           1115-0065
                                 Landing Permit.                        
I-90..........................  Application to Replace         1115-0004
                                 Alien Registration Card.               
I-92..........................  Aircraft/Vessel Report..       1115-0078
I-94..........................  Arrival-Depature Report.       1115-0077
I-94T.........................  Arrival-Departure Record       1115-0139
                                 (Transit without VISA).                
I-94W.........................  Nonimmigrant Visa Waiver       1115-0148
                                 Arrival--Departure                     
                                 Document.                              
I-95AB........................  Crewman's Landing Permit       1115-0040
I-102.........................  Application for                1115-0079
                                 Replacement/Initial                    
                                 Nonimmigrant Arrival--                 
                                 Departure Document.                    
I-104.........................  Alien Address Report           1115-0115
                                 Card.                                  
I-129.........................  Petition for a                 1115-0168
                                 Nonimmigrant Worker.                   
I-129F........................  Petition for Alien             1115-0071
                                 Fiance(e).                             
I-129S........................  Nonimmigrant Petition          1115-0128
                                 Based on Blanket L                     
                                 Petition.                              
I-130.........................  Petition for Alien             1115-0054
                                 Relative.                              
I-131.........................  Application for Travel         1115-0005
                                 Document.                              
I-134.........................  Affidavit of Support....       1115-0062
I-140.........................  Immigrant Petition for         1115-0061
                                 Alien Worker.                          
I-175.........................  Application for                1115-0047
                                 Nonresident Alien's                    
                                 Canadian Border                        
                                 Crossing Card.                         
I-190.........................  Application for                1115-0019
                                 Nonresident Alien's                    
                                 Mexican Border Crossing                
                                 Card.                                  
I-191.........................  Application for Advance        1115-0032
                                 Permission to Return to                
                                 Unrelinquished Domicile.               
I-192.........................  Application for Advance        1115-0028
                                 Permission to Enter as                 
                                 Nonimmigrant.                          
I-193.........................  Application for Waiver         1115-0042
                                 of Passport and/or Visa.               

[[Page 559]]

                                                                        
I-212.........................  Application for                1115-0099
                                 Permission to Reapply                  
                                 for Admission into the                 
                                 U.S. After Deportation                 
                                 or Removal.                            
I-243.........................  Application for Removal.       1115-0020
I-246.........................  Application for Stay of        1115-0055
                                 Deportation.                           
I-259C........................  Notice to Carrier--            1115-0172
                                 Acknowledgement by                     
                                 Carrier of Arrival of                  
                                 Possible Excludable                    
                                 Alien.                                 
I-356.........................  Request for Cancellation       1115-0046
                                 of Public Charge Bond.                 
I-360.........................  Petition for Amerasian,        1115-0117
                                 Widow(er), or Special                  
                                 Immigrant.                             
I-361.........................  Affidavit of Financial         1115-0118
                                 Support and Intent to                  
                                 Petition for Legal                     
                                 Custody for Amerasian.                 
I-363.........................  Request to Enforce             1115-0116
                                 Affidavit of Financial                 
                                 Support and Intent to                  
                                 Petition for Legal                     
                                 Custody for Amerasian.                 
I-408.........................  Application to Pay Off         1115-0073
                                 or Discharge Alien                     
                                 Crewman.                               
I-418.........................  Passenger List-Crew List       1115-0083
I-485.........................  Application to Register        1115-0053
                                 Permanent Resident or                  
                                 Adjust Status.                         
I-508.........................  Waiver of Rights,              1115-0037
                                 Privileges, Exemptions,                
                                 and Immunities.                        
I-510.........................  Guarantee of Payment....       1115-0029
I-515.........................  Notice to Student or           1115-0068
                                 Exchange Visitor.                      
I-526.........................  Immigrant Petition by          1115-0081
                                 Alien Entrepreneur.                    
I-538.........................  Certification by               1115-0060
                                 Designated School                      
                                 Official.                              
I-539.........................  Application to Extend/         1115-0093
                                 Change Nonimmigrant                    
                                 Status.                                
I-566.........................  Inter-Agency Record of         1115-0090
                                 Individual Requesting                  
                                 Change/Adjustment to or                
                                 from, A or G Status, or                
                                 Requesting A and G                     
                                 Dependent Employment                   
                                 Authorization.                         
I-589.........................  Application for Asylum         1115-0086
                                 and for Withholding of                 
                                 Deportation.                           
I-590.........................  Registration for               1115-0057
                                 Classification as                      
                                 Refugee (section 207,                  
                                 I&N Act).                              
I-600.........................  Petition to Classify           1115-0049
                                 Orphan as an Immediate                 
                                 Relative.                              
I-600A........................  Application for Advance        1115-0049
                                 Processing or Orphan                   
                                 Petition.                              
I-601.........................  Application for Waiver         1115-0048
                                 of Grounds of                          
                                 Excludability.                         
I-602.........................  Application by Refugee         1115-0098
                                 for Waiver of Grounds                  
                                 of Excludability.                      
I-612.........................  Application for Waiver         1115-0059
                                 of the Foreign                         
                                 Residence Requirement.                 
I-643.........................  Health and Human               1115-0104
                                 Services Statistical                   
                                 Data for Refugee Asylee                
                                 Adjusting Status.                      
I-644.........................  Supplementary Statement        1115-0108
                                 for Graduate Medical                   
                                 Trainees.                              
I-690.........................  Application for Waiver         1115-0132
                                 of Grounds of                          
                                 Excludability.                         
I-693.........................  Medical Examination of         1115-0134
                                 Aliens Seeking                         
                                 Adjustment of Status.                  
I-694.........................  Notice of Appeal of            1115-0135
                                 Decision.                              
I-695.........................  Application of Temporary       1115-0129
                                 Replacement Card.                      
I-697A........................  Changes of Address Card.       1115-0130
I-698.........................  Application to Adjust          1115-0155
                                 Status from Temporary                  
                                 to Permanent Resident                  
                                 (Under Section 245A of                 
                                 Pub. L. 99-603).                       
I-699.........................  Certificate of                 1115-0154
                                 Satisfactory Pursuit.                  
I-730.........................  Refugee/Asylum Relative        1115-0121
                                 Petition.                              
I-736.........................  Guam Visa Waiver               1115-0141
                                 Information.                           
I-751.........................  Petition to Remove             1115-0145
                                 Conditions on Residence.               
I-760.........................  Guam Visa Waiver               1115-0140
                                 Agreement.                             
I-765.........................  Application for                1115-0163
                                 Employment                             
                                 Authorization.                         
I-775.........................  Visa Waiver Pilot              1115-0149
                                 Program Agreement.                     
I-777.........................  Application for Issuance       1115-0151
                                 or Replacement of                      
                                 Northern Mariana Card.                 
I-817.........................  Application for                1115-0166
                                 Voluntary Departure                    
                                 under the Family Unity                 
                                 Program.                               
I-821.........................  Application for                1115-0170
                                 Temporary Protected                    
                                 Status.                                
I-823.........................  Application--Alternative       1115-0174
                                 Inspection Services.                   
I-824.........................  Application for Action         1115-0176
                                 on an Approved                         
                                 Application or Petition.               
I-829.........................  Petition by Entrepreneur       1115-0190
                                 to Remove Conditions.                  
I-833.........................  INSPASS Application.....       1115-0179
I-847.........................  Report of Complaint.....       1115-0191
I-850.........................  Application for                1115-0193
                                 Certification for                      
                                 Designated                             
                                 Fingerprinting Services.               
I-850A........................  Attestation by                 1115-0194
                                 Designated                             
                                 Fingerprinting Service                 
                                 Certified to Take                      
                                 Fingerprints.                          
I-854.........................  Inter-Agency Alien             1115-0196
                                 Witness and Informant                  
                                 Record.                                
I-855.........................  ABC Change of Address          1115-0197
                                 Form.                                  
M-398.........................  Systematic Alien               1115-0185
                                 Verification for                       
                                 Entitlements User                      
                                 Satisfaction Survey.                   
N-4...........................  Monthly Report--               1115-0189
                                 Naturalization Papers                  
                                 Forwarded.                             
N-14A.........................  Arrival Information.....       1115-0082
N-25..........................  Request for Verification       1115-0007
                                 of Naturalization.                     
N-300.........................  Application to File            1115-0008
                                 Declaration of                         
                                 Intention.                             
N-336.........................  Request for Hearing on a       1115-0180
                                 Decision in                            
                                 Naturalization                         
                                 Procedures under                       
                                 Section 336 of the Act.                
N-400.........................  Application for                1115-0009
                                 Naturalization.                        
N-422.........................  Form letter re:                1115-0011
                                 Information from                       
                                 Selective Service File.                
N-426.........................  Request for                    1115-0022
                                 Certification of                       
                                 Military or Naval                      
                                 Service.                               
N-445.........................  Notice of Naturalization       1115-0052
                                 Oath Ceremony.                         
N-455.........................  Application for Transfer       1115-0035
                                 of Petition for                        
                                 Naturalization.                        
N-470.........................  Application to Preserve        1115-0014
                                 Residence for                          
                                 Naturalization Purpose.                

[[Page 560]]

                                                                        
N-565.........................  Application for                1115-0015
                                 Replacement                            
                                 Naturalization/                        
                                 Citizenship Document.                  
N-600.........................  Application for                1115-0018
                                 Certification of                       
                                 Citizenship.                           
N-643.........................  Application for                1115-0152
                                 Certificate of                         
                                 Citizenship in Behalf                  
                                 of an Adopted Child.                   
N-644.........................  Application for                1115-0173
                                 Posthumous Citizenship.                
                                User Fee................       1115-0142
                                Judicial Recommendations       1115-0158
                                 Against Deportation,                   
                                 Controlled Substance                   
                                 Violations.                            
                                Dedicated Commuter Lane        1115-0181
                                 Usage Survey.                          
                                Guidelines on Producing        1115-0182
                                 Master Exhibits for                    
                                 Asylum Application.                    
                                The Immigration and            1115-0183
                                 Naturalization Service                 
                                 is Soliciting Proposals                
                                 from Interested Parties                
                                 to Participate in Pilot                
                                 Immigration Program                    
                                 (Notice).                              
                                Emergency Federal Law          1115-0184
                                 Enforcement Assistance.                
                                Nonimmigrant Classes;          1115-0187
                                 NATO-1, 2, 3, 4, 5, 6,                 
                                 and 7; Control of                      
                                 Employment of Aliens.                  
                                Telephone Verification         1115-0192
                                 System (TVS) Pilot                     
                                 Phase II.                              
                                Generic Clearance of           1115-0195
                                 Customer Service                       
                                 Surveys.                               
------------------------------------------------------------------------

[59 FR 25559, May 17, 1994; 59 FR 35978, July 14, 1994, as amended at 59 
FR 62303, Dec. 5, 1994; 60 FR 44271, Aug. 25, 1995; 60 FR 50390, Sept. 
29, 1995; 61 FR 28013, June 4, 1996; 61 FR 47801, Sept. 11, 1996; 61 FR 
53833, Oct. 16, 1996]

[[Page 561]]



                  SUBCHAPTER C--NATIONALITY REGULATIONS





PART 301--NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH--Table of Contents




    Authority: 8 U.S.C. 1103, 1401; 8 CFR part 2.
    Source: 61 FR 35112, July 5, 1996; 61 FR 43948, Aug. 27, 1996, 
unless otherwise noted.



Sec. 301.1  Procedures.

    (a) Application. (1) A person residing in the United States who 
desires to become a United States citizen pursuant to section 301(h) of 
the Act shall submit an application on Form N-600, Application for 
Certificate of Citizenship, as provided in 8 CFR part 341. Such 
application shall be filed with the Service office having jurisdiction 
over the applicant's place of residence, or with such other Service 
office as the Commissioner may designate. It must be accompanied by the 
fee specified in 8 CFR 103.7(b)(1). The application also must be 
accompanied by supporting documentary and other evidence essential to 
establish the claimed citizenship, such as birth, adoption, marriage, 
death, and divorce certificates. The applicant will be notified in 
writing when and where to appear before a Service officer for 
examination on his or her application.
    (2) A person residing outside of the United States who desires to 
become a United States citizen under subsection 301(h) of the Act shall 
make his or her claim at a United States embassy or consulate, in 
accordance with such regulations as may be prescribed by the Secretary 
of State.
    (b) Oath of allegiance; issuance of certificate. (1) Upon 
determination by the district director that a person is eligible for 
United States citizenship pursuant to section 301(h) of the Act, the 
person shall take the oath of allegiance, prescribed in 8 CFR part 337, 
before an officer of the Service designated to administer the oath of 
allegiance within the United States, and a certificate of citizenship 
shall be issued. The person shall be considered a United States citizen 
as of the date of his or her birth.
    (2) A person residing outside of the United States who is eligible 
for United States citizenship under section 301(h) of the Act shall make 
his or her claim abroad before any diplomatic or consular officer of the 
United States, in accordance with such regulations as may be prescribed 
by the Secretary of State. The person shall be considered a United 
States citizen as of the date of his or her birth.



PART 306--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: VIRGIN ISLANDERS--Table of Contents




Sec.
306.1  Persons eligible.
306.2  United States citizenship; when acquired.
306.11  Preliminary application form; filing; examination.
306.12  Renunciation forms; disposition.

    Authority: Secs. 103, 306, 332, 66 Stat. 173, 237, 252; 8 U.S.C. 
1103, 1406, 1443.

    Source: 22 FR 9812, Dec. 6, 1957, unless otherwise noted.



Sec. 306.1  Persons eligible.

    Any Danish citizen who resided in the Virgin Islands of the United 
States on January 17, 1917, and in those Islands, Puerto Rico, or the 
United States on February 25, 1927, and who had preserved his Danish 
citizenship by making the declaration prescribed by Article VI of the 
treaty entered into between the United States and Denmark on August 4, 
1916, and proclaimed January 25, 1917, may renounce his Danish 
citizenship before any court of record in the United States irrespective 
of his place of residence, in accordance with the provisions of this 
part.

[[Page 562]]



Sec. 306.2  United States citizenship; when acquired.

    Immediately upon making the declaration of renunciation as described 
in Sec. 306.12 the declarant shall be deemed to be a citizen of the 
United States. No certificate of naturalization or of citizenship shall 
be issued by the clerk of court to any person obtaining, or who has 
obtained citizenship solely under section 306(a)(1) of the Immigration 
and Nationality Act or under section 1 of the act of February 25, 1927.



Sec. 306.11  Preliminary application form; filing; examination.

    A person of the class described in Sec. 306.1 shall submit to the 
Service on Form N-350 preliminary application to renounce Danish 
citizenship, in accordance with the instructions contained therein. The 
applicant shall be notified in writing when and where to appear before a 
representative of the Service for examination as to his eligibility to 
renounce Danish citizenship and for assistance in filing the 
renunciation.



Sec. 306.12  Renunciation forms; disposition.

    The renunciation shall be made and executed by the applicant under 
oath, in duplicate, on Form N-351 and filed in the office of the clerk 
of court. The usual procedural requirements of the Immigration and 
Nationality Act shall not apply to proceedings under this part. The fee 
shall be fixed by the court or the clerk thereof in accordance with the 
law and rules of the court, and no accounting therefor shall be required 
to be made to the Service. The clerk shall retain the original of Form 
N-351 as the court record and forward the duplicate to the district 
director exercising administrative naturalization jurisdiction over the 
area in which the court is located.



PART 310--NATURALIZATION AUTHORITY--Table of Contents




Sec.
310.1  Administrative naturalization authority.
310.2  Jurisdiction to accept applications for naturalization.
310.3  Administration of the oath of allegiance.
310.4  Judicial naturalization authority and withdrawal of petitions.
310.5  Judicial review.

    Authority: 8 U.S.C. 1103, 1421, 1443, 1447, 1448; 8 CFR 2.1.

    Source: 56 FR 50480, Oct. 7, 1991, unless otherwise noted.



Sec. 310.1  Administrative naturalization authority.

    (a) Attorney General. Commencing October 1, 1991, section 310 of the 
Act confers the sole authority to naturalize persons as citizens of the 
United States upon the Attorney General.
    (b) Commissioner of the Immigration and Naturalization Service. 
Pursuant to Sec. 2.1 of this chapter, the Commissioner of the 
Immigration and Naturalization Service is authorized to perform such 
acts as are necessary and proper to implement the Attorney General's 
authority under the provisions of section 310 of the Act.



Sec. 310.2  Jurisdiction to accept applications for naturalization.

    The Service shall accept an application for naturalization from an 
applicant who is subject to a continuous residence requirement under 
section 316(a) or 319(a) of the Act as much as three months before the 
date upon which the applicant would otherwise satisfy such continuous 
residence requirement in the State or Service district where residence 
is to be established for naturalization purposes. At the time of 
examination on the application, the applicant will be required to prove 
that he or she satisfies the residence requirements for the residence 
reflected in the application.



Sec. 310.3  Administration of the oath of allegiance.

    (a) An applicant for naturalization may elect, at the time of filing 
of, or at the examination on, the application, to have the oath of 
allegiance and renunciation under section 337(a) of the Act administered 
in a public ceremony conducted by the Service or by any court described 
in section 310(b) of the Act, subject to section 310(b)(1)(B) of the 
Act.

[[Page 563]]

    (b) The jurisdiction of all such courts specified to administer the 
oath of allegiance shall extend only to those persons who are resident 
within the respective jurisdictional limits of such courts, except as 
otherwise provided in section 316(f)(2) of the Act. Persons who 
temporarily reside within the jurisdictional limits of a court in order 
to pursue an application properly filed pursuant to section 319(b), 
322(c), 328(a), or 329 of the Act or section 405 of the Immigration Act 
of 1990 are not subject to the exclusive jurisdiction provisions of 
section 310(b)(1)(B) of the Act.
    (c)(1) A court that wishes to exercise exclusive jurisdiction to 
administer the oath of allegiance for the 45-day period specified in 
section 310(b)(1)(B) of the Act shall notify, in writing, the district 
director of the Service office having jurisdiction over the place in 
which the court is located, of the court's intent to exercise such 
exclusive jurisdiction.
    (2) At least 60 days prior to the holding of any oath administration 
ceremony referred to in Sec. 337.8 of this chapter, the clerk of court 
shall give written notice to the appropriate district director of the 
time, date, and place of such ceremony and of the number of persons who 
may be accommodated.
    (d) A court that has notified the Service pursuant to paragraph 
(c)(1) of this section shall have exclusive authority to administer the 
oath of allegiance to persons residing within its jurisdiction for a 
period of 45 days beginning on the date that the Service notifies the 
clerk of court of the applicant's eligibility for naturalization. Such 
exclusive authority shall be effective only if on the date the Service 
notifies the clerk of court of the applicant's eligibility, the court 
has notified the Service of the day or days during such 45-day period on 
which the court has scheduled oath administration ceremonies available 
to the applicant. The Service must submit the notification of the 
applicant's eligibility to the clerk of court within 10 days of the 
approval of the application pursuant to Sec. 337.8 of this chapter.
    (e) Waiver of exclusive authority. A court exercising exclusive 
authority to administer the oath of allegiance pursuant to paragraph (c) 
of this section may waive such exclusive authority when it is determined 
by the court that the Service failed to notify the court within a 
reasonable time prior to a scheduled oath ceremony of the applicant's 
eligibility such that it is impractical for the applicant to appear at 
that ceremony. The court shall notify the district director in writing 
of the waiver of exclusive authority as it relates to a specific 
applicant, and the Service shall promptly notify the applicant. The 
Service shall then arrange for the administration of the oath of 
allegiance pursuant to Sec. 337.2 of this chapter.

[58 FR 49911, Sept. 24, 1993]



Sec. 310.4  Judicial naturalization authority and withdrawal of petitions.

    (a) Jurisdiction. No court shall have jurisdiction under section 
310(a) of the Act, to naturalize a person unless a petition for 
naturalization with respect to that person was filed with the 
naturalization court before October 1, 1991.
    (b) Withdrawal of petitions. (1) In the case of any petition for 
naturalization which was pending in any court as of November 29, 1990, 
the petitioner may elect to withdraw such petition, and have the 
application for naturalization considered under the administrative 
naturalization process. Such petition must be withdrawn after October 1, 
1991, but not later than December 31, 1991.
    (2) Except as provided in paragraph (b)(1) of this section, the 
petitioner shall not be permitted to withdraw his or her petition for 
naturalization, unless the Attorney General consents to the withdrawal.
    (c) Judicial proceedings. (1) All pending petitions not withdrawn in 
the manner and terms described in paragraph (b) of this section, shall 
be decided, on the merits, by the naturalization court, in conformity 
with the applicable provisions of the judicial naturalization authority 
of the prior statute. The reviewing court shall enter a final order.
    (2) In cases where the petitioner fails to prosecute his or her 
petition, the court shall decide the petition upon its merits unless the 
Attorney General moves that the petition be dismissed for lack of 
prosecution.

[[Page 564]]



Sec. 310.5  Judicial review.

    (a) After 120 days following examination. An applicant for 
naturalization may seek judicial review of a pending application for 
naturalization in those instances where the Service fails to make a 
determination under section 335 of the Act within 120 days after an 
examination is conducted under part 335 of this chapter. An applicant 
shall make a proper application for relief to the United States District 
Court having jurisdiction over the district in which the applicant 
resides. The court may either determine the issues brought before it on 
their merits, or remand the matter to the Service with appropriate 
instructions.
    (b) After denial of an application. After an application for 
naturalization is denied following a hearing before a Service officer 
pursuant to section 336(a) of the Act, the applicant may seek judicial 
review of the decision pursuant to section 310 of the Act.



PART 312--EDUCATIONAL REQUIREMENTS FOR NATURALIZATION--Table of Contents




Sec.
312.1  Literacy requirements.
312.2  Knowledge of history and government of the United States.
312.3  Standardized citizenship testing.
312.4  Selection of interpreter.
312.5  Failure to meet educational and literacy requirements.

    Authority: 8 U.S.C. 1103, 1423, 1443, 1447, 1448.

    Source: 56 FR 50481, Oct. 7, 1991, unless otherwise noted.



Sec. 312.1  Literacy requirements.

    (a) General. Except as otherwise provided in paragraph (b) of this 
section, no person shall be naturalized as a citizen of the United 
States upon his or her own application unless that person can 
demonstrate an understanding of the English language, including an 
ability to read, write, and speak words in ordinary usage in the English 
language.
    (b) Exceptions. The following persons need not demonstrate an 
ability to read, write and speak words in ordinary usage in the English 
language:
    (1) A person who, on the date of filing of his or her application 
for naturalization, is over 50 years of age and has been living in the 
United States for periods totalling at least 20 years subsequent to a 
lawful admission for permanent residence;
    (2) A person who, on the date of filing his or her application for 
naturalization, is over 55 years of age and has been living in the 
United States for periods totalling at least 15 years subsequent to a 
lawful admission for permanent residence; or
    (3) A person who is physically unable to comply with the literacy 
requirements due to a permanent disability such as blindness or 
deafness. A person who has a general incapacity to learn either because 
of developmental disability or advanced age may not ordinarily be 
considered to be physically unable to comply with the literacy 
requirements.
    (c) Literacy examination--(1) Verbal skills. The ability of an 
applicant to speak English shall be determined by a designated examiner 
from the applicant's answers to questions normally asked in the course 
of the examination.
    (2) Reading and writing skills. Except as noted in Sec. 312.3, an 
applicant's ability to read and write English shall be tested using 
excerpts from one or more parts of the Service authorized Federal 
Textbooks on Citizenship written at the elementary literacy level, 
Service publications M-289 and M-291. These textbooks may be purchased 
from the Superintendent of Documents, Government Printing Office, 
Washington, DC 20402, and are available at certain public educational 
institutions. An applicant's writing sample shall be retained in the 
applicant's Service file.



Sec. 312.2  Knowledge of history and government of the United States.

    (a) General. No person shall be naturalized as a citizen of the 
United States upon his or her own application unless that person can 
demonstrate a knowledge and understanding of the fundamentals of the 
history, and of the principles and form of government, of the United 
States. A person who is exempt from the literacy requirement under 
Sec. 312.1(b) must still satisfy this requirement.

[[Page 565]]

    (b) History and government examination--(1) Procedure. The 
examination of an applicant's knowledge of the history and form of 
government of the United States shall be given orally by a designated 
examiner in the English language unless:
    (i) The applicant is exempt from the English literacy requirement 
under Sec. 312.1(b), in which case the examination may be conducted in 
the applicant's native language with the assistance of an interpreter 
selected in accordance with Sec. 312.4 of this part, but only if the 
applicant's command of spoken English is insufficient to conduct a valid 
examination in English;
    (ii) The applicant is required to satisfy and has satisfied the 
English literacy requirement under Sec. 312.1(a), but the officer 
conducting the examination determines that an inaccurate or incomplete 
record of the examination would result if the examination on technical 
or complex issues were conducted in English. In such a case the 
examination may be conducted in the applicant's native language, with 
the assistance of an interpreter selected in accordance with Sec. 312.4;
    (iii) The applicant has met the requirements of Sec. 312.3.
    (2) Scope and substance. The scope of the examination shall be 
limited to subject matters covered in the Service authorized Federal 
Textbooks on Citizenship except for the identity of current 
officeholders. In choosing the subject matters, in phrasing questions 
and in evaluating responses, due consideration shall be given to the 
applicant's education, background, age, length of residence in the 
United States, opportunities available and efforts made to acquire the 
requisite knowledge, and any other elements or factors relevant to an 
appraisal of the adequacy of the applicant's knowledge and 
understanding.

[56 FR 50481, Oct. 7, 1991, as amended at 58 FR 49912, Sept. 24, 1993]



Sec. 312.3  Standardized citizenship testing.

    (a)(1) An applicant for naturalization may satisfy the reading and 
writing requirements of Sec. 312.1 and the knowledge requirements of 
Sec. 312.2 by passing, within one (1) year preceding the date on which 
he or she files an application for naturalization, or at any time 
subsequent to filing an application but prior to a final determination 
on the application, a standardized citizenship test given by an entity 
authorized by the Service to conduct such a test.
    (2) The applicant must still demonstrate his or her ability to speak 
and understand English in accordance with Sec. 312.1(c)(1). An applicant 
who passes a standardized citizenship test may submit evidence of 
passage of the test either with the submission of the application, at 
the examination on the application, or at the time of the second 
examination provided in Sec. 312.5(a). Any evidence of passage submitted 
by the applicant shall be subject to independent verification by the 
Service with the test provider.
    (3) An applicant who passes a standardized citizenship test as 
provided in paragraph (a)(1) of this section for naturalization shall 
not be reexamined at the Service naturalization interview on his or her 
ability to read and write English or on his or her knowledge of the 
history and form of government of the United States, unless the 
examining officer has reasonable cause to believe, subsequent to 
verification of the applicant's test results with the authorized testing 
entity, that the applicant's test results were obtained English may not 
be the sole reason for finding that the test results were obtained 
through fraud or misrepresentation. The Applicant's inability to speak 
English may not be the sole reason for finding that the test results 
were botained through fraud or misrepresentation. A written record of 
the officer's determination shall be made in the record of the 
application including the response from the testing entity concerning 
the applicant's test.
    (4) An applicant who has failed a standardized citizenship test will 
not be prejudiced by that failure during an examination conducted by the 
Service under Secs. 312.1 and 312.2, and may continue to pursue the 
application with the Service as if the applicant had never taken the 
standardized test.
    (b) An applicant who has obtained lawful permanent resident alien 
status pursuant to section 245A of the Act, and who, at that time 
demonstrated

[[Page 566]]

English language proficiency in reading and writing, and knowledge of 
the government and history of the United States through either an 
examination administered by the Service or a standardized section 312 
test authorized by the Service for use with Legalization applicants as 
provided in section 245A(b)(1)(D)(iii) of the Act, will not be 
reexamined on those skills at the time of the naturalization interview. 
However, such applicant must still establish eligibility for 
naturalization through testimony in the English language.

[56 FR 50481, Oct. 7, 1991, as amended at 58 FR 49912, Sept. 24, 1993; 
60 FR 6651, Feb. 3, 1995]



Sec. 312.4  Selection of interpreter.

    An interpreter to be used under Sec. 312.2 may be selected either by 
the applicant or by the Service. However, the Service reserves the right 
to disqualify an interpreter provided by the applicant in order to 
ensure the integrity of the examination. Where the Service disqualifies 
an interpreter, the Service must provide another interpreter for the 
applicant in a timely manner. If rescheduling of the interview is 
required, then a new date shall be set as soon as practicable so as not 
to delay unduly the adjudication of the application. The officer who 
disqualifies an interpreter shall make a written record of the reason(s) 
for disqualification as part of the record of the application.

[60 FR 6651, Feb. 3, 1995]



Sec. 312.5  Failure to meet educational and literacy requirements.

    (a) An applicant for naturalization who fails the English literacy 
or history and government test at the first examination will be afforded 
a second opportunity to pass the test(s) within 90 days after the first 
examination during the pendency of the application.
    (b) If an applicant who receives notice of the second scheduled 
examination date fails to appear without good cause for that second 
examination without prior notification to the Service, the applicant 
will be deemed to have failed this second examination. Before an 
applicant may request a postponement of the second examination to a date 
that is more than 90 days after the initial examination, the applicant 
must agree in writing to waive the requirement under section 336 of the 
Act that the Service must render a determination on the application 
within 120 days from the initial interview, and instead to permit the 
Service to render a decision within 120 days from the second interview.

[56 FR 50481, Oct. 7, 1991, as amended at 58 FR 49912, Sept. 24, 1993]



PART 313--MEMBERSHIP IN THE COMMUNIST PARTY OR ANY OTHER TOTALITARIAN ORGANIZATIONS--Table of Contents




Sec.
313.1  Definitions.
313.2  Prohibitions.
313.3  Statutory exemptions.
313.4  Procedure.

    Authority: 8 U.S.C. 1103, 1424, 1443.

    Source: 56 FR 50482, Oct. 7, 1991, unless otherwise noted.



Sec. 313.1  Definitions.

    For purposes of this part:
    Advocate includes, but is not limited to, advising, recommending, 
furthering by overt act, or admitting a belief in a doctrine, and may 
include the giving, lending, or promising of support or of money or any 
thing of value to be used for advocating such doctrine.
    Advocating Communism means advocating the establishment of a 
totalitarian communist dictatorship, including the economic, 
international, and governmental doctrines of world communism, in all 
countries of the world through the medium of an internationally 
coordinated communist revolutionary movement.
    Affiliation with an organization includes, but is not limited to, 
the giving, lending, or promising of support or of money or any thing of 
value, to that organization to be used for any purpose.
    Circulate includes circulating, distributing, or displaying a work.
    Communist Party includes:
    (1) The Communist Party of the United States;
    (2) The Communist Political Association;

[[Page 567]]

    (3) The Communist Party of any state of the United States, of any 
foreign state, or of any political or geographical subdivision of any 
foreign state;
    (4) Any section, subsidiary, branch, affiliate, or subdivision of 
any such association or party;
    (5) The direct predecessors or successors of any such association or 
party, regardless of what name such group or organization may have used, 
may now bear, or may hereafter adopt; and
    (6) Any communist-action or communist-front organization that is 
registered or required to be registered under section 786 of title 50 of 
the United States Code, provided that the applicant knew or had reason 
to believe, while he or she was a member, that such organization was a 
communist-front organization.
    Organization includes, but is not limited to, an organization, 
corporation, company, partnership, association, trust, foundation, or 
fund, and any group of persons, whether incorporated or not, permanently 
or temporarily associated together for joint action on any subject or 
subjects.
    Publication or publishing of a work includes writing or printing a 
work; permitting, authorizing, or consenting to the writing or printing 
of a work; and paying for the writing or printing of a work.
    Subversive is any individual who advocates or teaches:
    (1) Opposition to all organized government;
    (2) The overthrow, by force or violence or other unconstitutional 
means, of the Government of the United States or of all forms of law;
    (3) The duty, necessity, or propriety of the unlawful assaulting or 
killing, either individually or by position, of any officer or officers 
of the United States or of any other organized government, because of 
his, her, or their official character;
    (4) The unlawful damage, injury, or destruction of property; or
    (5) Sabotage.
    Totalitarian dictatorship and totalitarianism refer to systems of 
government not representative in fact and characterized by:
    (1) The existence of a single political party, organized on a 
dictatorial basis, with so close an identity between the policies of 
such party and the government policies of the country in which the party 
exists that the government and the party constitute an indistinguishable 
unit; and
    (2) The forcible suppression of all opposition to such a party.
    Totalitarian party includes:
    (1) Any party in the United States which advocates totalitarianism;
    (2) Any party in any State of the United States, in any foreign 
state, or in any political or geographical subdivision of any foreign 
state which advocates or practices totalitarianism;
    (3) Any section, subsidiary, branch, affiliate, or subdivision of 
any such association or party; and
    (4) The direct predecessors or successors of any such association or 
party, regardless of what name such group or organization may have used, 
may now bear, or may hereafter adopt.

[56 FR 50482, Oct. 7, 1991, as amended at 58 FR 49912, Sept. 24, 1993]



Sec. 313.2  Prohibitions.

    Except as provided in Sec. 313.3, no applicant for naturalization 
shall be naturalized as a citizen of the United States if, within ten 
years immediately preceding the filing of an application for 
naturalization or after such filing but before taking the oath of 
citizenship, such applicant:
    (a) Is or has been a member of or affiliated with the Communist 
Party or any other totalitarian party; or
    (b) Is or has advocated communism or the establishment in the United 
States of a totalitarian dictatorship; or
    (c) Is or has been a member of or affiliated with an organization 
that advocates communism or the establishment in the United States of a 
totalitarian dictatorship, either through its own utterance or through 
any written or printed matter published by such organization; or
    (d) Is or has been a subversive, or a member of, or affiliated with, 
a subversive organization; or
    (e) Knowingly is publishing or has published any subversive written 
or printed matter, or written or printed matter advocating communism; or

[[Page 568]]

    (f) Knowingly circulates or has circulated, or knowingly possesses 
or has possessed for the purpose of circulating, subversive written or 
printed matter, or written or printed matter advocating communism; or
    (g) Is or has been a member of, or affiliated with, any organization 
that publishes or circulates, or that possesses for the purpose of 
publishing or circulating, any subversive written or printed matter, or 
any written or printed matter advocating communism.



Sec. 313.3  Statutory exemptions.

    (a) General. An applicant shall bear the burden of establishing that 
classification in one of the categories listed under Sec. 313.2 is not a 
bar to naturalization.
    (b) Exemptions. Despite membership in or affiliation with an 
organization covered by Sec. 313.2, an applicant may be naturalized if 
the applicant establishes that such membership or affiliation is or was:
    (1) Involuntary:
    (2) Without awareness of the nature or the aims of the organization, 
and was discontinued if the applicant became aware of the nature or aims 
of the organization;
    (3) Terminated prior to the attainment of age sixteen by the 
applicant, or more than ten years prior to the filing of the application 
for naturalization;
    (4) By operation of law; or
    (5) Necessary for purposes of obtaining employment, food rations, or 
other essentials of living.
    (c) Awareness and participation--(1) Exemption applicable. The 
exemption under paragraph (b)(2) of this section may be found to apply 
only to an applicant whose participation in the activities of an 
organization covered under Sec. 313.2 was minimal in nature, and who 
establishes that he or she was unaware of the nature of the organization 
while a member of the organization.
    (2) Exemptions inapplicable. The exemptions under paragraphs (b)(4) 
and (b)(5) of this section will not apply to any applicant who served as 
a functionary of an organization covered under Sec. 313.2, or who was 
aware of and believed in the organization's doctrines.
    (d) Essentials of living--(1) Exemption applicable. The exemption 
under paragraph (b)(5) of this section may be found to apply only to an 
applicant who can demonstrate:
    (i) That membership in the covered organization was necessary to 
obtain the essentials of living like food, shelter, clothing, 
employment, and an education, which were routinely available to the rest 
of the population--for purposes of this exemption, higher education will 
qualify as an essential of living only if the applicant can establish 
the existence of special circumstances which convert the need for higher 
education into a need as basic as the need for food or employment: and,
    (ii) That he or she participated only to the minimal extent 
necessary to receive the essential of living.
    (2) Exemption inapplicable. The exemption under paragraph (b)(5) of 
this section will not be applicable to an applicant who became a member 
of an organization covered under 313.2 to receive certain benefits:
    (i) Without compulsion from the governing body of the relevant 
country; or
    (ii) Which did not qualify as essentials of living.



Sec. 313.4  Procedure.

    In all cases in which the applicant claims membership or affiliation 
in any of the organizations covered by Sec. 313.2, the applicant shall 
attach to the application a detailed written statement describing such 
membership or affiliation, including the periods of membership or 
affiliation, whether the applicant held any office in the organization, 
and whether membership or affiliation was voluntary or involuntary. If 
the applicant alleges that membership or affiliation was involuntary, or 
that one of the other exemptions in Sec. 313.3 applies, the applicant's 
statement shall set forth the basis of that allegation.



PART 315--PERSONS INELIGIBLE TO CITIZENSHIP: EXEMPTION FROM MILITARY SERVICE--Table of Contents




Sec.

[[Page 569]]

315.1  Definitions.
315.2  Ineligibility and exceptions.
315.3  Evidence.
315.4  Exemption treaties.

    Authority: 8 U.S.C. 1103, 1443.

    Source: 56 FR 50483, Oct. 7, 1991, unless otherwise noted.



Sec. 315.1  Definitions.

    As used in this part:
    Exemption from military service means either:
    (1) A permanent exemption from induction into the Armed Forces or 
the National Security Training Corps of the United States for military 
training or military service; or
    (2) The release or discharge from military training or military 
service in the Armed Forces or in the National Security Training Corps 
of the United States.
    Induction means compulsory entrance into military service of the 
United States whether by conscription or, after being notified of a 
pending conscription, by enlistment.
    Treaty national means an alien who is a national of a country with 
which the United States has a treaty relating to the reciprocal 
exemption of aliens from military training or military service.



Sec. 315.2  Ineligibility and exceptions.

    (a) Ineligibility. Except as provided in paragraph (b) of this 
section, any alien who has requested, applied for, and obtained an 
exemption from military service on the ground that he or she is an alien 
shall be ineligible for approval of his or her application for 
naturalization as a citizen of the United States.
    (b) Exceptions. The prohibition in paragraph (a) of this section 
does not apply to an alien who establishes by clear and convincing 
evidence that:
    (1) At the time that he or she requested an exemption from military 
service, the applicant had no liability for such service even in the 
absence of an exemption;
    (2) The applicant did not request or apply for the exemption from 
military service, but such exemption was automatically granted by the 
United States government;
    (3) The exemption from military service was based upon a ground 
other than the applicant's alienage;
    (4) In claiming an exemption from military service, the applicant 
did not knowingly and intentionally waive his or her eligibility for 
naturalization because he or she was misled by advice from a competent 
United States government authority, or from a competent authority of the 
government of his or her country of nationality, of the consequences of 
applying for an exemption from military service and was, therefore, 
unable to make an intelligent choice between exemption and citizenship;
    (5) The applicant applied for and received an exemption from 
military service on the basis of alienage, but was subsequently inducted 
into the Armed Forces, or the National Security Training Corps, of the 
United States; however, an applicant who voluntarily enlists in and 
serves in the Armed Forces of the United States, after applying for and 
receiving an exemption from military service on the basis of alienage, 
does not satisfy this exception to paragraph (a) of this section;
    (6) Prior to requesting the exemption from military service:
    (i) The applicant was a treaty national who had served in the armed 
forces of the country of which he or she was a national; however, a 
treaty national who did not serve in the armed forces of the country of 
nationality prior to requesting the exemption from military service does 
not satisfy this exception to paragraph (a) of this section;
    (ii) The applicant served a minimum of eighteen months in the armed 
forces of a nation that was a member of the North Atlantic Treaty 
Organization at the time of the applicant's service; or
    (iii) The applicant served a minimum of twelve months in the armed 
forces of a nation that was a member of the North Atlantic Treaty 
Organization at the time of the applicant's service, provided that the 
applicant applied for registration with the Selective Service 
Administration after September 28, 1971; or
    (7) The applicant is applying for naturalization pursuant to section 
329 of the Act.

[[Page 570]]



Sec. 315.3  Evidence.

    (a) The records of the Selective Service System and the military 
department under which the alien served shall be conclusive evidence of 
whether the alien was relieved or discharged from liability for military 
service because he or she was an alien.
    (b) The regulations of the Selective Service Administration and its 
predecessors will be controlling with respect to the requirement to 
register for, and liability for, service in the Armed Forces of the 
United States.



Sec. 315.4  Exemption treaties.

    (a) The following countries currently have effective treaties 
providing reciprocal exemption of aliens from military service:

Argentina (Art. X, 10 Stat. 1005, 1009, effective 1853)
Austria (Art. VI, 47 Stat. 1876, 1880, effective 1928)
China (Art. XIV, 63 Stat. 1299, 1311, effective 1946)
Costa Rica (Art. IX, 10 Stat. 916, 921, effective 1851)
Estonia (Art. VI, 44 Stat. 2379, 2381, effective 1925)
Honduras (Art. VI, 45 Stat. 2618, 2622, effective 1927)
Ireland (Art. III, 1 US 785, 789, effective 1950)
Italy (Art. XIII, 63 Stat. 2255, 2272, effective 1948)
Latvia (Art. VI, 45 Stat. 2641, 2643, effective 1928)
Liberia (Art. VI, 54 Stat. 1739, 1742, effective 1938)
Norway (Art. VI, 47 Stat. 2135, 2139, effective 1928)
Paraguay (Art. XI, 12 Stat. 1091, 1096, effective 1859)
Spain (Art. V, 33 Stat. 2105, 2108, effective 1902)
Switzerland (Art. II, 11 Stat. 587, 589, effective 1850)
Yugoslavia (Serbia) (Art. IV, 22 Stat. 963, 964, effective 1881)

    (b) The following countries previously had treaties providing for 
reciprocal exemption of aliens from military service:

El Salvador (Art. VI, 46 Stat. 2817, 2821, effective 1926 to February 8, 
          1958)
Germany (Art. VI, 44 Stat. 2132, 2136, effective 1923 to June 2, 1954)
Hungary (Art. VI, 44 Stat, 2441, 2445, effective 1925 to July 5, 1952)
Thailand (Siam) (Art. 1, 53 Stat. 1731, 1732, effective 1937 to June 8, 
          1968)



PART 316--GENERAL REQUIREMENTS FOR NATURALIZATION--Table of Contents




Sec.
316.1  Definitions.
316.2  Eligibility.
316.3  Jurisdiction.
316.4  Application; documents.
316.5  Residence in the United States.
316.6--316.9  [Reserved]
316.10  Good moral character.
316.11  Attachment to the Constitution; favorable disposition towards 
          the good order and happiness.
316.12  Applicant's legal incompetency during statutory period.
316.13  [Reserved]
316.14  Adjudication--examination, grant, denial.
316.15--316.19  [Reserved]
316.20  American institutions of research, public international 
          organizations, and designations under the International 
          Immunities Act.

    Authority: 8 U.S.C. 1103, 1181, 1182, 1443, 1447; 8 CFR 2.1.

    Source: 56 FR 50484, Oct. 7, 1991, unless otherwise noted.



Sec. 316.1  Definitions.

    As used in this part:
    Application means the form specified in Sec. 499.1 of this chapter 
on which an applicant requests consideration for naturalization.
    Service district means the geographical area over which an office of 
the Immigration and Naturalization Service has jurisdiction, as defined 
in Sec. 100.4 of this chapter.



Sec. 316.2  Eligibility.

