[Title 8 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2004 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
8
Revised as of January 1, 2004
Aliens and Nationality
Containing a Codification of documents of general
applicability and future effect
As of January 1, 2004
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 8:
Chapter I--Department of Homeland Security
(Immigration and Naturalization) 3
Chapter V--Executive Office for Immigration Review,
Department of Justice 777
Finding Aids:
Table of CFR Titles and Chapters........................ 1123
Alphabetical List of Agencies Appearing in the CFR...... 1141
List of CFR Sections Affected........................... 1151
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 8 CFR 1.1 refers to
title 8, part 1, section
1.
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[[Page v]]
EXPLANATION
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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
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[[Page vi]]
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[[Page vii]]
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Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 2004.
[[Page ix]]
THIS TITLE
Title 8--Aliens and Nationality is composed of one volume. Chapter I
contains regulations of the Immigration and Naturalization Service,
Department of Homeland Security. Chapter V contains regulations of the
Executive Office for Immigration Review, Department of Justice. The
contents of this volume represent all current regulations codified under
this title of the CFR as of January 1, 2004.
[[Page x]]
[[Page 1]]
TITLE 8--ALIENS AND NATIONALITY
--------------------------------------------------------------------
Editorial 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.
Part
chapter i--Department of Homeland Security (Immigration and
Naturalization)........................................... 1
chapter v--Executive Office for Immigration Review,
Department of Justice..................................... 1001
[[Page 3]]
CHAPTER I--DEPARTMENT OF HOMELAND SECURITY (IMMIGRATION AND
NATURALIZATION)
--------------------------------------------------------------------
Note: This table shows sections of title 8 of the United States Code
and corresponding sections of the Immigration and Nationality Act and of
parts in subchapters A, B, and C of chapter I of title 8 of the Code of
Federal Regulations. Those sections of title 8 of the United States Code
bearing an asterisk do not have a corresponding part in chapter I of
title 8 of the Code of Federal Regulations.
Sections I. & Sections I. & Sections I. & Sections I. &
Sections 8 USC N. Act and 8 Sections 8 USC N. Act and 8 Sections 8 USC N. Act and 8 Sections 8 USC N. Act and 8
CFR CFR CFR CFR
1101*.......................... 101 1254............. 244 1355*............ 285 1438............. 327
1102*.......................... 102 1255............. 245 1356*............ 286 1439............. 328
1103*.......................... 103 1256............. 246 1357............. 287 1440............. 329
1104*.......................... 104 1257............. 247 1358*............ 288 1441............. 330
1105*.......................... 105 1258............. 248 1359............. 289 1442*............ 331
1105a*......................... 106 1259............. 249 1360*............ 290 1443............. 332
1151*.......................... 201 1260............. 250 1361*............ 291 1444............. 333
1152*.......................... 202 1281............. 251 1362............. 292 1445............. 334
1153*.......................... 203 1282............. 252 1401*............ 301 1446............. 335
1154........................... 204 1283............. 253 1402*............ 302 1447............. 336
1155........................... 205 1284*............ 254 1403*............ 303 1448............. 337
1156*.......................... 206 1285*............ 255 1404*............ 304 1449............. 338
1181........................... 211 1286*............ 256 1405*............ 305 1450............. 339
1182........................... 212 1287*............ 257 1406............. 306 1451............. 340
1183........................... 213 1301*............ 261 1407*............ 307 1452............. 341
1184........................... 214 1302*............ 262 1408*............ 308 1453............. 342
1185........................... 215 1303*............ 263 1409*............ 309 1454............. 343
1201........................... 221 1304............. 264 1421*............ 310 1455............. 344
1202*.......................... 222 1305............. 265 1422*............ 311 1457*............ 346
1203........................... 223 1306*............ 266 1423............. 312 1458*............ 347
1204*.......................... 224 1321*............ 271 1424*............ 313 1459*............ 348
1221........................... 231 1322*............ 272 1425*............ 314 1481............. 349
1222........................... 232 1323*............ 273 1426*............ 315 1482*............ 350
1223........................... 233 1324............. 274 1427............. 316 1483*............ 351
1224........................... 234 1325*............ 275 1428*............ 317 1484*............ 352
1225........................... 235 1326*............ 276 1429............. 318 1485*............ 353
1226........................... 236 1327*............ 277 1430............. 319 1486*............ 354
1227........................... 237 1328*............ 278 1431*............ 320 1487*............ 355
1228........................... 238 1329*............ 279 1432*............ 321 1488*............ 356
1229........................... 239 1330............. 280 1433............. 322 1489*............ 357
1230*.......................... 240 1351*............ 281 1434............. 323 1501*............ 358
1251........................... 241 1352............. 282 1435............. 324 1502*............ 359
1252........................... 242 1353*............ 283 1436*............ 325 1503*............ 360
1253........................... 243 1354*............ 284 1437............. 326
SUBCHAPTER A--GENERAL PROVISIONS
Part Page
1 Definitions................................. 9
2 Authority of the Secretary of Homeland
Security................................ 11
[[Page 4]]
3 Executive Office for Immigration Review..... 11
SUBCHAPTER B--IMMIGRATION REGULATIONS
100 Statement of organization................... 13
101 Presumption of lawful admission............. 31
103 Powers and duties; availability of records.. 36
109 [Reserved]
204 Immigrant petitions......................... 68
205 Revocation of approval of petitions......... 132
207 Admission of refugees....................... 134
208 Procedures for asylum and withholding of
removal................................. 138
209 Adjustment of status of refugees and aliens
granted asylum.......................... 167
210 Special agricultural workers................ 169
211 Documentary requirements: Immigrants;
waivers................................. 181
212 Documentary requirements: Nonimmigrants;
waivers; admission of certain
inadmissible aliens; parole............. 184
213 Admission of aliens on giving bond or cash
deposit................................. 221
213a Affidavits of support on behalf of
immigrants.............................. 222
214 Nonimmigrant classes........................ 228
215 Controls of aliens departing from the United
States.................................. 382
216 Conditional basis of lawful permanent
residence status........................ 387
217 Visa waiver program......................... 397
221 Admission of visitors or students........... 400
223 Reentry permits, refugee travel documents,
and advance parole documents............ 400
231 Arrival-departure manifests and lists;
supporting documents.................... 403
232 Detention of aliens for physical and mental
examination............................. 404
233 Contracts with transportation lines......... 405
234 Designation of ports of entry for aliens
arriving by civil aircraft.............. 406
235 Inspection of persons applying for admission 408
236 Apprehension and detention of inadmissible
and deportable aliens; removal of aliens
ordered removed......................... 425
237 [Reserved]
238 Expedited removal of aggravated felons...... 435
239 Initiation of removal proceedings........... 438
240 Proceedings to determine removability of
aliens in the United States............. 439
241 Apprehension and detention of aliens ordered
removed................................. 452
[[Page 5]]
242-243 [Reserved]
244 Temporary protected status for nationals of
designated states....................... 479
245 Adjustment of status to that of person
admitted for permanent residence........ 489
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..................................... 543
246 Rescission of adjustment of status.......... 596
247 Adjustment of status of certain resident
aliens.................................. 597
248 Change of nonimmigrant classification....... 599
249 Creation of records of lawful admission for
permanent residence..................... 603
250 Removal of aliens who have fallen into
distress................................ 603
251 Arrival manifests and lists: Supporting
documents............................... 604
252 Landing of alien crewmen.................... 607
253 Parole of alien crewmen..................... 610
258 Limitations on performance of longshore work
by alien crewmen........................ 613
264 Registration and fingerprinting of aliens in
the United States....................... 615
265 Notices of address.......................... 624
270 Penalties for document fraud................ 624
271 Diligent and reasonable efforts to prevent
the unauthorized entry of aliens by the
owners of railroad lines, international
bridges or toll roads................... 627
273 Carrier responsibilities at foreign ports of
embarkation; reducing, refunding, or
waiving fines under section 273 of the
Act..................................... 627
274 Seizure and forfeiture of conveyances....... 629
274a Control of employment of aliens............. 638
280 Imposition and collection of fines.......... 660
286 Immigration user fee........................ 665
287 Field officers; powers and duties........... 669
289 American Indians born in Canada............. 684
292 Representation and appearances.............. 685
293 Deposit of and interest on cash received to
secure immigration bonds................ 693
299 Immigration forms........................... 694
SUBCHAPTER C--NATIONALITY REGULATIONS
301 Nationals and citizens of the United States
at birth................................ 703
306 Special classes of persons who may be
naturalized: Virgin Islanders........... 703
310 Naturalization authority.................... 704
[[Page 6]]
312 Educational requirements for naturalization. 706
313 Membership in the Communist Party or any
other totalitarian organizations........ 709
315 Persons ineligible to citizenship: Exemption
from military service................... 711
316 General requirements for naturalization..... 713
318 Pending removal proceedings................. 722
319 Special classes of persons who may be
naturalized: Spouses of United States
citizens................................ 722
320 Child born outside the United States and
residing permanently in the United
States; requirements for automatic
acquisition of citizenship.............. 726
322 Child born outside the United States;
requirements for application for
certificate of citizenship.............. 728
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............... 731
325 Nationals but not citizens of the United
States; residence within outlying
possessions............................. 732
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............................ 733
328 Special classes of persons who may be
naturalized: Persons with three years
service in Armed Forces of the United
States.................................. 734
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............................. 735
330 Special classes of persons who may be
naturalized: Seamen..................... 737
331 Alien enemies; naturalization under
specified conditions and procedures..... 738
332 Naturalization administration............... 739
333 Photographs................................. 741
334 Application for naturalization.............. 741
335 Examination on application for
naturalization.......................... 744
336 Hearings on denials of applications for
naturalization.......................... 751
337 Oath of allegiance.......................... 753
338 Certificate of naturalization............... 757
339 Functions and duties of clerks of court
regarding naturalization proceedings.... 759
340 Revocation of naturalization................ 760
341 Certificates of citizenship................. 763
[[Page 7]]
342 Administrative cancellation of certificates,
documents, or records................... 766
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... 768
343a Naturalization and citizenship papers lost,
mutilated, or destroyed; new certificate
in changed name; certified copy of
repatriation proceedings................ 768
343b Special certificate of naturalization for
recognition by a foreign state.......... 769
343c Certifications from records................. 771
349 Loss of nationality......................... 771
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.................. 771
499 Nationality forms........................... 774
Cross Reference: For State Department regulations pertaining to visas
and Nationality and Passports, see 22 CFR, chapter I, subchapters E
and F.
[[Page 9]]
SUBCHAPTER A_GENERAL PROVISIONS
PART 1_DEFINITIONS--Table of Contents
Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 5 U.S.C. 301; Public Law
107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.).
Sec. 1.1 Definitions.
As used in this chapter:
(a) The terms defined in section 101 of the Immigration and
Nationality Act (66 Stat. 163) shall have the meanings ascribed to them
in that section and as supplemented, explained, and further defined in
this chapter.
(b) The term Act means the Immigration and Nationality Act, as
amended.
(c) The term Service means the Immigration and Naturalization
Service, as it existed prior to March 1, 2003. Unless otherwise
specified, references to the Service after that date mean the Bureau of
Citizenship and Immigration Services, the Bureau of Customs and Border
Protection, and the Bureau of Immigration and Customs Enforcement.
(d) The term Commissioner means the Commissioner of the Immigration
and Naturalization Service prior to March 1, 2003. Unless otherwise
specified, references after that date mean the Director of the Bureau of
Citizenship and Immigration Services, the Commissioner of the Bureau of
Customs and Border Protection, and the Assistant Secretary for the
Bureau of Immigration and Customs Enforcement.
(e) The term Board means the Board of Immigration Appeals.
(f) The term attorney means any person who is a member in good
standing of the bar of the highest court of any State, possession,
territory, Commonwealth, or the District of Columbia, and is not under
any order of any court suspending, enjoining, restraining, disbarring,
or otherwise restricting him in the practice of law.
(g) Unless the context otherwise requires, the term case means any
proceeding arising under any immigration or naturalization law,
Executive order, or Presidential proclamation, or preparation for or
incident to such proceeding, including preliminary steps by any private
person or corporation preliminary to the filing of the application or
petition by which any proceeding under the jurisdiction of the Service
or the Board is initiated.
(h) The term day when computing the period of time for taking any
action provided in this chapter including the taking of an appeal, shall
include Saturdays, Sundays, and legal holidays, except that when the
last day of the period so computed falls on a Saturday, Sunday or a
legal holiday, the period shall run until the end of the next day which
is not a Saturday, Sunday, nor a legal holiday.
(i) The term practice means the act or acts of any person appearing
in any case, either in person or through the preparation or filing of
any brief or other document, paper, application, or petition on behalf
of another person or client before or with the Service, or any officer
of the Service, or the Board.
(j) The term representative refers to a person who is entitled to
represent others as provided in Sec. Sec. 292.1(a) (2), (3), (4), (5),
(6), and 292.1(b) of this chapter.
(k) The term preparation, constituting practice, means the study of
the facts of a case and the applicable laws, coupled with the giving of
advice and auxiliary activities, including the incidental preparation of
papers, but does not include the lawful functions of a notary public or
service consisting solely of assistance in the completion of blank
spaces on printed Service forms by one whose remuneration, if any, is
nominal and who does not hold himself out as qualified in legal matters
or in immigration and naturalization procedure.
(l) The term immigration judge means an attorney whom the Attorney
General appoints as an administrative judge within the Executive Office
for Immigration Review, qualified to conduct specified classes of
proceedings, including a hearing under section 240 of the Act. An
immigration judge shall be subject to such supervision and shall perform
such duties as the Attorney General shall prescribe, but shall not be
employed by the Immigration and Naturalization Service.
[[Page 10]]
(m) The term representation before the Board and the Service
includes practice and preparation as defined in paragraphs (i) and (k)
of this section.
(n) The term Executive Office means Executive Office for Immigration
Review.
(o) The terms director or district director prior to March 1, 2003,
mean the district director or regional service center director, unless
otherwise specified. On or after March 1, 2003, pursuant to delegation
from the Secretary of Homeland Security or any successive re-delegation,
the terms mean, to the extent that authority has been delegated to such
official: service center director; special agent in charge; field office
director; district director for services; district director for interior
enforcement; or director, field operations. The terms also mean such
other official, including an official in an acting capacity, within the
Bureau of Citizenship and Immigration Services, the Bureau of Customs
and Border Protection, the Bureau of Immigration and Customs
Enforcement, or other component of the Department of Homeland Security
who is delegated the function or authority above referenced for a
particular geographic district, region, or area.
(p) The term lawfully admitted for permanent residence means the
status of having been lawfully accorded the privilege of residing
permanently in the United States as an immigrant in accordance with the
immigration laws, such status not having changed. Such status terminates
upon entry of a final administrative order of exclusion, deportation, or
removal.
(q) The term arriving alien means an applicant for admission coming
or attempting to come into the United States at a port-of-entry, or an
alien seeking transit through the United States at a port-of-entry, or
an alien interdicted in international or United States waters and
brought into the United States by any means, whether or not to a
designated port-of-entry, and regardless of the means of transport. An
arriving alien remains such even if paroled pursuant to section
212(d)(5) of the Act, except that an alien who was paroled before April
1, 1997, or an alien who was granted advance parole which the alien
applied for and obtained in the United States prior to the alien's
departure from and return to the United States, shall not be considered
an arriving alien for purposes of section 235(b)(1)(A)(i) of the Act.
(r) The term respondent means a person named in a Notice to Appear
issued in accordance with section 239(a) of the Act, or in an Order to
Show Cause issued in accordance with Sec. 242.1 of this chapter as it
existed prior to April 1, 1997.
(s) The term Service counsel means any immigration officer assigned
to represent the Service in any proceeding before an immigration judge
or the Board of Immigration Appeals.
(t) The term aggravated felony means a crime (or a conspiracy or
attempt to commit a crime) described in section 101(a)(43) of the Act.
This definition is applicable to any proceeding, application, custody
determination, or adjudication pending on or after September 30, 1996,
but shall apply under section 276(b) of the Act only to violations of
section 276(a) of the Act occurring on or after that date.
(u) The term Department, unless otherwise noted, means the
Department of Homeland Security.
(v) The term Secretary, unless otherwise noted, means the Secretary
of Homeland Security.
(w) The term Bureau means generally, unless otherwise noted, the
Bureau of Citizenship and Immigration Services, the Bureau of Customs
and Border Protection, and the Bureau of Immigration and Customs
Enforcement, as created by the Homeland Security Act of 2002, as
amended, Pub. L. 107-296, November 25, 2002, 116 Stat. 2135, and the
President's Reorganization Plan, as modified.
(x) The term BCIS means the Bureau of Citizenship and Immigration
Services.
(y) The term CBP means the Bureau of Customs and Border Protection.
[[Page 11]]
(z) The term ICE means the Bureau of Immigration and Customs
Enforcement.
[23 FR 9115, Nov. 26, 1958, as amended at 30 FR 14772, Nov. 30, 1965; 34
FR 12213, July 24, 1969; 38 FR 8590, Apr. 4, 1973; 40 FR 23271, May 29,
1975; 48 FR 8039, Feb. 25, 1983, 52 FR 2936, Jan. 29, 1987; 53 FR 30016,
Aug. 10, 1988; 61 FR 18904, Apr. 29, 1996; 62 FR 10330, Mar. 6, 1997; 63
FR 19383, Apr. 20, 1998; 68 FR 10923, Mar. 6, 2003; 68 FR 35275, June
13, 2003]
PART 2_AUTHORITY OF THE SECRETARY OF HOMELAND SECURITY--Table of Contents
Authority: 8 U.S.C. 1103; 5 U.S.C. 301; Public Law 107-296, 116
Stat. 2135 (6 U.S.C. 1 et seq.).
Sec. 2.1 Authority of the Secretary of Homeland Security.
All authorities and functions of the Department of Homeland Security
to administer and enforce the immigration laws are vested in the
Secretary of Homeland Security. The Secretary of Homeland Security may,
in the Secretary's discretion, delegate any such authority or function
to any official, officer, or employee of the Department of Homeland
Security, including delegation through successive redelegation, or to
any employee of the United States to the extent authorized by law. Such
delegation may be made by regulation, directive, memorandum, or other
means as deemed appropriate by the Secretary in the exercise of the
Secretary's discretion. A delegation of authority or function may in the
Secretary's discretion be published in the Federal Register, but such
publication is not required.
[68 FR 10923, Mar. 6, 2003]
PART 3_EXECUTIVE OFFICE FOR IMMIGRATION REVIEW--Table of Contents
Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 1103, 1252 note, 1252b,
1324b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of
1950, 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100,
111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 106-386; 114 Stat.
1527-29, 1531-32; section 1505 of Pub. L. 106-554, 114 Stat. 2763A-326
to -328.
Sec. 3.0 Executive Office for Immigration Review
Regulations of the Executive Office for Immigration Review relating
to the adjudication of immigration matters before immigration judges
(referred to in some regulations as special inquiry officers) and the
Board of Immigration Appeals are located in 8 CFR chapter V, part 1003.
[68 FR 9831, Feb. 28, 2003]
[[Page 13]]
SUBCHAPTER B_IMMIGRATION REGULATIONS
PART 100_STATEMENT OF ORGANIZATION--Table of Contents
Sec.
100.1 Introduction.
100.2 Organization and functions.
100.3 Places where, and methods whereby, information may be secured or
submittals or requests made.
100.4 Field Offices.
100.5 Regulations.
100.6 Rule making.
100.7 OMB control numbers assigned to information collections.
Authority: 8 U.S.C. 1103; 8 CFR part 2.
Source: 32 FR 9616, July 4, 1967, unless otherwise noted.
Sec. 100.1 Introduction.
The following sections describe the organization of the Immigration
and Naturalization Service, including statements of delegations of final
authority, indicate the established places at which, and methods
whereby, the public may secure information, direct attention to the
regulations relating to the general course and method by which its
functions are channeled and determined, and to display OMB control
numbers assigned to the information collection requirements of the
Service. Part 103 of this chapter sets forth the procedures governing
the availability of Service opinions, orders, and records.
[48 FR 37201, Aug. 17, 1983]
Sec. 100.2 Organization and functions.
(a) Office of the Commissioner. The Attorney General has delegated
to the Commissioner, the principal officer of the Immigration and
Naturalization Service, authority to administer and enforce the
Immigration and Nationality Act and all other laws relating to
immigration, naturalization, and nationality as prescribed and limited
by 28 CFR 0.105.
(1) Office of the General Counsel. Headed by the General Counsel,
the office provides legal advice to the Commissioner, the Deputy
Commissioner, and staff; prepares legislative reports; assists in
litigation; prepares briefs and other legal memoranda when necessary;
directs the activities of the regional counsel; oversees the
professional activities of all Service attorneys assigned to field
offices; and, makes recommendations on all personnel matters involving
Service attorneys.
(2) Office of Congressional Relations. Headed by the Director of
Congressional Relations, the office is responsible for establishing and
maintaining effective liaison with the Congress, Department of Justice,
and other agencies on such matters as bills, mark-ups, hearings, and
Congressional inquiries.
(3) Office of Public Affairs. Headed by the Director of Public
Affairs, the office is responsible for establishing and maintaining
public affairs policy, serving as liaison with various constituent
communities (intergovernmental, public, news organization, etc.) to
communicate Service initiatives, such as naturalization and employer
education, and producing public information products.
(4) Office of Internal Audit. Headed by the Director of Internal
Audit, the office promotes economy, efficiency, and effectiveness within
the Service by managing the Service's systems for resolving alleged
mismanagement and misconduct by Service employees; reviewing and
evaluating the efficiency and effectiveness of Service operations and
programs; collecting and analyzing data to identify patterns of
deficiencies or other weaknesses warranting investigative or audit
follow-up; making recommendations on disciplinary policies and
procedures of the Service; overseeing Service systems to eliminate
fraud, waste, and abuse in the workplace; and acting as the Service's
liaison with outside audit/inspection agencies. These duties are
executed in coordination with other components of the Service and other
Department of Justice components.
(b) Office of the Deputy Commissioner. Headed by the Deputy
Commissioner, the office is authorized to exercise all
[[Page 14]]
power and authority of the Commissioner unless any such power or
authority is required by law to be exercised by the Commissioner
personally. The Deputy Commissioner advises and assists the Commissioner
in formulating and implementing Service policies and programs, and
provides supervision and direction to all organizational units of the
Service. The Deputy Commissioner also performs such other duties as may
be assigned from time-to-time by the Commissioner. In addition, the
Deputy Commissioner supervises the four Executive Associate
Commissioners for Programs, Field Operations, Policy and Planning, and
Management.
(c) Office of the Executive Associate Commissioner for Programs--(1)
General. (i) Headed by the Executive Associate Commissioner for
Programs, the office is responsible for policy development and review as
well as integration of the Service's enforcement and examinations
programs. This office has primary responsibility for the planning,
oversight, and advancement of programs engaged in interpretation of the
immigration and nationality laws and the development of regulations to
assist in activities, including:
(A) The granting of benefits and privileges to those qualified to
receive them;
(B) Withholding of benefits from those ineligible;
(C) Control of the borders and prevention of illegal entry into the
United States;
(D) Detection, apprehension, detention, and removal of illegal
aliens; and
(E) Enforcement of employer sanctions and other provisions of
immigration-related law.
(ii) In addition to overseeing enforcement and examination policy
matters, the Office of Programs is also responsible for immigration
records. The Executive Associate Commissioner for Programs promulgates
policy, provides direction and supervises the activities of the Offices
of Enforcement and Examinations.
(2) Office of Enforcement. Headed by the Associate Commissioner for
Enforcement, the office is responsible for the planning, oversight, and
advancement of enforcement programs engaged in interpretation of the
immigration and nationality laws, and the development of Service
policies to assist enforcement activities. The Associate Commissioner
for Enforcement directly supervises the Headquarters:
(i) Border Patrol Division;
(ii) Investigations Division;
(iii) Detention and Deportation Division;
(iv) Intelligence Division; and
(v) Asset Forfeiture Office.
(3) Office of Examinations. Headed by the Associate Commissioner for
Examinations, the office is responsible for the planning, oversight, and
advancement of examinations programs engaged in interpretation of the
immigration and nationality laws, and the development of Service
policies to assist examinations activities. The Office of Examinations
is also responsible for all district and service center records and all
records operations, except records policy. The Associate Commissioner
for Examinations directly supervises the Headquarters:
(i) Adjudications and Nationality Division;
(ii) Inspections Division;
(iii) Service Center Operations Division;
(iv) Records Division; and
(v) Administrative Appeals Office.
(d) Office of the Executive Associate Commissioner for Field
Operations--(1) General. (i) Headed by the Executive Associate
Commissioner for Field Operations, the office is responsible for
implementing policies related to the Service's field operations. This
office has primary responsibility for oversight and coordination of all
field operations relating to the administration of immigration law,
including:
(A) The granting of benefits and privileges to those qualified to
receive them;
(B) Withholding of benefits from those ineligible;
(C) Control of the borders and prevention of illegal entry into the
United States;
(D) Detection, apprehension, detention, and removal of illegal
aliens;
(E) Enforcement of employer sanctions and other provisions of
immigration-related law; and
[[Page 15]]
(F) Refugee processing, adjudication of relative applications/
petitions filed by citizens and legal permanent residents, and overseas
deterrence of alien smuggling and fraud activities.
(ii) The Executive Associate Commissioner for Field Operations
provides direction to, and supervision of, the three Regional Directors
(Eastern, Central, and Western), and the Director, International
Affairs.
(2) Offices of the Regional Directors. (i) General. Headed by
regional directors, these offices are responsible for directing all
aspects of the Service's field operations within their assigned
geographic areas of activity. The regional directors provide general
guidance and supervision to:
(A) Service districts within their regions; and
(B) Border Patrol sectors within their regions.
(ii) Service districts. Headed by district directors, who may be
assisted by deputy district directors, these offices are responsible for
the administration and enforcement of the Act and all other laws
relating to immigration and naturalization within their assigned
geographic areas of activity, unless any such power and authority is
either required to be exercised by higher authority or has been
exclusively delegated to another immigration official or class of
immigration officer. District directors are subject to the general
supervision and direction of their respective regional director, except
that district directors outside of the United States are subject to the
general supervision and direction of the Director for International
Affairs.
(iii) Border Patrol Sectors. Headed by chief patrol agents who may
be assisted by deputy chief patrol agents, these offices are responsible
for the enforcement of the Act and all other laws relating to
immigration and naturalization within their assigned geographic areas of
activity, unless any such power and authority is required to be
exercised by higher authority or has been exclusively delegated to
another immigration official or class of immigration officer. Chief
patrol agents are subject to the general supervision and direction of
their respective regional director.
(3) Office of International Affairs. Headed by a Director of
International Affairs, the office is responsible for ensuring that the
foreign affairs mission of the Service reflects a full partnership
between the Service, the Executive Branch agencies, and the Congress,
the administration of U.S. immigration law on foreign soil, and the U.S.
domestic asylum program. The Director for International Affairs provides
general guidance and supervision to:
(i) Foreign districts;
(ii) Asylum Division; and
(iii) Refugee and Parole Division.
(e) Office of the Executive Associate Commissioner for Policy and
Planning. Headed by the Executive Associate Commissioner for Policy and
Planning, the office is responsible for directing and coordinating
Servicewide policy and planning activities, and conducting analysis of
these as well as other issues which cross program lines or have national
implications.
(f) Office of the Executive Associate Commissioner for Management--
(1) General. Headed by the Executive Associate Commissioner for
Management, the office is responsible for planning, developing,
directing, coordinating, and reporting on Service management programs
and activities. The Executive Associate Commissioner for Management
promulgates Servicewide administrative policies and coordinates all
financial, human resource, administrative, and information resources
management functions. The Executive Associate Commissioner for
Management provides direction to, and supervision of, the:
(i) Office of Security;
(ii) Office of Equal Employment Opportunity;
(iii) Office of Human Resources and Administration;
(iv) Office of Finance;
(v) Office of Information Resources Management;
(vi) Office of Files and Forms Management; and
(vii) Administrative Centers.
(2) Office of Security. Headed by the Director of Security, the
office is responsible for all security programs of the Service,
including those related to personnel, physical, information and
documents, automated data processing,
[[Page 16]]
telecommunications, and emergency preparedness planning.
(3) Office of Equal Employment Opportunity. Headed by the Director
of Equal Employment Opportunity, the office is responsible for
developing, planning, directing, managing, and coordinating equal
employment opportunity programs and evaluating programs relating to the
civil rights of all employees and applicants to ensure compliance with
the law. This office also coordinates the affirmative employment and
discrimination complaints programs of the Service and those of the
Department of Justice as they apply to the Service.
(4) Office of Human Resources and Administration. Headed by the
Associate Commissioner for Human Resources and Administration, the
office is responsible for planning, developing, directing, managing, and
coordinating the personnel, career development, contracting, facilities,
and administrative support programs of the Service. The Associate
Commissioner for Human Resources and Administration directly supervises
the:
(i) Human Resources and Development Division; and
(ii) Administration Division.
(5) Office of Finance. Headed by the Associate Commissioner for
Finance, the office is responsible for planning, developing, directing,
managing, coordinating, and reporting on, the budget, accounting, and
resource management programs of the Service. The Associate Commissioner
for Finance directly supervises the:
(i) Budget Division; and
(ii) Financial Management Division.
(6) Office of Information Resources Management. Headed by the
Associate Commissioner for Information Resources Management, the office
is responsible for planning, developing, directing, managing,
coordinating, and reporting on Service information management programs
and activities including automated data processing, telecommunications,
and radio communications. The Associate Commissioner for Information
Resources Management directly supervises the:
(i) Data Systems Division; and
(ii) Systems Integration Division.
(7) Office of Files and Forms Management. Headed by the Director of
Files and Forms Management, the office is responsible for the
administration of records policy, and correspondence files. The Director
of Files and Forms Management directly supervises the:
(i) National Records Center;
(ii) National Forms Center;
(iii) Systematic Alien Verification Entitlement (SAVE) Program; and
(iv) Centralized Freedom of Information Act and Privacy Act (FOIA/
PA) program.
(8) Office of the Administrative Center. Headed by directors, these
offices are responsible for administrative servicing, monitoring, and
liaison functions within their respective geographic boundaries. The
directors direct and supervise regional staff who administer human
resources, administrative, information systems, security, and financial
functions.
[59 FR 60068, Nov. 22, 1994]
Sec. 100.3 Places where, and methods whereby, information may be
secured or submittals or requests made.
Any person desiring information relative to a matter handled by the
Immigration and Naturalization Service, or any person desiring to make a
submittal or request in connection with such a matter should communicate
either orally or in writing with a district headquarters office or
suboffice of the Service. If the office receiving the communication does
not have jurisdiction to handle the matter, the communication, if
written, will be forwarded to the proper office of the Service or, if
oral, the person will be advised how to proceed. When the submittal or
request consists of a formal application for one of the documents,
privileges, or other benefits provided for in the laws administered by
the Service or the regulations implementing those laws, the instructions
on the form as to preparation and place of submission should be
followed. In such cases, the provisions of this chapter dealing with the
particular type of application may be consulted for regulatory
provisions.
[[Page 17]]
Sec. 100.4 Field Offices.
The territory within which officials of the Immigration and
Naturalization Service are located is divided into regions, districts,
suboffices, and border patrol sectors as follows:
(a) Regional Offices. The Eastern Regional Office, located in
Burlington, Vermont, has jurisdiction over districts 2, 3, 4, 5, 6, 7,
8, 21, 22, 24, 25, 26, 27, and 28; border patrol sectors 1, 2, 3, 4, 5,
20, and 21. The Central Regional Office, located in Dallas, Texas, has
jurisdiction over districts 9, 10, 11, 14, 15, 19, 20, 29, 30, 38, and
40; border patrol sectors 6, 7, 15, 16, 17, 18, and 19. The Western
Regional Office, located in Laguna Niguel, California, has jurisdiction
over districts 12, 13, 16, 17, 18, 31, 32, and 39; and border patrol
sectors 8, 9, 10, 11, 12, 13, and 14.
(b) District Offices. The following districts, which are designated
by numbers, have fixed headquarters and are divided as follows:
(1) [Reserved]
(2) Boston, Massachusetts. The district office in Boston,
Massachusetts, has jurisdiction over the States of Connecticut, New
Hampshire (except the Port-of-Entry at Pittsburg, New Hampshire),
Massachusetts, and Rhode Island.
(3) New York City, New York. The district office in New York City,
New York, has jurisdiction over the following counties in the State of
New York; Bronx, Dutchess, Kings, Nassau, New York, Orange, Putnam,
Queens, Richmond, Rockland, Suffolk, Sullivan, Ulster, and Westchester;
also, over the United States immigration office located in Hamilton,
Bermuda.
(4) Philadelphia, Pennsylvania. The district office in Philadelphia,
Pennsylvania, has jurisdiction over the States of Pennsylvania,
Delaware, and West Virginia.
(5) Baltimore, Maryland. The district office in Baltimore, Maryland,
has jurisdiction over the State of Maryland, except Andrews Air Force
Base Port-of-Entry.
(6) Miami, Florida. The district office in Miami, Florida, has
jurisdiction over the State of Florida, and the United States
immigration offices located in Freeport and Nassau, Bahamas.
(7) Buffalo, New York. The district office in Buffalo, New York, has
jurisdiction over the State of New York except the part within the
jurisdiction of District No. 3; also, over the United States immigration
office at Toronto, Ontario, Canada; and the office located at Montreal,
Quebec, Canada.
(8) Detroit, Michigan. The district office in Detroit, Michigan, has
jurisdiction over the State of Michigan.
(9) Chicago, Illinois. The district office in Chicago, Illinois, has
jurisdiction over the States of Illinois, Indiana, and Wisconsin.
(10) St. Paul, Minnesota. The district office located in
Bloomington, Minnesota, has jurisdiction over the States of Minnesota,
North Dakota, and South Dakota; also, over the United States immigration
office in the Province of Manitoba, Canada.
(11) Kansas City, Missouri. The district office in Kansas City,
Missouri, has jurisdiction over the States of Kansas and Missouri.
(12) Seattle, Washington. The district office in Seattle,
Washington, has jurisdiction over the State of Washington and over the
following counties in the State of Idaho: Benewah, Bonner, Boundary,
Clearwater, Idaho, Kootenai, Latah, Lewis, Nez Perce, and Shoshone;
also, over the United States immigration offices located in the Province
of British Columbia, Canada.
(13) San Francisco, California. The district office in San
Francisco, California, has jurisdiction over the following counties in
the State of California: Alameda, Alpine, Amador, Butte, Calaveras,
Colusa, Contra Costa, Del Norte, El Dorado, Fresno, Glenn, Humboldt,
Inyo, Kern, Kings, Lake, Lassen, Madera, Marin, Mariposa, Mendocino,
Merced, Modoc, Mono, Monterey, Napa, Nevada, Placer, Plumas, Sacramento,
San Benito, San Francisco, San Joaquin, San Mateo, Santa Clara, Santa
Cruz, Shasta, Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter,
Tehama, Trinity, Tulare, Tuolumne, Yolo, and Yuba.
(14) San Antonio, Texas. The district office in San Antonio, Texas,
has jurisdiction over the following counties in the State of Texas:
Aransas, Atascosa, Bandera, Bastrop, Bee, Bell, Bexar, Blanco, Brazos,
Brown, Burleson,
[[Page 18]]
Burnet, Caldwell, Calhoun, Coke, Coleman, Comal, Concho, Coryell,
Crockett, De Witt, Dimmitt, Duval, Edwards, Falls, Fayette, Frio,
Gillespie, Glasscock, Goliad, Gonzales, Guadalupe, Hays, Irion, Jackson,
Jim Hogg, Jim Wells, Karnes, Kendall, Kerr, Kimble, Kinney, Lampasas, La
Salle, Lavaca, Lee, Live Oak, Llano, McCulloch, McLennan, McMullen,
Mason, Maverick, Medina, Menard, Milam, Mills, Nueces, Reagan, Real,
Refugio, Robertson, Runnels, San Patricio, San Saba, Schleicher,
Sterling, Sutton, Tom Green, Travis, Uvalde, Val Verde, Victoria, Webb,
Williamson, Wilson, Zapata, Zavala.
(15) El Paso, Texas. The district office in El Paso, Texas, has
jurisdiction over the State of New Mexico, and the following counties in
Texas: Brewster, Crane, Culberson, Ector, El Paso, Hudspeth, Jeff Davis,
Loving, Midland, Pecos, Presidio, Reeves, Terrell, Upton, Ward, and
Winkler.
(16) Los Angeles, California. The district office in Los Angeles,
California, has jurisdiction over the following counties in the State of
California: Los Angeles, Orange, Riverside, San Bernardino, San Luis
Obispo, Santa Barbara, and Ventura.
(17) Honolulu, Hawaii. The district office in Honolulu, Hawaii, has
jurisdiction over the State of Hawaii, the Territory of Guam, and the
Commonwealth of the Northern Mariana Islands.
(18) Phoenix, Arizona. The district office in Phoenix, Arizona, has
jurisdiction over the States of Arizona and Nevada.
(19) Denver, Colorado. The district office in Denver, Colorado, has
jurisdiction over the States of Colorado, Utah, and Wyoming.
(20) Dallas, Texas. The district office in Dallas, Texas, has
jurisdiction over the State of Oklahoma, and the following counties in
the State of Texas: Anderson, Andrews, Archer, Armstrong, Bailey,
Baylor, Borden, Bosque, Bowie, Briscoe, Callahan, Camp, Carson, Cass,
Castro, Cherokee, Childress, Clay, Cochran, Collingsworth, Comanche,
Cooke, Cottle, Crosby, Dallam, Dallas, Dawson, Deaf Smith, Delta,
Denton, Dickens, Donley, Eastland, Ellis, Erath, Fannin, Fisher, Floyd,
Foard, Franklin, Freestone, Gaines, Garza, Gray, Grayson, Gregg, Hale,
Hall, Hamilton, Hansford, Hardeman, Harison, Hartley, Haskett, Hemphill,
Henderson, Hill, Hockley, Hood, Hopkins, Houston, Howard, Hunt,
Hutchinson, Jack, Johnson, Jones, Kaufman, Kent, King, Knox, Lamar,
Lamb, Leon, Limestone, Lipscomb, Lubbock, Lynn, Marion, Martin,
Mitchell, Montague, Moore, Morris, Motley, Navarro, Nolan, Ochiltree,
Oldham, Palo Pinto, Panola, Parker, Parmer, Potter, Rains, Ranall, Red
River, Roberts, Rockwall, Rusk, Scurry, Shackelford, Sherman, Smith,
Somervell, Stephens, Stonewall, Swisher, Tarrant, Taylor, Terry,
Throckmorton, Titus, Upshur, Van Zandt, Wheeler, Wichita, Willbarger,
Wise, Wood, Yoakum, and Young.
(21) Newark, New Jersey. The district office in Newark, New Jersey,
has jurisdiction over the State of New Jersey.
(22) Portland, Maine. The district office in Portland, Maine, has
jurisdiction over the States of Maine, Vermont, and the Port-of-Entry at
Pittsburg, New Hampshire.
(23) [Reserved]
(24) Cleveland, Ohio. The district office in Cleveland, Ohio, has
jurisdiction over the State of Ohio.
(25) Washington, DC. The district office located in Arlington,
Virginia, has jurisdiction over the District of Columbia, the State of
Virginia, and the Port-of-Entry at Andrews Air Force Base, Maryland.
(26) Atlanta, Georgia. The district office of Atlanta, Georgia, has
jurisdiction over the States of Georgia, North Carolina, South Carolina,
and Alabama.
(27) San Juan, Puerto Rico. The district office in San Juan, Puerto
Rico, has jurisdiction over the Commonwealth of Puerto Rico, and the
Virgin Islands of the United States and Great Britain.
(28) New Orleans, Louisiana. The district office in New Orleans,
Louisiana, has jurisdiction over the States of Louisiana, Arkansas,
Mississippi, Tennessee, and Kentucky.
(29) Omaha, Nebraska. The district office in Omaha, Nebraska, has
jurisdiction over the States of Iowa and Nebraska.
[[Page 19]]
(30) Helena, Montana. The district office in Helena, Montana, has
jurisdiction over the State of Montana and over the following counties
in the State of Idaho: Ada, Adams, Bannock, Bear Lake, Bingham, Blaine,
Boise, Bonneville, Butte, Camas, Canyon, Caribou, Cassia, Clark, Custer,
Elmore, Franklin, Fremont, Gem, Gooding, Jefferson, Jerome, Lemhi,
Lincoln, Madison, Minidoka, Oneida, Owyhee, Payette, Power, Teton, Twin
Falls, Valley, and Washington; also, over the United States immigration
offices located in Calgary and Edmonton, Alberta, Canada.
(31) Portland, Oregon. The district office in Portland, Oregon, has
jurisdiction over the State of Oregon.
(32) Anchorage, Alaska. The district office in Anchorage, Alaska,
has jurisdiction over the State of Alaska.
(33) Bangkok, Thailand. The district office in Bangkok has
jurisdiction over Hong Kong, B.C.C. and adjacent islands, Taiwan, the
Philippines, Australia, New Zealand; all the continental Asia lying to
the east of the western border of Afghanistan and eastern borders of
Pakistan and India; Japan, Korea, Okinawa, and all other countries in
the Pacific area.
(34) [Reserved]
(35) Mexico City, Mexico. The district office in Mexico City has
jurisdiction over Mexico, Central America, South America, Caribbean
Islands, and Santo Domingo, Dominican Republic, except for those
specifically delegated to the districts of Miami, Florida, and San Juan,
Puerto Rico.
(36) [Reserved]
(37) Rome, Italy. The district office in Rome, Italy, has
jurisdiction over Europe; Africa; the countries of Asia lying to the
west and north of the western and northern borders, respectively, of
Afghanistan, People's Republic of China, and Mongolian People's
Republic; plus the countries of India and Pakistan.
(38) Houston, Texas. The district office in Houston, Texas, has
jurisdiction over the following counties in the State of Texas:
Angelina, Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston,
Grimes, Hardin, Harris, Jasper, Jefferson, Liberty, Madison, Matagorda,
Montgomery, Nacogdoches, Newton, Orange, Polk, Sabine, San Augustine,
San Jacinto, Shelby, Trinity, Tyler, Walker, Waller, Washington, and
Wharton.
(39) San Diego, California. The district office in San Diego,
California, has jurisdiction over the following counties in the State of
California: Imperial and San Diego.
(40) Harlingen, Texas. The district office in Harlingen, Texas, has
jurisdiction over the following counties in the State of Texas: Brooks,
Cameron, Hidalgo, Kenedy, Kleberg, Starr, and Willacy.
(c) Suboffices. The following offices, in addition to the facilities
maintained at Class A Ports-of-Entry listed in paragraph (c)(2) of this
section, indicated by asterisk, are designated as suboffices:
(1) Interior locations.
Agana, Guam
Albany, NY
Albuquerque, NM
Charlotte, NC
Charlotte Amalie, St. Thomas, VI
Cincinnati, OH
Fresno, CA
Hartford, CT
Indianapolis, IN
Jacksonville, FL
Las Vegas, NV
Louisville, KY
Memphis, TN
Milwaukee, WI
Norfolk, VA
Oklahoma City, OK
Orlando, FL
Pittsburgh, PA
Providence, RI
Reno, NV
Sacramento, CA
Salt Lake City, UT
San Jose, CA
Spokane, WA
St. Albans, VT
St. Louis, MO
Tampa, FL
Tucson, AZ
(2) Ports-of-Entry for aliens arriving by vessel or by land
transportation. Subject to the limitations prescribed in this paragraph,
the following places are hereby designated as Ports-of-Entry for aliens
arriving by any means of travel other than aircraft. The designation of
such a Port-of-Entry may be withdrawn whenever, in the judgment of the
Commissioner, such action is warranted. The ports are listed according
[[Page 20]]
to location by districts and are designated either Class A, B, or C.
Class A means that the port is a designated Port-of-Entry for all
aliens. Class B means that the port is a designated Port-of-Entry for
aliens who at the time of applying for admission are lawfully in
possession of valid Permanent Resident Cards or valid non-resident
aliens' border-crossing identification cards or are admissible without
documents under the documentary waivers contained in part 212 of this
chapter. Class C means that the port is a designated Port-of-Entry only
for aliens who are arriving in the United States as crewmen as that term
is defined in section 101(a)(10) of the Act with respect to vessels.