    (a) General. Except as otherwise provided in this chapter, to be 
eligible for naturalization, an alien must establish that he or she:
    (1) Is at least 18 years of age;
    (2) Has been lawfully admitted as a permanent resident of the United 
States;
    (3) Has resided continuously within the United States, as defined 
under Sec. 316.5, for a period of at least five years after having been 
lawfully admitted for permanent residence;
    (4) Has been physically present in the United States for at least 30 
months of the five years preceding the date of filing the application;

[[Page 571]]

    (5) Immediately preceding the filing of an application, or 
immediately preceding the examination on the application if the 
application was filed early pursuant to section 334(a) of the Act and 
the three month period falls within the required period of residence 
under section 316(a) or 319(a) of the Act, has resided, as defined under 
Sec. 316.5, for at least three months in a State or Service district 
having jurisdiction over the applicant's actual place of residence, and 
in which the alien seeks to file the application;
    (6) Has resided continuously within the United States from the date 
of application for naturalization up to the time of admission to 
citizenship;
    (7) For all relevant time periods under this paragraph, has been and 
continues to be a person of good moral character, attached to the 
principles of the Constitution of the United States, and favorably 
disposed toward the good order and happiness of the United States; and
    (8) Is not a person described in Section 314 of the Act relating to 
deserters of the United States Armed Forces or those persons who 
departed from the United States to evade military service in the United 
States Armed Forces.
    (b) Burden of proof. The applicant shall bear the burden of 
establishing by a preponderance of the evidence that he or she meets all 
of the requirements for naturalization, including that the applicant was 
lawfully admitted as a permanent resident to the United States, in 
accordance with the immigration laws in effect at the time of the 
applicant's initial entry or any subsequent reentry.

[56 FR 50484, Oct. 7, 1991, as amended at 58 FR 49912, Sept. 24, 1993; 
60 FR 6651, Feb. 3, 1995]



Sec. 316.3  Jurisdiction.

    Except as provided in Sec. 316.5, the applicant shall file an 
application for naturalization with the Service office having 
jurisdiction, as described in Sec. 100.4 of this chapter, over the 
applicant's residence at the time of filing the application. The 
applicant may be required to submit evidence of residence for at least 
three months immediately preceding the filing of the application in the 
State or Service district in which the applicant files the application. 
For purposes of this section, the applicant's residence in a State where 
there are two or more districts will be sufficient to comply with the 
jurisdictional requirement of residence in any one of those districts.



Sec. 316.4  Application; documents.

    (a) The applicant shall apply for naturalization by filing:
    (1) Form N-400 (Application for Naturalization);
    (2) Evidence of lawful permanent residence in the United States in 
the form of photocopies (front and back) of Forms I-551 (Alien 
Registration Receipt Card), or any other entry document;
    (3) Form FD-258 (Fingerprint Card); and
    (4) Three (3) photographs as described in Sec. 333.1 of this 
chapter.
    (b) At the time of the examination on the application for 
naturalization, the applicant may be required to establish the status of 
lawful permanent resident by submitting the original evidence, issued by 
the Service, of lawful permanent residence in the United States. The 
applicant may be also required to submit any passports, or any other 
documents that have been used to enter the United States at any time 
after the original admission for permanent residence.

[56 FR 50484, Oct. 7, 1991, as amended at 58 FR 48780, Sept. 20, 1993]



Sec. 316.5  Residence in the United States.

    (a) General. Unless otherwise specified, for purposes of this 
chapter, including Sec. 316.2 (a)(3), (a)(5), and (a)(6), an alien's 
residence is the same as that alien's domicile, or principal actual 
dwelling place, without regard to the alien's intent, and the duration 
of an alien's residence in a particular location is measured from the 
moment the alien first establishes residence in that location.
    (b) Residences in specific cases--(1) Military personnel. For 
applicants who are serving in the Armed Forces of the United States but 
who do not qualify for naturalization under part 328 of this chapter, 
the applicant's residence shall be:
    (i) The State or Service District where the applicant is physically

[[Page 572]]

present for at least three months, immediately preceding the filing of 
an application for naturalization, or immediately preceding the 
examination on the application if the application was filed early 
pursuant to section 334(a) of the Act and the three month period falls 
within the required period of residence under section 316(a) or 319(a) 
of the Act;
    (ii) The location of the residence of the applicant's spouse and/or 
minor child(ren); or
    (iii) The applicant's home of record as declared to the Armed Forces 
at the time of enlistment and as currently reflected in the applicant's 
military personnel file.
    (2) Students. An applicant who is attending an educational 
institution in a State or Service District other than the applicant's 
home residence may apply for naturalization:
    (i) Where that institution is located; or
    (ii) In the State of the applicant's home residence if the applicant 
can establish that he or she is financially dependent upon his or her 
parents at the time that the application is filed and during the 
naturalization process.
    (3) Commuter aliens. An applicant who is a commuter alien, as 
described in Sec. 211.5 of this chapter, must establish a principal 
dwelling place in the United States with the intention of permanently 
residing there, and must thereafter acquire the requisite period of 
residence before eligibility for naturalization may be established. 
Accordingly, a commuter resident alien may not apply for naturalization 
until he or she has actually taken up permanent residence in the United 
States and until such residence has continued for the required statutory 
period. Such an applicant bears the burden of providing evidence to that 
effect.
    (4) Residence in multiple states. If an applicant claims residence 
in more than one State, the residence for purposes of this part shall be 
determined by reference to the location from which the annual federal 
income tax returns have been and are being filed.
    (5) Residence during absences of less than one year. (i) An 
applicant's residence during any absence of less than one year shall 
continue to be the State or Service district where the applicant last 
resided at the time of the applicant's departure abroad.
    (ii) Return to the United States. If, upon returning to the United 
States, an applicant returns to the State or Service district where the 
applicant last resided, the applicant will have complied with the 
continuous residence requirement specified in Sec. 316.2(a)(5) when at 
least three months have elapsed, including any part of the applicant's 
absence, from the date on which the applicant first established that 
residence. If the applicant establishes residence in a State or Service 
district other than the one in which he or she last resided, the 
applicant must complete three months at that new residence to be 
eligible for naturalization.
    (c) Disruption of continuity of residence--(1) Absence from the 
United States--(i) For continuous periods of between six (6) months and 
one (1) year. Absences from the United States for continuous periods of 
between six (6) months and one (1) year during the periods for which 
continuous residence is required under Sec. 316.2 (a)(3) and (a)(6) 
shall disrupt the continuity of such residence for purposes of this part 
unless the applicant can establish otherwise to the satisfaction of the 
Service. This finding remains valid even if the applicant did not apply 
for or otherwise request a nonresident classification for tax purposes, 
did not document an abandonment of lawful permanent resident status, and 
is still considered a lawful permanent resident under immigration laws. 
The types of documentation which may establish that the applicant did 
not disrupt the continuity of his or her residence in the United States 
during an extended absence include, but are not limited to, evidence 
that during the absence:
    (A) The applicant did not terminate his or her employment in the 
United States;
    (B) The applicant's immediate family remained in the United States;
    (C) The applicant retained full access to his or her United States 
abode; or
    (D) The applicant did not obtain employment while abroad.
    (ii) For period in excess of one (1) year. Unless an applicant 
applies for benefits in accordance with Sec. 316.5(d), absences

[[Page 573]]

from the United States for a continuous period of one (1) year or more 
during the period for which continuous residence is required under 
Sec. 316.2 (a)(3) and (a)(5) shall disrupt the continuity of the 
applicant's residence. An applicant described in this paragraph who must 
satisfy a five-year statutory residence period may file an application 
for naturalization four years and one day following the date of the 
applicant's return to the United States to resume permanent residence. 
An applicant described in this paragraph who must satisfy a three-year 
statutory residence period may file an application for naturalization 
two years and one day following the date of the applicant's return to 
the United States to resume permanent residence.
    (2) Claim of nonresident alien status for income tax purposes after 
lawful admission as a permanent resident. An applicant who is a lawfully 
admitted permanent resident of the United States, but who voluntarily 
claims nonresident alien status to qualify for special exemptions from 
income tax liability, or fails to file either federal or state income 
tax returns because he or she considers himself or herself to be a 
nonresident alien, raises a rebuttable presumption that the applicant 
has relinquished the privileges of permanent resident status in the 
United States.
    (3) Deportation and return. Any departure from the United States 
while under an order of deportation terminates the applicant's status as 
a lawful permanent resident and, therefore, disrupts the continuity of 
residence for purposes of this part.
    (4) Readmission after a deferred inspection or exclusion proceeding. 
An applicant who has been readmitted as a lawful permanent resident 
after a deferred inspection or by the immigration judge during exclusion 
proceedings shall satisfy the residence and physical presence 
requirements under Sec. 316.2 (a)(3), (a)(4), (a)(5), and (a)(6) in the 
same manner as any other applicant for naturalization.
    (d) Application for benefits with respect to absences; appeal--(1) 
Preservation of residence under section 316(b) of the Act. (i) An 
application for the residence benefits under section 316(b) of the Act 
to cover an absence from the United States for a continuous period of 
one year or more shall be submitted to the Service on Form N-470 with 
the required fee, in accordance with the form's instructions. The 
application may be filed either before or after the applicant's 
employment commences, but must be filed before the applicant has been 
absent from the United States for a continuous period of one year.
    (ii) An approval of Form N-470 under section 316(b) of the Act shall 
cover the spouse and dependent unmarried sons and daughters of the 
applicant who are residing abroad as members of the applicant's 
household during the period covered by the application. The notice of 
approval, Form N-472, shall identify the family members so covered.
    (iii) An applicant whose Form N-470 application under section 316(b) 
of the Act has been approved, but who voluntarily claims nonresident 
alien status to qualify for special exemptions from income tax 
liability, raises a rebuttable presumption that the applicant has 
relinquished a claim of having retained lawful permanent resident status 
while abroad. The applicant's family members who were covered under 
section 316(b) of the Act and who were listed on the applicant's Form N-
472 will also be subject to the rebuttable presumption that they have 
relinquished their claims to lawful permanent resident status.
    (2) Preservation of residence under section 317 of the Act. An 
application for the residence and physical presence benefits of section 
317 of the Act to cover any absences from the United States, whether 
before or after December 24, 1952, shall be submitted to the Service on 
Form N-470 with the required fee, in accordance with the form's 
instructions. The application may be filed either before or after the 
applicant's absence from the United States or the performance of the 
functions or services described in section 317 of the Act.
    (3) Approval, denial, and appeal. The applicant under paragraphs 
(d)(1) or (d)(2) of this section shall be notified of the Service's 
disposition of the application on Form N-472. If the application is 
denied, the Service shall specify the reasons for the denial, and shall 
inform the applicant of the right to appeal in

[[Page 574]]

accordance with the provisions of part 103 of this chapter.

[56 FR 50484, Oct. 7, 1991, as amended at 56 FR 50487, Oct. 7, 1991; 58 
FR 49913, Sept. 24, 1993; 60 FR 6651, Feb. 3, 1995]
Secs. 316.6--316.9  [Reserved]



Sec. 316.10  Good moral character.

    (a) Requirement of good moral character during the statutory period. 
(1) An applicant for naturalization bears the burden of demonstrating 
that, during the statutorily prescribed period, he or she has been and 
continues to be a person of good moral character. This includes the 
period between the examination and the administration of the oath of 
allegiance.
    (2) In accordance with section 101(f) of the Act, the Service shall 
evaluate claims of good moral character on a case-by-case basis taking 
into account the elements enumerated in this section and the standards 
of the average citizen in the community of residence. The Service is not 
limited to reviewing the applicant's conduct during the five years 
immediately preceding the filing of the application, but may take into 
consideration, as a basis for its determination, the applicant's conduct 
and acts at any time prior to that period, if the conduct of the 
applicant during the statutory period does not reflect that there has 
been reform of character from an earlier period or if the earlier 
conduct and acts appear relevant to a determination of the applicant's 
present moral character.
    (b) Finding of a lack of good moral character. (1) An applicant 
shall be found to lack good moral character, if the applicant has been:
    (i) Convicted of murder at any time; or
    (ii) Convicted of an aggravated felony as defined in section 
101(a)(43) of the Act on or after November 29, 1990.
    (2) An applicant shall be found to lack good moral character if 
during the statutory period the applicant:
    (i) Committed one or more crimes involving moral turpitude, other 
than a purely political offense, for which the applicant was convicted, 
except as specified in section 212(a)(2)(ii)(II) of the Act;
    (ii) Committed two or more offenses for which the applicant was 
convicted and the aggregate sentence actually imposed was five years or 
more, provided that, if the offense was committed outside the United 
States, it was not a purely political offense;
    (iii) Violated any law of the United States, any State, or any 
foreign country relating to a controlled substance, provided that the 
violation was not a single offense for simple possession of 30 grams or 
less of marijuana;
    (iv) Admits committing any criminal act covered by paragraphs (b)(2) 
(i), (ii), or (iii) of this section for which there was never a formal 
charge, indictment, arrest, or conviction, whether committed in the 
United States or any other country;
    (v) Is or was confined to a penal institution for an aggregate of 
180 days pursuant to a conviction or convictions (provided that such 
confinement was not outside the United States due to a conviction 
outside the United States for a purely political offense);
    (vi) Has given false testimony to obtain any benefit from the Act, 
if the testimony was made under oath or affirmation and with an intent 
to obtain an immigration benefit; this prohibition applies regardless of 
whether the information provided in the false testimony was material, in 
the sense that if given truthfully it would have rendered ineligible for 
benefits either the applicant or the person on whose behalf the 
applicant sought the benefit;
    (vii) Is or was involved in prostitution or commercialized vice as 
described in section 212(a)(2)(D) of the Act;
    (viii) Is or was involved in the smuggling of a person or persons 
into the United States as described in section 212(a)(6)(E) of the Act;
    (ix) Has practiced or is practicing polygamy;
    (x) Committed two or more gambling offenses for which the applicant 
was convicted;
    (xi) Earns his or her income principally from illegal gambling 
activities; or
    (xii) Is or was a habitual drunkard.
    (3) Unless the applicant establishes extenuating circumstances, the 
applicant shall be found to lack good moral

[[Page 575]]

character if, during the statutory period, the applicant:
    (i) Willfully failed or refused to support dependents;
    (ii) Had an extramarital affair which tended to destroy an existing 
marriage; or
    (iii) Committed unlawful acts that adversely reflect upon the 
applicant's moral character, or was convicted or imprisoned for such 
acts, although the acts do not fall within the purview of Sec. 316.10(b) 
(1) or (2).
    (c) Proof of good moral character in certain cases--(1) Effect of 
probation or parole. An applicant who has been on probation, parole, or 
suspended sentence during all or part of the statutory period is not 
thereby precluded from establishing good moral character, but such 
probation, parole, or suspended sentence may be considered by the 
Service in determining good moral character. An application will not be 
approved until after the probation, parole, or suspended sentence has 
been completed.
    (2) Full and unconditional executive pardon--(i) Before the 
statutory period. An applicant who has received a full and unconditional 
executive pardon prior to the beginning of the statutory period is not 
precluded by Sec. 316.10(b)(1) from establishing good moral character 
provided the applicant demonstrates that reformation and rehabilitation 
occurred prior to the beginning of the statutory period.
    (ii) During the statutory period. An applicant who receives a full 
and unconditional executive pardon during the statutory period is not 
precluded by Sec. 316.10(b)(2) (i) and (ii) from establishing good moral 
character, provided the applicant can demonstrate that extenuating and/
or exonerating circumstances exist that would establish his or her good 
moral character.
    (3) Record expungement--(i) Drug offenses. Where an applicant has 
had his or her record expunged relating to one of the narcotics offenses 
under section 212(a)(2)(A)(i)(II) and section 241(a)(2)(B) of the Act, 
that applicant shall be considered as having been ``convicted'' within 
the meaning of Sec. 316.10(b)(2)(ii), or, if confined, as having been 
confined as a result of ``conviction'' for purposes of 
Sec. 316.10(b)(2)(iv).
    (ii) Moral turpitude. An applicant who has committed or admits the 
commission of two or more crimes involving moral turpitude during the 
statutory period is precluded from establishing good moral character, 
even though the conviction record of one such offense has been expunged.

[56 FR 50484, Oct. 7, 1991, as amended at 58 FR 49913, Sept. 24, 1993]



Sec. 316.11  Attachment to the Constitution; favorable disposition towards the good order and happiness.

    (a) General. An applicant for naturalization must establish that 
during the statutorily prescribed period, he or she has been and 
continues to be attached to the principles of the Constitution of the 
United States and favorably disposed toward the good order and happiness 
of the United States. Attachment implies a depth of conviction which 
would lead to active support of the Constitution. Attachment and 
favorable disposition relate to mental attitude, and contemplate the 
exclusion from citizenship of applicants who are hostile to the basic 
form of government of the United States, or who disbelieve in the 
principles of the Constitution.
    (b) Advocacy of peaceful change. At a minimum, the applicant shall 
satisfy the general standard of paragraph (a) of this section by 
demonstrating an acceptance of the democratic, representational process 
established by the Constitution, a willingness to obey the laws which 
may result from that process, and an understanding of the means for 
change which are prescribed by the Constitution. The right to work for 
political change shall be consistent with the standards in paragraph (a) 
of this section only if the changes advocated would not abrogate the 
current Government and establish an entirely different form of 
government.
    (c) Membership in the Communist Party or any other totalitarian 
organization. An applicant who is or has been a member of or affiliated 
with the Communist

[[Page 576]]

Party or any other totalitarian organization shall be ineligible for 
naturalization, unless the applicant's membership meets the exceptions 
in sections 313 and 335 of the Act and Sec. 313.4 of this chapter.



Sec. 316.12  Applicant's legal incompetency during statutory period.

    (a) General. An applicant who is legally competent at the time of 
the examination on the naturalization application and of the 
administration of the oath of allegiance may be admitted to citizenship, 
provided that the applicant fully understands the purpose and 
responsibilities of the naturalization procedures.
    (b) Legal incompetence. Naturalization is not precluded if, during 
part of the statutory period, the applicant was legally incompetent or 
confined to a mental institution.
    (1) There is a presumption that the applicant's good moral 
character, attachment, and favorable disposition which existed prior to 
the period of legal incompetency continued through that period. The 
Service may, however, consider an applicant's actions during a period of 
legal incompetence, as evidence tending to rebut this presumption.
    (2) If the applicant has been declared legally incompetent, the 
applicant has the burden of establishing that legal competency has been 
restored. The applicant shall submit legal and medical evidence to 
determine and establish the claim of legal competency.
    (3) The applicant shall bear the burden of establishing that any 
crimes committed, regardless of whether the applicant was convicted, 
occurred while the applicant was declared legally incompetent.
Sec. 316.13  [Reserved]



Sec. 316.14  Adjudication--examination, grant, denial.

    (a) Examination. The examination on an application for 
naturalization shall be conducted in accordance with Section 335 of the 
Act.
    (b) Determination--(1) Grant or denial. Subject to supervisory 
review, the employee of the Service who conducts the examination under 
paragraph (a) of this section shall determine whether to grant or deny 
the application, and shall provide reasons for the determination, as 
required under section 335(d) of the Act.
    (2) Appeal. An applicant whose application for naturalization has 
been denied may request a hearing, which shall be carried out in 
accordance with section 336 of the Act.
Secs. 316.15--316.19  [Reserved]



Sec. 316.20  American institutions of research, public international organizations, and designations under the International Immunities Act.

    (a) American institutions of research. The following-listed 
organizations have been determined to be American Institutions of 
research recognized by the Attorney General:

African Medical and Research Foundation (AMREF-USA).
Albert Einstein College of Medicine of Yeshiva University (only in 
relationship to its research programs).
American Friends of the Middle East, Inc.
American Institutes of Research in the Behavioral Sciences (only in 
relationship to research projects abroad).
American Universities Field Staff, Inc.
American University, The, Cairo, Egypt.
American University of Beirut (Near East College Associations).
Arctic Institute of North America, Inc.
Armour Research Foundation of Illinois Institute of Technology.
Asia Foundation, The (formerly Committee for a Free Asia, Inc.).
Association of Universities for Research in Astronomy (AURA, Inc.), 
Tucson, AZ.
Atomic Bomb Casualty Commission.
Beirut University College.
Bermuda Biological Station for Research, Inc.
Bernice P. Biship Museum of Polynesian Antiquities, Ethnology and 
Natural History at Honolulu, HI.
Brookhaven National Laboratory, Associated Universities, Inc.
Brown University (Department of Engineering), Providence, RI.
Buffalo Eye Bank and Research Society, Inc.
Burma Office of Robert N. Nathan Associates, Inc.
California State University at Long Beach, Department of Geological 
Sciences.
Carleton College (Department of Sociology and Anthropology), Northfield, 
MN.
Center of Alcohol Studies, Laboratory of Applied Biodynamics of Yale 
University.
Central Registry of Jewish Losses in Egypt.

[[Page 577]]

College of Engineering, University of Wisconsin.
College of Medicine, State University of New York.
Colorado State University (Research Foundation), Fort Collins, CO.
Colorado University (International Economic Studies Center), Boulder, 
CO.
Columbia University (Parker School of Foreign and Comparative Law) and 
(Faculty of Pure Science), New York, NY.
Cornell University (International Agricultural Development, University 
of the Philippines-Cornell University Graduate Education Program).
Dartmouth Medical School.
Department of French, Department of Scandinavian Languages, and 
Department of Near Eastern Languages of the University of California, 
Berkeley, CA.
Duke University.
Environmental Research Laboratory of the University of Arizona.
Fletcher School of Law and Diplomacy, Medford, MA.
Ford Foundation, 477 Madison Avenue, New York, NY.
Free Europe, Inc. (formerly Free Europe Committee, Inc.; National 
Committee for a Free Europe (including Radio Free Europe)).
Georgetown University.
George Williams Hooper Foundation, San Francisco Medical Center, 
University of California, San Francisco, CA.
Gorgas Memorial Institute of Tropical and Preventive Medicine, Inc., and 
its operating unit, the Gorgas Memorial Laboratory.
Graduate Faculty of Political and Social Science Division of the New 
School for Social Research, New York, NY.
Harvard Institute for International Development.
Harvard-Yenching Institute.
Humboldt State University, School of Natural Resources, Wildlife 
Management Department.
Institute for Development Anthropology, Inc.
Institute of International Education, Inc.
Institute of International Studies, University of California, Berkeley, 
CA.
International Center for Social Research, New York, NY.
International Development Foundation, Inc.
International Development Services, Inc.
International Research Associates, Inc.
Inter-University Program for Chinese Language Studies (formerly Stanford 
Center for Chinese Studies) in Taipei, Taiwan.
Iowa State University.
Iran Foundation, Inc., The.
Kossuth Foundation, Inc., The, New York, NY.
Louisiana State University.
Massachusetts Institute of Technology.
Michigan State University, East Lansing, MI.
Natural Science Foundation, Philadelphia, PA.
New York Zoological Society.
Paderewski Foundation, Inc.
Peabody Museum of Natural History of Yale University.
People to People Health Foundation, Inc., The (only in relationship to 
the scientific research activities that will be carried on abroad by the 
medical staff of the SS ``Hope'').
Pierce College (in relationship to research by an instructor, Department 
of Psychology), Athens, Greece.
Population Council, The, New York, NY.
Radio Liberty Committee, Inc. (formerly American Committee for 
Liberation, Inc.; American Committee for Liberation of the Peoples of 
Russia, Inc.; American Committee for Liberation from Bolshevism, Inc.).
Rockefeller Foundation.
School of International Relations of the University of Southern 
California.
SIRIMAR (Societa Internazionale Recerche Marine) Division, Office of the 
Vice President for Research, Pennsylvania State University.
Social Science Research Council.
Solar Energy Research Institute (SERI).
Stanford Electronic Laboratories, Department of Electrical Engineering, 
School of Engineering, Stanford University, Stanford, CA.
Stanford Research Institute, Menlo Park, CA.
Stanford University (the George Vanderbilt Foundation), Stanford, CA.
Syracuse University.
Tulane University Graduate School.
Tulane University Medical School.
University of Alabama.
University of Alabama Medical Center.
University of Chicago (as a participant in the International Cooperation 
Administration Program No. W-74 only).
University of Colorado (Department of History), Boulder, CO.
University of Connecticut, College of Liberal Arts and Science 
(Department of Germanic and Slavic Languages).
University of Hawaii, Honolulu, HI.
University of Ilinois at Urbana-Champaign, Austria-Illinois Exchange 
Program.
University of Kansas, Office of International Programs.
University of Michigan (School of Natural Resources), Ann Arbor, MI.
University of Minnesota, Department of Plant Pathology (in relationship 
to research project abroad).
University of Nebraska Mission in Columbia, South America.
University of North Carolina at Chapel Hill.
University of Notre Dame, Notre Dame, IN.
University of Puerto Rico.

[[Page 578]]

University of Washington (Department of Marketing, Transportation, and 
International Business) and (The School of Public Health and Community 
Medicine), Seattle, WA.
Wayne State University, Detroit, MI.
Wenner-Gren Foundation for Anthropological Research, Inc.
Williams College, Economic Department, Williamstown, MA.
    (b) Public international organizations of which the United States is 
a member by treaty or statute. The following-listed organizations have 
been determined to be public international organizations of which the 
United States is a member by treaty or statute:

The North Atlantic Treaty Organization.
United Nations and all agencies and organizations which are a part 
thereof.

    (c) International Organizations Immunities Act designations. The 
following public international organizations are entitled to enjoy the 
privileges, exemptions, and immunities provided for in the International 
Organizations Immunities Act, and are considered as public international 
organizations of which the United States is a member by treaty or 
statute within the meaning of section 316(b) of the Act and as public 
international organizations in which the United States participates by 
treaty or statute within the meaning of section 319(b) of the Act:

African Development Bank (E.O. 12403, Feb. 8, 1983).
African Development Fund (E.O. 11977, Mar. 14, 1977).
Asian Development Bank (E.O. 11334, Mar. 7, 1967).
Caribbean Organization (E.O. 10983, Dec. 30, 1961).
Criminal Police Organization (E.O. 12425, June 16, 1983).
Customs Cooperation Council (E.O. 11596, June 5, 1971).
European Space Research Organization (ESRO) (E.O. 11760, Jan. 17, 1974).
Food and Agriculture Organization, The (E.O. 9698, Feb 19, 1946).
Great Lakes Fishery Commission (E.O. 11059, Oct. 23, 1962).
Inter-American Defense Board (E.O. 10228, Mar. 26, 1951).
Inter-American Development Bank (E.O. 10873, Apr. 8, 1960).
Inter-American Institute for Cooperation on Agriculture (E.O. 9751, July 
11, 1946).
Inter-American Statistical Institute (E.O. 9751, July 11, 1946).
Inter-American Tropical Tuna Commission (E.O. 11059, Oct. 23, 1962).
Intergovernmental Committee for European Migration (formerly the 
Provisional Intergovernmental Committee for the Movement of Migrants 
from Europe) (E.O. 10335, Mar. 28, 1952).
Intergovernmental Maritime Consultative Organization (E.O. 10795, Dec. 
13, 1958).
International Atomic Energy Agency (E.O. 10727, Aug. 31, 1957).
International Bank for Reconstruction and Development (E.O. 9751, July 
11, 1946).
International Centre for Settlement of Investment Disputes (E.O. 11966, 
Jan. 19, 1977).
International Civil Aviation Organization (E.O. 9863, May 31, 1947).
International Coffee Organization (E.O. 11225, May 22, 1965).
International Cotton Advisory Committee (E.O. 9911, Dec. 19, 1947).
International Development Association (E.O. 11966, Jan. 19, 1977).
International Fertilizer Development Center (E.O. 11977, Mar. 14, 1977).
International Finance Corporation (E.O. 10680, Oct. 2, 1956).
International Food Policy Research Institute (E.O. 12359, Apr. 22, 
1982).
International Hydrographic Bureau (E.O. 10769, May 29, 1958).
International Institute for Cotton (E.O. 11283, May 27, 1966).
International Joint Commission--United States and Canada (E.O. 9972, 
June 25, 1948).
International Labor Organization, The (functions through staff known as 
The International Labor Office) (E.O. 9698, Feb. 19, 1946).
International Maritime Satellite Organization (E.O. 12238, Sept. 12, 
1980).
International Monetary Fund (E.O. 9751, July 11, 1946).
International Pacific Halibut Commission (E.O. 11059, Oct. 23, 1962).
International Secretariat for Volunteer Service (E.O. 11363, July 20, 
1967).
International Telecommunication Union (E.O. 9863, May 31, 1947).
International Telecommunications Satellite Organization (INTELSAT) (E.O. 
11718, May 14, 1973).
International Wheat Advisory Committee (E.O. 9823, Jan. 24, 1947).
Multinational Force and Observers (E.O. 12359, Apr. 22, 1982).
Organization for European Economic Cooperation (E.O. 10133, June 27, 
1950) (Now known as Organization for Economic Cooperation and 
Development; 28 FR 2959, Mar. 26, 1963).
Organization of African Unity (OAU) (E.O. 11767, Feb. 19, 1974).

[[Page 579]]

Organization of American States (includes Pan American Union) (E.O. 
10533, June 3, 1954).
Pan American Health Organization (includes Pan American Sanitary Bureau) 
(E.O. 10864, Feb. 18, 1960).
Preparatory Commission of the International Atomic Energy Agency (E.O. 
10727, Aug. 31, 1957).
Preparatory Commission for the International Refugee Organization and 
its successor, the International Refugee Organization (E.O. 9887, Aug. 
22, 1947).
South Pacific Commission (E.O. 10086, Nov. 25, 1949).
United International Bureau for the Protection of Intellectual Property 
(BIRPI) (E.O. 11484, Sept. 29, 1969).
United Nations, The (E.O. 9698, Feb. 19, 1946).
United Nations Educational, Scientific, and Cultural Organizations (E.O. 
9863, May 31, 1947).
Universal Postal Union (E.O. 10727, Aug. 31, 1957).
World Health Organization (E.O. 10025, Dec. 30, 1948).
World Intellectual Property Organization (E.O. 11866, June 18, 1975).
World Meteorological Organization (E.O. 10676, Sept. 1, 1956).

[32 FR 9634, July 4, 1967. Redesignated and amended at 56 FR 50487, Oct. 
7, 1991]

    Editorial Note: For Federal Register citations affecting 
Sec. 316.20, see the List of CFR Sections Affected in the Finding Aids 
section of this volume.



PART 318--PENDING DEPORTATION PROCEEDINGS--Table of Contents




    Authority: Secs. 103, 242, 318, 332, 66 Stat. 173, 208, as amended, 
244, 252; 8 U.S.C. 1103, 1252, 1429, 1443.



Sec. 318.1  Warrant of arrest.

    For the purposes of section 318 of the act, an order to show cause 
issued under part 242 of this chapter shall be regarded as a warrant of 
arrest.

[22 FR 9813, Dec. 6, 1957]



PART 319--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: SPOUSES OF UNITED STATES CITIZENS--Table of Contents




Sec.
319.1  Person living in marital union with United States citizen spouse.
319.2  Person whose United States citizen spouse is employed abroad.
319.3  Surviving spouses of United States citizens who died during a 
          period of honorable service in an active duty status in the 
          Armed Forces of the United States.
319.4  Persons continuously employed for 5 years by United States 
          organizations engaged in disseminating information.
319.5  Public international organizations in which the U.S. participates 
          by treaty or statute.
319.6  United States nonprofit organizations engaged abroad in 
          disseminating information which significantly promotes U.S. 
          interests.
319.7--319.10  [Reserved]
319.11  Filing of application.

    Authority: 8 U.S.C. 1103, 1430, 1443.



Sec. 319.1   Persons living in marital union with United States citizen spouse.

    (a) Eligibility. To be eligible for naturalization under section 
319(a) of the Act, the spouse of a United States citizen must establish 
that he or she:
    (1) Has been lawfully admitted for permanent residence to the United 
States;
    (2) Has resided continuously within the United States, as defined 
under Sec. 316.5 of this chapter, for a period of at least three years 
after having been lawfully admitted for permanent residence;
    (3) Has been living in marital union with the citizen spouse for the 
three years preceding the date of examination on the application, and 
the spouse has been a United States citizen for the duration of that 
three year period;
    (4) Has been physically present in the United States for periods 
totaling at least 18 months;
    (5) Has resided, as defined in Sec. 316.5 of this chapter, for at 
least 3 months immediately preceding the filing of the application, or 
immediately preceding the examination on the application if the 
application was filed early pursuant to section 334(a) of the Act and 
the three month period falls within the required period of residence 
under section 316(a) or 319(a) of the Act, in the State or Service 
district having jurisdiction over the alien's actual place of residence 
and in which the alien has filed the application;
    (6) Has resided continuously within the United States from the date 
of application for naturalization until the time of admission to 
citizenship;

[[Page 580]]

    (7) For all relevant periods under this paragraph, has been and 
continues to be a person of good moral character, attached to the 
principles of the Constitution of the United States, and favorably 
disposed toward the good order and happiness of the United States; and
    (8) Has complied with all other requirements for naturalization as 
provided in part 316 of this chapter, except for those contained in 
Sec. 316.2 (a)(3) through (a)(5) of this chapter.
    (b) Marital union--(1) General. An applicant lives in marital union 
with a citizen spouse if the applicant actually resides with his or her 
current spouse. The burden is on the applicant to establish, in each 
individual case, that a particular marital union satisfies the 
requirements of this part.
    (2) Loss of Marital Union--(i) Divorce, death or expatriation. A 
person is ineligible for naturalization as the spouse of a United States 
citizen under section 319(a) of the Act if, before or after the filing 
of the application, the marital union ceases to exist due to death or 
divorce, or the citizen spouse has expatriated. Eligibility is not 
restored to an applicant whose relationship to the citizen spouse 
terminates before the applicant's admission to citizenship, even though 
the applicant subsequently marries another United States citizen.
    (ii) Separation--(A) Legal separation. Any legal separation will 
break the continuity of the marital union required for purposes of this 
part.
    (B) Informal separation. Any informal separation that suggests the 
possibility of marital disunity will be evaluated on a case-by-case 
basis to determine whether it is sufficient enough to signify the 
dissolution of the marital union.
    (C) Involuntary separation. In the event that the applicant and 
spouse live apart because of circumstances beyond their control, such as 
military service in the Armed Forces of the United States or essential 
business or occupational demands, rather than because of voluntary legal 
or informal separation, the resulting separation, even if prolonged, 
will not preclude naturalization under this part.
    (c) Physical presence in the United States. In the event that the 
alien spouse has never been in the United States, eligibility under this 
section is not established even though the alien spouse resided abroad 
in marital union with the citizen spouse during the three year period.

[56 FR 50488, Oct. 7, 1991]



Sec. 319.2  Person whose United States citizen spouse is employed abroad.

    (a) Eligibility. To be eligible for naturalization under section 
319(b) of the Act, the alien spouse of a United States citizen must:
    (1) Establish that his or her citizen spouse satisfies the 
requirements under section 319(b)(1) of the Act, including that he or 
she is regularly stationed abroad. For purposes of this section, a 
citizen spouse is regularly stationed abroad if he or she proceeds 
abroad, for a period of not less than one year, pursuant to an 
employment contract or orders, and assumes the duties of employment;
    (2) At the time of examination on the application for 
naturalization, be present in the United States pursuant to a lawful 
admission for permanent residence;
    (3) At the time of naturalization, be present in the United States;
    (4) Declare in good faith, upon naturalization before the Service, 
an intention:
    (i) To reside abroad with the citizen spouse; and
    (ii) To take up residence within the United States immediately upon 
the termination of the citizen spouse's employment abroad;
    (5) Be a person of good moral character, attached to the principles 
of the Constitution of the United States, and favorably disposed toward 
the good order and happiness of the United States; and
    (6) Comply with all other requirements for naturalization as 
provided in part 316 of this chapter, except for those contained in 
Sec. 316.2(a)(3) through (a)(6) of this chapter.
    (b) Alien spouse's requirement to depart abroad immediately after 
naturalization. An alien spouse seeking naturalization under section 
319(b) of the Act must:
    (1) Establish that he or she will depart to join the citizen spouse 
within 30 to 45 days after the date of naturalization;

[[Page 581]]

    (2) Notify the Service immediately of any delay or cancellation of 
the citizen spouse's assignment abroad; and
    (3) Notify the Service immediately if he or she is unable to reside 
with the citizen spouse because the citizen spouse is employed abroad in 
an area of hostilities where dependents may not reside.
    (c) Loss of marital union due to death, divorce, or expatriation of 
the citizen spouse. A person is ineligible for naturalization as the 
spouse of a United States citizen under section 319(b) of the Act if, 
before or after the filing of the application, the marital union ceases 
to exist due to death or divorce, or the citizen spouse has expatriated. 
Eligibility is not restored to an applicant whose relationship to the 
citizen spouse terminates before the applicant's admission into 
citizenship, even though the applicant subsequently marries another 
United States citizen.

[56 FR 50488, Oct. 7, 1991]



Sec. 319.3  Surviving spouses of United States citizens who died during a period of honorable service in an active duty status in the Armed Forces of the United 
          States.

    (a) Eligibility. To be eligible for naturalization under section 
319(d) of the Act, the surviving spouse of a United States citizen must:
    (1) Establish that his or her citizen spouse died during a period of 
honorable service in an active duty status in the Armed Forces of the 
United States;
    (2) Establish that he or she was living in marital union with the 
citizen spouse, in accordance with Sec. 319.1(b), at the time of that 
spouse's death;
    (3) At the time of examination on the application for 
naturalization, reside in the United States pursuant to a lawful 
admission for permanent residence;
    (4) Be a person of good moral character, attached to the principles 
of the Constitution of the United States, and favorably disposed toward 
the good order and happiness of the United States; and
    (5) Comply with all other requirements for naturalization as 
provided in part 316 of this chapter, except for those contained in 
Sec. 316.2(a)(3) through (a)(6) of this chapter.
    (b) Remarriage of the surviving spouse. The surviving spouse of a 
United States citizen described under paragraph (a)(1) of this section 
remains eligible for naturalization under section 319(d) of the Act, 
even if the surviving spouse remarries.

[56 FR 50488, Oct. 7, 1991]



Sec. 319.4  Persons continuously employed for 5 years by United States organizations engaged in disseminating information.

    To be eligible for naturalization under section 319(c) of the Act, 
an applicant must:
    (a) Establish that he or she is employed as required under section 
319(c)(1) of the Act;
    (b) Reside in the United States pursuant to a lawful admission for 
permanent residence;
    (c) Establish that he or she has been employed as required under 
paragraph (a) of this section continuously for a period of not less than 
five years after a lawful admission for permanent residence;
    (d) File his or her application for naturalization while employed as 
required under paragraph (a) of this section, or within six months 
following the termination of such employment;
    (e) Be present in the United States at the time of naturalization;
    (f) Declare in good faith, upon naturalization before the Service, 
an intention to take up residence within the United States immediately 
upon his or her termination of employment;
    (g) Be a person of good moral character, attached to the principles 
of the Constitution of the United States, and favorably disposed toward 
the good order and happiness of the United States; and
    (h) Comply with all other requirements for naturalization as 
provided in part 316 of this chapter, except for those contained in 
Sec. 316.2(a)(3) through (a)(6) of this chapter.

[56 FR 50489, Oct. 7, 1991]

[[Page 582]]



Sec. 319.5  Public international organizations in which the U.S. participates by treaty or statute.

    Organizations designated by the President as international 
organizations pursuant to the International Organizations Immunities Act 
are considered as public international organizations in which the United 
States participates by treaty or statute within the meaning of section 
319(b) or the Act. For a list of such organizations see Sec. 316.20(b) 
of this chapter. In addition, the following have been determined to be 
public international organizations within the purview of section 319(b) 
of the Act:

The North Atlantic Treaty Organization.
The United Nations and all agencies and organizations which are a part 
thereof.

The regional commissioner shall forward a copy of each decision 
regarding a public international organization to the Assistant 
Commissioner, Naturalization.

[32 FR 9635, July 4, 1967. Redesignated at 33 FR 255, Jan. 9, 1968. 
Further redesignated and amended at 56 FR 50489, Oct. 7, 1991]



Sec. 319.6  United States nonprofit organizations engaged abroad in disseminating information which significantly promotes U.S. interests.

    The following have been determined to be U.S. incorporated nonprofit 
organizations principally engaged in conducting abroad through 
communications media the dissemination of information which 
significantly promotes U.S. interests abroad within the purview of 
section 319(c) of the Act:

Free Europe, Inc.; formerly Free Europe Committee, Inc.; National 
Committee for a Free Europe (including Radio Free Europe)).
Radio Liberty Committee, Inc. (formerly American Committee for 
Liberation, Inc.; American Committee for Liberation of the Peoples of 
Russia, Inc.; American Committee for Liberation from Bolshevism, Inc.).

[33 FR 255, Jan. 9, 1968. Redesignated and amended at 56 FR 50489, Oct. 
7, 1991]
Secs. 319.7--319.10  [Reserved]



Sec. 319.11  Filing of application.

    (a) General. An applicant covered by this part shall submit to the 
Service an application for naturalization on Form N-400, with the 
required fee, in accordance with the instructions contained therein. An 
alien spouse applying for naturalization under section 319(b) of the Act 
and Sec. 319.2 shall also submit a statement of intent containing the 
following information about the citizen spouse's employment and the 
applicant's intent following naturalization:
    (1) The name of the employer and:
    (i) The nature of the employer's business; or
    (ii) The ministerial, religious, or missionary activity in which the 
employer is engaged;
    (2) Whether the employing entity is owned in whole or in part by 
United States interests;
    (3) Whether the employing entity is engaged in whole or in part in 
the development of the foreign trade and commerce of the United States;
    (4) The nature of the activity in which the citizen spouse is 
engaged;
    (5) The anticipated period of employment abroad;
    (6) Whether the alien spouse intends to reside abroad with the 
citizen spouse; and,
    (7) Whether the alien spouse intends to take up residence within the 
United States immediately upon the termination of such employment abroad 
of the citizen spouse.
    (b) Applications by military spouses--(1) General. The alien spouses 
of United States military personnel being assigned abroad must satisfy 
the basic requirements of section 319(b) of the Act and of paragraph (a) 
of this section.
    (2) Government expense. In the event that transportation expenses 
abroad for the alien spouse are to be paid by military authorities, a 
properly executed Certificate of Overseas Assignment to Support 
Application to File Petition for Naturalization, DD Form 1278 will be 
submitted in lieu of the statement of intent required by paragraph (a) 
of this section. Any DD Form 1278 issued more than 90 days in advance of 
departure is unacceptable for purposes of this section.
    (3) Private expense. In the event that the alien spouse is not 
authorized to travel abroad at military expense, the alien spouse must 
submit in lieu of the

[[Page 583]]

statement of intent required by paragraph (a) of this section:
    (i) A copy of the citizen spouse's military travel orders,
    (ii) A letter from the citizen spouse's commanding officer 
indicating that the military has no objection to the applicant traveling 
to and residing in the vicinity of the citizen spouse's new duty 
station; and
    (iii) Evidence of transportation arrangements to the new duty 
station.

[56 FR 50489, Oct. 7, 1991]



PART 322--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: CHILDREN OF CITIZEN PARENT--Table of Contents




Sec.
322.1  [Reserved]
322.2  Eligibility.
322.3  Jurisdiction for filing application.
322.4  Application and examination on the application.
322.5  Oath of allegiance.

    Authority: 8 U.S.C. 1103, 1433, 1443, 1448.

    Source: 56 FR 50489, Oct. 7, 1991, unless otherwise noted.
Sec. 322.1  [Reserved]



Sec. 322.2  Eligibility.