District No. 1 [Reserved]
District No. 2--Boston, Massachusetts
Class A
Boston, MA (the port of Boston includes, among others, the port
facilities at Beverly, Braintree, Chelsea, Everett, Hingham, Lynn,
Manchester, Marblehead, Milton, Quincy, Revere, Salem, Saugus, and
Weymouth, MA)
Gloucester, MA
Hartford, CT (the port at Hartford includes, among others, the port
facilities at Bridgeport, Groton, New Haven, and New London, CT)
Providence, RI (the port of Providence includes, among others, the port
facilities at Davisville, Melville, Newport, Portsmouth, Quonset Point,
Saunderstown, Tiverton, and Warwick, RI; and at Fall River, New Bedford,
and Somerset, MA)
Class C
Newburyport, MA
Plymouth, MA
Portsmouth, NH
Provincetown, MA
Sandwich, MA
Woods Hole, MA
District No. 3--New York, New York
Class A
New York, NY (the port of New York includes, among others, the port
facilities at Bronx, Brooklyn, Buchanan, Manhattan, Montauk, Northport,
Port Jefferson, Queens, Riverhead, Poughkeepsie, the Stapleton
Anchorage-Staten Island, Staten Island, Stoney Point, and Yonkers, NY,
as well as the East Side Passenger Terminal in Manhattan)
District No. 4--Philadelphia, Pennsylvania
Class A
Erie Seaport, PA
Philadelphia, PA (the port of Philadelphia includes, among others, the
port facilities at Delaware City, Lewes, New Castle, and Wilmington, DE;
and at Chester, Essington, Fort Mifflin, Marcus Hook, and Morrisville,
PA)
Pittsburgh, PA
District No. 5--Baltimore, Maryland
Class A
Baltimore, MD
Patuxent River, MD
Class C
Piney Point, MD
Salisbury, MD
District No. 6--Miami, Florida
Class A
Boca Grande, FL
Fernandina, FL
Fort Lauderdale/Port Everglades, FL, Seaport
Fort Pierce, FL
*Jacksonville, FL
Key West, FL
Miami Marine Unit, FL
Panama City, FL
Pensacola, FL
Port Canaveral, FL
St. Augustine, FL
St. Petersburg, FL
*Tampa, FL (includes Fort Myers)
West Palm Beach, FL
Class C
Manatee, FL
Port Dania, FL
Port St. Joe, FL
District No. 7--Buffalo, New York
Class A
Albany, NY
Alexandria Bay, NY
Buffalo, NY
Cape Vincent, NY
Champlain, NY
Chateaugay, NY
Ft. Covington, NY
Massena, NY
Mooers, NY
Niagara Falls, NY (the port of Niagara Falls includes, among others, the
port facilities at Lewiston Bridge, Rainbow Bridge, and Whirlpool
Bridge, NY)
[[Page 21]]
Ogdensburg, NY
Peace Bridge, NY
Rochester, NY
Rouses Point, NY
Thousand Islands Bridge, NY
Trout River, NY
Class B
Cannons Corner, NY
Churubusco, NY
Jamison's Line, NY
Class C
Oswego, NY
District No. 8--Detroit, Michigan
Class A
Algonac, MI
Detroit, MI, Detroit and Canada Tunnel
Detroit, MI, Detroit International Bridge (Ambassador Bridge)
Grosse Isle, MI
Isle Royale, MI
Marine City, MI
Port Huron, MI
Sault Ste. Marie, MI
Class B
Alpena, MI
Detour, MI
Grand Rapids, MI
Mackinac Island, MI
Rogers City, MI
Class C
Alpena, MI
Baraga, MI
Bay City, MI
Cheboygan, MI
Detour, MI
Escanaba, MI
Grand Haven, MI
Holland, MI
Houghton, MI
Ludington, MI
Mackinac Island, MI
Manistee, MI
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
[[Page 22]]
Class B
Wichita, KS
District No. 12--Seattle, Washington
Class A
Aberdeen, WA (the port of Aberdeen includes, among others, the port
facilities at Raymond and South Bend, WA)
Anacortes, WA
Bellingham, WA
Blaine-Pacific Highway, WA
Blaine-Peach Arch, WA
Boundary, WA
Colville, WA
Danville, WA
Eastport, ID
Ferry, WA
Friday Harbor, WA (the port of Friday Harbor includes, among others, the
port facilities at Roche Harbor, WA)
Frontier, WA
Kalama, WA
Laurier, WA
Longview, WA
Lynden, WA
Metaline Falls, WA
Neah Bay, WA
Olympia, WA
Oroville, WA
Point Roberts, WA
Port Angeles, WA
Port Townsend, WA
Porthill, WA
Seattle, WA (the port of Seattle includes, among others, the port
facilities at Bangor, Blake Island, Bremerton, Eagle Harbor, Edmonds,
Everett, Holmes Harbor, Houghton, Kennydale, Keyport, Kingston,
Manchester, Mukilteo, Orchard Point, Point Wells, Port Gamble, Port
Ludlow, Port Orchard, Poulsbo, Shuffleton, and Winslow, WA)
Sumas, WA
Tacoma, WA (the port of Tacoma includes, among others, the port
facilities at Dupont, WA)
Vancouver, WA
Yakima, WA
Class B
Nighthawk, WA
District No. 13--San Francisco, California
Class A
San Francisco, CA (the port of San Francisco includes, among others, the
port facilities at Antioch, Benicia, Martinez, Oakland, Pittsburgh, Port
Chicago Concord Naval Weapon Station, Redwood City, Richmond,
Sacramento, San Pablo Bay, and Stockton, CA)
Class C
Eureka, CA
District No. 14--San Antonio, Texas
Class A
Amistad Dam, TX
Corpus Christi, TX (the port of Corpus Christi includes, among others,
the port facilities at Harbor Island, Ingleside, and Port Lavaca-Point
Comfort, TX)
Del Rio, TX
Laredo, TX (the port of Laredo includes, among others, the port
facilities at Colombia Bridge, Convent Bridge, and Lincoln-Juarez
Bridge, TX)
Maverick, TX
District No. 15--El Paso, Texas
Class A
Columbus, NM
El Paso, TX (the port of El Paso includes, among others, the port
facilities at Bridge of the Americas, Paso Del Norte Bridge, and Ysleta
Bridge, TX)
Fabens, TX
Fort Hancock, TX
Presidio, TX
Santa Teresa, NM
District No. 16--Los Angeles, California
Class A
Los Angeles, CA (the port of Los Angeles includes, among others, the
port facilities at Long Beach, Ontario, Port Hueneme, San Pedro, and
Ventura, CA)
San Luis Obispo, CA (the port of San Luis Obispo includes, among others,
the port facilities at Avila, Estero Bay, El Capitan, Elwood, Gaviota,
Morro Bay, and Santa Barbara, CA)
District No. 17--Honolulu, Hawaii
Class A
*Agana, Guam, M.I. (including the port facilities at Apra Harbor, Guam)
Honolulu, HI, Seaport (including all port facilities on the Island of
Oahu)
Class C
Hilo, HI
Kahului, HI, Kahului Harbor
Nawiliwilli, HI, Nawiliwilli Harbor
Port Allen, HI, Port Allen Harbor
District No. 18--Phoenix, Arizona
Class A
Douglas, AZ
Lukeville, AZ
Mariposa, AZ
Morley Gate, AZ
Naco, AZ
Nogales, AZ
Sasabe, AZ
San Luis, AZ
[[Page 23]]
District No. 19--Denver, Colorado
Class A
Denver, CO
Grand Junction, CO
Pueblo, CO
Salt Lake City, UT
District No. 20 [Reserved]
District No. 21--Newark, New Jersey
Class A
Camden, NJ (the port of Camden includes, among others, the port
facilities at Artificial Island, Billingsport, Burlington, Cape May,
Deepwater Point, Fisher's Point, Gibbstown, Gloucester City, Paulsboro,
Salem, and Trenton, NJ)
Newark, NJ (the port of Newark includes, among others, the port
facilities at Bayonne, Carteret, Edgewater, Elizabeth, Jersey City,
Leonardo, Linden, Perth Amboy, Port Newark, and Sewaren, NJ)
District No. 22--Portland, Maine
Class A
Alburg, VT
Alburg Springs, VT
Bangor, ME (the port of Bangor includes, among others, the port
facilities at Bar Harbor, Belfast, Brewer, Bucksport Harbor, Prospect
Harbor, Sandypoint, Seal Harbor, Searsport, and South West Harbor, ME)
Beebe Plain, VT
Beecher Falls, VT
Bridgewater, ME
Calais, ME (includes Ferry Point and Milltown Bridges)
Canaan, VT
Coburn Gore, ME
Derby Line, VT
Eastport, ME
East Richford, VT
Fort Fairfield, ME
Fort Kent, ME
Hamlin, ME
Highgate Springs, VT
Houlton, ME
Jackman, ME
Limestone, ME
Lubec, ME
Madawaska, ME
Morses Line, VT
North Troy, VT
Norton, VT
Pittsburgh, NH
Portland, ME
Richford, VT (includes the Pinnacle Port-of-Entry)
* St. Albans, VT
Van Buren, ME
Vanceboro, ME
West Berkshire, VT
Class B
Daaquam, ME
Easton, ME
Eastcourt, ME
Forest City, ME
Monticello, ME
Orient, ME
Robinston, ME
St. Aurelie, ME
St. Pamphile, ME
Class C
Bath, ME
Boothbay Harbor, ME
Kittery, ME
Rockland, ME
Wiscasset, ME
District No. 23 [Reserved]
District No. 24--Cleveland, Ohio
Class A
Cincinnati, OH
Cleveland, OH
Columbus, OH
Put-In-Bay, OH
Sandusky, OH
Toledo, OH
Class C
Ashtabula, OH
Conneaut, OH
Fairport, OH
Huron, OH
Lorain, OH
Marblehead, OH
District No. 25--Washington, DC
Class A
Hopewell, VA
* Norfolk, VA--(the port of Norfolk includes, among others, the port
facilities at Fort Monroe and Newport News, VA)
Richmond, VA
Washington, DC (includes the port facilities at Alexandria, VA)
Yorktown, VA
District No. 26--Atlanta, Georgia
Class A
Charleston, SC (the port of Charleston includes, among others, the port
facilities at Georgetown and Port Royal, SC)
Mobile, AL
Savannah, GA (the port of Savannah includes, among others, the port
facilities at Brunswick and St. Mary's Seaport, GA)
Wilmington, NC (the port of Wilmington includes the port facilities at
Morehead City, NC)
[[Page 24]]
District No. 27--San Juan, Puerto Rico
Class A
Aguadilla, PR
* Charlotte Amalie, St. Thomas, VI
Christiansted, St. Croix, VI
Cruz Bay, St. John, VI
Ensenada, PR
Federiksted, St. Croix, VI
Fajardo, PR
Humacao, PR
Jobos, PR
Mayaguez, PR
Ponce, PR
Red Hook, St. Thomas, VI
Class B
Coral Bay, St. John, VI
District No. 28--New Orleans, Louisiana
Class A
Baton Rouge, LA
Gulfport, MS
Lake Charles, LA
Memphis, TN
Nashville, TN
New Orleans, LA (the port of New Orleans includes, among others, the
port facilities at Avondale, Bell Chasse, Braithwaite, Burnside,
Chalmette, Destrahan, Geismar, Gramercy, Gretna, Harvey, Marrero, Norco,
Port Sulphur, St. Rose, and Westwego, LA)
Class C
Morgan City, LA
Pascagoula, MS
District No. 29--Omaha, Nebraska
Class A
Omaha, NE
Des Moines, IA
District No. 30--Helena, Montana
Class A
Chief Mountain, MT (May-October)
Del Bonita, MT
Morgan, MT
Opheim, MT
Peigan, MT
Raymond, MT
Roosville, MT
Scobey, MT
Sweetgrass, MT
Turner, MT
Whitetail, MT
Wildhorse, MT
Willow Creek, MT
Class B
Goat Haunt, MT
Trail Creek, MT
Whitlash, MT
District No. 31--Portland, Oregon
Class A
Astoria, OR (the port of Astoria includes, among others, the port
facilities at Bradwood, Pacific City, Taft, Tilliamook, (including Bay
City and Garibaldi), Warrenton, Wauna, and Westport, OR)
Coos Bay, OR (the port of Coos Bay includes, among others, the port
facilities at Bandon, Brookings, Depoe Bay, Florence, Frankfort, Gold
Beach, Newport (including Toledo), Port Orford, Reedsport, Waldport, and
Yachats, OR)
Portland, OR (the port of Portland includes, among others, the port
facilities at Beaver, Columbia City, Prescott, Rainier, and St. Helens,
OR)
District No. 32--Anchorage, Alaska
Class A
Alcan, AK
Anchorage, AK (the port of Anchorage includes, among others (for out of
port inspections only), Afognak, Barrow, Cold Bay, Cordova, Homer,
Kodiak, Kotzebue, Nikiski, Seward, Valdez, and Yakutat, AK)
Dalton's Cache, AK
Dutch Harbor, AK
Fairbanks, AK
Gambell, AK
Juneau, AK
Ketchikan, AK
Nome, AK
Poker Creek, AK
Skagway, AK
Class B
Eagle, AK
Hyder, AK
Class C
Valdez, AK
District No. 38--Houston, Texas
Class A
Galveston, TX (the port of Galveston includes, among others, the port
facilities at Freeport, Port Bolivar, and Texas City, TX)
Houston, TX (the port of Houston includes, among others, the port
facilities at Baytown, TX)
Port Arthur, TX (the port of Port Arthur includes, among others, the
port facilities at Beaumont, Orange, and Sabine, TX)
District No. 39--San Diego, California
Class A
Andrade, CA
Calexico, CA
Otay Mesa, CA
San Ysidro, CA
[[Page 25]]
Tecate, CA
District No. 40--Harlingen, Texas
Class A
Brownsville, TX (the port of Brownsville includes, among others, the
port facilities at Brownsville Seaport, Port Isabel, Padre Island and
Harlingen, TX, Ship Channel)
Brownsville, TX, Gateway Bridge and Brownsville/Matamoros Bridge
Falcon Heights, TX
Hidalgo, TX
Los Ebanos, TX
Los Indios, TX
Pharr, TX
Progreso, TX
Rio Grande City, TX
Roma, TX
(3) Ports-of-Entry for aliens arriving by aircraft. In addition to
the following international airports which are hereby designated as
Ports-of-Entry for aliens arriving by aircraft, other places where
permission for certain aircraft to land officially has been given and
places where emergency or forced landings are made under part 239 of
this chapter shall be regarded as designated for the entry of aliens
arriving by such aircraft:
District No. 1 [Reserved]
District No. 2--Boston, Massachusetts
Boston, MA, Logan International Airport
Manchester, NH, Grenier Airport
Portsmouth, NH, Pease Air Force Base
Warwick, RI, T. F. Greene Airport
Windsor Locks, CT, Bradley International Airport
District No. 3--New York City, New York
Newburgh, NY, Stewart International Airport
Queens, NY, LaGuardia Airport
Westchester, NY, Westchester County Airport
District No. 4--Philadelphia, Pennsylvania
Charlestown, WV, Kanahwa Airport
Dover, DE, Dover Air Force Base
Erie, PA, Erie International Airport (USCS)
Harrisburg, PA, Harrisburg International Airport
Philadelphia, PA, Philadelphia International Airport
Pittsburgh, PA, Pittsburgh International Airport
District No. 5--Baltimore, Maryland
Baltimore, MD, Baltimore-Washington International Airport
District No. 6--Miami, Florida
Daytona, FL, Daytona International Airport, FL
Fort Lauderdale, FL, Executive Airport
Fort Lauderdale, FL, Fort Lauderdale-Hollywood Airport
Fort Myers, FL, Southwest Regional International Airport
Freeport, Bahamas, Freeport International Airport
Jacksonville, FL, Jacksonville International Airport
Key West, FL, Key West International Airport
Melbourne, FL, Melbourne International Airport
Miami, FL, Chalks Flying Service Seaplane Base
Miami, FL, Miami International Airport
Nassau, Bahamas, Nassau International Airport
Orlando, FL, Orlando International Airport
Palm Beach, FL, Palm Beach International Airport
Paradise Island, Bahamas, Paradise Island Airport
Sanford, FL, Sanford International Airport
Sarasota, FL, Sarasota Airport
St. Petersburg, FL, St. Petersburg/Clearwater International Airport
Tampa, FL, Tampa International Airport
District No. 7--Buffalo, New York
Albany, NY, Albany County Airport
Buffalo, NY, Buffalo Airport
Massena, NY, Massena Airport
Niagara Falls, NY, Niagara Falls International Airport
Ogdensburg, NY, Ogdensburg Municipal Airport
Rochester, NY, Rochester Airport
Syracuse, NY, Hancock International Airport
Watertown, NY, Watertown Municipal Airport
District No. 8--Detroit, Michigan
Battle Creek, MI, Battle Creek Airport
Chippewa, MI, Chippewa County International Airport
Detroit, MI, Detroit City Airport
Detroit, MI, Detroit Metropolitan Wayne County Airport
Port Huron, MI, St. Clair County International Airport
Sault Ste. Marie, MI, Sault Ste. Marie Airport
District No. 9--Chicago, Illinois
Chicago, IL, Chicago Midway Airport
Chicago, IL, Chicago O'Hare International Airport
Indianapolis, IN, Indianapolis International Airport
Mitchell, WI, Mitchell International Airport
[[Page 26]]
District No. 10--St. Paul, Minnesota
Baudette, MN, Baudette International Airport
Duluth, MN, Duluth International Airport
Duluth, MN, Sky Harbor Airport
Grand Forks, ND, Grand Forks International Airport
International Falls, MN, Falls International Airport
Minneapolis/St. Paul, MN, Minneapolis/St. Paul International Airport
Minot, ND, Minot International Airport
Pembina, ND, Port Pembina Airport
Portal, ND, Portal Airport
Ranier, MN, International Seaplane Base
Warroad, MN, Warroad International Airport
Williston, ND, Sioulin Field (Municipal)
District No. 11--Kansas City, Missouri
Kansas City, MO, Kansas City International Airport
Springfield, MO, Springfield Regional Airport
St. Louis, MO, St. Louis Lambert International Airport
St. Louis, MO, Spirit of St. Louis Airport
District No. 12--Seattle, Washington
Bellingham, WA, Bellingham Airport
Friday Harbor, WA, Friday Harbor
McChord, WA, McChord Air Force Base
Oroville, WA, Dorothy Scott Municipal Airport
Oroville, WA, Dorothy Scott Seaplane Base
Point Roberts, WA, Point Roberts Airport
Port Townsend, WA, Jefferson County International Airport
SEA-TAC, WA, SEA-TAC International Airport
Seattle, WA, Boeing Municipal Air Field
Seattle, WA, Lake Union
Spokane, WA, Felts Field
Spokane, WA, Spokane International Airport
District No. 13--San Francisco, California
Alameda, CA, Alemeda Naval Air Station
Oakland, CA, Oakland International Airport
Sacramento, CA, Beale Air Force Base
San Francisco, CA, San Francisco International Airport
San Jose, CA, San Jose International Airport
Travis, CA, Travis Air Force Base
District No. 14--San Antonio, Texas
Austin, TX, Austin International Airport
Corpus Christi, TX, Corpus Christi Airport
Del Rio, TX, Del Rio International Airport
Laredo, TX, Laredo International Airport
Maverick, TX, Maverick County Airport
San Antonio, TX, San Antonio International Airport
District No. 15--El Paso, Texas
Albuquerque, NM, Albuquerque International Airport
El Paso, TX, International Airport
Presidio, TX, Presidio Airport
Santa Teresa, NM, Santa Teresa Airport
District No. 16--Los Angeles, California
Los Angeles, CA, Los Angeles International Airport
Ontario, CA, Ontario International Airport
District No. 17--Honolulu, Hawaii
Agana, Guam, Guam International Airport Terminal
Honolulu, HI, Honolulu International Airport
Honolulu, HI, Hickam Air Force Base
District No. 18--Phoenix, Arizona
Douglas, AZ, Bisbee-Douglas Airport
Las Vegas, NV, McCarren International Airport
Nogales, AZ, Nogales International Airport
Phoenix, AZ, Phoenix Sky Harbor International Airport
Reno, NV, Reno Carron International Airport
Tucson, AZ, Tucson International Airport
Yuma, AZ, Yuma International Airport
District No. 19--Denver, Colorado
Colorado Springs, CO, Colorado Springs Airport
Denver, CO, Denver International Airport
Salt Lake City, UT, Salt Lake City Airport
District No. 20--Dallas, Texas
Dallas, TX, Dallas-Fort Worth International Airport
Oklahoma City, OK, Oklahoma City Airport (includes Altus and Tinker
AFBs)
District No. 21--Newark, New Jersey
Atlantic City, NJ, Atlantic City International Airport
Lakehurst, NJ, Lakehurst Naval Air Station
Morristown, NJ, Morristown Airport
Newark, NJ, Newark International Airport
Newark, NJ, Signature Airport
Teterboro, NJ, Teterboro Airport
Wrightstown, NJ, McGuire Air Force Base
District No. 22--Portland, Maine
Bangor, ME, Bangor International Airport
Burlington, VT, Burlington International Airport
Caribou, ME, Caribou Municipal Airport
Highgate Springs, VT, Franklin County Regional Airport
Newport, VT, Newport State Airport
[[Page 27]]
District No. 23 [Reserved]
District No. 24--Cleveland, Ohio
Akron, OH, Municipal Airport
Cincinnati, OH, Cincinnati International Airport
Cleveland, OH, Cleveland Hopkins Airport
Columbus, OH, Port Columbus International Airport
Sandusky, OH, Griffing/Sandusky Airport
District No. 25--Washington, D.C.
Camp Springs, MD, Andrews Air Force Base
Chantilly, VA, Washington Dulles International Airport
Winchester, VA, Winchester Airport
District No. 26--Atlanta, Georgia
Atlanta, GA, Atlanta Hartsfield International Airport
Charleston, SC, Charleston International Airport
Charleston, SC, Charleston Air Force Base
Charlotte, NC, Charlotte International Airport
Raleigh, NC, Raleigh-Durham International Airport
Savannah, GA, Savannah International Airport
District No. 27--San Juan, Puerto Rico
San Juan, PR, San Juan International Airport
District No. 28--New Orleans, Louisiana
Louisville, KY, Louisville International Airport
New Orleans, LA, New Orleans International Airport
Memphis, TN, Memphis International Airport
Nashville, TN, Nashville International Airport
District No. 29--Omaha, Nebraska
Des Moines, IA, Des Moines International Airport
Omaha, NE, Eppley International Airport
Omaha, NE, Offutt Air Force Base
District No. 30--Helena, Montana
Billings, MT, Billings Airport
Boise, ID, Boise Airport
Cut Bank, MT, Cut Bank Airport
Glasgow, MT, Glasgow International Airport
Great Falls, MT, Great Falls International Airport
Havre, MT, Havre-Hill County Airport
Helena, MT, Helena Airport
Kalispel, MT, Kalispel Airport
Missoula, MT, Missoula Airport
District No. 31--Portland, Oregon
Medford, OR, Jackson County Airport
Portland, OR, Portland International Airport
District No. 32--Anchorage, Alaska
Anchorage, AK, Anchorage International Airport
Juneau, AK, Juneau Airport (Seaplane Base Only)
Juneau, AK, Juneau Municipal Airport
Ketchikan, AK, Ketchikan Airport
Wrangell, AK, Wrangell Seaplane Base
District No. 38--Houston, Texas
Galveston, TX, Galveston Airport
Houston, TX, Ellington Field
Houston, TX, Hobby Airport
Houston, TX, Houston Intercontinental Airport
District No. 39--San Diego, California
Calexico, CA, Calexico International Airport
San Diego, CA, San Diego International Airport
San Diego, CA, San Diego Municipal Airport (Lindbergh Field)
District No. 40--Harlingen, Texas
Brownsville, TX, Brownsville/South Padre Island International Airport
Harlingen, TX, Valley International Airport
McAllen, TX, McAllen Miller International Airport
(4) Immigration offices in foreign countries:
Athens, Greece
Bangkok, Thailand
Calgary, Alberta, Canada
Ciudad Juarez, Mexico
Dublin, Ireland
Edmonton, Alberta, Canada
Frankfurt, Germany
Freeport, Bahamas
Hamilton, Bermuda
Havana, Cuba
Hong Kong, B.C.C.
Karachi, Pakistan
London, United Kingdom
Manila, Philippines
Mexico City, Mexico
Monterrey, Mexico
Montreal, Quebec, Canada
Moscow, Russia
Nairobi, Kenya
Nassau, Bahamas
New Delhi, India
Oranjestad, Aruba
Ottawa, Ontario, Canada
Rome, Italy
Santo Domingo, Dominican Republic
Seoul, Korea
Shannon, Ireland
Singapore, Republic of Singapore
Tegucigalpa, Honduras
Tijuana, Mexico
[[Page 28]]
Toronto, Ontario, Canada
Vancouver, British Columbia, Canada
Victoria, British Columbia, Canada
Vienna, Austria
Winnipeg, Manitoba, Canada
(d) Border patrol sectors. Border Patrol Sector Headquarters and
Stations are situated at the following locations:
Sector No. 1--Houlton, Maine
Calais, ME
Fort Fairfield, ME
Houlton, ME
Jackman, ME
Rangeley, ME
Van Buren, ME
Sector No. 2--Swanton, Vermont
Beecher Falls, VT
Burke, NY
Champlain, NY
Massena, NY
Newport, VT
Ogdensburg, NY
Richford, VT
Swanton, VT
Sector No. 3--Ramey, Puerto Rico
Ramey, Puerto Rico
Sector No. 4--Buffalo, New York
Buffalo, NY
Fulton, NY
Niagara Falls, NY
Watertown, NY
Sector No. 5--Detroit, Michigan
Detroit, MI
Grand Rapids, MI
Port Huron, MI
Sault Ste. Marie, MI
Trenton, MI
Sector No. 6--Grand Forks, North Dakota
Bottineau, ND
Duluth, MN
Grand Forks, ND
Grand Marais, MN
International Falls, MN
Pembina, ND
Portal, ND
Warroad, MN
Sector No. 7--Havre, Montana
Billings, MT
Havre, MT
Malta, MT
Plentywood, MT
Scobey, MT
Shelby, MT
St. Mary, MT
Sweetgrass, MT
Twin Falls, ID
Sector No. 8--Spokane, Washington
Bonners Ferry, ID
Colville, WA
Eureka, MT
Oroville, WA
Pasco, WA
Spokane, WA
Wenatchee, WA
Whitefish, MT
Sector No. 9--Blaine, Washington
Bellingham, WA
Blaine, WA
Lynden, WA
Port Angeles, WA
Roseburg, OR
Sector No. 10--Livermore, California
Bakersfield, CA
Fresno, CA
Livermore, CA
Oxnard, CA
Sacramento, CA
Salinas, CA
San Luis Obispo, CA
Stockton, CA
Sector No. 11--San Diego, California
Brown Field, CA
Campo, CA (Boulevard, CA)
Chula Vista, CA
El Cajon, CA (San Marcos and Julian, CA)
Imperial Beach, CA
San Clemente, CA
Temecula, CA
Sector No. 12--El Centro, California
Calexico, CA
El Centro, CA
Indio, CA
Riverside, CA
Sector No. 13--Yuma, Arizona
Blythe, CA
Boulder City, NV
Wellton, AZ
Yuma, AZ
Sector No. 14--Tucson, Arizona
Ajo, AZ
Casa Grande, AZ
Douglas, AZ
Naco, AZ
Nogales, AZ
Phoenix, AZ
Sonita, AZ
Tucson, AZ
Willcox, AZ
Sector No. 15--El Paso, Texas
Alamogordo, NM
Albuquerque, NM
Carlsbad, NM
Deming, NM
El Paso, TX
[[Page 29]]
Fabens, TX
Fort Hancock, TX
Las Cruces, NM,
Lordsburg, NM
Truth or Consequences, NM
Ysleta, TX
Sector No. 16--Marfa, Texas
Alpine, TX
Amarillo, TX
Fort Stockton, TX
Lubbock, TX
Marfa, TX
Midland, TX
Pecos, TX
Presidio, TX
Sanderson, TX
Sierra Blanca, TX
Van Horn, TX
Sector No. 17--Del Rio, Texas
Abilene, TX
Brackettville, TX
Carrizo Springs, TX
Comstock, TX
Del Rio, TX
Eagle Pass, TX
Llano, TX
Rocksprings, TX
San Angelo, TX
Uvalde, TX
Sector No. 18--Laredo, Texas
Cotulla, TX
Dallas, TX
Freer, TX
Hebbronville, TX
Laredo North, TX
Laredo South, TX
San Antonio, TX
Zapata, TX
Sector No. 19--McAllen, Texas
Brownsville, TX
Corpus Christi, TX
Falfurrias, TX
Harlingen, TX
Kingsville, TX
McAllen, TX
Mercedes, TX
Port Isabel, TX
Rio Grande City, TX
Sector No. 20--New Orleans, Louisiana
Baton Rouge, LA
Gulfport, MS
Lake Charles, LA
Little Rock, AR
Miami, OK
Mobile, AL
New Orleans, LA
Sector No. 21--Miami, Florida
Jacksonville, FL
Orlando, FL
Pembroke Pines, FL
Tampa, FL
West Palm Beach, FL
(e) Service centers. Service centers are situated at the following
locations:
Texas Service Center, Dallas, Texas
Nebraska Service Center, Lincoln, Nebraska
California Service Center, Laguna Niguel, California
Vermont Service Center, St. Albans, Vermont
Missouri Service Center, Lee's Summit, Missouri
(f) Asylum offices--(1) Newark, New Jersey. The Asylum Office in
Lyndhurst has jurisdiction over the State of New York within the
boroughs of Manhattan and the Bronx in the City of New York; the Albany
Suboffice; jurisdiction of the Buffalo District Office; the State of
Pennsylvania, excluding the jurisdiction of the Pittsburgh Suboffice;
and the States of Connecticut, Delaware, Maine, Massachusetts, New
Hampshire, New Jersey, Rhode Island, and Vermont.
(2) New York City, New York. The Asylum Office in New York has
jurisdiction over the State of New York excluding the jurisdiction of
the Albany Suboffice, the Buffalo District Office and the boroughs of
Manhattan and the Bronx.
(3) Arlington, Virginia. The Asylum Office in Arlington has
jurisdiction over the District of Columbia, the western portion of the
State of Pennsylvania currently within the jurisdiction of the
Pittsburgh Suboffice, and the States of Maryland, Virginia, West
Virginia, North Carolina, Georgia, Alabama, and South Carolina.
(4) Miami, Florida. The Asylum Office in Miami has jurisdiction over
the State of Florida, the Commonwealth of Puerto Rico, and the United
States Virgin Islands.
(5) Houston, Texas. The Asylum Office in Houston has jurisdiction
over the States of Louisiana, Arkansas, Mississippi, Tennessee, Texas,
Oklahoma, New Mexico, Colorado, Utah, and Wyoming.
(6) Chicago, Illinois. The Asylum Office in Chicago has jurisdiction
over the States of Illinois, Indiana, Michigan, Wisconsin, Minnesota,
North Dakota, South Dakota, Kansas, Missouri,
[[Page 30]]
Ohio, Iowa, Nebraska, Montana, Idaho, and Kentucky.
(7) Los Angeles, California. The Asylum Office in Los Angeles has
jurisdiction over the States of Arizona, the southern portion of
California as listed in Sec. 100.4(b)(16) and Sec. 100.4(b)(39),
Hawaii, the southern portion of Nevada currently within the jurisdiction
of the Las Vegas Suboffice, and the Territory of Guam.
(8) San Francisco, California. The Asylum Office in San Francisco
has jurisdiction over the northern part of California as listed in Sec.
100.4(b)(13), the portion of Nevada currently under the jurisdiction of
the Reno Suboffice, and the States of Alaska, Oregon, and Washington.
[60 FR 57166, Nov. 14, 1995, as amended at 61 FR 25778, May 23, 1996; 63
FR 70315, Dec. 21, 1998; 65 FR 39072, June 23, 2000; 66 FR 29672, June
1, 2001]
Sec. 100.5 Regulations.
The regulations of the Immigration and Naturalization Service,
published as chapter I of title 8 of the Code of Federal Regulations,
contain information which under the provisions of section 552 of title 5
of the United States Code, is required to be published and is subdivided
into subchapter A (General Provisions, parts 1 through 3, inclusive),
subchapter B (Immigration Regulations, parts 100 through 299,
inclusive), and subchapter C (Nationality Regulations, parts 306 through
499, inclusive). Any person desiring information with respect to a
particular procedure (other than rule making) under the Immigration and
Nationality Act should examine the part or section in chapter I of title
8 of the Code of Federal Regulations dealing with such procedures as
well as the section of the Act implemented by such part or section.
Sec. 100.6 Rule making.
Section 103(a) of the Immigration and Nationality Act requires the
Attorney General to establish such regulations as he deems necessary for
carrying out his authority under the provisions of that Act. The
Attorney General has delegated certain rule making authority to the
Commissioner of Immigration and Naturalization. The provisions of the
Federal Register Act (49 Stat. 500; 44 U.S.C. 301-314), as amended, and
of the regulations thereunder (1 CFR--Administrative Committee of the
Federal Register) as well as the provisions of section 553 of title 5 of
the United States Code governing the issuance of regulations are
observed.
Sec. 100.7 OMB control numbers assigned to information collections.
This section collects and displays the control numbers assigned to
information collection requirements of the Immigration and
Naturalization Service by the Office of Management and Budget (OMB)
pursuant to the Paperwork Reduction Act of 1980, Public Law 96-511. The
Service intends that this section comply with the requirements of
section 3507(f) of the Paperwork Reduction Act, which requires that
agencies display a current control number assigned by the Director of
the Office of Management and Budget for each agency information
collection requirement.
------------------------------------------------------------------------
Current OMB
8 CFR part or section where identified and described control No.
------------------------------------------------------------------------
103.2(b)(1)................................................ 1115-0062
103.6...................................................... 1115-0085
103.6(c)................................................... 1115-0046
103.10(a)(2)............................................... 1115-0087
103.10(f).................................................. 1115-0088
204.1(a)................................................... 1115-0054
204.1(b)................................................... 1115-0049
204.1(c)................................................... 1115-0061
Part 207................................................... 1115-0057
207.2...................................................... 1115-0066
207.2(d)................................................... 1115-0056
207.3(b)................................................... 1115-0098
Part 208................................................... 1115-0086
211.1(b)(3)................................................ 1115-0042
211.2...................................................... 1115-0042
212.1(f)................................................... 1115-0042
212.2...................................................... 1115-0106
212.3...................................................... 1115-0032
212.4(b)................................................... 1115-0028
212.4(g)................................................... 1115-0040
212.6...................................................... 1115-0019
212.6...................................................... 1115-0047
212.7...................................................... 1115-0048
212.7(c)................................................... 1115-0059
212.8(b)................................................... 1115-0081
214.1...................................................... 1115-0051
214.1(c)................................................... 1115-0093
214.2(e)................................................... 1115-0023
214.2(f)................................................... 1115-0060
214.2(f)................................................... 1115-0051
214.2(g)................................................... 1115-0090
214.2(h)................................................... 1115-0038
214.2(k)................................................... 1115-0071
214.2(l)................................................... 1115-0038
214.2(m)................................................... 1115-0060
214.2(m)................................................... 1115-0051
214.3...................................................... 1115-0070
214.3(g)................................................... 1115-0051
[[Page 31]]
Part 223................................................... 1115-0005
Part 223a.................................................. 1115-0084
223.1...................................................... 1115-0037
Part 231................................................... 1115-0083
Part 231................................................... 1115-0078
Part 231................................................... 1115-0108
Part 232................................................... 1115-0036
Part 233................................................... 1115-0036
234.2(c)................................................... 1115-0048
Part 235................................................... 1115-0077
235.1(e)................................................... 1115-0065
243.4...................................................... 1115-0055
243.7...................................................... 1115-0043
Part 244................................................... 1115-0025
Part 245................................................... 1115-0053
Part 245................................................... 1115-0066
245.2...................................................... 1115-0089
245.2(a)(2)................................................ 1115-0067
247.11..................................................... 1115-0037
247.12..................................................... 1115-0037
247.13..................................................... 1115-0037
248.3...................................................... 1115-0032
248.3(b)................................................... 1115-0038
248.4...................................................... 1115-0038
Part 249................................................... 1115-0053
Part 249................................................... 1115-0066
Part 250................................................... 1115-0020
Part 251................................................... 1115-0083
Part 251................................................... 1115-0040
Part 252................................................... 1115-0040
252.1(f)................................................... 1115-0073
253.1...................................................... 1115-0029
264.1...................................................... 1115-0004
264.1(c)................................................... 1115-0079
264.1(f)................................................... 1115-0002
265.1...................................................... 1115-0003
292.2...................................................... 1115-0026
316a.21.................................................... 1115-0014
319.11..................................................... 1115-0009
Part 322................................................... 1115-0010
324.11..................................................... 1115-0009
327.1...................................................... 1115-0009
Part 328................................................... 1115-0009
328.3...................................................... 1115-0022
Part 329................................................... 1115-0009
329.2...................................................... 1115-0022
Part 330................................................... 1115-0009
Part 330................................................... 1115-0031
Part 334a.................................................. 1115-0008
334.11..................................................... 1115-0009
334.17..................................................... 1115-0035
335.11..................................................... 1115-0009
336.16a.................................................... 1115-0076
336.16a.................................................... 1115-0052
338.16..................................................... 1115-0030
Part 341................................................... 1115-0018
341.1(b)................................................... 1115-0009
343a.1..................................................... 1115-0015
343b....................................................... 1115-0016
------------------------------------------------------------------------
[48 FR 37201, Aug. 17, 1983]
PART 101_PRESUMPTION OF LAWFUL ADMISSION--Table of Contents
Sec.
101.1 Presumption of lawful admission.
101.2 Presumption of lawful admission; entry under erroneous name or
other errors.
101.3 Creation of record of lawful permanent resident status for person
born under diplomatic status in the United States.
101.4 Registration procedure.
101.5 Special immigrant status for certain G-4 nonimmigrants.
Authority: 8 U.S.C. 1103, 8 CFR part 2.
Sec. 101.1 Presumption of lawful admission.
A member of the following classes shall be presumed to have been
lawfully admitted for permanent residence even though a record of his
admission cannot be found, except as otherwise provided in this section,
unless he abandoned his lawful permanent resident status or subsequently
lost that status by operation of law:
(a) Prior to June 30, 1906. An alien who establishes that he entered
the United States prior to June 30, 1906.
(b) United States land borders. An alien who establishes that, while
a citizen of Canada or Newfoundland, he entered the United States across
the Canadian border prior to October 1, 1906; an alien who establishes
that while a citizen of Mexico he entered the United States across the
Mexican border prior to July 1, 1908; an alien who establishes that,
while a citizen of Mexico, he entered the United States at the port of
Presidio, Texas, prior to October 21, 1918, and an alien for whom a
record of his actual admission to the United States does not exist but
who establishes that he gained admission to the United States prior to
July 1, 1924, pursuant to preexamination at a United States immigration
station in Canada and that a record of such preexamination exists.
(c) Virgin Islands. An alien who establishes that he entered the
Virgin Islands of the United States prior to July 1, 1938, even though a
record of his admission prior to that date exists as a non-immigrant
under the Immigration Act of 1924.
(d) Asiatic barred zone. An alien who establishes that he is of a
race indigenous to, and a native of a country within, the Asiatic zone
defined in section 3 of the Act of February 5, 1917, as amended, that he
was a member of a class of aliens exempted from exclusion by the
provisions of that section, and that he entered the United States prior
to July 1, 1924, provided that a record of his admission exists.
[[Page 32]]
(e) Chinese and Japanese aliens--(1) Prior to July 1, 1924. A
Chinese alien for whom there exists a record of his admission to the
United States prior to July 1, 1924, under the laws and regulations
formerly applicable to Chinese and who establishes that at the time of
his admission he was a merchant, teacher, or student, and his son or
daughter under 21 or wife accompanying or following to join him; a
traveler for curiosity or pleasure and his accompanying son or daughter
under 21 or accompanying wife; a wife of a United States citizen; a
returning laborer; and a person erroneously admitted as a United States
citizen under section 1993 of the Revised Statutes of the United States,
as amended, his father not having resided in the United States prior to
his birth.
(2) On or after July 1, 1924. A Chinese alien for whom there exists
a record of his admission to the United States as a member of one of the
following classes; an alien who establishes that he was readmitted
between July 1, 1924, and December 16, 1943, inclusive, as a returning
Chinese laborer who acquired lawful permanent residence prior to July 1,
1924; a person erroneously admitted between July 1, 1924, and June 6,
1927, inclusive, as a United States citizen under section 1993 of the
Revised Statutes of the United States, as amended, his father not having
resided in the United States prior to his birth; an alien admitted at
any time after June 30, 1924, under section 4 (b) or (d) of the
Immigration Act of 1924; an alien wife of a United States citizen
admitted between June 13, 1930, and December 16, 1943, inclusive, under
section 4(a) of the Immigration Act of 1924; an alien admitted on or
after December 17, 1943, under section 4(f) of the Immigration Act of
1924; an alien admitted on or after December 17, 1943, under section
317(c) of the Nationality Act of 1940, as amended; an alien admitted on
or after December 17, 1943, as a preference or nonpreference quota
immigrant pursuant to section 2 of that act; and a Chinese or Japanese
alien admitted to the United States between July 1, 1924, and December
23, 1952, both dates inclusive, as the wife or minor son or daughter of
a treaty merchant admitted before July 1, 1924, if the husband-father
was lawfully admitted to the United States as a treaty merchant before
July 1, 1924, or, while maintaining another status under which he was
admitted before that date, and his status changed to that of a treaty
merchant or treaty trader after that date, and was maintaining the
changed status at the time his wife or minor son or daughter entered the
United States.
(f) Citizens of the Philippine Islands--(1) Entry prior to May 1,
1934. An alien who establishes that he entered the United States prior
to May 1, 1934, and that he was on the date of his entry a citizen of
the Philippine Islands, provided that for the purpose of petitioning for
naturalization he shall not be regarded as having been lawfully admitted
for permanent residence unless he was a citizen of the Commonwealth of
the Philippines on July 2, 1946.
(2) Entry between May 1, 1934, and July 3, 1946. An alien who
establishes that he entered Hawaii between May 1, 1934, and July 3,
1946, inclusive, under the provisions of the last sentence of section
8(a)(1) of the Act of March 24, 1934, as amended, that he was a citizen
of the Philippine Islands when he entered, and that a record of such
entry exists.
(g) Temporarily admitted aliens. The following aliens who when
admitted expressed an intention to remain in the United States
temporarily or to pass in transit through the United States, for whom
records of admission exist, but who remained in the United States: An
alien admitted prior to June 3, 1921, except if admitted temporarily
under the 9th proviso to section 3 of the Immigration Act of 1917, or as
an accredited official of a foreign government, his suite, family, or
guest, or as a seaman in pursuit of his calling; an alien admitted under
the Act of May 19, 1921, as amended, who was admissible for permanent
residence under that Act notwithstanding the quota limitation's thereof
and his accompanying wife or unmarried son or daughter under 21 who was
admissible for permanent residence under that Act notwithstanding the
quota limitations thereof; and an alien admitted under the Act of May
19, 1921, as amended, who was charged under that Act to the proper quota
at the time of his admission or subsequently and who remained so
charged.
[[Page 33]]
(h) Citizens of the Trust Territory of the Pacific Islands who
entered Guam prior to December 24, 1952. An alien who establishes that
while a citizen of the Trust Territory of the Pacific Islands he entered
Guam prior to December 24, 1952, by records, such as Service records
subsequent to June 15, 1952, records of the Guamanian Immigration
Service, records of the Navy or Air Force, or records of contractors of
those agencies, and was residing in Guam on December 24, 1952.
(i) Aliens admitted to Guam. An alien who establishes that he was
admitted to Guam prior to December 24, 1952, by records such as Service
rec ords subsequent to June 15, 1952, rec ords of the Guamanian
Immigration Service, records of the Navy or Air Force, or records of
contractors of those agencies; that he was not excludable under the Act
of February 5, 1917, as amended; and that he continued to reside in Guam
until December 24, 1952, and thereafter was not admitted or readmitted
into Guam as a nonimmigrant, provided that the provisions of this
paragraph shall not apply to an alien who was exempted from the contract
laborer provisions of section 3 of the Immigration Act of February 5,
1917, as amended, through the exercise, expressly or impliedly, of the
4th or 9th provisos to section 3 of that act.