    (a) General. To be eligible for naturalization under section 322 of 
the Act, a child on whose behalf an application for naturalization has 
been filed by a parent who is, at the time of filing, a citizen of the 
United States, must:
    (1) Be unmarried and under 18 years of age, both at the time of 
application and at the time of admission to citizenship;
    (2) Reside permanently in the United States, in the physical and 
legal custody of the applying citizen parent, pursuant to a lawful 
admission for permanent residence;
    (3) Be a person of good moral character, attached to the principles 
of the Constitution of the United States, and favorably disposed toward 
the good order and happiness of the United States; a child under the age 
of fourteen will generally be presumed to satisfy this requirement;
    (4) Comply with all other requirements for naturalization as 
provided in the Act and in part 316 of this chapter, including the 
disqualifications contained in sections 313, 314, 315, and 318 of the 
Act, except:
    (i) The child is not required to satisfy the residence requirements 
under Sec. 316.2 (a)(3), (a)(4), (a)(5), or (a)(6) of this chapter; and,
    (ii) The child is exempt from the literacy and knowledge 
requirements under section 312 of the Act.
    (b) Definition of Child. For purposes of this part,
    (1) The definition of child includes:
    (i) A legitimate child;
    (ii) A child who is legitimated before the child reaches age 16 
under the laws of the child's residence or domicile, or under the laws 
of the father's residence or domicile, whether inside or outside of the 
United States, if such legitimation takes place while the child is in 
the legal custody of the legitimating parent or parents at the time of 
such legitimation;
    (iii) An illegitimate child if the application is being submitted by 
the child's natural mother; or
    (iv) A child who is adopted before the child reaches age 16.
    (2) The definition of child does not include:
    (i) A stepchild; or
    (ii) An illegitimate child, except as provided in paragraph 
(b)(1)(iii) of this section, even if the child is recognized but not 
legitimated by the father.
    (c) Adopted children of a parent who meets the criteria of section 
319(b)(1) of the Act. An adopted child who is in the United States at 
the time of naturalization is also exempt from the residence 
requirements of Sec. 316.2(a)(5) of this chapter if the child's adoptive 
citizen parent:
    (1) Meets the criteria of section 319(b)(1) of the Act;
    (2) Applies for naturalization of the child under section 322(c) of 
the Act; and
    (3) Declares before the Service an intention in good faith to take 
up residence within the United States immediately upon termination of 
employment described in section 319(b)(1)(B) of the Act.

[56 FR 50489, Oct. 7, 1991, as amended at 58 FR 49913, Sept. 24, 1993]

[[Page 584]]



Sec. 322.3  Jurisdiction for filing application.

    (a) The application for naturalization under section 322(a) of the 
Act must be filed with the office of the Service having jurisdiction 
over the place of residence of the child and the child's citizen parent.
    (b) An application for naturalization under section 322(c) of the 
Act and Sec. 322.2(c) may be filed in any office of the Service without 
regard to residence.



Sec. 322.4  Application and examination on the application.

    (a) An application for naturalization under this section in behalf 
of a child shall be submitted on Form N-400 by the citizen parent. If 
the child is over the age of fourteen, Form FD-258, fingerprint card, 
must accompany the application.
    (b) The application must be accompanied by proof of:
    (1) The child's admission for lawful permanent residence;
    (2) The applying citizen parent's United States citizenship; and
    (3) The relationship between the child and applying citizen parent.
    (c) In the case of an applicant under section 322(c) of the Act, the 
citizen parent shall also submit a statement of intent containing the 
following information about the citizen parent's employment and the 
child's intentions following naturalization:
    (1) The name of the employer and either the nature of the employer's 
business, or the ministerial, religious, or missionary activity in which 
the employer is engaged;
    (2) Whether the employing entity is owned in whole or in part by 
United States interests;
    (3) Whether the employing entity is engaged in whole or in part in 
the development of the foreign trade and commerce of the United States;
    (4) The nature of the activity in which the citizen parent is 
engaged;
    (5) The anticipated period of employment abroad;
    (6) The child's intention to reside abroad with the citizen parent: 
and
    (7) Whether the citizen parent intends to take up residence within 
the United States immediately upon the termination of such employment 
abroad of the citizen parent.
    (d) In the case of a citizen parent whose employment abroad is in 
connection with his or her membership in the Armed Forces of the United 
States, a properly executed DD Form 1278 will satisfy the requirements 
of paragraph (c) of this section.
    (e) The child and the citizen parent must both appear at the 
examination on the application.



Sec. 322.5  Oath of allegiance.

    (a) A child, as defined in Sec. 322.2(b), must take the oath of 
allegiance in compliance with part 337 of this chapter, if the child is 
capable of understanding the meaning of the oath.
    (b) If the child is not exempt from the requirement to take the oath 
of allegiance, the citizen parent must be present at the oath taking 
ceremony, unless such parent has been excused for good cause.



PART 324--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALlZED: WOMEN WHO HAVE LOST UNITED STATES CITIZENSHIP BY MARRIAGE AND FORMER CITIZENS WHOSE NATURALIZATION IS AUTHORIZED BY PRlVATE LAW--Table of Contents





Sec.
324.1  Definitions.
324.2  Former citizen at birth or by naturalization.
324.3  Women, citizens of the United States at birth, who lost or are 
          believed to have lost citizenship by marriage and whose 
          marriage has terminated.
324.4  Women restored to United States citizenship by the act of June 
          25, 1936, as amended by the act of July 2, 1940.
324.5  Former citizen of the United States whose naturalization by 
          taking the oath is authorized by a private law.

    Authority: 8 U.S.C. 1103, 1435, 1443, 1448, 1101 note.



Sec. 324.1  Definitions.

    As used in this part:
    Oath means the Oath of Allegiance as prescribed in section 337 of 
the Act.

[56 FR 50490, Oct. 7, 1991]

[[Page 585]]



Sec. 324.2  Former citizen at birth or by naturalization.

    (a) Eligibility. To be eligible for naturalization under section 
324(a) of the Act, an applicant must establish that she:
    (1) Was formerly a United States citizen;
    (2) Lost or may have lost United States citizenship:
    (i) Prior to September 22, 1922, by marriage to an alien, or by the 
loss of United States citizenship of the applicant's spouse; or
    (ii) On or after September 22, 1922, by marriage before March 3, 
1931 to an alien ineligible to citizenship;
    (3) Did not acquire any other nationality by affirmative act other 
than by marriage;
    (4) Either:
    (i) Has resided in the United States continuously since the date of 
the marriage referred to in paragraph (a)(2) of this section; or
    (ii) Has been lawfully admitted for permanent residence prior to 
filing an application for naturalization;
    (5) Has been and is a person of good moral character, attached to 
the principles of the Constitution of the United States, and favorably 
disposed toward the good order and happiness of the United States, for 
the period of not less than five years immediately preceding the 
examination on the application for naturalization up to the time of 
admission to citizenship; and
    (6) Complies with all other requirements for naturalization as 
provided in part 316 of this chapter, except that:
    (i) The applicant is not required to satisfy the residence 
requirements under Sec. 316.2(a)(3) through (a)(6) of this chapter; and,
    (ii) The applicant need not set forth an intention to reside 
permanently within the United States.
    (b) Application. An applicant for naturalization under this section 
must submit an application on Form N-400, as required by Sec. 316.4 of 
this chapter. The application must be accompanied by a statement 
describing the applicant's eligibility as provided in paragraph (a) of 
this section as well as any available documentation to establish those 
facts. An application under this section shall be filed with the Service 
office having jurisdiction over the place of residence of the applicant.

[56 FR 50490, Oct. 7, 1991]



Sec. 324.3  Women, citizens of the United States at birth, who lost or are believed to have lost citizenship by marriage and whose marriage has terminated.

    (a) Eligibility. To be eligible for naturalization under section 
324(c) of the Act, an applicant must establish:
    (1) That she was formerly a United States citizen by birth;
    (2) That she lost or may have lost her United States citizenship:
    (i) Prior to September 22, 1922, by marriage to an alien; or
    (ii) On or after September 22, 1922, by marriage to an alien 
ineligible to citizenship before March 3, 1931;
    (3) That the marriage specified in paragraph (a)(2) of this section 
terminated subsequent to January 12, 1941;
    (4) That she did not acquire any other nationality by affirmative 
act other than by marriage; and
    (5) That she is not proscribed from naturalization under section 313 
of the Act.
    (b) Procedures--(1) Application. An applicant eligible for 
naturalization pursuant to paragraph (a) of this section, who desires to 
regain citizenship pursuant to section 324(c) of the Act, shall submit, 
without fee, an Application for Naturalization, form N-400, to the 
office of the Service having jurisdiction over her place of residence as 
evidence of her desire to take the oath.
    (2) Oath of Allegiance. The district director shall review the 
applicant's submission, and shall inform the applicant of her 
eligibility under section 324(c) of the Act to take the oath in 
conformity with part 337 of this chapter. After the applicant has taken 
the oath, the applicant will be furnished with a copy of the oath by the 
clerk of the Court or the Service, as appropriate, properly certified, 
for which a fee not exceeding $5 may be charged. The oath may also be 
taken abroad before any diplomatic or consular officer of the United 
States, in accordance with such regulations as may be prescribed by the 
Secretary of State.

[56 FR 50490 and 50491, Oct. 7, 1991]

[[Page 586]]



Sec. 324.4  Women restored to United States citizenship by the act of June 25, 1936, as amended by the act of July 2, 1940.

    A woman who was restored to citizenship by the act of June 25, 1936, 
as amended by the act of July 2, 1940, but who failed to take the oath 
of allegiance prescribed by the naturalization laws prior to December 
24, 1952, may take the oath before any naturalization court or office of 
the Service within the United States. Such woman shall comply with the 
procedural requirements of Sec. 324.4(b) and (c) except that a fee not 
exceeding $1.00 may be charged if the woman requests a copy of the oath.

[22 FR 9814, Dec. 6, 1957. Redesignated and amended at 56 FR 50490 and 
50491, Oct. 7, 1991]



Sec. 324.5  Former citizen of the United States whose naturalization by taking the oath is authorized by a private law.

    A former citizen of the United States whose naturalization by taking 
the oath before any naturalization court or office of the Service within 
the United States is authorized by a private law shall submit to the 
Service an application on Form N-400, without fee. The application to 
the court shall be made on Form N-400, in triplicate, amended as set 
forth in this chapter. A copy of the private law shall be attached to 
Form N-408. The provisions of Sec. 324.5(c) relating to fees and copies 
of the oath will apply to a proceeding under this section.

[23 FR 2673, Apr. 23, 1958. Redesignated and amended at 56 FR 50490 and 
50491, Oct. 7, 1991]



PART 325--NATIONALS BUT NOT CITIZENS OF THE UNITED STATES; RESIDENCE WITHIN OUTLYING POSSESSIONS--Table of Contents




Sec.
325.1  [Reserved]
325.2  Eligibility.
325.3  Residence.
325.4  Application; documents.

    Authority: 8 U.S.C. 1103, 1436, 1443.

    Source: 56 FR 50491, Oct. 7, 1991, unless otherwise noted.
Sec. 325.1  [Reserved]



Sec. 325.2   Eligibility.

    An applicant for naturalization under section 325 of the Act who 
owes permanent allegiance to the United States, and who is otherwise 
qualified may be naturalized if:
    (a) The applicant becomes a resident of any State; and
    (b) The applicant complies with all of the applicable requirements 
in parts 316 or 319 of this chapter, as appropriate, except as modified 
in this part.



Sec. 325.3   Residence.

    (a) For purposes of applying the residence and physical presence 
requirements in parts 316 and 319 of this chapter, except as they relate 
to the required three months' residence in a State or Service district, 
residence and physical presence in an outlying possession of the United 
States will count as residence and physical presence in the United 
States.
    (b) An applicant who intends to resume residence in an outlying 
possession after naturalization will be regarded as having established 
that he or she intends to reside permanently in the United States.



Sec. 325.4   Application; documents.

    (a) An application for naturalization under this part shall be 
submitted in compliance with Sec. 316.4(a) of this chapter.
    (b) The applicant shall submit with the application:
    (1) A birth certificate or other evidence of national status;
    (2) Proof of identity; and
    (3) Evidence of actual residence in the State or Service district in 
the United States where the application is filed for three months 
immediately preceding the filing of the application, or immediately 
preceding the examination on the application if the application was 
filed early pursuant to section 334(a) of the Act and the three month 
period falls within the required period of residence under section 
316(a) or 319(a) of the Act.

[[Page 587]]



   PART 327--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: PERSONS WHO LOST UNITED STATES CITlZENSHIP THROUGH SERVICE IN ARMED FORCES OF FOREIGN COUNTRY DURlNG WORLD WAR II--Table of Contents





Sec.
327.1  Eligibility.
327.2  Procedure for naturalization.

    Authority: 8 U.S.C. 1103, 1438, 1443.



Sec. 327.1   Eligibility.

    To be eligible for naturalization under section 327 of the Act, an 
applicant must establish that:
    (a) The applicant, on or after September 1, 1939 and on or before 
September 2, 1945:
    (1) Served in the military, air or naval forces of any country at 
war with a country with which the United States was at war after 
December 7, 1941 and before September 2, 1945; or
    (2) Took an oath of allegiance or obligation for purposes of 
entering or serving in the military, air, or, naval forces of any 
country at war with a country with which the United States was at war 
after December 7, 1941 and before September 2, 1945;
    (b) The applicant was a United States citizen at the time of the 
service or oath specified in paragraph (a) of this section;
    (c) The applicant lost United States citizenship as a result of the 
service or oath specified in paragraph (a) of this section;
    (d) The applicant has been lawfully admitted for permanent residence 
and intends to reside permanently in the United States;
    (e) The applicant is, and has been for a period of at least five 
years immediately preceding taking the oath required in Sec. 327.2(c), a 
person of good moral character, attached to the principles of the 
Constitution of the United States, and favorably disposed toward the 
good order and happiness of the United States; and
    (f) The applicant has complied with all other requirements for 
naturalization as provided in part 316 of this chapter, except for those 
contained in Sec. 316.2 (a)(3) through (a)(6) of this chapter.

[56 FR 50492, Oct. 7, 1991]



Sec. 327.2   Procedure for naturalization.

    (a) Application. An applicant who is eligible for naturalization 
pursuant to section 327 of the Act and Sec. 327.1 shall submit an 
Application for Naturalization, Form N-400, in accordance with 
Sec. 316.4 of this chapter, to the Service office having jurisdiction 
over the applicant's place of residence. Such application must be 
accompanied by a statement describing the applicant's eligibility under 
Sec. 327.1 (a), (b), and (c) and any available documentation to 
establish those facts.
    (b) Oath of Allegiance. Upon naturalization of the applicant, the 
district director shall transmit a copy of the oath of allegiance taken 
by the applicant to the Department of State.

[56 FR 50492, Oct. 7, 1991]



PART 328--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: PERSONS WITH THREE YEARS SERVICE IN ARMED FORCES OF THE UNITED STATES--Table of Contents




Sec.
328.1  Definitions.
328.2  Eligibility.
328.3  Jurisdiction.
328.4  Application.

    Authority: 8 U.S.C. 1103, 1439, 1443.

    Source: 56 FR 50492, Oct. 7, 1991, unless otherwise noted.



Sec. 328.1   Definitions.

    As used in this part:
    Honorable service means only that military service which is 
designated as honorable service by the executive department under which 
the applicant performed that military service. Any service that is 
designated to be other than honorable will not qualify under this 
section.
    Service in the Armed Forces of the United States means:
    (1) Active or reserve service in the United States Army, United 
States Navy, United States Marines, United States Air Force, or United 
States Coast Guard; or

[[Page 588]]

    (2) Service in a National Guard unit during such time as the unit is 
Federally recognized as a reserve component of the Armed Forces of the 
United States.



Sec. 328.2   Eligibility.

    To be eligible for naturalization under section 328(a) of the Act, 
an applicant must establish that the applicant:
    (a) Has served honorably in and, if separated, has been separated 
honorably from, the Armed Forces of the United States;
    (b) Has served under paragraph (a) of this section for a period of 
three or more years, whether that service is continuous or 
discontinuous;
    (c) Is a lawful permanent resident of the United States at the time 
of the examination on the application;
    (d) Has been, during any period within five years preceding the 
filing of the application for naturalization, or the examination on the 
application if eligible for early filing under section 334(a) of the 
Act, and continues to be, of good moral character, attached to the 
principles of the Constitution of the United States, and favorably 
disposed toward the good order and happiness of the United States.
    (1) An applicant is presumed to satisfy the requirements of this 
paragraph during periods of honorable service under paragraph (a) of 
this section.
    (2) An applicant must establish that he or she satisfies the 
requirements of this paragraph from the date of discharge from military 
until the date of admission to citizenship.
    (3) An applicant whose honorable service is discontinuous must also 
demonstrate that he or she satisfies the requirements of this paragraph 
for those periods of time when that applicant is not in honorable 
service.
    (e) Has complied with all other requirements for naturalization as 
provided in part 316 of this chapter, except that:
    (1) An applicant who files an application for naturalization while 
still in honorable service, or within six months after termination of 
such service, is generally not required to satisfy the residence 
requirements under Sec. 316.2(a)(3) through (a)(6) of this chapter; 
however, if the applicant's military service is discontinuous, that 
applicant must establish, for periods between honorable service during 
the five years immediately preceding the date of filing the application, 
or the examination on the application if eligible for early filing under 
section 334(a) of the Act, that he or she resided in the United States 
and in the State or Service district in the United States in which the 
application is filed.
    (2) An applicant who files an application for naturalization more 
than six months after terminating honorable service must satisfy the 
residence requirements under Sec. 316.2(a)(3) through (a)(6) of this 
chapter. However, any honorable service by the applicant within the five 
years immediately preceding the date of filing of the application shall 
be considered as residence within the United States for purposes of 
Sec. 316.2(a)(3) of this chapter.



Sec. 328.3   Jurisdiction.

    An application filed within 6 months after discharge may be filed 
with any office of the Service within the United States regardless of 
place of residence of the applicant. An application filed more than 6 
months after discharge shall be filed with the Service office having 
jurisdiction over the State or Service district where the applicant has 
been residing for at least three months immediately preceding the filing 
of the application, or immediately preceding the examination on the 
application if the application was filed early pursuant to section 
334(a) of the Act and the three month period falls within the required 
period of residence under section 316(a) or 319(a) of the Act.



Sec. 328.4   Application.

    An applicant for naturalization under this part must submit an 
Application for Naturalization, Form N-400, as provided in Sec. 316.4 of 
this chapter. The application must be accompanied by Form N-426, 
Certificate of Military or Naval Service; and Form G-325B, Biographic 
Form.

[[Page 589]]



 PART 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--Table of Contents





Sec.
329.1  Definitions.
329.2  Eligibility.
329.3  Jurisdiction.
329.4  Application and evidence.
329.5  Natives of the Philippines with active duty service during World 
          War II.

    Authority: 8 U.S.C. 1103, 1440, 1443.



Sec. 329.1   Definitions.

    As used in this part:
    Honorable service and separation means service and separation from 
service which the executive department under which the applicant served 
determines to be honorable, including:
    (1) That such applicant had not been separated from service on 
account of alienage;
    (2) That such applicant was not a conscientious objector who 
performed no military, air or naval duty; and
    (3) That such applicant did not refuse to wear a military uniform.
    Service in an active duty status in the Armed Forces of the United 
States means active service in the following organizations:
    (1) United States Army, United States Navy, United States Marines, 
United States Air Force, United States Coast Guard; or
    (2) A National Guard unit during such time as the unit is Federally 
recognized as a reserve component of the Armed Forces of the United 
States and that unit is called for active duty.
    World War I means the period beginning on April 6, 1917, and ending 
on November 11, 1918.

[56 FR 50493, Oct. 7, 1991]



Sec. 329.2   Eligibility.

    To be eligible for naturalization under section 329(a) of the Act, 
an applicant must establish that he or she:
    (a) Has served honorably in an active duty status in the Armed 
Forces of the United States during:
    (1) World War I;
    (2) The period beginning on September 1, 1939 and ending on December 
31, 1946;
    (3) The period beginning on June 25, 1950 and ending on July 1, 
1955;
    (4) The period beginning on February 28, 1961 and ending on October 
15, 1978; or
    (5) Any other period as may be designated by the President in an 
Executive Order pursuant to section 329(a) of the Act;
    (b) If separated, has been separated honorably from service in the 
Armed Forces of the United States under paragraph (a) of this section;
    (c) Satisfies the permanent residence requirement in one of the 
following ways:
    (1) Any time after enlistment or induction into the Armed Forces of 
the United States, the applicant was lawfully admitted to the United 
States as a permanent resident; or
    (2) At the time of enlistment or induction, the applicant was 
physically present in the geographical territory of the United States, 
the Canal Zone, American Samoa, Midway Island (prior to August 21, 
1959), or Swain's Island, or in the ports, harbors, bays, enclosed sea 
areas, or the three-mile territorial sea along the coasts of these land 
areas, whether or not the applicant has been lawfully admitted to the 
United States as a permanent resident;
    (d) Has been, for at least one year prior to filing the application 
for naturalization, and continues to be, of good moral character, 
attached to the principles of the Constitution of the United States, and 
favorably disposed toward the good order and happiness of the United 
States; and
    (e) Has complied with all other requirements for naturalization as 
provided in part 316 of this chapter, except that:
    (1) The applicant may be of any age;
    (2) The applicant is not required to satisfy the residence 
requirements under Sec. 316.2 (a)(3) through (a)(6) of this chapter; and
    (3) The applicant may be naturalized even if an outstanding order to 
show cause exists under part 242 of this chapter.

[56 FR 50493, Oct. 7, 1991, as amended at 58 FR 49913, Sept. 24, 1993]

[[Page 590]]



Sec. 329.3   Jurisdiction.

    Except as noted in Sec. 329.5, an application under this part may be 
filed in any office of the Service within the United States regardless 
of the place of residence of the applicant.

[56 FR 50493, Oct. 7, 1991]



Sec. 329.4   Application and evidence.

    (a) Application. An applicant for naturalization under section 329 
of the Act must submit an Application for Naturalization, Form N-400, as 
provided in Sec. 316.4 of this chapter. The application must be 
accompanied by Form N-426, Certificate of Military or Naval Service, in 
triplicate, and Form G-325B, Biographic Form.
    (b) Evidence. The applicant's eligibility for naturalization under 
Sec. 329.2(a), (b), or (c)(2) shall be established only by the 
certification of the executive department under which the applicant 
served or is serving.

[56 FR 50493, Oct. 7, 1991, as amended at 60 FR 6651, Feb. 3, 1995]



Sec. 329.5  Natives of the Philippines with active duty service during World War II.

    (a) A person desiring to naturalize in accordance with section 405 
of the Immigration Act of 1990 shall establish that he/she:
    (1) Was born in the Philippines;
    (2) Served honorably at any time during the period beginning 
September 1, 1939, and ending December 31, 1946--
    (i) In an active-duty status under the command of the United States 
Armed Forces in the Far East, or
    (ii) Within the Commonwealth Army of the Philippines, the Philippine 
Scouts, or recognized guerrilla units; and
    (3) Resided in the Philippines prior to the service described in 
paragraph (a)(2) of this section.
    (b) An application under this section shall be submitted in 
compliance with Sec. 329.2. In addition to the forms and documentation 
required in Sec. 329.2 and the appropriate fee as required in Sec. 103.7 
of this chapter, an applicant shall submit:
    (1) Proof of birth in the Philippines;
    (2) Police clearance for any place of residence for more than six 
months in the previous 5 years if such residence was not in the United 
States; and
    (3) Proof of identity.
    (c) If the applicant is residing in the United States, the 
application shall be submitted to the district or sub-office of the 
Service having jurisdiction over the place of residence in accordance 
with Secs. 100.4 (b) and (c) of this chapter. A person residing outside 
the United States shall submit the application to the Northern Service 
Center, 100 Centennial Mall North, room B26, Lincoln, Nebraska 68508.
    (d)(1) A person residing in the Philippines shall be examined on his 
or her application at Manila, Philippines, unless he or she indicates in 
the application a preference to be interviewed in the United States. 
Those persons wishing to be interviewed in the United States shall 
submit with the application a statement listing the desired location and 
the reasons therefor. The Service may interview the applicant at a 
different site other than the one requested if it would, in fact, be in 
the best interest of the applicant to do so.
    (2) A person residing outside the United States and outside the 
Philippines may request to be interviewed in the Philippines or in the 
United States. If such a person elects to be interviewed in the 
Philippines, he or she will be solely responsible for obtaining the 
necessary documents for entry into the Philippines.
    (e) To be considered an application for naturalization under section 
405, the application must be received by the Service no earlier than 
November 29, 1990, and no later than February 3, 1995.
    (f) No decision to approve or deny an application for naturalization 
under section 405 of the Immigration Act of 1990 may be made prior to 
May 1, 1991.
    (g) The service described in Sec. 329.5(a)(2) shall be provided 
solely by the duly authenticated records of the United States Army 
Reserve Personnel Records, St. Louis, Missouri, or the National 
Personnel Records Center, St. Louis, Missouri.
    (h) Irrespective of the requirement in Sec. 337.2(a) of this chapter 
that an administrative oath ceremony be conducted in the United States 
and within the jurisdiction in which the application was filed or was 
transferred pursuant to

[[Page 591]]

Sec. 335.9 of this chapter, the administrative oath ceremony for an 
applicant under this section may be held within the geographical limits 
of the Philippines, provided the examination on the application was 
conducted in the Philippines.
    (i) If it should be necessary to institute revocation proceedings 
pursuant to section 340 of the Act in the case of a person naturalized 
outside the United States pursuant to Sec. 329.5 and he or she has never 
resided in the United States, the report of facts required in 
Sec. 340.11 of this chapter shall be made to the district director 
having jurisdiction over the person's current residence outside the 
United States.

[56 FR 11061, Mar. 15, 1991, as amended at 58 FR 45420, Aug. 30, 1993; 
60 FR 45659, Sept. 1, 1995]



PART 330--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: SEAMEN--Table of Contents




Sec.
330.1  Eligibility.
330.2  Application.

    Authority: 8 U.S.C. 1103, 1443.



Sec. 330.1   Eligibility.

    To be eligible for naturalization under section 330 of the Act, an 
applicant must establish that he or she:
    (a) Has been lawfully admitted as a permanent resident of the United 
States;
    (b) Has served honorably or with good conduct, during such periods 
of lawful residence, in a capacity other than as a member of the Armed 
Forces of the United States, on board:
    (1) A vessel operated by the United States, or an agency thereof, 
the full legal and equitable title to which is in the United States; or
    (2) A vessel, whose home port is the United States, and
    (i) Which is registered under the laws of the United States; or
    (ii) The full legal and equitable title to which is in a citizen of 
the United States, or a corporation organized under the laws of any of 
the several States of the United States;
    (c) Served in the capacity specified in paragraph (b) of this 
section within five years immediately preceding the date on which the 
applicant filed the application for naturalization, or on which the 
alien is examined, if the application was filed early pursuant to 
section 334(a) of the Act.
    (d) Has been, during the five years preceding the filing of the 
application for naturalization, or the examination on the application if 
the application was filed early under section 334(a) of the Act, and 
continues to be, of good moral character, attached to the principles of 
the Constitution of the United States, and favorably disposed toward the 
good order and happiness of the United States.
    (1) An applicant is presumed to satisfy the requirements of this 
paragraph during periods of service in accordance with paragraphs (b) 
and (c) of this section, as reflected by the records and certificates 
submitted by the applicant under Sec. 330.2(b).
    (2) An applicant must demonstrate that he or she satisfies the 
requirements of this paragraph for those required periods when that 
applicant did not perform service in accordance with paragraphs (b) and 
(c) of this section; and
    (e) Has complied with all other requirements for naturalization as 
provided in part 316 of this chapter, except that, for purposes of the 
residence requirements under paragraphs Sec. 316.2 (a)(3) and (a)(4) of 
this chapter, service satisfying the conditions of this section shall be 
considered as residence and physical presence within the United States.

[56 FR 50493, Oct. 7, 1991]



Sec. 330.2  Application.

    (a) An applicant for naturalization under section 330 of the Act 
must submit an Application for Naturalization, Form N-400, to the 
Service office exercising jurisdiction over the applicant's actual 
residence in the United States. For the purpose of this section, the 
term ``actual residence'' means the applicant's residence and abode 
ashore as may have been established during the period of qualifying 
service as a seaman immediately prior to the filing of the application.

[[Page 592]]

    (b) An applicant under this part must submit authenticated copies of 
the records and certificates of either:
    (1) The Executive Department or Agencies having custody of records 
reflecting the applicant's service on a vessel in United States 
Government Service, if the applicant provided service under 
Sec. 330.1(b)(1); or
    (2) The masters of those vessels maintaining a home port in the 
United States, and either registered under the laws of the United States 
or owned by United States citizens or corporations, if the applicant 
provided service under Sec. 330.1(b)(2).

[56 FR 50493, Oct. 7, 1991]



PART 331--ALIEN ENEMIES; NATURALIZATION UNDER SPECIFIED CONDITIONS AND PROCEDURES--Table of Contents




Sec.
331.1  Definitions.
331.2  Eligibility.
331.3  Investigation.
331.4  Procedures.

    Authority: 8 U.S.C. 1103, 1443.

    Source: 56 FR 50494, Oct. 7, 1991, unless otherwise noted.



Sec. 331.1  Definitions.

    As used in this part:
    Alien enemy means any person who is a native, citizen, subject or 
denizen of any country, state or sovereignty with which the United 
States is at war, for as long as the United States remains at war, as 
determined by proclamation of the President or resolution of Congress.
    Denizen includes, but is not limited to, any person who has been 
admitted to residence and is entitled to certain rights in a country 
other than the one of the person's nationality. A person holding a 
status in another country equivalent to that of a lawful permanent 
resident in the United States would be considered to be a denizen.



Sec. 331.2  Eligibility.

    An alien enemy may be naturalized as a citizen of the United States 
under section 331 of the Act if:
    (a) The alien's application for naturalization is pending at the 
beginning of the state of war, or the Service has granted the alien an 
exception from the classification as an alien enemy after conducting an 
investigation in accordance with Sec. 331.3;
    (b) The alien's loyalty to the United States is fully established 
upon investigation by the Service in accordance with Sec. 331.3; and
    (c) The alien is otherwise entitled to admission to citizenship.



Sec. 331.3  Investigation.

    The Service shall conduct a full investigation of any alien enemy 
whose application for naturalization is pending upon declaration of war 
or at any time thereafter. This investigation may take place either 
prior to or after the examination on the application. This investigation 
shall encompass, but not be limited to, the applicant's loyalty to the 
United States and attachment to the country, state, or sovereignty with 
which the United States is at war.



Sec. 331.4  Procedures.

    (a) Upon determining that an applicant for naturalization is an 
alien enemy, the Service shall notify the applicant in writing of its 
determination. Upon service of this notice to the applicant, the 
provisions of section 336(b) of the Act will no longer apply to such 
applicant, until that applicant is no longer classifiable as an alien 
enemy.
    (b) Upon completion of the investigation described in Sec. 331.3, if 
the Service concludes that the applicant's loyalty and attachment to the 
United States have been fully established, the application may be 
granted.



PART 332--NATURALIZATION ADMINISTRATION--Table of Contents




Sec.
332.1  Designation of service employees to administer oaths and conduct 
          examinations and hearings.
332.2  Establishment of photographic and fingerprinting studios.
332.3  Instruction and training in citizenship responsibilities.
332.4  Cooperation with official National and State organizations.
332.5  Official forms for use by clerks of court.

    Authority: 8 U.S.C. 1103, 1443, 1447.

[[Page 593]]



Sec. 332.1  Designation of service employees to administer oaths and conduct examinations and hearings.

    (a) Examinations. All immigration examiners are hereby designated to 
conduct the examination for naturalization required under section 335 of 
the Act. A district director may also designate other officers of the 
Service, who are classified at grade levels equal to or higher than the 
grade of the immigration examiners, to conduct the examination under 
section 335 of the Act, provided that each officer so designated has 
received appropriate training.
    (b) Hearings. Section 336 of the Act authorizes immigration officers 
to conduct hearings under that section. A district director may 
designate the officers who are designated under paragraph (a) of this 
section to conduct hearings under section 336 of the Act.
    (c) Depositions. All immigration officers and other officers or 
employees of the Service who are classified at grade levels equal to or 
higher than the grade of the immigration officers are hereby designated 
to take depositions in matters relating to the administration of 
naturalization and citizenship laws.
    (d) Oaths and affirmations. All immigration officers and other 
officers or employees of the Service who are classified at grade levels 
equal to or higher than the grade of the immigration officers are hereby 
designated to administer oaths or affirmations except for the oath of 
allegiance as provided in Sec. 337.2 of this chapter.

[56 FR 50494, Oct. 7, 1991]



Sec. 332.2  Establishment of photographic and fingerprinting studios.

    District directors shall after investigation recommend to the 
appropriate regional commissioner the establishment and operation of 
studios providing photographic services, fingerprinting services or 
both. The studios shall be operated by sponsoring organizations on a 
nonprofit basis solely for the benefit of persons seeking to comply with 
the requirements of the immigration and naturalization laws. Such 
studios must be in a building occupied by the Service and be conducted 
under the supervision of the district director. Each sponsoring 
organization shall submit an annual accounting of the conduct of each 
studio to the regional commissioner through the district director.

[51 FR 35628, Oct. 7, 1986. Redesignated and amended at 56 FR 50494, 
Oct. 7, 1991]



Sec. 332.3  Instruction and training in citizenship responsibilities.

    (a) Headquarters and the field offices of the Service shall 
cooperate with appropriate authorities or organizations in the community 
to establish and maintain classes within, or under the supervision of, 
the public schools, for the purpose of preparing applicants for 
naturalization to accept the duties and responsibilities of citizenship. 
Service officers shall, whenever practical, visit such classes or 
otherwise provide necessary liaison with those authorities or 
organizations that are providing such educational preparation.
    (b) Citizenship textbooks and other study materials are intended for 
the free use of applicants for naturalization who are enrolled in 
instructional courses in or under the supervision of the public schools 
as provided in paragraph (a) of this section. Such textbooks and other 
study materials shall be distributed by the regional offices of the 
Service to the appropriate representatives of the public schools upon 
their written and signed requests.
    (c) Public school certificates attesting to the attendance and 
progress of enrollees shall be given favorable consideration by Service 
officers in determining the applicant's overall knowledge and 
understanding of the fundamentals of the history, principles, and form 
of government of the United States, and the applicant's ability to read, 
write, and speak the English language.

[56 FR 50495, Oct. 7, 1991]



Sec. 332.4  Cooperation with official National and State organizations.

    The Central Office and the field offices shall take steps to obtain 
the aid of and to cooperate with official National and State 
organizations in the Service's program of promoting instruction and 
training of applicants for

[[Page 594]]

naturalization for their citizenship duties and responsibilities. 
Similar action shall be taken in relation to duly accredited unofficial 
educational, social service, welfare, and other organizations having as 
one of their objects the preparation of applicants for naturalization 
for their citizenship duties and responsibilities.

[22 FR 9818, Dec. 6, 1957. Redesignated at 56 FR 50495, Oct. 7, 1991]



Sec. 332.5  Official forms for use by clerks of court.

    (a) Official forms essential to exercise of jurisdiction.  Before 
exercising jurisdiction in naturalization proceedings, the 
naturalization court shall direct the clerk of such court upon written 
application to obtain from the Service, in accordance with section 
310(c) of the Immigration and Nationality Act, proper forms, records, 
booked, and supplies required in naturalization proceedings. Such 
jurisdiction may not be exercised until such official forms, records, 
and books have been supplied to such court. Only such forms as are 
supplied shall be used in naturalization proceedings. Where sessions of 
the court are held at different places, the judge of such court may 
require the clerk to obtain a separate supply of official forms, records 
and books for each such place.
    (b) Official forms prescribed for use of clerks of naturalization 
courts. Clerks of courts shall use only the forms listed in Sec. 499.1 
of this chapter in the exercise of naturalization jurisdiction.
    (c) Initial application for official forms. Whenever the initial 
application for forms, records, books and supplies is made by a State 
court of record, it shall be accompanied by a certificate of the 
Attorney General of the State, certifying that the said court is a court 
of record, having a seal, a clerk, and jurisdiction in actions at law or 
in equity, or at law and in equity, in which the amount in controversy 
is unlimited.
    (d) Subsequent application for use of official forms. Included with 
the initial supply of official forms, records, and books furnished to 
the various courts by the Service shall be Form N-3 entitled 
``Requisition for Forms and Binders,'' and thereafter such forms shall 
be used by clerks of courts in making requisition for forms, records, 
books, and supplies for use in naturalization proceedings in their 
respective courts.

[22 FR 9817, Dec. 6, 1957. Redesignated and amended at 56 FR 50495, Oct. 
7, 1991]



PART 333--PHOTOGRAPHS--Table of Contents




Sec.
333.1  Description of required photographs.
333.2  Attachment of photographs to documents.

    Authority: 8 U.S.C. 1103, 1443.



Sec. 333.1  Description of required photographs.

    (a) Every applicant required to furnish photographs of himself or 
herself under section 333 of the Act and this chapter shall submit three 
identical color photographs that shall have a glossy finish and shall be 
no smaller than 40 mm in length by 35 mm in width, and no larger than 80 
mm in length by 60 mm in width; shall be unmounted and printed on a thin 
paper; shall have a white background; shall clearly show a three-quarter 
profile view of the features of the applicant with head bare (unless the 
applicant is wearing a headdress as required by a religious order of 
which he or she is a member), with the distance from the top of the head 
to point of chin approximately 30 mm; and shall have been taken within 
30 days of the date they are furnished. The image must be at least 26 mm 
in width. Photographs must be in natural color.
    (b) The applicant, except in the case of a child or other person 
physically incapable of signing his or her name, shall sign each copy of 
the photograph on the front of the photograph with his or her full true 
name, in such manner as not to obscure the features. An applicant unable 
to write may make the signature by a mark. An applicant for 
naturalization must sign the photographs in the English language, unless 
the applicant is exempt from the English language requirement of part 
312 of this chapter and is unable to sign in English, in which case the 
photographs may be signed in any language.
    (c) (1) If a child is unable to sign his or her name, the 
photographs must be

[[Page 595]]

signed by a parent or guardian, the signature reading ``(name of child) 
by (name of parent or guardian).''
    (2) If an adult is physically unable to sign or make a mark, a 
guardian or the Service employee conducting the interview will sign the 
photographs as provided in paragraph (c)(1) of this section.
    (d) The photographs must be signed when submitted with an 
application if the instructions accompanying the application so require. 
If signature is not required by the instructions, the photographs are to 
be submitted without being signed and shall be signed at such later time 
during the processing of the application as may be appropriate.

[56 FR 50495, Oct. 7, 1991]



Sec. 333.2  Attachment of photographs to documents.

    A signed photograph of the applicant must be securely and 
permanently attached to each certificate of naturalization or 
citizenship, to each original and duplicate declaration of intention 
issued by the Service, and to each replacement copy of a declaration of 
intention, certificate of naturalization, or certificate of citizenship 
issued by the Service. If a seal is affixed to the document, the imprint 
of a part of the seal must extend over the lower portion of the 
photograph in such a manner as not to obscure the features of the 
applicant.

[56 FR 50495, Oct. 7, 1991]



PART 334--APPLICATION FOR NATURALIZATION--Table of Contents




Sec.
334.1  Filing of application for naturalization.
334.2  Application for naturalization.
334.3  [Reserved]
334.4  Investigation and report if applicant is sick or disabled.
334.5  Amendment of application for naturalization; reopening 
          proceedings.
334.6--334.10  [Reserved]
334.11  Declaration of intention.
334.12--334.15  [Reserved]
334.16  Amendment of petition for naturalization.
334.17  Transfer of petition for naturalization.
334.18  Withdrawal of petition and failure to prosecute.

    Authority: 8 U.S.C. 1103, 1443.



Sec. 334.1  Filing of application for naturalization.

    Any person who is an applicant under sections 316, 319, 322, 324, 
325, 327, 328, 329, or 330 of the Act and the corresponding parts of 
this chapter, may apply for naturalization in accordance with the 
procedures prescribed in this chapter at the Service office indicated in 
the appropriate part of this chapter.

[56 FR 50496, Oct. 7, 1991]



Sec. 334.2  Application for naturalization.

    (a) An applicant may file an application for naturalization by 
filing a completed Form N-400 signed in the applicant's own handwriting, 
if physically able to do so, and by including any other documents 
required by parts 316, 319, 322, 324, 325, 327, 328, 329, and 330 of 
this chapter, as appropriate. An application prepared for a person 
physically unable to write shall be signed by the preparer, in the space 
marked ``Preparer's signature.'' The applicant shall include the fee as 
required in Sec. 103.7 of chapter B of this title, and a photocopy of 
the applicant's Alien Registration Card (Form I-551).
    (b) An application for naturalization may be filed up to 90 days 
prior to the completion of the required period of residence, which may 
include the three-month period of residence required to establish 
jurisdiction under section 316(a) or 319(a) of the Act.

[56 FR 50496, Oct. 7, 1991, as amended at 59 FR 48780, Sept. 20, 1993]
Sec. 334.3  [Reserved]



Sec. 334.4  Investigation and report if applicant is sick or disabled.

    Whenever it appears that an applicant for naturalization may be 
unable, because of sickness or other disability, to appear for the 
initial examination on the application or for any subsequent interview, 
the district director shall cause an investigation to be conducted to 
determine the circumstances surrounding the sickness or disability. The 
district director shall determine, based on available medical evidence,

[[Page 596]]

whether the sickness or disability is of a nature which so incapacitates 
the applicant as to prevent the applicant's appearance at a Service 
office having jurisdiction over the applicant's place of residence. If 
so, the district director shall designate another place where the 
applicant may appear for the requisite naturalization proceedings.

[58 FR 49913, Sept. 24, 1993]



Sec. 334.5  Amendment of application for naturalization; reopening proceedings.

    (a) Clerical amendments--(1) By applicant. An applicant may request 
that the application for naturalization be amended either prior to or 
subsequent to the administration of the oath of allegiance.
    (2) By Service. The Service may amend, at any time, an application 
for naturalization when in receipt of information that clearly indicates 
that a clerical error has occurred.
    (3) Amendment procedure. Any amendment will be limited to the 
correction of clerical errors arising from oversight or omission. If the 
amendment is approved, the amended application shall be filed with the 
original application for naturalization.
    (b) Substantive amendments. Any substantive amendments which affect 
the jurisdiction or the decision on the merits of the application will 
not be authorized. When the Service is in receipt of any information 
that would indicate that an application for naturalization should not 
have been granted on the merits, the Service may institute proceedings 
to reopen the application before admission to citizenship, or to revoke 
the naturalization of a person who has been admitted to citizenship, in 
accordance with section 340 of the Act and Sec. 335.5 of this chapter.

[56 FR 50496, Oct. 7, 1991]
Secs. 334.6--334.10  [Reserved]



Sec. 334.11  Declaration of intention.

    (a) Application. Any person who is a lawful permanent resident over 
18 years of age may file an application for a declaration of intention 
to become a citizen of the United States while present in the United 
States. Such application, with the requisite fee, shall be filed on Form 
N-300 with the Service office having jurisdiction over the applicant's 
place of residence in the United States.
    (b) Approval. If approved, the application for the declaration of 
intention, page 1 of Form N-300, shall be retained and filed in the 
applicant's Service file. The original of the declaration of intention, 
page 2 of Form N-300, shall be filed in chronological order in the 
official files of the Service office where the application was filed. 
The duplicate of the declaration of intention, page 3 of Form N-300, 
shall be delivered to the applicant.
    (c) Denial. If an application is denied, the applicant shall be 
notified in writing of the reasons for denial. No appeal shall lie from 
this decision.

[58 FR 49913, Sept. 24, 1993]
Secs. 334.12--334.15  [Reserved]



Sec. 334.16  Amendment of petition for naturalization.

    (a) During pendency of petition. An application to amend a petition 
for naturalization, filed prior to October 1, 1991, while such petition 
is pending, shall be made by the petitioner on Form N-410, with copies 
thereof equal to the number of copies of the petition for 
naturalization, and presented to the court at the hearing on the 
petition for naturalization. The application shall be accompanied by the 
fee specified in Sec. 103.7(b)(1) of this chapter, unless it was 
initiated by, and for the convenience of, the government. When the court 
orders the petition amended, the original order shall be filed with the 
original petition and the copies attached to the respective copies of 
the petition.
    (b) After final action on petition. Whenever an application is made 
to the court to amend a petition for naturalization after final action 
thereon has been taken by the court, a copy of the application shall be 
served upon the district director having administrative jurisdiction 
over the territory in which the court is located, in the manner and 
within the time provided by the rules of court in which application is 
made. No objection shall be made to the amendment of a petition for 
naturalization after the petitioner

[[Page 597]]

for naturalization has been admitted to citizenship if the motion or 
application is to correct a clerical error arising from oversight or 
omission. A representative of the Service may appear at the hearing upon 
such application and be heard in favor of or in opposition thereto. When 
the court orders the petition amended, the clerk of court shall transmit 
a copy of the order to the district director for inclusion in the 
Service file.