(j) Erroneous admission as United States citizens or as children of
citizens. (1)(i) An alien for whom there exists a record of admission
prior to September 11, 1957, as a United States citizen who establishes
that at the time of such admission he was the child of a United States
citizen parent; he was erroneously issued a United States passport or
included in the United States passport of his citizen parent
accompanying him or to whom he was destined; no fraud or
misrepresentation was practiced by him in the issuance of the passport
or in gaining admission; he was otherwise admissible at the time of
entry except for failure to meet visa or passport requirements; and he
has maintained a residence in the United States since the date of
admission, or (ii) an alien who meets all of the foregoing requirements
except that if he were, in fact, a citizen of the United States a
passport would not have been required, or it had been individually
waived, and was erroneously admitted as a United States citizen by a
Service officer. For the purposes of all of the foregoing, the terms
child and parent shall be defined as in section 101(b) of the
Immigration and Nationality Act, as amended.
(2) An alien admitted to the United States before July 1, 1948, in
possession of a section 4(a) 1924 Act nonquota immigration visa issued
in accordance with State Department regulations, including a child of a
United States citizen after he reached the age of 21, in the absence of
fraud or misrepresentation; a member of a naturalized person's family
who was admitted to the United States as a United States citizen or as a
section 4(a) 1924 Act nonquota immigrant on the basis of that
naturalization, unless he knowingly participated in the unlawful
naturalization of the parent or spouse rendered void by cancellation, or
knew at any time prior to his admission to the United States of the
cancellation; and a member of a naturalized person's family who knew at
any time prior to his admission to the United States of the cancellation
of the naturalization of his parent or spouse but was admitted to the
United States as a United States citizen pursuant to a State Department
or Service determination based upon a then prevailing administrative
view, provided the State Department or Service knew of the cancellation.
[23 FR 9119, Nov. 26, 1958, as amended at 24 FR 2583, Apr. 3, 1959; 24
FR 6476, Aug. 12, 1959; 25 FR 581, Jan. 23, 1960; 31 FR 535, Jan. 15,
1966]
Sec. 101.2 Presumption of lawful admission; entry under erroneous
name or other errors.
An alien who entered the United States as either an immigrant or
nonimmigrant under any of the following circumstances shall be regarded
as having been lawfully admitted in such status, except as otherwise
provided in this part: An alien otherwise admissible whose entry was
made and recorded under other than his full true and correct name or
whose entry record contains errors in recording sex, names of relatives,
or names of foreign
[[Page 34]]
places of birth or residence, provided that he establishes by clear,
unequivocal, and convincing evidence that the record of the claimed
admission relates to him, and, if entry occurred on or after May 22,
1918, if under other than his full, true and correct name that he also
establishes that the name was not adopted for the purpose of concealing
his identity when obtaining a passport or visa, or for the purpose of
using the passport or visa of another person or otherwise evading any
provision of the immigration laws, and that the name used at the time of
entry was one by which he had been known for a sufficient length of time
prior to making application for a passport or visa to have permitted the
issuing authority or authorities to have made any necessary
investigation concerning him or that his true identity was known to such
officials.
[32 FR 9622, July 4, 1967]
Sec. 101.3 Creation of record of lawful permanent resident status
for person born under diplomatic status in the United States.
(a) Person born to foreign diplomat--(1) Status of person. A person
born in the United States to a foreign diplomatic officer accredited to
the United States, as a matter of international law, is not subject to
the jurisdiction of the United States. That person is not a United
States citizen under the Fourteenth Amendment to the Constitution. Such
a person may be considered a lawful permanent resident at birth.
(2) Definition of foreign diplomatic officer. Foreign diplomatic
officer means a person listed in the State Department Diplomatic List,
also known as the Blue List. It includes ambassadors, ministers,
charg[eacute]s d'affaires, counselors, secretaries and attach[eacute]s
of embassies and legations as well as members of the Delegation of the
Commission of the European Communities. The term also includes
individuals with comparable diplomatic status and immunities who are
accredited to the United Nations or to the Organization of American
States, and other individuals who are also accorded comparable
diplomatic status.
(b) Child born subject to the jurisdiction of the United States. A
child born in the United States is born subject to the jurisdiction of
the United States and is a United States citizen if the parent is not a
``foreign diplomatic officer'' as defined in paragraph (a)(2) of this
section. This includes, for example, a child born in the United States
to one of the following foreign government officials or employees:
(1) Employees of foreign diplomatic missions whose names appear in
the State Department list entitled ``Employees of Diplomatic Missions
Not Printed in the Diplomatic List,'' also known as the White List;
employees of foreign diplomatic missions accredited to the United
Nations or the Organization of American States; or foreign diplomats
accredited to other foreign states. The majority of these individuals
enjoy certain diplomatic immunities, but they are not ``foreign
diplomatic officers'' as defined in paragraph (a)(2) of this section.
The immunities, if any, of their family members are derived from the
status of the employees or diplomats.
(2) Foreign government employees with limited or no diplomatic
immunity such as consular officials named on the State Department list
entitled ``Foreign Consular Officers in the United States'' and their
staffs.
(c) Voluntary registration as lawful permanent resident of person
born to foreign diplomat. Since a person born in the United States to a
foreign diplomatic officer is not subject to the jurisdiction of the
United States, his/her registration as a lawful permanent resident of
the United States is voluntary. The provisions of section 262 of the Act
do not apply to such a person unless and until that person ceases to
have the rights, privileges, exemptions, or immunities which may be
claimed by a foreign diplomatic officer.
(d) Retention of lawful permanent residence. To be eligible for
lawful permanent resident status under paragraph (a) of this section, an
alien must establish that he/she has not abandoned his/her residence in
the United States. One of the tests for retention of lawful permanent
resident status is continuous residence, not continuous physical
presence, in the United States. Such a person will not be considered to
have abandoned his/her residence in the
[[Page 35]]
United States solely by having been admitted to the United States in a
nonimmigrant classification under paragraph (15)(A) or (15)(G) of
section 101(a) of the Act after a temporary stay in a foreign country or
countries on one or several occasions.
(Secs. 101(a)(20), 103, 262, 264 of the Immigration and Nationality Act,
as amended; 8 U.S.C. 1101(a)(20), 1103, 1302, 1304)
[47 FR 940, Jan. 8, 1982]
Sec. 101.4 Registration procedure.
The procedure for an application for creation of a record of lawful
permanent residence and a Permanent Resident Card, Form I-551, for a
person eligible for presumption of lawful admission for permanent
residence under Sec. 101.1 or Sec. 101.2 or for lawful permanent
residence as a person born in the United States to a foreign diplomatic
officer under Sec. 101.3 is described in Sec. 264.2 of this chapter.
(Secs. 101(a)(20), 103, 262, 264 of the Immigration and Nationality Act,
as amended; 8 U.S.C. 1101(a)(20), 1103, 1302, 1304)
[47 FR 941, Jan. 8, 1982, as amended at 63 FR 70315, Dec. 21, 1998]
Sec. 101.5 Special immigrant status for certain G-4 nonimmigrants.
(a) Application. An application for adjustment to special immigrant
status under section 101(a)(27)(I) of the INA shall be made on Form I-
485. The application date of the I-485 shall be the date of acceptance
by the Service as properly filed. If the application date is other than
the fee receipt date it must be noted and initialed by a Service
officer. The date of application for adjustment of status is the closing
date for computing the residence and physical presence requirement. The
applicant must have complied with all requirements as of the date of
application.
(b) Documentation. All documents must be submitted in accordance
with Sec. 103.2(b) of this chapter. The application shall be
accompanied by documentary evidence establishing the aggregate residence
and physical presence required. Documentary evidence may include
official employment verification, records of official or personnel
transactions or recordings of events occurring during the period of
claimed residence and physical presence. Affidavits of credible
witnesses may also be accepted. Persons unable to furnish evidence in
their own names may furnish evidence in the names of parents or other
persons with whom they have been living, if affidavits of the parents or
other persons are submitted attesting to the claimed residence and
physical presence. The claimed family relationship to the principle G-4
international organization officer or employee must be substantiated by
the submission of verifiable civil documents.
(c) Residence and physical presence requirements. All applicants
applying under sections 101(a)(27)(I) (i), (ii), and (iii) of the INA
must have resided and been physically present in the United States for a
designated period of time.
For purposes of this section only, an absence from the United States
to conduct official business on behalf of the employing organization, or
approved customary leave shall not be subtracted from the aggregated
period of required residence or physical presence for the current or
former G-4 officer or employee or the accompanying spouse and unmarried
sons or daughters of such officer or employee, provided residence in the
United States is maintained during such absences, and the duty station
of the principle G-4 nonimmigrant continues to be in the United States.
Absence from the United States by the G-4 spouse or unmarried son or
daughter without the principle G-4 shall not be subtracted from the
aggregate period of residence and physical presence if on customary
leave as recognized by the international organization employer. Absence
by the unmarried son or daughter while enrolled in a school outside the
United States will not be counted toward the physical presence
requirement.
(d) Maintenance of nonimmigrant status. Section 101(a)(27)(I) (i),
and (ii) requires the applicant to accrue the required period of
residence and physical presence in the United States while maintaining
status as a G-4 or N nonimmigrant. Section 101(a)(27)(I)(iii) requires
such time accrued only in G-4 nonimmigrant status.
[[Page 36]]
Maintaining G-4 status for this purpose is defined as maintaining
qualified employment with a ``G'' international organization or
maintaining the qualifying family relationship with the G-4
international organization officer or employee. Maintaining status as an
N nonimmigrant for this purpose requires the qualifying family
relationship to remain in effect. Unauthorized employment will not
remove an otherwise eligible alien from G-4 status for residence and
physical presence requirements, provided the qualifying G-4 status is
maintained.
[54 FR 5927, Feb. 7, 1989]
PART 103_POWERS AND DUTIES; AVAILABILITY OF RECORDS--Table of Contents
Sec.
103.1 Delegations of authority; designation of immigration officers.
103.2 Applications, petitions, and other documents.
103.3 Denials, appeals, and precedent decisions.
103.4 Certifications.
103.5 Reopening or reconsideration.
103.5a Service of notification, decisions, and other papers by the
Service.
103.5b Application for further action on an approved application or
petition.
103.6 Surety bonds.
103.7 Fees.
103.8 Definitions pertaining to availability of information under the
Freedom of Information Act.
103.9 Availability of decisions and interpretive material under the
Freedom of Information Act.
103.10 Requests for records under the Freedom of Information Act.
103.11 Business information.
103.12 Definition of the term ``lawfully present'' aliens for purposes
of applying for Title II Social Security benefits under Public
Law 104-193.
103.20 Purpose and scope.
103.21 Access by individuals to records maintained about them.
103.22 Records exempt in whole or in part.
103.23 Special access procedures.
103.24 Requests for accounting of record disclosure.
103.25 Notice of access decisions; time limits.
103.26 Fees for copies of records.
103.27 Appeals from denials of access.
103.28 Requests for correction of records.
103.29 Records not subject to correction.
103.30 Accounting for disclosures.
103.31 Notices of subpoenas and emergency disclosures.
103.32 Information forms.
103.33 Contracting record systems.
103.34 Security of records systems.
103.35 Use and collection of Social Security numbers.
103.36 Employee standards of conduct with regard to privacy.
103.37 Precedent decisions.
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356;
31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.);
E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
Source: 40 FR 44481, Sept. 26, 1975, unless otherwise noted.
Sec. 103.1 Delegations of authority; designation of immigration officers.
(a) Delegations of authority. Delegations of authority to perform
functions and exercise authorities under the immigration laws may be
made by the Secretary of Homeland Security as provided by Sec. 2.1 of
this chapter.
(b) Immigration Officer. The following employees of the Department
of Homeland Security, including senior or supervisory officers of such
employees, are designated as immigration officers authorized to exercise
the powers and duties of such officer as specified by the Act and this
chapter I: Immigration officer, immigration inspector, immigration
examiner, adjudications officer, Border Patrol agent, aircraft pilot,
airplane pilot, helicopter pilot, deportation officer, detention
enforcement officer, detention officer, investigator, special agent,
investigative assistant, immigration enforcement agent, intelligence
officer, intelligence agent, general attorney (except with respect to
CBP, only to the extent that the attorney is performing any immigration
function), applications adjudicator, contact representative,
legalization adjudicator, legalization officer, legalization assistant,
forensic document analyst, fingerprint specialist, immigration
information officer, immigration agent (investigations), asylum officer,
other officer or employee of the Department of Homeland Security or of
the United States as designated by the Secretary of Homeland Security as
provided in Sec. 2.1 of this chapter.
68 FR 10923, Mar. 6, 2003, as amended at 68 FR 35275, June 13, 2003]
[[Page 37]]
Sec. 103.2 Applications, petitions, and other documents.
(a) Filing--(1) General. Every application, petition, appeal,
motion, request, or other document submitted on the form prescribed by
this chapter shall be executed and filed in accordance with the
instructions on the form, such instructions (including where an
application or petition should be filed) being hereby incorporated into
the particular section of the regulations in this chapter requiring its
submission. The form must be filed with the appropriate filing fee
required by Sec. 103.7. Except as exempted by paragraph (e) of this
section, forms which require an applicant, petitioner, sponsor,
beneficiary, or other individual to complete Form FD-258, Applicant
Card, must also be filed with the service fee for fingerprinting, as
required by Sec. 103.7(b)(1), for each individual who requires
fingerprinting. Filing fees and fingerprinting service fees are non-
refundable and, except as otherwise provided in this chapter, must be
paid when the application is filed.
(2) Signature. An applicant or petitioner must sign his or her
application or petition. However, a parent or legal guardian may sign
for a person who is less than 14 years old. A legal guardian may sign
for a mentally incompetent person. By signing the application or
petition, the applicant or petitioner, or parent or guardian certifies
under penalty of perjury that the application or petition, and all
evidence submitted with it, either at the time of filing or thereafter,
is true and correct. Unless otherwise specified in this chapter, an
acceptable signature on an application or petition that is being filed
with the BCIS is one that is either handwritten or, for applications or
petitions filed electronically as permitted by the instructions to the
form, in electronic format.
(3) Representation. An applicant or petitioner may be represented by
an attorney in the United States, as defined in Sec. 1.1(f) of this
chapter, by an attorney outside the United States as defined in Sec.
292.1(a)(6) of this chapter, or by an accredited representative as
defined in Sec. 292.1(a)(4) of this chapter. A beneficiary of a
petition is not a recognized party in such a proceeding. An application
or petition presented in person by someone who is not the applicant or
petitioner, or his or her representative as defined in this paragraph,
shall be treated as if received through the mail, and the person advised
that the applicant or petitioner, and his or her representative, will be
notified of the decision. Where a notice of representation is submitted
that is not properly signed, the application or petition will be
processed as if the notice had not been submitted.
(4) Oath. Any required oath may be administered by an immigration
officer or person generally authorized to administer oaths, including
persons so authorized by Article 136 of the Uniform Code of Military
Justice.
(5) Translation of name. If a document has been executed in an
anglicized version of a name, the native form of the name may also be
required.
(6) Where to file. Except as otherwise provided in this chapter, an
application or petition should be filed with the 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 or part
245a of this chapter, shall be regarded as properly filed when so
stamped, if it is signed and executed and the required filing fee is
attached or a waiver of the filing fee is granted. An application or
petition which is not properly signed or is submitted with the wrong
filing fee shall be rejected as improperly filed. Rejected applications
and petitions, and ones in which the check or other financial instrument
used to pay the filing fee is subsequently returned as non-payable will
not retain a filing date. An application or petition taken to a local
Service office for the completion of biometric information prior to
filing at a Service Center shall be considered received when physically
received at a Service Center.
(ii) Non-payment. If a check or other financial instrument used to
pay a filing fee is subsequently returned as not
[[Page 38]]
payable, the remitter shall be notified and requested to pay the filing
fee and associated service charge within 14 calendar days, without
extension. If the application or petition is pending and these charges
are not paid within 14 days, the application or petition shall be
rejected as improperly filed. If the application or petition was already
approved, and these charges are not paid, the approval shall be
automatically revoked because it was improperly field. If the
application or petition was already denied, revoked, or abandoned, that
decision will not be affected by the non-payment of the filing or
fingerprinting fee. New fees will be required with any new application
or petition. Any fee and service charges collected as the result of
collection activities or legal action on the prior application or
petition shall be used to cover the cost of the previous rejection,
revocation, or other action.
(b) Evidence and processing--(1) 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 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
[[Page 39]]
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, a sponsor, a
beneficiary, or other individual residing in the United States at the
time of filing an application or petition may be required to appear for
fingerprinting or for an interview. A petitioner shall also be notified
when a fingerprinting notice or an interview notice is mailed or issued
to a beneficiary, sponsor, or other individual. The applicant,
petitioner, sponsor, beneficiary, or other individual may appear as
requested by the Service, or prior to the dates and
[[Page 40]]
times for fingerprinting or of the date and time of interview:
(i) The individual to be fingerprinted or interviewed may, for good
cause, request that the fingerprinting or interview be rescheduled; or
(ii) The applicant or petitioner may withdraw the application or
petition.
(10) Effect of a request for initial or additional evidence for
fingerprinting or interview rescheduling--(i) Effect on processing. The
priority date of a properly filed petition shall not be affected by a
request for missing initial evidence or request for other evidence. If
an application or petition is missing required initial evidence, or an
applicant, petitioner, sponsor, beneficiary, or other individual who
requires fingerprinting requests that the fingerprinting appointment or
interview be rescheduled, any time period imposed on Service processing
will start over from the date of receipt of the required initial
evidence or request for fingerprint or 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 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.
(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 an
individual requested to appear for fingerprinting or for an interview
does not appear, the Service does not receive his or her request for
rescheduling by the date of the fingerprinting appointment or 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. Where an applicant or
petitioner does not submit all requested additional evidence and
requests a decision based on the evidence already submitted, a decision
shall be issued based on the record. Failure to submit requested
evidence which precludes a material line of inquiry shall be grounds for
denying the application or petition. Failure to appear for required
fingerprinting or for a required interview, or to give required
testimony, shall result in the denial of the related application or
petition.
(15) Effect of withdrawal or denial due to abandonment. The
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
[[Page 41]]
the filing of a new application or petition with a new fee. However, the
priority or processing date of a withdrawn or abandoned application or
petition may not be applied to a later application petition. Withdrawal
or denial due to abandonment shall not itself affect the new proceeding;
but the facts and circumstances surrounding the prior application or
petition shall otherwise be material to the new application or petition.
(16) Inspection of evidence. An applicant or petitioner shall be
permitted to inspect the record of proceeding which constitutes the
basis for the decision, except as provided in the following paragraphs.
(i) Derogatory information unknown to petitioner or applicant. If
the decision will be adverse to the applicant or petitioner and is based
on derogatory information considered by the Service and of which the
applicant or petitioner is unaware, he/she shall be advised of this fact
and offered an opportunity to rebut the information and present
information in his/her own behalf before the decision is rendered,
except as provided in paragraphs (b)(16)(ii), (iii), and (iv) of this
section. Any explanation, rebuttal, or information presented by or in
behalf of the applicant or petitioner shall be included in the record of
proceeding.
(ii) Determination of statutory eligibility. A determination of
statutory eligibility shall be based only on information contained in
the record of proceeding which is disclosed to the applicant or
petitioner, except as provided in paragraph (b)(16)(iv) of this section.
(iii) Discretionary determination. Where an application may be
granted or denied in the exercise of discretion, the decision to
exercise discretion favorably or unfavorably may be based in whole or in
part on classified information not contained in the record and not made
available to the applicant, provided the 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, Permanent Resident
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
[[Page 42]]
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.
(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
[[Page 43]]
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 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--(1) General. Service regulations in this
chapter, including the instructions to benefit applications and
petitions, require certain applicants, petitioners, beneficiaries,
sponsors, and other individuals to be fingerprinted on Form FD-258,
Applicant Card, for the purpose of conducting criminal background
checks. On and after December 3, 1997, the Service will accept Form FD-
258, Applicant Card, only if prepared by a Service office, a registered
State or local law enforcement agency designated by a cooperative
agreement with the Service to provide fingerprinting services (DLEA), a
United States consular office at United States embassies and consulates,
or a United States military installation abroad.
(2) Fingerprinting individuals residing in the United States.
Beginning on December 3, 1997, for naturalization applications, and on
March 29, 1998, for all other applications and petitions, applications
and petitions for immigration benefits shall be filed as prescribed in
this chapter, without completed Form FD-258, Applicant Card. After the
filing of an application or petion, the Service will issue a notice to
all individuals who require fingerprinting and who are residing in the
United States, as defined in section 101(a)(38) of the Act, and request
their appearance for fingerprinting at a Service office or other
location designated by the Service, to complete Form FD-258, Applicant
Card, as prescribed in paragraph (b)(9) of this section.
(3) Fingerprinting individuals residing abroad. Individuals who
require fingerprinting and whose place of residence is outside of the
United States, must submit a properly completed Form FD-258, Applicant
Card, at the time of filing the application or petition for immigration
benefits. In the case of individuals who reside abroad, a properly
completed Form FD-258, Applicant Card, is one prepared by the Service, a
United States consular office at a United States embassy or consulate or
a United States military installation abroad. If an individual who
requires fingerprinting and is residing abroad fails to submit a
properly completed Form FD-258, Applicant Card, at the time of filing an
application or petition, the Service will issue a notice to the
individual requesting submission of a properly completed Form FD-258,
Applicant Card. The applicant or petitioner will also be notified of the
request for submission of a properly completed Form FD-258, Applicant
Card. Failure to submit a properly completed Form FD-258, Applicant
Card, in response to such a request within the time allotted in the
notice will result in denial of the application or petition for failure
to submit a properly completed Form FD-258, Applicant Card. There is no
appeal from denial of an application or petition for failure to submit a
properly completed Form FD-258, Applicant Card. A motion to re-open an
application or petition denied for failure to submit a properly
completed Form FD-258, Applicant Card, will be granted only on proof
that:
(i) A properly completed Form FD-258, Applicant Card, was submitted
at the time of filing the application or petition;
(ii) A properly completed Form FD-258, Applicant Card, was submitted
in response to the notice within the time allotted in the notice; or
[[Page 44]]
(iii) The notice was sent to an address other than the address on
the application or petition, or the notice of representation, or that
the applicant or petitioner notified the Service, in writing, of a
change of address or change of representation subsequent to filing and
before the notice was sent and the Service's notice was not sent to the
new address.
(4) Submission of service fee for fingerprinting--(i) General. The
Service will charge a fee, as prescribed in Sec. 103.7(b)(1), for
fingerprinting at a Service office or a registered State or local law
enforcement agency designated by a cooperative agreement with the
Service to provide fingerprinting services. Applications and petitions
for immigration benefits shall be submitted with the service fee for
fingerprinting for all individuals who require fingerprinting and who
reside in the United States at the time of filing the application or
petition.
(ii) Exemptions--(A) Individual residing abroad. Individuals who
require fingerprinting and who reside outside of the United States at
the time of filing an application or petition for immigration benefits
are exempt from the requirement to submit the service fee for
fingerprinting with the application or petition for immigration
benefits.
(B) Asylum applicants. Asylum applicants are exempt from the
requirement to submit the service fee for fingerprinting with the
application for asylum.
(iii) Insufficient service fee for fingerprinting; incorrect fees.
Applications and petitions for immigration benefits received by the
Service without the correct service fee for fingerprinting will not be
rejected as improperly filed, pursuant to paragraph (a)(7)(i) of this
section. However, the application or petition will not continue
processing and the Service will not issue a notice requesting appearance
for fingerprinting to the individuals who require fingerprinting until
the correct service fee for fingerprinting has been submitted. The
Service will notify the remitter of the filing fee for the application
or petition of the additional amount required for the fingerprinting
service fee and request submission of the correct fee. The Service will
also notify the applicant or petitioner, and, when appropriate, the
applicant or petitioner's representative, as defined in paragraph (a)(3)
of this section, of the deficiency. Failure to submit the correct fee
for fingerprinting in response to a notice of deficiency within the time
allotted in the notice will result in denial of the application or
petition for failure to submit the correct service fee for
fingerprinting. There is no appeal from the denial of an application or
petition for failure to submit the correct service fee for
fingerprinting. A motion to re-open an application or petition denied
for failure to submit the correct service fee for fingerprinting will be
granted only on proof that:
(A) The correct service fee for fingerprinting was submitted at the
time of filing the application or petition;
(B) The correct service fee for fingerprinting was submitted in
response to the notice of deficiency within the time allotted in the
notice; or
(C) The notice of deficiency was sent to an address other than the
address on the application or petition, or the notice of representation,
or that the applicant or petitioner notified the Service, in writing, of
a change of address or change of representation subsequent to filing and
before the notice of deficiency was sent and the Service's notice of
deficiency was not sent to the new address.
(iv) Non-payment of service fee for fingerprinting. If a check or
other financial instrument used to pay a service fee for fingerprinting
is subsequently returned as not payable, the remitter shall be notified
and requested to pay the correct service fee for fingerprinting and any
associated service charges within 14 calendar days. The Service will
also notify the applicant or petitioner and, when appropriate, the
applicant or petitioner's representative as defined in paragraph (a)(3)
of this section, of the non-payment and request to pay. If the correct
service fee for fingerprinting and associated service charges are not
paid within 14 calendar days, the application or petition will be denied
for failure to submit the correct service fee for fingerprinting.
[[Page 45]]
(f) Requests for Premium Processing Service--(1) Filing information.
A petitioner or applicant requesting Premium Processing Service shall
submit Form I-907, with the appropriate fee to the Director of the
service center having jurisdiction over the application or petition.
Premium Processing Service guarantees 15 calendar day processing of
certain employment-based petitions and applications. The 15 calendar day
processing period begins when the Service receives Form I-907, with fee,
at the designated address contained in the instructions to the form. The
Service will refund the fee for Premium Processing Service, but continue
to process the case, unless within 15 calendar days of receiving the
application or petition and Form I-907, issues and serves on the
petitioner or applicant an approval notice, a notice of intent to deny,
a request for evidence, or opens an investigation relating to the
application or petition for fraud or misrepresentation.
(2) Applications and petitions eligible for Premium Processing
Service. The Service will designate and terminate petitions and
applications as eligible for Premium Processing Service by publication
of notices in the Federal Register.
(3) Fees for Premium Processing Services. The fee for Premium
Processing Service may not be waived. The fee for Premium Processing
Service is in addition to all other filing fees for the application or
petition as provided for in Sec. 103.7. A separate remittance must be
submitted for the filing fee for Form I-907. If the Service fails to
process a petition or application with the 15 calendar day period, the
fee for Premium Processing Services will be automatically refunded to
the petitioner or applicant, and the Service will continue to process
the application/petition on the premium processing track.
(4) Temporary termination of Premium Processing Service. The Service
may designate as eligible for Premium Processing Service certain
petitions or applications filed on behalf of nonimmigrant aliens that
are subject to annual numerical limitations. In order to ensure
equitable access to these limited visa programs, the Service may
temporarily terminate the availability of Premium Processing Service for
certain petitions or applications. The Service will announce a temporary
termination by publication of a notice in the Federal Register. Upon
temporary termination of a classification the petition or application
will not be rejected. Instead, the petition or application will be moved
into the pool of normal processing cases and only the Form I-907 will be
rejected and the Fee for Form I-907 will be returned to the applicant or
petitioner.
[29 FR 11956, Aug. 21, 1964]
Editorial Note: For Federal Register citations affecting Sec.
103.2, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 103.3 Denials, appeals, and precedent decisions.
(a) Denials and appeals--(1) General--(i) Denial of application or
petition. When a Service officer denies an application or petition filed
under Sec. 103.2 of this part, the officer shall explain in writing the
specific reasons for denial. If Form I-292 (a denial form including
notification of the right of appeal) is used to notify the applicant or
petitioner, the duplicate of Form I-292 constitutes the denial order.
(ii) Appealable decisions. Certain unfavorable decisions on
applications, petitions, and other types of cases may be appealed.
Decisions under the appellate jurisdiction of the Board of Immigration
Appeals (Board) are listed in Sec. 3.1(b) of this chapter. Decisions
under the appellate jurisdiction of the Associate Commissioner,
Examinations, are listed in Sec. 103.1(f)(2) of this part.
(iii) Appeal--(A) Jurisdiction. When an unfavorable decision may be
appealed, the official making the decision shall state the appellate
jurisdiction and shall furnish the appropriate appeal form.
(B) Meaning of affected party. For purposes of this section and
Sec. Sec. 103.4 and 103.5 of this part, affected party (in addition to
the Service) means the person or entity with legal standing in a
proceeding. It does not include the beneficiary of a visa petition. An
affected party may be represented by an attorney or representative in
accordance with part 292 of this chapter.
[[Page 46]]
(C) Record of proceeding. An appeal and any cross-appeal or briefs
become part of the record of proceeding.
(D) Appeal filed by Service officer in case within jurisdiction of
Board. If an appeal is filed by a Service officer, a copy must be served
on the affected party.
(iv) Function of Administrative Appeals Unit (AAU). The AAU is the
appellate body which considers cases under the appellate jurisdiction of
the Associate Commissioner, Examinations.
(v) Summary dismissal. An officer to whom an appeal is taken shall
summarily dismiss any appeal when the party concerned fails to identify
specifically any erroneous conclusion of law or statement of fact for
the appeal. The filing by an attorney or representative accredited under
8 CFR 292.2(d) of an appeal which is summarily dismissed under this
section may constitute frivolous behavior as defined in 8 CFR
292.3(a)(15). Summary dismissal of an appeal under Sec. 103.3(a)(1)(v)
in no way limits the other grounds and procedures for disciplinary
action against attorneys or representatives provided in 8 CFR 292.2 or
in any other statute or regulation.
(2) AAU appeals in other than special agricultural worker and
legalization cases--(i) Filing appeal. The affected party shall file an
appeal on Form I-290B. Except as otherwise provided in this chapter, the
affected party must pay the fee required by Sec. 103.7 of this part.
The affected party shall file the complete appeal including any
supporting brief with the office where the unfavorable decision was made
within 30 days after service of the decision.
(ii) Reviewing official. The official who made the unfavorable
decision being appealed shall review the appeal unless the affected
party moves to a new jurisdiction. In that instance, the official who
has jurisdiction over such a proceeding in that geographic location
shall review it.
(iii) Favorable action instead of forwarding appeal to AAU. The
reviewing official shall decide whether or not favorable action is
warranted. Within 45 days of receipt of the appeal, the reviewing
official may treat the appeal as a motion to reopen or reconsider and
take favorable action. However, that official is not precluded from
reopening a proceeding or reconsidering a decision on his or her own
motion under Sec. 103.5(a)(5)(i) of this part in order to make a new
decision favorable to the affected party after 45 days of receipt of the
appeal.
(iv) Forwarding appeal to AAU. If the reviewing official will not be
taking favorable action or decides favorable action is not warranted,
that official shall promptly forward the appeal and the related record
of proceeding to the AAU in Washington, DC.
(v) Improperly filed appeal--(A) Appeal filed by person or entity
not entitled to file it--(1) Rejection without refund of filing fee. An
appeal filed by a person or entity not entitled to file it must be
rejected as improperly filed. In such a case, any filing fee the Service
has accepted will not be refunded.
(2) Appeal by attorney or representative without proper Form G-28--
(i) General. If an appeal is filed by an attorney or representative
without a properly executed Notice of Entry of Appearance as Attorney or
Representative (Form G-28) entitling that person to file the appeal, the
appeal is considered improperly filed. In such a case, any filing fee
the Service has accepted will not be refunded regardless of the action
taken.
(ii) When favorable action warranted. If the reviewing official
decides favorable action is warranted with respect to an otherwise
properly filed appeal, that official shall ask the attorney or
representative to submit Form G-28 to the official's office within 15
days of the request. If Form G-28 is not submitted within the time
allowed, the official may, on his or her own motion, under Sec.
103.5(a)(5)(i) of this part, make a new decision favorable to the
affected party without notifying the attorney or representative.
(iii) When favorable action not warranted. If the reviewing official
decides favorable action is not warranted with respect to an otherwise
properly filed 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
[[Page 47]]
submits a properly executed Form G-28 entitling that person to file the
appeal.
(B) Untimely appeal--(1) Rejection without refund of filing fee. An
appeal which is not filed within the time allowed must be rejected as
improperly filed. In such a case, any filing fee the Service has
accepted will not be refunded.
(2) Untimely appeal treated as motion. If an untimely appeal meets
the requirements of a motion to reopen as described in Sec. 103.5(a)(2)
of this part or a motion to reconsider as described in Sec. 103.5(a)(3)
of this part, the appeal must be treated as a motion, and a decision
must be made on the merits of the case.
(vi) Brief. The affected party may submit a brief with Form I-290B.
(vii) Additional time to submit a brief. The affected party may make
a written request to the AAU for additional time to submit a brief. The
AAU may, for good cause shown, allow the affected party additional time
to submit one.
(viii) Where to submit supporting brief if additional time is
granted. If the AAU grants additional time, the affected party shall
submit the brief directly to the AAU.
(ix) Withdrawal of appeal. The affected party may withdraw the
appeal, in writing, before a decision is made.
(x) Decision on appeal. The decision must be in writing. A copy of
the decision must be served on the affected party and the attorney or
representative of record, if any.
(3) Denials and appeals of special agricultural worker and
legalization applications and termination of lawful temporary resident
status under sections 210 and 245A. (i) Whenever an application for
legalization or special agricultural worker status is denied or the
status of a lawful temporary resident is terminated, the alien shall be
given written notice setting forth the specific reasons for the denial
on Form I-692, Notice of Denial. Form I-692 shall also contain advice to
the applicant that he or she may appeal the decision and that such
appeal must be taken within 30 days after service of the notification of
decision accompanied by any additional new evidence, and a supporting
brief if desired. The Form I-692 shall additionally provide a notice to
the alien that if he or she fails to file an appeal from the decision,
the Form I-692 will serve as a final notice of ineligibility.
(ii) Form I-694, Notice of Appeal, in triplicate, shall be used to
file the appeal, and must be accompanied by the appropriate fee. Form I-
694 shall be furnished with the notice of denial at the time of service
on the alien.
(iii) Upon receipt of an appeal, the administrative record will be
forwarded to the Administrative Appeals Unit as provided by Sec.
103.1(f)(2) of this part for review and decision. The decision on the
appeal shall be in writing, and if the appeal is dismissed, shall
include a final notice of ineligibility. A copy of the decision shall be
served upon the applicant and his or her attorney or representative of
record. No further administrative appeal shall lie from this decision,
nor may the application be filed or reopened before an immigration judge
or the Board of Immigration Appeals during exclusion or deportation
proceedings.
(iv) Any appeal which is filed that:
(A) Fails to state the reason for appeal;
(B) Is filed solely on the basis of a denial for failure to file the
application for adjustment of status under section 210 or 245A in a
timely manner; or
(C) Is patently frivolous; will be summarily dismissed. An appeal
received after the thirty (30) day period has tolled will not be
accepted for processing.
(4) Denials and appeal of Replenishment Agricultural Worker
petitions and waivers and termination of lawful temporary resident
status under section 210A. (i) Whenever a petition for Replenishment
Agricultural Worker status, or a request for a waiver incident to such
filing, is denied in accordance with the provisions of part 210a of this
title, the alien shall be given written notice setting forth the
specific reasons for the denial on Form I-692, Notice of Denial. 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
[[Page 48]]
provide a notice to the alien that if he or she fails to file an appeal
from the decision, the Form I-692 shall serve as a final notice of
ineligibility.
(ii) Form I-694, Notice of Appeal, in triplicate, shall be used to
file the appeal, and must be accompanied by the appropriate fee. Form I-
694 shall be furnished with the notice of denial at the time of service
on the alien.
(iii) Upon receipt of an appeal, the administrative record will be
forwarded to the Administrative Appeals Unit as provided by Sec.
103.1(f)(2) of this part for review and decision. The decision on the
appeal shall be in writing, and if the appeal is dismissed, shall
include a final notice of ineligibility. A copy of the decision shall be
served upon the petitioner and his or her attorney or representative of
record. No further administrative appeal shall lie from this decision,
nor may the petition be filed or reopened before an immigration judge or
the Board of Immigration Appeals during exclusion or deportation
proceedings.
(iv) Any appeal which is filed that: Fails to state the reason for
the appeal; is filed solely on the basis of a denial for failure to file
the petition for adjustment of status under part 210a of this title in a
timely manner; or is patently frivolous, will be summarily dismissed. An
appeal received after the thirty (30) day period has tolled will not be
accepted for processing.
(b) Oral argument regarding appeal before AAU--(1) Request. If the
affected party desires oral argument, the affected party must explain in
writing specifically why oral argument is necessary. For such a request
to be considered, it must be submitted within the time allowed for
meeting other requirements.
(2) Decision about oral argument. The Service has sole authority to
grant or deny a request for oral argument. Upon approval of a request
for oral argument, the AAU shall set the time, date, place, and
conditions of oral argument.
(c) Service precedent decisions. The Secretary of Homeland Security,
or specific officials of the Department of Homeland Security designated
by the Secretary with the concurrence of the Attorney General, may file
with the Attorney General decisions relating to the administration of
the immigration laws of the United States for publication as precedent
in future proceedings, and upon approval of the Attorney General as to
the lawfulness of such decision, the Director of the Executive Office
for Immigration Review shall cause such decisions to be published in the
same manner as decisions of the Board and the Attorney General. In
addition to Attorney General and Board decisions referred to in Sec.
1003.1(g) of chapter V, designated Service decisions are to serve as
precedents in all proceedings involving the same issue(s). Except as
these decisions may be modified or overruled by later precedent
decisions, they are binding on all Service employees in the
administration of the Act. Precedent decisions must be published and
made available to the public as described in Sec. 103.9(a) of this
part.
[31 FR 3062, Feb. 24, 1966, as amended at 37 FR 927, Jan. 21, 1972; 48
FR 36441, Aug. 11, 1983; 49 FR 7355, Feb. 29, 1984; 52 FR 16192, May 1,
1987; 54 FR 29881, July 17, 1989; 55 FR 20769, 20775, May 21, 1990; 55
FR 23345, June 7, 1990; 57 FR 11573, Apr. 6, 1992; 68 FR 9832, Feb. 28,
2003]
Sec. 103.4 Certifications.
(a) Certification of other than special agricultural worker and
legalization cases--(1) General. The Commissioner or the Commissioner's
delegate may direct that any case or class of cases be certified to
another Service official for decision. In addition, regional
commissioners, regional service center directors, district directors,
officers in charge in districts 33 (Bangkok, Thailand), 35 (Mexico City,
Mexico), and 37 (Rome, Italy), and the Director, National Fines Office,
may certify their decisions to the appropriate appellate authority (as
designated in this chapter) when the case involves an unusually complex
or novel issue of law or fact.
(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
[[Page 49]]
to submit a brief, the affected party may waive the 30-day period.
(3) Favorable action. The Service officer to whom a case is
certified may suspend the 30-day period for submission of a brief if
that officer takes action favorable to the affected party.
(4) Initial decision. A case within the appellate jurisdiction of
the Associate Commissioner, Examinations, or for which there is no
appeal procedure may be certified only after an initial decision is
made.
(5) Certification to AAU. A case described in paragraph (a)(4) of
this section may be certified to the AAU.
(6) Appeal to Board. In a case within the Board's appellate
jurisdiction, an unfavorable decision of the Service official to whom
the case is certified (whether made initially or upon review) is the
decision which may be appealed to the Board under Sec. 3.1(b) of this
chapter.
(7) Other applicable provisions. The provisions of Sec.
103.3(a)(2)(x) of this part also apply to decisions on certified cases.
The provisions of Sec. 103.3(b) of this part also apply to requests for
oral argument regarding certified cases considered by the AAU.
(b) Certification of denials of special agricultural worker and
legalization applications. The Regional Processing Facility director or
the district director may, in accordance with paragraph (a) of this
section, certify a decision to the Associate Commissioner, Examinations
(Administrative Appeals Unit) (the appellate authority designated in
Sec. 103.1(f)(2)) of this part, when the case involves an unusually
complex or novel question of law or fact.
[52 FR 661, Jan. 8, 1987, as amended at 53 FR 43985, Oct. 31, 1988; 55
FR 20770, May 21, 1990]
Sec. 103.5 Reopening or reconsideration.
(a) Motions to reopen or reconsider in other than special
agricultural worker and legalization cases--(1) When filed by affected
party--(i) General. Except where the Board has jurisdiction and as
otherwise provided in 8 CFR parts 3, 210, 242 and 245a, when the
affected party files a motion, the official having jurisdiction may, for
proper cause shown, reopen the proceeding or reconsider the prior
decision. Motions to reopen or reconsider are not applicable to
proceedings described in Sec. 274a.9 of this chapter. Any motion to
reconsider an action by the Service filed by an applicant or petitioner
must be filed within 30 days of the decision that the motion seeks to
reconsider. Any motion to reopen a proceeding before the Service filed
by an applicant or petitioner, must be filed within 30 days of the
decision that the motion seeks to reopen, except that failure to file
before this period expires, may be excused in the discretion of the
Service where it is demonstrated that the delay was reasonable and was
beyond the control of the applicant or petitioner.
(ii) Jurisdiction. The official having jurisdiction is the official
who made the latest decision in the proceeding unless the affected party
moves to a new jurisdiction. In that instance, the new official having
jurisdiction is the official over such a proceeding in the new
geographical locations.
(iii) Filing Requirements-- A motion shall be submitted on Form I-
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) Accompanied by a nonrefundable fee as set forth in Sec. 103.7;
(C) Accompanied by a statement about whether or not the validity of
the unfavorable decision has been or is the subject of any judicial
proceeding and, if so, the court, nature, date, and status or result of
the proceeding;
(D) Addressed to the official having jurisdiction; and
(E) Submitted to the office maintaining the record upon which the
unfavorable decision was made for forwarding to the official having
jurisdiction.
(iv) Effect of motion or subsequent application or petition. Unless
the Service directs otherwise, the filing of a motion to reopen or
reconsider or of a subsequent application or petition does not stay the
execution of any decision in a case or extend a previously set departure
date.
(2) Requirements for motion to reopen. A motion to reopen must state
the new facts to be provided in the reopened proceeding and be supported
by affidavits or other documentary evidence. A
[[Page 50]]
motion to reopen an application or petition denied due to abandonment
must be filed with evidence that the decision was in error because:
(i) The requested evidence was not material to the issue of
eligibility;
(ii) The required initial evidence was submitted with the
application or petition, or the request for initial evidence or
additional information or appearance was complied with during the
allotted period; or
(iii) The request for additional information or appearance was sent
to an address other than that on the application, petition, or notice of
representation, or that the applicant or petitioner advised the Service,
in writing, of a change of address or change of representation
subsequent to filing and before the Service's request was sent, and the
request did not go to the new address.
(3) Requirements for motion to reconsider. A motion to reconsider
must state the reasons for reconsideration and be supported by any
pertinent precedent decisions to establish that the decision was based
on an incorrect application of law or Service policy. A motion to
reconsider a decision on an application or petition must, when filed,
also establish that the decision was incorrect based on the evidence of
record at the time of the initial decision.
(4) Processing motions in proceedings before the Service. A motion
that does not meet applicable requirements shall be dismissed. Where a
motion to reopen is granted, the proceeding shall be reopened. The
notice and any favorable decision may be combined.
(5) Motion by Service officer--(i) Service motion with decision
favorable to affected party. When a Service officer, on his or her own
motion, reopens a Service proceeding or reconsiders a Service decision
in order to make a new decision favorable to the affected party, the
Service officer shall combine the motion and the favorable decision in
one action.
(ii) Service motion with decision that may be unfavorable to
affected party. When a Service officer, on his or her own motion,
reopens a Service proceeding or reconsiders a Service decision, and the
new decision may be unfavorable to the affected party, the officer shall
give the affected party 30 days after service of the motion to submit a
brief. The officer may extend the time period for good cause shown. If
the affected party does not wish to submit a brief, the affected party
may waive the 30-day period.
(6) Appeal to AAU from Service decision made as a result of a
motion. A field office decision made as a result of a motion may be
applied to the AAU only if the original decision was appealable to the
AAU.
(7) Other applicable provisions. The provisions of Sec.
103.3(a)(2)(x) of this part also apply to decisions on motions. The
provisions of Sec. 103.3(b) of this part also apply to requests for
oral argument regarding motions considered by the AAU.
(8) Treating an appeal as a motion. The official who denied an
application or petition may treat the appeal from that decision as a
motion for the purpose of granting the motion.