[22 FR 9819, Dec. 6, 1957, as amended at 32 FR 9635, July 4, 1967; 45 FR 
10313, Feb. 15, 1980; 56 FR 50496, Oct. 7, 1991]



Sec. 334.17  Transfer of petition for naturalization.

    (a) Application for transfer. An application to transfer a petition 
for naturalization, filed prior to October 1, 1991, shall be made on 
Form N-455, in quadruplicate, to the district diector exercising 
administrative jurisdiction over the place where the court in which the 
petition is filed is located.
    (b) Action by district director. If the district director consents 
to the transfer, he shall so indicate on each copy of Form N-455, which 
shall be filed with the clerk of court in which the petition is pending. 
If the district director does not consent to the transfer he shall so 
indicate on each copy of Form N-455 which shall be filed with the clerk 
of court, with a memorandum of the district director setting forth the 
reasons for the denial. The applicant shall be notified by the district 
director of the filing of Form N-455 with the clerk of court, and 
whether consent has been given by the district director.
    (c) Action by court in which petition is filed. The court in which 
the petition is filed shall enter an order on the original copy of Form 
N-455, approving or disapproving the application. If the application is 
approved, the original copy of Form N-455 shall be filed with the 
naturalization record in the office of the clerk of court, the duplicate 
and triplicate copies, duly attested and certified, transmitted to the 
court to which the petition is to be transferred, and the quadruplicate 
copy, also attested and certified, transmitted to the district director. 
If the application is disapproved, the original Form N-455 shall be 
filed with the naturalization record in the office of the clerk of court 
and the remaining copies transmitted to the district director, who shall 
notify the applicant of the disapproval.
    (d) Action by court to which petition is transferred. The court to 
which the petition is to be transferred shall enter an order on the 
duplicate copy of Form N-455, approving or disapproving the transfer. 
The duplicate copy shall be filed with the clerk of the court to which 
the petition is to be transferred, and the triplicate copy, duly 
attested and certified, transmitted to the clerk of the court in which 
the petition is filed. If the application is disapproved, the clerk of 
court receiving the triplicate copy shall notify the district director, 
who shall notify the applicant of the disapproval.
    (e) Transfer of petition and record. If the court to which the 
petition is to be transferred approves the transfer, the clerk of court 
in which the petition is filed shall file the triplicate copy of Form N-
455 with the naturalization record and forward a certified copy of the 
petition, and the originals of all documents filed relating thereto, to 
the court to which the petition is being transferred, and notify the 
district director having administrative jurisdiction over the place in 
which the petition is filed, of the action taken. Upon receipt of the 
certified copy and record, the clerk of court to which the petition is 
transferred shall index it, number it consecutively in the order in 
which it is received, prefixed by the letters TR, and in a series 
separate from petitions originally filed in the court. The petition 
shall be made a part of the record of the naturalization court. No fee 
shall be charged by the clerk of the court to which the petition is 
transferred for the filing of the transferred petition or the issuance 
of a certificate of naturalization.

[22 FR 9820, Dec. 6, 1957; 22 FR 9520, Nov. 28, 1957, as amended at 23 
FR 5820, Aug. 1, 1958; 56 FR 50496, Oct. 7, 1991]



Sec. 334.18  Withdrawal of petition and failure to prosecute.

    (a) A petitioner who desires to withdraw his petition for 
naturalization, filed prior to October 1, 1991, shall make request for 
withdrawal on Form

[[Page 598]]

N-404, in duplicate. The original shall be filed with the clerk of court 
and the duplicate with the office of the Service exercising 
administrative jurisdiction over the district in which the court is 
located. At the final hearing upon the petition, the officer in 
attendance shall inform the court whether the district director consents 
to the withdrawal of the petition. In cases in which the district 
director does not consent to the withdrawal, the court shall determine 
the petition on its merits.
    (b) At the final hearing upon a petition for naturalization which 
the petitioner has failed to prosecute, the officer in attendance shall 
inform the court whether the district director consents to dismissal of 
the petition for lack of prosecution. In cases in which the district 
director does not move that the petition be dismissed for lack of 
prosecution, the court shall determine the petition on its merits.

[22 FR 9819, Dec. 6, 1957, as amended at 56 FR 50496, Oct. 7, 1991]



PART 335--EXAMINATION ON APPLICATION FOR NATURALIZATION--Table of Contents




Sec.
335.1  Investigation of applicant.
335.2  Examination of applicant.
335.3  Determination on application; continuance of examination.
335.4  Use of record of examination.
335.5  Receipt of derogatory information after grant.
335.6  Failure to appear for examination.
335.7  Failure to prosecute application after initial examination.
335.8  [Reserved]
335.9  Transfer of application.
335.10  Withdrawal of application.
335.11  Preliminary examinations on petitions for naturalization filed 
          prior to October 1, 1991.
335.12  Recommendations on petitions for naturalization of the 
          designated examiner and regional administrator; notice.
335.13  Notice of recommendation on petitions for naturalization of 
          designated examiner.

    Authority: 8 U.S.C. 1103, 1443, 1447.



Sec. 335.1  Investigation of applicant.

    Subsequent to the filing of an application for naturalization, the 
Service shall conduct an investigation of the applicant. The 
investigation shall consist, at a minimum, of a review of all pertinent 
records, police department checks, and a neighborhood investigation in 
the vicinities where the applicant has resided and has been employed, or 
engaged in business, for at least the five years immediately preceding 
the filing of the application. The district director may waive the 
neighborhood investigation of the applicant provided for in this 
paragraph.

[56 FR 50497, Oct. 7, 1991]



Sec. 335.2  Examination of applicant.

    (a) General. Subsequent to the filing of an application for 
naturalization, each applicant shall appear in person before a Service 
officer designated to conduct examinations pursuant to Sec. 332.1 of 
this chapter. The examination shall be uniform throughout the United 
States and shall encompass all factors relating to the applicant's 
eligibility for naturalization. The applicant may request the presence 
of an attorney or representative who has filed an appearance in 
accordance with part 292 of this chapter.
    (b) Procedure. Prior to the beginning of the examination, the 
Service officer shall make known to the applicant the official capacity 
in which the officer is conducting the examination. The applicant shall 
be questioned, under oath or affirmation, in a setting apart from the 
public. Whenever necessary, the examining officer shall correct written 
answers in the application for naturalization to conform to the oral 
statements made under oath or affirmation. The Service officer shall 
maintain, for the record, brief notations of the examination for 
naturalization. At a minimum, the notations shall include a record of 
the test administered to the applicant on English literacy and basic 
knowledge of the history and government of the United States. The 
Service officer may have a stenographic, mechanical, electronic, or 
videotaped transcript made, or may prepare an affidavit covering the 
testimony of the applicant. The questions to the applicant shall be 
repeated in different form and elaborated, if necessary, until the 
officer conducting the examination is satisfied that the applicant 
either fully understands the questions or is unable to understand 
English. The applicant and the Service shall have the right to

[[Page 599]]

present such oral or documentary evidence and to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (c) Witnesses. Witnesses, if called, shall be questioned under oath 
or affirmation to discover their own credibility and competency, as well 
as the extent of their personal knowledge of the applicant and his or 
her qualifications to become a naturalized citizen.
    (1) Issuance of subpoenas. Subpoenas requiring the attendance of 
witnesses or the production of documentary evidence, or both, may be 
issued by the examining officer upon his or her own volition, or upon 
written request of the applicant or his or her attorney or 
representative. Such written request shall specify, as nearly as 
possible, the relevance, materiality, and scope of the testimony or 
documentary evidence sought and must show affirmatively that the 
testimony or documentary evidence cannot otherwise be produced. The 
examining officer shall document in the record his or her refusal to 
issue a subpoena at the request of the applicant.
    (2) Service of subpoenas. Subpoenas shall be issued on Form I-138, 
and a record shall be made of service. The subpoena may be served by any 
person over 18 years of age, not a party to the case, designated to make 
such service by the district director.
    (3) Witness fees. Mileage and fees for witnesses subpoenaed under 
this section shall be paid by the party at whose instance the subpoena 
is issued, at rates allowed and under conditions prescribed by the 
Service. Before issuing a subpoena, the officer may require the deposit 
of an amount adequate to cover the fees and mileage involved.
    (4) Failure to appear. If the witness subpoenaed neglects or refuses 
to testify or to produce documentary evidence as directed by the 
subpoena, the district director shall request that the United States 
Attorney for the proper district report such neglect or refusal to any 
District Court of the United States, and file a motion in such court for 
an order directing the witness to appear and to testify and produce the 
documentary evidence described in the subpoena.
    (5) Extraterritorial testimony. The testimony of a witness may be 
taken outside the United States. The witness's name and address shall be 
sent to the Service office abroad which has jurisdiction over the 
witness's residence. The officer taking the statement shall be given 
express instructions regarding any aspect of the case which may require 
special development or emphasis during the interrogation of the witness.
    (d) Record of examination. At the conclusion of the examination, all 
corrections made on the application form and all supplemental material 
shall be consecutively numbered and listed in the space provided on the 
applicant's affidavit contained in the application form. The affidavit 
must then be subscribed and sworn to, or affirmed, by the applicant and 
signed by the Service officer. The affidavit shall be executed under the 
following oath (or affirmation): ``I swear (affirm) and certify under 
penalty of perjury under the laws of the United States of America that I 
know that the contents of this application for naturalization subscribed 
by me, and the evidence submitted with it, are true and correct to the 
best of my knowledge and belief.'' Evidence received by the officer 
shall be placed into the record for determination of the case. All 
documentary or written evidence shall be properly identified and 
introduced into the record as exhibits by number, unless read into the 
record. A deposition or statement taken by a Service officer during the 
initial examination or any subsequent examination shall be included as 
part of the record on the application.
    (e) Use of interpreter. If the use of an interpreter is authorized 
pursuant to Sec. 312.4 of this chapter, the examining officer shall note 
on the application the use and identity of any interpreter. If the 
Service officer is proficient in the applicant's native language, the 
Service officer may conduct the examination in that language with the 
consent of the applicant.

[56 FR 50497, Oct. 7, 1991, as amended at 58 FR 49913, Sept. 24, 1993]

[[Page 600]]



Sec. 335.3  Determination on application; continuance of examination.

    (a) The Service officer shall grant the application if the applicant 
has complied with all requirements for naturalization under this 
chapter. A decision to grant or deny the application shall be made at 
the time of the initial examination or within 120-days after the date of 
the initial examination of the applicant for naturalization under 
Sec. 335.2. The applicant shall be notified that the application has 
been granted or denied and, if the application has been granted, of the 
procedures to be followed for the administration of the oath of 
allegiance pursuant to part 337 of this chapter.
    (b) Rather than make a determination on the application, the Service 
officer may continue the initial examination on an application for one 
reexamination, to afford the applicant an opportunity to overcome 
deficiencies on the application that may arise during the examination. 
The officer must inform the applicant in writing of the grounds to be 
overcome or the evidence to be submitted. The applicant shall not be 
required to appear for a reexamination earlier than 60 days after the 
first examination. However, the reexamination on the continued case 
shall be scheduled within the 120-day period after the initial 
examination, except as otherwise provided under Sec. 312.5(b) of this 
chapter. If the applicant is unable to overcome the deficiencies in the 
application, the application shall be denied pursuant to Sec. 336.1 of 
this chapter.

[56 FR 50497, Oct. 7, 1991, as amended at 58 FR 49914, Sept. 24, 1993]



Sec. 335.4  Use of record of examination.

    In the event that an application is denied, the record of the 
examination on the application for naturalization, including the 
executed and corrected application form and supplements, affidavits, 
transcripts of testimony, documents, and other evidence, shall be 
submitted to the Service officer designated in Sec. 332.1 of this 
chapter to conduct hearings on denials of applications for 
naturalization in accordance with part 336 of this chapter. The record 
of the examination shall be used for examining the petitioner and 
witnesses, if required to properly dispose of issues raised in the 
matter.

[56 FR 50498, Oct. 7, 1991]



Sec. 335.5  Receipt of derogatory information after grant.

    In the event that the Service receives derogatory information 
concerning an applicant whose application has already been granted as 
provided in Sec. 335.3(a) of this chapter, but who has not yet taken the 
oath of allegiance as provided in part 337 of this chapter, the Service 
shall remove the applicant's name from any list of granted applications 
or of applicants scheduled for administration of the oath of allegiance, 
until such time as the matter can be resolved. The Service shall notify 
the applicant in writing of the receipt of the specific derogatory 
information, with a motion to reopen the previously adjudicated 
application, giving the applicant 15 days to respond. If the applicant 
overcomes the derogatory information, the application will be granted 
and the applicant will be scheduled for administration of the oath of 
allegiance. Otherwise the motion to reopen will be granted and the 
application will be denied pursuant to Sec. 336.1 of this chapter.

[56 FR 50498, Oct. 7, 1991, as amended at 58 FR 49914, Sept. 24, 1993]



Sec. 335.6  Failure to appear for examination.

    (a) An applicant for naturalization shall be deemed to have 
abandoned his or her application if he or she fails to appear for the 
examination pursuant to Sec. 335.3 and fails to notify the Service of 
the reason for non-appearance within 30 days of the scheduled 
examination. Such notification shall be in writing and contain a request 
for rescheduling of the examination. In the absence of a timely 
notification, the Service may administratively close the application 
without making a decision on the merits.
    (b) An applicant may reopen an administratively closed application 
by submitting a written request to the Service within one (1) year from 
the date the application was closed. Such reopening shall be without 
additional

[[Page 601]]

fee. The date of the request for reopening shall be the date of filing 
of the application for purposes of determining eligibility for 
naturalization.
    (c) If the applicant does not request reopening of an 
administratively closed application within one year from the date the 
application was closed, the Service will consider that application to 
have been abandoned, and shall dismiss the application without further 
notice to the applicant.

[58 FR 49914, Sept. 24, 1993, as amended at 60 FR 6651, Feb. 3, 1995]



Sec. 335.7  Failure to prosecute application after initial examination.

    An applicant for naturalization who has appeared for the examination 
on his or her application as provided in Sec. 335.2 shall be considered 
as failing to prosecute such application if he or she, without good 
cause being shown, either failed to excuse an absence from a 
subsequently required appearance, or fails to provide within a 
reasonable period of time such documents, information, or testimony 
deemed by the Service to be necessary to establish his or her 
eligibility for naturalization. The Service shall deliver notice of all 
such requests for appearance or supporting evidence, in writing, to the 
applicant either in person or to the applicant's last known address. In 
the event that the applicant fails to respond within 30 days of the date 
of notification, the Service shall adjudicate the application on the 
merits pursuant to Sec. 336.1 of this chapter.

[58 FR 49914, Sept. 24, 1993, as amended at 60 FR 6651, Feb. 3, 1995]
Sec. 335.8  [Reserved]



Sec. 335.9  Transfer of application.

    (a) Request for transfer of application. An applicant who, after 
filing an application for naturalization, changes residence, or plans to 
change residence within three months, may request, in writing, that a 
pending application be transferred from the current Service office to 
the Service office having jurisdiction over the applicant's new place of 
residence. The request shall be submitted to the office where the 
application was originally filed. The request shall include the 
applicant's name, alien registration number, date of birth, complete 
current address including name of the county, complete address at the 
time of filing the application, reason for the request to transfer the 
application, and the date the applicant moved or intends to move to the 
new jurisdiction.
    (b) Discretion to authorize transfer. The district director may 
authorize the transfer of an application for naturalization after such 
application has been filed. In the event that the district director does 
not consent to the transfer of the application, the application shall be 
adjudicated on its merits by the Service office retaining jurisdiction. 
If upon such adjudication the application is denied, the written 
decision pursuant to Sec. 336.1 of this chapter shall also address the 
reason(s) for the Service's decision not to consent to the transfer 
request.

[56 FR 50498, Oct. 7, 1991, as amended at 58 FR 49914, Sept. 24, 1993]



Sec. 335.10  Withdrawal of application.

    An applicant may request, in writing, that his or her application, 
filed with the Service, be withdrawn. If the district director consents 
to the withdrawal, the application will be denied without further notice 
to the applicant and without prejudice to any future application. The 
withdrawal by the applicant will constitute a waiver of any review 
pursuant to part 336 of this chapter. If the district director does not 
consent to the withdrawal, the application for naturalization shall be 
adjudicated on its merits.

[56 FR 50498, Oct. 7, 1991]



Sec. 335.11  Preliminary examinations on petitions for naturalization filed prior to October 1, 1991.

    (a) When held. Continued preliminary examinations shall be held on 
petitions for naturalization filed prior to October 1, 1991 when it is 
determined that further testimony is needed for the designated examiner 
to prepare a recommendation to the court consistent with Sec. 335.12. 
The examinations shall be open to the public.
    (b) Conduct of examination. Preliminary examinations shall be held 
before an employee of the Service designated by the district director to 
conduct such

[[Page 602]]

proceedings and to make findings and recommendations thereon to the 
naturalization court, who shall be known as the ``designated examiner.'' 
The petitioner and his or her witnesses and the witnesses produced on 
behalf of the Government shall be present. The designated examiner 
shall, prior to the commencement of the examination, make known to the 
petitioner his or her official capacity and that of any other officer of 
the Service who may participate in the proceeding. The designated 
examiner shall have before him or her the entire record of the 
preliminary interrogation, including the petitioner's application to 
file a petition for naturalization (Form N-400) and any other evidence 
or data that may be relevant or material to the inquiry. All testimony 
taken at the examination shall be under oath or affirmation administered 
by the designated examiner. The designated examiner may interrogate the 
petitioner and witnesses produced in behalf of the petitioner or the 
Government, and present evidence touching upon the petitioner's 
admissibility to citizenship. He shall regulate the course of the 
examination, rule upon applications for the issuance of subpoenas and 
issue such subpoenas in proper cases, grant or deny continuances, and 
rule on all objections to the introduction of evidence, which rulings 
shall be entered on the record. Evidence held by the designated examiner 
to be inadmissible shall nevertheless be received into the record 
subject to the ruling of the court. The petitioner and the Government 
shall have the right to present such oral or documentary evidence and to 
conduct such cross-examination as may be required for a full and true 
disclosure of the facts. If the petitioner is not represented by an 
attorney or representative, the designated examiner shall assist the 
petitioner in the introduction of all evidence available in his or her 
behalf. All documentary or written evidence shall be properly identified 
and introduced into the record as exhibits by number, unless read into 
the record.
    (c) Assignment of examining officer at preliminary examination. The 
district director may in his or her discretion assign an employee of the 
Service to act as examining officer at the preliminary examination. Such 
employee shall examine and cross-examine witnesses produced in behalf of 
the Government or the petitioner and present evidence pertinent to the 
petitioner's admissibility to citizenship. The designated examiner may 
take such part in the interrogation of the petitioner and witnesses and 
the introduction of evidence as he or she may deem necessary.
    (d) Stenographic reporting of proceedings; mechanical recording 
equipment. A stenographer shall be in attendance whenever, in the 
opinion of the designated examiner, such attendance is desirable, and in 
every case to which an examining officer is assigned. The stenographer 
shall record verbatim the entire proceedings, including the oaths 
administered and rulings on objections, but shall not record arguments 
in support of objections, or statements made off the record with the 
consent of the petitioner. The stenographer shall certify that the 
transcribed minutes constitute a complete and accurate record of the 
examination. Whenever, in the opinion of the designated examiner the use 
of mechanical recording equipment in lieu of a stenographer is deemed 
desirable, the proceedings may be recorded by such equipment.
    (e) Issuance of subpoenas; attendance and mileage fees. Subpenas 
requiring the attendance of witnesses or the production of documentary 
evidence, or both, may be issued by the designated examiner, upon his or 
her own volition or upon written application of the petitioner or his or 
her attorney or representative, the examining officer, or the Service. 
Such written application shall specify, as nearly as may be, the 
relevance, materiality, and scope of the testimony or documentary 
evidence sought and show affirmatively that the testimony or documentary 
evidence cannot otherwise be produced. Subpenas shall be issued on Form 
I-138 and due record shall be made of their service. The subpoena may be 
served by any person over 18 years of age, not a party to the case, 
designated to make such service by the district director. Mileage and 
fees for witnesses subpoenaed under this section shall be paid by the 
party at whose instance the subpoena is issued at rates allowed and

[[Page 603]]

under conditions prescribed by the naturalization court in which the 
petition is pending. Before issuing a subpoena the designated examiner 
may require a deposit of an amount adequate to cover the fees and 
mileage involved. If the witness subpoenaed neglects or refuses to 
testify or produce documentary evidence as directed by the subpoena, the 
district director shall request the United States Attorney for the 
proper district to report such neglect or refusal to any court 
exercising naturalization jurisdiction and to file a motion in such 
court for an order directing the witness to appear and testify and to 
produce the documentary evidence described in the subpoena.
    (f) Briefs. At the conclusion of the preliminary examination the 
petitioner or his or her attorney or representative, and the examining 
officer if one was assigned, may submit briefs in support of arguments 
made or issues raised at the examination.
    (g) Representation by attorney or representative; absence of 
representative; advice to petitioner. The petitioner may be represented 
by an attorney or representative who has filed an appearance in 
accordance with part 292 of this chapter. If at any stage of the 
preliminary examination it appears to the designated examiner that he or 
she may recommend denial of the petition, or granting thereof with the 
facts to be presented to the court, he or she shall advise the 
petitioner of his or her right to be represented by an attorney or 
representative. A continuance of the examination shall be granted upon 
the petitioner's motion for the purpose of obtaining an attorney or 
representative. The petitioner's attorney or a representative shall be 
permitted to be present at all times during the preliminary examination 
or at any subsequent examinations and the petitioner shall not in any 
such examination or subsequent examinations be interrogated in the 
absence of his or her attorney or representative, unless the petitioner 
waives such appearance. The attorney or a representative shall be 
permitted to offer evidence to meet any evidence presented or adduced by 
the Government or the designated examiner. A petitioner who is not 
represented by an attorney or a representative shall be entitled to all 
the benefits and the privileges provided for in this section.

[22 FR 9821, Dec. 6, 1957, as amended at 23 FR 2673, Apr. 23, 1958; 45 
FR 83195, Dec. 18, 1980; 46 FR 5861, Jan. 21, 1981; 47 FR 10778, Mar. 
12, 1982; 56 FR 50498, Oct. 7, 1991]



Sec. 335.12  Recommendations on petitions for naturalization of the designated examiner and regional administrator; notice.

    As soon as practicable after conclusion of the preliminary 
examination on a petition for naturalization filed prior to October 1, 
1991, the designated examiner shall prepare an appropriate 
recommendation to the court. If the recommendation is for denial, or for 
granting with the facts to be presented to the court, the designated 
examiner shall prepare a memorandum summarizing the evidence, and 
setting forth findings of fact and conclusions of law, and his or her 
recommendation. No evidence dehors the record or evidence not admissible 
in judicial proceedings under recognized rules of evidence shall be 
considered in the preparation of the memorandum. The memorandum shall be 
submitted before final hearing to the regional operations liaison 
officer, in those cases or classes of cases designated by him or her, 
for review and recommendation. If the regional operations liaison 
officer does not agree with the recommendation of the designated 
examiner, he or she shall prepare an appropriate memorandum, with 
findings of fact, conclusions of law, and the recommendation of the 
Service, subject to review and approval by the Commissioner in those 
cases or classes of cases designated by him or her, for presentation to 
the court with the designated examiner's memorandum. In the preparation 
of memoranda, designated examiners and regional operations liaison 
officers shall be bound by the interpretations and rulings by the 
Attorney General or the Commissioner on Questions of law.

[38 FR 29878, Oct. 30, 1973, as amended at 56 FR 50498, Oct. 7, 1991]



Sec. 335.13  Notice of recommendation on petitions for naturalization of designated examiner.

    (a) Recommendation that petition be denied. When the designated 
examiner

[[Page 604]]

proposes to recommend denial of the petition filed prior to October 1, 
1991, the petitioner or his or her attorney or representative shall be 
notified thereof and furnished a copy of the designated examiner's 
memorandum. The notice shall be given in conjunction with notification 
of the date, place, and time of holding the final hearing. The notice 
shall be sent by certified mail, with return receipt requested, after 
any review made by the regional administrator.
    (b) Recommendation that petition be granted. When the designated 
examiner proposes to recommend granting of the petition filed prior to 
October 1, 1991 and to present the facts and issues to the court, the 
petitioner or his or her attorney or representative shall be notified of 
the recommendation and furnished a copy of the designated examiner's 
memorandum prior to the date of the hearing, and after any review made 
by the regional administrator.
    (c) Disagreement between recommendations of designated examiner and 
the regional administrator. In those cases reviewed by the regional 
administrator in which his or her views and recommendations do not agree 
with those of the designated examiner, the notice required by paragraphs 
(a) and (b) of this section shall also advise the petitioner of the 
recommendation of the regional administrator and that both 
recommendations will be presented to the court. There shall also be 
enclosed with such notice a copy of the regional administrator's 
memorandum.
    (d) Briefs. If the petitioner intends to file a brief or memorandum 
at the final hearing, he or she shall furnish a copy thereof to the 
Service office from which the notice on Form N-425 emanated at least 5 
days prior to the date of the final hearing. Failure to do so will 
result in a motion for a continuance if deemed essential for the proper 
presentation of the Government's case.

[22 FR 9822, Dec. 6, 1957, as amended at 35 FR 17530, Nov. 14, 1970; 56 
FR 50498, Oct. 7, 1991]



PART 336--HEARINGS ON DENIALS OF APPLICATIONS FOR NATURALIZATION--Table of Contents




Sec.
336.1  Denial after section 335 examination.
336.2  Hearing before an immigration officer.
336.3--336.8  [Reserved]
336.9  Judicial review of denial determinations on applications for 
          naturalization.

    Authority: 8 U.S.C. 1103, 1443, 1447, 1448.

    Source: 56 FR 50499, Oct. 7, 1991, unless otherwise noted.



Sec. 336.1  Denial after section 335 examination.

    (a) After completing all examination procedures contained in part 
335 of this chapter and determining to deny an application for 
naturalization, the Service shall serve a written notice of denial upon 
an applicant for naturalization no later than 120 days after the date of 
the applicant's first examination on the application.
    (b) A notice of denial shall be prepared in a written, narrative 
format, and shall recite, in clear concise language, the pertinent facts 
upon which the determination was based, the specific legal section or 
sections applicable to the finding of ineligibility, and the conclusions 
of law reached by the examining officer in rendering the decision. Such 
notice of denial shall also contain a specific statement of the 
applicant's right either to accept the determination of the examining 
officer, or request a hearing before an immigration officer.
    (c) Service of the notice of denial may be made in person or by 
certified mail to the applicant's last known address, or upon the 
attorney or representative of record as provided in part 292 of this 
chapter.



Sec. 336.2  Hearing before an immigration officer.

    (a) The applicant, or his or her authorized representative, may 
request a hearing on the denial of the applicant's application for 
naturalization by filing a request with the Service within thirty days 
after the applicant receives the notice of denial under Sec. 336.1.
    (b) Upon receipt of a timely request for a hearing, the Service 
shall schedule a review hearing before an immigration officer, within a 
reasonable period of time not to exceed 180 days from the date upon 
which the appeal is filed. The review shall be with an officer other 
than the officer who conducted the original examination under

[[Page 605]]

section 335 of the Act or who rendered the Service determination upon 
which the hearing is based, and who is classified at a grade level equal 
to or higher than the grade of the examining officer. The reviewing 
officer shall have the authority and discretion to review the 
application for naturalization, to examine the applicant, and either to 
affirm the findings and determination of the original examining officer 
or to redetermine the original decision of the Service in whole or in 
part. The reviewing officer shall also have the discretion to review any 
administrative record which was created as part of the examination 
procedures as well as Service files and reports. He or she may receive 
new evidence or take such additional testimony as may be deemed relevant 
to the applicant's eligibility for naturalization or which the applicant 
seeks to provide. Based upon the complexity of the issues to be reviewed 
or determined, and upon the necessity of conducting further examinations 
with respect to essential naturalization requirements, such as literacy 
or civics knowledge, the reviewing immigration officer may, in his or 
her discretion, conduct a full de novo hearing or may utilize a less 
formal review procedure, as he or she deems reasonable and in the 
interest of justice.
    (c) Improperly filed request for hearing--(1) Request for hearing 
filed by a person or entity not entitled to file.
    (i) Rejection without refund of filing fee. A request for hearing 
filed by a person or entity who is not entitled to file such a request 
must be rejected as improperly filed. In such a case, any filing fee 
that the Service has accepted will not be refunded.
    (ii) Request for hearing by attorney or representative without 
proper Form G-28. If a request for hearing 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 request for hearing, the appeal will be considered as improperly 
filed. In such a case, any filing fee that the Service has accepted will 
not be refunded regardless of the action taken. The reviewing 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 chapter, make a new decision 
favorable to the affected party without notifying the attorney or 
representative. The request for hearing 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 request 
for hearing.
    (2) Untimely request for hearing--(i) Rejection without refund of 
filing fee. A request for hearing which is not filed within the time 
period allowed must be rejected as improperly filed. In such a case, any 
filing fee that the Service has accepted will not be refunded.
    (ii) Untimely request for hearing treated as motion. If an untimely 
request for hearing meets the requirements of a motion to reopen as 
described in Sec. 103.5(a)(2) of this chapter or a motion to reconsider 
as described in Sec. 103.5(a)(3) of this chapter, the request for 
hearing must be treated as a motion, and a decision must be made on the 
merits of the case.

[56 FR 50499, Oct. 7, 1991, as amended at 58 FR 49914, Sept. 24, 1993]
Secs. 336.3--336.8  [Reserved]



Sec. 336.9  Judicial review of denial determinations on applications for naturalization.

    (a) General. The provisions in part 310 of this chapter shall 
provide the sole and exclusive procedures for requesting judicial review 
of final determinations on applications for naturalization made pursuant 
to section 336(a) of the Act and the provisions of this chapter by the 
Service on or after October 1, 1991.
    (b) Filing a petition. Under these procedures an applicant shall 
file a petition for review in the United States District Court having 
jurisdiction over his or her place of residence, in accordance with 
chapter 7 of title 5, United States Code, within a period of not more 
than 120 days after the Service's final determination. The petition for 
review shall be brought against the Immigration and Naturalization 
Service, and service of the petition for review

[[Page 606]]

shall be made upon the Attorney General of the United States, and upon 
the official in charge of the Service office where the hearing was held 
pursuant to Sec. 336.2.
    (c) Standard of review. The review will be de novo, and the court 
will make its own findings of fact and conclusions of law. The court may 
also conduct, at the request of the petitioner, a hearing de novo on the 
application for naturalization.
    (d) Exhaustion of remedies. A Service determination denying an 
application for naturalization under section 335(a) of the Act shall not 
be subject to judicial review until the applicant has exhausted those 
administrative remedies available to the applicant under section 336 of 
the Act. Every petition for judicial review shall state whether the 
validity of the final determination to deny an application for 
naturalization has been upheld in any prior administrative proceeding 
and, if so, the nature and date of such proceeding and the forum in 
which such proceeding took place.



PART 337--OATH OF ALLEGIANCE--Table of Contents




Sec.
337.1  Oath of allegiance.
337.2  Oath administered by the Immigration and Naturalization Service 
          or an Immigration Judge.
337.3  Expedited administration of oath of allegiance.
337.4  When requests for change of name granted.
337.5--337.6  [Reserved]
337.7  Information and assignment of individuals under exclusive 
          jurisdiction.
337.8  Oath administered by the courts.
337.9  Effective date of naturalization.
337.10  Failure to appear for oath administration ceremony.

    Authority: 8 U.S.C. 1103, 1443, 1448.



Sec. 337.1  Oath of allegiance.

    (a) Form of oath. Except as otherwise provided in the Act and after 
receiving notice from the district director that such applicant is 
eligible for naturalization pursuant to Sec. 335.3 of this chapter, an 
applicant for naturalization shall, before being admitted to 
citizenship, take in a public ceremony held within the United States the 
following oath of allegiance, to a copy of which the applicant shall 
affix his or her signature:

    I hereby declare, on oath, that I absolutely and entirely renounce 
and abjure all allegiance and fidelity to any foreign prince, potentate, 
state, or sovereignty, of whom or which I have heretofore been a subject 
or citizen; that I will support and defend the Constitution and laws of 
the United States of America against all enemies, foreign and domestic; 
that I will bear true faith and allegiance to the same; that I will bear 
arms on behalf of the United States when required by the law; that I 
will perform noncombatant service in the Armed Forces of the United 
States when required by the law; that I will perform work of national 
importance under civilian direction when required by the law; and that I 
take this obligation freely, without any mental reservation or purpose 
of evasion; so help me God.

    (b) Alteration of form of oath; affirmation in lieu of oath. In 
those cases in which a petitioner or applicant for naturalization is 
exempt from taking the oath prescribed in paragraph (a) of this section 
in its entirety, the inapplicable clauses shall be deleted and the oath 
shall be taken in such altered form. When a petitioner or applicant for 
naturalization, by reason of religious training and belief (or 
individual interpretation thereof), or for other reasons of good 
conscience, cannot take the oath prescribed in paragraph (a) of this 
section with the words ``on oath'' and ``so help me God'' included, the 
words ``and solemnly affirm'' shall be substituted for the words ``on 
oath,'' the words ``so help me God'' shall be deleted, and the oath 
shall be taken in such modified form. Any reference to `oath of 
allegiance' in this chapter is understood to mean equally `affirmation 
of allegiance' as described in this paragraph.
    (c) Obligations of oath. A petitioner or applicant for 
naturalization shall, before being naturalized, establish that it is his 
or her intention, in good faith, to assume and discharge the obligations 
of the oath of allegiance, and that his or her attitude toward the 
Constitution and laws of the United States renders him or her capable of 
fulfilling the obligations of such oath.

[[Page 607]]

    (d) Renunciation of title or order of nobility. A petitioner or 
applicant for naturalization who has borne any hereditary title or has 
been of any of the orders of nobility in any foreign state shall, in 
addition to taking the oath of allegiance prescribed in paragraph (a) of 
this section, make under oath or affirmation in public an express 
renunciation of such title or order of nobility, in the following form:
    (1) I further renounce the title of (give title or titles) which I 
have heretofore held; or
    (2) I further renounce the order of nobility (give the order of 
nobility) to which I have heretofore belonged.

[22 FR 9824, Dec. 6, 1957, as amended at 24 FR 2584, Apr. 3, 1959; 32 FR 
13756, Oct. 3, 1967; 56 FR 50499, Oct. 7, 1991]



Sec. 337.2  Oath administered by the Immigration and Naturalization Service or an Immigration Judge.

    (a) Public ceremony. An applicant for naturalization who has elected 
to have his or her oath of allegiance administered by the Service or an 
Immigration Judge and is not subject to the exclusive oath 
administration authority of an eligible court pursuant to section 310(b) 
of the Act shall appear in person in a public ceremony, unless such 
appearance is specifically excused under the terms and conditions set 
forth in this part. Such ceremony shall be held at a time and place 
designated by the Service or the Executive Office for Immigration Review 
within the United States and within the jurisdiction where the 
application for naturalization was filed, or into which the application 
for naturalization was transferred pursuant to Sec. 335.9 of this 
chapter. Such ceremonies shall be conducted at regular intervals as 
frequently as necessary to ensure timely naturalization, but in all 
events at least once monthly where it is required to minimize 
unreasonable delays. Such ceremonies shall be presented in such a manner 
as to preserve the dignity and significance of the occasion. District 
directors shall ensure that ceremonies conducted by the Service in their 
districts, inclusive of those held by suboffice managers, are in keeping 
with the Model Plan for Naturalization Ceremonies. Organizations 
traditionally involved in activities surrounding the ceremony should be 
encouraged to participate in Service-administered ceremonies by local 
arrangement.
    (b) Authority to administer oath of allegiance. The authority of the 
Attorney General to administer the oath of allegiance shall be delegated 
to Immigration Judges and to the following officers of the Service: The 
Commissioner; district directors; deputy district directors; officers-
in-charge; assistant officers-in-charge; or persons acting in behalf of 
such officers due to their absence or because their positions are 
vacant. In exceptional cases where the district director or officer-in-
charge determines that it is appropriate for employees of a different 
rank to conduct ceremonies, the district director or officer-in-charge 
may make a request through the Commissioner to the Assistant 
Commissioner, Adjudications, for permission to delegate such authority. 
The request shall furnish the reasons for seeking exemption from the 
requirements of this paragraph. The Commissioner may delegate such 
authority to such other officers of the Service or the Department of 
Justice as he or she may deem appropriate.
    (c) Execution of questionnaire. Immediately prior to being 
administered the oath of allegiance, each applicant shall complete the 
questionnaire on Form N-445. Each completed Form N-445 shall be reviewed 
by an officer of the Service who may question the applicant regarding 
the information thereon. If derogatory information is revealed, the 
applicant's name shall be removed from the list of eligible persons as 
provided in Sec. 335.5 of this chapter and he or she shall not be 
administered the oath.

[60 FR 37803, July 24, 1995]



Sec. 337.3  Expedited administration of oath of allegiance.

    (a) An applicant may be granted an expedited oath administration 
ceremony by either the court or the Service upon demonstrating 
sufficient cause. In determining whether to grant an expedited oath 
administration ceremony, the court or the district director shall 
consider special circumstances of a compelling or humanitarian nature. 
Special circumstances may include but are not limited to:

[[Page 608]]

    (1) The serious illness of the applicant or a member of the 
applicant's family;
    (2) Permanent disability of the applicant sufficiently 
incapacitating as to prevent the applicant's personal appearance at a 
scheduled ceremony;
    (3) The developmental disability or advanced age of the applicant 
which would make appearance at a scheduled ceremony inappropriate; or
    (4) Urgent or compelling circumstances relating to travel or 
employment determined by the court or the Service to be sufficiently 
meritorious to warrant special consideration.
    (b) Courts exercising exclusive authority may either hold an 
expedited oath administration ceremony or refer the applicant to the 
Service in order for either the Immigration Judge or the Service to 
conduct an oath administration ceremony, if an expedited judicial oath 
administration ceremony is impractical. The court shall inform the 
district director in writing of its decision to grant the applicant an 
expedited oath administration ceremony and that the court has 
relinquished exclusive jurisdiction as to that applicant.
    (c) All requests for expedited administration of the oath of 
allegiance shall be made in writing to either the court or the Service. 
Such requests shall contain sufficient information to substantiate the 
claim of special circumstances to permit either the court or the Service 
to properly exercise the discretionary authority to grant the relief 
sought. The court or the Service may seek verification of the validity 
of the information provided in the request. If the applicant submits a 
written request to the Service, but is awaiting an oath administration 
ceremony by a court pursuant to Sec. 337.8, the Service promptly shall 
provide the court with a copy of the request without reaching a decision 
on whether to grant or deny the request.

[60 FR 37804, July 24, 1995]



Sec. 337.4  When requests for change of name granted.

    When the court has granted the petitioner's change of name request, 
the petitioner shall subscribe his or her new name to the written oath 
of allegiance.

[56 FR 50500, Oct. 7, 1991]
Secs. 337.5--337.6  [Reserved]



Sec. 337.7  Information and assignment of individuals under exclusive jurisdiction.

    (a) No later than at the time of the examination on the application 
pursuant to Sec. 335.2 of this chapter, an employee of the Service shall 
advise the applicant of his or her right to elect the site for the 
administration of the oath of allegiance, subject to the exclusive 
jurisdiction provision of Sec. 310.3(d) of this chapter. In order to 
assist the applicant in making an informed decision, the Service shall 
advise the applicant of the upcoming Immigration Judge or Service 
conducted and judicial ceremonies at which the applicant may appear, if 
found eligible for naturalization.
    (b) An applicant whose application has been approved by the Service 
who is subject to the exclusive jurisdiction of a court pursuant to 
Sec. 310.2(d) of this chapter, shall be advised of the next available 
court ceremony and provided with a written notice to appear at that 
ceremony. If the applicant is subject to the exclusive jurisdiction of 
more than one court exercising exclusive jurisdiction, the applicant 
will be informed of the upcoming ceremonies in each affected court. The 
applicant shall decide which court he or she wishes to administer the 
oath of allegiance.

[58 FR 49915, Sept. 24, 1993, as amended at 60 FR 37804, July 24, 1995]



Sec. 337.8  Oath administered by the courts.

    (a) Notification of election. An applicant for naturalization not 
subject to the exclusive jurisdiction of Sec. 310.2(d) of this chapter 
shall notify the Service at the time of the filing of, or no later than 
at the examination on, the application of his or her election to have 
the oath of allegiance administered in an appropriate court having 
jurisdiction over the applicant's place of residence.
    (b) Certification of eligibility--(1) Exclusive jurisdiction. In 
those instances falling within the exclusive jurisdiction provision of 
section 310(b)(1)(B) of

[[Page 609]]

the Act, the Service shall notify the court of the applicant's 
eligibility for admission to United States citizenship by submitting to 
the clerk of court Form N-646 within ten (10) days of the approval of 
the application.
    (2) Non-exclusive jurisdiction. In those instances in which the 
applicant has elected to have the oath administered in a court ceremony, 
the Service shall notify the clerk of court, in writing, using Form N-
646, that the applicant has been determined by the Attorney General to 
be eligible for admission to United States citizenship upon taking the 
requisite oath of allegiance and renunciation in a public ceremony. If a 
scheduled hearing date is not available at the time of the notification, 
Form N-646 shall indicate that the applicant has not been scheduled for 
a ceremony and the applicant shall be informed in writing that the 
application has been approved but no ceremony date is yet available.
    (c) Preparation of lists. (1) At or prior to the oath administration 
ceremony the representative attending the ceremony shall submit to the 
court on Form N-647, in duplicate, lists of persons to be administered 
the oath of allegiance and renunciation. After the ceremony, and after 
any required amendments and notations have been made therein, the clerk 
of court shall sign the lists.
    (2) The originals of all court lists specified in this section shall 
be filed permanently in the court, and the duplicates returned by the 
clerk of court to the appropriate Service office for retention by such 
office. The same disposition shall be made of any list presented to, but 
not approved by, the court.
    (d) Personal representation of the government at oath administration 
ceremonies. An oath administration ceremony shall be attended by a 
representative of the Service, who shall review each applicant's 
completed questionnaire Form N-445. If necessary, the Service 
representative shall question the applicant regarding the information 
thereon. If the questioning reveals derogatory information, the 
applicant's name shall be removed from the list of eligible persons as 
provided in Sec. 335.5 of this chapter and the court shall not 
administer the oath to such applicant.
    (e) Written report in lieu of personal representation. If it is 
impracticable for a Service representative to be present at a judicial 
oath administration ceremony, written notice of that fact shall be given 
by the Service to the court. The applicants to be administered the oath 
shall be listed on the appropriate forms prescribed in paragraph (d) of 
this section. The forms, memoranda, and certificates of naturalization 
shall be transmitted to the clerk of court, who shall submit the 
appropriate lists to the court.
    (f) Withdrawal from court. An applicant for naturalization not 
subject to the exclusive jurisdiction of Sec. 310.3(d) of this chapter, 
who has elected to have the oath administered in a court oath ceremony, 
may, for good cause shown, request that his or her name be removed from 
the list of persons eligible to be administered the oath at a court oath 
ceremony and request that the oath be administered in a ceremony 
conducted by an Immigration Judge or the Service. Such request shall be 
in writing to the Service office which granted the application and shall 
cite the reasons for the request. The district director or officer-in-
charge shall consider the good cause shown and the best interests of the 
applicant in making a decision. If it is determined that the applicant 
shall be permitted to withdraw his or her name from the court ceremony, 
the Service shall give written notice to the court of the applicant's 
withdrawal, and the applicant shall be scheduled for the next available 
oath ceremony, conducted by an Immigration Judge or the Service, as if 
he or she had never elected the court ceremony.