(b) Motions to reopen or reconsider denials of special agricultural
worker and legalization applications. Upon the filing of an appeal to
the Associate Commissioner, Examinations (Administrative Appeals Unit),
the Director of a Regional Processing Facility or the consular officer
at an Overseas Processing Office may sua sponte reopen any proceeding
under his or her jurisdiction opened under part 210 or 245a of this
chapter and may reconsider any decision rendered in such proceeding. The
new decision must be served on the appellant within 45 days of receipt
of any brief and/or new evidence, or upon expiration of the time allowed
for the submission of a brief. The Associate Commissioner, Examinations,
or the Chief of the Administrative Appeals Unit may sua sponte reopen
any proceeding conducted by that Unit under part 210 or 245a of this
chapter and reconsider 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
[[Page 51]]
part 210a of this title which is within his or her jurisdiction and may
render a new decision. This decision may reverse a prior favorable
decision when it is determined that there was fraud during the
registration or petition processes and the petitioner was not entitled
to the status granted. The petitioner must be given an opportunity to
offer evidence in support of the petition and in opposition to the
grounds for reopening the petition before a new decision is rendered.
(2) The Associate Commissioner, Examinations or the Chief of the
Administrative Appeals Unit may sua sponte reopen any proceeding
conducted by that unit under part 210a of this title and reconsider any
decision rendered in such proceeding.
(3) Motions to reopen a proceeding or reconsider a decision under
part 210a of this title shall not be considered.
[27 FR 7562, Aug. 1, 1962, as amended at 30 FR 12772, Oct. 7, 1965; 32
FR 271, Jan. 11, 1967; 52 FR 16193, May 1, 1987; 54 FR 29881, July 17,
1989; 55 FR 20770, 20775, May 21, 1990; 55 FR 25931, June 25, 1990; 56
FR 41782, Aug. 23, 1991; 59 FR 1463, Jan. 11, 1994; 61 FR 18909, Apr.
29, 1996; 62 FR 10336, Mar. 6, 1997]
Sec. 103.5a Service of notification, decisions, and other papers by
the Service.
This section states authorized means of service by the Service on
parties and on attorneys and other interested persons of notices,
decisions, and other papers (except warrants and subpoenas) in
administrative proceedings before Service officers as provided in this
chapter.
(a) Definitions--(1) Routine service. Routine service consists of
mailing a copy by ordinary mail addressed to a person at his last known
address.
(2) Personal service. Personal service, which shall be performed by
a Government employee, consists of any of the following, without
priority or preference:
(i) Delivery of a copy personally;
(ii) Delivery of a copy at a person's dwelling house or usual place
of abode by leaving it with some person of suitable age and discretion;
(iii) Delivery of a copy at the office of an attorney or other
person, including a corporation, by leaving it with a person in charge;
(iv) Mailing a copy by certified or registered mail, return receipt
requested, addressed to a person at his last known address.
(3) Personal service involving notices of intention to fine. In
addition to any of the methods of personal service listed in paragraph
(a)(2) of this section, personal service of Form I-79, Notice of
Intention to Fine, may also consist of delivery of the Form I-79 by a
commercial delivery service at the carrier's address on file with the
National Fines Office, the address listed on the Form I-849, Record for
Notice of Intent to Fine, or to the office of the attorney or agent
representing the carrier, provided that such a commercial delivery
service requires the addressee or other responsible party accepting the
package to sign for the package upon receipt.
(b) Effect of service by mail. Whenever a person has the right or is
required to do some act within a prescribed period after the service of
a notice upon him and the notice is served by mail, 3 days shall be
added to the prescribed period. Service by mail is complete upon
mailing.
(c) When personal service required--(1) Generally. In any proceeding
which is initiated by the Service, with proposed adverse effect, service
of the initiating notice and of notice of any decision by a Service
officer shall be accomplished by personal service, except as provided in
section 239 of the Act.
(2) Persons confined, minors, and incompetents--(i) Persons
confined. If a person is confined in a penal or mental institution or
hospital and is competent to understand the nature of the proceedings
initiated against him, service shall be made both upon him and upon the
person in charge of the 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
[[Page 52]]
minor resides; whenever possible, service shall also be made on the near
relative, guardian, committee, or friend.
(d) When personal service not required. Service of other types of
papers in proceedings described in paragraph (c) of this section, and
service of any type of papers in any other proceedings, may be
accomplished either by routine service or by personal service.
[37 FR 11470, June 8, 1972, as amended at 39 FR 23247, June 27, 1974; 62
FR 10336, Mar. 6, 1997; 64 FR 17944, Apr. 13, 1999]
Sec. 103.5b Application for further action on an approved application or petition.
(a) General. An application for further action on an approved
application or petition must be filed on Form I-824 by the applicant or
petitioner who filed the original application or petition. It must be
filed with the fee required in Sec. 103.7 and the initial evidence
required on the application form. Form I-824 may accompany the original
application or petition, or may be filed after the approval of the
original application or petition.
(b) Requested actions. A person whose application was approved may,
during its validity period, apply for a duplicate approval notice or any
other action specifically provided for on the form. A petitioner whose
petition was approved may, during the validity of the petition, request
that the Service:
(1) Issue a duplicate approval notice;
(2) Notify another consulate of the approved petition;
(3) Notify a consulate of the person's adjustment of status for the
purpose of visa issuance to dependents; or
(4) Take any other action specifically provided for on the form.
(c) Processing. The application shall be approved if the Service
determines the applicant has fully demonstrated eligibility for the
requested action. There is no appeal from the denial of an application
filed on Form I-824.
[59 FR 1463, Jan. 11, 1994]
Sec. 103.6 Surety bonds.
(a) Posting of surety bonds--(1) Extension agreements; consent of
surety; collateral security. All surety bonds posted in immigration
cases shall be executed on Form I-352, Immigration Bond, a copy of
which, and any rider attached thereto, shall be furnished the obligor. A
district director is authorized to approve a bond, a formal agreement to
extension of liability of surety, a request for delivery of collateral
security to a duly appointed and undischarged administrator or executor
of the estate of a deceased depositor, and a power of attorney executed
on Form I-312, Designation of Attorney in Fact. All other matters
relating to bonds, including a power of attorney not executed on Form I-
312 and a request for delivery of collateral security to other than the
depositor or his or her approved attorney in fact, shall be forwarded to
the regional director for approval.
(2) Bond riders--(i) General. Bond riders shall be prepared on Form
I-351, Bond Riders, and attached to Form I-352. If a condition to be
included in a bond is not on Form I-351, a rider containing the
condition shall be executed.
(ii) [Reserved]
(b) Acceptable sureties. Either a company holding a certificate from
the Secretary of the Treasury under 6 U.S.C. 6-13 as an acceptable
surety on Federal bonds, or a surety who deposits cash or U.S. bonds or
notes of the class described in 6 U.S.C. 15 and Treasury Department
regulations issued pursuant thereto and which are not redeemable within
1 year from the date they are offered for deposit is an acceptable
surety.
(c) Cancellation--(1) Public charge bonds. A public charge bond
posted for an immigrant shall be cancelled when the alien dies, departs
permanently from the United States or is naturalized, provided the
immigrant did not become a public charge prior to death, 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
[[Page 53]]
prior to the fifth anniversary. If Form I-356 is not filed, the bond
shall remain in effect until the form is filed and the district director
reviews the evidence supporting the form and renders a decision to
breach or cancel the bond.
(2) Maintenance of status and departure bonds. When the status of a
nonimmigrant who has violated the conditions of his admission has been
adjusted as a result of administrative or legislative action to that of
a permanent resident retroactively to a date prior to the violation, any
outstanding maintenance of status and departure bond shall be canceled.
If an application for adjustment of status is made by a nonimmigrant
while he is in lawful temporary status, the bond shall be canceled if
his status is adjusted to that of a lawful permanent resident or if he
voluntarily departs within any period granted to him. As used in this
paragraph, the term lawful temporary status means that there must not
have been a violation of any of the conditions of the alien's
nonimmigrant classification by acceptance of unauthorized employment or
otherwise during the time he has been accorded such classification, and
that from the date of admission to the date of departure or adjustment
of status he must have had uninterrupted Service approval of his
presence in the United States in the form of regular extensions of stay
or dates set by which departure is to occur, or a combination of both.
An alien admitted as a nonimmigrant shall not be regarded as having
violated his nonimmigrant status by engaging in employment subsequent to
his proper filing of an application for adjustment of status under
section 245 of the Act and part 245 of this chapter. A maintenance of
status and departure bond posted at the request of an American consular
officer abroad in behalf of an alien who did not travel to the United
States shall be canceled upon receipt of notice from an American
consular officer that the alien is outside the United States and the
nonimmigrant visa issued pursuant to the posting of the bond has been
canceled or has expired.
(3) Substantial performance. Substantial performance of all
conditions imposed by the terms of a bond shall release the obligor from
liability.
(d) Bond schedules--(1) Blanketbonds for departure of visitors and
transits. The amount of bond required for various numbers of
nonimmigrant visitors or transits admitted under bond on Forms I-352
shall be in accordance with the following schedule:
Aliens
1 to 4--$500 each.
5 to 9--$2,500 total bond.
10 to 24--$3,500 total bond.
25 to 49--$5,000 total bond.
50 to 74--$6,000 total bond.
75 to 99--$7,000 total bond.
100 to 124--$8,000 total bond.
125 to 149--$9,000 total bond.
150 to 199--$10,000 total bond.
200 or more--$10,000 plus $50 for each alien over 200.
(2) Blanket bonds for importation of workers classified as
nonimmigrants under section 101(a)(15)(H). The following schedule shall
be employed by district directors when requiring employers or their
agents or representatives to post bond as a condition to importing alien
laborers into the United States from the West Indies, the British Virgin
Islands, or from Canada:
Less than 500 workers--$15 each
500 to 1,000 workers--$10 each
1,000 or more workers--$5 each
A bond shall not be posted for less than $1,000 or for more than $12,000
irrespective of the number of workers involved. Failure to comply with
conditions of the bond will result in the employer's liability in the
amount of $200 as liquidated damages for each alien involved.
(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
[[Page 54]]
declared breached, of the reasons therefor, and of the right to appeal
in accordance with the provisions of this part.
[31 FR 11713, Sept. 7, 1966, as amended at 32 FR 9622, July 4, 1967; 33
FR 5255, Apr. 2, 1968; 33 FR 10504, July 24, 1968; 34 FR 1008, Jan. 23,
1969; 34 FR 14760, Sept. 25, 1969; 39 FR 12334, Apr. 5, 1974; 40 FR
42852, Sept. 17, 1975; 48 FR 51144, Nov. 7, 1983; 49 FR 24011, June 11,
1984; 60 FR 21974, May 4, 1995; 62 FR 10336, Mar. 6, 1997]
Sec. 103.7 Fees.
(a) Remittances. (1) Fees 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 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
For fingerprinting by the Service. A service fee of $50 will be charged
by the Service for any individual who is required to be fingerprinted in
connection with an application or petition for certain immigration and
naturalization benefits (other than asylum), and whose residence is in
the United States as defined in section 101(a)(38) of the Act.
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 as it existed prior to April 1, 1997--$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 EOIR-42. For filing application for cancellation of removal under
section 240A of the Act--$100.00. (A single fee of $100.00 will be
charged whenever cancellation of removal applications are filed by two
or more aliens in the same proceedings).
[[Page 55]]
Form I-17. For filing a petition for school approval or
recertification--$580 plus $350 per additional campus listed on Form I-
17B.
Form I-68. For application for issuance of the Canadian Border Boat
Landing Permit under section 235 of the Act--$16.00. The maximum amount
payable by a family (husband, wife, unmarried children under 21 years of
age, parents of either husband or wife) shall be $32.00.
Form I-90. For filing an application for a Permanent Resident Card (Form
I-551) in lieu of an obsolete card or in lieu of one lost, mutilated, or
destroyed, or for a change in name--$130.
Form I-94. For issuance of Arrival/Departure Record at a land border
Port-of-Entry--$6.00.
Form I-94W. For issuance of Nonimmigrant Visa Waiver Arrival/Departure
Form at a land border Port-of-Entry under section 217 of the Act--$6.00.
Form I-102. For filing a petition for an application (Form I-102) for
Arrival/Departure Record (Form I-94) or Crewman's Landing (Form I-95),
in lieu of one lost, mutilated, or destroyed--$100.
Form I-129. For filing a petition for a nonimmigrant worker, a base fee
of $130. For filing an H-1B petition a base fee of $130 plus an
additional $1,000 fee in a single remittance of $1,130. The remittance
may be in the form of one or two checks (one in the amount of $1,000 and
the other in the amount of $130). Payment of this additional $1,000 fee
is not waivable under Sec. 103.7(c)(1). Payment of this additional
$1,000 fee is not required if an organization is exempt under Sec.
214.2(h)(19)(iii) of this chapter, and this additional $1,000 fee also
does not apply to certain filings by any employer as provided in Sec.
214.2(h)(19)(v) of this chapter.
Form I-129F. For filing a petition to classify nonimmigrant as
fianc[eacute]e or fianc[eacute] under section 214(d) of the Act--$110.
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--$130.
Form I-131. For filing an application for travel documents--$110.
Form I-140. For filing a petition to classify preference status of an
alien on the basis of profession or occupation under section 204(a) of
the Act--$135.
Form I-191. For filing applications for discretionary relief under
section 212(c) of the Act--$195.
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--$195.
Form I-193. For filing an application for waiver of passport and/or
visa--$195.
Form I-212. For filing an application for permission to reapply for an
excluded, deported or removed alien, an alien who has fallen into
distress, an alien who has been removed as an alien enemy, or an alien
who has been removed at Government expense in lieu of deportation--$195.
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--$130.00, except there is no fee for a petition
seeking classification as an Amerasian.
Form I-485. For filing an application for permanent resident status or
creation of a record of lawful permanent residence--$255 for an
applicant 14 years of age or older--$160 for an applicant under the age
of 14 years; no fee for an applicant filing as a refugee under section
209(a) of the Act.
Supplment A to Form I-485. Supplement to Form I-485 for persons seeking
to adjust status under the provisions of section 245(i) of the Act--
$1000, except that payment of this additional sum is not required when
the applicant is an unmarried child who is less than 17 years of age, or
when the applicant is the spouse or the unmarried child less than 21
years of age of a legalized alien and is qualified for and has applied
for voluntary departure under the family unity program.
Form I-506. For filing an application for change of nonimmigrant
classification under section 248 of the Act--$85.00.
Form I-526. For filing a petition for an alien entrepreneur--$400.
Form I-539. For filing an application to extend or change nonimmigrant
status--$140.
Form I-570. For filing application for issuance or extension of refugee
travel document--$45.00
Form I-600. For filing a petition to classify an orphan as an immediate
relative for issuance of immigrant visa under section
[[Page 56]]
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.)--$460
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.)--$460.
Form I-601. For filing an application for waiver of ground of
inadmissibility under section 212(h) or (i) of the Act. (Only a single
application and fee shall be required when the alien is applying
simultaneously for a waiver under both those subsections.)--$195.
Form I-612. For filing an application for waiver of the foreign-
residence requirement under section 212(e) of the Act--$195.
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
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,
based on marriage--$145.
Form I-765. For filing an application for employment authorization
pursuant to 8 CFR 274a.13--$120.
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--$140.
Form I-821. For filing an initial application for Temporary Protected
Status under section 244 of the Act as amended by section 308(a)(7) of
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
as amended by the Immigration Act of 1990, to be remitted in the form of
a cashier's check, certified bank check, or money order. The exact
amount of the fee, not to exceed fifty dollars ($50.00), will be
determined at the time a foreign state is designated for Temporary
Protected Status.
[[Page 57]]
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--$140.
Form I-829. For filing a petition by entrepreneur to remove conditions--
$395.
Form I-881. For filing an application for suspension of deportation or
special rule cancellation of removal (pursuant to section 203 of Public
Law 105-100):
-- $215 for adjudication by the Service, except that the maximum amount
payable by family members (related as husband, wife, unmarried child
under 21, unmarried son, or unmarried daughter) who submit applications
at the same time shall be $430.
-- $100 for adjudication by the Immigration Court (a single fee of $100
will be charged whenever applications are filed by two or more aliens in
the same proceedings). The $100 fee is not required if the Form I-881 is
referred to the Immigration Court by the Service.
Form I-905. Application for authorization to issue certification for
health care workers--$230.
Form I-907. For filing a request for Premium Processing Service for
certain employment based applications and petitions-$1,000. The fee for
Premium Processing Service may not be waived.
Form I-914. For filing an application to classify an alien as a
nonimmigrant under section 101(a)(15)(T) of the Act (victims of a severe
form of trafficking in persons and their immediate family members)--
$200. For each immediate family member included on the same application,
an additional fee of $50 per person, up to a maximum amount payable per
application of $400.
Form N-300. For filing an application for declaration of intention--
$60.00.
Form N-336. For filing a request for hearing on a decision in
naturalization proceedings under section 366 of the Act--$195.00.
Form N-400. For filing an application for naturalization--$260.
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--$95.00.
Form N-565. For filing an application for a certificate of
naturalization or declaration of intention in lieu of a certificate or
declaration alleged to have been lost, mutilated, or destroyed; for a
certificate of citizenship in a changed name under section 343(c) of the
Act; or for a special certificate of naturalization to obtain
recognition as a citizen of the United States by a foreign state under
section 343(b) of the Act--$155.
Form N-600. For filing an application for a certificate of citizenship
under section 309(c) or section 341 of the Act--$185.
Form N-643. For filing an application for a certificate of
citizenship on behalf of an adopted child--$145.
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, for any motion to reopen or
reconsider made concurrently with any initial application for relief
under the immigration laws for which no fee is chargeable, or for a
motion to reopen a deportation or removal order entered in absentia if
that motion is filed pursuant to 8 U.S.C. 1252b(c)(3)(B) as it existed
prior to April 1, 1997, or section 240b(5)(C)(ii) of the Immigration and
Nationality Act, as amended. (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 or for
[[Page 58]]
any motion to reopen or reconsider made concurrently with any initial
application for relief under the immigration laws 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)(1) Except as otherwise provided in this paragraph (c) 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 without payment of fee of the application,
petition, appeal, motion, or request, and stating his or her belief that
he or she is entitled to or deserving of the benefit requested and the
reasons for his or her inability to pay. The officer of the 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. The
payment of the additional $500 fee prescribed by section 214(c)(9) of
the Act when applying for petition for nonimmigrant worker under section
101(a)(15)(H)(i)(b) of the Act may not be waived. The fee for Form I-
907, Request for Premium Processing Services, may not be waived.
(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:
[[Page 59]]
(1) The Associate Commissioner, Information Systems, the Assistant
Commissioner, Records Systems Division, the Director, Records Management
Branch, or their designee, authorized in writing to make certification
in their absence--copies of files, documents, and records in the custody
of the Central Office.
(2) A regional commissioner, or district director, or the designee
of either, authorized in writing to make certification in his absence--
copies of files, documents, and records in the custody of his office.
(3) The Immigration and Naturalization Service Program Coordinator,
El Paso Intelligence Center, or the designee, authorized in writing to
make certification in event of the Program Coordinator's absence--copies
of files, documents, and records of the Immigration and Naturalization
Service in the custody of that office.
(4) The Assistant Commissioner, Records Systems Division, the
Director, Records Management Branch, or the Chief, Records Operations
Section, Central Office, or their designee, authorized in writing to
make certification in their absence--the non-existence of an official
Service records.
[38 FR 35296, Dec. 27, 1973]
Editorial Note: For Federal Register citations affecting Sec.
103.7, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 103.8 Definitions pertaining to availability of information
under the Freedom of Information Act.
Sections 103.8, 103.9, and 103.10 of this part comprise the Service
regulations under the Freedom of Information Act, 5 U.S.C. 552. These
regulations supplement those of the Department of Justice, 28 CFR part
16, subpart A. As used in this part the following definitions shall
apply:
(a) The term access means providing a copy of the record requested
or affording the opportunity for an in-person review of the original
record or a copy thereof. The determination to permit an in-person
review is discretionary and will only be made when specifically
requested. Whenever providing in-person access will unreasonably disrupt
the normal operations of an office, the requester may be sent a copy of
the requested records that are nonexempt in lieu of the in-person
review.
(b) The term decision means a final written determination in a
proceeding 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 rec ords 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.
[[Page 60]]
(b) Unpublished decisions. Each district director in the United
States will maintain copies of unpublished Service and Board decisions
relating to proceedings in which the initial decision was made in his
district. Each regional commissioner will maintain copies of unpublished
decisions made by him. The Central Office will maintain copies on a
national basis of unpublished Service decisions.
(c) Deletion of identifying details. To the extent that information
in decisions is exempt from disclosure under the Freedom of Information
Act (5 U.S.C. 552), the deciding officer shall provide for deletion of
identifying details, as appropriate, from copies of decisions made
available to the public.
(d) Statements of policy, interpretations, manuals, instructions to
staff. Statements of policy, interpretations, and those manuals and
instructions to staff (or portions thereof), affecting the public, will
be made available at district offices in the United States and at the
Central Office with an accompanying index of any material which is
issued on or after July 4, 1967.
(e) Public reading rooms. The Central Office and each district
office in the United States will provide a reading room or reading area
where the material described in this section will be made available to
the public. Additional material will be made available in the public
reading rooms, including the immigration and nationality laws, title 8
of the United States Code Annotated, title 8 of the Code of Federal
Regulations--Chapter I, a complete set of the forms listed in parts 299
and 499 of this chapter, and the Department of State Foreign Affairs
Manual, Volume 9--Visas. Fees will not be charged for providing access
to any of these materials, but fees in accordance with Sec. 103.7(b)
will be charged for furnishing copies.
[32 FR 9623, July 4, 1967, as amended at 36 FR 20151, Oct. 16, 1971; 40
FR 7237, Feb. 19, 1975; 48 FR 49652, Oct. 27, 1983]
Sec. 103.10 Requests for records under the Freedom of Information Act.
(a) Place and manner of requesting records--(1) Place. Records
should be requested from the office that maintains the records sought,
if known, or from the Headquarters of the Immigration and Naturalization
Service, 425 I Street, NW., Washington, DC 20536. Records are maintained
in the Headquarters, regional offices, service centers, district offices
and the following suboffices: Agana, Guam; Albany, NY; 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
[[Page 61]]
any process not unreasonably burdensome. If it is determined that the
request does not reasonably describe the records sought, the response
rejecting the request on that ground shall specify the reason why the
request failed to meet requirements and shall extend to the requester an
opportunity to confer with Service personnel to reformulate the request.
Individuals seeking access to records about themselves by mail shall
establish their identity by submitting a notarized signature along with
their address, date of birth, place of birth, and alien or employee
identification number if applicable.
(b) Authority to grant and deny requests--(1) Grant or deny. The
Associate Commissioner for Information Resources Management, regional
administrators, district directors, service center directors, and heads
of suboffices specified in paragraph (a)(1) of this section, or their
designees, may grant or deny requests under exemptions in 5 U.S.C. 552
(b) and (c).
(2) [Reserved]
(3) Authority to state that a record cannot be located or does not
exist. The head of any office specified in paragraph (a)(1) of this
section has authority to notify a requester that a record cannot be
located from the information supplied, or is known to have been
destroyed or otherwise disposed of.
(c) Prompt response--(1) Response within 10 days. Within 10 days
(excluding Saturdays, Sundays, and legal holidays) of the receipt of a
request by the Service (or in the case of an improperly addressed
request, of its receipt by the appropriate office as specified in
paragraph (a) of this section), the authorized Service official shall
either comply with or deny the request unless an extension of time is
requested as required under 28 CFR 16.1(d). A request improperly
addressed will not be deemed to have been received for purposes of 5
U.S.C 552 (a)(6) until it has been or would have been received by the
appropriate office with the exercise of due diligence by Service
personnel.
(2) Treatment of delay as a denial. If no substantive reply is made
at the end of the 10 working day period, and any properly invoked
extension period, requesters may deem their request to be denied and
exercise their right to appeal in accordance with 28 CFR 16.8 and
paragraph (d)(3) of this section.
(d) Disposition of requests--(1) Form of grant. When a requested
record is available, the responsible office shall notify the requester
when and where the 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
[[Page 62]]
$25.00 by filing a Freedom of Information Act request unless a waiver or
reduction of fees is sought. Accordingly, all letters of acknowledgment
must confirm the requester's obligation to pay.
[40 FR 7237, Feb. 19, 1975, as amended at 41 FR 34938, Aug. 18, 1976; 42
FR 15408, March 22, 1977; 43 FR 22332, May 25, 1978; 44 FR 23514, Apr.
20, 1979; 48 FR 49652, Oct. 27, 1983; 48 FR 51430, Nov. 9, 1983; 52 FR
2942, Jan. 29, 1987; 58 FR 31148, 31149, June 1, 1993]
Sec. 103.11 Business information.
Business information provided to the Service by a business submitter
shall not be disclosed pursuant to a Freedom of Information Act request
except in accordance with 28 CFR 16.7.
[58 FR 31149, June 1, 1993]
Sec. 103.12 Definition of the term ``lawfully present'' aliens for
purposes of applying for Title II Social Security benefits under
Public Law 104-193.
(a) Definition of the term an ``alien who is lawfully present in the
United States.'' For the purposes of section 401(b)(2) of Pub. L. 104-
193 only, an ``alien who is lawfully present in the United States''
means:
(1) A qualified alien as defined in section 431(b) of Pub. L. 104-
193;
(2) An alien who has been inspected and admitted to the United
States and who has not violated the terms of the status under which he
or she was admitted or to which he or she has changed after admission;
(3) An alien who has been paroled into the United States pursuant to
section 212(d)(5) of the Act for less than 1 year, except:
(i) Aliens paroled for deferred inspection or pending exclusion
proceedings under 236(a) of the Act; and
(ii) Aliens paroled into the United States for prosecution pursuant
to 8 CFR 212.5(b)(3);
(4) An alien who belongs to one of the following classes of aliens
permitted to remain in the United States because the Attorney General
has decided for humanitarian or other public policy reasons not to
initiate deportation or exclusion proceedings or enforce departure:
(i) Aliens currently in temporary resident status pursuant to
section 210 or 245A of the Act;
(ii) Aliens currently under Temporary Protected Status (TPS)
pursuant to section 244 of the Act;
(iii) Cuban-Haitian entrants, as defined in section 202(b) Pub. L.
99-603, as amended;
(iv) Family Unity beneficiaries pursuant to section 301 of Pub. L.
101-649, as amended;
(v) Aliens currently under Deferred Enforced Departure (DED)
pursuant to a decision made by the President;
(vi) Aliens currently in deferred action status pursuant to Service
Operations Instructions at OI 242.1(a)(22);
(vii) Aliens who are the spouse or child of a United States citizen
whose visa petition has been approved and who have a pending application
for adjustment of status;
(5) Applicants for asylum under section 208(a) of the Act and
applicants for withholding of removal under section 241(b)(3) of the Act
or under the Convention Against Torture who have been granted employment
authorization, and such applicants under the age of 14 who have had an
application pending for at least 180 days.
(b) Non-issuance of an Order to Show Cause and non-enforcement of
deportation and exclusion orders. An alien may not be deemed to be
lawfully present solely on the basis of the Service's decision not to,
or failure to, issue an Order to Show Cause or solely on the basis of
the Service's decision not to, or failure to, enforce an outstanding
order of deportation or exclusion.
[61 FR 47041, Sept. 6, 1996, as amended at 63 FR 63595, Nov. 16, 1998;
64 FR 8487, Feb. 19, 1999; 65 FR 82255, Dec. 28, 2000]
Sec. 103.20 Purpose and scope.
(a) Sections 103.20 through 103.36 comprise the regulations of the
Service implementing the Privacy Act of 1974, Public Law 93-597. The
regulations apply to all records contained in systems of records
maintained by the Service which are identifiable by individual name or
identifier and which are retrieved by individual name or identifier,
except those personnel records governed by regulations of the Office of
[[Page 63]]
Personnel Management. The regulations set forth the procedures by which
individuals may seek access to records pertaining to themselves and
request correction of those records. The regulations also set forth the
requirements applicable to Service employees maintaining, collecting,
using or disseminating such records.
(b) The Associate Commissioner, Information Systems, shall ensure
that the provisions of Sec. Sec. 103.20 through 103.36 of this title
and 28 CFR 16.40 through 16.58, and any revisions, are brought to the
attention of and made available to:
(1) Each employee at the time of issuance of the regulations and at
the time of any amendments; and
(2) Each new employee at the time of employment.
(c) The Associate Commissioner, Information Systems, shall be
responsible for ensuring that employees of the Service are trained in
the obligations imposed by the Privacy Act of 1974 (5 U.S.C 522a) and by
these regulations.
[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49652, Oct. 27, 1983;
58 FR 31149, June 1, 1993]
Sec. 103.21 Access by individuals to records maintained about them.
(a) Access to available records. An individual who seeks access to
records about himself or herself in a system of records must submit a
written request in person or by mail to the Freedom of Information/
Privacy Act Officer at the location where the records are maintained. If
the location is unknown, the request may be submitted to the nearest
Service office or to the Headquarters FOIA/PA Officer, 425 I Street,
NW., Washington, DC 20536. The outside of the envelope should be marked
``Privacy Act Request.'' A Form G-639, Freedom of Information/Privacy
Act Request may be used for convenience and to facilitate identification
of the record requested. However, a request may be made in any written
form and should clearly identity the record sought by the name and any
other personal identifiers for the individual (such as the alien file
number or Social Security Account Number), date and place of birth, and
type of file in which the record is believed to be located.
(b) Verification of identity. The following standards are applicable
to any individual who requests records concerning himself, unless other
provisions for identity verification are specified in the published
notice pertaining to the particular system of records.
(1) An individual seeking access to records about himself in person
shall establish his identity by the presentation of a single document
bearing a photograph (such as a passport, Permanent Resident Card or
identification badge) or by the presentation of two items of
identification which do not bear a photograph but do bear both a name
and address (such as a driver's license, or credit card).
(2) Individuals seeking access to records about themselves by mail
shall establish their identify by submitting a notarized signature along
with their address, date of birth, place of birth, and alien or employee
identification number if applicable. Form DOJ 361, Certification of
Identity, may be obtained from any Service office and used to obtain the
notarized signature needed to verify identity.
(c) Verification of guardianship. The parent or guardian of a child
or of a person judicially determined to be incompetent and seeking to
act on behalf of such child or incompetent, shall, in addition to
establishing his own identity, establish the identity of the child or
other person he represents as required in paragraph (b) of this section,
and establish his own parentage or guardianship of the subject of the
record by furnishing either a copy of a birth certificate showing
parentage or a court order establishing the guardianship.
(d) Accompanying persons. An individual seeking to review records
pertaining to himself may be accompanied by another individual of his
own choosing. Both the individual seek ing 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
[[Page 64]]
nature of the records sought, the approximate dates covered by the
record, the system in which it is thought to be included as described in
the ``Notice of Systems of Records'' published in the Federal Register,
and the identity of the individual or office of the Service having
custody of the system of records. In addition, the published ``Notice of
Systems of Records'' for individual systems may include further
requirements of specification, where necessary, to retrieve the
individual record from the system.
(f) Agreement to pay fees. In accordance with 28 CFR 16.3(c) a
requester automatically agrees to pay fees up to $25.00 by filing a
Privacy Act request unless a waiver or reduction of fees is sought.
Accordingly, all letters of acknowledgement must confirm the requester's
obligation to pay.
[40 FR 44481, Sept. 26, 1975; 40 FR 46092, Oct. 6, 1975, as amended at
42 FR 33025, June 29, 1977; 48 FR 49653, Oct. 27, 1983; 58 FR 31149,
June 1, 1993; 63 FR 70315, Dec. 21, 1998]
Sec. 103.22 Records exempt in whole or in part.
(a) When individuals request records about themselves which are
exempt from access pursuant to the Privacy Act exemptions in 5 U.S.C.
552a(d)(5), (j) or (k), their requests shall also be considered under
the Freedom of Information Act, 5 U.S.C. 552, and, unless the records
are exempt under both Acts, the request shall be granted. If exemptions
under both Acts permit the denial of the records sought and there is
good reason to invoke the exemptions, the individual shall be provided a
denial of his/her request in writing with the governing exemptions
cited. If the disclosure of the existence of a criminal law enforcement
proceeding record could itself interfere with a pending law enforcement
proceeding of which there is reason to believe the subject is unaware,
the Service may, during only such time as the circumstance continues,
treat the records as not subject to the requirements of 5 U.S.C. 552.
(b) Individual requests for access to records which have been
exempted from access pursuant to 5 U.S.C. 552a(k) shall be processed as
follows:
(1) A request for information classified by the Service under
Executive Order 12356 on National Security Information requires the
Service to review the information to determine whether it continues to
warrant classification under the criteria of the Executive Order.
Information which no longer 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
[[Page 65]]
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 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
[[Page 66]]
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.
(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
[[Page 67]]
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.
Sec. 103.32 Information forms.
(a) Review of forms. The Service shall be responsible for the review
of forms it uses to collect information from and about individuals.
(b) Scope of review. The Service Forms Control Unit shall review
each form to assure that it complies with the requirements of 28 CFR
16.52.
Sec. 103.33 Contracting record systems.
Any contract by the Service for the operation of a record system
shall be in compliance with 28 CFR 16.55.
[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]
Sec. 103.34 Security of records systems.
The security of records systems shall be in accordance with 28 CFR
16.54.
Sec. 103.35 Use and collection of Social Security numbers.
The use and collection of Social Security numbers shall be in
accordance with 28 CFR 16.56.
[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]
Sec. 103.36 Employee standards of conduct with regard to privacy.
Service employee standards of conduct with regard to privacy shall
be in compliance with 28 CFR 16.57.
[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]
Sec. 103.37 Precedent decisions.
(a) Proceedings before the immigration judges, the Board of
Immigration Appeals and the Attorney General are governed by part 1003
of 8 CFR chapter V.
(b)-(f) [Reserved]
(g) Decisions as precedents. Except as Board decisions may be
modified or overruled by the Board or the Attorney
[[Page 68]]
General, decisions of the Board, and decisions of the Attorney General,
shall be binding on all officers and employees of the Department of
Homeland Security or immigration judges in the administration of the
immigration laws of the United States. By majority vote of the permanent
Board members, selected decisions of the Board rendered by a three-
member panel or by the Board en banc may be designated to serve as
precedents in all proceedings involving the same issue or issues.
Selected decisions designated by the Board, decisions of the Attorney
General, and decisions of the Secretary of Homeland Security to the
extent authorized in paragraph (i) of this section, shall serve as
precedents in all proceedings involving the same issue or issues.
(h) Referral of cases to the Attorney General. (1) The Board shall
refer to the Attorney General for review of its decision all cases
which:
(i) The Attorney General directs the Board to refer to him.
(ii) The Chairman or a majority of the Board believes should be
referred to the Attorney General for review.
(iii) The Secretary of Homeland Security, or specific officials of
the Department of Homeland Security designated by the Secretary with the
concurrence of the Attorney General, refers to the Attorney General for
review.
(2) In any case the Attorney General decides, the Attorney General's
decision shall be stated in writing and shall be transmitted to the
Board or Secretary, as appropriate, for transmittal and service as
provided in paragraph (f) of this section.
(i) Publication of Secretary's precedent decisions. The Secretary of
Homeland Security, or specific officials of the Department of Homeland
Security designated by the Secretary with the concurrence of the
Attorney General, may file with the Attorney General Service precedent
decisions as set forth in Sec. 103.3(c).
[68 FR 9832, Feb. 28, 2003]
PART 109 [RESERVED]
PART 204_IMMIGRANT PETITIONS--Table of Contents
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).
204.12 How can second-preference immigrant physicians be granted a
national interest waiver based on service in a medically
underserved area or VA facility?
204.13 How can the International Broadcasting Bureau of the United
States Broadcasting Board of Governors petition for a fourth
preference special immigrant broadcaster?
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a, 1255,
1641; 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
[[Page 69]]
file a Form I-130, Petition for Alien Relative. These petitions are
described in Sec. 204.2;
(2) A widow or widower of a United States citizen self-petitioning
under section 204(a)(1)(A)(ii) of the Act as an immediate relative under
section 201(b) of the Act must file a Form I-360, Petition for
Amerasian, Widow, or Special Immigrant. These petitions are described in
Sec. 204.2;
(3) A spouse or child of an abusive citizen or lawful permanent
resident of the United States self-petitioning under section
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or
204(a)(1)(B)(iii) of the Act for classification as an immediate relative
under section 201(b) of the Act or as a preference immigrant under
section 203(a) of the Act must file a Form I-360, Petition for
Amerasian, Widow, or Special Immigrant. These petitions are described in
Sec. 204.2;
(4) A 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),
[[Page 70]]
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act.
These self-petitions must be filed with the Service office in the United
States having jurisdiction over the self-petitioner's place of residence
in the United States.
(3) Jurisdiction assumed by United States consular officer. United
States consular officers assigned to visa-issuing posts abroad, except
those in countries listed in paragraph (e)(2) of this section, are
authorized to accept and approve a relative petition or a petition filed
by a widow or widower if the petitioner resides in the area over which
the post has jurisdiction, regardless of the beneficiary's residence or
physical presence at the time of filing. In emergent or humanitarian
cases and cases in the national interest, the United States consular
officer may accept a petition filed by a petitioner who does not reside
within the consulate's jurisdiction. While consular officers are
authorized to approve petitions, they must refer any petition which is
not clearly approvable to the appropriate Service office. Consular
officers may consult with the appropriate Service office abroad prior to
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
[[Page 71]]
period to the petitioner under the age of eighteen years as a citizen of
the United States (and not merely as a noncitizen national);
(iv) A statement executed by a United States consular officer
certifying the petitioner to be a United States citizen and the bearer
of a currently valid United States passport;
(v) The petitioner's Certificate of Naturalization or Certificate of
Citizenship;
(vi) Department of State Form FS-240, Report of Birth Abroad of a
Citizen of the United States, relating to the petitioner;
(vii) The petitioner's Form I-551, Permanent Resident Card, or other
proof given by the Service as evidence of lawful permanent residence.
Photocopies of Form I-551 or of a Certificate of Naturalization or
Certificate of Citizenship may be submitted as evidence of status as a
lawfully permanent resident or United States citizen, respectively.
(2) Secondary evidence. If primary evidence is unavailable, the
petitioner must present secondary evidence. Any evidence submitted as
secondary evidence will be evaluated for authenticity and credibility.
Secondary evidence may include, but is not limited to, one or more of
the following documents:
(i) A baptismal certificate with the seal of the church, showing the
date and place of birth in the United States and the date of baptism;
(ii) Affidavits sworn to by persons who were living at the time and
who have personal knowledge of the event to which they attest. The
affidavits must contain the affiant's full name and address, date and
place of birth, relationship to the parties, if any, and complete
details concerning how the affiant acquired knowledge of the event;
(iii) Early school records (preferably from the first school)
showing the date of admission to the school, the child's date and place
of birth, and the name(s) and place(s) of birth of the parent(s);
(iv) Census records showing the name, place of birth, and date of
birth or age of the petitioner; or
(v) If it is determined that it would cause unusual delay or
hardship to obtain documentary proof of birth in the United States, a
United States citizen petitioner who is a member of the Armed Forces of
the United States and who is serving outside the United States may
submit a statement from the appropriate authority of the Armed Forces.
The statement should attest to the fact that the personnel records of
the Armed Forces show that the petitioner was born in the United States
on a certain date.
(3) Evidence submitted with a self-petition. If a self-petitioner
filing under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),
204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is unable to present
primary or secondary evidence of the abuser's status, the Service will
attempt to electronically verify the abuser's citizenship or immigration
status from information contained in Service computerized records. Other
Service records may also be reviewed at the discretion of the
adjudicating officer. If the Service is unable to identify a record as
relating to the abuser or the record does not establish the abuser's
immigration or citizenship status, the self-petition will be adjudicated
based on the information submitted by the self-petitioner.
(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; 63 FR 70315, Dec. 21, 1998]
[[Page 72]]
Sec. 204.2 Petitions for relatives, widows and widowers, and abused
spouses and children.
(a) Petition for a spouse--(1) Eligibility. A United States citizen
or alien admitted for lawful permanent residence may file a petition on
behalf of a spouse.
(i) Marriage within five years of petitioner's obtaining lawful
permanent resident status. (A) A visa petition filed on behalf of an
alien by a lawful permanent resident spouse may not be approved if the
marriage occurred within five years of the petitioner being accorded the
status of lawful permanent resident based upon a prior marriage to a
United States citizen or alien lawfully admitted for permanent
residence, unless:
(1) The petitioner establishes by clear and convincing evidence that
the marriage through which the petitioner gained permanent residence was
not entered into for the purposes of evading the immigration laws; or
(2) The marriage through which the petitioner obtained permanent
residence was terminated through death.
(B) Documentation. The petitioner should submit documents which
cover the period of the prior marriage. The types of documents which may
establish that the prior marriage was not entered into for the purpose
of evading the immigration laws include, but are not limited to:
(1) Documentation showing joint ownership of property;
(2) A lease showing joint tenancy of a common residence;
(3) Documentation showing commingling of financial resources;
(4) Birth certificate(s) of child(ren) born to the petitioner and
prior spouse;
(5) Affidavits sworn to or affirmed by third parties having personal
knowledge of the bona fides of the prior marital relationship. (Each
affidavit must contain the full name and address, date and place of
birth of the person making the affidavit; his or her relationship, if
any, to the petitioner, beneficiary or prior spouse; and complete
information and details explaining how the person acquired his or her
knowledge of the prior marriage. The affiant may be required to testify
before an immigration officer about the information contained in the
affidavit. Affidavits should be supported, if possible, by one or more
types of documentary evidence listed in this paragraph.); or
(6) Any other documentation which is relevant to establish that the
prior marriage was not entered into in order to evade the immigration
laws of the United States.
(C) The petitioner must establish by clear and convincing evidence
that the prior marriage was not entered into for the purpose of evading
the immigration laws. Failure to meet the ``clear and convincing
evidence'' standard will result in the denial of the petition. Such a
denial shall be without prejudice to the filing of a new petition once
the petitioner has acquired five years of lawful permanent residence.
The director may choose to initiate deportation proceedings based upon
information gained through the adjudication of the petition; however,
failure to initiate such proceedings shall not establish that the
petitioner's prior marriage was not entered into for the purpose of
evading the immigration laws. Unless the petition is approved, the
beneficiary shall not be accorded a filing date within the meaning of
section 203(c) of the Act based upon any spousal second preference
petition.
(ii) Fraudulent marriage prohibition. Section 204(c) of the Act
prohibits the approval of a visa petition filed on behalf of an alien
who has attempted or conspired to enter into a marriage for the purpose
of evading the immigration laws. The director will deny a petition for
immigrant visa classification filed on behalf of any alien for whom
there is substantial and probative evidence of such an attempt or
conspiracy, regardless of whether that alien received a benefit through
the attempt or conspiracy. Although it is not necessary that the alien
have been convicted of, or even prosecuted for, the attempt or
conspiracy, the evidence of the attempt or conspiracy must be contained
in the alien's file.
(iii) Marriage during proceedings--general prohibition against
approval of visa petition. A visa petition filed on behalf of an alien
by a United States citizen or a lawful permanent resident spouse shall
not be approved if the marriage creating the relationship occurred on
[[Page 73]]
or after November 10, 1986, and while the alien was in exclusion,
deportation, or removal proceedings, or judicial proceedings relating
thereto. Determination of commencement and termination of proceedings
and exemptions shall be in accordance with Sec. 245.1(c)(9) of this
chapter, except that the burden in visa petition proceedings to
establish eligibility for the exemption in Sec. 245.1(c)(9)(iii)(F) of
this chapter shall rest with the petitioner.
(A) Request for exemption. No application or fee is required to
request an exemption. The request must be made in writing and submitted
with the Form I-130. The request must state the reason for seeking the
exemption and must be supported by documentary evidence establishing
eligibility for the exemption.
(B) Evidence to establish eligibility for the bona fide marriage
exemption. The petitioner should submit documents which establish that
the marriage was entered into in good faith and not entered into for the
purpose of procuring the alien's entry as an immigrant. The types of
documents the petitioner may submit include, but are not limited to:
(1) Documentation showing joint ownership of property;
(2) Lease showing joint tenancy of a common residence;
(3) Documentation showing commingling of financial resources;
(4) Birth certificate(s) of child(ren) born to the petitioner and
beneficiary;
(5) Affidavits of third parties having knowledge of the bona fides
of the marital relationship (Such persons may be required to testify
before an immigration officer as to the information contained in the
affidavit. Affidavits must be sworn to or affirmed by people who have
personal knowledge of the marital relationship. Each affidavit must
contain the full name and address, date and place of birth of the person
making the affidavit and his or her relationship to the spouses, if any.
The affidavit must contain complete information and details explaining
how the person acquired his or her knowledge of the marriage. Affidavits
should be supported, if possible, by one or more types of documentary
evidence listed in this paragraph); or
(6) Any other documentation which is relevant to establish that the
marriage was not entered into in order to evade the immigration laws of
the United States.
(C) Decision. Any petition filed during the prohibited period shall
be denied, unless the petitioner establishes eligibility for an
exemption from the general prohibition. The petitioner shall be notified
in writing of the decision of the director.
(D) Denials. The denial of a petition because the marriage took
place during the prohibited period shall be without prejudice to the
filing of a new petition after the beneficiary has resided outside the
United States for the required period of two years following the
marriage. The denial shall also be without prejudice to the
consideration of a new petition or a motion to reopen the visa petition
proceedings if deportation or exclusion proceedings are terminated after
the denial other than by the beneficiary's departure from the United
States. Furthermore, the denial shall be without prejudice to the
consideration of a new petition or motion to reopen the visa petition
proceedings, if the petitioner establishes eligibility for the bona fide
marriage exemption contained in this part: Provided, That no motion to
reopen visa petition proceedings may be accepted if the approval of the
motion would result in the beneficiary being accorded a priority date
within the meaning of section 203(c) of the Act earlier than November
29, 1990.
(E) Appeals. The decision of the Board of Immigration Appeals
concerning the denial of a relative visa petition because the petitioner
failed to establish eligibility for the bona fide marriage exemption
contained in this part will constitute the single level of appellate
review established by statute.
(F) Priority date. A preference beneficiary shall not be accorded a
priority date within the meaning of section 203(c) of the Act based upon
any relative petition filed during the prohibited period, unless an
exemption contained in this part has been granted. Furthermore, a
preference beneficiary shall not be accorded a priority date prior to
November 29, 1990, based upon
[[Page 74]]
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 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:
[[Page 75]]
(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;
(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.
[[Page 76]]
(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 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.
[[Page 77]]
(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 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
[[Page 78]]
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.
(6) Prima facie determination. (i) Upon receipt of a self-petition
under paragraph (c)(1) of this section, the Service shall make a
determination as to whether the petition and the supporting
documentation establish a ``prima facie case'' for purposes of 8 U.S.C.
1641, as amended by section 501 of Public Law 104-208.
(ii) For purposes of paragraph (c)(6)(i) of this section, a prima
facie case is established only if the petitioner submits a completed
Form I-360 and other evidence supporting all of the elements required of
a self-petitioner in paragraph (c)(1) of this section. A finding of
prima facie eligibility does not relieve the petitioner of the burden of
providing additional evidence in support of the petition and does not
establish eligibility for the underlying petition.
(iii) If the Service determines that a petitioner has made a ``prima
facie case,'' the Service shall issue a Notice of Prima Facie Case to
the petitioner. Such Notice shall be valid until the Service either
grants or denies the petition.
(iv) For purposes of adjudicating the petition submitted under
paragraph (c)(1) of this section, a prima facie determination--
(A) Shall not be considered evidence in support of the petition;
(B) Shall not be construed to make a determination of the
credibility or probative value of any evidence submitted along with that
petition; and,
(C) Shall not relieve the self-petitioner of his or her burden of
complying with all of the evidentiary requirements of paragraph (c)(2)
of this section.
(d) Petition for a child or son or daughter--(1) Eligibility. A
United States citizen may file a petition on behalf of an
[[Page 79]]
unmarried child under twenty-one years of age for immediate relative
classification under section 201(b) of the Act. A United States citizen
may file a petition on behalf of an unmarried son or daughter over
twenty-one years of age under section 203(a)(1) or for a married son or
daughter for preference classification under section 203(a)(3) of the
Act. An alien lawfully admitted for permanent residence may file a
petition on behalf of a child or an unmarried son or daughter for
preference classification under section 203(a)(2) of the Act.
(2) Evidence to support petition for child or son or daughter. In
addition to evidence of United States citizenship or lawful permanent
resident, the petitioner must also provide evidence of the claimed
relationship.
(i) Primary evidence for a legitimate child or son or daughter. If a
petition is submitted by the mother, the birth certificate of the child
showing the mother's name must accompany the petition. If the mother's
name on the birth certificate is different from her name on the
petition, evidence of the name change must also be submitted. If a
petition is submitted by the father, the birth certificate of the child,
a marriage certificate of the parents, and proof of legal termination of
the parents' prior marriages, if any, issued by civil authorities must
accompany the petition. If the father's name has been legally changed,
evidence of the name change must also accompany the petition.
(ii) Primary evidence for a legitimated child or son or daughter. A
child can be legitimated through the marriage of his or her natural
parents, by the laws of the country or state of the child's residence or
domicile, or by the laws of the country or state of the father's
residence or domicile. If the legitimation is based on the natural
parents' marriage, such marriage must have taken place while the child
was under the age of eighteen. If the legitimation is based on the laws
of the country or state of the child's residence or domicile, the law
must have taken effect before the child's eighteenth birthday. If the
legitimation is based on the laws of the country or state of the
father's residence or domicile, the father must have resided--while the
child was under eighteen years of age--in the country or state under
whose laws the child has been legitimated. Primary evidence of the
relationship should consist of the beneficiary's birth certificate and
the parents' marriage certificate or other evidence of legitimation
issued by civil authorities.
(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
[[Page 80]]
events in question. Such evidence may include, but is not limited to:
money order receipts or cancelled checks showing the father's financial
support of the beneficiary; the father's income tax returns; the
father's medical or insurance records which include the beneficiary as a
dependent; school records for the beneficiary; correspondence between
the parties; or notarized affidavits of friends, neighbors, school
officials, or other associates knowledgeable about the relationship.
(iv) Primary evidence for a stepchild. If a petition is submitted by
a stepparent on behalf of a stepchild or stepson or stepdaughter, the
petition must be supported by the stepchild's or stepson's or
stepdaughter's birth certificate, issued by civil authorities and
showing the name of the beneficiary's parent to whom the petitioner is
married, a marriage certificate issued by civil authorities which shows
that the petitioner and the child's natural parent were married before
the stepchild or stepson or stepdaughter reached the age of eighteen;
and evidence of the termination of any prior marriages of the petitioner
and the natural parent of the stepchild or stepson or stepdaughter.
(v) Secondary evidence. When it is established that primary evidence
is not available, secondary evidence may be accepted. To determine the
availability of primary documents, the Service will refer to the
Department of State's Foreign Affairs Manual (FAM). When the FAM shows
that primary documents are generally available in the country at issue
but the petitioner claims that his or her document is unavailable, a
letter from the appropriate registrar stating that the document is not
available will be required before the Service will accept secondary
evidence. Secondary evidence will be evaluated for its authenticity and
credibility. Secondary evidence may take the form of historical
evidence; such evidence must have been issued contemporaneously with the
event which it documents any may include, but is not limited to, medical
records, school records, and religious documents. Affidavits may also by
accepted. When affidavits are submitted, they must be sworn to by
persons who were born at the time of and who have personal knowledge of
the event to which they attest. Any affidavit must contain the affiant's
full name and address, date and place of birth, relationship to the
party, if any, and complete details concerning how the affiant acquired
knowledge of the event.
(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
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take place. If the adopting parent was granted legal custody by the
court or recognized governmental entity prior to the adoption, that
period may be counted toward fulfillment of the two-year legal custody
requirement. However, if custody was not granted prior to the adoption,
the adoption decree shall be deemed to mark the commencement of legal
custody. An informal custodial or guardianship document, such as a sworn
affidavit signed before a notary public, is insufficient for this
purpose.
(B) Evidence must also be submitted to show that the beneficiary
resided with the petitioner for at least two years. Generally, such
documentation must establish that the petitioner and the beneficiary
resided together in a familial relationship. Evidence of parental
control may include, but is not limited to, evidence that the adoptive
parent owns or maintains the property where the child resides and
provides financial support and day-to-day supervision. The evidence must
clearly indicate the physical living arrangements of the adopted child,
the adoptive parent(s), and the natural parent(s) for the period of time
during which the adoptive parent claims to have met the residence
requirement. When the adopted child continued to reside in the same
household as a natural parent(s) during the period in which the adoptive
parent petitioner seeks to establish his or her compliance with this
requirement, the petitioner has the burden of establishing that he or
she exercised primary parental control during that period of residence.
(C) Legal custody and residence occurring prior to or after the
adoption will satisfy both requirements. Legal custody, like residence,
is accounted for in the aggregate. Therefore, a break in legal custody
or residence will not affect the time already fulfilled. To meet the
definition of child contained in sections 101(b)(1)(E) and 101(b)(2) of
the Act, the child must have been under 16 years of age when the
adoption is finalized.
(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,
[[Page 82]]
and otherwise qualify as the abuser's child under the definition of
child contained in section 101(b)(1) of the Act when the petition is
filed and when it is approved. Termination of the abuser's parental
rights or a change in legal custody does not alter the self-petitioning
relationship provided the child meets the requirements of section
101(b)(1) of the Act.
(iii) Citizenship or immigration status of the abuser. The abusive
parent must be a citizen of the United States or a lawful permanent
resident of the United States when the petition is filed and when it is
approved. Changes in the abuser's citizenship or lawful permanent
resident status after the approval will have no effect on the self-
petition. A self-petition approved on the basis of a relationship to an
abusive lawful permanent resident will not be automatically upgraded to
immediate relative status. The self-petitioning child would not be
precluded, however, from filing a new self-petition for immediate
relative classification after the abuser's naturalization, provided the
self-petitioning child continues to meet the self-petitioning
requirements.
(iv) Eligibility for immigrant classification. A self-petitioner is
required to comply with the provisions of section 204(c) of the Act,
section 204(g) of the Act, and section 204(a)(2) of the Act.
(v) Residence. A self-petition will not be approved if the self-
petitioner is not residing in the United States when the self-petition
is filed. The self-petitioner is not required to be living with the
abuser when the petition is filed, but he or she must have resided with
the abuser in the United States in the past.
(vi) Battery or extreme cruelty. For the purpose of this chapter,
the phrase ``was battered by or was the subject of extreme cruelty''
includes, but is not limited to, being the victim of any act or
threatened act of violence, including any forceful detention, which
results or threatens to result in physical or mental injury.
Psychological or sexual abuse or exploitation, including rape,
molestation, incest (if the victim is a minor), or forced prostitution
shall be considered acts of violence. Other abusive actions may also be
acts of violence under certain circumstances, including acts that, in
and of themselves, may not initially appear violent but are a part of an
overall pattern of violence. The qualifying abuse must have been
committed by the citizen or lawful permanent resident parent, must have
been perpetrated against the self-petitioner, and must have taken place
while the self-petitioner was residing with the abuser.
(vii) Good moral character. A self-petitioner will be found to lack
good moral character if he or she is a person described in section
101(f) of the Act. Extenuating circumstances may be taken into account
if the person has not been convicted of an offense or offenses but
admits to the commission of an act or acts that could show a lack of
good moral character under section 101(f) of the Act. A person who was
subjected to abuse in the form of forced prostitution or who can
establish that he or she was forced to engage in other behavior that
could render the person excludable under section 212(a) of the Act would
not be precluded from being found to be a person of good moral
character, provided the person has not been convicted for the commission
of the offense or offenses in a court of law. A self-petitioner will
also be found to lack good moral character, unless he or she establishes
extenuating circumstances, if he or she willfully failed or refused to
support dependents; or committed unlawful acts that adversely reflect
upon his or her moral character, or was convicted or imprisoned for such
acts, although the acts do not require an automatic finding of lack of
good moral character. A self-petitioner's claim of good moral character
will be evaluated on a case-by-case basis, taking into account the
provisions of section 101(f) of the Act and the standards of the average
citizen in 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
[[Page 83]]
extreme hardship submitted with a self-petition, including evidence of
hardship arising from circumstances surrounding the abuse. The extreme
hardship claim will be evaluated on a case-by-case basis after a review
of the evidence in the case. Self-petitioners are encouraged to cite and
document all applicable factors, since there is no guarantee that a
particular reason or reasons will result in a finding that deportation
would cause extreme hardship. Hardship to persons other than the self-
petitioner cannot be considered in determining whether a self-
petitioning child's deportation would cause extreme hardship.
(2) Evidence for a child's self-petition--(i) General. Self-
petitioners are encouraged to submit primary evidence whenever possible.
The Service will consider, however, any credible evidence relevant to
the petition. The determination of what evidence is credible and the
weight to be given that evidence shall be within the sole discretion of
the Service.
(ii) Relationship. A self-petition filed by a child must be
accompanied by evidence of citizenship of the United States citizen or
proof of the immigration status of the lawful permanent resident abuser.
It must also be accompanied by evidence of the relationship. Primary
evidence of the relationship between:
(A) The self-petitioning child and an abusive biological mother is
the self-petitioner's birth certificate issued by civil authorities;
(B) A self-petitioning child who was born in wedlock and an abusive
biological father is the child's birth certificate issued by civil
authorities, the marriage certificate of the child's parents, and
evidence of legal termination of all prior marriages, if any;
(C) A legitimated self-petitioning child and an abusive biological
father is the child's birth certificate issued by civil authorities, and
evidence of the child's legitimation;
(D) A self-petitioning child who was born out of wedlock and an
abusive biological father is the child's birth certificate issued by
civil authorities showing the father's name, and evidence that a bona
fide parent-child relationship has been established between the child
and the parent;
(E) A self-petitioning stepchild and an abusive stepparent is the
child's birth certificate issued by civil authorities, the marriage
certificate of the child's parent and the stepparent showing marriage
before the stepchild reached 18 years of age, and evidence of legal
termination of all prior marriages of either parent, if any; and
(F) An adopted self-petitioning child and an abusive adoptive parent
is an adoption decree showing that the adoption took place before the
child reached 16 years of age, and evidence that the child has been
residing with and in the legal custody of the abusive adoptive parent
for at least 2 years.
(iii) Residence. One or more documents may be submitted showing that
the self-petitioner and the abuser have resided together in the United
States. One or more documents may also be submitted showing that the
self-petitioner is residing in the United States when the self-petition
is filed. Employment records, school records, hospital or medical
records, rental records, insurance policies, affidavits or any other
type of relevant credible evidence of residency may be submitted.
(iv) Abuse. Evidence of abuse may include, but is not limited to,
reports and affidavits from police, judges and other court officials,
medical personnel, school officials, clergy, social workers, and other
social service agency personnel. Persons who have obtained an order of
protection against the abuser or taken other legal steps to end the
abuse are strongly encouraged to submit copies of the relating legal
documents. Evidence that the abuse victim sought safe-haven in a
battered women's shelter or similar refuge may be 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
[[Page 84]]
affidavit. The affidavit should be accompanied by a local police
clearance or a state-issued criminal background check from each locality
or state in the United States in which the self-petitioner has resided
for six or more months during the 3-year period immediately preceding
the filing of the self-petition. Self-petitioners who lived outside the
United States during this time should submit a police clearance,
criminal background check, or similar report issued by the appropriate
authority in the foreign country in which he or she resided for six or
more months during the 3-year period immediately preceding the filing of
the self-petition. If police clearances, criminal background checks, or
similar reports are not available for some or all locations, the self-
petitioner may include an explanation and submit other evidence with his
or her affidavit. The Service will consider other credible evidence of
good moral character, such as affidavits from responsible persons who
can knowledgeably attest to the self-petitioner's good moral character.
A child who is less than 14 years of age is presumed to be a person of
good moral character and is not required to submit affidavits of good
moral character, police clearances, criminal background checks, or other
evidence of good moral character.
(vi) Extreme hardship. Evidence of extreme hardship may include
affidavits, medical reports, protection orders and other court
documents, police reports, and other relevant credible evidence.
(3) Decision on and disposition of the petition--(i) Petition
approved. If the self-petitioning child will apply for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the self-petitioner will apply for an
immigrant visa abroad, the approved self-petition will be forwarded to
the Department of State's National Visa Center.
(ii) 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.
(6) Prima facie determination. (i) Upon receipt of a self-petition
under paragraph (e)(1) of this section, the Service shall make a
determination as to whether the petition and the supporting
documentation establish a ``prima facie case'' for purposes of 8 U.S.C.
1641, as amended by section 501 of Public Law 104-208.
(ii) For purposes of paragraph (e)(6)(i) of this section, a prima
facie case is established only if the petitioner submits a completed
Form I-360 and other evidence supporting all of the elements required of
a self-petitioner in paragraph (e)(1) of this section. A finding of
prima facie eligibility does not relieve the petitioner of the burden of
providing additional evidence in support of the petition and does not
establish eligibility for the underlying petition.
(iii) If the Service determines that a petitioner has made a ``prima
facie case'' the Service shall issue a Notice of Prima Facie Case to the
petitioner. Such Notice shall be valid until the Service either grants
or denies the petition.
(iv) For purposes of adjudicating the petition submitted under
paragraph (e)(1) of this section, a prima facie determination:
(A) Shall not be considered evidence in support of the petition;
[[Page 85]]
(B) Shall not be construed to make a determination of the
credibility or probative value of any evidence submitted along with that
petition; and,
(C) Shall not relieve the self-petitioner of his or her burden of
complying with all of the evidentiary requirements of paragraph (e)(2)
of this section.
(f) Petition for a parent--(1) Eligibility. Only a United States
citizen who is twenty-one years of age or older may file a petition on
behalf of a parent for classification under section 201(b) of the Act.
(2) Evidence to support a petition for a parent. In addition to
evidence of United States citizenship as listed in Sec. 204.1(g) of
this part, the petitioner must also provide evidence of the claimed
relationship.
(i) Primary evidence if petitioner is a legitimate son or daughter.
If a petition is submitted on behalf of the mother, the birth
certificate of the petitioner showing the mother's name must accompany
the petition. If the mother's name on the birth certificate is different
from her name as reflected in the petition, evidence of the name change
must also be submitted. If a petition is submitted on behalf of the
father, the birth certificate of the petitioner, a marriage certificate
of the parents, and proof of legal termination of the parents' prior
marriages, if any, issued by civil authorities must accompany the
petition. If the father's name on the birth certificate has been legally
changed, evidence of the name change must also accompany the petition.
(ii) Primary evidence if petitioner is a legitimated son or
daughter. A child can be legitimated through the marriage of his or her
natural parents, by the laws of the country or state of the child's
residence or domicile, or by the laws of the country or state of the
father's residence or domicile. If the legitimation is based on the
natural parent's marriage, such marriage must have taken place while the
child was under the age of eighteen. If the legitimation is based on the
laws of the country or state of the child's residence or domicile, the
law must have taken effect before the child's eighteenth birthday. If
the legitimation is based on the laws of the country or state of the
father's residence or domicile, the father must have resided--while the
child was under eighteen years of age--in the country or state under
whose laws the child has been legitimated. Primary evidence of the
relationship should consist of petitioner's birth certificate and the
parents' marriage certificate or other evidence of legitimation issued
by civil authorities.
(iii) Primary evidence if the petitioner is an illegitimate son or
daughter. If a petition is submitted on behalf of the mother, the
petitioner's birth certificate, issued by civil authorities and showing
the mother's name, must accompany the petition. If the mother's name on
the birth certificate is different from her name as reflected in the
petition, evidence of the name change must also be submitted. If the
petition is submitted on behalf of the purported father of the
petitioner, the petitioner must show that the beneficiary is his or her
natural father and that a bona fide parent-child relationship was
established when the petitioner was unmarried and under twenty-one years
of age. Such a relationship will be deemed to exist or to have existed
where the father demonstrates or has demonstrated an active concern for
the child's support, instruction, and general welfare. Primary evidence
to establish that the beneficiary is the petitioner's natural father is
the petitioner's birth certificate, issued by civil authorities and
showing the father's name. If the father's name has been legally
changed, evidence of the name change must accompany the petition.
Evidence of a parent/child relationship should establish more than
merely a biological relationship. Emotional and/or financial ties or a
genuine concern and interest by the father for the child's support,
instruction, and general welfare must be shown. There should be evidence
that the father and child actually lived together or that the father
held the child out as being his own, that he provided for some or all of
the child's needs, or that in general the father's behavior evidenced a
genuine concern for the child. The most persuasive evidence for
establishing a bona fide parent/child relationship is documentary
evidence which was contemporaneous with the
[[Page 86]]
events in question. Such evidence may include, but is not limited to:
money order receipts or cancelled checks showing the father's financial
support of the beneficiary; the father's income tax returns; the
father's medical or insurance records which include the petitioner as a
dependent; school records for the petitioner; correspondence between the
parties; or notarized affidavits of friends, neighbors, school
officials, or other associates knowledgeable as to the relationship.
(iv) Primary evidence if petitioner is an adopted son or daughter. A
petition may be submitted for an adoptive parent by a United States
citizen who is twenty-one years of age or older if the adoption took
place before the petitioner's sixteenth birthday and if the two year
legal custody and residence requirements have been met. A copy of the
adoption decree, issued by the civil authorities, must accompany the
petition.
(A) Legal custody means the assumption of responsibility for a minor
by an adult under the laws of the state and under the order or approval
of a court of law or other appropriate government entity. This provision
requires that a legal process involving the courts or other recognized
government entity take place. If the adopting parent was granted legal
custody by the court or recognized governmental entity prior to the
adoption, that period may be counted toward fulfillment of the two-year
legal custody requirement. However, if custody was not granted prior to
the adoption, the adoption decree shall be deemed to mark the
commencement of legal custody. An informal custodial or guardianship
document, such as a sworn affidavit signed before a notary public, is
insufficient for this purpose.
(B) Evidence must also be submitted to show that the beneficiary
resided with the petitioner for at least two years. Generally, such
documentation must establish that the petitioner and the beneficiary
resided together in a parental relationship. The evidence must clearly
indicate the physical living arrangements of the adopted child, the
adoptive parent(s), and the natural parent(s) for the period of time
during which the adoptive parent claims to have met the residence
requirement.
(C) Legal custody and residence occurring prior to or after the
adoption will satisfy both requirements. Legal custody, like residence,
is accounted for in the aggregate. Therefore, a break in legal custody
or residence will not affect the time already fulfilled. To meet the
definition of child contained in sections 101(b)(1)(E) and 101(b)(2) of
the Act, the child must have been under 16 years of age when the
adoption is finalized.
(v) Name change. When the petition is filed by a child for the
child's parent, and the parent's name is not on the child's birth
certificate, evidence of the name change (such as the parent's marriage
certificate, a legal document showing the parent's name change, or other
similar evidence) must accompany the petition. If the petitioner's name
has been legally changed, evidence of the name change must also
accompany the petition.
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If the
beneficiary is in the United States and is eligible for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the petition is denied, the petitioner will
be notified of the reasons for the denial and of the right to appeal in
accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. A child or a spouse of a principal
alien who is approved for classification as an immediate relative is not
eligible for derivative classification and must have a separate petition
approved on his or her behalf.
(g) Petition for a brother or sister--(1) Eligibility. Only a United
States citizen who is twenty-one years of age or older may file a
petition of a brother or sister for classification under section
203(a)(4) of the Act.
(2) Evidence to support a petition for brother or sister. In
addition to evidence of United States citizenship, the petitioner must
also provide evidence of the claimed relationship.
(i) Primary evidence if the siblings share a common mother or are
both legitimate children of a common father. If a
[[Page 87]]
sibling relationship is claimed through a common mother, the petition
must be supported by a birth certificate of the petitioner and a birth
certificate of the beneficiary showing a common mother. If the mother's
name on one birth certificate is different from her name as reflected on
the other birth certificate or in the petition, evidence of the name
change must also be submitted. If a sibling relationship is claimed
through a common father, the birth certificates of the beneficiary and
petitioner, a marriage certificate of the parents' and proof of legal
termination of the parents, prior marriage(s), if any, issued by civil
authorities must accompany the petition. If the father's name has been
legally changed, evidence of the name change must also accompany the
petition.
(ii) Primary evidence if either or both siblings are legitimated. A
child can be legitimated through the marriage of his or her natural
parents, by the laws of the country or state of the child's residence or
domicile, or by the laws of the country or state of the father's
residence or domicile. If the legitimation is based on the natural
parents' marriage, such marriage must have taken place while the child
was under the age of eighteen. If the legitimation is based on the laws
of the country or state of the child's residence or domicile, the law
must have taken effect before the child's eighteenth birthday. If based
on the laws of the country or state of the father's residence or
domicile, the father must have resided--while the child was under
eighteen years of age--in the country or state under whose laws the
child has been legitimated. Primary evidence of the relationship should
consist of the petitioner's birth certificate, the beneficiary's birth
certificate, and the parents' marriage certificate or other evidence of
legitimation issued by civil authorities.
(iii) Primary evidence if either sibling is illegitimate. If one or
both of the siblings is (are) the illegitimate child(ren) of a common
father, the petitioner must show that they are the natural children of
the father and that a bona fide parent-child relationship was
established when the illegitimate child(ren) was (were) unmarried and
under twenty-one years of age. Such a relationship will be deemed to
exist or to have existed where the father demonstrates or has
demonstrated an active concern for the child's support, instruction, and
general welfare. Primary evidence is the petitioner's and beneficiary's
birth certificates, issued by civil authorities and showing the father's
name, and evidence that the siblings have or had a bona fide parent/
child relationship with the natural father. If the father's name has
been legally changed, evidence of the name change must accompany the
petition. Evidence of a parent/child relationship should establish more
than merely a biological relationship. Emotional and/or financial ties
or a genuine concern and interest by the father for the child's support,
instruction, and general welfare must be shown. There should be evidence
that the father and child actually lived together or that the father
held the child out as being his own, that he provided for some or all of
the child's needs, or that in general the father's behavior evidenced a
genuine concern for the child. The most persuasive evidence for
establishing a bona fide parent/child relationship is documentary
evidence which was contemporaneous with the events in question. Such
evidence may include, but is not limited to: money order receipts or
canceled checks showing the father's financial support of the
beneficiary; the father's income tax returns; the father's medical or
insurance records which include the beneficiary as a dependent; school
records for the beneficiary; correspondence between the parties; or
notarized affidavits of friends, neighbors, school officials, or other
associates knowledgeable about the relationship.
(iv) Primary evidence for stepsiblings. If the petition is submitted
on behalf of a brother or sister having a common father, the
relationship of both the petitioner and the beneficiary to the father
must be established as required in paragraphs (g)(2)(ii) and (g)(2)(iii)
of this section. If the petitioner and beneficiary are stepsiblings
through the marriages of their common father to different mothers, the
marriage certificates of the parents and evidence of the termination of
any prior marriages of the parents must be submitted.
[[Page 88]]
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If the
beneficiary is in the United States and is eligible for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the petition is denied, the petitioner will
be notified of the reasons for the denial and of the right to appeal in
accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. A spouse or a child accompanying or
following to join a principal alien beneficiary under this section may
be accorded the same preference and priority date as the principal alien
without the necessity of a separate petition.
(5) Name change. If the name of the petitioner, the beneficiary, or
both has been legally changed, evidence showing the name change (such as
a marriage certificate, a legal document showing the name change, or
other similar evidence) must accompany the petition.
(h) Validity of approved petitions--(1) General. Unless terminated
pursuant to section 203(g) of the Act or revoked pursuant to part 205 of
this chapter, the approval of a petition to classify an alien as a
preference immigrant under paragraphs (a)(1), (a)(2), (a)(3), or (a)(4)
of section 203 of the Act, or as an immediate relative under section
201(b) of the Act, shall remain valid for the duration of the
relationship to the petitioner and of the petitioner's status as
established in the petition.
(2) Subsequent petition by same petitioner for same beneficiary.
When a visa petition has been approved, and subsequently a new petition
by the same petitioner is approved for the same preference
classification on behalf of the same beneficiary, the latter approval
shall be regarded as a reaffirmation or reinstatement of the validity of
the original petition, except when the original petition has been
terminated pursuant to section 203(g) of the Act or revoked pursuant to
part 205 of this chapter, or when an immigrant visa has been issued to
the beneficiary as a result of the petition approval. A self-petition
filed under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),
204(a)(1)(B)(ii), 204(a)(1)(B)(iii) of the Act based on the relationship
to an abusive citizen or lawful permanent resident of the United States
will not be regarded as a reaffirmation or reinstatement of a petition
previously filed by the abuser. A self-petitioner who has been the
beneficiary of a visa petition filed by the abuser to accord the self-
petitioner immigrant classification as his or her spouse or child,
however, will be allowed to transfer the visa petition's priority date
to the self-petition. The visa petition's priority date may be assigned
to the self-petition without regard to the current validity of the visa
petition. The burden of proof to establish the existence of and the
filing date of the visa petition lies with the self-petitioner, although
the Service will attempt to verify a claimed filing through a search of
the Service's computerized records or other records deemed appropriate
by the adjudicating officer. A new self-petition filed under section
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or
204(a)(1)(B)(iii) of the Act will not be regarded as a reaffirmation or
reinstatement of the original self-petition unless the prior and the
subsequent self-petitions are based on the relationship to the same
abusive citizen or lawful permanent resident of the United States.
(i) Automatic conversion of preference classification--(1) By change
in beneficiary's marital status. (i) A currently valid petition
previously approved to classify the beneficiary as the unmarried son or
daughter of a United States citizen under section 203(a)(1) of the Act
shall be regarded as having been approved for preference status under
section 203(a)(3) of the Act as of the date the beneficiary marries. The
beneficiary's priority date is the same as the date the petition for
classification under section 203(a)(1) of the Act was properly filed.
(ii) A currently valid petition previously approved to classify a
child of a United States citizen as an immediate relative under section
201(b) of the Act shall be regarded as having been approved for
preference status under section 203(a)(3) of the Act as of the date the
beneficiary marries. The beneficiary's priority date is the same as the
date the petition for 201(b) classification was properly filed.
[[Page 89]]
(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 valid petition according preference
status under section 203(a)(2) of the Act for the unmarried son or
daughter over twenty-one years of age shall be regarded as having been
approved under section 203(a)(1) of the Act. In any case of conversion
to classification under section 203(a)(1) of the Act, the beneficiary's
priority date is the same as the date the petition for classification
under section 203(a)(2) of the Act was properly filed. A self-petition
filed under section 204(a)(1)(B)(ii) or 204(a)(1)(B)(iii) of the Act
based on the relationship to an abusive lawful permanent resident of the
United States for classification under section 203(a)(2) of the Act will
not be affected by the abuser's naturalization and will not be
automatically converted to a petition for immediate relative
classification.
[57 FR 41057, Sept. 9, 1992, as amended at 60 FR 34090, June 30, 1995;
60 FR 38948, July 31, 1995; 61 FR 13073, 13075, 13077, Mar. 26, 1996; 62
FR 10336, Mar. 6, 1997; 62 FR 60771, Nov. 13, 1997]
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
[[Page 90]]
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 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
[[Page 91]]
the law of the State of the orphan's proposed residence to conduct the
research and preparation for a home study, including the required
personal interview(s). This term includes a public agency with authority
under that State's law in adoption matters, public or private adoption
agencies licensed or otherwise authorized by the laws of that State to
place children for adoption, and organizations or individuals licensed
or otherwise authorized to conduct the research and preparation for a
home study, including the required personal interview(s), under the laws
of the State of the orphan's proposed residence. In the case of an
orphan whose adoption has been finalized abroad and whose adoptive
parents reside abroad, the home study preparer includes any party
licensed or otherwise authorized to conduct home studies under the law
of any State of the United States, or any party licensed or otherwise
authorized by the foreign country's adoption authorities to conduct home
studies under the laws of the foreign country.
Incapable of providing proper care means that a sole or surviving
parent is unable to provide for the child's basic needs, consistent with
the local standards of the foreign sending country.
Loss from both parents means the involuntary severance or detachment
of the child from the parents in a permanent manner such as that caused
by a natural disaster, civil unrest, or other calamitous event beyond
the control of the parents, as verified by a competent authority in
accordance with the laws of the foreign sending country.
Orphan petition means Form I-600 (Petition to Classify Orphan as an
Immediate Relative). The petition must be completed in accordance with
the form's instructions and submitted with the required supporting
documentation and, if there is not an advanced processing application
approved within the previous 18 months or pending, the fee as required
in 8 CFR 103.7(b)(1). The petition must be signed in accordance with the
form's instructions by the married petitioner and spouse, or the
unmarried petitioner.
Overseas site means the Department of State immigrant visa-issuing
post having jurisdiction over the orphan's residence, or in foreign
countries in which the Services has an office or offices, the Service
office having jurisdiction over the orphan's residence.
Petition is synonymous with orphan petition.
Petitioner means a married United States citizen of any age, or an
unmarried United States citizen who is at least 24 years old at the time
he or she files the advanced processing application and at least 25
years old at the time he or she files the orphan petition. In the case
of a married couple, both of whom are United States citizens, either
party may be the petitioner.
Prospective adoptive parents means a married United States citizen
of any age and his or her spouse of any age, or an unmarried United
States citizen who is at least 24 years old at the time he or she files
the advanced processing application and at least 25 years old at the
time he or she files the orphan petition. The spouse of the United
States citizen may be a citizen or an alien. An alien spouse must be in
lawful immigration status if residing in the United States.
Separation from both parents means the involuntary severance of the
child from his or her parents by action of a competent authority for
good cause and in accordance with the laws of the foreign-sending
country. The parents must have been properly notified and granted the
opportunity to contest such action. The termination of all parental
rights and obligations must be permanent and unconditional.
Sole parent means the mother when it is established that the child
is illegitimate and has not acquired a parent within the meaning of
section 101(b)(2) of the Act. An illegitimate child shall be considered
to have a sole parent if his or her father has severed all parental
ties, rights, duties, and obligations 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
[[Page 92]]
of providing proper care as that term is defined in this section.
Surviving parent means the child's living parent when the child's
other parent is dead, and the child has not acquired another parent
within the meaning of section 101(b)(2) of the Act. In all cases, a
surviving parent must be incapable of providing proper care as that term
is defined in this section.
(c) Supporting documentation for an advanced processing application.
The prospective adoptive parents may file an advanced processing
application before an orphan is identified in order to secure the
necessary clearance to file the orphan petition. Any document not in the
English language must be accompanied by a certified English translation.
(1) Required supporting documentation that must accompany the
advanced processing application. The following supporting documentation
must accompany an advanced processing application at the time of filing:
(i) Evidence of the petitioner's United States citizenship as set
forth in Sec. 204.1(g) and, if the petitioner is married and the
married couple is residing in the United States, evidence of the
spouse's United States citizenship or lawful immigration status;
(ii) A copy of the petitioner's marriage certificate to his or her
spouse, if the petitioner is currently married;
(iii) Evidence of legal termination of all previous marriages for
the petitioner and/or spouse, if previously married; and
(iv) Evidence of compliance with preadoption requirements, if any,
of the State of the orphan's proposed residence in cases where it is
known that there will be no adoption abroad, or that both members of the
married prospective adoptive couple or the unmarried prospective
adoptive parent will not personally see the child prior to, or during,
the adoption abroad, and/or that the adoption abroad will not be full
and final. Any preadoption requirements which cannot be met at the time
the advanced processing application is filed because of operation of
State law must be noted and explained when the application is filed.
Preadoption requirements must be met at the time the petition is filed,
except for those which cannot be met until the orphan arrives in the
United States.
(2) Home study. The home study must comply with the requirements
contained in paragraph (e) of this section. If the home study is not
submitted when the advanced processing application is filed, it must be
submitted within one year of the filing date of the advanced processing
application, or the application will be denied pursuant to paragraph
(h)(5) of this section.
(3) After receipt of a properly filed advanced processing
application, the Service will fingerprint each member of the married
prospective adoptive couple or the unmarried prospective adoptive
parent, as prescribed in Sec. 103.2(e) of this chapter. The Service
will also fingerprint each additional adult member of the prospective
adoptive parents' household, as prescribed in Sec. 103.2(e) of this
chapter. The Service may waive the requirement that each additional
adult member of the prospective adoptive parents' household be
fingerprinted when it determines that such adult is physically unable to
be fingerprinted because of age or medical condition.
(d) Supporting documentation for a petition for an identified
orphan. Any document not in the English language must be accompanied by
a certified English translation. If an orphan has been identified for
adoption and the advanced processing application is pending, the
prospective adoptive parents may file the orphan petition at the Service
office where the application is pending. The prospective adoptive
parents who have an approved advanced processing application must file
an orphan petition and all supporting documents within eighteen months
of the date of the approval of the advanced processing application. If
the prospective adoptive parents fail to file the orphan petition within
the eighteen-month period, the advanced processing application shall be
deemed abandoned pursuant to paragraph (h)(7) of this section. If the
prospective adoptive parents file the orphan petition after the
eighteen-month period, the petition shall be denied pursuant to
paragraph (h)(13) of this section. Prospective adoptive parents who do
not have an advanced processing application approved or pending
[[Page 93]]
may file the application and petition concurrently on one Form I-600 if
they have identified an orphan for adoption. An orphan petition must be
accompanied by full documentation as follows:
(1) Filing an orphan petition after the advanced processing
application has been approved. The following supporting documentation
must accompany an orphan petition filed after approval of the advanced
processing application:
(i) Evidence of approval of the advanced processing application;
(ii) The orphan's birth certificate, or if such a certificate is not
available, an explanation together with other proof of identity and age;
(iii) Evidence that the child is an orphan as appropriate to the
case:
(A) Evidence that the orphan has been abandoned or deserted by,
separated or lost from both parents, or that both parents have
disappeared as those terms are defined in paragraph (b) of this section;
or
(B) The death certificate(s) of the orphan's parent(s), if
applicable;
(C) If the orphan has only a sole or surviving parent, as defined in
paragraph (b) of this section, evidence of this fact and evidence that
the sole or surviving parent is incapable of providing for the orphan's
care and has irrevocably released the orphan for emigration and
adoption; and
(iv) Evidence of adoption abroad or that the prospective adoptive
parents have, or a person or entity working on their behalf has, custody
of the orphan for emigration and adoption in accordance with the laws of
the foreign-sending country:
(A) A legible, certified copy of the adoption decree, if the orphan
has been the subject of a full and final adoption abroad, and evidence
that the unmarried petitioner, or married petitioner and spouse, saw the
orphan prior to or during the adoption proceeding abroad; or
(B) If the orphan is to be adopted in the United States because
there was no adoption abroad, or the unmarried petitioner, or married
petitioner and spouse, did not personally see the orphan prior to or
during the adoption proceeding abroad, and/or the adoption abroad was
not full and final:
(1) Evidence that the prospective adoptive parents have, or a person
or entity working on their behalf has, secured custody of the orphan in
accordance with the laws of the foreign-sending country;
(2) An irrevocable release of the orphan for emigration and adoption
from the person, organization, or competent authority which had the
immediately previous legal custody or control over the orphan if the
adoption was not full and final under the laws of the foreign-sending
country;
(3) Evidence of compliance with all preadoption requirements, if
any, of the State of the orphan's proposed residence. (Any such
requirements that cannot be complied with prior to the orphan's arrival
in the United States because of State law must be noted and explained);
and
(4) Evidence that the State of the orphan's proposed residence
allows readoption or provides for judicial recognition of the adoption
abroad if there was an adoption abroad which does not meet statutory
requirements pursuant to section 101(b)(1)(F) of the Act, because the
unmarried petitioner, or married petitioner and spouse, did not
personally see the orphan prior to or during the adoption proceeding
abroad, and/or the adoption abroad was not full and final.
(2) Filing an orphan petition while the advanced processing
application is pending. An orphan petition filed while an advanced
processing application is pending must be filed at the Service office
where the application is pending. The following supporting documentation
must accompany an orphan petition filed while the advanced processing
application is pending:
(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.
[[Page 94]]
(3) Filing an orphan petition concurrently with the advanced
processing application. A petition filed concurrently with the advanced
processing application must be submitted on Form I-600, completed and
signed in accordance with the form's instructions. (Under this
concurrent procedure, Form I-600 serves as both the Forms I-600A and I-
600, and the prospective adoptive parents should not file a separate
Form I-600A). The following supporting documentation must accompany a
petition filed concurrently with the application under this provision:
(i) The supporting documentation for an advanced processing
application required in paragraph (c) of this section; and
(ii) The supporting documentation for an orphan petition required in
paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of this
section.
(e) Home study requirements. For immigration purposes, a home study
is a process for screening and preparing prospective adoptive parents
who are interested in adopting an orphan from another country. The home
study should be tailored to the particular situation of the prospective
adoptive parents: for example, a family which previously has adopted
children will require different preparation than a family that has no
adopted children. If there are any additional adult members of the
prospective adoptive parents' household, the home study must address
this fact. The home study preparer must interview any additional adult
member of the prospective adoptive parents' household and assess him or
her in light of the requirements of paragraphs (e)(1), (e)(2)(i), (iii),
(iv), and (v) of this section. A home study must be conducted by a home
study preparer, as defined in paragraph (b) of this section. The home
study, or the most recent update to the home study, must not be more
than six months old at the time the home study is submitted to the
Service. Only one copy of the home study must be submitted to the
Service. Ordinarily, a home study (or a home study and update as
discussed above) will not have to be updated after it has been submitted
to the Service unless there is a significant change in the household of
the prospective adoptive parents such as a change in residence, marital
status, criminal history, financial resources, and/or the addition of
one or more children or other dependents to the family prior to the
orphan's immigration into the United States. In addition to meeting any
State, professional, or agency requirements, a home study must include
the following:
(1) Personal interview(s) and home visit(s). The home study preparer
must conduct at least one interview in person, and at least one home
visit, with the prospective adoptive couple or the unmarried prospective
adoptive parent. Each additional adult member of the prospective
adoptive parents' household must also be interviewed in person at least
once. The home study report must state the number of such interviews and
visits, and must specify any other contacts with the prospective
adoptive parents and any adult member of the prospective adoptive
parents' household.
(2) Assessment of the capabilities of the prospective adoptive
parents to properly parent the orphan. The home study must include a
discussion of the following areas:
(i) Assessment of the physical, mental, and emotional capabilities
of the prospective adoptive parents to properly parent the orphan. The
home study preparer must make an initial assessment of how the physical,
mental, and emotional health of the prospective adoptive parents would
affect their ability to properly care for the prospective orphan. If the
home study preparer determines that there are areas beyond his or her
expertise which need to be addressed, he or she shall refer the
prospective adoptive parents to an appropriate licensed professional,
such as a 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
[[Page 95]]
copy of any outside evaluation(s), and the home study preparer's
recommended restrictions, if any, on the characteristics of the child to
be placed in the home. Additionally, the home study preparer must apply
the requirements of this paragraph to each adult member of the
prospective adoptive parents' household.
(ii) Assessment of the finances of the prospective adoptive parents.
The financial assessment must include a description of the income,
financial resources, debts, and expenses of the prospective adoptive
parents. A statement concerning the evidence that was considered to
verify the source and amount of income and financial resources must be
included. Any income designated for the support of one or more children
in the care and custody of the prospective adoptive parents, such as
funds for foster care, or any income designated for the support of
another member of the household must not be counted towards the
financial resources available for the support of a prospective orphan.
The Service will not routinely require a detailed financial statement or
supporting financial documents. However, should the need arise, the
Service reserves the right to ask for such detailed documentation.
(iii) History of abuse and/or violence--(A) Screening for abuse and
violence--1) Checking available child abuse registries. The home study
preparer must ensure that a check of each prospective adoptive parent
and each adult member of the prospective adoptive parents' household has
been made with available child abuse registries and must include in the
home study the results of the checks including, if applicable, a report
that no record was found to exist. Depending on the access allowed by
the state of proposed residence of the orphan, the home study preparer
must take one of the following courses of action:
(i) If the home study preparer is allowed access to information from
the child abuse registries, he or she shall make the appropriate checks
for each of the prospective adoptive parents and for each adult member
of the prospective adoptive parents' household;
(ii) If the State requires the home study preparer to secure
permission from each of the prospective adoptive parents and for each
adult member of the prospective adoptive parents' household before
gaining access to information in such registries, the home study
preparer must secure such permission from those individuals, and make
the appropriate checks;
(iii) If the State will only release information directly to each of
the prospective adoptive parents and directly to the adult member of the
prospective adoptive parents' household, those individuals must secure
such information and provide it to the home study preparer. The home
study preparer must include the results of these checks in the home
study;
(iv) If the State will not release information to either the home
study preparer or the prospective adoptive parents and the adult members
of the prospective adoptive parents' household, this must be noted in
the home study; or
(v) If the State does not have a child abuse registry, this must be
noted in the home study.