[58 FR 49915, Sept. 24, 1993, as amended at 60 FR 37804, July 24, 1995]



Sec. 337.9  Effective date of naturalization.

    (a) An applicant for naturalization shall be deemed a citizen of the 
United States as of the date on which the applicant takes the prescribed 
oath of allegiance, administered either by the Service or an Immigration 
Judge in an administrative ceremony or in a ceremony conducted by an 
appropriate court under Sec. 337.8 of this chapter.

[[Page 610]]

    (b) When the taking of the oath is waived for a child pursuant to 
part 322 of this chapter, the child shall be deemed a citizen of the 
United States as of the date upon which the waiver was granted by the 
Service. The appearance of the child and the child's parent(s) at an 
oath ceremony, if the oath is waived under this paragraph, is not 
required. Nothing in this paragraph is to be construed as preventing the 
appearance of the child and parent(s) at an oath ceremony.

[56 FR 50500, Oct. 7, 1991, as amended at 60 FR 37804, July 24, 1995]



Sec. 337.10  Failure to appear for oath administration ceremony.

    An applicant who fails to appear without good cause for more than 
one oath administration ceremony for which he or she was duly notified 
shall be presumed to have abandoned his or her intent to be naturalized. 
Such presumption shall be regarded as the receipt of derogatory 
information, and the procedures contained in Sec. 335.5 of this chapter 
shall be followed.

[58 FR 49916, Sept. 24, 1993]



PART 338--CERTIFICATE OF NATURALIZATION--Table of Contents




Sec.
338.1  Execution and issuance of certificate.
338.2  Execution in case name is changed.
338.3  Delivery of certificates.
338.4  Signing of certificate.
338.5  Correction of certificates.
338.6--338.10  [Reserved]
338.11  Execution and Issuance of Certificate of Naturalization by clerk 
          of court.
338.12  Endorsement by clerk of court in case name is changed.
338.13  Spoiled certificate.

    Authority: 8 U.S.C. 1103, 1443.



Sec. 338.1  Execution and issuance of certificate.

    (a) Issuance. When an applicant for naturalization has taken and 
subscribed to the oath of allegiance in accordance with Secs. 337.1, 
337.2 and 337.3 of this chapter, a Certificate of Naturalization, Form 
N-550, shall be issued by the Service at the conclusion of the oath 
administration ceremony. For each applicant appearing at a judicial oath 
administration ceremony pursuant to Sec. 337.8, the Service shall 
prepare the Certificate of Naturalization and forward it to the clerk of 
court sufficiently in advance of the ceremony to ensure the timely 
delivery on the date the oath administration ceremony is conducted.
    (b) Execution of certificate. The certificate shall be issued to the 
applicant in his or her true, full, and correct name as it exists at the 
time of the administration of the oath of allegiance. The certificate 
shall show, under ``former nationality,'' the name of the applicant's 
last country of citizenship, as shown in the application and Service 
records, even though the applicant may be stateless at the time of 
admission to citizenship. Photographs shall be affixed to the 
certificate in the manner provided in part 333 of this chapter. The 
certificate shall be signed by the applicant. The Commissioner's 
signature shall be affixed to the certificate.

[58 FR 49916, Sept. 24, 1993]



Sec. 338.2  Execution in case name is changed.

    Whenever the name of an applicant has been changed by order of a 
court as a part of a naturalization, the clerk of court, or his or her 
authorized deputy, shall forward a copy of the order changing the 
applicant's name with the notifications required by part 339 of this 
chapter. The Certificate of Naturalization will be issued to the 
applicant in the name as changed.

[56 FR 50501, Oct. 7, 1991]



Sec. 338.3  Delivery of certificates.

    No Certificate of Naturalization will be delivered in any case in 
which the naturalized person has not surrendered his or her alien 
registration receipt card to the Service. Upon a finding that the card 
is destroyed or otherwise unavailable, the district director may waive 
the surrender of the card and the Certificate of Naturalization shall 
then be delivered to the naturalized person.

[56 FR 50501, Oct. 7, 1991]



Sec. 338.4  Signing of certificate.

    If a child who has been admitted to citizenship under section 322 of 
the Act is unable to sign his or her name, the Certificate of 
Naturalization must be

[[Page 611]]

signed by the citizen parent who submitted the application for the 
child. The signature will read ``(name of naturalized child) by 
(signature of parent)''. A naturalized person whose application was 
signed in a foreign language may sign the certificate of naturalization 
in the same manner.

[56 FR 50501, Oct. 7, 1991]



Sec. 338.5  Correction of certificates.

    (a) Whenever a Certificate of Naturalization has been delivered 
which does not conform to the facts shown on the application for 
naturalization, or a clerical error was made in preparing the 
certificate, an application for issuance of a corrected certificate, 
Form N-565, without fee, may be filed by the naturalized person. The 
application shall be filed at the Service office having jurisdiction 
over the place of residence of the applicant.
    (b) If the certificate was originally issued by a clerk of court 
under a prior statute and the district director finds that a correction 
is justified and can be made without mutilating the certificate, he or 
she shall authorize the clerk of the issuing court, or his or her 
authorized deputy, on Form N-459, in duplicate, to make the necessary 
correction and to place a dated endorsement on the reverse of the 
certificate, over the clerk's or deputy's signature and the seal of the 
court, explaining the correction. The authorization shall be filed with 
the naturalization record of the court, the corrected certificate shall 
be returned to the naturalized person, and the duplicate Form N-459 
shall be endorsed to show the date and nature of the correction and 
endorsement made, and then returned to the district director. No fee 
shall be charged the naturalized person for the correction. The district 
director shall forward the duplicate endorsed authorization to the 
official Service file.
    (c) If the certificate was originally issued by the Service, and the 
district director finds that a correction was justified, the necessary 
correction shall be made to the certificate and a dated endorsement made 
on the reverse of the certificate, over the signature of the district 
director and the seal of the Department of Justice. A notation regarding 
the correction shall be placed on the Form N-565 which shall be 
forwarded to the Service file.
    (d) When a correction made pursuant to paragraph (b) or (c) of this 
section would or does result in mutilation of a certificate, the 
district director shall issue a replacement certificate on Form N-570 
and the surrendered certificate shall be destroyed.
    (e) The correction will not be deemed to be justified where the 
naturalized person later alleges that the name or date of birth which 
the applicant stated to be his or her correct name or date of birth at 
the time of naturalization was not in fact his or her name or date of 
birth at the time of the naturalization.

[56 FR 50501, Oct. 7, 1991]
Secs. 338.6--338.10  [Reserved]



Sec. 338.11  Execution and Issuance of Certificate of Naturalization by clerk of court.

    (a) When a petitioner for naturalization, whose petition for 
naturalization was filed prior to October 1, 1991, has taken and 
subscribed to the oath of allegiance, and a final order of citizenship 
has been signed by the court, a certificate of naturalization shall be 
issued in duplicate by the clerk of court on Form N-550 (rev. 11-1-87) 
or N-550C. If the court maintains naturalization records using the 
certificate stub, the certificates and the stub of the original 
certificate shall be signed by the petitioner. If the court maintains 
naturalization records on an electronic database then only the 
certificates shall be signed by the petitioner and the information 
contained on the stub shall be entered into and maintained in the 
court's electronic database.
    (b) The certificate shall show under ``former nationality'' the name 
of the country of which the petitioner was last a citizen, as shown on 
the petition, even though the petitioner may have been stateless at the 
time of admission to citizenship. The clerk of court or the authorized 
deputy shall endorse the alien registration number on the certificate 
stub, or if using automation equipment, ensure it is part of the 
electronic database record. The clerk of court or the authorized deputy 
shall

[[Page 612]]

personally sign the certificate, and ensure that the essential facts 
from the certificate are on the stub or entered into the electronic 
database record. Both certificates and stubs shall be prepared in one 
operation unless an automated system is used. Photographs shall be 
affixed to the original and duplicate certificates in the manner 
prescribed in 8 CFR part 333.
    (c) The stub of the original certificate or the information recorded 
from the stub that is maintained on the electronic database shall be 
retained by the clerk of court. Courts using the certificate stub shall 
file and maintain the stub in a 3'' x 5'' card file container. The 
electronic record shall be maintained in an accessible database with a 
back-up system to ensure protection and integrity of data. The original 
certificate shall be delivered to the petitioner. The duplicate 
certificate shall not be separated from the stub, and shall be forwarded 
to the appropriate office of the Immigration and Naturalization Service 
with all other duplicate papers or records in accordance with 8 CFR part 
333.

[56 FR 30679, July 5, 1991, as amended at 56 FR 50501, Oct. 7, 1991]



Sec. 338.12  Endorsement by clerk of court in case name is changed.

    Whenever the name of a petitioner, whose petition for naturalization 
was filed prior to October 1, 1991, has been changed by order of a court 
as part of a naturalization, the clerk of court or his or her authorized 
deputy shall make the following endorsement on the front of the original 
and duplicate certificate of naturalization: ``Name changed by decree of 
court from ________, as part of the naturalization.'' inserting in full 
the original name of the petitioner. This notation will be inserted 
immediately following the year of naturalization. If the stubs are being 
kept as naturalization records, a similar notation will be made on the 
stubs of the original and duplicate certificates, an the stub of the 
original certificate will be signed by the petitioner in the name as 
changed. If the court is using an electronic database for naturalization 
recordkeeping, the name change information will be maintained in that 
database. The original certificate will be issued and the duplicate, 
with or without the stub, depending on the specific courts recordkeeping 
system, will be sent to the Immigration and Naturalization Service.

[56 FR 30680, July 5, 1991; 56 FR 38485, Aug. 13, 1991, as amended at 56 
FR 50501, Oct. 7, 1991]



Sec. 338.13  Spoiled certificate.

    Whenever a certificate of naturalization is damaged, mutilated, 
defaced, or otherwise spoiled before delivery by the clerk, the original 
and duplicate, with stubs intact, shall be marked ``Spoiled'' and 
transmitted to the appropriate immigration and naturalization office, in 
the manner described in Sec. 339.2 of this chapter, with the monthly 
report of the clerk on Form N-4. This section applies to certificates 
prepared by the clerk of court pursuant to Sec. 338.11.

[22 FR 9824, Dec. 6, 1957, as amended at 56 FR 50502, Oct. 7, 1991]



PART 339--FUNCTlONS AND DUTIES OF CLERKS OF COURT REGARDING NATURALIZATION PROCEEDINGS--Table of Contents




Sec.
339.1  Administration of oath of allegiance to applicants for 
          naturalization.
339.2  Monthly reports.
339.3  Relinquishment of naturalization jurisdiction.
339.4  Binding of naturalization records.
339.5  Recordkeeping.

    Authority: 8 U.S.C. 1103, 1443, 1448.



Sec. 339.1  Administration of oath of allegiance to applicants for naturalization.

    It shall be the duty of a judge of a court that administers an oath 
of allegiance to ensure that such oath is administered to each applicant 
for naturalization who has chosen to appear before the court. The clerk 
of court shall issue to each person to whom such oath is administered 
the Certificate of Naturalization provided by the Service pursuant to 
Sec. 338.1 of this chapter. The clerk of court shall provide to each 
person whose name was changed as part of the naturalization proceedings,

[[Page 613]]

pursuant to section 336(e) of the Act, certified evidence of such name 
change.

[58 FR 49916, Sept. 24, 1993]



Sec. 339.2  Monthly reports.

    (a) Oath administration ceremonies. Clerks of court shall on the 
first day of each month submit to the Service office having 
administrative jurisdiction over the place in which the court is located 
a report on Form N-4, in duplicate, listing all oath administration 
ceremonies held and the total number of persons issued the oath at each 
ceremony, in accordance with the instructions contained in Form N-4. The 
report shall be accompanied by all duplicate lists of persons attending 
naturalization oath ceremonies during the month, certified copies of any 
court orders granting changes of name, an accounting of the certificates 
issued to them, and the original of all certificates of naturalization 
which were voided by the clerk of court. In lieu of forwarding duplicate 
lists of naturalized persons to the Service with the report on Form N-4, 
the clerk may deliver the lists to the Service representative 
immediately after the oath ceremony. In such a case, the N-4 shall 
reflect that the duplicate list was so delivered.
    (b) Petitions filed for de novo hearings. The clerk of court shall 
submit to the district director having administrative jurisdiction over 
the place in which the court is located, a monthly report of all persons 
who have filed de novo review petitions before the court. The report 
shall include each petitioner's name, alien registration number, date of 
filing of the petition for a de novo review, and, once an order has been 
entered, the disposition.
    (c) Reports relating to petitions filed prior to October 1, 1991. 
The clerks of court shall, on the first day of each month, submit to the 
district director or officer in charge having administrative 
jurisdiction over the place in which the court is located, a report on 
Form N-4, in duplicate, listing all certificates of naturalization 
issued or spoiled pursuant to Sec. 338.11 of this chapter during the 
preceding month in accordance with the instructions contained in Form N-
4. The report shall be accompanied by all duplicates of certificates of 
naturalization with stubs intact.
    (d) Other proceedings and orders. The clerk of court shall forward 
to the Service office having administrative jurisdiction over the place 
in which the court is located certified copies of the records of such 
other proceedings and other orders instituted on or issued by the court 
affecting or relating to the naturalization of any person as may be 
required from time to time by the Service.
    (e) Use of reports for accounting purposes. Form N-4 shall be used 
by state and federal courts as a monthly billing document, submitted to 
the Service for reimbursement in accordance with section 344(f)(1) of 
the Act. The Service shall use the information submitted on this form to 
calculate costs incurred by courts in performing their naturalization 
functions. State and federal courts will be reimbursed pursuant to terms 
set forth in annual agreements entered into between the Service and the 
Administrative Office of United States Courts.

[56 FR 50502, Oct. 7, 1991, as amended at 58 FR 49916, Sept. 24, 1993; 
60 FR 6652, Feb. 3, 1995]



Sec. 339.3  Relinquishment of naturalization jurisdiction.

    Whenever a court relinquishes naturalization jurisdiction, the clerk 
of court shall, within ten days following the date of relinquishment, 
furnish the district director having administrative jurisdiction over 
the place in which the court is located, a certified copy of the order 
of court relinquishing jurisdiction. A representative of the Service 
shall thereafter examine the naturalization records in the office of the 
clerk of court and shall bind and lock them. The clerk of court shall 
return all unused forms and blank certificates of naturalization to the 
district director with his monthly report on Form N-4.

[22 FR 9825, Dec. 6, 1957]



Sec. 339.4  Binding of naturalization records.

    Whenever a volume of petitions for naturalization, applications to 
take the oath of allegiance, declarations of

[[Page 614]]

intention, orders of court, or other documents affecting or relating to 
the naturalization of persons is completed, it shall be bound and locked 
by the clerk of court.

[22 FR 9825, Dec. 6, 1957]



Sec. 339.5  Recordkeeping.

    The maintenance of records and submission of reports under this 
chapter may be accomplished by either electronic or paper means.

[56 FR 50502, Oct. 7, 1991]



PART 340--REVOCATION OF NATURALIZATION--Table of Contents




Sec
340.1  Reopening of a naturalization application by a district director 
          pursuant to section 340(h) of the Act.
340.2  Revocation proceedings pursuant to section 340(a) of the Act.

    Authority: 8 U.S.C. 1103, 1443.



Sec. 340.1  Reopening of a naturalization application by a district director pursuant to section 340(h) of the Act.

    (a) Reopening general. On its own motion, the Service may reopen a 
naturalization proceeding and revoke naturalization in accordance with 
this section, if the Service obtains credible and probative evidence 
which:
    (1) Shows that the Service granted the application by mistake; or
    (2) Was not known to the Service Officer during the original 
naturalization proceeding; and--
    (i) Would have had a material effect on the outcome of the original 
naturalization; and
    (ii) Would have proven that:
    (A) The applicant's application was based on fraud or 
misrepresentation or concealment of a material fact; or
    (B) The applicant was not, in fact, eligible for naturalization.
    (b) Procedure for reopening of naturalization proceedings--(1) 
Jurisdiction. The district director under whose jurisdiction the 
applicant currently resides has jurisdiction to reopen proceedings under 
this section, except that notice of intent to reopen naturalization 
proceedings and to revoke naturalization must be served no later than 2 
years after the effective date of the order admitting a person to 
citizenship, as determined under Sec. 337.9 of this chapter. This 
section applies to any order admitting a person to citizenship with an 
effective date before, on, or after October 24, 1996.
    (2) Notice of intent to reopen naturalization proceedings and to 
revoke naturalization. (i) If the district director determines that 
reopening a naturalization proceeding is warranted under paragraph (a) 
of this section, the district director shall prepare a written notice of 
intent to reopen naturalization proceedings and to revoke 
naturalization. The notice shall describe in clear and detailed language 
the grounds on which the district director intends to reopen the 
proceeding. The notice shall include all evidence which the district 
director believes warrants reopening of the proceeding. The notice shall 
advise the applicant of his or her right to submit a response to the 
notice and to request a hearing, as provided in paragraph (b)(3) of this 
section.
    (ii) The Service shall serve the notice of intent to reopen 
naturalization proceedings and to revoke naturalization upon the 
applicant by personal service, as described in Sec. 103.5a(a)(2) of this 
chapter. When personal service is accomplished by certified or 
registered mail, return receipt requested, but the notice is returned as 
undeliverable, the Service shall serve the notice again, using another 
one of the methods of personal service described in Sec. 103.5a(a)(2) of 
this chapter.
    (3) Applicant's opportunity to respond and to request hearing. (i) 
Within sixty (60) days of service of the notice of intent to reopen 
naturalization proceedings and to revoke naturalization, the applicant 
may submit a response to the Service. The response may include any 
statements and/or additional evidence the applicant wishes to present in 
response to the proposed grounds for reopening.
    (ii) The applicant may request a hearing on the notice of intent to 
reopen naturalization proceedings and to revoke naturalization before an 
immigration officer authorized to review naturalization applications 
under sections 310 and 335 of the Act. The applicant must submit a 
written request for

[[Page 615]]

a hearing together with any statements and/or additional evidence within 
sixty (60) days of service of this notice. The Service shall schedule a 
requested hearing as soon as practicable.
    (4) Withdrawal of application or failure to respond. (i) Upon 
receipt of the notice of intent to reopen naturalization proceedings and 
to revoke naturalization, the applicant may submit a written statement 
admitting the facts which the district director alleges as grounds for 
reopening, and withdrawing the application for naturalization. The 
applicant shall sign the statement under oath or affirmation or shall 
certify the truth of the statement under penalty of perjury.
    (ii) If the applicant fails to submit a response to the notice of 
intent to reopen naturalization proceedings and to revoke naturalization 
within the period specified in paragraph (b)(3) of this section, that 
failure to respond will be deemed an admission of the stated grounds for 
reopening and revoking naturalization.
    (5) Right to counsel. The applicant may be represented at any time 
during reopening proceedings by an attorney or other representative 
qualified under part 292 of this chapter.
    (6) Burden of proof. Upon service of a notice of intent to reopen 
naturalization proceedings and to revoke naturalization, the applicant 
bears the burden of persuading the district director that, 
notwithstanding the evidence described in the notice, the applicant was 
eligible for naturalization at the time of the order purporting to admit 
the applicant to citizenship.
    (c) Record of reopened proceedings. The record shall include, but is 
not limited to:
    (1) The applicant's application for naturalization;
    (2) The Service's notice of intent to reopen naturalization 
proceedings and to revoke naturalization with proof of service to the 
applicant;
    (3) All evidence forming the basis for reopening the naturalization 
application;
    (4) The applicant's statement and/or evidence in response to the 
Service's notice and in support of the application; and
    (5) The record of the hearing, if a hearing was held.
    (d) Decision. (1) The district director shall render a written 
decision on the reopened naturalization application within 180 days of 
service of the notice of intent to reopen naturalization proceedings and 
to revoke naturalization. The decision shall consist of findings of 
fact, conclusions of law, and a final determination on the 
naturalization application. Notice of decision shall be served on the 
applicant or his or her attorney or representative, if applicable.
    (2) Referral for revocation suit. Rather than reopening a 
naturalization decision and revoking naturalization, the district 
director shall refer a case for revocation proceedings under Sec. 340.2 
if:
    (i) The applicant's answer to the notice of intent to reopen a 
naturalization proceeding and to revoke naturalization and any 
additional evidence that the applicant submits raises a genuine factual 
issue about the propriety of the applicant's naturalization, so that 
resolution of the factual issue will depend on the credibility of 
witnesses testifying under oath and subject to cross-examination; or
    (ii) After rendering a decision on the merits, the district director 
determines that the applicant had adequately rebutted the allegations 
made in the notice of intent to reopen naturalization proceedings and to 
revoke naturalization, but the district director thereafter obtains 
additional evidence of at least one of the grounds set forth in 
paragraph (a) of this section.
    (e) Appeals. (1) The applicant may appeal an adverse decision under 
paragraph (d) of this section to the Office of Examinations, 
Administrative Appeals Unit. Any appeal shall be filed initially with 
the district director within thirty (30) days after service of the 
notice of decision. Such appeal shall be filed in accordance with 
Sec. 103.1 and Sec. 103.7 of this chapter, by filing the appeal on Form 
I-290B with the fee. Appeals received after the 30-day period may be 
subject to dismissal for failure to timely file.
    (2) If, within 45 days of the filing of a notice of appeal, the 
district director determines that the materials filed in support of the 
appeal adequately rebut

[[Page 616]]

the grounds for reopening, the district director may reconsider the 
decision to reopen the naturalization application and to revoke 
naturalization, and affirm the original decision naturalizing the 
applicant. In such a case, it is not necessary for the district director 
to forward the case to the Administrative Appeals Unit. If, after the 
district director affirms an original naturalization grant under this 
paragraph, the Service obtains additional evidence of the grounds set 
forth in paragraph (a) of this section, the Service may not bring a new 
motion to reopen the naturalization proceeding and to revoke 
naturalization, but may seek to revoke the applicant's naturalization 
only pursuant to section 340(a) of the Act.
    (f) Judicial review. If a decision of the Office of Examinations, 
Administrative Appeals Unit, is adverse to the applicant, the applicant 
may seek judicial review in accordance with section 310 of the Act.
    (g) Effect of final decision of denial upon applicant's status. (1) 
A final decision to reopen a naturalization proceeding and to revoke 
naturalization shall be effective as of the date of the original order 
purporting to admit the applicant to citizenship. The order purporting 
to admit the applicant to citizenship shall then have no legal effect.
    (2) A district director's decision to reopen naturalization 
proceedings and to revoke naturalization will be final, unless the 
applicant seeks administrative or judicial review within the period 
specified by law or regulation.
    (3) When a decision to reopen naturalization proceedings and to 
revoke naturalization becomes final, the district director shall order 
the applicant to surrender his or her certificate of naturalization. The 
district director shall then cancel the certificate of naturalization, 
and shall also notify the Department of State of the revocation of 
naturalization.
    (4) Notwithstanding the service of a notice of intent to reopen 
naturalization proceedings and to revoke naturalization, the applicant 
shall be considered to be a citizen of the United States until a 
decision to reopen proceedings and deny naturalization becomes final.
    (h) Applicant's request for reopening or modification of 
application. After having been granted naturalization and administered 
the oath of allegiance and renunciation, an applicant may move that the 
Service reopen his or her naturalization application for the purpose of 
amending the application in accordance with Sec. 334.5 of this chapter.

[61 FR 55553, Oct. 28, 1996]



Sec. 340.2  Revocation proceedings pursuant to section 340(a) of the Act.

    (a) Recommendations for institution of revocation proceedings. 
Whenever it appears that any grant of naturalization may have been 
illegally procured or procured by concealment of a material fact or by 
willful misrepresentation, the facts shall be reported to the district 
director having jurisdiction over the naturalized person's last known 
place of residence in the United States. If the district director is 
satisfied that a prima facie case exists for revocation pursuant to 
section 340(a) of the Act, he or she shall report the facts in writing 
to the Regional Director, with a recommendation regarding the 
institution of revocation proceedings.
    (b) Recommendation for criminal prosecution. If it appears to the 
district director that a case described in paragraph (a) of this section 
or one in which a final decision has been reached under Sec. 340.1(g) is 
amenable to criminal penalties under 18 U.S.C. 1425 for unlawful 
procurement of citizenship or naturalization, the district director may 
present such facts to the appropriate United States Attorney for 
possible criminal prosecution.
    (c) Reports. It shall be the responsibility of the district director 
to advise the Service office that originated the information upon which 
the revocation inquiry is based about the progress of the investigation, 
and report the findings of the inquiry as soon as practicable.

[61 FR 55554, Oct. 28, 1996]



PART 341--CERTIFICATES OF CITIZENSHIP--Table of Contents




Sec.
341.1  Application.
341.2  Examination upon application.

[[Page 617]]

341.3  Depositions.
341.4  Surrender of immigration documents.
341.5  Report and recommendation.
341.6  Denial of application.
341.7  Issuance of certificate.

    Authority: 66 Stat. 173, 238, 254, 264, as amended; 8 U.S.C. 1103, 
1409(c), 1443, 1444, 1448, 1452, 1455; 8 CFR part 2.

    Source: 30 FR 5472, Apr. 16, 1965, unless otherwise noted.



Sec. 341.1  Application.

    Form N-600. An application for a certificate of citizenship by or in 
behalf of a person who claims to have acquired United States citizenship 
under section 309(c) or to have acquired or derived United States 
citizenship as specified in section 341 of the Act shall be submitted on 
Form N-600 in accordance with the instructions thereon, accompanied by 
the fee specified in Sec. 103.7(b)(1) of this chapter. The application 
shall be supported by documentary and other evidence essential to 
establish the claimed citizenship, such as birth, adoption, marriage, 
death, and divorce certificates.

(Approved by the Office of Management and Budget under control number 
1115-0018)

[52 FR 19719, May 27, 1987]



Sec. 341.2  Examination upon application.

    (a) Personal appearance of applicant and parent or guardian--(1) 
When testimony may be omitted. An application received at a Service 
office having jurisdiction over the applicant's residence may be 
processed without interview if accompanied by one of the following:
    (i) A Department of State Form FS-240 (Report of Birth Abroad of a 
Citizen of the United States);
    (ii) An unexpired United States passport issued initially for a full 
five/ten-year period to the applicant as a citizen of the United States, 
or
    (iii) The applicant's parent(s)' naturalization certificate(s).
    (2) Testimony required. Each applicant, when notified to do so, 
shall appear in person before an officer for examination under oath or 
affirmation upon the application. A person under 18 years of age must 
have a parent or guardian apply, appear, and testify for the applicant, 
unless one is unavailable and the district director is satisfied that 
the applicant is old enough to provide reliable testimony. The same rule 
will apply for incompetent applicants. At the examination the applicant 
and the acting parent or guardian, if necessary, shall present testimony 
and evidence pertinent to the claim to citizenship and shall have the 
right to review and rebut any adverse evidence on file, and to cross-
examine witnesses called by the Government.
    (b) Witness--(1) Personal appearance. A witness shall be called to 
testify under oath or affirmation at the district director's option only 
if that person's testimony is needed to prove a particular point, and 
only if alternative proof is unavailable or more difficult to produce 
than is the witness.
    (2) Substitution and waiver. When testimony is deemed necessary by 
the district director and the presentation of the person or persons 
through whom citizenship is claimed is precluded by reason of death, 
refusal to testify, unknown whereabouts, advanced age, mental or 
physical incapacity, or severe illness or infirmity, another witness or 
witnesses shall be produced. A substitute witness also may be produced 
in lieu of such person if such person is a member of the United States 
Armed Forces serving outside the United States in an area where his 
testimony could not be taken without imposing extreme hardship upon him, 
or without unduly delaying action on the application, and no issue is 
present which can be resolved only by this testimony.
    (c) Proof. The burden of proof shall be upon the claimant, or his 
parent or guardian if one is acting in his behalf, to establish the 
claimed citizenship by a preponderance of the evidence.
    (d) Assignment and authority of officer. A district director shall 
assign an officer of the Service to conduct the examination provided for 
in paragraphs (a) and (b) of this section. The assigned officer shall 
have authority to administer oaths or affirmations; to present and 
receive evidence; to rule upon offers of proof; to take or cause to be 
taken depositions or interrogatories; to regulate the course of the 
examination; to examine and cross-examine all witnesses appearing in the 
proceedings; to grant or order continuances; to consider and rule upon 
objections to the

[[Page 618]]

introduction of evidence; to make a report and recommendation to the 
district director as to whether the application shall be granted or 
denied, and to take such other action as may be appropriate to the 
conduct of the examination and the disposition of the application.
    (e) Conduct of examination. The assigned officer shall, at the 
commencement of the examination of the claimant or the acting parent or 
guardian, advise them of their rights as set forth in paragraphs (a) and 
(f) of this section, and shall interrogate them under oath or 
affirmation with regard to each assertion made in the application and 
any other matter pertinent to the claim to citizenship; in addition, 
when a witness is deemed necessary, he shall interrogate each witness 
with regard to pertinent matters within the personal knowledge of the 
witness, such as the relationship between the claimant and the citizen 
source or sources; the citizenship of the latter, and any possible 
expatriatory acts performed by the claimant and the citizen source or 
sources. He may, in his discretion, have a transcript made of the 
testimony. At the conclusion of the examination of the claimant or the 
action parent or guardian, all corrections made on the applications form 
shall be consecutively numbered and recorded in the space provided 
therefor in the form. The affidavit shall then be signed and sworn to or 
affirmed by the claimant or the acting parent or guardian; and the 
remainder of the affidavit completed and signed by the assigned officer.
    (f) Representation during proceedings. The claimant shall have the 
right to representation during the proceedings, as provided in part 292 
of this chapter, and such representative shall have the right to examine 
and cross-examine witnesses appearing in the proceedings; to introduce 
evidence; to object to the introduction of evidence, which objections 
shall be stated succinctly and entered on the record, and to submit 
briefs. If the claimant is not represented by an attorney or 
representative, the assigned officer shall assist him in the 
introduction of all evidence available in his behalf.
    (g) Assignment of additional officer. The district director may, in 
his discretion, assign an officer of the Service to examine and cross-
examine the applicant and any witnesses produced by the applicant or by 
the Government and present evidence pertinent to the applicant's claim 
to citizenship. The officer of the Service assigned to conduct the 
examination under this part may take such part in the proceedings as he 
may deem necessary.

[30 FR 5472, Apr. 16, 1965; 30 FR 5621, Apr. 21, 1965, as amended at 32 
FR 6260, Apr. 21, 1967; 45 FR 84011, Dec. 22, 1980; 51 FR 35629, Oct. 7, 
1986]



Sec. 341.3  Depositions.

    If satisfied that a witness whose testimony is essential is not 
available for examination in the United States, the assigned officer may 
authorize the taking of a deposition abroad by written interrogatories 
before an officer of the Service or a United States consular official.



Sec. 341.4  Surrender of immigration documents.

    Each claimant shall surrender any immigration identification and 
alien registration receipt cards in his possession.



Sec. 341.5  Report and recommendation.

    The officer assigned to act on the application shall report his/her 
findings and recommendation by completing the Report and Recommendation 
section of the Form N-600 application, or by formal order, as 
appropriate. The record, including the report and recommendation, shall 
be submitted to the distict director, who shall sign the report either 
approving or disapproving the recommendation.

[50 FR 39649, Sept. 30, 1985; 50 FR 41480, Oct. 11, 1985]



Sec. 341.6  Denial of application.

    If it is the decision of the district director to deny the 
application for a Certificate of Citizenship, the applicant shall be 
furnished the reasons for denial and advised of the right to appeal in 
accordance with the provisions of 8 CFR 103.3(a). After an application 
for a Certifcate of Citizenship has been

[[Page 619]]

denied and the appeal time has run, a second application submitted by 
the same individual shall be rejected and the applicant instructed to 
submit a motion for reopening or reconsideration in accordance with 8 
CFR 103.5. The motion shall be accompanied by the rejected application 
and the fee specified in 8 CFR 103.7 reduced by the amount of the fee 
paid with the rejected application. A decision shall be issued with 
notification of appeal rights in all Certificate of Citizenship cases, 
including any case denied due to the applicant's failure to prosecute 
the application.

[50 FR 39649, Sept. 30, 1985]



Sec. 341.7  Issuance of certificate.

    (a) If the application is granted, a Certificate of Citizenship 
shall be issued and, unless the claimant is unable by reason of mental 
incapacity or young age to understand the meaning thereof, he or she 
shall take and subscribe to the oath of renunciation and allegiance, 
prescribed by part 337 of this chapter, before a member of the Service 
within the United States. Thereafter, delivery of the certificate shall 
be made in the United States to the claimant or the acting parent or 
guardian, either personally or by certified mail.
    (b) The child on whose behalf an application for issuance of a 
Certificate of Citizenship is made pursuant to section 341(c) of the Act 
must meet the requirements of section 341(c)(2) at the time the 
application is approved. The child becomes a citizen of the United 
States upon approval of the application. The Certificate of Citizenship 
issued pursuant to such approval will reflect the approval date of the 
application.

[55 FR 31037, July 31, 1990]



PART 342--ADMINISTRATIVE CANCELLATION OF CERTIFICATES, DOCUMENTS, OR RECORDS--Table of Contents




Sec.
342.1  Notice.
342.2  Service of notice.
342.3  Allegations admitted; no answer filed; no personal appearance 
          requested.
342.4  Answer asserting defense; personal appearance requested.
342.5  Conduct of examination.
342.6  Depositions.
342.7  Report and recommendation.
342.8  Appeals.
342.9  Notice re 18 U.S.C. 1428.

    Authority: Secs. 103, 342, 66 Stat. 173, 263; 8 U.S.C. 1103, 1453.

    Source: 28 FR 209, Jan. 9, 1963, unless otherwise noted.



Sec. 342.1  Notice.

    If it shall appear to a district director that a person has 
illegally or fraudulently obtained or caused to be created a 
certificate, document, or record described in section 342 of the Act, a 
notice shall be served upon the person of intention to cancel the 
certificate, document, or record. The notice shall contain allegations 
of the reasons for the proposed action and shall advise the person that 
he may submit, within 60 days of service of the notice, an answer in 
writing under oath or affirmation showing cause why the certificate, 
document, or record should not be canceled, that he may appear in person 
before a naturalization examiner in support of, or in lieu of his 
written answer, and that he may have present at that time, without 
expense to the Government, an attorney or representative qualified under 
part 292 of this chapter. In such proceedings the person shall be known 
as the respondent.

[29 FR 5511, Apr. 24, 1964, as amended at 37 FR 2767, Feb. 5, 1972]



Sec. 342.2  Service of notice.

    (a) Service. The notice required by Sec. 342.1 shall be served 
personally by an employee of the Government by delivery to the 
respondent, or by delivery to a person of suitable age and discretion at 
the respondent's dwelling house or usual place of abode, or by mailing 
to the respondent's last known address by registered or certified mail, 
return receipt requested.
    (b) Proof of Service. The post office return receipt, or the 
certificate of the employee serving the notice by personal delivery, 
setting forth the date and manner of service, shall constitute proof of 
service. In the case of a mentally incompetent respondent or a child 
under 14 years of age, service

[[Page 620]]

shall be made upon his guardian, near relative or friend, and the person 
so served shall be permitted to appear on behalf of the respondent.

[29 FR 5511, Apr. 24, 1964]



Sec. 342.3  Allegations admitted; no answer filed; no personal appearance requested.

    If the answer admits all material allegations in the notice, or if 
no answer is filed within the 60-day period or any extension thereof and 
no personal appearance is requested within such period or periods, it 
shall be deemed to authorize the district director, without further 
notice to respondent, to find the facts to be as alleged in the notice 
and to cancel the certificate, document, or record. No appeal shall lie 
from such decision. Written notice of the decision shall be served upon 
the respondent with demand for surrender of the certificate, document, 
or record forthwith.



Sec. 342.4  Answer asserting defense; personal appearance requested.

    If the respondent files an answer within the prescribed period 
asserting a defense to the allegations in the notice, or requests a 
personal appearance, with or without an answer, the district director 
shall designate a naturalization examiner to consider the case. The 
respondent shall be notified that he may appear in person or through 
counsel with any witnesses and evidence in defense of the allegations, 
and shall be informed of the date, time, and place for such appearance.



Sec. 342.5  Conduct of examination.

    (a) Authority of naturalization examiner. The naturalization 
examiner assigned to consider the case shall have authority to 
administer oaths or affirmations to respondent and witnesses, issue 
subpoenas, present and receive evidence, rule upon offers of proof, take 
or cause depositions or interrogatories to be taken, regulate the course 
of the examination, take testimony of respondent and witnesses, grant 
continuances, consider and rule upon objections to the introduction of 
evidence, make recommendations to the district director as to whether 
cancellation shall be ordered or the proceedings terminated, and to take 
any other action as may be appropriate to the conduct and disposition of 
the case.
    (b) Assignment of additional officer. The district director may, in 
his discretion, assign an officer of the Service to examine and cross-
examine the respondent and witnesses and to present evidence pertinent 
to the case. The naturalization examiner designated under Sec. 342.4 may 
take such part in the proceedings as he may deem necessary.
    (c) Examination. The naturalization examiner designated under 
Sec. 342.4 shall, prior to commencement of the examination, make known 
to the respondent his official capacity and that of any officer assigned 
pursuant to paragraph (b) of this section, the nature of the 
proceedings, his right to representation by counsel, to examine or 
object to evidence against him, to present evidence in his own behalf, 
to cross-examine witnesses presented by the Government, and shall read 
the allegations in the notice to respondent and, if necessary, explain 
them to him. The respondent shall be asked whether he admits or denies 
the material allegations in the notice, or any of them, and whether he 
concedes illegality or fraud. If respondent admits all the material 
allegations and that the certificate, document, or record was procured 
by fraud or illegality, and no issue of law or fact remains, the 
naturalization examiner may determine that fraud or illegality has been 
established on the basis of the respondent's admissions. The allegations 
in the notice shall be taken as admitted if respondent, without 
reasonable cause, fails or refuses to attend or remain in attendance at 
the examination. The examination shall be recorded verbatim except for 
statements made off the record with the permission of the naturalization 
examiner.
    (d) Prior statements. The naturalization examiner assigned to 
consider the case may receive in evidence any oral or written statement 
which is material and relevant to any issue in the case previously made 
by the respondent or by any other person during any investigation, 
examination, hearing, trial, proceeding, or interrogation.

[28 FR 209, Jan. 9, 1963, as amended at 32 FR 3340, Feb. 28, 1967]

[[Page 621]]



Sec. 342.6  Depositions.

    Upon good cause shown, the testimony of any witness may be taken by 
depositions, either orally or upon written interrogatories before a 
person having authority to administer oaths (affirmations), as may be 
designated by the naturalization examiner.

[37 FR 2767, Feb. 5, 1972]



Sec. 342.7  Report and recommendation.

    The naturalization examiner shall prepare a report summarizing the 
evidence, discussing the applicable law, and containing his findings and 
recommendations. The record, including the report and recommendation, 
shall be forwarded to the district director, who shall sign the report, 
either approving or disapproving the recommendation. If the decision of 
the district director is that the proceedings be terminated, the 
respondent shall be so informed.



Sec. 342.8  Appeals.

    Should the district director find that the certificate, document, or 
record was fraudulently or illegally obtained, he shall enter an order 
that it be cancelled and the certificate or document surrendered to the 
Service forthwith. Written notification of such action shall be given 
the respondent, with a copy of the decision, findings and decision of 
the district director, and he shall be informed of his right of appeal 
in accordance with the provisions of part 103 of this chapter.



Sec. 342.9  Notice re 18 U.S.C. 1428.

    The notice to surrender a cancelled certificate of citizenship or 
copy thereof, prescribed by section 1428 of Title 18 of the United 
States Code, shall be given by the district director in whose district 
the person who has possession or control of such document resides.

[28 FR 9282, Aug. 23, 1963]



   PART 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--Table of Contents





    Authority: Secs. 103, 332, 343, 344, 405, 66 Stat. 173, 252, 263, 
264, 280; 8 U.S.C. 1101, 1103, 1443, 1454, 1455.



Sec. 343.1  Application.

    A person who lost citizenship of the United States incidental to 
service in one of the allied armies during World War I or II, or by 
voting in a political election in a country not at war with the United 
States during World War II, and who was naturalized under the provisions 
of section 323 of the Nationality Act of 1940, as amended, or a person 
who, before January 13, 1941, resumed United States citizenship under 
the twelfth subdivision of section 4 of the act of June 29, 1906, may 
obtain a certificate evidencing such citizenship by making application 
therefor on Form N-580. The applicant shall be required to appear in 
person before an assigned officer for interrogation under oath or 
affirmation upon the application. When the application is approved, a 
certificate of naturalization or repatriation shall be issued and 
delivered in person, in the United States only, upon the applicant's 
signed receipt therefor. If the application is denied, the applicant 
shall be notified of the reasons therefor and his right to appeal in 
accordance

[[Page 622]]

with the provisions of part 103 of this chapter.

[23 FR 9125, Nov. 26, 1958, as amended at 32 FR 9635, July 4, 1967]



PART 343a--NATURALIZATION AND CITIZENSHIP PAPERS LOST, MUTILATED, OR DESTROYED; NEW CERTIFICATE IN CHANGED NAME; CERTIFIED COPY OF REPATRIATION PROCEEDINGS--Table of Contents




Sec.
343a.1  Application for replacement of or new papers relating to 
          naturalization, citizenship, or repatriation.
343a.2  Return or replacement of surrendered certificate of 
          naturalization or citizenship.

    Authority: Secs. 103, 324, 332, 343, 344, 405, 66 Stat. 173, 246, 
247, 252, 263, 264, 265, 280; 8 U.S.C. 1101 note, 1103, 1435, 1443, 
1454, 1455.



Sec. 343a.1  Application for replacement of or new papers relating to naturalization, citizenship, or repatriation.

    (a) Lost, mutilated, or destroyed naturalization papers. A person 
whose declaration of intention, certificate of naturalization, 
citizenship, or repatriation, or whose certified copy of proceedings 
under the act of June 25, 1936, as amended, or under section 317(b) of 
the Nationality Act of 1940, or under section 324(c) of the Immigration 
and Nationality Act, or under the provisions of any private law, has 
been lost, mutilated, or destroyed, shall apply on Form N-565 for a new 
paper in lieu thereof.
    (b) New certificate in changed name. A naturalized citizen whose 
name has been changed after naturalization by order of court or by 
marriage shall apply on Form N-565 for a new certificate of 
naturalization, or of citizenship, in the changed name.
    (c) Disposition. The applicant shall only be required to appear in 
person before an officer for interview under oath or affirmation in 
specific cases. Those cases which necessitate an interview enabling an 
officer to properly adjudicate the application at the office having 
jurisdiction will be determined by a supervising officer. If an 
application for a new certificate of naturalization, citizenship, or 
repatriation or a new declaration of intention is approved, the new 
certificate or declaration shall be issued and delivered by personal 
service in accordance with Sec. 103.5a(a)(2) of this chapter. If an 
application for a new certified copy of the proceedings under the Act of 
June 25, 1936, as amended, or under section 317(b) of the Nationality 
Act of 1940, or under section 324(c) of the Immigration and Nationality 
Act, or under the provisions of any private law is approved, a certified 
positive photocopy of the record of the proceedings filed with the 
Service shall be issued. If, subsequent to naturalization or 
repatriation, the applicant's name was changed by marriage, the 
certification of the positive photocopy shall show both the name in 
which the proceedings were conducted and the changed name. The new 
certified copy shall be personally delivered to the applicant upon his 
or her signed receipt therefor. If the application is denied, the 
applicant shall be notified of the reasons therefor and of the right to 
appeal in accordance with the provisions of part 103 of this chapter.

[23 FR 9125, Nov. 26, 1958, as amended at 32 FR 9635, July 7, 1967; 51 
FR 35629, Oct. 7, 1986]



Sec. 343a.2  Return or replacement of surrendered certificate of naturalization or citizenship.