(2) Inquiring about abuse and violence. The home study preparer must
ask each prospective adoptive parent whether he or she has a history of
substance abuse, sexual or child abuse, or domestic violence, even if it
did not result in an arrest or conviction. The home study preparer must
include each prospective adoptive parent's response to the questions
regarding abuse and violence. Additionally, the home study preparer must
apply the requirements of this paragraph to each adult member of the
prospective adoptive parents' household.
(B) Information concerning history of abuse and/or violence. If the
petitioner and/or spouse, if married, disclose(s) 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
[[Page 96]]
and the date of each occurrence. A certified copy of the documentation
showing the final disposition of each incident, which resulted in
arrest, indictment, conviction, and/or any other judicial or
administrative action, must accompany the home study. Additionally, the
prospective adoptive parent must submit a signed statement giving
details including mitigating circumstances, if any, about each incident.
The home study preparer must apply the requirements of this paragraph to
each adult member of the prospective adoptive parents' household.
(C) Evidence of rehabilitation. If a prospective adoptive parent has
a history of substance abuse, sexual or child abuse, and/or domestic
violence, the home study preparer may, nevertheless, make a favorable
finding if the prospective adoptive parent has demonstrated appropriate
rehabilitation. In such a case, a discussion of such rehabilitation
which demonstrates that the prospective adoptive parent is and will be
able to provide proper care for the orphan must be included in the home
study. Evidence of rehabilitation may include an evaluation of the
seriousness of the arrest(s), conviction(s), or history of abuse, the
number of such incidents, the length of time since the last incident,
and any type of counseling or rehabilitation programs which have been
successfully completed. Evidence of rehabilitation may also be provided
by an appropriate licensed professional, such as a psychiatrist,
clinical psychologist, or clinical social worker. The home study report
must include all facts and circumstances which the home study preparer
has considered, as well as the preparer's reasons for a favorable
decision regarding the prospective adoptive parent. Additionally, if any
adult member of the prospective adoptive parents' household has a
history of substance abuse, sexual or child abuse, and/or domestic
violence, the home study preparer must apply the requirements of this
paragraph to that adult member of the prospective adoptive parents'
household.
(D) Failure to disclose or cooperate. Failure to disclose an arrest,
conviction, or history of substance abuse, sexual or child abuse, and/or
domestic violence by the prospective adoptive parents or an adult member
of the prospective adoptive parents' household to the home study
preparer and to the Service, may result in the denial of the advanced
processing application or, if applicable, the application and orphan
petition, pursuant to paragraph (h)(4) of this section. Failure by the
prospective adoptive parents or an adult member of the prospective
adoptive parents' household to cooperate in having available child abuse
registries in accordance with paragraphs (e)(2)(iii)(A)(1) and
(e)(2)(iii)(A)(1)(i) through (e)(2)(iii)(A)(1)(iii) of this section will
result in the denial of the advanced processing application or, if
applicable, the application and orphan petition, pursuant to paragraph
(h)(4) of this section.
(iv) Previous rejection for adoption or prior unfavorable home
study. The home study preparer must ask each prospective adoptive parent
whether he or she previously has been rejected as a prospective adoptive
parent or has been the subject of an unfavorable home study, and must
include each prospective adoptive parent's response to this question in
the home study report. If a prospective adoptive parent previously has
been rejected or found to be unsuitable, the reasons for such a finding
must be set forth as well as the reason(s) why he or she is not being
favorably considered as a prospective adoptive parent. A copy of each
previous rejection and/or unfavorable home study must be attached to the
favorable home study. Additionally, the home study preparer must apply
the requirements of this paragraph to each adult member of the
prospective adoptive parents' household.
(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
[[Page 97]]
and the Service the opportunity to properly evaluate the criminal record
in light of such evidence. When such information is not presented early
in the process, it comes to light when the fingerprint checks are
received by the Service. By that time, the prospective adoptive parents
are usually well into preadoption proceedings of identifying a child and
may even have firm travel plans. At times, the travel plans have to be
rescheduled while the issues raised by the criminal record are
addressed. It is in the best interests of all parties to have any
criminal records disclosed and resolved early in the process.
(3) Living accommodations. The home study must include a detailed
description of the living accommodations where the prospective adoptive
parents currently reside. If the prospective adoptive parents are
planning to move, the home study must include a description of the
living accommodations where the child will reside with the prospective
adoptive parents, if known. If the prospective adoptive parents are
residing abroad at the time of the home study, the home study must
include a description of the living accommodations where the child will
reside in the United States with the prospective adoptive parents, if
known. Each description must include an assessment of the suitability of
accommodations for a child and a determination whether such space meets
applicable State requirements, if any.
(4) Handicapped or special needs orphan. A home study conducted in
conjunction with the proposed adoption of a special needs or handicapped
orphan must contain a discussion of the prospective adoptive parents'
preparation, willingness, and ability to provide proper care for such an
orphan.
(5) Summary of the counseling given and plans for post-placement
counseling. The home study must include a summary of the counseling
given to prepare the prospective adoptive parents for an international
adoption and any plans for post-placement counseling. Such preadoption
counseling must include a discussion of the processing, expenses,
difficulties, and delays associated with international adoptions.
(6) Specific approval of the prospective adoptive parents for
adoption. If the home study preparer's findings are favorable, the home
study must contain his or her specific approval of the prospective
adoptive parents for adoption and a discussion of the reasons for such
approval. The home study must include the number of orphans which the
prospective adoptive parents may adopt. The home study must state
whether there are any specific restrictions to the adoption such as
nationality, age, or gender of the orphan. If the home study preparer
has approved the prospective parents for a handicapped or special needs
adoption, this fact must be clearly stated.
(7) Home study preparer's certification and statement of authority
to conduct home studies. The home study must include a statement in
which the home study preparer certifies that he or she is licensed or
otherwise authorized by the State of the orphan's proposed residence to
research and prepare home studies. In the case of an orphan whose
adoption was finalized abroad and whose adoptive parents reside abroad,
the home study preparer must certify that he or she is licensed or
otherwise authorized to conduct home studies under the law of any State
of the United States, or authorized by the adoption authorities of the
foreign country to conduct home studies under the laws of the foreign
country. In every case, this statement must cite the State or country
under whose authority the home study preparer is licensed or authorized,
the specific law or regulation authorizing the preparer to conduct home
studies, the license number, if any, and the expiration date, if any, of
this authorization or license.
(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
[[Page 98]]
favorably recommend the home study before it is submitted to the
Service.
(9) Home study updates and amendments--(i) Updates. If the home
study is more than six months old at the time it would be submitted to
the Service, the prospective adoptive parents must ensure that it is
updated by a home study preparer before it is submitted to the Service.
Each update must include screening in accordance with paragraphs
(e)(2)(iii) (A) and (B) of this section.
(ii) Amendments. If there have been any significant changes, such as
a change in the residence of the prospective adoptive parents, marital
status, criminal history, financial resources, and/or the addition of
one or more children or other dependents to the family, the prospective
adoptive parents must ensure that the home study is amended by a home
study preparer to reflect any such changes. If the orphan's proposed
State of residence has changed, the home study amendment must contain a
recommendation in accordance with paragraph (e)(8) of this section, if
required by State law. Any preadoption requirements of the new State
must be complied with in the case of an orphan coming to the United
States to be adopted.
(10) ``Grandfather'' provision for home study. A home study properly
completed in conformance with the regulations in force prior to
September 30, 1994, shall be considered acceptable if submitted to the
Service within 90 days of September 30, 1994. Any such home study
accepted under this ``grandfather'' provision must include screening in
accordance with paragraphs (e)(2)(iii) (A) and (B) of this section.
Additionally, any such home study submitted under this ``grandfather''
provision which is more than six months old at the time of its
submission must be amended or updated pursuant to the requirements of
paragraph (e)(9) of this section.
(f) State preadoption requirements--(1) General. Many States have
preadoption requirements which, under the Act, must be complied with in
every case in which a child is coming to such a State as an orphan to be
adopted in the United States.
(2) Child coming to be adopted in the United States. An orphan is
coming to be adopted in the United States if he or she will not be or
has not been adopted abroad, or if the unmarried petitioner or both the
married petitioner and spouse did not or will not personally see the
orphan prior to or during the adoption proceeding abroad, and/or if the
adoption abroad will not be, or was not, full and final. If the
prospective adoptive parents reside in a State with preadoption
requirements and they plan to have the child come to the United States
for adoption, they must submit evidence of compliance with the State's
preadoption requirements to the Service. Any preadoption requirements
which by operation of State law cannot be met before filing the advanced
processing application must be noted. Such requirements must be met
prior to filing the petition, except for those which cannot be met by
operation of State law until the orphan is physically in the United
States. Those requirements which cannot be met until the orphan is
physically present in the United States must be noted.
(3) Special circumstances. If both members of the prospective
adoptive couple or the unmarried prospective adoptive parent intend to
travel abroad to see the child prior to or during the adoption, the Act
permits the application and/or petition, if otherwise approvable, to be
approved without preadoption requirements having been met. However, if
plans change and both members of the prospective adoptive couple or the
unmarried prospective adoptive parent fail to see the child prior to or
during the adoption, then preadoption requirements must be met before
the immigrant visa can be issued, except for those preadoption
requirements that cannot be met until 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.
[[Page 99]]
(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.
(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
[[Page 100]]
the facts, he or she shall attempt to resolve the issue with the home
study preparer, the agency making the recommendation pursuant to
paragraph (e)(8) of this section, if any, and the prospective adoptive
parents. If such consultations are unsatisfactory, the director may
request a review and opinion from the appropriate State Government
authorities.
(3) Advanced processing application approved.
(i) If the advanced processing application is approved, the
prospective adoptive parents shall be advised in writing. The
application and supporting documents shall be forwarded to the overseas
site where the orphan resides. Additionally, if the petitioner advises
the director that he or she intends to travel abroad to file the
petition, telegraphic notification shall be sent overseas as detailed in
paragraph (j)(1) of this section. The approved application shall be
valid for 18 months from its approval date, unless the approval period
is extended as provided in paragraph (h)(3)(ii) of this section. During
this time, the prospective adoptive parents may file an orphan petition
for one orphan without fee. If approved in the home study for more than
one orphan, the prospective adoptive parents may file a petition for
each of the additional children, to the maximum number approved. If the
orphans are siblings, no additional fee is required. If the orphans are
not siblings, an additional fee is required for each orphan beyond the
first orphan. Approval of an advanced processing application does not
guarantee that the orphan petition will be approved.
(ii) If the BCIS Director, or an officer designated by the BCIS
Director, determines that the ability of a prospective adoptive parent
to timely file a Form I-600 has been adversely affected by the outbreak
of Severe Acute Respiratory Syndrome (SARS) in a foreign country, such
Director or designated officer may extend the validity period of the
approval of the Form I-600A, either in an individual case or for a class
of cases. An extension of the validity of the Form I-600A may be subject
to such conditions as the BCIS Director, or officer designated by the
BCIS Director may establish.
(4) Advanced processing application denied for failure to disclose
history of abuse and/or violence, or for failure to disclose a criminal
history, or for failure to cooperate in checking child abuse registries.
Failure to disclose an arrest, conviction, or history of substance
abuse, sexual or child abuse, and/or domestic violence, or a criminal
history to the home study preparer and to the Service in accordance with
paragraphs (e)(2)(iii) (A) and (B) and (e)(2)(v) of this section may
result in the denial of the advanced processing application, or if
applicable, the application and orphan petition filed concurrently.
Failure by the prospective adoptive parents or an adult member of the
prospective adoptive parents' household to cooperate in having available
child abuse registries checked in accordance with paragraphs
(e)(2)(iii)(A)(1) and (e)(2)(iii)(A)(1)(i) through
(e)(2)(iii)(A)(1)(iii) of this section will result in the denial of the
advanced processing application or, if applicable, the application and
orphan petition filed concurrently. Any new application and/or petition
filed within a year of such denial will also be denied.
(5) Advanced processing denied for failure to submit home study. If
the home study is not submitted within one year of the filing date of
the advanced processing application, the application shall be denied.
This action shall be without prejudice to a new filing at any time with
fee.
(6) Advanced processing application otherwise denied. If the
director finds that the prospective adoptive parents have otherwise
failed to establish eligibility, the applicable provisions of 8 CFR part
103 regarding a letter of intent to deny, if appropriate, and denial and
notification of appeal rights shall govern.
(7) Advanced processing application deemed abandoned for failure to
file orphan petition within eighteen months of application's approval
date. If an orphan petition is not properly filed within eighteen months
of the approval date of the advanced processing application, the
application shall be deemed abandoned. Supporting documentation shall be
returned to the prospective adoptive parents, except for documentation
submitted by a third party which shall be
[[Page 101]]
returned to the third party, and documentation relating to the
fingerprint checks. The director shall dispose of documentation relating
to fingerprint checks in accordance with current policy. Such
abandonment shall be without prejudice to a new filing at any time with
fee.
(8) Orphan petition approved by a stateside Service office. If the
orphan petition is approved by a stateside Service office, the
prospective adoptive parents shall be advised in writing, telegraphic
notification shall be sent to the immigrant visa-issuing post pursuant
to paragraph (j)(3) of this section, and the petition and supporting
documents shall be forwarded to the Department of State.
(9) Orphan petition approved by an overseas Service office. If the
orphan petition is approved by an overseas Service office located in the
country of the orphan's residence, the prospective adoptive parents
shall be advised in writing, and the petition and supporting documents
shall be forwarded to the immigrant visa-issuing post having
jurisdiction for immigrant visa processing.
(10) Orphan petition approved at an immigrant visa-issuing post. If
the orphan petition is approved at an immigrant visa-issuing post, the
post shall initiate immigrant visa processing.
(11) Orphan petition found to be ``not readily approvable'' by a
consular officer. If the consular officer adjudicating the orphan
petition finds that it is ``not readily approvable,'' he or she shall
notify the prospective adoptive parents in his or her consular district
and forward the petition, the supporting documents, the findings of the
I-604 investigation conducted pursuant to paragraph (k)(1) of this
section, and any other relating documentation to the overseas Service
office having jurisdiction pursuant to Sec. 100.4(b) of this chapter.
(12) Orphan petition denied: petitioner fails to establish that the
child is an orphan. If the director finds that the petitioner has failed
to establish that the child is an orphan who is eligible for the
benefits sought, the applicable provisions of 8 CFR part 103 regarding a
letter of intent to deny and notification of appeal rights shall govern.
(13) Orphan petition denied: petitioner files orphan petition more
than eighteen months after the approval of the advanced processing
application. If the petitioner files the orphan petition more than
eighteen months after the approval date of the advanced processing
application, the petition shall be denied. This action shall be without
prejudice to a new filing at any time with fee.
(14) Revocation. The approval of an advanced processing application
or an orphan petition shall be automatically revoked in accordance with
Sec. 205.1 of this chapter, if an applicable reason exists. The
approval of an advanced processing application or an orphan petition
shall be revoked if the director becomes aware of information that would
have resulted in denial had it been known at the time of adjudication.
Such a revocation or any other revocation on notice shall be made in
accordance with Sec. 205.2 of this chapter.
(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
[[Page 102]]
request the director to transfer notification of the approved advanced
processing application to another visa-issuing post. Such a request
shall be made on Form I-824 (Application for Action on an Approved
Application or Petition) with the appropriate fee. The director shall
send a Visas 37 telegram to both the previously and the newly designated
posts. The following shall be inserted after the last numbered standard
entry. ``To: [insert name of previously designated visa-issuing post or
overseas Service office]. Pursuant to the petitioner's request, the
Visas 37 cable previously sent to your post/office in this matter is
hereby invalidated. The approval is being transferred to the other post/
office addressed in this telegram. Please forward the approved advanced
processing application to that destination.'' Prior to sending such a
telegram, the director must ensure that the change in posts does not
alter any conditions of the approval.
(3) Telegraphic notification of approval of an orphan petition.
Unless conditions preclude normal telegraphic transmissions, whenever a
petition is approved by a stateside Service office, the director shall
send telegraphic notification of the approval to the immigrant visa-
issuing post.
(k) Other considerations--(1) I-604 investigations. An I-604
investigation must be completed in every orphan case. The investigation
must be completed by a consular officer except when the petition is
properly filed at a Service office overseas, in which case it must be
completed by a Service officer. An I-604 investigation shall be
completed before a petition is adjudicated abroad. When a petition is
adjudicated by a stateside Service office, the I-604 investigation is
normally completed after the case has been forwarded to visa-issuing
post abroad. However, in a case where the director of a stateside
Service office adjudicating the petition has articulable concerns that
can only be resolved through the I-604 investigation, he or she shall
request the investigation prior to adjudication. In any case in which
there are significant differences between the facts presented in the
approved advanced processing application and/or orphan petition and the
facts uncovered by the I-604 investigation, the overseas site may
consult directly with the appropriate Service office. In any instance
where an I-604 investigation reveals negative information sufficient to
sustain a denial or revocation, the investigation report, supporting
documentation, and petition shall be forwarded to the appropriate
Service office for action. Depending on the circumstances surrounding
the case, the I-604 investigation shall include, but shall not
necessarily be limited to, document checks, telephonic checks,
interview(s) with the natural parent(s), and/or a field investigation.
(2) Authority of consular officers. An American consular officer is
authorized to approve an orphan petition if the Service has made a
favorable determination on the related advanced processing application,
and the petitioner, who has traveled abroad to a country with no Service
office in order to locate or adopt an orphan, has properly 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
[[Page 103]]
nonimmigrant, however, is ineligible for the benefits of an orphan
petition.
(4) Liaison. Each director shall develop and maintain liaison with
State Government adoption authorities having jurisdiction within his or
her jurisdiction, including the administrator(s) of the Interstate
Compact on the Placement of Children, and with other parties with
interest in international adoptions. Such parties include, but are not
necessarily limited to, adoption agencies, organizations representing
adoption agencies, organizations representing adoptive parents, and
adoption attorneys.
[59 FR 38881, Aug. 1, 1994; 59 FR 42878, Aug. 19, 1994, as amended at 63
FR 12986, Mar. 17, 1998; 68 FR 46926, Aug. 7, 2003]
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 evidence required in paragraph
(f)(1) of this section and shall fingerprint the sponsor in accordance
with Sec. 103.2(e) of this chapter. The petitioner must submit all
required documents within one year of the date of the request or the
petition will be considered to have been abandoned. To reactivate an
abandoned petition, the petitioner must submit a new petition, Form I-
360, without the previously submitted documentation, to the Service
office having jurisdiction over the prior petition.
(2) Final processing. Upon submission of the documentary evidence
required in paragraph (f)(1) of this section, the director shall
complete the adjudication of the petition.
(e) One-stage processing. If all documentary evidence required in
paragraph (f)(1) of this section is available when the petition is
initially filed, the petitioner may submit it at that time. In that
case, the director shall consider all evidence without using the two-
stage processing procedure set out in paragraph (d) of this section.
(f) Evidence to support a petition for an Amerasian child of a
United States citizen--(1) Two-stage processing of petition--(i)
Preliminary processing. (A) A petition filed by or on behalf of an
Amerasian under this section must be accompanied by evidence that the
beneficiary was born in Korea, Vietnam, Laos, Kampuchea, or Thailand
after December 31, 1950, and before October 22, 1982. If the beneficiary
was born in Vietnam, the beneficiary's ID card must be submitted, if
available. If it is not available, the petitioner must submit an
affidavit explaining why the beneficiary's ID card is not available.
Evidence that the beneficiary was fathered by a United States citizen
must also be presented. The putative father must have been a United
States citizen at the time of the beneficiary's birth or at the time of
the father's death, if his
[[Page 104]]
death occurred prior to the beneficiary's birth. It is not required that
the name of the father be given. Such evidence may include, but need not
be limited to:
(1) The beneficiary's birth and baptismal certificates or other
religious documents;
(2) Local civil records;
(3) Affidavits from knowledgeable witnesses;
(4) Letters or evidence of financial support from the beneficiary's
putative father;
(5) Photographs of the beneficiary's putative father, especially
with the beneficiary; and
(6) Evidence of the putative father's United States citizenship.
(B) The beneficiary's photograph must be submitted.
(C) The beneficiary's marriage certificate, if married, and evidence
of the termination of any previous marriages, if applicable, is
required.
(D) If the beneficiary is under eighteen years of age, a written
irrevocable release for emigration must be received from the
beneficiary's mother or legal guardian. The mother or legal guardian
must authorize the placing agency or agencies to make decisions
necessary for the child's immediate care until the sponsor receives
custody. Interim costs are the responsibility of the sponsor. The mother
or legal guardian must show an understanding of the effects of the
release and state before signing the release whether any money was paid
or any coercion was used. The signature of the mother or legal guardian
must be authenticated by the local registrar, the court of minors, or a
United States immigration or consular officer. The release must include
the mother's or legal guardian's full name, date and place of birth, and
current or permanent address.
(ii) Final processing. (A) If the director notifies the petitioner
that all preliminary processing has been completed in a satisfactory
manner, the petitioner must then submit Form I-361, Affidavit of
Financial Support and Intent to Petition for Legal Custody for Public
Law 97-359 Amerasian, executed by the beneficiary's sponsor, along with
the documentary evidence of the sponsor's financial ability required by
that form. If the beneficiary is under eighteen years of age, the
sponsor must agree to petition the court having jurisdiction, within
thirty days of the beneficiary's arrival in the United States, for legal
custody under the laws of the state where the beneficiary will reside
until the beneficiary is eighteen years of age. The term ``legal
custody'' as used in this section means the assumption of responsibility
for a minor by an adult under the laws of the state in a court of law.
The sponsor must be a United States citizen or lawful permanent resident
who is twenty-one years of age or older and who is of good moral
character.
(B) Other documents necessary to support the petition are:
(1) Evidence of the age of the beneficiary's sponsor;
(2) Evidence of United States citizenship or lawful permanent
residence of the sponsor as provided in Sec. 204.1(f); and
(C) If the beneficiary is under eighteen years of age, evidence that
a public, private, or state agency licensed in the United States to
place children and 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
[[Page 105]]
home studies in the state of the sponsor's and beneficiary's intended
residence in the United States and must be submitted with a favorable
recommendation by the agency.
(B) A plan from the agency to provide follow-up services, including
mediation and counselling, is required to ensure that the sponsor and
the beneficiary have satisfactorily adjusted to the placement and to
determine whether the terms of the sponsorship are being observed. A
report from the agency concerning the placement, including information
regarding any family separation or dislocation abroad that results from
the placement, must also be submitted. In addition, the agency must
submit to the Director, Outreach Program, Immigration and Naturalization
Service, Washington, DC, within 90 days of each occurrence, reports of
any breakdowns in sponsorship that occur, and reports of the steps taken
to remedy these breakdowns. The petitioner must also submit a statement
from the agency:
(1) Indicating that, before signing the sponsorship agreement, the
sponsor has been provided a report covering pre-placement screening and
evaluation, including a health evaluation, of the beneficiary;
(2) Describing the agency's orientation of both the sponsor and the
beneficiary on the legal and cultural aspects of the placement;
(3) Describing the initial facilitation of the placement through
introduction, translation, and similar services; and
(4) Describing the contingency plans to place the beneficiary in
another suitable home if the initial placement fails. The new sponsor
must execute and submit a Form I-361 to the Service office having
jurisdiction over the beneficiary's residence in the United States. The
original sponsor nonetheless retains financial responsibility for the
beneficiary under the terms of the guarantee of financial support and
intent to petition for legal custody which that sponsor executed, unless
that responsibility is assumed by a new sponsor. In the event that the
new sponsor does not comply with the terms of the new guarantee of
financial support and intent to petition for legal custody and if, for
any reason, that guarantee is not enforced, the original sponsor again
becomes financially responsible for the beneficiary.
(2) One-stage processing of petition. If the petitioner chooses to
have the petition processed under the one-stage processing procedure
described in paragraph (e) of this section, the petitioner must submit
all evidence required by paragraph (f)(1) of this section.
(g) Decision--(1) General. The director shall notify the petitioner
of the decision and, if the petition is denied, of the reasons for the
denial. If the petition is denied, the petitioner may appeal the
decision under part 103 of this chapter.
(2) Denial upon completion of preliminary processing. The director
may deny the petition upon completion of the preliminary processing
under paragraph (d) of this section for:
(i) Failure to establish that there is reason to believe the alien
was fathered by a United States citizen; or
(ii) Failure to meet the sponsorship requirements if the
fingerprints of the 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
[[Page 106]]
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, as amended at 63 FR 12986, Mar. 17, 1998]
Sec. 204.5 Petitions for employment-based immigrants.
(a) General. A petition to classify an alien under section
203(b)(1), 203(b)(2), or 203(b)(3) of the Act must be filed on Form I-
140, Petition for Immigrant Worker. A petition to classify an alien
under section 203(b)(4) (as it relates to special immigrants under
section 101(a)(27)(C)) must be filed on kForm I-360, Petition for
Amerasian, Widow, or Special Immigrant. A separate Form I-140 or I-360
must be filed for each beneficiary, accompanied by the applicable fee. A
petition is considered properly filed if it is:
(1) Accepted for processing under the provisions of part 103;
(2) Accompanied by any required individual labor certification,
application for Schedule A designation, or evidence that the alien's
occupation qualifies as a shortage occupation within the Department of
Labor's Labor Market Information Pilot Program; and
(3) Accompanied by any other required supporting documentation.
(b) Jurisdiction. Form I-140 or I-360 must be filed with the Service
Center having jurisdiction over the intended place of employment, unless
specifically designated for local filing by the Associate Commissioner
for Examinations.
(c) Filing petition. Any United States employer desiring and
intending to employ an alien may file a petition for classification of
the alien under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or
203(b)(3) of the Act. An alien, or any person in the alien's behalf, may
file a petition for classification under section 203(b)(1)(A) or
203(b)(4) of the Act (as it relates to special immigrants under section
101(a)(27)(C) of the Act).
(d) Priority date. The priority date of any petition filed for
classification under section 203(b) of the Act which is accompanied by
an individual labor certification from the Department of Labor shall be
the date the request for certification was accepted for processing by
any office within the employment service system of the Department of
Labor. The priority date of any petition filed for classification under
section 203(b) of the Act which is accompanied by an application for
Schedule A designation or with evidence that the alien's occupation is a
shortage occupation within the Department of Labor's Labor Market
Information Pilot Program shall be the date the completed, signed
petition (including all initial evidence and the correct fee) is
properly filed with the Service. The priority date of a petition filed
for classification as a special immigrant under section 203(b)(4) of the
Act shall be the date the completed, signed petition (including all
initial evidence and the correct fee) is properly filed with the
Service. The priority date of an alien who filed for classification as a
special immigrant prior to October 1, 1991, and who is the beneficiary
of an approved I-360 petition after October 1, 1991, shall be the date
the alien applied for an immigrant visa or adjustment of status. In the
case of a special immigrant alien who applied for adjustment
[[Page 107]]
before October 1, 1991, Form I-360 may be accepted and adjudicated at a
Service District Office or sub-office.
(e) Retention of section 203(b) (1), (2), or (3) priority date. A
petition approved on behalf of an alien under sections 203(b) (1), (2),
or (3) of the Act accords the alien the priority date of the approved
petition for any subsequently filed petition for any classification
under sections 203(b) (1), (2), or (3) of the Act for which the alien
may qualify. In the event that the alien is the beneficiary of multiple
petitions under sections 203(b) (1), (2), or (3) of the Act, the alien
shall be entitled to the earliest priority date. A petition revoked
under sections 204(e) or 205 of the Act will not confer a priority date,
nor will any priority date be established as a result of a denied
petition. A priority date is not transferable to another alien.
(f) Maintaining the priority date of a third or sixth preference
petition filed prior to October 1, 1991. Any petition filed before
October 1, 1991, and approved on any date, to accord status under
section 203(a)(3) or 203(a)(6) of the Act, as in effect before October
1, 1991, shall be deemed a petition approved to accord status under
section 203(b)(2) or within the appropriate classification under section
203(b)(3), respectively, of the Act as in effect on or after October 1,
1991, provided that the alien applies for an immigrant visa or
adjustment of status within the two years following notification that an
immigrant visa is immediately available for his or her use.
(g) Initial evidence--(1) General. Specific requirements for initial
supporting documents for the various employment-based immigrant
classifications are set forth in this section. In general, ordinary
legible photocopies of such documents (except for labor certifications
from the Department of Labor) will be acceptable for initial filing and
approval. However, at the discretion of the director, original documents
may be required in individual cases. Evidence relating to qualifying
experience or training shall be in the form of letter(s) from current or
former employer(s) or trainer(s) and shall include the name, address,
and title of the writer, and a specific description of the duties
performed by the alien or of the training received. If such evidence is
unavailable, other documentation relating to the alien's experience or
training will be considered.
(2) Ability of prospective employer to pay wage. Any petition filed
by or for an employment-based immigrant which requires an offer of
employment must be accompanied by evidence that the prospective United
States employer has the ability to pay the proffered wage. The
petitioner must demonstrate this ability at the time the priority date
is established and continuing until the beneficiary obtains lawful
permanent residence. Evidence of this ability shall be either in the
form of copies of annual reports, federal tax returns, or audited
financial statements. In a case where the prospective United States
employer employs 100 or more workers, the director may accept a
statement from a financial officer of the organization which establishes
the prospective employer's ability to pay the proffered wage. In
appropriate cases, additional evidence, such as profit/loss statements,
bank account records, or personnel records, may be submitted by the
petitioner or requested by the Service.
(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;
[[Page 108]]
(ii) Documentation of the alien's membership in associations in the
field for which classification is sought, which require outstanding
achievements of their members, as judged by recognized national or
international experts in their disciplines or fields;
(iii) Published material about the alien in professional or major
trade publications or other major media, relating to the alien's work in
the field for which classification is sought. Such evidence shall
include the title, date, and author of the material, and any necessary
translation;
(iv) Evidence of the alien's participation, either individually or
on a panel, as a judge of the work of others in the same or an allied
field of specification for which classification is sought;
(v) Evidence of the alien's original scientific, scholarly,
artistic, athletic, or business-related contributions of major
significance in the field;
(vi) Evidence of the alien's authorship of scholarly articles in the
field, in professional or major trade publications or other major media;
(vii) Evidence of the display of the alien's work in the field at
artistic exhibitions or showcases;
(viii) Evidence that the alien has performed in a leading or
critical role for organizations or establishments that have a
distinguished reputation;
(ix) Evidence that the alien has commanded a high salary or other
significantly high remuneration for services, in relation to others in
the field; or
(x) Evidence of commercial successes in the performing arts, as
shown by box office receipts or record, cassette, compact disk, or video
sales.
(4) If the above standards do not readily apply to the beneficiary's
occupation, the petitioner may submit comparable evidence to establish
the beneficiary's eligibility.
(5) No offer of employment required. Neither an offer for employment
in the United States nor a labor certification is required for this
classification; however, the petition must be accompanied by clear
evidence that the alien is coming to the United States to continue work
in the area of expertise. Such evidence may include letter(s) from
prospective employer(s), evidence of prearranged commitments such as
contracts, or a statement from the beneficiary detailing plans on how he
or she intends to continue his or her work in the United States.
(i) Outstanding professors and researchers. (1) Any United States
employer desiring and intending to employ a professor or researcher who
is outstanding in an academic field under section 203(b)(1)(B) of the
Act may file an I-140 visa petition for such classification.
(2) Definitions. As used in this section:
Academic field means a body of specialized knowledge offered for
study at an accredited United States university or institution of higher
education.
Permanent, in reference to a research position, means either
tenured, tenure-track, or for a term of indefinite or unlimited
duration, and in which the employee will ordinarily have an expectation
of continued employment unless there is good cause for termination.
(3) Initial evidence. A petition for an outstanding professor or
researcher must be accompanied by:
(i) Evidence that the professor or researcher is recognized
internationally as outstanding in the academic field specified in the
petition. Such evidence 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;
[[Page 109]]
(ii) Evidence that the alien has at least three years of experience
in teaching and/or research in the academic field. Experience in
teaching or research while working on an advanced degree will only be
acceptable if the alien has acquired the degree, and if the teaching
duties were such that he or she had full responsibility for the class
taught or if the research conducted toward the degree has been
recognized within the academic field as outstanding. Evidence of
teaching and/or research experience shall be in the form of letter(s)
from current or former employer(s) and shall include the name, address,
and title of the writer, and a specific description of the duties
performed by the alien; and
(iii) An offer of employment from a prospective United States
employer. A labor certification is not required for this classification.
The offer of employment shall be in the form of a letter from:
(A) A United States university or institution of higher learning
offering the alien a tenured or tenure-track teaching position in the
alien's academic field;
(B) A United States university or institution of higher learning
offering the alien a permanent research position in the alien's academic
field; or
(C) A department, division, or institute of a private employer
offering the alien a permanent research position in the alien's academic
field. The department, division, or institute must demonstrate that it
employs at least three persons full-time in research positions, and that
it has achieved documented accomplishments in an academic field.
(j) Certain multinational executives and managers. (1) A United
States employer may file a petition on Form I-140 for classification of
an alien under section 203(b)(1)(C) of the Act as a multinational
executive or manager.
(2) Definitions. As used in this section:
Affiliate means:
(A) One of two subsidiaries both of which are owned and controlled
by the same parent or individual;
(B) One of two legal entities owned and controlled by the same group
of individuals, each individual owning and controlling approximately the
same share or proportion of each entity; or
(C) In the case of a partnership that is organized in the United
States to provide accounting services, along with managerial and/or
consulting services, and markets its accounting services under an
internationally recognized name under an agreement with a worldwide
coordinating organization that is owned and controlled by the member
accounting firms, a partnership (or similar organization) that is
organized outside the United States to provide accounting' services
shall be considered to be an affiliate of the United States partnership
if it markets its accounting services under the same internationally
recognized name under the agreement with the worldwide coordinating
organization of which the United States partnership is also a member.
Doing business means the regular, systematic, and continuous
provision of goods and/or services by a firm, corporation, or other
entity and does not include the mere presence of an agent or office.
Executive capacity means an assignment within an organization in
which the employee primarily:
(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
[[Page 110]]
authority to hire and fire or recommend those as well as other personnel
actions (such as promotion and leave authorization), or, if no other
employee is directly supervised, functions at a senior level within the
organizational hierarchy or with respect to the function managed; and
(D) Exercises direction over the day-to-day operations of the
activity or function for which the employee has authority.
Multinational means that the qualifying entity, or its affiliate, or
subsidiary, conducts business in two or more countries, one of which is
the United States.
Subsidiary means a firm, corporation, or other legal entity of which
a parent owns, directly or indirectly, more than half of the entity and
controls the entity; or owns, directly or indirectly, half of the entity
and controls the entity; or owns, directly or indirectly, 50 percent of
a 50-50 joint venture and has equal control and veto power over the
entity; or owns, directly or indirectly, less than half of the entity,
but in fact controls the entity.
(3) Initial evidence--(i) Required evidence. A petition for a
multinational executive or manager must be accompanied by a statement
from an authorized official of the petitioning United States employer
which demonstrates that:
(A) If the alien is outside the United States, in the three years
immediately preceding the filing of the petition the alien has been
employed outside the United States for at least one year in a managerial
or executive capacity by a firm or corporation, or other legal entity,
or by an affiliate or subsidiary of such a firm or corporation or other
legal entity; or
(B) If the alien is already in the United States working for the
same employer or a subsidiary or affiliate of the firm or corporation,
or other legal entity by which the alien was employed overseas, in the
three years preceding entry as a nonimmigrant, the alien was employed by
the entity abroad for at least one year in a managerial or executive
capacity;
(C) The prospective employer in the United States is the same
employer or a subsidiary or affiliate of the firm or corporation or
other legal entity by which the alien was employed overseas; and
(D) The prospective United States employer has been doing business
for at least one year.
(ii) Appropriate additional evidence. In appropriate cases, the
director may request additional evidence.
(4) Determining managerial or exectuve capacities--(i) Supervisors
as managers. A first-line supervisor is not considered to be acting in a
managerial capacity merely by virtue of his or her supervisory duties
unless the employees supervised are professional.
(ii) Staffing levels. If staffing levels are used as a factor in
determining whether an individual is acting in a managerial or executive
capacity, the reasonable needs of the organization, component, or
function, in light of the overall purpose and stage of development of
the organization, component, or function, shall be taken into account.
An individual shall not be considered to be acting in a managerial or
executive capacity merely on the basis of the number of employees that
the individual supervises or has supervised or directs or has directed.
(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.
[[Page 111]]
(2) Definitions. As used in this section: Advanced degree means any
United States academic or professional degree or a foreign equivalent
degree above that of baccalaureate. A United States baccalaureate degree
or a foreign equivalent degree followed by at least five years of
progressive experience in the specialty shall be considered the
equivalent of a master's degree. If a doctoral degree is customarily
required by the specialty, the alien must have a United States doctorate
or a foreign equivalent degree.
Exceptional ability in the sciences, arts, or business means a
degree of expertise significantly above that ordinarily encountered in
the sciences, arts, or business.
Profession means one of the occupations listed in section 101(a)(32)
of the Act, as well as any occupation for which a United States
baccalaureate degree or its foreign equivalent is the minimum
requirement for entry into the occupation.
(3) Initial evidence. The petition must be accompanied by
documentation showing that the alien is a professional holding an
advanced degree or an alien of exceptional ability in the sciences, the
arts, or business.
(i) To show that the alien is a professional holding an advanced
degree, the petition must be accompanied by:
(A) An official academic record showing that the alien has a United
States advanced degree or a foreign equivalent degree; or
(B) An official academic record showing that the alien has a United
States baccalaureate degree or a foreign equivalent degree, and evidence
in the form of letters from current or former employer(s) showing that
the alien has at least five years of progressive post-baccalaureate
experience in the specialty.
(ii) To show that the alien is an alien of exceptional ability in
the sciences, arts, or business, the petition must be accompanied by at
least three of the following:
(A) An official academic record showing that the alien has a degree,
diploma, certificate, or similar award from a college, university,
school, or other institution of learning relating to the area of
exceptional ability;
(B) Evidence in the form of letter(s) from current or former
employer(s) showing that the alien has at least ten years of full-time
experience in the occupation for which he or she is being sought;
(C) A license to practice the profession or certification for a
particular profession or occupation;
(D) Evidence that the alien has commanded a salary, or other
renumeration for services, which demonstrates exceptional ability;
(E) Evidence of membership in professional associations; or
(F) Evidence of recognition for achievements and significant
contributions to the industry or field by peers, governmental entities,
or professional or business organizations.
(iii) If the above standards do not readily apply to the
beneficiary's occupation, the petitioner may submit comparable evidence
to establish the beneficiary's eligibility.
(4) Labor certification or evidence that alien qualifies for Labor
Market Information Pilot Program--(i) General. Every petition under this
classification must be accompanied by an individual labor certification
from the Department of Labor, by an application for Schedule 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,
[[Page 112]]
in duplicate, as well as evidence to support the claim that such
exemption would be in the national interest.
(l) Skilled workers, professionals, and other workers. (1) Any
United States employer may file a petition on Form I-140 for
classification of an alien under section 203(b)(3) as a skilled worker,
professional, or other (unskilled) worker.
(2) Definitions. As used in this part:
Other worker means a qualified alien who is capable, at the time of
petitioning for this classification, of performing unskilled labor
(requiring less than two years training or experience), not of a
temporary or seasonal nature, for which qualified workers are not
available in the United States.
Professional means a qualified alien who holds at least a United
States baccalaureate degree or a foreign equivalent degree and who is a
member of the professions.
Skilled worker means an alien who is capable, at the time of
petitioning for this classification, of performing skilled labor
(requiring at least two years training or experience), not of a
temporary or seasonal nature, for which qualified workers are not
available in the United States. Relevant post-secondary education may be
considered as training for the purposes of this provision.
(3) Initial evidence--(i) Labor certification or evidence that alien
qualifies for Labor Market Information Pilot Program. Every petition
under this classification must be accompanied by an individual labor
certification from the Department of Labor, by an application for
Schedule A designation, or by documentation to establish that the alien
qualifies for one of the shortage occupations in the Department of
Labor's Labor Market Information Pilot Program. To apply for Schedule A
designation or to establish that the alien's occupation is a shortage
occupation with the Labor Market Pilot Program, a fully executed
uncertified Form ETA-750 in duplicate must accompany the petition. The
job offer portion of an individual labor certification, Schedule A
application, or Pilot Program application for a professional must
demonstrate that the job requires the minimum of a baccalaureate degree.
(ii) Other documentation--(A) General. Any requirements of training
or experience for skilled workers, professionals, or other workers must
be supported by letters from trainers or employers giving the name,
address, and title of the trainer or employer, and a description of the
training received or the experience of the alien.
(B) Skilled workers. If the petition is for a skilled worker, the
petition must be accompanied by evidence that the alien meets the
educational, training or experience, and any other requirements of the
individual labor certification, meets the requirements for Schedule A
designation, or meets the requirements for the Labor Market Information
Pilot Program occupation designation. The minimum requirements for this
classification are at least two years of training or experience.
(C) Professionals. If the petition is for a professional, the
petition must be accompanied by evidence that the alien holds a United
States baccalaureate degree or a foreign equivalent degree and by
evidence that the alien is a member of the professions. Evidence of a
baccalaureate degree shall be in the form of an official college or
university record 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
[[Page 113]]
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 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,
[[Page 114]]
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
(D) That, if the alien is to work in another religious vocation or
occupation, he or she is qualified in the religious vocation or
occupation. Evidence of such qualifications may include, but need not be
limited to, evidence establishing that the alien is a nun, monk, or
religious brother, or that the type of work to be done relates to a
traditional religious function.
(iii) If the alien is to work in a non-ministerial and non-
professional capacity for a bona fide religious organization which is
affiliated with the religious denomination, the letter from the
authorized official must explain how the affiliation exists. A tax-
exempt certificate indicating that the affiliated organization is exempt
from taxation in accordance with section 501(c)(3) of the Internal
Revenue Code of 1986 as it relates to religious organizations is
required in this instance.
(iv) In appropriate cases, the director may request appropriate
additional evidence relating to the eligibility under section 203(b)(4)
of the Act of the religious organization, the alien, or the affiliated
organization.
(4) Job offer. The letter from the authorized official of the
religious organization in the United States must also state how the
alien will be solely carrying on the vocation of a minister (including
any terms of payment for services or other remuneration), or how the
alien will be paid or remunerated if the alien will work in a
professional religious capacity or in other religious work. The
documentation should clearly indicate that the alien will not be solely
dependent on supplemental employment or solicitation of funds for
support. In doubtful cases, additional evidence such as bank letters,
recent audits, church membership figures, and/or the number of
individuals currently receiving compensation may be requested.
(n) Closing action--(1) Approval. An approved employment-based
petition will be forwarded to the National Visa Center of the Department
of State if the beneficiary resides outside of the United States. If the
Form I-140 petition indicates that the alien has filed or will file an
application for adjustment to permanent residence in the United States
(Form I-485) the approved visa petition (Form I-140), will be retained
by the Service for consideration with the application for permanent
residence (Form I-485). If a visa is available, and Form I-485 has not
been filed, the alien will be instructed on the Form I-797, Notice of
Action,
[[Page 115]]
(mailed out upon approval of the Form I-140 petition) to file the Form
I-485.
(2) Denial. The denial of a petition for classification under
section 203(b)(1), 203(b)(2), 203(b)(3), or 203(b)(4) of the Act (as it
relates to special immigrants under section 101(a)(27)(C) of the Act)
shall be appealable to the Associate Commissioner for Examinations. The
petitioner shall be informed in plain language of the reasons for denial
and of his or her right to appeal.
(3) Validity of approved petitions. Unless revoked under section
203(e) or 205 of the Act, an employment-based petition is valid
indefinitely.
[56 FR 60905, Nov. 29, 1991, as amended at 59 FR 502, Jan. 5, 1994; 59
FR 27229, May 26, 1994; 60 FR 29753, June 6, 1995; 61 FR 33305, June 27,
1996; 67 FR 49563, July 31, 2002]
Sec. 204.6 Petitions for employment creation aliens.
(a) General. A petition to classify an alien under section 203(b)(5)
of the Act must be filed on Form I-526, Immigrant Petition by Alien
Entrepreneur. The petition must be accompanied by the appropriate fee.
Before a petition is considered properly filed, the petition must be
signed by the petitioner, and the initial supporting documentation
required by this section must be attached. Legible photocopies of
supporting documents will ordinarily be acceptable for initial filing
and approval. However, at the discretion of the director, original
documents may be required.