    A certificate of naturalization or citizenship which is contained in 
a Service file, and which was surrendered on a finding that loss of 
nationality occurred directly or through a parent as a result of the 
application of any of the following sections of law may, upon request, 
be returned to the person to whom it was originally issued, 
notwithstanding the fact that he or she has since been naturalized or 
repatriated in the United States or abroad:
    (a) Section 404 (b) or (c) of the Nationality Act of 1940;
    (b) Section 352 of the Immigration and Nationality Act, which was 
invalidated by Schneider v. Rusk, 377 U.S. 163;
    (c) Section 401(e) of the Nationality Act of 1940;
    (d) Section 349(a)(5) of the Immigration and Nationality Act, which 
was invalidated by Afroyim v. Rusk, 387 U.S. 253;

[[Page 623]]

    (e) Section 301(b) of the Immigration and Nationality Act
    (f) Section 301(c) of the Immigration and Nationality Act relative 
to persons born after May 24, 1934, which was invalidated by amendment 
to section 301(b) on October 27, 1972, Public Law 92-584.
    If, after having been surrendered to the Department of State or to 
the Service, the certificate was lost, mutilated, or destroyed as a 
result of action by the Service or that Department, a replacement 
certificate may be issued in the name shown in the surrendered 
certificate without fee and without requiring the submission of Form N-
565. A surrendered certificate shall not be regarded as mutilated and a 
replacement shall not be issued solely because of holes made in it to 
accommodate a fastener, unless the citizen declines to accept the return 
of the surrendered certificate in that condition and insists upon 
issuance of a replacement. When it is desired that the replacement 
certificate be furnished in a name other than the one shown in the 
surrendered certificate, the regular application procedure with payment 
of fee must be followed.

[51 FR 35629, Oct. 7, 1986]



PART 343b--SPECIAL CERTIFICATE OF NATURALIZATION FOR RECOGNITION BY A FOREIGN STATE--Table of Contents




Sec.
343b.1  Application.
343b.2  Number of applications required.
343b.3  Interrogation.
343b.4  Applicant outside of United States.
343b.5  Verification of naturalization.
343b.11  Disposition of application.

    Authority: 8 U.S.C. 1103, 1443, 1454, 1455.



Sec. 343b.1  Application.

    A naturalized citizen who desires to obtain recognition as a citizen 
of the United States by a foreign state shall submit an application on 
Form N-565. He shall not be furnished with verification of his 
naturalization for such purpose in any other way. An applicant who is a 
claimant against a foreign government for property damage pursuant to 
the provisions of a peace treaty shall not be requested to furnish the 
name, official title, and address of a foreign official unless such 
information is available when the investigation of the applicant is 
conducted. The applicant shall be required to appear in person before an 
assigned officer for interrogation under oath or affirmation upon the 
application.

[32 FR 9636, July 4, 1967, as amended at 56 FR 50502, Oct. 7, 1991]



Sec. 343b.2  Number of applications required.

    A special certificate of naturalization is delivered to one foreign 
government official only. An applicant who desires recognition as a U.S. 
citizen by more than one foreign official, whether in the same country 
or not, must file a separate application for each certificate required.

[32 FR 9636, July 4, 1967]



Sec. 343b.3  Interrogation.

    When Form N-565 presents a prima facie case, it shall be forwarded 
to the district director, without first interrogating the applicant, for 
issuance of the certificate. Interrogation of the applicant shall be 
conducted before the application is forwarded if he appears in person to 
file the application or if it is necessary in order to properly 
adjudicate the case. In that event the officer interviewing the 
applicant will complete the report on page 2 of Form N-565 before 
transmitting the application to the district director. In all other 
cases the interview shall take place at any time before the certificate 
is transmitted to the State Department (unless the applicant is abroad) 
and the report completed after the interview.

[32 FR 9636, July 4, 1967, as amended at 58 FR 49917, Sept. 24, 1993]



Sec. 343b.4  Applicant outside of United States.

    If the application is received by a Service officer stationed 
outside the United States, he shall, when practicable, interrogate the 
applicant before the application is forwarded to the district director 
in the United States having jurisdiction over the applicant's place of 
residence for issuance of the certificate. When such interrogation is

[[Page 624]]

not practicable, or is not conducted because the application is 
submitted directly to the Commissioner or a district director of the 
Service in the United States, the certificate may nevertheless be issued 
and the recommendation conditioned upon satisfactory interrogation by a 
State Department representative. When forwarding the certificate in such 
a case, the Secretary of State shall be informed that the applicant has 
not been interviewed, and requested to have his representative abroad 
interview the applicant regarding identity and possible expatriation. If 
identity is not established or if expatriation has occurred, the request 
shall be made that the certificate be returned to the Service.

[37 FR 7584, Apr. 18, 1972]



Sec. 343b.5  Verification of naturalization.

    The application shall not be granted without first obtaining 
verification of the applicant's naturalization.

[32 FR 9636, July 4, 1967]



Sec. 343b.11  Disposition of application.

    (a) Issuance of certificate. If the application is granted, a 
special certificate of naturalization of Form N-578 shall be issued by 
the district director and forwarded to the Secretary of State for 
transmission to the proper authority of the foreign state. The district 
director shall forward the original certificate by letter, in 
triplicate, to the Secretary of State, Attention: Office of Citizens' 
Consular Service, Department of State, Washington, DC 20520; forward the 
application and the duplicate certificate to the official Service file, 
and send Form N-568 to the applicant.
    (b) Application denied. If the application is denied, the applicant 
shall be notified of the reasons therefor and of his right to appeal in 
accordance with the provisions of part 103 of this chapter.

[23 FR 9126, Nov. 26, 1958 and 32 FR 9636, July 4, 1967, as amended at 
36 FR 11636, June 17, 1971; 45 FR 38340, June 9, 1980]



PART 343c--CERTIFICATIONS FROM RECORDS--Table of Contents




    Authority: 5 U.S.C. 552 (80 Stat. 383); as amended by Pub. L. 93-502 
(88 Stat. 1561); sec. 103 Immigration and Nationality Act (66 Stat. 173; 
8 U.S.C. 1103).



Sec. 343c.1  Application for certification of naturalization record of court or certificate of naturalization or citizenship.

    An application for certification of a naturalization record of any 
court, or of any part thereof, or of any certificate of naturalization, 
repatriation, or citizenship, under section 343(e) of the Act for use in 
complying with any statute, Federal or State, or in any judicial 
proceeding, shall be made on Form G-641.

[40 FR 50703, Oct. 31, 1975]



PART 349--LOSS OF NATIONALITY--Table of Contents




    Authority: Sec. 103, 66 Stat. 173; 8 U.S.C. 1103. Interprets or 
applies 401(i), 54 Stat. 1169; 8 U.S.C. 801, 1946 ed.



Sec. 349.1  Japanese renunciation of nationality.

    A Japanese who renounced United States nationality pursuant to the 
provisions of section 401(i), Nationality Act of 1940, who claims that 
his renunciation is void, shall complete Form N-576, Supplemental 
Affidavit to be Submitted with Applications of Japanese Renunciants. The 
affidavit shall be submitted to the Assistant Attorney General, Civil 
Division, Department of Justice, Washington, DC 20530, with a covering 
letter requesting a determination of the validity of the renunciation.

[32 FR 9636, July 4, 1967]



  PART 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--Table of Contents





Sec.
392.1  Definitions.
392.2  Eligibility for posthumous citizenship.
392.3  Application for posthumous citizenship.
392.4  Issuance of a certificate of citizenship.

    Authority: 8 U.S.C. 1103, 1440 and note, and 1440-1; 8 CFR part 2.


[[Page 625]]


    Source: 56 FR 22822, May 17, 1991, unless otherwise noted.



Sec. 392.1  Definitions.

    As used in this part:
    Active-duty status means full-time duty in the active military 
service of the United States, and includes full-time training duty, 
which constitutes qualifying service under section 329(a) of the Act. 
Active service in the United States Coast Guard during one of the 
periods of hostilities specified herein shall constitute service in the 
military, air, or naval forces of the United States. Active-duty status 
also includes annual training duty and attendance, while in the active 
military service, at a service school designated by the military 
authorities under 10 U.S.C. 101(22). The order of a national guardsman 
into active duty for training under 10 U.S.C. 672 constitutes service in 
active-duty status in the military forces of the United States. Active 
duty in a noncombatant capacity is qualifying service.
    Decedent means the person on whose behalf an application for a 
certificate of posthumous citizenship is made.
    Induction, enlistment, and reenlistment, refer to the decedent's 
place of entry into active duty military service.
    Korean Hostilities relates to the period from June 25, 1950, to July 
1, 1955, inclusive.
    Lodge Act means the Act of June 30, 1950, which qualified for 
naturalization nonresident aliens who served honorably for 5 years in 
the United States Army during specified periods, notwithstanding that 
they never formally became lawful permanent residents of the United 
States.
    Next-of-kin means the closest surviving blood or legal relative of 
the decedent in the following order of succession:
    (1) The surviving spouse;
    (2) The decedent's surviving son or daughter, if the decedent has no 
surviving spouse;
    (3) The decedent's surviving parent, if the decedent has no 
surviving spouse or sons or daughters; or,
    (4) The decedent's surviving brother or sister, if none of the 
persons described in paragraphs (1) through (3) of this definition 
survive the decedent.
    Other periods of military hostilities means any period designated by 
the President under Executive Order as a period in which Armed Forces of 
the United States are or were engaged in military operations involving 
armed conflict with a hostile foreign force.
    Representative means:
    (1) The duly appointed executor or administrator of the decedent's 
estate, including a special administrator appointed for the purpose of 
seeking the decedent's naturalization; or,
    (2) The duly appointed guardian, conservator, or committee of the 
decedent's next-of-kin; or,
    (3) A service organization listed in 38 U.S.C. 3402, or chartered by 
Congress, or State, or other service organization recognized by the 
Department of Veterans Affairs.
    Vietnam Hostilities relates to the period from February 28, 1961, to 
October 15, 1978, inclusive.
    World War I relates to the period from April 6, 1917, to November 
11, 1918, inclusive.
    World War II relates to the period from September 1, 1939, to 
December 31, 1946, inclusive.



Sec. 392.2  Eligibility for posthumous citizenship.

    (a) General. Any alien or noncitizen national of the United States 
is eligible for posthumous United States citizenship who:
    (1) Served honorably in an active-duty status with the military, 
air, or naval forces of the United States during World War I, World War 
II, the Korean Hostilities, the Vietnam Hostilities, or in other periods 
of military hostilities designated by the President under Executive 
Order; and,
    (2) Died as a result of injury or disease incurred in or aggravated 
by service in the United States Armed Forces during a period of military 
hostilities listed in paragraph (a)(1) of this section. Where the person 
died subsequent to separation from military service, the death must have 
resulted from an injury or disease that was sustained, acquired, or 
exacerbated during active-duty service in a qualifying period of 
military hostilities as specified in this part.

[[Page 626]]

    (b) Qualifying enlistment. In conjunction with the qualifying 
service as described in paragraph (a)(1) of this section, the decedent 
must have:
    (1) Enlisted, reenlisted, or been inducted in the United States, the 
Canal Zone, American Samoa, or Swains Island;
    (2) Been lawfully admitted to the United States for permanent 
residence, at any time; or,
    (3) Enlisted or reenlisted in the United States Army pursuant to the 
provisions of the Lodge Act. In such case, the decedent shall be 
considered to have been lawfully admitted to the United States as a 
permanent resident for purposes of this section, provided he or she:
    (i) Entered the United States, its outlying possessions, or the 
Canal Zone, at some time during the period of army service, pursuant to 
military orders; and
    (ii) Was honorably discharged following completion of at least 5 
full years of active duty service, even though the active-duty service 
may not have occurred during a qualifying period of hostilities 
specified in section 329(a) of the Act.
    (c) Character of military service. Where the character of military 
service is not certified as honorable by the executive department under 
which the person served, or where the person was dishonorably discharged 
or discharged under conditions other than honorable, such service shall 
not satisfy the requirement of paragraph (a)(1) of this section.
    (d) Certification of eligibility. (1) The executive department under 
which the decedent served shall determine whether:
    (i) The decedent served honorably in an active-duty status;
    (ii) The separation from such service was under honorable 
conditions; and,
    (iii) The decedent died as a result of injury or disease incurred 
in, or aggravated by active duty service during a qualifying period of 
military hostilities.
    (2) The certification required by section 329A(c)(2) of the Act to 
prove military service and service-connected death shall be requested by 
the applicant on Form N-644, Application for Posthumous Citizenship. 
Form N-644 shall also be used to verify the decedent's place of 
induction, enlistment or reenlistment.



Sec. 392.3  Application for posthumous citizenship.

    (a) Persons who may apply. (1) Only one person who is either the 
next-of-kin or another representative of the decedent shall be permitted 
to apply for posthumous citizenship on the decedent's behalf. A person 
who is a next-of-kin who wishes to apply for posthumous citizenship on 
behalf of the decedent, shall, if there is a surviving next-of-kin in 
the line of succession above him or her, be required to obtain 
authorization to make the application from all surviving next-of-kin in 
the line of succession above him or her. The authorization shall be in 
the form of an affidavit stating that the affiant authorizes the 
requester to apply for posthumous citizenship on behalf of the decedent. 
The affidavit must include the name and address of the affiant, and the 
relationship of the affiant to the decedent.
    (2) When there is a surviving next-of-kin, an application for 
posthumous citizenship shall only be accepted from a representative 
provided authorization has been obtained from all surviving next-of-kin. 
However, this requirement shall not apply to the executor or 
administrator of the decedent's estate. In the case of a service 
organization acting as a representative, authorization must also have 
been obtained from any appointed representative. A veterans service 
organization must submit evidence of recognition by the Department of 
Veterans Affairs.
    Once the Service has granted posthumous citizenship to a person, no 
subsequent applications on his or her behalf shall be approved, nor 
shall any additional original certificates be issued, except in the case 
of an application for issuance of a replacement certificate for one 
lost, mutiliated, or destroyed.
    (b) Filing of application. (1) An application for posthumous 
citizenship shall be submitted by mail on Form N-644, according to the 
instructions on the form, to the INS Service Center having jurisdiction 
over the applicant's state of residence. Persons residing outside

[[Page 627]]

the United States must mail their applications to any one of the four 
Service Centers.
    (2) Form N-644 must be accompanied by the appropriate fee specified 
by and remitted in accordance with the provisions of Sec. 103.7 (a) and 
(b) of this chapter. The fee may not be waived or refunded. To 
facilitate the certification process, a legible copy of each of the 
following documents, if available, should be submitted with Form N-644:
    (i) DD Form 214, Certificate of Release or Discharge from Active 
Duty;
    (ii) DD Form 1300, Report of Casualty/Military Death Certificate; 
or,
    (iii) Other military or State-issued death certificate.
    (c) Application period for requesting posthumous citizenship. Form 
N-644 shall be filed with the appropriate INS Service Center not later 
than March 5, 1992, or 2 years after the date of the person's death, 
whichever date is later.
    (d) Denial of application. When the application is denied, the 
applicant shall be notified of the decision and the reason(s) for 
denial. There is no appeal from the denial of an application under this 
part.



Sec. 392.4  Issuance of a certificate of citizenship.

    (a) Approval of application. If the application (Form N-644) is 
approved, the director of the Service Center shall issue a Certificate 
of Citizenship, Form N-645, to the applicant, in the name of the 
decedent.
    (b) Delivery of certificate. Delivery of the Certificate of 
Citizenship shall be made by registered mail to the address designated 
by the applicant. If the applicant resides outside the United States, 
the certificate shall be sent by registered mail to the Service office 
abroad, if one is located where delivery is to be made; otherwise, it 
shall be forwarded to the nearest American Embassy or Consulate.
    (c) Effective date of citizenship. Where the Service has approved an 
Application for Posthumous Citizenship (Form N-644), the decedent shall 
be considered a United States citizen as of the date of his or her 
death.
    (d) Ineligibility for immigration benefits. The granting of 
posthumous citizenship under section 329A of the Immigration and 
Naturalization Act, as amended, and issuance of a certificate under 
paragraph (a) of this section, shall not entitle the surviving spouse, 
parent, son, daughter, or other relative of the decedent to any benefit 
under any provision of the Act. Nor shall such grant make applicable the 
provisions of section 319(d) of the Act to the surviving spouse.
    (e) Replacement certificate. An application for a replacement 
Certificate of Citizenship (Form N-645) shall be made on Form N-565, 
Application for a New Naturalization or Citizenship Paper, for a lost, 
mutilated, or destroyed certificate. Form N-565 shall be completed 
according to the instructions on the form and submitted by mail with the 
appropriate fee to the INS Service Center having jurisdiction over the 
applicant's state of residence. Persons residing outside the United 
States must mail their application to the Service Center that issued the 
original certificate.



PART 499--NATIONALITY FORMS--Table of Contents




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



Sec. 499.1  Prescribed forms.

    The forms listed below are prescribed for use in compliance with the 
provisions of subchapter C of this chapter. To the maximum extent 
feasible, the forms used should bear the edition date shown or a 
subsequent edition date.

----------------------------------------------------------------------------------------------------------------
               Form No.                              Edition date                     Title and description     
----------------------------------------------------------------------------------------------------------------
M-288.................................  12-30-87..............................  United States History 1600-1987,
                                                                                 Level II.                      
M-289.................................  12-31-87..............................  United States History 1600-1987,
                                                                                 Level I.                       
M-290.................................  01-01-90..............................  U.S. Government Structure, Level
                                                                                 II.                            
M-291.................................  12-31-87..............................  U.S. Government Structure, Level
                                                                                 I.                             
M-302.................................  03-16-89..............................  For the People * * *, U.S.      
                                                                                 Citizenship Education and      
                                                                                 Naturalization Information.    
M-303.................................  03-16-89..............................  By the People * * *, U.S.       
                                                                                 Government Structure.          
M-304.................................  03-16-89..............................  Of the People * * *, U.S.       
                                                                                 History 1600-1988.             
N-3...................................  01-30-83..............................  Requisition for Forms and       
                                                                                 Binders.                       

[[Page 628]]

                                                                                                                
N-4...................................  12-14-93..............................  Monthly Report--Naturalization  
                                                                                 Papers Forwarded.              
N-300.................................  10-01-91..............................  Application to File Declaration 
                                                                                 of Intention.                  
N-335.................................  10-24-91..............................  Decision on Application for     
                                                                                 Naturalization.                
N-336.................................  10-24-91..............................  Request for Hearing on a        
                                                                                 Decision in Naturalization     
                                                                                 Proceedings under section 336  
                                                                                 of the Act.                    
N-400.................................  07-17-91..............................  Application for Naturalization. 
N-404.................................  08-01-65..............................  Request for Withdrawal of       
                                                                                 Petition for Naturalization.   
N-410.................................  09-07-89..............................  Motion for Amendment of Petition
                                                                                 (application).                 
N-425.................................  02-12-82..............................  Notice to Petitioner of Proposed
                                                                                 Recommendation of Denial of    
                                                                                 Petition for Naturalization.   
N-426.................................  05-12-77..............................  Request for Certification of    
                                                                                 Military or Naval Service.     
N-445.................................  01-08-92..............................  Notice of Naturalization Oath   
                                                                                 Ceremony.                      
N-455.................................  04-11-91..............................  Application for Transfer of     
                                                                                 Petition for Naturalization.   
N-459.................................  12-15-58..............................  Authorization to Clerk of Court 
                                                                                 to Correct Certificate of      
                                                                                 Naturalization.                
N-470.................................  04-11-91..............................  Application to Preserve         
                                                                                 Residence for Naturalization   
                                                                                 Purposes.                      
N-472.................................  04-05-82..............................  Notice of Approval of           
                                                                                 Application to Preserve        
                                                                                 Residence.                     
N-480.................................  02-05-68..............................  Naturalization Petitions        
                                                                                 Recommended to be Granted (and)
                                                                                 Order of Court Granting        
                                                                                 Petitions for Naturalization.  
N-481.................................  09-20-67..............................  Naturalization Petitions        
                                                                                 Recommended to be Granted      
                                                                                 (Continuation Sheet).          
N-484.................................  02-05-68..............................  Naturalization Petitions        
                                                                                 Recommended to be Denied (and) 
                                                                                 Order of Court Denying         
                                                                                 Petitions for Naturalization.  
N-485.................................  02-05-68..............................  Naturalization Petitions        
                                                                                 Recommended to be Granted (on  
                                                                                 behalf of children) (and) Order
                                                                                 of Court Granting Petitions for
                                                                                 Naturalization.                
N-550.................................  06-30-91..............................  Certificate of Naturalization.  
N-565.................................  11-18-93..............................  Application for Replacement     
                                                                                 Naturalization/Citizenship     
                                                                                 Document.                      
N-578.................................  10-03-62..............................  Special Certificate of          
                                                                                 Naturalization.                
N-600.................................  04-11-91..............................  Application for Certificate of  
                                                                                 Citizenship.                   
N-643.................................  05-10-93..............................  Application for Certificate of  
                                                                                 Citizenship on Behalf of an    
                                                                                 Adopted Child.                 
N-644.................................  05-30-91..............................  Application for Posthumous      
                                                                                 Citizenship.                   
N-645.................................  07-01-90..............................  Certificate of Citizenship.     
N-646.................................  01-03-92..............................  Naturalization Applicants       
                                                                                 Eligible to be Administered    
                                                                                 Oath of Allegiance.            
N-646A................................  01-03-92..............................  Naturalization Applicants       
                                                                                 Eligible to be Administered    
                                                                                 Oath of Allegiance             
                                                                                 (Continuation Sheet).          
N-647.................................  01-15-92..............................  Oath of Allegiance and          
                                                                                 Certificate Accountability     
                                                                                 List.                          
N-647A................................  01-15-92..............................  Oath of Allegiance and          
                                                                                 Certificate Accountability List
                                                                                 (Continuation Sheet).          
----------------------------------------------------------------------------------------------------------------


[59 FR 25561, May 17, 1994, as amended at 61 FR 47801, Sept. 11, 1996]
[[Page 629]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected


                                                                    Chap.

[[Page 631]]



                    Table of CFR Titles and Chapters



                     (Revised as of January 1, 1997)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                          Title 2--[Reserved]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)
        II  Federal Claims Collection Standards (General 
                Accounting Office--Department of Justice) (Parts 
                100--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Advisory Committee on Federal Pay (Parts 1400--1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
       VII  Advisory Commission on Intergovernmental Relations 
                (Parts 1700--1799)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3202)
     XXIII  Department of Energy (Part 3301)

[[Page 632]]

      XXIV  Federal Energy Regulatory Commission (Part 3401)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                          Title 6--[Reserved]

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Consumer Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)

[[Page 633]]

        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of Finance and Management, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  [Reserved]
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)

[[Page 634]]

    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Immigration and Naturalization Service, Department of 
                Justice (Parts 1--499)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Meat and Poultry 
                Inspection, Department of Agriculture (Parts 300--
                599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
        XI  United States Enrichment Corporation (Parts 1100--
                1199)
        XV  Office of the Federal Inspector for the Alaska Natural 
                Gas Transportation System (Parts 1500--1599)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)

[[Page 635]]

        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Thrift Depositor Protection Oversight Board (Parts 
                1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700-1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Export Administration, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements

[[Page 636]]

        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  United States Customs Service, Department of the 
                Treasury (Parts 1--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)

[[Page 637]]

        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development, International 
                Development Cooperation Agency (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Information Agency (Parts 500--599)
        VI  United States Arms Control and Disarmament Agency 
                (Parts 600--699)
       VII  Overseas Private Investment Corporation, International 
                Development Cooperation Agency (Parts 700--799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Board for International Broadcasting (Parts 1300--
                1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

[[Page 638]]

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs and Section 202 Direct Loan Program) 
                (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--999)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Part 1001)

[[Page 639]]

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--799)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Bureau of Alcohol, Tobacco and Firearms, Department of 
                the Treasury (Parts 1--299)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--199)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Programs, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Pension and Welfare Benefits Administration, 
                Department of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)

[[Page 640]]

       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
        VI  Bureau of Mines, Department of the Interior (Parts 
                600--699)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)
      XXIX  Presidential Commission on the Assignment of Women in 
                the Armed Forces (Part 2900)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)

[[Page 641]]

        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799)
        XI  National Institute for Literacy (Parts 1100-1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
       XIV  Assassination Records Review Board (Parts 1400-1499)

             Title 37--Patents, Trademarks, and Copyrights

         I  Patent and Trademark Office, Department of Commerce 
                (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)

[[Page 642]]

        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--799)
         V  Council on Environmental Quality (Parts 1500--1599)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans 
                Employment and Training, Department of Labor 
                (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       301  Travel Allowances (Parts 301-1--301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Parts 303-1--303-2)
       304  Payment from a Non-Federal Source for Travel Expenses 
                (Parts 304-1--304-99)

[[Page 643]]

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Health Care Financing Administration, Department of 
                Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10005)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services, 
                General Administration (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  ACTION (Parts 1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)

[[Page 644]]

       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
      XXII  Christopher Columbus Quincentenary Jubilee Commission 
                (Parts 2200--2299)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)

[[Page 645]]

        19  United States Information Agency (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  Panama Canal Commission (Parts 3500--3599)
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Part 
                5452)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Highway Administration, Department of 
                Transportation (Parts 300--399)
        IV  Coast Guard, Department of Transportation (Parts 400--
                499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)

[[Page 646]]

         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            Acts Requiring Publication in the Federal Register
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR



[[Page 647]]





           Alphabetical List of Agencies Appearing in the CFR



                     (Revised as of January 1, 1997)

                                                  CFR Title, Subtitle or
                     Agency                               Chapter

ACTION                                            45, XII
Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Commission on Intergovernmental          5, VII
     Relations
Advisory Committee on Federal Pay                 5, IV
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Finance and Management, Office of               7, XXX
  Food and Consumer Service                       7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Alaska Natural Gas Transportation System, Office  10, XV
     of the Federal Inspector
Alcohol, Tobacco and Firearms, Bureau of          27, I
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
Animal and Plant Health Inspection Service        7, III; 9, I

[[Page 648]]

Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Arms Control and Disarmament Agency, United       22, VI
     States
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Assassination Records Review Board                36, XIV
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Board for International Broadcasting              22, XIII
Census Bureau                                     15, I
Central Intelligence Agency                       32, XIX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee        45, XXII
     Commission
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Commerce Department                               44, IV
  Census Bureau                                   15, I`
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Export Administration, Bureau of                15, VII
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office                     37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Customs Service, United States                    19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I

[[Page 649]]

  Defense Logistics Agency                        32, I, XII; 48, 54
  Defense Mapping Agency                          32, I
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Mapping Agency                            32, I
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Enrichment Corporation, United States             10, XI
Environmental Protection Agency                   5, LIV; 40, I
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                25, III, LXXVII; 48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export Administration, Bureau of                  15, VII
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I

[[Page 650]]

  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               4, II
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II; 49, III
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Inspector for the Alaska Natural Gas      10, XV
     Transportation System, Office of
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Pay, Advisory Committee on                5, IV
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Property Management Regulations System    41, Subtitle C
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Finance and Management, Office of                 7, XXX
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Consumer Service                         7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I, II
General Services Administration                   5, LVII
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Property Management Regulations System  41, 101, 105
  Federal Travel Regulation System                41, Subtitle F
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
     of Certain Employees
[[Page 651]]

  Relocation Allowances                           41, 302
  Travel Allowances                               41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Great Lakes Pilotage                              46, III
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Health Care Financing Administration            42, IV
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Health Care Financing Administration              42, IV
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Human Development Services, Office of             45, XIII
Immigration and Naturalization Service            8, I
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Information Agency, United States                 22, V
  Federal Acquisition Regulation                  48, 19
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Intergovernmental Relations, Advisory Commission  5, VII
     on
Interior Department
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  Mines, Bureau of                                30, VI

[[Page 652]]

  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, Agency for             22, II
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
  International Development, Agency for           22, II; 48, 7
  Overseas Private Investment Corporation         5, XXXIII; 22, VII
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             4, II
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration and Naturalization Service          8, I
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Relations and Cooperative      29, II
       Programs, Bureau of
  Labor-Management Programs, Office of            29, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Pension and Welfare Benefits Administration     29, XXV
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training, Office of    41, 61; 20, IX
       the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Relations and Cooperative        29, II
     Programs, Bureau of
Labor-Management Programs, Office of              29, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Management and Budget, Office of                  5, III, LXXVII; 48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II

[[Page 653]]

Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Mines, Bureau of                                  30, VI
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National and Community Service, Corporation for   45, XXV
National Council on Disability                    34, XII
National Credit Union Administration              12, VII
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office                       37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension and Welfare Benefits Administration       29, XXV
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
     Acquisition Regulation
[[Page 654]]

  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Commission on the Assignment of      32, XXIX
     Women in the Armed Forces
Presidential Documents                            3
Prisons, Bureau of                                28, V
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Depositor Protection Oversight Board       12, XV
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Coast Guard                                     33, I; 46, I; 49, IV
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II; 49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X

[[Page 655]]

Transportation, Office of                         7, XXXIII
Travel Allowances                                 41, 301
Treasury Department                               5, XXI; 17, IV
  Alcohol, Tobacco and Firearms, Bureau of        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs Service, United States                  19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
United States Enrichment Corporation              10, XI
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training, Office of the  41, 61; 20, IX
     Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 657]]



List of CFR Sections Affected


All changes in this volume of the Code of Federal Regulations which were 
made by documents published in the Federal Register since January 1, 
1986, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 1986, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, and 1973-1985'' published in seven 
separate volumes.

                                  1986

8 CFR
                                                                   51 FR
                                                                    Page
Chapter I
100.2  (a)(4) and (b)(2) revised...................................19824
100.4  (a) and (e) revised.........................................34439
    (c)(2) amended.................................................42080
103  Authority citation revised....................................39994
103.1  (d) and (j) revised.........................................19824
    (s) revised....................................................34439
103.7  (d)(3) revised...............................................8183
    (b)(1) amended.................................................39994
109.1  (a)(7) added................................................44782
204.1  (d)(2) revised..............................................18571
    (d)(2) (i) and (ii) corrected..................................20794
212.1  (e)(3) amended..............................................18769
    Heading and (d) revised........................................44783
212.4  (a) revised.................................................32295
214.2  (b)(3) added; eff. 1-8-87...................................44267
223  Authority citation revised....................................12596
223.1  Revised.....................................................12596
223a  Authority citation revised...................................12596
223a.3  Revised....................................................12596
238  Authority citation revised; section authority citations 
        removed.....................................................8643
238.3  (b) amended.................................................4158,
5988, 13210, 16288, 23215, 26375, 27157, 28060, 29085, 30475, 35205, 
35499
238.4  Amended.....................................................8643,
13210, 18769, 21510, 21511, 26375, 28923, 30838
242.1  (a) revised.................................................34081
242.2  (a) revised.................................................34081
242.7  (a) revised.................................................34082
243.3  Revised.....................................................23042
245.2  (a)(3) revised; authority citation removed...................7432
    (a) (2) through (4) revised; (a)(5) added......................25357
287.3  Revised.....................................................34082
316a  Authority citation revised...................................40124
316a.2  Amended....................................................34582
316a.21  Revised...................................................40124
332c.1  Revised....................................................35628
341.2  (a) revised.................................................35629
343a.1  Heading and (c) revised....................................35629
343a.2  Revised....................................................35629

                                  1987

8 CFR
                                                                   52 FR
                                                                    Page
Chapter I
1  Authority citation revised; section authority citations removed
                                                                    2936
1.1  (h) revised....................................................2936
3  Authority citation revised; section authority citations removed
                                                                    2936
    Nomenclature change.............................................2941
3.1  (b)(3) revised.................................................2943
    (d)(3) revised.................................................24981
3.3  (a) amended; (b) revised.......................................2936
3.4  Amended........................................................2936

[[Page 658]]

3.7  Revised........................................................2936
    Corrected.......................................................7369
3.11  Added.........................................................2942
3.12--3.38 (Subpart C)  Added.......................................2936
100  Authority citation revised....................................16191
100.2  (c)(3) (iv) and (v) amended; (c)(3)(vi) added...............16191
100.4  (f) added...................................................16191
    (c)(4) revised.................................................22629
103  Authority citation revised; section authority citations 
        removed.....................................................2939
    Authority citation revised.....................................16192
103.1  (l)(1) amended...............................................2985
    (f)(1) (iv) and (v) and (q) amended; (f)(1)(vi) and (2) 
(xxvii) through (xxxii), (n)(2) and (t) added; (n) redesignated as 
(n)(1).............................................................16192
    (o)(2) revised.................................................22629
103.2  (c) added...................................................16192
103.3  (a) redesignated as (a)(1); (a)(2) added....................16192
103.4  Revised.......................................................661
    Existing text designated as (a); (b) added.....................16192
103.5  Existing text designated as (a); (b) added..................16193
103.7  (d) (1) and (4) revised.........................................3
    (c)(1) revised..................................................2939
    (b)(1) amended..........................................16193, 19719
103.8  Introductory text republished; (c) revised...................2942
103.10  (b)(1)(ii) removed; (b)(1) (iii) through (vi) redesignated 
        as (b)(1) (ii) through (v)..................................2942
103.37  Added......................................................16193
109  Removed.......................................................16220
204  Authority citation revised.............................30900, 33797
204.1  (d)(2) revised..............................................30900
    (a)(2)(iii) amended............................................44593
204.2  (c)(7) revised..............................................16233
204.5  Revised.....................................................33797
210  Added.........................................................16199
210.1  (k) amended.................................................28662
210.2  (a)(3) and (c)(1) amended...................................28662
210.6  Added.......................................................28663
211  Authority citation revised....................................16193
211.1  (d) added...................................................16193
211.5  (d) added...................................................16193
212  Authority citation revised...................................16193,
16372, 48083, 48802
212.1  (e) through (j) redesignated as (f) through (k); new (e) 
        added......................................................48083
212.3  Revised...............................................2943, 11621
212.5  (b) amended; (d)(2) redesignated as (d)(2)(i); (d)(2)(ii) 
        added......................................................16194
    (f) added......................................................48802
212.11  Added; interim.............................................16372
212.12  Added......................................................48802
212.13  Added......................................................48804
214  Authority citation revised...................................13226,
20555, 45446, 48084
214.1  (a) revised.................................................45446
214.2  (h)(6)(i) and (9) and (l) revised; (h)(6)(ii), (10), (11), 
        (12), (13), and (14) redesignated as (h)(6)(v), (11), 
        (13), (10), (14), and (15); new (h)(10) and (11) revised; 
        new (h)(6)(ii), (iii), and (iv) and (12) added..............5750
    (l) correctly designated; (l)(3)(i) corrected...................7063
    (f)(4)(ii), (5), (6) (ii) through (v), (7), (8), and (10) 
revised............................................................13226
    (h) (3) through (15) redesignated as (h) (4) through (16); new 
(h)(3) added; new (h)(4) heading revised; (h)(4)(ii)(B) amended; 
interim............................................................20555
    (b)(3) addition at 51 FR 44267 clarification...................30329
    (b)(1) amended.................................................48084
214.3  (g)(1) (i) through (xii) revised; flush text following 
        (g)(1)(xii) added..........................................13229
234  Authority citation revised....................................16194
234.2  (b) amended.................................................16194
236  Authority citation revised; section authority citations 
        removed.....................................................2939
236.5  (a), (b), and (c) removed; (d) and (e) redesignated as (b) 
        and (c); new (a) added......................................2939
236.6  Revised......................................................2939
236.7  Revised......................................................2939
238  Authority citation revised......................26944, 26945, 48084
238.3  (b) amended...........................................2670, 26945
    (a) revised....................................................48084
238.4  Amended.....................................................26944
238.5  Added.......................................................48084

[[Page 659]]

241  Heading and authority citation revised; interim...............16372
241.2  Added; interim..............................................16372
242  Authority citation revised; section authority citations 
        removed.....................................................2939
    Authority citation revised..............................16194, 16372
242.1  (a) and (b) revised..........................................2939
    (a) revised.....................................................3098
    (a) introductory text corrected.................................5616
    Effective date corrected........................................6133
242.2  (a) introductory text amended; (b) revised...................2939
    (a) revised.....................................................3098
    (a)(1)(viii) corrected..........................................5616
    Effective date corrected........................................6133
    (a) through (e) redesignated as (b) through (f); (a) and (g) 
added; interim.....................................................16372
242.5  (b) amended..................................................2940
242.7  (a) and (b) revised..........................................2940
    (a) revised.....................................................3099
    (a)(3) corrected................................................5616
    Effective date corrected........................................6133
242.12  Revised.....................................................2940
242.13  Revised.....................................................2940
242.14  (e) revised.................................................2940
242.16  (d) amended.................................................2940
242.20  Revised.....................................................2941
242.21  Existing text designated as (a); (b) added.................16194
242.22  Revised....................................................26470
244.2  Revised.....................................................24982
245  Authority citation revised.............................34764, 48084
245.1  (b)(5) through (8) and (c) through (f) redesignated as 
        (b)(7) through (10) and (d) through (g); new (b)(5) and 
        (6) and (c) added; interim..................................6321
    (b)(11) added..................................................48084
245.2  (a)(3)(iv) revised..........................................34764
245.6  Redesignated as 245.7; new 245.6 added; interim..............6322
    (c)(3) corrected...............................................13827
245.7  Redesignated as 245.8; new 245.7 redesignated from 245.6; 
        interim.....................................................6322
245.8  Redesignated as 245.9; new 245.8 redesignated from 245.7; 
        interim.....................................................6322
245.9  Redesignated from 245.8; interim.............................6322
245a  Added........................................................16208
245a.1  (c)(1), (d)(2), (e), and (l) amended; (d)(4) added; 
        interim....................................................43845
245a.2  (a)(2)(ii), (b)(8), (c)(8), (d)(4)(iii), (e) (1) and (2), 
        (g), (k)(4), (m)(2)(i) and (3), (n) (1) and (2), (q), 
        (t)(5), (u)(1) introductory text and (ii) and (w) amended; 
        (b) introductory text and (s) heading revised; (b) (9) 
        through (15) added; interim................................43845
245a.3  (a) and (b)(4)(i) amended; (b)(4)(ii) revised; (b)(4)(iii) 
        removed; interim...........................................43846
248  Authority citation revised.............................11621, 48084
248.1  (e) added; interim..........................................11621
248.2  (e) added...................................................48084
249.2  Revised; interim.............................................6322
264  Authority citation revised....................................16194
264.1  (a), (b), and (c) amended...................................16194
274a  Added........................................................16221
    Authority citation revised.....................................43052
274a.6  Revised; interim...........................................43053
287  Authority citation revised....................................16372
287.1  (g) through (i) added; interim..............................16372
287.7  Added; interim..............................................16373
292  Authority citation revised; section authority citations 
        removed.....................................................2941
292.3  (a) introductory text, (5) and (b) revised..................24981
292.4  (a) revised..................................................2941
299  Authority citation revised.............................16195, 48084
299.1  Amended..............................................16195, 48084
299.3  Amended.....................................................16195
316a  Authority citation revised...................................46739
316a.2  Amended....................................................46739
341.1  Revised.....................................................19719
341.7  Revised; interim............................................13229

                                  1988

8 CFR
                                                                   53 FR
                                                                    Page
Chapter I
1  Authority citation revised......................................30016
1.1  (o) added.....................................................30016

[[Page 660]]

3.1  (a)(1) revised................................................15659
100  Authority citation revised.............................15194, 23603
100.4  (c)(2) amended..............................................15194
    (b)(14) and (d) amended........................................23603
    (f) amended; interim...........................................43985
103  Authority citation revised....................................26034
103.1  (n)(2) amended; interim.....................................10064
    (q) amended....................................................35799
    (n)(3) added; interim..........................................43985
103.2  (b)(2) redesignated as (b)(3) and revised; new (b)(2) added
                                                                   26034
103.4  (b) revised; interim........................................43985
103.7  (b)(1) amended; interim.....................................43985
103.37  Removed; interim...........................................43986
204  Authority citation revised....................................30016
204.1  (a) (2) through (4) and (d) (2) through (4) redesignated as 
        (a) (3) through (5) and (d) (3) through (5); new (a)(2) 
        and (d)(2) added...........................................30016
204.5  (c) corrected................................................2824
205  Authority citation revised....................................30016
205.1  (a)(10) added...............................................30017
210  Revised; interim..............................................10064
210.3  (b)(4) added; interim.......................................27335
211  Authority citation revised.............................18260, 30017
211.1  (b)(1) revised..............................................30017
211.5  (a) and (b) revised; (d) removed; interim...................18260
212  Authority citation revised....................................9282,
                                              17450, 24900, 30017, 40667
212.1  (i) added...................................................24900
212.4  (e) revised.................................................40867
212.5  (a)(2)(ii) revised..........................................17450
212.7  (a) revised.................................................30017
212.11  Revised.....................................................9282
214  Authority citation revised....................................3331,
                                                     24900, 30017, 46852
214.2  (n) redesignated as (o); new (n) added; interim..............3331
    (b)(3) redesignated as (b)(4); new (b)(3) added................24900
    (n) revised....................................................26231
    (k) revised....................................................30017
    (a) (2), (3), and (g)(2) revised; (a) (4) through (10) and 
(g)(3) through (11) added; interim.................................46852
216  Added.........................................................30018
217  Added.........................................................24901
    Authority citation revised.....................................50160
217.2  (d) added...................................................50160
217.3  (c) heading and introductory text amended; (d) added........50160
217.5  (a) revised.................................................50161
223  Authority citation revised....................................30021
223.2  Revised.....................................................30021
223a  Authority citation revised...................................30021
223a.4  Revised....................................................30021
223a.5  (a) revised................................................30021
235  Authority citation revised.............................23380, 30021
235.11  Added......................................................30021
235.12  Added......................................................23380
236  Authority citation revised....................................24902
236.9  Added.......................................................24903
241  Heading and authority citation revised.........................9282
241.2  Revised......................................................9282
242  Authority citation revised....................................9282,
                                              10064, 17450, 24903, 30022
242.1  (a) introductory text amended; (d) added....................24903
242.2  (a) revised; (g) removed; (b) through (f) redesignated as 
        (c) through (g); new (b) added; new (c)(2), (d), and (e) 
        amended.....................................................9283
242.7  (a) revised.................................................30022
242.17  (a) revised................................................30022
242.21  (b) heading and text amended; interim......................10064
242.24  Added......................................................17450
245  Authority citation revised.............................24903, 30022
245.1  (b)(15) added...............................................24903
    (b) (12), (13) and (14) and (h) added..........................30022
245.8  Revised.....................................................30023
245a  Heading and authority citation revised; interim........9274, 43992
245a.1  (o) and (p) revised.........................................9863
    (d)(4) revised.................................................23382
    (h) revised; (r) through (u) added; interim....................43992
245a.2  (b) (8), (9), (11), and (12), (d)(4)(iii), (r), and (t)(4) 
        revised....................................................23382

[[Page 661]]

245a.3  (b)(3) revised.............................................23382
    Revised; interim...............................................43993
245a.4  Added; interim..............................................9274
248  Authority citation revised....................................24903
248.2  (f) added...................................................24903
264  Authority citation revised....................................43986
264.1  (c) amended; interim........................................43986
271  Added.........................................................26036
274  Revised.......................................................43187
274a  Authority citation revised....................................8612
274a.1  Introductory text amended...................................8612
274a.2  A. redesignated as (a); (b)(1)(v)(B)(1) introductory text 
        revised; (b)(1)(ii)(A), (v)(B)(1)(i), (2), (3) 
        introductory text, (i), and (iii), (vi), (vii) and (viii) 
        (C) and (G), and (2)(i)(B) and (ii) amended; 
        (b)(1)(v)(B)(4) and (2)(iii) added..........................8612
274a.3  Amended.....................................................8613
274a.7  (a) and (b)(3) amended......................................8613
274a.9  (c) amended; (d) revised....................................8613
274a.12  (a)(11), (b) (10), (11) and (15), and (c) (1), (3) (i) 
        and (ii) and (15) amended; (b)(6) revised...................8614
    (c) (1) and (4) amended; interim...............................46855
274a.13  (a) amended................................................8614
274a.14  (b)(1)(i) amended..........................................8614
    (c) suspended..................................................20087
286  Added..........................................................5757
287  Authority citation revised.....................................9283
287.1  (g) through (i) revised......................................9283
287.7  Revised......................................................9283
292.1  (a)(6) revised...............................................7728
299  Authority citation revised...................................24903,
                                                            33442, 33444
299.1  Amended.....................................................24903
    Revised........................................................33444
299.5  Added.......................................................33442
    Table amended (OMB numbers); interim...........................43986
337  Authority citation revised....................................23603
337.2  Revised.....................................................23603
341  Authority citation revised....................................23603
341.7  Revised.....................................................23603
499.1  Amended.....................................................33445

                                  1989

8 CFR
                                                                   54 FR
                                                                    Page
Chapter I
100.2  (c)(3)(vii) added...........................................18649
100.4  (c)(2) amended........................................2994, 39336
    (f) amended....................................................29439
    (c) (2) and (3) amended........................................47674
101  Authority citation revised.....................................5927
101.5  Added........................................................5927
103  Authority citation revised...................................29441,
                                                     29881, 47348, 51870
103.1  (q) amended..................................................6876
    (f)(3) and (u) added...........................................18649
    (f)(2)(xxxii) removed..........................................29439
    (f)(2)(xxxii) added............................................29441
    (f)(2) (xxxi), (xxxii), and (t) revised; (f)(2)(xxxiii) and 
(n)(4) added; interim..............................................29881
103.2  (d) added; interim..........................................29881
103.3  (a)(3) added; interim.......................................29881
103.5  (c) added; interim..........................................29881
103.7  (b)(1) amended; interim..........................13, 29882, 48231
    (b) (1) and (3) amended........................................13515
    (b)(1) amended.................................................47348
    Regulation at 54 FR 13 confirmed...............................48577
    (b)(1) amended; eff. 1-18-90...................................51870
204  Authority citation revised....................................11161
204.1  (a)(3) (ii) and (iii) revised...............................34142
204.2  (c) (3), (4), and (5) revised; interim......................11161
    (c) (3) through (5) revised....................................36754
210  Authority citation revised.....................................4757
210.1  (b) through (r) redesignated as (c) through (s); new (b) 
        added......................................................50339
210.3  (b)(4) revised...............................................4757
210.5  (b)(2) removed; (b)(3) redesignated as (b)(2); (b) heading, 
        (1), and new (2) revised...................................50339
210a  Added; interim...............................................29882
210a.1  (d) amended; interim.......................................36277
210a.2  (c)(1) amended; interim....................................36277

[[Page 662]]

210a.3  (a), (b), (c) and (d)(1) amended; interim..................36277
210a.5  (i)(1), (3), (4), (5) and (6) revised; interim.............36277
210a.6  (g) amended; interim.......................................36277
210a.7  (c) amended; interim.......................................36277
211  Authority citation revised..............................8184, 30369
211.1  (b)(1) revised..............................................30369
211.5  (a) and (b) revised..........................................8184
212.1  (l) added; interim.............................................13
    Regulation at 54 FR 13 confirmed...............................48577
214  Authority citation revised.............................10979, 48577
214.2  (b)(1) revised; (b)(4) redesignated as (b)(5); new (b)(4) 
        and (l)(17) added; interim....................................14
    (e) redesignated as (e)(1); new (e)(1) heading and (2) added 
                                                                   10979
    Regulation at 54 FR 14 confirmed; (b) (1) and (4) and (l)(17) 
revised............................................................48577
    (l)(17) designation corrected; (l)(17)(i) corrected............51816
214.3  (e)(2), and (h) revised.....................................19544
214.4  (a)(1)(iii) revised; (a)(1)(xviii) added....................19544
214.6  Added; interim.................................................15
    Revised........................................................48579
216  Authority citation revised....................................30369
216.4  (a)(4) revised..............................................30369
217.5  (a) revised.................................................27120
232  Revised.........................................................101
233  Removed.........................................................101
235  Authority citation revised; section authority citations 
        removed......................................................101
235.3  (d) revised; (a) amended; (e) and (f) added...................101
    (f) corrected...................................................6365
235.5  (c) removed...................................................101
237  Authority citation revised......................................102
237.4  Amended.......................................................102
237.5  Existing text designated as (a); (b) added....................102
237.6  (a)(5) added..................................................102
238.3  (c) added.....................................................102
    (b) amended....................................................47675
238.4  Amended.....................................................47675
239  Authority citation revised......................................102
239.2  (b) removed; (c), (d), and (e) redesignated as (b), (c), 
        and (d)......................................................102
    (d) correctly redesignated as (c)...............................1050
242.21  (b) amended................................................29439
243  Authority citation revised....................................39337
243.2  Revised.....................................................39337
245  Authority citation revised......................29441, 47348, 47968
245.1  (b)(5), (6), (c)(1) introductory text, (2) introductory 
        text, (ii) and (3) revised.................................29441
    (c)(1) introductory text correctly designated..................47676
245.2  (a)(5)(ii) revised..........................................29441
    (a)(3)(iv) amended.............................................47348
    (a)(5)(ii) corrected...........................................47676
245.6  (a), (c)(2) and (d)(2) revised; (f), (g) and (h) added......29441
    (a), (d)(2), and (g)(2) corrected..............................47676
245.9  Revised (temporary).........................................47968
245a  Authority citation revised....................................6505
245a.1  (i), (r), (s) (2) through (5) revised; (s) introductory 
        text republished; (v) added................................29448
245a.2  (a)(2)(i) and (c)(5) removed; (d)(4) introductory text and 
        (k)(4) revised.............................................29449
245a.3  (a) revised; interim.......................................13361
    Revised........................................................29449
    (b)(6), (12)(iii) and (c)(3) corrected.........................43384
245a.4  Revised.....................................................6505
    (a)(10), (b)(4)(v) introductory text, (b)(11)(iv)(C) and (c) 
revised............................................................29455
    (c) corrected..................................................47676
245a.5  Added......................................................29437
    (c) table amended..............................................49964
264.1  (c) revised; interim........................................50340
    (c)(3)(v) (B) and (C) correctly designated.....................51816
274a.12  (b)(16) added; interim.......................................16
    Regulation at 54 FR 16 confirmed...............................48577
280  Authority citation revised; section authority citations 
        removed......................................................102
280.1  Amended.....................................................18649
280.4  Amended.....................................................18649
280.5  Amended.....................................................18649

[[Page 663]]

280.6  Amended.......................................................102
280.11  Amended....................................................18649
280.12  Amended....................................................18649
280.13  Amended....................................................18649
280.15  Amended....................................................18649
280.51  (a) and (c) amended........................................18649
280.52  Added........................................................102
286.2  Immigration user fee........................................47677
287  Authority citation revised.............................39337, 48851
287.6  (c) heading revised.........................................39337
    (d) added......................................................48851
299  Authority citation revised....................................39337
299.1  Amended......................................................102,
                                               7173, 29440, 30370, 39337
    Amended; interim...............................................48231
299.5  Amended.....................................................7174,
                                                            29440, 30370
    Table amended; interim.........................................48231
316a.2  Amended....................................................47677
499  Authority citation revised.....................................7174
499.1  Amended......................................................7174

                                  1990

8 CFR
                                                                   55 FR
                                                                    Page
Chapter I
3.1  (b)(9) added..................................................30680
3.22  (b)(1) amended...............................................30680
103  Authority citation revised....................................12627
    Fee review; comments discussion................................20261
103.1  (f)(1)(v) revised...........................................20769
      Regulation at 54 FR 29881 confirmed; (n)(4) amended..........20774
      (s) amended..................................................12627
    (n)(1) and (q) amended; (v) added..............................30680
    (f)(2)(ix) revised.............................................41988
    Technical correction...........................................43439
103.2  Regulation at 54 FR 29881 confirmed.........................20774
    (b)(3) correctly removed; CFR correction.......................12815
103.3  Regulation at 54 FR 29881 confirmed; (a)(3)(i) amended......20775
      (a)(1), (b), and (c) revised; (a)(2) and (3) redesignated as 
(a)(3) and (4); new (a)(2) added; (d) and (e) removed..............20769
    (a)(2)(v)(A)(1) and (2)(iii) corrected.........................23345
103.4  (a) revised.................................................20770
103.5  (a) revised.................................................20770
    Regulation at 54 FR 29881 confirmed; (c)(1) amended............20775
    (a) amended; interim...........................................25931
103.7  (b)(1) amended..............................................12629
    Regulation at 54 FR 29882 confirmed............................20775
    Regulation at 54 FR 48231 confirmed............................29342
208  Authority citation revised.....................................2805
    Revised........................................................30680
208.5  Existing text designated as (a); new (a) heading and (b) 
        added; interim..............................................2805
210.2  (e)(3) revised; interim.....................................12629
210.3  (d)(2) amended; (d)(3) added; interim.......................12629
210.4  (d)(2) revised; (d)(3) added; interim.......................12629
210a  Regulation at 54 FR 29882 and 54 FR 36277 confirmed; revised
                                                                   20775
210a.1  Regulation at 54 FR 36277 confirmed........................20774
    (j) corrected..................................................23345
210a.2  Regulation at 54 FR 36277 confirmed........................20774
210a.3  Regulation at 54 FR 36277 confirmed........................20774
210a.4  (d)(1) corrected...........................................23345
210a.5  Regulation at 54 FR 36277 confirmed........................20774
210a.6  Regulation at 54 FR 36277 confirmed........................20774
210a.7  Regulation at 54 FR 36277 confirmed........................20774
    (j) corrected..................................................23345
212  Authority citation revised.............................24859, 36259
212.1  (e)(3) revised..............................................36259
212.2  (a) revised; interim........................................24859
214  Authority citation revised.....................................5573
214.2  (h)(1) through (16) redesignated as (h)(2) through (17); 
        new (h)(1) added; new (h)(2), (3), and (5) through (17) 
        revised.....................................................2621
    (a)(5) through (7), (g)(2), (3), (5), (6), (7), (9), and (11) 
revised.............................................................5573

[[Page 664]]

    (h)(2)(i)(B), (C), (F)(2), (v), (4)(i)(D), (ii), (vi)(B), 
(viii)(B), (ix).....................................................7881
    (h)(8)(ii)(A), (B), (C), and (iii)(C) amended...................7882
    (h)(1)(i), (ii)(A), (2)(i)(A), (iii) and (iv) revised; 
(h)(3)(v)(C) removed; (h)(3) through (17) redesignated as (h)(4) 
through (18); new (h)(3) added; new (h)(4)(vii)(D), (5)(x), 
(9)(iii)(A), (13)(ii), (14)(i), (15)(i)(A) through (C), (ii)(B) 
and (17)(iii)(A) revised; interim..................................34897
    (h)(2)(i)(D) and (v) amended; nomenclature change; interim.....34900
    (h)(4)(i), (A), (C), (iii)(C), (v)(A)(1)(i), (ii), (iii), 
(B)(2)(ii), (vi)(A), (vii)(A), and (E) amended; interim............34900
    (h)(5)(i)(A), (D), (ii), (vi)(B), (viii)(B), (ix) amended; 
interim............................................................34900
    (h)(6)(iii)(C) amended; interim................................34900
    (h)(9)(ii)(A) through (C), (iii)(B)(1) and (2) amended; 
interim............................................................34900
    (h)(13)(iv), (15)(ii)(A), (16)(i) heading, (A)(1), (A)(1)(i), 
(B)(1) and (ii) amended; interim...................................34900
    (h)(16)(ii) amended; interim...................................34901
214.4  (b) through (h) revised; (i), (j), and (k) removed..........41988
    Technical correction...........................................43439
235.12  Application deadline.......................................14234
236  Authority citation revised....................................30686
236.3  Revised.....................................................30686
238  Authority citation revised.....................................3715
238.3  (b) amended............................................1578, 3715
238.4  Amended................................................1578, 3715
241  Authority citation revised....................................11153
241.1  Revised.....................................................11153
242  Authority citation revised..........1579, 2805, 24859, 30686, 43327
242.1  (a) revised..................................................1579
    (a)(15) and (16) amended; (a)(17) added........................12627
242.2  (c)(1) revised...............................................1579
    (c)(1) introductory text revised; (c)(2) amended; interim......24859
    (a)(1) revised; interim........................................43327
242.5  (a)(1) amended..............................................12627
    (a)(2) amended; interim........................................24859
242.17  (c) revised; interim........................................2805
    (c) revised....................................................30687
244  Authority citation revised....................................24859
244.1  Amended; interim............................................24859
245  Fee review; comments discussion...............................20261
245.1  (c)(2)(iv) and (d)(3) added; (f)(1) revised; interim........10397
245.2  (a)(5)(ii) amended; interim.................................10397
245.10  Added; interim.............................................24860
253  Authority citation revised....................................30687
253.1  (f) revised.................................................30687
264.1  Regulation at 54 FR 50340 confirmed; (c)(1)(ii), (2)(ii), 
        (iii)(B), (D), (iv)(A) and (3)(iii)(C) amended; 
        (c)(2)(i)(F) removed; (c)(2)(i)(C) through (E) 
        redesignated as (c)(2)(i)(D) through (F); new (c)(2)(i)(C) 
        added; new (c)(2)(i)(E) and (F) revised....................20262
274a  Authority citation revised....................................5576
274a.1  (c), (h), (j) and (k) revised; (l) added; interim..........25931
274a.2  (a), (b)(1)(i), (ii), (iii), (iv), (v) introductory text, 
        (A) introductory text, (1), (6) through (7) and (B)(1) 
        revised; (b)(1)(v)(A)(8) through (10) added; interim.......25932
    (b)(1)(v)(C), (vi), (vii), and (viii) revised; interim.........25933
    (b)(2)(ii), (3), (c)(1), (d)(1) and (2) revised; interim.......25934
274a.5  Revised; interim...........................................25934
274a.7  (a) revised; (b)(3) amended; (b)(4) added; interim.........25935
274a.9  (a) revised; (c) heading, (1) introductory text heading, 
        (i) and (d) amended; (e) added; interim....................25935
274a.10  (a), (b) introductory text, (1) introductory text, 
        (ii)(A) through (C) and (3) revised; interim...............25935
274a.11  Removed; interim..........................................25935
274a.12  (c)(4) revised.............................................5576

[[Page 665]]

    (a) introductory text and (b)(15) revised; (a)(9) and (b)(4) 
removed; interim...................................................25935
    (c) introductory text, (1), (4), (8), (9), (10), (11), (12), 
and (13) revised; (c)(15) removed; (c)(16) and (17) added; interim
                                                                   25936
274a.13  (a), (b), and (d) revised; interim........................25937
286.5  (b), (c), and (d) revised; interim............................729
    Regulation at 55 FR 729 confirmed..............................18860
287.4  (a)(1) amended..............................................12628
287.7  (a)(1) revised; interim.....................................43327
292.1  (a)(2) revised..............................................49251
299.1  Amended.....................................................12629
    Regulation at 54 FR 48231 confirmed............................29342
299.3  Amended.....................................................12629
299.5  Amended.....................................................12629
    Regulation at 54 FR 48231 confirmed............................29342
316a  Authority citation revised...................................31037
316a.2  Amended....................................................31037
334  Authority citation revised....................................31037
334.13  Amended....................................................31037
341  Authority citation revised....................................31037
341.7  Revised.....................................................31037
499.1  Amended.....................................................12629

                                  1991

8 CFR
                                                                   56 FR
                                                                    Page
Chapter I
3.1  (b)(10) added; interim..........................................624
    Regulation at 56 FR 624 confirmed..............................23496
100  Authority citation revised....................................50811
100.4  (g) added; interim..........................................50811
101.6  Added; interim..............................................23208
103  Authority citation revised.............................12649, 21919
103.1  (b)(3)(ii) revised; (f)(2)(xxxii) and (xxxiii) amended; 
        (f)(2)(xxxiv) added; interim.................................624
    (f)(2)(xxxiii) and (xxxiv) amended; (f)(2)(xxxv) and (xxxvi) 
added; interim.....................................................23209
    Regulation at 56 FR 624 confirmed..............................23496
    (f)(2)(ii) revised.............................................60905
103.2  (b)(3)(i) amended; (b)(3)(ii) revised.........................624
103.5  (a) revised.................................................41782
103.7  (b)(1) amended; interim..................624, 21919, 22822, 31060
    (b)(1) and (3) amended.........................................12649
    Regulation at 56 FR 624 confirmed..............................23496
    (b)(1) amended.................................................23498
    (c)(4) added; interim..........................................32501
    Regulation at 56 FR 22822 confirmed............................49672
    (b)(1) amended; (b)(3) removed; interim........................50480
204  Authority citation revised....................................60905
204.1  (a)(2)(iii) revised; interim................................28312
204.5  Revised.....................................................60905
204.6  Revised.....................................................60910
204.8  Added; interim..............................................23210
208  Authority citation revised....................................50812
208.3  (a) amended; interim........................................50812
208.4  (a) revised; (b) redesignated as (c); new (b) added; 
        interim....................................................50812
209  Authority citation revised....................................26898
209.2  Introductory text added; (a) revised; (b), (c) and (f) 
        amended; interim...........................................26898
210a.8  (b)(3) amended; interim....................................38333
212.2  Revised; inerim.............................................23212
212.3  Revised; interim............................................50034
214  Authority citation revised....................................38333
    Authority citation revised.....................................61119
214.1  (e), (f) and (g) amended; interim...........................38333
214.2  (c)(1) amended................................................480
    (q) added; interim.............................................41624
    (b)(4)(i)(D)(1) revised..........................................482
    (g)(1) revised..................................................2841
    (h)(3)(i)(B) and (v)(C) amended; (h)(3)(iv)(E) removed.........11916
    (h)(17) revised................................................11917
    (d) revised; interim; effective to 12-31-91....................26017
    Regulation at 56 FR 26017 comment time extended................31305
    (j)(1)(v) revised..............................................33371

[[Page 666]]

    (a)(10), (e)(1), (f)(12)(i)(E), (g)(10) and (m)(16)(i)(E) 
amended; interim...................................................38333
    (f) and (m)(14)(iii) revised; (m)(14)(ii) amended..............55613
    (h)(4)(iv) an d(v) removed; (h)(4)(vi), (vIII) and (9)(iii)(A) 
through (C) redesignated as (h)(4)(iv), (v) and (9)(iii)(B) 
through (D); (h)(1), (2)(i)(A), (B), (D), (E), (ii), (4) heading, 
(i) through (iiI), new (iv), (8), new (9)(iii)(B), (D), (10)(ii), 
(iii), (11)(i), (13) through (16) and (18) revised; new (h)(4)(vi) 
through (ix), (6)(vi)(E), (7)(iv), and (9)(iii)(A) added...........61119
    (h)(2)(iii), (iv), (4)(v)(E), (5)(i)(A), (6)(iii)(E), (vi), 
(7), (i), (ii), (iii), (9)(i) and (ii)(A) through (c) amended; 
(l)(3)(vi) and (viiI) redesignated as (l)(3)(vii) and (viii); 
(l)(1)(i), (ii)(A)(, (B), (C), (D), (F), (G), (H), (K), (L), 
(2)(i), (3)(iii), (v), (5)(ii)(C), (6), (7)(i) introductory text, 
(C), (ii), (8)(ii), (iii), (9)(i), (10)(i), (12), (14)(i), (15) 
and (16) revised; new (l)(3)(vi) added.............................61127
    (l)(1)(ii)(M), (2)(i) through (ii), (3) introductory text, 
(iii), (v), (4)(iv) introductory text, (5)(ii)(A), (B), 
(7)(i)(A)(1), (B)(1), (9)(iii)(B), (13) heading, (i), (ii), 
(14)(ii) introductory text, (D), (ii)(A), (17)(i), (ii), (iv), 
(v)(A) and (B) amended.............................................61130
    (o) redesignated as (s); new (o) and (p) added.................61130
    (r) added......................................................66967
214.6  (d)(2)(ii) revised............................................482
216  Authority citation revised....................................22637
216.5  (a)(1), (2), (e)(2)(ii) and (iii) revised; (a)(3) and 
        (e)(3) added; interim......................................22637
217.2  (a) introductory text, (4) and (b) through (d) revised; 
        (a)(5) and (6) removed; (a)(7) and (8) redesignated as 
        (a)(5) and (6).............................................32953
217.4  (b) and (d) revised.........................................32953
217.5  (a) revised; interim........................................46716
217.6  (a), (b)(1)(ii), (iv), (v), (2)(i) and (iv) revised; 
        (b)(2)(vi) added...........................................32954
235  Authority citation revised....................................50812
235.6  (a) amended; interim........................................50812
237  Authority citation revised....................................23214
237.4  Removed.....................................................23214
240  Added; interim..................................................619
    Regulation at 56 FR 619 confirmed..............................23496
240.1  Amended.....................................................23497
240.2  (a) amended.................................................23497
240.4  (a) amended.................................................23497
240.5  (a) amended.................................................23497
240.6  Amended.....................................................23497
240.7  (d) amended.................................................23497
240.8  Amended.....................................................23497
240.9  (a)(1) introductory text, (2) introductory text, (2)(i) 
        introductory text, (3) and (c) amended.....................23497
240.10  (c) introductory text, (d) introductory text, (2), (f)(3), 
        (3) and (4)(iii) amended; (e)(1) introductory text, 
        (f)(1), (2) introductory text and (4)(ii) revised..........23497
240.11  Amended....................................................23497
240.12  (a) amended................................................23498
240.14  (b)(1) and (3) amended; (d) removed........................23498
240.15  (a) and (b) amended........................................23498
240.17  (a) and (b) revised........................................23498
240.18  (a), (b) and (d) amended...................................23498
240.41  Amended....................................................23498
240.42  (a) amended................................................23498
    (d) revised....................................................41445
240.43  (a) amended................................................23498
240.46  Revised....................................................23498
240.47  Introductory text amended; (b) revised.....................23498
240.48  Added; interim.............................................32501
241  Heading revised................................................8906
241.1  Removed; new 241.1 redesignated from 241.2...................8906
    Amended; interim...............................................38333
241.2  Redesignated as 241.1........................................8906
242  Authority citation revised.............................23214, 38333
242.1  (a)(16) and (17) amended; (a)(18) and (19) added............18502
    (a)(19) amended; (a)(20) and (21) added; interim...............50812

[[Page 667]]

242.2  (c)(1)(xv) and (xvi) amended; (c)(1)(xvii) and (xviii) 
        added......................................................18503
    (h) added......................................................23214
    Regulation at 55 FR 43327 confirmed............................33205
242.5  (a)(1) and (c) amended......................................18503
242.7a  Amended; interim...........................................38333
242.8  (a) amended; interim........................................38333
242.16  (c) amended.................................................8907
242.17  (d) amended; interim.......................................38333
242.23  (c) and (d) amended; interim...............................38333
243  Authority citation revised....................................48730
243.8  Amended.....................................................48730
245.1  (b) introductory text, (4), (c)(1), (2)(iv), (d)(3) and 
        (f)(1) revised; interim....................................28040
    (b)(14) revised; interim.......................................28313
    (b)(8), (10) and (12) amended; (d)(2) and (g) removed; (d)(3) 
and (h) redesignated as (d)(2) and (g); (d)(1), (f) and new (g) 
revised............................................................49840
245.2  (a)(5)(ii) amended; interim.................................28042
    (a)(1) and (3)(i) amended; (a)(2)(i), (iii), (3)(iii), 
(4)(iii), (5)(iii), (b) and (e) removed; (a)(2)(ii), (iv), 
(3)(iv), (4)(iv), (5)(iv), (c) and (d) redesignated as (a)(2)(i), 
(ii), (3)(iii), (4)(iii), (5)(iii), (b) and (c); new (a)(2)(i) 
revised............................................................49841
245.4  Removed; new 245.4 redesignated from 245.7..................49841
245.5  Removed; new 245.5 redesignated from 245.8 and revised......49841
245.6  Removed; new 245.6 redesignated from 245.9 and amended......49841
245.7  Redesignated as 245.4; new 245.7 redesignated from 245.10 
                                                                   49841
245.8  Redesignated as 245.5 and revised...........................49841
245.9  Redesignated as 245.6 and amended...........................49841
245.10  Redesignated as 245.7......................................49841
245a  Authority citation revised...................................31061
245a.1  (e) amended; interim.......................................31061
245a.2  (u)(1)(iv) amended; interim................................31061
245a.3  (a)(2), (b)(1), (c)(3) and (d)(6) amended; (a)(3) added; 
        interim....................................................31061
251  Authority citation revised....................................26017
251.1  (a) and (d) revised; interim; effective to 12-31-91.........26017
    Regulation at 56 FR 26017 comment time extended................31305
258  Added; interim; effective to 12-31-91.........................26018
    Regulation at 56 FR 26018 comment time extended................31305
264.1  (c)(2)(iv)(A) amended.........................................483
264.3  Added........................................................1566
274.9  (a) amended..................................................8686
274.10  (a) introductory text, (4) and concluding text amended......8686
274.11  Amended.....................................................8686
274.12  Amended.....................................................8686
274a.1  (c), (j), (k) and (l) revised..............................41783
274a.2  (b)(1)(v)(B)(1)(iii) through (viii) redesignated as 
        (b)(1)(v)(B)(1)(iv) through (ix); (a) introductory text, 
        (b)(1)(i)(A), (v) introductory text, (A)(1), (B)(1)(i), 
        new (v) and (C)(3) amended; new (b)(1)(v)(B)(1)(iii) 
        added; (b)(1)(v)(C)(4), (8) and (vi) through (viii) 
        revised....................................................41784
    (b)(2)(ii) and (iii) revised; (b)(3) amended...................41785
    (c)(1), (d)(1)(i), and (ii) revised; (d)(1) introductory text 
and (2) amended....................................................41786
274a.7  (a) revised................................................41786
274a.9  (b), (d) and (e) amended; (c) introductory text and (1)(i) 
        revised....................................................41786
274a.10  (b) nomenclature change; (b) introductory text, (1) 
        introductory text, and (3) amended.........................41786
274a.12  (a) introductory text revised; (a)(11) amended; (a)(12) 
        and (c)(19) added; interim...................................624
    Regulation at 56 FR 624 confirmed..............................23498
    (a) concluding text added......................................23499

[[Page 668]]

    (a) introductory text, (1), (b)(15), (c) introductory text, 
(1), (4), (10), (12) introductory text, (13) introductory text, 
and (17)(i) amended; (c)(18) added.................................41787
    (b)(6), (c)(3) and (6) revised.................................55616
274a.13  (a) revised; (d) amended..................................41787
280.2  Amended; interim............................................26020
    Regulation at 56 FR 26020 confirmed............................45885
280.7  Amended; interim............................................26020
    Regulation at 56 FR 26020 confirmed............................45885
280.52  Revised; interim...........................................26020
    Regulation at 56 FR 26020 confirmed............................45885
286  Authority citation revised....................................21919
286.8  Added; interim..............................................21919
287.7  Regulation at 55 FR 43327 confirmed.........................33205
299.1  Amended; interim..............................................624
    Amended; interim...............................................21920
    Regulation at 56 FR 624 confirmed..............................23496
299.5  Amended; interim..............................................624
    Amended; interim...............................................21920
    Table amended (OMB numbers); interim...........................22822
    Regulation at 56 FR 624 confirmed..............................23496
    Regulation at 56 FR 22822 confirmed............................49672
    Amended; interim...............................................50480
310  Added; interim................................................50480
312  Revised; interim..............................................50481
313  Added; interim................................................50482
315  Added; interim................................................50483
316  Added; interim................................................50484
316.5  (d) redesignated from 316a.21 and revised; interim..........50487
316.20  (a), (b) and (c) redesignated from 316a.2, 316a.3 and 
        316a.4; (a) heading, (b) heading, and (c) heading added; 
        interim....................................................50487
316a  Removed; interim.............................................50487
316a.2  Redesignated as 316.20(a); (a) heading added; interim......50487
316a.3  Redesignated as 316.20(b); (b) heading added; interim......50487
316a.4  Redesignated as 316.20(c); (c) heading added; interim......50487
316a.21  Redesignated as 316.5(d) and revised; interim.............50487
319  Authority citation revised....................................50487
319.1  Revised; interim............................................50488
319.2  Revised; interim............................................50488
319.3  Revised; interim............................................50488
319.4  Redesignated as 319.5 and amended; new 319.4 added; interim
                                                                   50489
319.5  Redesignated as 319.6; new 319.5 redesignated from 319.4; 
        interim....................................................50489
319.6  Redesignated from 319.5; interim............................50489
319.11  Revised; interim...........................................50489
322  Revised; interim..............................................50489
324  Heading and authority citation revised; interim...............50490
324.1  Added; interim..............................................50490
324.2  Redesignated from 324.11 and revised; interim...............50490
324.3  Redesignated from 324.12; interim...........................50490
    Revised; interim...............................................50491
324.4  Redesignated from 324.13; interim...........................50490
    Amended; interim...............................................50491
324.5  Redesignated from 324.14; interim...........................50490
    Amended; interim...............................................50491
324.11  Redesignated as 324.2; interim.............................50490
324.12  Redesignated as 324.3; interim.............................50490
324.13  Redesignated as 324.4; interim.............................50490
324.14  Redesignated as 324.5; interim.............................50490
324.15  Removed; interim...........................................50491
325  Added; interim................................................50491
327  Revised; interim..............................................50492
328  Revised; interim..............................................50492
329  Heading and authority citation revised; interim...............11061
    Authority citation revised.....................................50493
329.1  Revised; interim............................................50493
329.2  Revised; interim............................................50493
329.3  Added; interim..............................................50493
329.4  Added; interim..............................................50493
329.5  Added; interim..............................................11061
330  Revised; interim..............................................50493
331  Added; interim................................................50494
332  Heading and authority citation revised; interim...............50494

[[Page 669]]

332.1  Redesignated from 332d.1 and revised; interim...............50494
332.2  Redesignated from 332c.1 and amended; interim...............50495
332.3  Added; interim..............................................50495
332.4  Redesignated from 332b.5; interim...........................50495
332.5  Added; (a) through (d) redesignated from 332a.1, 332a.2, 
        332a.11, and 332a.12; new (b) revised; new (a) heading, 
        new (c) heading and new (d) heading added; interim.........50495
332.11  Redesignated as 335.2; interim.............................50494
332.13  Redesignated as 335.3; interim.............................50494
332a  Removed; interim.............................................50495
332a.1  Redesignated as 332.5(a); (a) heading added; interim.......50495
332a.2  Redesignated as 332.5(b) and revised; interim..............50495
332a.11  Redesignated as 332.5(c); (c) heading added; interim......50495
332a.12  Redesignated as 332.5(d); (d) heading added; interim......50495
332b  Removed; interim.............................................50495
332b.1  Removed; interim...........................................50495
332b.3  Removed; interim...........................................50495
332b.4  Removed; interim...........................................50495
332b.5  Redesignated as 332.4; interim.............................50495
332c  Removed; interim.............................................50495
332c.1  Redesignated as 332.2 and amended; interim.................50495
332d  Removed; interim.............................................50495
332d.1  Redesignated as 332.1 and revised; interim.................50494
333  Revised; interim..............................................50495
334  Heading revised; interim......................................50495
    Authority citation revised.....................................50496
334.1  Revised; interim............................................50496
334.2  Redesignated as 334.3 and revised; new 334.2 redesignated 
        from 334.11 and revised; interim...........................50496
334.3  Removed; interim............................................50496
    Redesignated from 334.2 and revised; interim...................50496
334.4  Redesignated from 334.14 and revised; interim...............50496
334.5  Added; interim..............................................50496
334.11  Redesignated as 334.2 and revised; new 334.11 redesignated 
        from 334a.1 and revised; interim...........................50496
334.13  Removed; interim...........................................50496
334.14  Redesignated as 334.4 and revised; interim.................50496
334.15  Removed; interim...........................................50496
334.16  Heading revised; (a) and (b) amended; interim..............50496
334.17  (a) amended; interim.......................................50496
334.18  (a) amended; interim.......................................50496
334.21  Removed; interim...........................................50496
334a  Removed; interim.............................................50496
334a.1  Redesignated as 334.11 and revised; interim................50496
335  Heading revised; interim......................................50496
    Authority citation revised.....................................50497
335.1  Added; interim..............................................50497
335.2  Redesignated from 332.11; interim...........................50494
    Revised; interim...............................................50497
335.3  Redesignated from 332.13; interim...........................50494
    Revised; interim...............................................50497
335.4  Added; interim..............................................50498
335.5  Added; interim..............................................50498
335.9  Added; interim..............................................50498
335.10  Added; interim.............................................50498
335.11  Heading and (a) revised; (b) through (g) amended; (h) 
        removed; interim...........................................50498
335.12  Heading revised; amended; interim..........................50498
335.13  Heading revised; (a) through (d) amended; nomenclature 
        change; interim............................................50498
335a  Removed; interim.............................................50498
335c  Removed; interim.............................................50498
336  Revised; interim..............................................50499
337  Authority citation revised....................................50499
337.1  (a) revised; (b) and (c) amended; (d) added; interim........50499
337.2  Redesignated as 337.9 and revised; new 337.2 added; interim
                                                                   50500
337.3  Removed; new 337.3 redesignated from 337.11 and revised; 
        interim....................................................50500
337.4  Revised; interim............................................50500
337.8  Added; interim..............................................50500
337.9  Redesignated from 337.2 and revised; interim................50500

[[Page 670]]

337.11  Redesignated as 337.3 and revised; interim.................50500
338  Authority citation revised.............................30679, 50501
338.1  Added; interim..............................................50501
338.2  Added; interim..............................................50501
338.3  Redesignated from 338.14 and revised; interim...............50501
338.4  Redesignated from 338.15 and revised; interim...............50501
338.5  Redesignated from 338.16 and revised; interim...............50501
338.11  Revised....................................................30679
    Heading revised; (a) amended; interim..........................50501
338.12  Revised....................................................30680
    Corrected......................................................38485
    Heading revised; amended; interim..............................50501
338.13  Amended; interim...........................................50502
338.14  Redesignated as 338.3 and revised; interim.................50501
338.15  Redesignated as 338.4 and revised; interim.................50501
338.16  Redesignated as 338.5 and revised; interim.................50501
339  Heading and authority citation revised; interim...............50502
339.1  Revised; interim............................................50502
339.2  Revised; interim............................................50502
339.5  Revised; interim............................................50502
340  Authority citation revised....................................50502
340.11  Amended; interim...........................................50502
343b  Authority citation revised...................................50502
343b.1  Amended; interim...........................................50502
343b.2  Amended; interim...........................................50502
344  Removed; interim..............................................50502
392  Added; interim................................................22822
    Regulation at 56 FR 22822 confirmed............................49672
499.1  Table amended; interim......................................22824
    Regulation at 56 FR 22824 confirmed............................49672
    Amended; interim........................................50502, 50503

                                  1992

8 CFR
                                                                   57 FR
                                                                    Page
Chapter I
3  Authority citation revised......................................11570
3.1  (d)(1-a) revised..............................................11570
3.12  Revised......................................................11571
3.13  Revised......................................................11571
3.14  Revised......................................................11571
3.15  Redesignated as 3.16; new 3.15 added.........................11571
3.16  Redesignated as 3.17; new 3.16 redesignated from 3.15........11571
3.17  Redesignated as 3.18; new 3.17 redesignated from 3.16 and 
        revised....................................................11571
3.18  Redesignated as 3.19; new 3.18 redesignated from 3.17........11571
3.19  Redesignated as 3.20; new 3.19 redesignated from 3.18 and 
        revised....................................................11571
3.20  Redesignated as 3.21; new 3.20 redesignated from 3.19........11571
    Revised........................................................11572
3.21  Redesignated as 3.22; new 3.21 redesignated from 3.20........11571
    Revised........................................................11572
3.22  Redesignated as 3.23; new 3.22 redesignated from 3.21........11571
3.23  Redesignated as 3.24; new 3.23 redesignated from 3.22........11571
3.24  Redesignated as 3.25; new 3.24 redesignated from 3.23........11571
3.25  Redesignated as 3.27; new 3.25 redesignated from 3.24........11571
3.26  Redesignated as 3.28.........................................11571
    Added..........................................................11572
3.27  Redesignated as 3.29; new 3.27 redesignated from 3.25........11571
    (c) amended....................................................11572
3.28  Redesignated as 3.30; new 3.28 redesignated from 3.26........11571
3.29  Redesignated as 3.31; new 3.29 redesignated from 3.27........11571
3.30  Redesignated as 3.32; new 3.30 redesignated from 3.28........11571
3.31  Redesignated as 3.33; new 3.31 redesignated from 3.29........11571
    Revised........................................................11572
3.32  Redesignated as 3.34; new 3.32 redesignated from 3.30........11571
    (a) amended....................................................11572
3.33  Redesignated as 3.35; new 3.33 redesignated from 3.31........11571
    Revised........................................................11572
3.34  Redesignated as 3.36; new 3.34 redesignated from 3.32........11571
3.35  Redesignated as 3.37; new 3.35 redesignated from 3.33........11571
3.36  Redesignated as 3.38; new 3.36 redesignated from 3.34........11571
3.37  Redesignated as 3.39; new 3.37 redesignated from 3.35........11571

[[Page 671]]

    Revised........................................................11573
3.38  Redesignated as 3.40; new 3.38 redesignated from 3.36........11571
3.39  Redesignated from 3.37.......................................11571
    Amended........................................................11573
3.40  Redesignated from 3.38.......................................11571
103  Authority citation revised..............................5227, 11573
103.1  (f)(2)(xxxv) and (xxxvi) amended; (f)(2)(xxxvii) added; 
        interim....................................................33861
103.3  (a)(1)(v) added.............................................11573
103.7  Regulation at 56 FR 31060 confirmed..........................3926
    (b)(1) revised..................................................5227
    (b)(1) amended..................................................6182
    (b)(1) amended; interim.........................................6460
    (a) amended....................................................11573
    (c)(4) amended.................................................34507
204  Heading and authority citation revised........................41056
204.1  Revised.....................................................41056
204.2  Revised.....................................................41057
204.3  Revised.....................................................41063
204.4  Revised.....................................................41066
204.6  (a) and (h)(3) corrected.....................................1860
204.8  Regulation at 56 FR 23210 confirmed; (a) and (b) amended; 
        (d)(1) revised; (d)(2) redesignated as (d)(3); new (d)(2) 
        added......................................................14792
    (e)(1) and (g)(3) amended......................................14793
204.9  Added; interim..............................................33861
209.2  (a)(1)(v) amended...........................................42883
    (c) amended....................................................42884
214  Authority citation revised....................................40832
214.2  (h)(4)(v)(E) and (6)(vi) introductory text corrected..........749
    (d) added; interim; eff. 2-12-92 through 3-31-92................6184
    Regulation at 57 FR 6184 comment time extended.................10978
    (h)(1)(ii)(B)(1), (4)(i)(B)(1) through (6), (iii)(B)(1), 
(vi)(A)(2), (ix) and (9)(iii)(B)(1) revised; interim...............12178
    (h)(1)(i), (ii)(B)(3), (4) heading, (i)(A)(3), (C), (ii), 
(vii)(A), (B), (C), (9)(iii)(B)(3), (13)(iii)(A) and 
(15)(ii)(B)(1) revised; (h)(1)(ii)(B)(4), (4)(i)(A)(4), (D), 
(vii)(D), (viii) and (9)(iii)(B)(4) removed; (h)(4)(ix) 
redesignated as (h)(4)(viii).......................................12181
    (o)(4) through (15) redesignated as (o)(5) through (16); 
(o)(1), (2)(ii)(C), (3)(i), (ii), (iii), (iv) introductory text, 
new (o)(5), (6)(ii) and (iv), (7)(iii) revised; (o)(3)(v), (4) and 
(17) added.........................................................12182
    (p)(5) through (15) redesignated as (p)(7) through (17); 
(p)(4) redesignated as (p)(5); (o)(2)(i), (7)(ii)(A), (B), (C), 
(iv)(12) and (13)(ii) amended; (p)(1), (2)(i), (ii)(C), (F), (3), 
(5), (i)(A), new (p)(7), (8)(iii), and (14)(iii) revised; 
(p)(2)(ii)(H), (4), (6) and (18) added.............................12186
    (p)(5)(ii)(D), (8)(ii)(A), (B) and (C) amended.................12190
    Regulation at 57 FR 6184 effective date extended through 10-
31-92..............................................................29193
    (f)(9)(ii) revised; interim....................................31955
    (f)(10)(ii) revised; (f)(11) introductory text amended; 
interim............................................................31956
    (c)(1) amended.................................................33426
    (d) revised....................................................40832
    (n)(4) amended.................................................42884
    (q) revised....................................................55060
214.6  (d)(2)(ii) revised..........................................33273
238.1  Revised; interim............................................59907
238.2  Revised; interim............................................59907
240.20  Redesignated from 240.48 and revised.......................34507
240.48  Redesignated as 240.20 and revised.........................34507
242  Authority citation revised..............................6461, 11573
242.2  (d) revised; (h) added......................................11573
    Corrected......................................................30898
242.6  Added; interim...............................................6461
242.8  (a) amended.................................................11574
245  Authority citation revised....................................56812
245.1  (b)(4)(iii); (d)(2)(i)(A), (C), (D), (ii), (iii)(A) through 
        (D), (iv)(B), (C) and (v) revised..........................56812
    (d)(2)(vi)(B)(1) amended.......................................56813
245.2  (a)(5)(ii) amended..........................................56813
245.6  Revised; interim............................................49375
245.8  Added; interim..............................................33862
245a  Authority citation revised....................................3926

[[Page 672]]

245a.1  Regulation at 56 FR 31061 confirmed.........................3926
245a.2  Regulation at 56 FR 31061 confirmed.........................3926
245a.3  Regulation at 56 FR 31061 confirmed; (e) amended............3926
251  Authority citation revised..............................6185, 40833
251.1  (a) and (d) added; interim; eff. 2-21-92 through 3-13-92.....6185
    Regulation at 57 FR 6185 comment time extended.................10978
    Regulation at 57 FR 6185 effective date extended through 10-
31-92..............................................................29193
    (a) and (d) revised............................................40833
258  Added; interim; eff. 2-21-92 through 3-13-92...................6185
    Regulation at 57 FR 6185 comment time extended.................10978
    Regulation at 57 FR 6185 effective date extended through 10-
31-92..............................................................29193
    Revised........................................................40834
264  Authority citation revised.....................................6462
264.1  (a) amended; interim.........................................6462
    (a) corrected..................................................14627
270  Added.........................................................33866
274a  Authority citation revised.............................6462, 42884
274a.12  (a) introductory text and (12) revised; (a)(13) added; 
        interim.....................................................6462
    Corrected......................................................14627
    (c)(3) revised; interim........................................31956
    (b)(13), (14), (15) and (16) redesignated as (b)(17), (18), 
(20) and (19); new (b)(18), (19) and (20) amended; new (b)(13), 
(14), (15) and (16) added..........................................42884
274a.13  (a) amended; interim.......................................6462
    (a) corrected..................................................14627
287.1  (a)(1) revised..............................................47258
292  Authority citation revised....................................11574
292.3  Heading, (a) introductory text and (b) revised; (a)(15) 
        added......................................................11574
299.1  Amended......................................................6183
      Amended; interim..............................................6462
    Corrected......................................................14627
299.5  Table amended; interim (OMB numbers)...................6183, 6462