(b) Jurisdiction. The petition must be filed with the Service Center
having jurisdiction over the area in which the new commercial enterprise
is or will be principally doing business.
(c) Eligibility to file. A petition for classification as an alien
entrepreneur may only be filed by any alien on his or her own behalf.
(d) Priority date. The priority date of a petition for
classification as an alien entrepreneur is the date the petition is
properly filed with the Service or, if filed prior to the effective date
of these regulations, the date the Form I-526 was received at the
appropriate Service Center.
(e) Definitions. As used in this section:
Capital means cash, equipment, inventory, other tangible property,
cash equivalents, and indebtedness secured by assets owned by the alien
entrepreneur, provided that the alien entrepreneur is personally and
primarily liable and that the assets of the new commercial enterprise
upon which the petition is based are not used to secure any of the
indebtedness. All capital shall be valued at fair market value in United
States dollars. Assets acquired, directly or indirectly, by unlawful
means (such as criminal activities) shall not be considered capital for
the purposes of section 203(b)(5) of the Act.
Commercial enterprise means any for-profit activity formed for the
ongoing conduct of lawful business including, but not limited to, a sole
proprietorship, partnership (whether limited or general), holding
company, joint venture, corporation, business trust, or other entity
which may be publicly or privately owned. This definition includes a
commercial enterprise consisting of a holding company and its wholly-
owned subsidiaries, provided that each such subsidiary is engaged in a
for-profit activity formed for the ongoing conduct of a lawful business.
This definition shall not include a noncommercial activity such as
owning and operating a personal residence.
Employee means an individual who provides services or labor for the
new commercial enterprise and who receives wages or other remuneration
directly from the new commercial enterprise. In the case of the
Immigrant Investor Pilot Program, ``employee'' also means an individual
who provides services or labor in a job which has been created
indirectly through investment in the new commercial enterprise. This
definition shall not include independent contractors.
Full-time employment means employment of a qualifying employee by
the new commercial enterprise in a position that requires a minimum of
35 working hours per week. In the case of the Immigrant Investor Pilot
Program, ``full-time employment'' also means employment of a qualifying
employee in a position that has been created indirectly through revenues
generated from increased exports resulting from
[[Page 116]]
the Pilot Program that requires a minimum of 35 working hours per week.
A job-sharing arrangement whereby two or more qualifying employees share
a full-time position shall count as full-time employment provided the
hourly requirement per week is met. This definition shall not include
combinations of part-time positions even if, when combined, such
positions meet the hourly requirement per week.
High employment area means a part of a metropolitan statistical area
that at the time of investment:
(i) Is not a targeted employment area; and
(ii) Is an area with an unemployment rate significantly below the
national average unemployment rates.
Invest means to contribute capital. A contribution of capital in
exchange for a note, bond, convertible debt, obligation, or any other
debt arrangement between the alien entrepreneur and the new commercial
enterprise does not constitute a contribution of capital for the
purposes of this part.
New means established after November 29, 1990.
Qualifying employee means a United States citizen, a lawfully
admitted permanent resident, or other immigrant lawfully authorized to
be employed in the United States including, but not limited to, a
conditional resident, a temporary resident, an asylee, a refugee, or an
alien remaining in the United States under suspension of deportation.
This definition does not include the alien entrepreneur, the alien
entrepreneur's spouse, sons, or daughters, or any nonimmigrant alien.
Regional center means any economic unit, public or private, which is
involved with the promotion of economic growth, including increased
export sales, improved regional productivity, job creation, and
increased domestic capital investment.
Rural area means any area not within either a metropolitan
statistical area (as designated by the Office of Management and Budget)
or the outer boundary of any city or town having a population of 20,000
or more.
Targeted employment area means an area which, at the time of
investment, is a rural area or an area which has experienced
unemployment of at least 150 percent of the national average rate.
Troubled business means a business that has been in existence for at
least two years, has incurred a net loss for accounting purposes
(determined on the basis of generally accepted accounting principles)
during the twelve- or twenty-four month period prior to the priority
date on the alien entrepreneur's Form I-526, and the loss for such
period is at least equal to twenty percent of the troubled business's
net worth prior to such loss. For purposes of determining whether or not
the troubled business has been in existence for two years, successors in
interest to the troubled business will be deemed to have been in
existence for the same period of time as the business they succeeded.
(f) Required amounts of capital--(1) General. Unless otherwise
specified, the amount of capital necessary to make a qualifying
investment in the United States is one million United States dollars
($1,000,000).
(2) Targeted employment area. The amount of capital necessary to
make a qualifying investment in a targeted employment area within the
United States is five hundred thousand United States dollars ($500,000).
(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
[[Page 117]]
not seeking classification under section 203(b)(5) of the Act and non-
natural persons, both foreign and domestic, provided that the source(s)
of all capital invested is identified and all invested capital has been
derived by lawful means.
(2) Employment creation allocation. The total number of full-time
positions created for qualifying employees shall be allocated solely to
those alien entrepreneurs who have used the establishment of the new
commercial enterprise as the basis of a petition on Form I-526. No
allocation need be made among persons not seeking classification under
section 203(b)(5) of the Act or among non-natural persons, either
foreign or domestic. The Service shall recognize any reasonable
agreement made among the alien entrepreneurs in regard to the
identification and allocation of such qualifying positions.
(h) Establishment of a new commercial enterprise. The establishment
of a new commercial enterprise may consist of:
(1) The creation of an original business;
(2) The purchase of an existing business and simultaneous or
subsequent restructuring or reorganization such that a new commercial
enterprise results; or
(3) The expansion of an existing business through the investment of
the required amount, so that a substantial change in the net worth or
number of employees results from the investment of capital. Substantial
change means a 40 percent increase either in the net worth, or in the
number of employees, so that the new net worth, or number of employees
amounts to at least 140 percent of the pre-expansion net worth or number
of employees. Establishment of a new commercial enterprise in this
manner does not exempt the petitioner from the requirements of 8 CFR
204.6(j) (2) and (3) relating to the required amount of capital
investment and the creation of full-time employment for ten qualifying
employees. In the case of a capital investment in a troubled business,
employment creation may meet the criteria set forth in 8 CFR
204.6(j)(4)(ii).
(i) State designation of a high unemployment area. The state
government of any state of the United States may designate a particular
geographic or political subdivision located within a metropolitan
statistical area or within a city or town having a population of 20,000
or more within such state as an area of high unemployment (at least 150
percent of the national average rate). Evidence of such designation,
including a description of the boundaries of the geographic or political
subdivision and the method or methods by which the unemployment
statistics were obtained, may be provided to a prospective alien
entrepreneur for submission with Form I-526. Before any such designation
is made, an official of the state must notify the Associate Commissioner
for Examinations of the agency, board, or other appropriate governmental
body of the state which shall be delegated the authority to certify that
the geographic or political subdivision is a high unemployment area.
(j) Initial evidence to accompany petition. A petition submitted for
classification as an alien entrepreneur must be accompanied by evidence
that the alien has invested or is actively in the process of investing
lawfully obtained capital in a new commercial enterprise in the United
States which will create full-time positions for not fewer than 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;
[[Page 118]]
(ii) A certificate evidencing authority to do business in a state or
municipality or, if the form of the business does not require any such
certificate or the State or municipality does not issue such a
certificate, a statement to that effect; or
(iii) Evidence that, as of a date certain after November 29, 1990,
the required amount of capital for the area in which an enterprise is
located has been transferred to an existing business, and that the
investment has resulted in a substantial increase in the net worth or
number of employees of the business to which the capital was
transferred. This evidence must be in the form of stock purchase
agreements, investment agreements, certified financial reports, payroll
records, or any similar instruments, agreements, or documents evidencing
the investment in the commercial enterprise and the resulting
substantial change in the net worth, number of employees.
(2) To show that the petitioner has invested or is actively in the
process of investing the required amount of capital, the petition must
be accompanied by evidence that the petitioner has placed the required
amount of capital at risk for the purpose of generating a return on the
capital placed at risk. Evidence of mere intent to invest, or of
prospective investment arrangements entailing no present commitment,
will not suffice to show that the petitioner is actively in the process
of investing. The alien must show actual commitment of the required
amount of capital. Such evidence may include, but need not be limited
to:
(i) Bank statement(s) showing amount(s) deposited in United States
business account(s) for the enterprise;
(ii) Evidence of assets which have been purchased for use in the
United States enterprise, including invoices, sales receipts, and
purchase contracts containing sufficient information to identify such
assets, their purchase costs, date of purchase, and purchasing entity;
(iii) Evidence of property transferred from abroad for use in the
United States enterprise, including United States Customs Service
commercial entry documents, bills of lading, and transit insurance
policies containing ownership information and sufficient information to
identify the property and to indicate the fair market value of such
property;
(iv) Evidence of monies transferred or committed to be transferred
to the new commercial enterprise in exchange for shares of stock (voting
or nonvoting, common or preferred). Such stock may not include terms
requiring the new commercial enterprise to redeem it at the holder's
request; or
(v) Evidence of any loan or mortgage agreement, promissory note,
security agreement, or other evidence of borrowing which is secured by
assets of the petitioner, other than those of the new commercial
enterprise, and for which the petitioner is personally and primarily
liable.
(3) To show that the petitioner has invested, or is actively in the
process of investing, capital obtained through lawful means, the
petition must be accompanied, as applicable, by:
(i) Foreign business registration records;
(ii) Corporate, partnership (or any other entity in any form which
has filed in any country or subdivision thereof any return described in
this subpart), and personal tax returns including income, franchise,
property (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
[[Page 119]]
(10) qualifying employees, if such employees have already been hired
following the establishment of the new commercial enterprise; or
(B) A copy of a comprehensive business plan showing that, due to the
nature and projected size of the new commercial enterprise, the need for
not fewer than ten (10) qualifying employees will result, including
approximate dates, within the next two years, and when such employees
will be hired.
(ii) Troubled business. To show that a new commercial enterprise
which has been established through a capital investment in a troubled
business meets the statutory employment creation requirement, the
petition must be accompanied by evidence that the number of existing
employees is being or will be maintained at no less than the pre-
investment level for a period of at least two years. Photocopies of tax
records, Forms I-9, or other relevant documents for the qualifying
employees and a comprehensive business plan shall be submitted in
support of the petition.
(iii) Immigrant Investor Pilot Program. To show that the new
commercial enterprise located within a regional center approved for
participation in the Immigrant Investor Pilot Program meets the
statutory employment creation requirement, the petition must be
accompanied by evidence that the investment will create full-time
positions for not fewer than 10 persons either directly or indirectly
through revenues generated from increased exports resulting from the
Pilot Program. Such evidence may be demonstrated by reasonable
methodologies including those set forth in paragraph (m)(3) of this
section.
(5) To show that the petitioner is or will be engaged in the
management of the new commercial enterprise, either through the exercise
of day-to-day managerial control or through policy formulation, as
opposed to maintaining a purely passive role in regard to the
investment, the petition must be accompanied by:
(i) A statement of the position title that the petitioner has or
will have in the new enterprise and a complete description of the
position's duties;
(ii) Evidence that the petitioner is a corporate officer or a member
of the corporate board of directors; or
(iii) If the new enterprise is a partnership, either limited or
general, evidence that the petitioner is engaged in either direct
management or policy making activities. For purposes of this section, if
the petitioner is a limited partner and the limited partnership
agreement provides the petitioner with certain rights, powers, and
duties normally granted to limited partners under the Uniform Limited
Partnership Act, the petitioner will be considered sufficiently engaged
in the management of the new commercial enterprise.
(6) If applicable, to show that the new commercial enterprise has
created or will create employment in a targeted employment area, the
petition must be accompanied by:
(i) In the case of a rural area, evidence that the new commercial
enterprise is principally doing business within a civil jurisdiction not
located within any standard metropolitan statistical area as designated
by the Office of Management and Budget, or within any city or town
having a population of 20,000 or more as based on the most recent
decennial census of the United States; or
(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).
[[Page 120]]
(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:
(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
[[Page 121]]
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 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
[[Page 122]]
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 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,
[[Page 123]]
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);
(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.
[[Page 124]]
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 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
[[Page 125]]
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 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
[[Page 126]]
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 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
[[Page 127]]
(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 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
[[Page 128]]
vacated, terminated, or otherwise ended; and
(6) Has been the subject of judicial proceedings or administrative
proceedings authorized or recognized by the juvenile court in which it
has been determined that it would not be in the alien's best interest to
be returned to the country of nationality or last habitual residence of
the beneficiary or his or her parent or parents; or
(7) On November 29, 1990, met all the eligibility requirements for
special immigrant juvenile status in paragraphs (c)(1) through (c)(6) of
this section, and for whom a petition for classification as a special
immigrant juvenile is filed on Form I-360 before June 1, 1994.
(d) Initial documents which must be submitted in support of the
petition. (1) Documentary evidence of the alien's age, in the form of a
birth certificate, passport, official foreign identity document issued
by a foreign government, such as a Cartilla or a Cedula, or other
document which in the discretion of the director establishes the
beneficiary's age; and
(2) One or more documents which include:
(i) A juvenile court order, issued by a court of competent
jurisdiction located in the United States, showing that the court has
found the beneficiary to be dependent upon that court;
(ii) A juvenile court order, issued by a court of competent
jurisdiction located in the United States, showing that the court has
found the beneficiary eligible for long-term foster care; and
(iii) Evidence of a determination made in judicial or administrative
proceedings by a court or agency recognized by the juvenile court and
authorized by law to make such decisions, that it would not be in the
beneficiary's best interest to be returned to the country of nationality
or last habitual residence of the beneficiary or of his or her parent or
parents.
(e) Decision. The petitioner will be notified of the director's
decision, and, if the petition is denied, of the reasons for the denial.
If the petition is denied, the petitioner will also be notified of the
petitioner's right to appeal the decision to the Associate Commissioner,
Examinations, in accordance with part 103 of this chapter.
[58 FR 42850, Aug. 12, 1993]
Sec. 204.12 How can second-preference immigrant physicians be granted
a national interest waiver based on service in a medically underserved
area or VA facility?
(a) Which physicians qualify? Any alien physician (namely doctors of
medicine and doctors of osteopathy) for whom an immigrant visa petition
has been filed pursuant to section 203(b)(2) of the Act shall be granted
a national interest waiver under section 203(b)(2)(B)(ii) of the Act if
the physician requests the waiver in accordance with this section and
establishes that:
(1) The physician agrees to work full-time (40 hours per week) in a
clinical practice for an aggregate of 5 years (not including time served
in J-1 nonimmigrant status); and
(2) The service is;
(i) In a geographical area or areas designated by the Secretary of
Health and Human Services (HHS) as a Medically Underserved Area, a
Primary Medical Health Professional Shortage Area, or a Mental Health
Professional Shortage Area, and in a medical speciality that is within
the scope of the Secretary's designation for the geographical area or
areas; or
(ii) At a health care facility under the jurisdiction of the
Secretary of Veterans Affairs (VA); and
(3) A Federal agency or the department of public health of a State,
territory of the United States, or the District of Columbia, has
previously determined that the physician's work in that area or facility
is in the public interest.
(b) Is there a time limit on how long the physician has to complete
the required medical service? (1) If the physician already has
authorization to accept employment (other than as a J-1 exchange alien),
the beneficiary physician must complete the aggregate 5 years of
qualifying full-time clinical practice during the 6-year period
beginning on the date of approval of the Form I-140.
(2) If the physician must obtain authorization to accept employment
before the physician may lawfully begin working, the physician must
complete
[[Page 129]]
the aggregate 5 years of qualifying full-time clinical practice during
the 6-year period beginning on the date of the Service issues the
necessary employment authorization document.
(c) Are there special requirements for these physicians? Petitioners
requesting the national interest waiver as described in this section on
behalf of a qualified alien physician, or alien physicians self-
petitioning for second preference classification, must meet all
eligibility requirements found in paragraphs (k)(1) through (k)(3) of
Sec. 204.5. In addition, the petitioner or self-petitioner must submit
the following evidence with Form I-140 to support the request for a
national interest waiver. Physicians planning to divide the practice of
full-time clinical medicine between more than one underserved area must
submit the following evidence for each area of intended practice.
(1)(i) If the physician will be an employee, a full-time employment
contract for the required period of clinical medical practice, or an
employment commitment letter from a VA facility. The contract or letter
must have been issued and dated within 6 months prior to the date the
petition is filed.
(ii) If the physician will establish his or her own practice, the
physician's sworn statement committing to the full-time practice of
clinical medicine for the required period, and describing the steps the
physician has taken or intends to actually take to establish the
practice.
(2) Evidence that the physician will provide full-time clinical
medical service:
(i) In a geographical area or areas designated by the Secretary of
HHS as having a shortage of health care professionals and in a medical
speciality that is within the scope of the Secretary's designation for
the geographical area or areas; or
(ii) In a facility under the jurisdiction of the Secretary of VA.
(3) A letter (issued and dated within 6 months prior to the date on
which the petition is filed) from a Federal agency or from the
department of public health (or equivalent) of a State or territory of
the United States or the District of Columbia, attesting that the alien
physician's work is or will be in the public interest.
(i) An attestation from a Federal agency must reflect the agency's
knowledge of the alien's qualifications and the agency's background in
making determinations on matters involving medical affairs so as to
substantiate the finding that the alien's work is or will be in the
public interest.
(ii) An attestation from the public health department of a State,
territory, or the District of Columbia must reflect that the agency has
jurisdiction over the place where the alien physician intends to
practice clinical medicine. If the alien physician intends to practice
clinical medicine in more than one underserved area, attestations from
each intended area of practice must be included.
(4) Evidence that the alien physician meets the admissibility
requirements established by section 212(a)(5)(B) of the Act.
(5) Evidence of the Service-issued waivers, if applicable, of the
requirements of sections 212(e) of the Act, if the alien physician has
been a J-1 nonimmigrant receiving medical training within the United
States.
(d) How will the Service process petitions filed on different
dates?--(1) Petitions filed on or after November 12, 1999. For petitions
filed on or after November 12, 1999, the Service will approve a national
interest waiver provided the petitioner or beneficiary (if self-
petitioning) submits the necessary documentation to satisfy the
requirements of section 203(b)(2)(B)(ii) of the Act and this section,
and the physician is otherwise eligible for classification as a second
preference employment-based immigrant. Nothing in this section relieves
the alien physician from any other requirement other than that of
fulfilling the labor certification process as provided in Sec.
204.5(k)(4).
(2) Petitions pending on November 12, 1999. Section 203(b)(2)(B)(ii)
of the Act applies to all petitions that were pending adjudication as of
November 12, 1999 before a Service Center, before the associate
Commissioner for Examinations, or before a Federal court. Petitioners
whose petitions were pending on November 12, 1999, will not be required
to submit a new petition, but
[[Page 130]]
may be required to submit supplemental evidence noted in paragraph (c)
of this section. The requirement that supplemental evidence be issued
and dated within 6 months prior to the date on which the petition is
filed is not applicable to petitions that were pending as of November
12, 1999. If the case was pending before the Associate Commissioner for
Examinations or a Federal court on November 12, 1999, the petitioner
should ask for a remand to the proper Service Center for consideration
of this new evidence.
(3) Petitions denied on or after November 12, 1999. The Service
Center or the Associate Commissioner for Examinations shall reopen any
petition affected by the provision of section 203(b)(2)(B)(ii) of the
Act that the Service denied on or after November 12, 1999, but prior to
the effective date of this rule.
(4) Petitions filed prior to November 1, 1998. For petitions filed
prior to November 1, 1998, and still pending as of November 12, 1999,
the Service will approve a national interest waiver provided the
beneficiary fulfills the evidence requirements of paragraph (c) of this
section. Alien physicians that are beneficiaries of pre-November 1,
1998, petitions are only required to work full-time as a physician
practicing clinical medicine for an aggregate of 3 years, rather than 5
years, not including time served in J-1 nonimmigrant status, prior to
the physician either adjusting status under section 245 of the Act or
receiving a visa issued under section 204(b) of the Act. The physician
must complete the aggregate of 3 years of medical service within the 4-
year period beginning on the date of the approval of the petition, if
the physician already has authorization to accept employment (other than
as a J-1 exchange alien). If the physician does not already have
authorization to accept employment, the physician must perform the
service within the 4-year period beginning the date the Service issues
the necessary employment authorization document.
(5) Petitions filed and approved before November 12, 1999. An alien
physician who obtained approval of a second preference employment-based
visa petition and a national interest waiver before November 12, 1999,
is not subject to the service requirements imposed in section
203(b)(2)(B)(ii) of the Act. If the physician obtained under section
214(1) of the Act a waiver of the foreign residence requirement imposed
under section 212(e) of the Act, he or she must comply with the
requirements of section 214(1) of the Act in order to continue to have
the benefit of that waiver.
(6) Petitions denied prior to November 12, 1999. If a prior Service
decision denying a national interest waiver under section 203(b)(2)(B)
of the Act became administratively final before November 12, 1999, an
alien physician who believes that he or she is eligible for the waiver
under the provisions of section 203(b)(2)(B)(ii) of the Act may file a
new Form I-140 petition accompanied by the evidence required in
paragraph (c) of this section. The Service must deny any motion to
reopen or reconsider a decision denying an immigrant visa petition if
the decision became final before November 12, 1999, without prejudice to
the filing of a new visa petition with a national interest waiver
request that comports with section 203(b)(2)(B)(ii) of the Act.
(e) May physicians file adjustment of status applications? Upon
approval of a second preference employment-based immigrant petition,
Form I-140, and national interest waiver based on a full-time clinical
practice in a shortage area or areas of the United States, an alien
physician may submit Form I-485, Application to Register Permanent
Residence or Adjust Status, to the appropriate Service Center. The
Service will not approve the alien physician's application for
adjustment of status until the alien physician submits evidence
documenting that the alien physician has completed the period of
required service. Specific instructions for alien physicians filing
adjustment applications are found in Sec. 245.18 of this chapter.
(f) May a physician practice clinical medicine in a different
underserved area? Physicians in receipt of an approved Form I-140 with a
national interest waiver based on full-time clinical practice in a
designated shortage area and a pending adjustment of status application
may apply to the Service if the
[[Page 131]]
physician is offered new employment to practice full-time in another
underserved area of the United States.
(1) If the physician beneficiary has found a new employer desiring
to petition the Service on the physician's behalf, the new petitioner
must submit a new Form I-140 (with fee) with all the evidence required
in paragraph (c) of this section, including a copy of the approval
notice from the initial Form I-140. If approved, the new petition will
be matched with the pending adjustment of status application. The
beneficiary will retain the priority date from the initial Form I-140.
The Service will calculate the amount of time the physician was between
employers so as to adjust the count of the aggregate time served in an
underserved area. This calculation will be based on the evidence the
physician submits pursuant to the requirements of Sec. 245.18(d) of
this chapter. An approved change of practice to another underserved area
does not constitute a new 6-year period in which the physician must
complete the aggregate 5 years of service.
(2) If the physician intends to establish his or her own practice,
the physician must submit a new Form I-140 (with fee) will all the
evidence required in paragraph (c) of this section, including the
special requirement of paragraph (c)(1)(ii) of this section and a copy
of the approval notice from the initial Form I-140. If approved, the new
petition will be matched with the pending adjustment of status
application. The beneficiary will retain the priority date from the
initial Form I-140. The Service will calculate the amount of time the
physician was between practices so as to adjust the count of the
aggregate time served in an underserved area. This calculation will be
based on the evidence the physician submits pursuant to the requirements
of Sec. 245.18(d) of this chapter. An approved change of practice to
another underserved area does not constitute a new 6-year period in
which the physician must complete the aggregate 5 years of service.
(g) Do these provisions have any effect on physicians with foreign
residence requirements? Because the requirements of section
203(b)(2)(B)(ii) of the Act are not exactly the same as the requirements
of section 212(e) or 214(l) of the Act, approval of a national interest
waiver under section 203(b)(2)(B)(ii) of the Act and this paragraph does
not relieve the alien physician of any foreign residence requirement
that the alien physician may have under section 212(e) of the Act.
[65 FR 53893, Sept. 6, 2000; 65 FR 57861, Sept. 26, 2000]
Sec. 204.13 How can the International Broadcasting Bureau of the
United States Broadcasting Board of Governors petition for a fourth
preference special immigrant broadcaster?
(a) Which broadcasters qualify? Under section 203(b)(4) of the Act,
the International Broadcasting Bureau of the United States Broadcasting
Board of Governors (BBG), or a grantee of the BBG, may petition for an
alien (and the alien's accompanying spouse and children) to work as a
broadcaster for the BBG or a grantee of the BBG in the United States.
For the purposes of this section, the terms:
BBG grantee means Radio Free Asia, Inc (RFA) or Radio Free Europe/
Radio Liberty, Inc. (RFE/RL); and
Broadcaster means a reporter, writer, translator, editor, producer
or announcer for news broadcasts; hosts for news broadcasts, news
analysis, editorial and other broadcast features; or a news analysis
specialist. The term broadcaster does not include individuals performing
purely technical or support services for the BBG or a BBG grantee.
(b) Is there a yearly limit on the number of visas available for
alien broadcasters petitioned by the BBG or a BBG grantee? (1) Under the
provisions of section 203(b)(4) of the Act, a yearly limit of 100 fourth
preference special immigrant visas are available to aliens intending to
work as broadcasters in the United States for the BBG or a BBG grantee.
These 100 visas are available in any fiscal year beginning on or after
October 1, 2000.
(2) The alien broadcaster's accompanying spouse and children are not
counted towards the 100 special broadcaster visa limit.
[[Page 132]]
(c) What form should the BBG use to petition for these special alien
broadcasters? The BBG or a BBG grantee shall use Form I-360, Petition
for Amerasian, Widow(er), or Special Immigrant, to petition for an alien
broadcaster. The petition must be submitted with the correct fee noted
on the form. All BBG petitions for alien broadcasters shall be submitted
to the Vermont Service Center for processing.
(d) Will the BBG need to submit supplemental evidence with Form I-
360 for alien broadcasters? (1) All Form I-360 petitions submitted by
the BBG or a BBG grantee on behalf of an alien for a broadcaster
position with the BBG or BBG grantee must be accompanied by a signed and
dated supplemental attestation that contains the following information
about the prospective alien broadcaster:
(i) The job title and a full description of the job to be performed;
and
(ii) The broadcasting expertise held by the alien, including how
long the alien has been performing duties that relate to the prospective
position or a statement as to how the alien possesses the necessary
skills that make him or her qualified for the broadcasting-related
position within the BBG or BBG grantee.
(2) [Reserved]
[66 FR 51821, Oct. 11, 2001]
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
[[Page 133]]
on behalf of a child under section 204(a)(1)(A)(i) of the Act or a self-
petition filed by a child of an abusive United States citizen under
section 204(a)(1)(A)(iv) of the Act, however, will remain valid for the
duration of the relationship to accord preference status under section
203(a)(1) of the Act if the beneficiary remains unmarried, or to accord
preference status under section 203(a)(3) of the Act if he or she
marries.
(G) Upon the marriage of a child, when he or she has been accorded
immediate relative status under section 201(b) of the Act. A petition
filed on behalf of the child under section 204(a)(1)(A)(i) of the Act or
a self-petition filed by a child of an abusive United States citizen
under section 204(a)(1)(A)(iv) of the Act, however, will remain valid
for the duration of the relationship to accord preference status under
section 203(a)(3) of the Act if he or she marries.
(H) Upon the marriage of a person accorded preference status as a
son or daughter of a United States citizen under section 203(a)(1) of
the Act. A petition filed on behalf of the son or daughter, however,
will remain valid for the duration of the relationship to accord
preference status under section 203(a)(3) of the Act.
(I) Upon the marriage of a person accorded status as a son or
daughter of a lawful permanent resident alien under section 203(a)(2) of
the Act.
(J) Upon legal termination of the petitioner's status as an alien
admitted for lawful permanent residence in the United States unless the
petitioner became a United States citizen. The provisions of 8 CFR
204.2(i)(3) shall apply if the petitioner became a United States
citizen.
(ii) Petition for Pub. L. 97-359 Amerasian. (A) Upon formal notice
of withdrawal filed by the petitioner with the officer who approved the
petition.
(B) Upon the death of the beneficiary.
(C) Upon the death or bankruptcy of the sponsor who executed Form I-
361, Affidavit of Financial Support and Intent to Petition for Legal
Custody for Pub. L. 97-359 Amerasian. In that event, a new petition may
be filed in the beneficiary's behalf with the documentary evidence
relating to sponsorship and, in the case of a beneficiary under 18 years
of age, placement. If the new petition is approved, it will be given the
priority date of the previously approved petition.
(D) Upon the death or substitution of the petitioner if other than
the beneficiary or sponsor. However, if the petitioner dies or no longer
desires or is able to proceed with the petition, and another person 18
years of age or older, an emancipated minor, or a corporation
incorporated in the United States desires to be substituted for the
deceased or original petitioner, a written request may be submitted to
the Service or American consular office where the petition is located to
reinstate the petition and restore the original priority date.
(E) Upon the beneficiary's reaching the age of 21 when the
beneficiary has been accorded classification under section 201(b) of the
Act. Provided that all requirements of section 204(f) of the Act
continue to be met, however, the petition is to be considered valid for
purposes of according the beneficiary preference classification under
section 203(a)(1) of the Act if the beneficiary remains unmarried or
under section 203(a)(3) if the beneficiary marries.
(F) Upon the beneficiary's marriage when the beneficiary has been
accorded classification under section 201(b) or section 203(a)(1) of the
Act. Provided that all requirements of section 204(f) of the Act
continue to be met, however, the petition is to be considered valid for
purposes of according the beneficiary preference classification under
section 203(a)(3) of the Act.
(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.
[[Page 134]]
(iv) Special immigrant juvenile petitions. Unless the beneficiary
met all of the eligibility requirements as of November 29, 1990, and the
petition requirements as of November 29, 1990, and the petition for
classification as a special immigrant juvenile was filed before June 1,
1994, or unless the change in circumstances resulted from the
beneficiary's adoption or placement in a guardianship situation:
(A) Upon the beneficiary reaching the age of 21;
(B) Upon the marriage of the beneficiary;
(C) Upon the termination of the beneficiary's dependency upon the
juvenile court;
(D) Upon the termination of the beneficiary's eligibility for long-
term foster care; or
(E) Upon the determination in administrative or judicial proceedings
that it is in the beneficiary's best interest to be returned to the
country of nationality or last habitual residence of the beneficiary or
of his or her parent or parents.
(b) Notice. When it shall appear to the director that the approval
of a petition has been automatically revoked, he or she shall cause a
notice of such revocation to be sent promptly to the consular office
having jurisdiction over the visa application and a copy of such notice
to be mailed to the petitioner's last known address.
[61 FR 13077, Mar. 26, 1996]
Sec. 205.2 Revocation on notice.
(a) General. Any Service officer authorized to approve a petition
under section 204 of the Act may revoke the approval of that petition
upon notice to the petitioner on any ground other than those specified
in Sec. 205.1 when the necessity for the revocation comes to the
attention of this Service.
(b) Notice of intent. Revocation of the approval of a petition of
self-petition under paragraph (a) of this section will be made only on
notice to the petitioner or self-petitioner. The petitioner or self-
petitioner must be given the opportunity to offer evidence in support of
the petition or self-petition and in opposition to the grounds alleged
for revocation of the approval.
(c) Notification of revocation. If, upon reconsideration, the
approval previously granted is revoked, the director shall provide the
petitioner or the self-petitioner with a written notification of the
decision that explains the specific reasons for the revocation. The
director shall notify the consular officer having jurisdiction over the
visa application, if applicable, of the revocation of an approval.
(d) Appeals. The petitioner or self-petitioner may appeal the
decision to revoke the approval within 15 days after the service of
notice of the revocation. The appeal must be filed as provided in part 3
of this chapter, unless the Associate Commissioner for Examinations
exercises appellate jurisdiction over the revocation under part 103 of
this chapter. Appeals filed with the Associate Commissioner for
Examinations must meet the requirements of part 103 of this chapter.
[48 FR 19156, Apr. 28, 1983, as amended at 58 FR 42851, Aug. 12, 1993;
61 FR 13078, Mar. 26, 1996]
PART 207_ADMISSION OF REFUGEES--Table of Contents
Sec.
207.1 Eligibility.
207.2 Applicant processsing.
207.3 Waivers of inadmissibility.
207.4 Approved application.
207.5 Waiting lists and priority handling.
207.6 Control over approved refugee numbers.
207.7 Derivatives of refugees.
207.8 Physical presence in the United States.
207.9 Termination of refugee status.
Authority: 8 U.S.C. 1101, 1103, 1151, 1157, 1159, 1182; 8 CFR part
2.
Source: 46 FR 45118, Sept. 10, 1981, unless otherwise noted.
Sec. 207.1 Eligibility.
(a) Filing jurisdiction. Any alien who believes he or she is a
refugee as defined in section 101(a)(42) of the Act, and is included in
a refugee group identified in section 207(a) of the Act, may apply for
admission to the United States by filing an application in accordance
with Sec. 207.2 with the Service office having jurisdiction over the
area where the applicant is located. In those
[[Page 135]]
areas too distant from a Service office, the application may be filed at
a designated United States consular office.
(b) Firmly resettled. A refugee is considered to be ``firmly
resettled'' if he/she has been offered resident status, citizenship, or
some other type of permanent resettlement by a country other than the
United States and has travelled to and entered that country as a
consequence of his/her flight from persecution. Any applicant who has
become firmly resettled in a foreign country is not eligible for refugee
status under this chapter.
(c) Not firmly resettled. Any applicant who claims not to be firmly
resettled in a foreign country must establish that the conditions of
his/her residence in that country are so restrictive as to deny
resettlement. In determining whether or not an applicant is firmly
resettled in a foreign country, the officer reviewing the matter shall
consider the conditions under which other residents of the country live:
(1) Whether permanent or temporary housing is available to the refugee
in the foreign country; (2) nature of employment available to the
refugee in the foreign country; and (3) other benefits offered or denied
to the refugee by the foreign country which are available to other
residents, such as (i) right to property ownership, (ii) travel
documentation, (iii) education, (iv) public welfare, and (v)
citizenship.
(d) Immediate relatives and special immigrants. Any applicant for
refugee status who qualifies as an immediate relative or as a special
immigrant shall not be processed as a refugee unless it is in the public
interest. The alien shall be advised to obtain an immediate relative or
special immigrant visa and shall be provided with the proper petition
forms to send to any prospective petitioners. An applicant who may be
eligible for classification under sections 203(a)(1), (2), (3), (4),
(5), (6), or (7) of the Act, and for whom a visa number is now
available, shall be advised of such eligibility but is not required to
apply.
[46 FR 45118, Sept. 10, 1981, as amended at 62 FR 10336, Mar. 6, 1997]
Sec. 207.2 Applicant processing.
(a) Forms. Each applicant who seeks admission as a refugee shall
submit an individual Form I-590 (Registration for Classification as
Refugee). Additionally, each applicant 14 years old or older must submit
completed forms G-325C (Biographical Information) and FD-258 (Applicant
Card).
(b) Hearing. Each applicant 14 years old or older shall appear in
person before an immigration officer for inquiry under oath to determine
his/her eligibility for admission as a refugee.
(c) Medical examination. Each applicant shall submit to a medical
examination as required by sections 221(d) and 234 of the Act.
(d) Sponsorship. Each applicant must be sponsored by a responsible
person or organization. Transportation for the applicant from his/her
present abode to the place of resettlement in the United States must be
guaranteed by the sponsor.
[46 FR 45118, Sept. 10, 1981, as amended at 64 FR 27661, May 21, 1999]
Sec. 207.3 Waivers of inadmissibility.
(a) Authority. Section 207(c)(3) of the Act sets forth grounds of
inadmissibility under section 212(a) of the Act which are not applicable
and those which may be waived in the case of an otherwise qualified
refugee and the conditions under which such waivers may be approved.
Officers in charge of overseas offices are delegated authority to
initiate the necessary investigations to establish the facts in each
waiver application pending before them and to approve or deny such
waivers.
(b) Filing requirements. The applicant for a waiver must submit Form
I-602, Application by Refugee for Waiver of Grounds of Inadmissibility,
with the Service office processing his or her case. The burden is on the
applicant to show that the waiver should be granted based upon
humanitarian grounds, family unity, or the public interest. The
applicant shall be notified in writing of the decision, including the
reasons for denial, if the application is denied. There is no appeal
from such decision.
[62 FR 10336, Mar. 6, 1997]
[[Page 136]]
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 Derivatives of refugees.
(a) Eligibility. A spouse, as defined in section 101(a)(35) of the
Act, and/or child(ren), as defined in section 101(b)(1)(A), (B), (C),
(D), or (E) of the Act, shall be granted refugee status if accompanying
or following-to-join the principal alien. An accompanying derivative is
a spouse or child of a refugee who is in the physical company of the
principal refugee when he or she is admitted to the United States, or a
spouse or child of a refugee who is admitted within 4 months following
the principal refugee's admission. A following-to-join derivative, on
the other hand, is a spouse or child of a refugee who seeks admission
more than 4 months after the principal refugee's admission to the United
States.
(b) Ineligibility. The following relatives of refugees are
ineligible for accompanying or following-to-join benefits:
(1) A spouse or child who has previously been granted asylee or
refugee status;
(2) An adopted child, if the adoption took place after the child
became 16 years old, or if the child has not been in the legal custody
and living with the parent(s) for at least 2 years;
(3) A stepchild, if the marriage that created this relationship took
place after the child became 18 years old;
(4) A husband or wife if each/both were not physically present at
the marriage ceremony, and the marriage was not consummated (section
101(a)(35) of the Act);
(5) A husband or wife if the U.S. Attorney General has determined
that such alien has attempted or conspired to enter into a marriage for
the purpose of evading immigration laws; and
(6) A parent, sister, brother, grandparent, grandchild, nephew,
niece, uncle, aunt, cousin or in-law.
(c) Relationship. The relationship of a spouse and child as defined
in sections 101(a)(35) and 101(b) (1)(A), (B), (C), (D), or (E),
respectively, of the Act, must have existed prior to the refugee's
admission to the United States and must continue to exist at the time of
filing for accompanying or following-to-join benefits and at the time of
the spouse or child's subsequent admission to the United States. If the
refugee proves that the refugee is the parent of a child who was born
after the refugee's admission as a refugee, but who was in utero on the
date of the refugee's admission as a refugee, the child shall be
eligible to accompany or follow-to-join the refugee. The child's mother,
if not the principal refugee, shall not be eligible to accompany or
follow-to-join the principal refugee unless the child's
[[Page 137]]
mother was the principal refugee's spouse on the date of the principal
refugee's admission as a refugee.
(d) Filing. A refugee may request accompanying or following-to-join
benefits for his/her spouse and unmarried, minor child(ren) (whether the
spouse and children are in or outside the United States) by filing a
separate Form I-730 Refugee/Asylee Relative Petition, for each
qualifying family member with the designated Service office. The Form I-
730 may only be filed by the principal refugee. Family members who
derived their refugee status are not eligible to file the Form I-730 on
behalf of their spouse and child(ren). A separate Form I-730 must be
filed for each qualifying family member before February 28, 2000 or
within 2 years of the refugee's admission to the United States,
whichever is later, unless the Service determines that the filing period
should be extended for humanitarian reasons. There is no time limit
imposed on a family member's travel to the United States once the Form
I-730 has been approved, provided that the relationship of spouse or
child continues to exist and approval of the Form I-730 petition has not
been subsequently revoked. There is no fee for filing this petition.
(e) Evidence. Documentary evidence consists of those documents which
establish that the petitioner is a refugee, and evidence of the claimed
relationship of the petitioner to the beneficiary. The burden of proof
is on the petitioner to establish by a preponderance of the evidence
that any person on whose behalf he/she is making a request under this
section is an eligible spouse or unmarried, minor child. Evidence to
establish the claimed relationship for a spouse or unmarried, minor
child as set forth in 8 CFR part 204 must be submitted with the request
for accompanying or following-to-join benefits. Where possible this will
consist of the documents specified in Sec. 204.2(a (1)(i)(B),
(a)(1)(iii)(B), (a)(2), (d)(2), and (d)(5) of this chapter. In addition,
a recent photograph of each derivative must accompany the Form I-730.
The photograph must clearly identify the derivative, and will be made
part of the derivative's immigration record for identification purposes.
(f) Approvals--(1) Spouse or child in the United States. When a
spouse or child of a refugee is in the United States and the Form I-730
is approved, the Service will notify the refugee of such approval on
Form I-797, Notice of Action. Employment will be authorized incident to
status.
(2) Spouse or child outside the United States. When a spouse or
child of a refugee is outside the United States and the Form I-730 is
approved, the Service will notify the refugee of such approval on Form
I-797. The approved Form I-730 will be sent by the Service to the
Department of State for forwarding to the American Embassy or Consulate
having jurisdiction over the area in which the refugee's spouse or child
is located.
(3) Benefits. The approval of the Form I-730 shall remain valid for
the duration of the relationship to the refugee and, in the case of a
child, while the child is under 21 years of age and unmarried, provided
also that the principal's status has not been revoked. However, the
approved Form I-730 will cease to confer immigration benefits after it
has been used by the beneficiary for admission to the United States as a
derivative of a refugee. To demonstrate employment authorization, the
Service will issue a Form I-94, Arrival-Departure Record, which also
reflects the derivative's current status as a refugee, or the derivative
may apply under Sec. 274a.12(a) of this chapter, using Form I-765,
Application for Employment Authorization, and a copy of the Form I-797.
(g) Denials. If the spouse or child of a refugee is found to be
ineligible for derivative status, a written notice explaining the basis
for denial shall be forwarded to the principal refugee. There shall be
no appeal from this decision. However, the denial shall be without
prejudice to the consideration of a new petition or motion to reopen the
refugee or asylee relative petition proceeding, if the refugee
establishes eligibility for the accompanying or following-to-join
benefits contained in this part.
[63 FR 3795, Jan. 27, 1998]
[[Page 138]]
Sec. 207.8 Physical presence in the United States.
For the purpose of adjustment of status under section 209(a)(1) of
the Act, the required one year physical presence of the applicant in the
United States is computed from the date the applicant entered the United
States as a refugee.
[46 FR 45118, Sept. 10, 1981. Redesignated at 63 FR 3795, Jan. 27, 1998]
Sec. 207.9 Termination of refugee status.
The refugee status of any alien (and of the spouse or child of the
alien) admitted to the United States under section 207 of the Act shall
be terminated by any district director in whose district the alien is
found if the alien was not a refugee within the meaning of section
101(a)(42) of the Act at the time of admission. The district director
shall notify the alien in writing of the Service's intent to terminate
the alien's refugee status. The alien shall have 30 days from the date
notice is served upon him/her or, delivered to his/her last known
address, to present written or oral evidence to show why the alien's
refugee status should not be terminated. There is no appeal under this
chapter from the termination of refugee status by the district director.
Upon termination of refugee status, the district director shall process
the alien under sections 235, 240, and 241 of the Act.
[46 FR 45118, Sept. 10, 1981, as amended at 62 FR 10337, Mar. 6, 1997.
Redesignated at 63 FR 3795, Jan. 27, 1998]
PART 208_PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL--Table of Contents
Subpart A_Asylum and Withholding of Removal
Sec.
208.1 General.
208.2 Jurisdiction.
208.3 Form of application.
208.4 Filing the application.
208.5 Special duties toward aliens in custody of the Service.
208.6 Disclosure to third parties.
208.7 Employment authorization.
208.8 Limitations on travel outside the United States.
208.9 Procedure for interview before an asylum officer.
208.10 Failure to appear at an interview before an asylum officer or
failure to follow requirements for fingerprint processing.
208.11 Comments from the Department of State.
208.12 Reliance on information compiled by other sources.
208.13 Establishing asylum eligibility.
208.14 Approval, denial, referral, or dismissal of application.
208.15 Definition of ``firm resettlement.''
208.16 Withholding of removal under section 241(b)(3)(B) of the Act and
withholding of removal under the Convention Against Torture.
208.17 Deferral of removal under the Convention Against Torture.
208.18 Implementation of the Convention Against Torture.
208.19 Decisions.
208.20 Determining if an asylum application is frivolous.
208.21 Admission of the asylee's spouse and children.
208.22 Effect on exclusion, deportation, and removal proceedings.
208.23 Restoration of status.
208.24 Termination of asylum or withholding of removal or deportation.
208.25-208.29 [Reserved]
Subpart B_Credible Fear of Persecution
208.30 Credible fear determinations involving stowaways and applicants
for admission found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act.