                                  1993

8 CFR
                                                                   58 FR
                                                                    Page
Chapter I
3.41  Added........................................................38953
100.4  (d) amended.............................................471, 3487
    (c)(3) amended.................................................38045
101.6  Redesignated as 204.11......................................42849
103.1  (f)(2)(xxxv) revised........................................42849
    (f)(2)(xxxvi) and (xxxvii) amended; (f)(2)(xxxviii) and 
(xxxix) added; interim.............................................44608
    Regulation at 57 FR 33861 confirmed............................50836
    (f)(2)(x) and (xxiii) revised; interim.........................69210
103.7  (b)(1) amended; Form N-400 revised; interim.................30699
    (b)(2) amended.................................................31148
    (b)(1) amended; interim.................................58937, 69210
103.8  (a), (b) and (c) redesignated as (b), (c) and (d); new (a) 
        added......................................................31148
103.10  (a)(2) amended.............................................31148
    (a)(1), (b)(1), (c)(2), (d)(1) and (e) revised; (c)(1) and 
(d)(2) amended; (b)(2) and (f) removed.............................31149
103.11  Added......................................................31149
103.20  (a) and (b) introductory text amended......................31149
103.21  (a) and (b)(2) revised; (b)(3) removed; (f) added..........31149
103.22  (a) revised................................................31149
103.23  (a) revised................................................31149
    (b) amended....................................................31150
103.24  Amended....................................................31150
103.25  (a) and (b) amended........................................31150
103.26  Amended....................................................31150
103.27  Amended....................................................31150
103.28  (a) revised; (b) through (f) amended.......................31150
103.30  (a) amended................................................31150
103.33  Amended....................................................31150
103.35  Amended....................................................31150
103.36  Amended....................................................31150
204.1  (g)(1)(vii) revised; eff. 9-20-94...........................48778
204.6  (e) amended; interim........................................44608
    (j) introductory text revised; (j)(4)(iii) and (m) added; 
interim............................................................44609
204.9  Regulation at 57 FR 33861 confirmed; (a)(2) revised; (c)(3) 
        removed; (c)(4) redesignated as (c)(3).....................50836
204.10  Added; interim.............................................30701

[[Page 673]]

204.11  Redesignated from 101.6....................................42849
    Revised........................................................42850
205  Authority citation revised....................................42850
205.1  (a)(10) and (c)(4) removed; (c)(5) and (d) redesignated as 
        (c)(4) and (e); introductory text, (a)(5), (6), (7), 
        (b)(5), (6), (c) heading, (3) and new (4) amended; (d) 
        added......................................................42850
205.2  (a) and (b) amended.........................................42851
208  Authority citation revised....................................12148
    Regulation at 58 FR 12146 eff. date corrected to 4-2-93........14145
208.7  (c) introductory text amended...............................12148
209  Authority citation revised....................................12148
    Regulation at 58 FR 12146 eff. date corrected to 4-2-93........14145
209.2  (c) amended.................................................12149
211.1  (b)(1), (4) and (c) amended; (b)(3) revised; eff. 9-20-94 
                                                                   48778
211.3  Nomenclature change; eff. 9-20-94...........................48778
211.5  (a) and (b) amended; eff. 9-20-94...........................48778
212.1  (f)(3) amended...............................................4891
    (e)(3) amended; interim; eff. through 7-15-94..................38046
    (f)(3) amended; interim........................................43438
    (l) revised; interim...........................................69210
214  Authority citation revised....................................58097
214.2  (a)(10) corrected; CFR correction...........................49905
    (f)(6)(i)(C) and (m)(9)(ii) revised............................58097
    (b)(1), (4), (l)(17) heading and (i) revised; (e)(3) and 
(l)(18) added; interim.............................................69210
214.3  (b), (c) and (d) revised....................................58098
214.6  Revised; interim............................................69212
217  Authority citation revised....................................40581
217.5  (a) amended; interim........................................40581
223  Authority citation revised....................................48778
223.1  Amended; eff. 9-20-94.......................................48778
223a  Authority citation revised...................................48778
223a.4  Amended; eff. 9-20-94......................................48778
235.1  (d)(8) added; (f)(1) introductory text revised; interim.....69217
235.9  (b)(1) amended; eff. 9-20-94................................48778
240.2  (f) revised; interim........................................58937
240.3  (a) and (c) revised; interim................................58937
240.6  Amended; interim............................................58937
240.7  (b) revised; interim........................................58937
240.9  (a)(4) added; interim.......................................58937
240.10  (f)(2)(v) added; interim...................................58937
245.1  (a), (b)(4)(ii), (5) and (6) amended; (d)(3) added..........42851
245.2  (a) amended; interim........................................35838
245.8  Regulation at 57 FR 33862 confirmed; (c) amended; (d) and 
        (e) redesignated as (e) and (f); new (d) added.............50836
245.9  Added; interim..............................................35838
245a.2  (k)(4) amended; interim....................................45236
251.1  (c)(1) and (3) amended; eff. 9-20-94........................48779
252  Authority citation revised....................................48779
252.1  (b)(1) amended; eff. 9-20-94................................48779
264.1  (b) amended; (c)(2) removed; (c)(3) redesignated as (c)(2) 
                                                                   48779
    (f) through (h) redesignated as (g) through (i); new (f) 
added; interim.....................................................68024
264.2  Heading, (c)(1)(i) and (2)(i) revised; (c)(1)(vii) and 
        (2)(ix) amended............................................48779
264.3  Removed; interim............................................68025
264.5  Added.......................................................48779
274a  Regulation at 58 FR 12146 eff. date corrected to 4-2-93......14145
274a.2  (b)(1)(v)(A)(5) revised; eff. 9-20-94......................48780
274a.12  (a)(1) amended; eff. 9-20-94..............................48780
    (b)(19) and (20) revised; interim..............................69217
274a.13  (a) revised...............................................12149
292.5  (b) amended; interim........................................49911
299.1  Amended; eff. 9-20-94.......................................48780
    Amended; interim...............................................58937
299.5  Table amended; interim (OMB numbers).................49911, 58937
310.3  Revised; interim............................................49911
312.2  (b)(1) introductory text revised; (b)(1)(ii) amended; 
        interim....................................................49912

[[Page 674]]

312.3  (a) revised; interim........................................49912
312.4  Amended; interim............................................49912
312.5  (a) revised; (b) amended; interim...........................49912
313  Heading revised; interim......................................49912
313.1  Amended; interim............................................49912
316  Authority citation revised....................................49912
316.2  (b) revised; interim........................................49912
316.4  (a)(2) amended; eff. 9-20-94................................48780
316.5  (c) heading, (1)(i) introductory text and (3) revised; 
        (c)(1)(ii) amended; interim................................49913
316.10  (b)(1)(i) and (ii) revised; interim........................49913
322.2  (a)(4)(i) and (b)(1)(iv) revised; interim...................49913
329.2  (a)(4) amended; (a)(5) removed; (a)(6) redesignated as 
        (a)(5); interim............................................49913
329.5  (c) amended; (d) and (e) revised; (g), (h) and (i) added....45420
334.2  (a) amended; eff. 9-20-94...................................48780
334.3  Removed; interim............................................49913
334.4  Revised; interim............................................49913
334.11  Revised; interim...........................................49913
335.2  (a) and (c) introductory text revised; (c)(1) and (d) 
        amended; interim...........................................49913
335.3  (b) amended; interim........................................49914
335.5  Amended; interim............................................49914
335.6  Added; interim..............................................49914
335.7  Added; interim..............................................49914
335.9  (b) revised; interim........................................49914
336.2  (b) amended; (c) added; interim.............................49914
337.2  (a) revised; (b) amended; (c) added; interim................49915
337.3  Revised; interim............................................49915
337.7  Revised; interim............................................49915
337.8  Revised; interim............................................49915
337.10  Added; interim.............................................49916
338.1  Revised; interim............................................49916
339.1  Revised; interim............................................49916
339.2  (a) revised; (d) added; interim.............................49916
343b.3  Amended; interim...........................................49917
499.1  Amended; interim............................................49917

                                  1994

8 CFR
                                                                   59 FR
                                                                    Page
Chapter I
3.1  Regulation at 57 FR 11570 confirmed; (d)(1-a) revised..........1899
    (a)(1)  revised................................................47231
3.12  Regulation at 57 FR 11571 confirmed...........................1899
3.13  Regulation at 57 FR 11571 confirmed and amended...............1899
3.14  Regulation at 57 FR 11571 confirmed...........................1899
3.15  Regulation at 57 FR 11571 confirmed...........................1899
3.16  Regulation at 57 FR 11571 confirmed...........................1899
3.17  Regulation at 57 FR 11571 confirmed...........................1899
3.18  Regulation at 57 FR 11571 confirmed...........................1899
3.19  Regulation at 57 FR 11571 confirmed...........................1899
3.20  Regulations at 57 FR 11571 and 11572 confirmed................1899
3.21  Regulations at 57 FR 11571 and 11572 confirmed................1899
3.22  Regulation at 57 FR 11571 confirmed...........................1899
3.23  Regulation at 57 FR 11571 confirmed...........................1899
3.24  Regulation at 57 FR 11571 confirmed...........................1899
3.25  Regulation at 57 FR 11571 confirmed...........................1899
3.26  Regulations at 57 FR 11571 and 11572 confirmed and revised 
                                                                    1899
3.27  Regulations at 57 FR 11571 and 11572 confirmed................1899
3.28  Regulation at 57 FR 11571 confirmed...........................1899
3.29  Regulation at 57 FR 11571 confirmed...........................1899
3.30  Regulation at 57 FR 11571 confirmed...........................1899
3.31  Regulations at 57 FR 11571 and 11572 confirmed................1899
3.32  Regulations at 57 FR 11571 and 11572 confirmed................1899
3.33  Regulations at 57 FR 11571 and 11573 confirmed................1899
    Revised.........................................................1900
3.34  Regulations  at 57 FR 11571 confirmed.........................1899

[[Page 675]]

3.35  Regulation at 57 FR 11571 confirmed...........................1899
3.36  Regulation at 57 FR 11571 confirmed...........................1899
3.37  Regulations at 57 FR 11571 and 11573 confirmed................1899
    (b)  added......................................................1900
3.38  Regulation at 57 FR 11571 confirmed...........................1899
3.39  Regulations at 57 FR 11571 and 11573 confirmed................1899
3.40  Regulation at 57 FR 11571 confirmed...........................1899
100.2  Revised.....................................................60068
103  Technical correction..........................................39394
103.1  Regulation at 58 FR 44608 confirmed.........................17921
    Revised........................................................60070
103.2  (a)  revised.................................................1460
    (b)(2)  and (3) redesignated as (b)(18) and (16); (b) heading, 
(1) heading and new (18) heading revised; new (b)(16)(i) and (ii) 
amended; new (b)(2), new (3), (4) through (15), (17) and (19) 
added...............................................................1461
    (a)(1)  revised; interim.......................................33905
103.3  Regulation at 57 FR 11573 confirmed..........................1899
103.5  (a)(1)(i) and (iii) introductory text amended; 
        (a)(1)(iii)(C), (2), (3) and (4) revised; (a)(8) added......1463
103.5b  Added.......................................................1463
103.7  Regulation at 57 FR 11573 confirmed..........................1899
    (b)(1)  amended.........................................26590, 30518
    (b)(1)  and (c)(1) amended.....................................51095
204  Authority citation revised....................................38881
204.1  Regulation at 58 FR 48778 eff. date delayed to 3-20-95......47063
204.3  Revised.....................................................38881
    (e)(2)(iii)  correctly designated..............................42878
204.5  (d) amended; interim..........................................502
    (m)(1)  amended; interim.......................................27229
    Regulation  at 59 FR 502 confirmed.............................51360
204.6  Regulations at 58 FR 44608 and 44609 confirmed..............17921
208.1  (a), (b) and (c) amended; eff. 1-4-95.......................62297
208.2  (a) and (b) amended; eff. 1-4-95............................62298
208.3  (a) revised; (c) added; eff. 1-4-95.........................62298
208.4  (a) revised; eff. 1-4-95....................................62298
208.7  Heading, (a) and (b) introductory text revised; (b)(3) 
        added; (c) introductory text, (1), (2) and (d) amended; 
        eff. 1-4-95................................................62298
208.8  Revised; eff. 1-4-95........................................62299
208.9  (a) through (e) revised; (f) amended; (g) added; eff. 1-4-
        95.........................................................62299
208.10  Amended; eff. 1-4-95.......................................62300
208.11  Revised; eff. 1-4-95.......................................62300
208.12  (a) amended; eff. 1-4-95...................................62300
208.13  (b)(1)(ii) and (2)(ii) amended; eff. 1-4-95................62300
208.14  Heading revised; (a) and (b) amended; (b) and (c) 
        redesignated as (c) and (d); new (b), (d)(4) and (e) 
        added; new (d)(2) and new (3) amended; eff. 1-4-95.........62300
208.16  (a) and (c)(2)(ii) revised; (b)(4) amended; eff. 1-4-95....62301
208.17  Revised; eff. 1-4-95.......................................62301
208.18  (a) and (b) revised; eff. 1-4-95...........................62301
208.20  Revised; eff. 1-4-95.......................................62301
208.21  (a) introductory text revised; (a)(2) amended; (a)(3) 
        redesignated as (a)(4); new (a)(3) added; eff. 1-4-95......62301
208.24  (a) introductory text, (b) introductory text and (c) 
        revised; (a)(3) amended; (f) removed; (g) redesignated as 
        (f); eff. 1-4-95...........................................62301
210a  Removed......................................................24032
210a.8  Regulation at 56 FR 38333 confirmed........................26594
211  Technical correction..........................................39394
211.1  (b)(1)(i) introductory text revised.........................26590
    Regulation  at 58 FR 48778 eff. date delayed to 3-20-95........47063
211.3  Regulation at 58 FR 48778 eff. date delayed to 3-20-95......47063
211.5  Regulation at 58 FR 48778 eff. date delayed to 3-20-95......47063

[[Page 676]]

212  Authority citation revised....................................13870
212.1  (g) amended..................................................1467
    (l)  correctly designated.......................................1992
    Regulation  at 58 FR 38046 confirmed; (e)(3) revised...........35615
    (e)(4)(i)  revised.............................................51095
212.12  (e) revised; (g)(1) amended................................13870
214  Authority citation revised.....................................1463
214.1  (a) redesignated as (a)(3); (a)(1), (2) and new (3) heading 
        added; (c) and (d) revised..................................1463
    Regulation  at 56 FR 38333 confirmed...........................26594
214.2  (h)(1)(ii)(B)(1), (4)(i)(B)(5), (viii)(A)(1) and (B)(2) 
        revised; (h)(2)(i)(B) amended; (h)(4)(viii)(C) added........1470
    Regulation  at 56 FR 38333 confirmed...........................26594
    (h)(4)(vii)(C),  (o) and (p) revised...........................41830
    Regulation  at 59 FR 41830 eff. date corrected to 8-15-94......42487
    (h)(3)(iii)(C),  (v)(B), (C), and (15)(ii)(A) revised..........51102
    (o)(8)(ii),  (p)(3) and (8) corrected; (p)(7)(i)(B) correctly 
added..............................................................55910
216  Heading revised...............................................26590
    Authority  citation revised....................................26590
    Technical  correction..........................................39394
216.1  Amended.....................................................26590
216.2  (b) and (c) amended.........................................26590
216.3  Revised.....................................................26590
216.4  Heading revised; (a)(1) and (2) amended.....................26590
    (a)(6)  amended................................................26591
216.5  Heading and (a) introductory text revised; (b) and (c) 
        amended....................................................26591
216.6  Added.......................................................26591
217.3  (a) amended.................................................51095
223  Revised........................................................1464
223.1  Regulation at 58 FR 48778 eff. date delayed to 3-20-95......47063
223a  Removed.......................................................1465
235  Technical correction..........................................39394
235.9  Regulation at 58 FR 48778 eff. date delayed to 3-20-95......47063
235.11  (a) and (c) revised........................................26592
236.3  (a) introductory text revised; (b), (c), (4) and (d) 
        amended; eff. 1-4-95.......................................62302
238.3  (a) revised; (b) amended.....................................1617
    (b)  amended....................................................1618
238.4  Amended......................................................1618
241.1  Regulation at 56 FR 38333 confirmed.........................26594
242  Technical correction...................................39394, 43723
242.1  (a) revised; eff. 8-17-95...................................42414
242.2  Regulation at 57 FR 11573 confirmed..........................1899
    (a)(1)  and (c)(1) revised; eff. 8-17-95.......................42415
242.4  Revised; eff. 8-17-95.......................................42415
242.7a  Regulation at 56 FR 38333 confirmed........................26594
242.8  Regulation at 57 FR 11574 confirmed..........................1899
    Regulation  at 56 FR 38333 confirmed; (a) amended..............26594
242.17  (a) revised................................................26593
    Regulation  at 56 FR 38333 confirmed; (d) amended..............26594
    (c)(1),  (3), (4), (iv), (5) and (e) amended; (c)(2) 
introductory text revised; eff. 1-4-95.............................62302
242.18  Heading and (c) heading revised; (a), (b) and (c) amended; 
        eff. 1-4-95................................................62302
242.20  Amended....................................................26595
242.23  Regulation at 56 FR 38333 confirmed........................26594
245.1  (b)(7) through (10), (11), (12), (13) (14), (15) and (c) 
        through (g) (c)(1) through (4), (b)(7), (8) (c)(5), (6) 
        and (7) and (d) through (h); (b) heading and introductory 
        text revised; new (a)(3)(iii) and new (c) introductory 
        text added; (a) and new (g) amended........................51095
245.2  (a)(1), (5)(i), (ii), (iii), (b) and (c) amended; interim 
                                                                   33905
    (a)(3)(iii) redesignated as (a)(3)(iv), new (a)(3)(iii) added, 
(5)(ii),  amended..................................................51095
245.3  Amended; interim............................................33905
245.7  (a) amended; interim........................................33905
245.10  Added......................................................51095
    (b)  corrected; (b)(3) correctly added.........................53020
245a.2  Regulation at 58 FR 45236 confirmed.........................1471
245a.3  (d)(1) revised; interim....................................33905

[[Page 677]]

248  Authority citation revised.....................................1465
248.1  (a) amended; (b) revised.....................................1465
248.3  (a), (b) and (c) revised; (d) removed........................1466
251.1  Regulation at 58 FR 48779 eff. date delayed to 3-20-95......47063
252.1  Regulation at 58 FR 48779 eff. date delayed to 3-20-95......47063
264.1  (b) amended; (c)(1) removed; (c)(2) redesignated as (c)(1) 
                                                                    1466
264.4  Added........................................................1466
264.5  (g) added....................................................1466
    (e)(2)(i)  amended; interim....................................33905
264.6  Added........................................................1466
274a.2  Regulation at 58 FR 48780 eff. date delayed to 3-20-95.....47063
274a.12  Regulation at 59 FR 41845 eff. date corrected to 8-15-94 
                                                                   42487
    Regulation  at 58 FR 48780 eff. date delayed to 3-20-95........47063
    (c)(10)  corrected; CFR correction.............................52894
    (c)(8)  revised; (c)(10) and (11) amended; (c)(13) removed; 
eff. 1-4-95........................................................62302
274a.13  (a) and (d) amended; interim..............................33905
    (a)  revised; (d) amended; eff. 1-4-95.........................62303
286.1  (e) amended.................................................49349
286.2  Revised.....................................................49348
286.3  (a) revised.................................................49348
286.4  (c) amended.................................................49349
286.5  (b), (c) and (d) revised....................................49348
    (e)  and (g) amended...........................................49349
286.6  Amended.....................................................49349
287  Technical correction..........................................43723
287.1  (c), (d) and (e) removed; (f) through (i) redesignated as 
        (c) through (f); new (g) added; eff. 8-17-95...............42415
287.2  Revised; eff. 8-17-95.......................................42415
287.5  Revised; eff. 8-17-95.......................................42415
287.7  (a)(1) revised; eff. 8-17-95................................42418
287.8  Added; eff. 8-17-95.........................................42418
287.9  Added; eff. 8-17-95.........................................42420
287.10  Added; eff. 8-17-95........................................42420
287.11  Added; eff. 8-17-95........................................42420
292.3  Regulation at 57 FR 11574 confirmed..........................1899
292.4  (a) amended..................................................1466
299.1  Revised.....................................................25556
    Table  corrected...............................................35978
    Regulation  at 58 FR 48780 eff. date delayed to 3-20-95........47063
299.3  Revised.....................................................25558
299.4  Revised.....................................................25558
299.5  Revised.....................................................25559
    Table  corrected...............................................35978
    Table  amended (OMB numbers); eff. 1-4-95......................62303
316.4  Regulation at 58 FR 48780 eff. date delayed to 3-20-95......47063
334.2  Regulation at 58 FR 48780 eff. date delayed to 3-20-95......47063
499.1  Revised.....................................................25561

                                  1995

8 CFR
                                                                   60 FR
                                                                    Page
Chapter I
3  Authority citation revised......................................29468
3.0  Existing text designated as (a); new (a) heading and (b) 
        added......................................................29468
3.1  (a)(1) revised................................................29468
    (a)(1) and (2) amended.........................................57313
3.3  (a) amended...................................................34089
3.7  Amended.......................................................34089
3.11  Amended......................................................34090
3.13  Amended......................................................34089
3.14  (a) amended..................................................34089
3.15  (b)(6), (7), (c)(1) and (2) amended..........................34089
3.17  (a) amended..................................................34089
3.18  Amended......................................................34089
3.19  (c)(1), (2), (3) and (g) amended.............................34089
3.20  (a) and (b) amended..........................................34089
3.23  (b)(1) amended...............................................34089
3.25  Revised......................................................26353
3.31  (a) amended..................................................34089
3.36  Amended......................................................34089
3.38  (b) amended..................................................34089
3.40  Introductory text and (b) amended............................34090
100.4  Revised.....................................................57166
103  Authority citation revised....................................34090
103.6  (a)(2)(ii) and (iii) amended................................21974

[[Page 678]]

103.7  Regulation at 56 FR 50480 confirmed..........................6650
    Regulation at 58 FR 30699 confirmed.............................9774
    Regulation at 56 FR 21919 confirmed............................16040
    (b)(1) amended...................................21974, 37328, 40068
    (a) amended....................................................34090
    (b)(1) amended; interim........................................50388
    Regulation at 57 FR 6460 confirmed.............................66067
204.1  Regulation at 58 FR 48778 eff. date delayed to 3-20-96......14353
204.2  (a)(1)(iii)(A)(2) amended...................................34090
    (b)(4) revised; interim........................................38948
204.5  Regulation at 59 FR 27229 confirmed; (m)(1) amended.........29753
204.10  (a) amended; (g) redesignated as (h); (b), (d), (e)(2) and 
        new (h) revised; new (g) added; interim....................54030
208  Technical correction..........................................52068
208.2  (b) amended.................................................34090
    (a) amended; interim...........................................44264
208.3  (a) amended.................................................34090
208.4  (c) introductory text, (1), (2) and (3) amended.............34090
208.7  (a)(1) and (c) amended......................................21974
    (e) amended....................................................21975
    (c)(2) amended.................................................34090
208.16  (a) amended; interim.......................................44264
208.19  (b)(2) amended.............................................34090
210.2  (c)(4)(iii) amended.........................................21975
210.4  (b)(1), (2) and (3) amended.................................21975
211.1  Regulation at 58 FR 48778 eff. date delayed to 3-20-96......14353
211.3  Regulation at 58 FR 48778 eff. date delayed to 3-20-96......14353
211.5  Regulation at 58 FR 48778 eff. date delayed to 3-20-96......14353
212  Authority citation revised....................................34090
    Technical correction...........................................52068
212.1  (m) added; interim..........................................44264
212.3  (a)(2) amended..............................................34090
212.4  Heading revised; (i) added; interim.........................44264
    (i)(2) corrected...............................................52248
212.6  (e) revised.................................................40068
212.7  (c)(9) and (10) redesignated as (c)(10) and (11); new 
        (c)(9) added; interim......................................26681
    Corrected......................................................27598
212.14  Added; interim.............................................44265
214  Technical correction..........................................52068
214.1  (a)(2) table, (c)(3)(iv) and (v) amended; (c)(3)(vi) added; 
        interim....................................................44266
    (c)(3)(vi) corrected...........................................52248
214.2  (f)(11) introductory text, (12), (16)(i) introductory text, 
        (A), (j)(1)(v)(A), (m)(14)(ii) and (15) amended; 
        (f)(16)(ii) revised........................................21975
    (t) added; interim.............................................44266
    (c)(1) amended.................................................49195
    (t)(4)(i)(C) corrected.........................................52248
    (h)(2)(ii) and (13)(iv) revised................................62023
217.2  (c) revised.................................................40068
217.5  (a) redesignated as (a)(1); new (a)(1) heading revised; 
        (a)(2) added; interim......................................15856
235.1  (e) amended; (f)(1) introductory text, (2) and (g)(1) 
        revised....................................................40068
    (a) amended; interim...........................................50389
235.3  (g) added...................................................16043
235.9  Regulation at 58 FR 48778 eff. date delayed to 3-20-96......14353
235.13  Added; interim.............................................50389
236  Technical correction..........................................52068
236.3  (b) amended.................................................34090
236.10  Added; interim.............................................44268
238.3  (b) amended.................................................30457
238.4  Amended.....................................................30457
240.10  (d)(2) and (3) amended.....................................34090
240.12  (a) and (c) amended........................................21975
240.17  (a) amended................................................21975
240.18  (b) and (c) amended........................................34090
242  Authority citation revised....................................43961
    Technical correction...........................................52068
242.1  (a) introductory text and (b) amended.......................34090
242.2  (g) revised.................................................16043
    (i) amended....................................................34090
242.5  (a)(2)(vii) and (viii) amended; (a)(2)(ix) added; (a)(3) 
        revised....................................................66067
242.6  (e)(5) revised..............................................21975
    Regulation at 57 FR 6461 confirmed; revised....................66067
242.17  (c)(3) amended.............................................34090

[[Page 679]]

242.25  Added......................................................43961
242.26  Added; interim.............................................44268
244.1  Amended.....................................................37328
245  Authority citation revised....................................34090
    Technical correction...........................................52068
245.1  (c)(2) amended; interim.....................................26683
    (c)(7)(i)(B) amended...........................................34090
    (c)(7) redesignated as (c)(8); new (c)(7) added; interim.......44269
245.11  Added; interim.............................................44269
    (a)(4)(i) corrected............................................52248
245a  Heading revised..............................................21040
245a.2  (u)(2) redesignated as (u)(2)(i); new (u)(2)(i) heading 
        added; new (u)(2)(i) amended; (u)(2)(ii) added.............21040
    (j), (n)(1), (2)(ii) and (3) amended...........................21975
245a.4  (b)(10), (14)(ii)(B) and (iii) amended.....................21976
248  Technical correction..........................................52068
248.2  (c) amended; interim........................................26683
    (b) amended; interim...........................................44271
248.3  (h) added; interim..........................................44271
251.1  Regulation at 58 FR 48779 eff. date delayed to 3-20-96......14353
252.1  Regulation at 58 FR 48779 eff. date delayed to 3-20-96......14353
264.1  Regulation at 57 FR 6462 confirmed..........................66067
264.4  Revised.....................................................40069
274a  Technical correction.........................................52068
274a.2  Regulation at 58 FR 48780 eff. date delayed to 3-20-96.....14353
274a.12  Regulation at 58 FR 48780 eff. date delayed to 3-20-96....14353
    (c)(10) amended................................................21976
    (c)(21) added; interim.........................................44271
    Regulation at 57 FR 6462 confirmed.............................66067
    (c)(12) revised................................................66069
274a.13  (a) revised...............................................21976
    Regulation at 57 FR 6462 confirmed.............................66067
286.8  Regulation at 56 FR 21919 confirmed; (b)(1)(i), (2)(i) 
        through (v), (4)(iii), (6) and (7) revised; (b)(1)(ii) and 
        (iii) amended; (b)(1)(iv) and (2)(vi) added; (c) removed 
                                                                   16040
    Revised; interim...............................................50390
286.9  Added.......................................................40069
287.4  (a)(1) and (c) revised......................................56937
292.3  (b)(1)(vi) amended..........................................34090
292.5  Regulation at 58 FR 49911 confirmed..........................6650
299  Technical correction..........................................52068
299.1  Table amended..................................9774, 37328, 43962
    Regulation at 58 FR 48780 eff. date delayed to 3-20-96.........14353
    Regulation at 56 FR 21920 confirmed............................16040
    Table amended; interim..................................44271, 50390
    Regulation at 57 FR 6462 confirmed.............................66067
299.5  Regulations at 56 FR 50480 and 58 FR 49911 confirmed.........6650
    Table amended; interim..................................44271, 50390
    Regulation at 57 FR 6462 confirmed.............................66067
310  Regulation at 56 FR 50480 confirmed............................6650
310.3  Regulation at 58 FR 49911 confirmed..........................6650
312  Regulation at 56 FR 50481 confirmed............................6650
312.2  Regulation at 58 FR 49912 confirmed..........................6650
312.3  Regulation at 58 FR 49912 confirmed..........................6650
    (a)(1) and (3) revised..........................................6651
312.4  Regulation at 58 FR 49912 confirmed..........................6650
    Revised.........................................................6651
312.5  Regulation at 58 FR 49912 confirmed..........................6650
313  Regulations at 56 FR 50482 and 58 FR 49912 confirmed...........6650
313.1  Regulation at 58 FR 49912 confirmed..........................6650
315  Regulation at 56 FR 50483 confirmed............................6650
316  Regulation at 56 FR 50484 confirmed............................6650
316.2  Regulation at 58 FR 49912 confirmed..........................6650
    (a)(3) revised..................................................6651
316.4  Regulation at 58 FR 48780 eff. date delayed to 3-20-96......14353
316.5  Regulations at 56 FR 50487 and 58 FR 49913 confirmed.........6650
    (c)(2) revised..................................................6651

[[Page 680]]

316.10  Regulation at 58 FR 49913 confirmed.........................6650
316.20  Regulation at 56 FR 50487 confirmed.........................6650
316a  Regulation at 56 FR 50487 confirmed...........................6650
316a.2  Regulation at 56 FR 50487 confirmed.........................6650
316a.3  Regulation at 56 FR 50487 confirmed.........................6650
316a.4  Regulation at 56 FR 50487 confirmed.........................6650
316a.21  Regulation at 56 FR 50487 confirmed........................6650
319.1  Regulation at 56 FR 50488 confirmed..........................6650
319.2  Regulation at 56 FR 50488 confirmed..........................6650
319.3  Regulation at 56 FR 50488 confirmed..........................6650
319.4  Regulation at 56 FR 50489 confirmed..........................6650
319.5  Regulation at 56 FR 50489 confirmed..........................6650
319.6  Regulation at 56 FR 50489 confirmed..........................6650
319.11  Regulation at 56 FR 50489 confirmed.........................6650
322  Regulation at 56 FR 50489 confirmed............................6650
322.2  Regulation at 58 FR 49913 confirmed..........................6650
324  Regulation at 56 FR 50490 confirmed............................6650
324.1  Regulation at 56 FR 50490 confirmed..........................6650
324.2  Regulation at 56 FR 50490 confirmed..........................6650
324.3  Regulations at 56 FR 50490 and 50491 confirmed...............6650
324.4  Regulations at 56 FR 50490 and 50491 confirmed...............6650
324.5  Regulations at 56 FR 50490 and 50491 confirmed...............6650
324.11  Regulation at 56 FR 50490 confirmed.........................6650
324.12  Regulation at 56 FR 50490 confirmed.........................6650
324.13  Regulation at 56 FR 50490 confirmed.........................6650
324.14  Regulation at 56 FR 50490 confirmed.........................6650
324.15  Regulation at 56 FR 50491 confirmed.........................6650
325  Regulation at 56 FR 50491 confirmed............................6650
327  Regulation at 56 FR 50492 confirmed............................6650
328  Regulation at 56 FR 50492 confirmed............................6650
329.1  Regulation at 56 FR 50493 confirmed..........................6650
329.2  Regulations at 56 FR 50493 and 58 FR 49913 confirmed.........6650
329.3  Regulation at 56 FR 50493 confirmed..........................6650
329.4  Regulation at 56 FR 50493 confirmed..........................6650
    (b) revised.....................................................6651
329.5  (e) amended.................................................45659
330  Regulation at 56 FR 50493 confirmed............................6650
331  Regulation at 56 FR 50494 confirmed............................6650
332  Regulation at 56 FR 50494 confirmed............................6650
332.1  Regulation at 56 FR 50494 confirmed..........................6650
332.2  Regulation at 56 FR 50495 confirmed..........................6650
332.3  Regulation at 56 FR 50495 confirmed..........................6650
332.4  Regulation at 56 FR 50495 confirmed..........................6650
332.5  Regulation at 56 FR 50495 confirmed..........................6650
332.11  Regulation at 56 FR 50494 confirmed.........................6650
332.13  Regulation at 56 FR 50494 confirmed.........................6650
332a  Regulation at 56 FR 50495 confirmed...........................6650
332a.1  Regulation at 56 FR 50495 confirmed.........................6650
332a.3  Regulation at 56 FR 50495 confirmed.........................6650
332a.11  Regulation at 56 FR 50495 confirmed........................6650
332a.12  Regulation at 56 FR 50495 confirmed........................6650
332b  Regulation at 56 FR 50495 confirmed...........................6650
332b.1  Regulation at 56 FR 50495 confirmed.........................6650
332b.3  Regulation at 56 FR 50495 confirmed.........................6650
332b.4  Regulation at 56 FR 50495 confirmed.........................6650

[[Page 681]]

332b.5  Regulation at 56 FR 50495 confirmed.........................6650
332c  Regulation at 56 FR 50495 confirmed...........................6650
332c.1  Regulation at 56 FR 50495 confirmed.........................6650
332d  Regulation at 56 FR 50495 confirmed...........................6650
332d.1  Regulation at 56 FR 50494 confirmed.........................6650
333  Regulation at 56 FR 50495 confirmed............................6650
334  Regulation at 56 FR 50495 confirmed............................6650
334.1  Regulation at 56 FR 50496 confirmed..........................6650
334.2  Regulation at 56 FR 50496 confirmed..........................6650
    Regulation at 58 FR 48780 eff. date delayed to 3-20-96.........14353
334.3  Regulations at 56 FR 50496 and 58 FR 49913 confirmed.........6650
334.4  Regulations at 56 FR 50496 and 58 FR 49913 confirmed.........6650
334.5  Regulation at 56 FR 50496 confirmed..........................6650
334.11  Regulations at 56 FR 50496 and 58 FR 49913 confirmed........6650
334.13  Regulation at 56 FR 50496 confirmed.........................6650
334.14  Regulation at 56 FR 50496 confirmed.........................6650
334.15  Regulation at 56 FR 50496 confirmed.........................6650
334.16  Regulation at 56 FR 50496 confirmed.........................6650
334.17  Regulation at 56 FR 50496 confirmed.........................6650
334.18  Regulation at 56 FR 50496 confirmed.........................6650
334.21  Regulation at 56 FR 50496 confirmed.........................6650
334a  Regulation at 56 FR 50496 confirmed...........................6650
334a.1  Regulation at 56 FR 50496 confirmed.........................6650
335  Regulation at 56 FR 50496 confirmed............................6650
335.1  Regulation at 56 FR 50497 confirmed..........................6650
335.2  Regulations at 56 FR 50494 and 50497 and 58 FR 49913 
        confirmed...................................................6650
335.3  Regulations at 56 FR 50494 and 50497 and 58 FR 49914 
        confirmed...................................................6650
335.4  Regulation at 56 FR 50498 confirmed..........................6650
335.5  Regulations at 56 FR 50498 and 58 FR 49914 confirmed.........6650
335.6  Regulation at 58 FR 49914 confirmed..........................6650
    (c) added.......................................................6651
335.7  Regulation at 58 FR 49914 confirmed..........................6650
    Amended.........................................................6651
335.9  Regulations at 56 FR 50498 and 58 FR 49914 confirmed.........6650
335.10  Regulation at 56 FR 50498 confirmed.........................6650
335.11  Regulation at 56 FR 50498 confirmed.........................6650
335.12  Regulation at 56 FR 50498 confirmed.........................6650
335.13  Regulation at 56 FR 50498 confirmed.........................6650
335a  Regulation at 56 FR 50498 confirmed...........................6650
335c  Regulation at 56 FR 50498 confirmed...........................6650
336  Regulation at 56 FR 50499 confirmed............................6650
336.2  Regulation at 58 FR 49914 confirmed..........................6650
337.1  Regulation at 56 FR 50499 confirmed..........................6650
337.2  Regulations at 56 FR 50500 and 58 FR 49915 confirmed.........6650
    Revised........................................................37803
337.3  Regulations at 56 FR 50500 and 58 FR 49915 confirmed.........6650
    (c) revised.....................................................6651
    Revised........................................................37804
337.4  Regulation at 56 FR 50500 confirmed..........................6650
337.7  Regulation at 58 FR 49915 confirmed..........................6650
    (a) revised....................................................37804
337.8  Regulations at 56 FR 50500 and 58 FR 49915 confirmed.........6650

[[Page 682]]

    (f) revised....................................................37804
337.9  Regulation at 56 FR 50500 confirmed..........................6650
    (a) revised....................................................37804
337.10  Regulation at 58 FR 49916 confirmed.........................6650
337.11  Regulation at 56 FR 50500 confirmed.........................6650
338.1  Regulations at 56 FR 50501 and 58 FR 49916 confirmed.........6650
338.2  Regulation at 56 FR 50501 confirmed..........................6650
338.3  Regulation at 56 FR 50501 confirmed..........................6650
338.4  Regulation at 56 FR 50501 confirmed..........................6650
338.5  Regulation at 56 FR 50501 confirmed..........................6650
338.11  Regulation at 56 FR 50501 confirmed.........................6650
338.12  Regulation at 56 FR 50501 confirmed.........................6650
338.13  Regulation at 56 FR 50502 confirmed.........................6650
338.14  Regulation at 56 FR 50501 confirmed.........................6650
338.15  Regulation at 56 FR 50501 confirmed.........................6650
338.16  Regulation at 56 FR 50501 confirmed.........................6650
339  Regulation at 56 FR 50502 confirmed............................6650
339.1  Regulations at 56 FR 50502 and 58 FR 49916 confirmed.........6650
339.2  Regulations at 56 FR 50502 and 58 FR 49916 confirmed.........6650
    (e) added.......................................................6652
339.5  Regulation at 56 FR 50502 confirmed..........................6650
340.11  Regulation at 56 FR 50502 confirmed.........................6650
343b.1  Regulation at 56 FR 50502 confirmed.........................6650
343b.2  Regulation at 56 FR 50502 confirmed.........................6650
343b.3  Regulation at 58 FR 49917 confirmed.........................6650
344  Regulation at 56 FR 50502 confirmed............................6650
499.1  Regulations at 56 FR 50502, 50503 and 58 FR 49917 confirmed
                                                                    6650

                                  1996

8 CFR
                                                                   61 FR
                                                                    Page
Chapter I
1.1  (p) added.....................................................18904
3  Authority citation corrected....................................47550
    Authority citation revised.....................................59305
3.1  (b)(1), (2) and (c) revised...................................18904
    (a)(1) amended.................................................59305
3.2  Revised.......................................................18904
    (b) corrected..................................................32924
3.3  Revised.......................................................18906
3.4  Revised.......................................................18907
3.5  Revised.......................................................18907
3.6  Revised.......................................................18907
    (b) corrected..................................................21065
3.7  Revised.......................................................18907
3.8  Revised.......................................................18907
3.23  (b) revised..................................................18908
    (b)(3) corrected........................................19976, 21228
3.24  Revised......................................................18908
3.31  (b) revised..................................................18908
    (b) corrected...........................................19976, 21228
    (b) amended; interim...........................................46374
3.38  (b) revised; (c) and (d) redesignated as (f) and (g); new 
        (c), new (d) and (e) added.................................18908
100.4  (c)(2) and (3) amended......................................25778
103.1  (f)(3)(iii)(C), (K), (L), (X), (Y) and (FF) amended; 
        (f)(3)(iii)(GG) revised; interim...........................13072
    (f)(3)(iii)(LL) and (MM) amended; (f)(3)(iii)(NN) added........28010
103.2  (b)(2)(iii) added; (b)(17) heading revised; (b)(17) 
        amended; interim...........................................13072
    (e) added......................................................28010
    (e)(3) introductory text and (ii) revised......................57584
103.5  (a)(1)(i) amended...........................................18909
103.7  (a) revised.................................................18909
    (b)(1) amended.................................................28013
    (a) existing text designated as (a)(1) and amended; (a)(2) 
added..............................................................35598
    (b)(1) amended; interim.................................46374, 53304
    (b)(1) corrected...............................................47550
    Regulation at 60 FR 50388 confirmed............................53831
103.12  Added; interim.............................................47041
204.1  Heading and (a) revised; interim............................13072
    (e)(1) revised; (e)(2), (3) and (f)(1) amended; (g)(3) added; 
interim.........................................................13073...

[[Page 683]]

        ................................................................
204.2  Regulation at 60 FR 38948 confirmed.......................7207...
    Heading revised; (d) removed; (c) redesignated as (d); new (c) 
added; interim..................................................13073...
    (e) through (h) redesignated as (f) through (i); new (e) 
added; interim..................................................13075...
    (g)(2)(iv), (h)(2) and (i)(3) amended; interim..............13077...
204.5  (d) amended; interim.....................................33305...
205.1  Revised; interim.........................................13077...
205.2  (b) revised; (c) and (d) added; interim..................13078...
208  Authority citation revised.................................18909...
208.19  (a) revised.............................................18909...
210.4  (b)(2) and (3) revised...................................46536...
212.1  (g) revised..............................................11720...
212.3  (f)(2) revised; interim..................................59825...
212.5  (g) added; interim.......................................36611...
214.2  (c)(1) amended...........................................35935...
216.1  Amended; interim.........................................13079...
217.5  (a)(1) revised; interim...........................35600, 39273...
    (a)(1) corrected............................................41684...
235.1  Regulation at 60 FR 50389 confirmed......................53831...
235.13  Regulation at 60 FR 50389 confirmed; revised............53831...
236.7  Revised..................................................18909...
240.1--240.20 (Subpart A)  Heading removed......................47668...
240.40--240.47 (Subpart B)  Removed.............................47668...
242  Authority citation revised.................................18909...
    Authority citation corrected................................47550...
242.1  (a) revised...............................................8859...
242.2  (c)(1)(i) through (xvii) revised..........................8859...
242.17  (e) amended; interim....................................46374...
242.19  (b) and (c) amended.....................................18909...
    (b) corrected........................................19976, 21228...
242.21  (a) revised.............................................18909...
242.22  Amended.................................................18909...
    Corrected...................................................21065...
242.25  (i) added; eff. 3-3-97..................................69020...
245.6  Regulation at 57 FR 49375 confirmed......................59827...
245a.2  (n)(2) heading, (ii) and (3) revised....................46536...
246  Authority citation revised.................................18909...
246.7  Revised..................................................18910...
    Corrected...................................................32924...
264.1  (b) amended.......................................37675, 46537...
    Regulation at 58 FR 68024 confirmed.........................47669...
264.3  Regulation at 58 FR 68025 confirmed......................47669...
274a  Technical correction......................................55840...
274a.2  (b)(1)(v)(A)(6) revised; (b)(1)(v)(A)(7) and (10) removed 
                                                                   46537
    (a) amended; interim........................................52236...
274a.9  (b) amended; (c), (d) and (e) redesignated as (d), (e) and 
        (f); new (c) added; interim.............................52236...
274a.12  (c)(20) and (22) added.................................46537...
274a.14  (c)(1) and (2) revised.................................46537...
282  Removed....................................................47800...
286.8  Regulation at 60 FR 50390 confirmed......................53831...
    (f) added...................................................53833...
292.1  (a)(2)(ii) and (iii) revised; interim....................53610...
299.1  Table amended.......................28013, 46537, 47800, 53833...
    Regulation at 59 FR 25556 confirmed.........................47800...
    Regulation at 60 FR 50390 confirmed.........................53831...
299.3  Regulation at 59 FR 25558 confirmed; introductory text 
        revised; table amended..................................47800...
299.4  Regulation at 59 FR 25558 confirmed......................47800...
    (b) introductory text, (1), (3), (d) and (e) revised........47801...
299.5  Table amended..............................28013, 47801, 53833...
    Regulation at 59 FR 25559 confirmed.........................47800...
301  Added; interim.............................................35112...
301.1  (a)(2) and (b)(2) corrected..............................43948...
340.1  Added....................................................55553...
340.2  Redesignated from 340.11 and revised.....................55554...
340.11  Redesignated as 340.2...................................55554...
499.1  Regulation at 59 FR 25561 confirmed......................47800...
    Table amended..................................................47801