208.31 Reasonable fear of persecution or torture determinations
involving aliens ordered removed under section 238(b) of the
Act and aliens whose removal is reinstated under section
241(a)(5) of the Act.
Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 8 CFR part 2.
Source: 62 FR 10337, Mar. 6, 1997, unless otherwise noted.
Subpart A_Asylum and Withholding of Removal
Sec. 208.1 General.
(a) Applicability. Unless otherwise provided in this chapter, this
subpart shall apply to all applications for asylum under section 208 of
the Act or for withholding of deportation or withholding of removal
under section 241(b)(3) of the Act, or under the Convention Against
Torture, whether before an asylum officer or an immigration judge,
regardless of the date of filing. For purposes of this chapter,
withholding of removal shall also mean
[[Page 139]]
withholding of deportation under section 243(h) of the Act, as it
appeared prior to April 1, 1997, except as provided in Sec. 208.16(d).
Such applications are hereinafter referred to as ``asylum
applications.'' The provisions of this part shall not affect the
finality or validity of any decision made by a district director, an
immigration judge, or the Board of Immigration Appeals in any such case
prior to April 1, 1997. No asylum application that was filed with a
district director, asylum officer, or immigration judge prior to April
1, 1997, may be reopened or otherwise reconsidered under the provisions
of this part except by motion granted in the exercise of discretion by
the Board of Immigration Appeals, an immigration judge, or an asylum
officer for proper cause shown. Motions to reopen or reconsider must
meet the requirements of sections 240(c)(5) and (c)(6) of the Act, and 8
CFR parts 3 and 103, where applicable.
(b) Training of asylum officers. The Director of International
Affairs shall ensure that asylum officers receive special training in
international human rights law, nonadversarial interview techniques, and
other relevant national and international refugee laws and principles.
The Director of International Affairs shall also, in cooperation with
the Department of State and other appropriate sources, compile and
disseminate to asylum officers information concerning the persecution of
persons in other countries on account of race, religion, nationality,
membership in a particular social group, or political opinion, torture
of persons in other countries, and other information relevant to asylum
determinations, and shall maintain a documentation center with
information on human rights conditions.
[64 FR 8487, Feb. 19, 1999]
Sec. 208.2 Jurisdiction
(a) Office of International Affairs. Except as provided in paragraph
(b) or (c) of this section, the Office of International Affairs shall
have initial jurisdiction over an asylum application filed by an alien
physically present in the United States or seeking admission at a port-
of-entry. The Office of International Affairs shall also have initial
jurisdiction over credible fear determinations under Sec. 208.30 and
reasonable fear determinations under Sec. 208.31.
(b) Jurisdiction of Immigration Court in general. Immigration judges
shall have exclusive jurisdiction over asylum applications filed by an
alien who has been served a Form I-221, Order to Show Cause; Form I-122,
Notice to Applicant for Admission Detained for a Hearing before an
Immigration Judge; or Form I-862, Notice to Appear, after the charging
document has been filed with the Immigration Court. Immigration judges
shall also have jurisdiction over any asylum applications filed prior to
April 1, 1997, by alien crewmembers who have remained in the United
States longer than authorized, by applicants for admission under the
Visa Waiver Pilot Program, and by aliens who have been admitted to the
United States under the Visa Waiver Pilot Program. Immigration judges
shall also have the authority to review reasonable fear determinations
referred to the Immigration Court under Sec. 208.31, and credible fear
determinations referred to the Immigration Court under Sec. 208.30.
(c) Certain aliens not entitled to proceedings under section 240 of
the Act--(1)Asylum applications and withholding of removal applications
only. After Form I-863, Notice of Referral to Immigration Judge, has
been filed with the Immigration Court, an immigration judge shall have
exclusive jurisdiction over any asylum application filed on or after
April 1, 1997, by:
(i) An alien crewmember who:
(A) Is an applicant for a landing permit;
(B) Has been refused permission to land under section 252 of the
Act; or
(C) On or after April 1, 1997, was granted permission to land under
section 252 of the Act, regardless of whether the alien has remained in
the United States longer than authorized;
(ii) An alien stowaway who has been found to have a credible fear of
persecution or torture pursuant to the procedures set forth in subpart B
of this part;
(iii) An alien who is an applicant for admission pursuant to the
Visa Waiver Pilot Program under section 217 of the Act;
[[Page 140]]
(iv) An alien who was admitted to the United States pursuant to the
Visa Waiver Pilot Program under section 217 of the Act and has remained
longer than authorized or has otherwise violated his or her immigration
status;
(v) An alien who has been ordered removed under Sec. 235(c) of the
Act, as described in Sec. 235.8(a) of this chapter (applicable only in
the event that the alien is referred for proceedings under this
paragraph by the Regional Director pursuant to section 235.8(b)(2)(ii)
of this chapter); or
(vi) An alien who is an applicant for admission, or has been
admitted, as an alien classified under section 101(a)(15)(S) of the Act
(applicable only in the event that the alien is referred for proceedings
under this paragraph by the district director).
(2) Withholding of removal applications only. After Form I-863,
Notice of Referral to Immigration Judge, has been filed with the
Immigration Court, an immigration judge shall have exclusive
jurisdiction over any application for withholding of removal filed by:
(i) An alien who is the subject of a reinstated removal order
pursuant to section 241(a)(5) of the Act; or
(ii) An alien who has been issued an administrative removal order
pursuant to section 238 of the Act as an alien convicted of committing
an aggravated felony.
(3) Rules of procedure--(i)General. Except as provided in this
section, proceedings falling under the jurisdiction of the immigration
judge pursuant to paragraph (c)(1) or (c)(2) of this section shall be
conducted in accordance with the same rules of procedure as proceedings
conducted under 8 CFR part 240, subpart A. The scope of review in
proceedings conducted pursuant to paragraph (c)(1) of this section shall
be limited to a determination of whether the alien is eligible for
asylum or withholding or deferral of removal, and whether asylum shall
be granted in the exercise of discretion. The scope of review in
proceedings conducted pursuant to paragraph (c)(2) of this section shall
be limited to a determination of whether the alien is eligible for
withholding or deferral of removal. During such proceedings, all parties
are prohibited from raising or considering any other issues, including
but not limited to issues of admissibility, deportability, eligibility
for waivers, and eligibility for any other form of relief.
(ii) Notice of hearing procedures and in-absentia decisions. The
alien will be provided with notice of the time and place of the
proceeding. The request for asylum and withholding of removal submitted
by an alien who fails to appear for the hearing shall be denied. The
denial of asylum and withholding of removal for failure to appear may be
reopened only upon a motion filed with the immigration judge with
jurisdiction over the case. Only one motion to reopen may be filed, and
it must be filed within 90 days, unless the alien establishes that he or
she did not receive notice of the hearing date or was in Federal or
State custody on the date directed to appear. The motion must include
documentary evidence, which demonstrates that:
(A) The alien did not receive the notice;
(B) The alien was in Federal or State custody and the failure to
appear was through no fault of the alien; or
(C) ``Exceptional circumstances,'' as defined in section 240(e)(1)
of the Act, caused the failure to appear.
(iii) Relief. The filing of a motion to reopen shall not stay
removal of the alien unless the immigration judge issues an order
granting a stay pending disposition of the motion. An alien who fails to
appear for a proceeding under this section shall not be eligible for
relief under section 240A, 240B, 245, 248, or 249 of the Act for a
period of 10 years after the date of the denial, unless the applicant
can show exceptional circumstances resulted in his or her failure to
appear.
[65 FR 76130, Dec. 6, 2000]
Sec. 208.3 Form of application.
(a) An asylum applicant must file Form I-589, Application for Asylum
and for Withholding of Removal, together with any additional supporting
evidence in accordance with the instructions on the form. The
applicant's spouse and children shall be listed on the application and
may be included in the request for asylum if they are in the United
States. One additional copy of the principal applicant's Form I-589
[[Page 141]]
must be submitted for each dependent included in the principal's
application.
(b) An asylum application shall be deemed to constitute at the same
time an application for withholding of removal, unless adjudicated in
deportation or exclusion proceedings commenced prior to April 1, 1997.
In such instances, the asylum application shall be deemed to constitute
an application for withholding of deportation under section 243(h) of
the Act, as that section existed prior to April 1, 1997. Where a
determination is made that an applicant is ineligible to apply for
asylum under section 208(a)(2) of the Act, an asylum application shall
be construed as an application for withholding of removal.
(c) Form I-589 shall be filed under the following conditions and
shall have the following consequences:
(1) If the application was filed on or after January 4, 1995,
information provided in the application may be used as a basis for the
initiation of removal proceedings, or to satisfy any burden of proof in
exclusion, deportation, or removal proceedings;
(2) The applicant and anyone other than a spouse, parent, son, or
daughter of the applicant who assists the applicant in preparing the
application must sign the application under penalty of perjury. The
applicant's signature establishes a presumption that the applicant is
aware of the contents of the application. A person other than a relative
specified in this paragraph who assists the applicant in preparing the
application also must provide his or her full mailing address;
(3) An asylum application that does not include a response to each
of the questions contained in the Form I-589, is unsigned, or is
unaccompanied by the required materials specified in paragraph (a) of
this section is incomplete. The filing of an incomplete application
shall not commence the 150-day period after which the applicant may file
an application for employment authorization in accordance with Sec.
208.7. An application that is incomplete shall be returned by mail to
the applicant within 30 days of the receipt of the application by the
Service. If the Service has not mailed the incomplete application back
to the applicant within 30 days, it shall be deemed complete. An
application returned to the applicant as incomplete shall be resubmitted
by the applicant with the additional information if he or she wishes to
have the application considered;
(4) Knowing placement of false information on the application may
subject the person placing that information on the application to
criminal penalties under title 18 of the United States Code and to civil
or criminal penalties under section 274C of the Act; and
(5) Knowingly filing a frivolous application on or after April 1,
1997, so long as the applicant has received the notice required by
section 208(d)(4) of the Act, shall render the applicant permanently
ineligible for any benefits under the Act pursuant to Sec. 208.20.
[62 FR 10337, Mar. 6, 1997, as amended at 65 FR 76131, Dec. 6, 2000]
Sec. 208.4 Filing the application.
Except as prohibited in paragraph (a) of this section, asylum
applications shall be filed in accordance with paragraph (b) of this
section.
(a) Prohibitions on filing. Section 208(a)(2) of the Act prohibits
certain aliens from filing for asylum on or after April 1, 1997, unless
the alien can demonstrate to the satisfaction of the Attorney General
that one of the exceptions in section 208(a)(2)(D) of the Act applies.
Such prohibition applies only to asylum applications under section 208
of the Act and not to applications for withholding of removal under
Sec. 208.16. If an applicant files an asylum application and it appears
that one or more of the prohibitions contained in section 208(a)(2) of
the Act apply, an asylum officer, in an interview, or an immigration
judge, in a hearing, shall review the application and give the applicant
the opportunity to present any relevant and useful information bearing
on any prohibitions on filing to determine if the application should be
rejected. For the purpose of making determinations under section
208(a)(2) of the Act, the following rules shall apply:
(1) Authority. Only an asylum officer, an immigration judge, or the
Board of Immigration Appeals is authorized to make determinations
regarding the
[[Page 142]]
prohibitions contained in section 208(a)(2)(B) or (C) of the Act.
(2) One-year filing deadline. (i) For purposes of section
208(a)(2)(B) of the Act, an applicant has the burden of proving:
(A) By clear and convincing evidence that the application has been
filed within 1 year of the date of the alien's arrival in the United
States, or
(B) To the satisfaction of the asylum officer, the immigration
judge, or the Board that he or she qualifies for an exception to the 1-
year deadline.
(ii) The 1-year period shall be calculated from the date of the
alien's last arrival in the United States or April 1, 1997, whichever is
later. When the last day of the period so computed falls on a Saturday,
Sunday, or legal holiday, the period shall run until the end of the next
day that is not a Saturday, Sunday, or legal holiday. For the purpose of
making determinations under section 208(a)(2)(B) of the Act only, an
application is considered to have been filed on the date it is received
by the Service, pursuant to Sec. 103.2(a)(7) of this chapter. In a case
in which the application has not been received by the Service within 1
year from the applicant's date of entry into the United States, but the
applicant provides clear and convincing documentary evidence of mailing
the application within the 1-year period, the mailing date shall be
considered the filing date. For cases before the Immigration Court in
accordance with Sec. 3.13 of this chapter, the application is
considered to have been filed on the date it is received by the
Immigration Court. For cases before the Board of Immigration Appeals,
the application is considered to have been filed on the date it is
received by the Board. In the case of an application that appears to
have been filed more than a year after the applicant arrived in the
United States, the asylum officer, the immigration judge, or the Board
will determine whether the applicant qualifies for an exception to the
deadline.
(3) Prior denial of application. For purposes of section
208(a)(2)(C) of the Act, an asylum application has not been denied
unless denied by an immigration judge or the Board of Immigration
Appeals.
(4) Changed circumstances. (i) The term ``changed circumstances'' in
section 208(a)(2)(D) of the Act shall refer to circumstances materially
affecting the applicant's eligibility for asylum. They may include, but
are not limited to:
(A) Changes in conditions in the applicant's country of nationality
or, if the applicant is stateless, country of last habitual residence;
(B) Changes in the applicant's circumstances that materially affect
the applicant's eligibility for asylum, including changes in applicable
U.S. law and activities the applicant becomes involved in outside the
country of feared persecution that place the applicant at risk; or
(C) In the case of an alien who had previously been included as a
dependent in another alien's pending asylum application, the loss of the
spousal or parent-child relationship to the principal applicant through
marriage, divorce, death, or attainment of age 21.
(ii) The applicant shall file an asylum application within a
reasonable period given those ``changed circumstances.'' If the
applicant can establish that he or she did not become aware of the
changed circumstances until after they occurred, such delayed awareness
shall be taken into account in determining what constitutes a
``reasonable period.''
(5) The term ``extraordinary circumstances'' in section 208(a)(2)(D)
of the Act shall refer to events or factors directly related to the
failure to meet the 1-year deadline. Such circumstances may excuse the
failure to file within the 1-year period as long as the alien filed the
application within a reasonable period given those circumstances. The
burden of proof is on the applicant to establish to the satisfaction of
the asylum officer, the immigration judge, or the Board of Immigration
Appeals that the circumstances were not intentionally created by the
alien through his or her own action or inaction, that those
circumstances were directly related to the alien's failure to file the
application within the 1-year period, and that the delay was reasonable
under the circumstances. Those circumstances may include but are not
limited to:
[[Page 143]]
(i) Serious illness or mental or physical disability, including any
effects of persecution or violent harm suffered in the past, during the
1-year period after arrival;
(ii) Legal disability (e.g., the applicant was an unaccompanied
minor or suffered from a mental impairment) during the 1-year period
after arrival;
(iii) Ineffective assistance of counsel, provided that:
(A) The alien files an affidavit setting forth in detail the
agreement that was entered into with counsel with respect to the actions
to be taken and what representations counsel did or did not make to the
respondent in this regard;
(B) The counsel whose integrity or competence is being impugned has
been informed of the allegations leveled against him or her and given an
opportunity to respond; and
(C) The alien indicates whether a complaint has been filed with
appropriate disciplinary authorities with respect to any violation of
counsel's ethical or legal responsibilities, and if not, why not;
(iv) The applicant maintained Temporary Protected Status, lawful
immigrant or nonimmigrant status, or was given parole, until a
reasonable period before the filing of the asylum application;
(v) The applicant filed an asylum application prior to the
expiration of the 1-year deadline, but that application was rejected by
the Service as not properly filed, was returned to the applicant for
corrections, and was refiled within a reasonable period thereafter; and
(vi) The death or serious illness or incapacity of the applicant's
legal representative or a member of the applicant's immediate family.
(b) Filing location--(1) With the service center by mail. Except as
provided in paragraphs (b)(2), (b)(3), (b)(4) and (b)(5) of this
section, asylum applications shall be filed directly by mail with the
service center servicing the asylum office with jurisdiction over the
place of the applicant's residence or, in the case of an alien without a
United States residence, the applicant's current lodging or the land
border port-of-entry through which the alien seeks admission to the
United States.
(2) With the asylum office. An asylum application shall be filed
directly with the asylum office having jurisdiction over the matter in
the case of an alien who:
(i) Has received the express consent of the asylum office director
or the Director of Asylum to do so, or
(ii) Previously was included in a spouse's or parent's pending
application but is no longer eligible to be included as a derivative. In
such cases, the derivative should include a cover letter referencing the
previous application and explaining that he or she is now independently
filing for asylum.
(3) With the Immigration Court. Asylum applications shall be filed
directly with the Immigration Court having jurisdiction over the case in
the following circumstances:
(i) During exclusion, deportation, or removal proceedings, with the
Immigration Court having jurisdiction over the underlying proceeding.
(ii) After completion of exclusion, deportation, or removal
proceedings, and in conjunction with a motion to reopen pursuant to 8
CFR part 3 where applicable, with the Immigration Court having
jurisdiction over the prior proceeding. Any such motion must reasonably
explain the failure to request asylum prior to the completion of the
proceedings.
(iii) In asylum proceedings pursuant to Sec. 208.2(c)(1) and after
the Form I-863, Notice of Referral to Immigration Judge, has been served
on the alien and filed with the Immigration Court having jurisdiction
over the case.
(4) With the Board of Immigration Appeals. In conjunction with a
motion to remand or reopen pursuant to Sec. Sec. 3.2 and 3.8 of this
chapter where applicable, an initial asylum application shall be filed
with the Board of Immigration Appeals if jurisdiction over the
proceedings is vested in the Board of Immigration Appeals under 8 CFR
part 3. Any such motion must reasonably explain the failure to request
asylum prior to the completion of the proceedings.
(5) With the district director. In the case of any alien described
in Sec. 208.2(c)(1) and prior to the service on
[[Page 144]]
the alien of Form I-863, any asylum application shall be submitted to
the district director having jurisdiction pursuant to 8 CFR part 103. If
the district director elects to issue the Form I-863, the district
director shall forward such asylum application to the appropriate
Immigration Court with the Form
(c) Amending an application after filing. Upon request of the alien
and as a matter of discretion, the asylum officer or immigration judge
having jurisdiction may permit an asylum applicant to amend or
supplement the application, but any delay caused by such request shall
extend the period within which the applicant may not apply for
employment authorization in accordance with Sec. 208.7(a).
[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 64
FR 13881, Mar. 23, 1999; 65 FR 76131, Dec. 6, 2000]
Sec. 208.5 Special duties toward aliens in custody of the Service.
(a) General. When an alien in the custody of the Service requests
asylum or withholding of removal, or expresses a fear of persecution or
harm upon return to his or her country of origin or to agents thereof,
the Service shall make available the appropriate application forms and
shall provide the applicant with the information required by section
208(d)(4) of the Act, except in the case of an alien who is in custody
pending a credible fear determination under Sec. 208.30 or a reasonable
fear determination pursuant to Sec. 208.31. Although the Service does
not have a duty in the case of an alien who is in custody pending a
credible fear or reasonable fear determination under either Sec. 208.30
or Sec. 208.31, the Service may provide the appropriate forms, upon
request. Where possible, expedited consideration shall be given to
applications of detained aliens. Except as provided in paragraph (c) of
this section, such alien shall not be excluded, deported, or removed
before a decision is rendered on his or her asylum application.
(b) Certain aliens aboard vessels. (1) If an alien crewmember or
alien stowaway on board a vessel or other conveyance alleges, claims, or
otherwise makes known to an immigration inspector or other official
making an examination on the conveyance that he or she is unable or
unwilling to return to his or her country of nationality or last
habitual residence (if not a national of any country) because of
persecution or a fear of persecution in that country on account of race,
religion, nationality, membership in a particular social group, or
political opinion, or if the alien expresses a fear of torture upon
return to that country, the alien shall be promptly removed from the
conveyance. If the alien makes such fear known to an official while off
such conveyance, the alien shall not be returned to the conveyance but
shall be retained in or transferred to the custody of the Service.
(i) An alien stowaway will be referred to an asylum officer for a
credible fear determination under Sec. 208.30.
(ii) An alien crewmember shall be provided the appropriate
application forms and information required by section 208(d)(4) of the
Act and may then have 10 days within which to submit an asylum
application to the district director having jurisdiction over the port-
of-entry. The district director may extend the 10-day filing period for
good cause. Once the application has been filed, the district director,
pursuant to Sec. 208.4(b), shall serve Form I-863 on the alien and
immediately forward any such application to the appropriate Immigration
Court with a copy of the Form I-863 being filed with that court.
(2) Pending adjudication of the application, and, in the case of a
stowaway the credible fear determination and any review thereof, the
alien may be detained by the Service or otherwise paroled in accordance
with Sec. 212.5 of this chapter. However, pending the credible fear
determination, parole of an alien stowaway may be permitted only when
the Attorney General determines, in the exercise of discretion, that
parole is required to meet a medical emergency or is necessary for a
legitimate law enforcement objective.
(c) Exception to prohibition on removal. A motion to reopen or an
order to remand accompanied by an asylum application pursuant to Sec.
208.4(b)(3)(iii) shall not stay execution of a final exclusion,
deportation, or removal order unless such stay is specifically granted
by the Board of Immigration Appeals or the
[[Page 145]]
immigration judge having jurisdiction over the motion.
[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65
FR 76132, Dec. 6, 2000]
Sec. 208.6 Disclosure to third parties.
(a) Information contained in or pertaining to any asylum
application, records pertaining to any credible fear determination
conducted pursuant to Sec. 208.30, and records pertaining to any
reasonable fear determination conducted pursuant to Sec. 208.31, shall
not be disclosed without the written consent of the applicant, except as
permitted by this section or at the discretion of the Attorney General.
(b) The confidentiality of other records kept by the Service and the
Executive Office for Immigration Review that indicate that a specific
alien has applied for asylum, received a credible fear or reasonable
fear interview, or received a credible fear or reasonable fear review
shall also be protected from disclosure. The Service will coordinate
with the Department of State to ensure that the confidentiality of those
records is maintained if they are transmitted to Department of State
offices in other countries.
(c) This section shall not apply to any disclosure to:
(1) Any United States Government official or contractor having a
need to examine information in connection with:
(i) The adjudication of asylum applications;
(ii) The consideration of a request for a credible fear or
reasonable fear interview, or a credible fear or reasonable fear review;
(iii) The defense of any legal action arising from the adjudication
of, or failure to adjudicate, the asylum application, or from a credible
fear determination or reasonable fear determination under Sec. 208.30
or Sec. 208.31;
(iv) The defense of any legal action of which the asylum
application, credible fear determination, or reasonable fear
determination is a part; or
(v) Any United States Government investigation concerning any
criminal or civil matter; or
(2) Any Federal, State, or local court in the United States
considering any legal action:
(i) Arising from the adjudication of, or failure to adjudicate, the
asylum application, or from a credible fear or reasonable fear
determination under Sec. 208.30 or Sec. 208.31; or
(ii) Arising from the proceedings of which the asylum application,
credible fear determination, or reasonable fear determination is a part.
[65 FR 76133, Dec. 6, 2000]
Sec. 208.7 Employment authorization.
(a) Application and approval. (1) Subject to the restrictions
contained in sections 208(d) and 236(a) of the Act, an applicant for
asylum who is not an aggravated felon shall be eligible pursuant to
Sec. Sec. 274a.12(c)(8) and 274a.13(a) of this chapter to submit a Form
I-765, Application for Employment Authorization. Except in the case of
an alien whose asylum application has been recommended for approval, or
in the case of an alien who filed an asylum application prior to January
4, 1995, the application shall be submitted no earlier than 150 days
after the date on which a complete asylum application submitted in
accordance with Sec. Sec. 208.3 and 208.4 has been received. In the
case of an applicant whose asylum application has been recommended for
approval, the applicant may apply for employment authorization when he
or she receives notice of the recommended approval. If an asylum
application has been returned as incomplete in accordance with Sec.
208.3(c)(3), the 150-day period will commence upon receipt by the
Service of a complete asylum application. An applicant whose asylum
application has been denied by an asylum officer or by an immigration
judge within the 150-day period shall not be eligible to apply for
employment authorization. If an asylum application is denied prior to a
decision on the application for employment authorization, the
application for employment authorization shall be denied. If the asylum
application is not so denied, the Service shall have 30 days from the
date of filing of the Form I-765 to grant or deny that application,
except that no employment authorization shall be issued to an asylum
applicant prior to
[[Page 146]]
the expiration of the 180-day period following the filing of the asylum
application filed on or after April 1, 1997.
(2) The time periods within which the alien may not apply for
employment authorization and within which the Service must respond to
any such application and within which the asylum application must be
adjudicated pursuant to section 208(d)(5)(A)(iii) of the Act shall begin
when the alien has filed a complete asylum application in accordance
with Sec. Sec. 208.3 and 208.4. Any delay requested or caused by the
applicant shall not be counted as part of these time periods, including
delays caused by failure without good cause to follow the requirements
for fingerprint processing. Such time periods shall also be extended by
the equivalent of the time between issuance of a request for evidence
pursuant to Sec. 103.2(b)(8) of this chapter and the receipt of the
applicant's response to such request.
(3) The provisions of paragraphs (a)(1) and (a)(2) of this section
apply to applications for asylum filed on or after January 4, 1995.
(4) Employment authorization pursuant to Sec. 274a.12(c)(8) of this
chapter may not be granted to an alien who fails to appear for a
scheduled interview before an asylum officer or a hearing before an
immigration judge, unless the applicant demonstrates that the failure to
appear was the result of exceptional circumstances.
(b) Renewal and termination. Employment authorization shall be
renewable, in increments to be determined by the Commissioner, for the
continuous period of time necessary for the asylum officer or
immigration judge to decide the asylum application and, if necessary,
for completion of any administrative or judicial review.
(1) If the asylum application is denied by the asylum officer, the
employment authorization shall terminate at the expiration of the
employment authorization document or 60 days after the denial of asylum,
whichever is longer.
(2) If the application is denied by the immigration judge, the Board
of Immigration Appeals, or a Federal court, the employment authorization
terminates upon the expiration of the employment authorization document,
unless the applicant has filed an appropriate request for administrative
or judicial review.
(c) Supporting evidence for renewal of employment authorization. In
order for employment authorization to be renewed under this section, the
alien must provide the Service (in accordance with the instructions on
or attached to the employment authorization application) with a Form I-
765, the required fee (unless waived in accordance with Sec. 103.7(c)
of this chapter), and (if applicable) proof that he or she has continued
to pursue his or her asylum application before an immigration judge or
sought administrative or judicial review. For purposes of employment
authorization, pursuit of an asylum application is established by
presenting to the Service one of the following, depending on the stage
of the alien's immigration proceedings:
(1) If the alien's case is pending in proceedings before the
immigration judge, and the alien wishes to continue to pursue his or her
asylum application, a copy of any asylum denial, referral notice, or
charging document placing the alien in such proceedings;
(2) If the immigration judge has denied asylum, a copy of the
document issued by the Board of Immigration Appeals to show that a
timely appeal has been filed from a denial of the asylum application by
the immigration judge; or
(3) If the Board of Immigration Appeals has dismissed the alien's
appeal of a denial of asylum, or sustained an appeal by the Service of a
grant of asylum, a copy of the petition for judicial review or for
habeas corpus pursuant to section 242 of the Act, date stamped by the
appropriate court.
(d) In order for employment authorization to be renewed before its
expiration, the application for renewal must be received by the Service
90 days prior to expiration of the employment authorization.
[62 FR 10337, Mar. 6, 1997, as amended at 63 FR 12986, Mar. 17, 1998]
Sec. 208.8 Limitations on travel outside the United States.
(a) An applicant who leaves the United States without first
obtaining advance parole under Sec. 212.5(f) of this
[[Page 147]]
chapter shall be presumed to have abandoned his or her application under
this section.
(b) An applicant who leaves the United States pursuant to advance
parole under Sec. 212.5(f) of this chapter and returns to the country
of claimed persecution shall be presumed to have abandoned his or her
application, unless the applicant is able to establish compelling
reasons for such return.
[62 FR 10337, Mar. 6, 1997, as amended at 65 FR 82255, Dec. 28, 2000]
Sec. 208.9 Procedure for interview before an asylum officer.
(a) The Service shall adjudicate the claim of each asylum applicant
whose application is complete within the meaning of Sec. 208.3(c)(3)
and is within the jurisdiction of the Service.
(b) The asylum officer shall conduct the interview in a
nonadversarial manner and, except at the request of the applicant,
separate and apart from the general public. The purpose of the interview
shall be to elicit all relevant and useful information bearing on the
applicant's eligibility for asylum. At the time of the interview, the
applicant must provide complete information regarding his or her
identity, including name, date and place of birth, and nationality, and
may be required to register this identity electronically or through any
other means designated by the Attorney General. The applicant may have
counsel or a representative present, may present witnesses, and may
submit affidavits of witnesses and other evidence.
(c) The asylum officer shall have authority to administer oaths,
verify the identity of the applicant (including through the use of
electronic means), verify the identity of any interpreter, present and
receive evidence, and question the applicant and any witnesses.
(d) Upon completion of the interview, the applicant or the
applicant's representative shall have an opportunity to make a statement
or comment on the evidence presented. The asylum officer may, in his or
her discretion, limit the length of such statement or comment and may
require its submission in writing. Upon completion of the interview, the
applicant shall be informed that he or she must appear in person to
receive and to acknowledge receipt of the decision of the asylum officer
and any other accompanying material at a time and place designated by
the asylum officer, except as otherwise provided by the asylum officer.
An applicant's failure to appear to receive and acknowledge receipt of
the decision shall be treated as delay caused by the applicant for
purposes of Sec. 208.7(a)(3) and shall extend the period within which
the applicant may not apply for employment authorization by the number
of days until the applicant does appear to receive and acknowledge
receipt of the decision or until the applicant appears before an
immigration judge in response to the issuance of a charging document
under Sec. 208.14(c).
(e) The asylum officer shall consider evidence submitted by the
applicant together with his or her asylum application, as well as any
evidence submitted by the applicant before or at the interview. As a
matter of discretion, the asylum officer may grant the applicant a brief
extension of time following an interview during which the applicant may
submit additional evidence. Any such extension shall extend by an
equivalent time the periods specified by Sec. 208.7 for the filing and
adjudication of any employment authorization application.
(f) The asylum application, all supporting information provided by
the applicant, any comments submitted by the Department of State or by
the Service, and any other information specific to the applicant's case
and considered by the asylum officer shall comprise the record.
(g) An applicant unable to proceed with the interview in English
must provide, at no expense to the Service, a competent interpreter
fluent in both English and the applicant's native language or any other
language in which the applicant is fluent. The interpreter must be at
least 18 years of age. Neither the applicant's attorney or
representative of record, a witness testifying on the applicant's
behalf, nor a representative or employee of the applicant's country of
nationality, or if stateless, country of last habitual residence, may
serve as the applicant's interpreter. Failure without good cause
[[Page 148]]
to comply with this paragraph may be considered a failure to appear for
the interview for purposes of Sec. 208.10.
[62 FR 10337, Mar. 6, 1997, as amended at 65 FR 76133, Dec. 6, 2000]
Sec. 208.10 Failure to appear at an interview before an asylum officer
or failure to follow requirements for fingerprint processing.
Failure to appear for a scheduled interview without prior
authorization may result in dismissal of the application or waiver of
the right to an interview. Failure to comply with fingerprint processing
requirements without good cause may result in dismissal of the
application or waiver of the right to an adjudication by an asylum
officer. Failure to appear shall be excused if the notice of the
interview or fingerprint appointment was not mailed to the applicant's
current address and such address had been provided to the Office of
International Affairs by the applicant prior to the date of mailing in
accordance with section 265 of the Act and regulations promulgated
thereunder, unless the asylum officer determines that the applicant
received reasonable notice of the interview or fingerprinting
appointment. Failure to appear at the interview or fingerprint
appointment will be excused if the applicant demonstrates that such
failure was the result of exceptional circumstances.
[63 FR 12986, Mar. 17, 1998]
Sec. 208.11 Comments from the Department of State.
(a) The Service shall forward to the Department of State a copy of
each completed application it receives. At its option, the Department of
State may provide detailed country conditions information relevant to
eligibility for asylum or withholding of removal.
(b) At its option, the Department of State may also provide:
(1) An assessment of the accuracy of the applicant's assertions
about conditions in his or her country of nationality or habitual
residence and his or her particular situation;
(2) Information about whether persons who are similarly situated to
the applicant are persecuted or tortured in his or her country of
nationality or habitual residence and the frequency of such persecution
or torture; or
(3) Such other information as it deems relevant.
(c) Asylum officers and immigration judges may request specific
comments from the Department of State regarding individual cases or
types of claims under consideration, or such other information as they
deem appropriate.
(d) Any such comments received pursuant to paragraphs (b) and (c) of
this section shall be made part of the record. Unless the comments are
classified under the applicable Executive Order, the applicant shall be
provided an opportunity to review and respond to such comments prior to
the issuance of any decision to deny the application.
[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999]
Sec. 208.12 Reliance on information compiled by other sources.
(a) In deciding an asylum application, or in deciding whether the
alien has a credible fear of persecution or torture pursuant to Sec.
208.30 of this part, or a reasonable fear of persecution or torture
pursuant to Sec. 208.31, the asylum officer may rely on material
provided by the Department of State, the Office of International
Affairs, other Service offices, or other credible sources, such as
international organizations, private voluntary agencies, news
organizations, or academic institutions.
(b) Nothing in this part shall be construed to entitle the applicant
to conduct discovery directed toward the records, officers, agents, or
employees of the Service, the Department of Justice, or the Department
of State. Persons may continue to seek documents available through a
Freedom of Information Act (FOIA) request pursuant to 8 CFR part 103.
[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65
FR 76133, Dec. 6, 2000]
Sec. 208.13 Establishing asylum eligibility.
(a) Burden of proof. The burden of proof is on the applicant for
asylum to establish that he or she is a refugee as defined in section
101(a)(42) of the Act.
[[Page 149]]
The testimony of the applicant, if credible, may be sufficient to
sustain the burden of proof without corroboration. The fact that the
applicant previously established a credible fear of persecution for
purposes of section 235(b)(1)(B) of the Act does not relieve the alien
of the additional burden of establishing eligibility for asylum.
(b) Eligibility. The applicant may qualify as a refugee either
because he or she has suffered past persecution or because he or she has
a well-founded fear of future persecution.
(1) Past persecution. An applicant shall be found to be a refugee on
the basis of past persecution if the applicant can establish that he or
she has suffered persecution in the past in the applicant's country of
nationality or, if stateless, in his or her country of last habitual
residence, on account of race, religion, nationality, membership in a
particular social group, or political opinion, and is unable or
unwilling to return to, or avail himself or herself of the protection
of, that country owing to such persecution. An applicant who has been
found to have established such past persecution shall also be presumed
to have a well-founded fear of persecution on the basis of the original
claim. That presumption may be rebutted if an asylum officer or
immigration judge makes one of the findings described in paragraph
(b)(1)(i) of this section. If the applicant's fear of future persecution
is unrelated to the past persecution, the applicant bears the burden of
establishing that the fear is well-founded.
(i) Discretionary referral or denial. Except as provided in
paragraph (b)(1)(iii) of this section, an asylum officer shall, in the
exercise of his or her discretion, refer or deny, or an immigration
judge, in the exercise of his or her discretion, shall deny the asylum
application of an alien found to be a refugee on the basis of past
persecution if any of the following is found by a preponderance of the
evidence:
(A) There has been a fundamental change in circumstances such that
the applicant no longer has a well-founded fear of persecution in the
applicant's country of nationality or, if stateless, in the applicant's
country of last habitual residence, on account of race, religion,
nationality, membership in a particular social group, or political
opinion; or
(B) The applicant could avoid future persecution by relocating to
another part of the applicant's country of nationality or, if stateless,
another part of the applicant's country of last habitual residence, and
under all the circumstances, it would be reasonable to expect the
applicant to do so.
(ii) Burden of proof. In cases in which an applicant has
demonstrated past persecution under paragraph (b)(1) of this section,
the Service shall bear the burden of establishing by a preponderance of
the evidence the requirements of paragraphs (b)(1)(i)(A) or (B) of this
section.
(iii) Grant in the absence of well-founded fear of persecution. An
applicant described in paragraph (b)(1)(i) of this section who is not
barred from a grant of asylum under paragraph (c) of this section, may
be granted asylum, in the exercise of the decision-maker's discretion,
if:
(A) The applicant has demonstrated compelling reasons for being
unwilling or unable to return to the country arising out of the severity
of the past persecution; or
(B) The applicant has established that there is a reasonable
possibility that he or she may suffer other serious harm upon removal to
that country.
(2) Well-founded fear of persecution. (i) An applicant has a well-
founded fear of persecution if:
(A) The applicant has a fear of persecution in his or her country of
nationality or, if stateless, in his or her country of last habitual
residence, on account of race, religion, nationality, membership in a
particular social group, or political opinion;
(B) There is a reasonable possibility of suffering such persecution
if he or she were to return to that country; and
(C) He or she is unable or unwilling to return to, or avail himself
or herself of the protection of, that country because of such fear.
(ii) An applicant does not have a well-founded fear of persecution
if the applicant could avoid persecution by relocating to another part
of the applicant's country of nationality or, if
[[Page 150]]
stateless, another part of the applicant's country of last habitual
residence, if under all the circumstances it would be reasonable to
expect the applicant to do so.
(iii) In evaluating whether the applicant has sustained the burden
of proving that he or she has a well-founded fear of persecution, the
asylum officer or immigration judge shall not require the applicant to
provide evidence that there is a reasonable possibility he or she would
be singled out individually for persecution if:
(A) The applicant establishes that there is a pattern or practice in
his or her country of nationality or, if stateless, in his or her
country of last habitual residence, of persecution of a group of persons
similarly situated to the applicant on account of race, religion,
nationality, membership in a particular social group, or political
opinion; and
(B) The applicant establishes his or her own inclusion in, and
identification with, such group of persons such that his or her fear of
persecution upon return is reasonable.
(3) Reasonableness of internal relocation. For purposes of
determinations under paragraphs (b)(1)(i), (b)(1)(ii), and (b)(2) of
this section, adjudicators should consider, but are not limited to
considering, whether the applicant would face other serious harm in the
place of suggested relocation; any ongoing civil strife within the
country; administrative, economic, or judicial infrastructure;
geographical limitations; and social and cultural constraints, such as
age, gender, health, and social and familial ties. Those factors may, or
may not, be relevant, depending on all the circumstances of the case,
and are not necessarily determinative of whether it would be reasonable
for the applicant to relocate.
(i) In cases in which the applicant has not established past
persecution, the applicant shall bear the burden of establishing that it
would not be reasonable for him or her to relocate, unless the
persecution is by a government or is government-sponsored.
(ii) In cases in which the persecutor is a government or is
government-sponsored, or the applicant has established persecution in
the past, it shall be presumed that internal relocation would not be
reasonable, unless the Service establishes by a preponderance of the
evidence that, under all the circumstances, it would be reasonable for
the applicant to relocate.
(c) Mandatory denials--(1) Applications filed on or after April 1,
1997. For applications filed on or after April 1, 1997, an applicant
shall not qualify for asylum if section 208(a)(2) or 208(b)(2) of the
Act applies to the applicant. If the applicant is found to be ineligible
for asylum under either section 208(a)(2) or 208(b)(2) of the Act, the
applicant shall be considered for eligibility for withholding of removal
under section 241(b)(3) of the Act. The applicant shall also be
considered for eligibility for withholding of removal under the
Convention Against Torture if the applicant requests such consideration
or if the evidence presented by the alien indicates that the alien may
be tortured in the country of removal.
(2) Applications filed before April 1, 1997. (i) An immigration
judge or asylum officer shall not grant asylum to any applicant who
filed his or her application before April 1, 1997, if the alien:
(A) Having been convicted by a final judgment of a particularly
serious crime in the United States, constitutes a danger to the
community;
(B) Has been firmly resettled within the meaning of Sec. 208.15;
(C) Can reasonably be regarded as a danger to the security of the
United States;
(D) Has been convicted of an aggravated felony, as defined in
section 101(a)(43) of the Act; or
(E) Ordered, incited, assisted, or otherwise participated in the
persecution of any person on account of race, religion, nationality,
membership in a particular social group, or political opinion.
(ii) If the evidence indicates that one of the above grounds apply
to the applicant, he or she shall have the burden of proving by a
preponderance of the evidence that he or she did not so act.
(F) Is described within section 212(a)(3)(B)(i)(I),(II), and (III)
of the Act as it existed prior to April 1, 1997, and as amended by the
Anti-terrorist and Effective Death Penalty Act of 1996 (AEDPA), unless
it is determined that
[[Page 151]]
there are no reasonable grounds to believe that the individual is a
danger to the security of the United States.
[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65
FR 76133, Dec. 6, 2000]
Sec. 208.14 Approval, denial, referral, or dismissal of application.
(a) By an immigration judge. Unless otherwise prohibited in Sec.
208.13(c), an immigration judge may grant or deny asylum in the exercise
of discretion to an applicant who qualifies as a refugee under section
101(a)(42) of the Act.
(b) Approval by an asylum officer. In any case within the
jurisdiction of the Office of International Affairs, unless otherwise
prohibited in Sec. 208.13(c), an asylum officer may grant, in the
exercise of his or her discretion, asylum to an applicant who qualifies
as a refugee under section 101(a)(42) of the Act, and whose identity has
been checked pursuant to section 208(d)(5)(A)(i) of the Act.
(c) Denial, referral, or dismissal by an asylum officer. If the
asylum officer does not grant asylum to an applicant after an interview
conducted in accordance with Sec. 208.9, or if, as provided in Sec.
208.10, the applicant is deemed to have waived his or her right to an
interview or an adjudication by an asylum officer, the asylum officer
shall deny, refer, or dismiss the application, as follows:
(1) Inadmissible or deportable aliens. Except as provided in
paragraph (c)(4) of this section, in the case of an applicant who
appears to be inadmissible or deportable under section 212(a) or 237(a)
of the Act, the asylum officer shall refer the application to an
immigration judge, together with the appropriate charging document, for
adjudication in removal proceedings (or, where charging documents may
not be issued, shall dismiss the application).
(2) Alien in valid status. In the case of an applicant who is
maintaining valid immigrant, nonimmigrant, or Temporary Protected Status
at the time the application is decided, the asylum officer shall deny
the application for asylum.
(3) Alien with valid parole. If an applicant has been paroled into
the United States and the parole has not expired or been terminated by
the Service, the asylum officer shall deny the application for asylum.
(4) Alien paroled into the United States whose parole has expired or
is terminated--(i) Alien paroled prior to April 1, 1997, or with advance
authorization for parole. In the case of an applicant who was paroled
into the United States prior to April 1, 1997, or who, prior to
departure from the United States, had received an advance authorization
for parole, the asylum officer shall refer the application, together
with the appropriate charging documents, to an immigration judge for
adjudication in removal proceedings if the parole has expired, the
Service has terminated parole, or the Service is terminating parole
through issuance of the charging documents, pursuant to Sec.
212.5(d)(2)(i) of this chapter.
(ii) Alien paroled on or after April 1, 1997, without advance
authorization for parole. In the case of an applicant who is an arriving
alien or is otherwise subject to removal under Sec. 235.3(b) of this
chapter, and was paroled into the United States on or after April 1,
1997, without advance authorization for parole prior to departure from
the United States, the asylum officer will take the following actions,
if the parole has expired or been terminated:
(A) Inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act.
If the applicant appears inadmissible to the United States under section
212(a)(6)(C) or 212(a)(7) of the Act and the asylum officer does not
intend to lodge any additional charges of inadmissibility, the asylum
officer shall proceed in accordance with Sec. 235.3(b) of this chapter.
If such applicant is found to have a credible fear of persecution or
torture based on information elicited from the asylum interview, an
asylum officer may refer the applicant directly to an immigration judge
in removal proceedings under section 240 of the Act, without conducting
a separate credible fear interview pursuant to Sec. 208.30. If such
applicant is not found to have a credible fear based on information
elicited at the asylum interview, an asylum officer will conduct a
credible fear interview and the applicant will be subject to the
credible fear process specified at Sec. 208.30(b).
[[Page 152]]
(B) Inadmissible on other grounds. In the case of an applicant who
was paroled into the United States on or after April 1, 1997, and will
be charged as inadmissible to the United States under provisions of the
Act other than, or in addition to, sections 212(a)(6)(C) or 212(a)(7),
the asylum officer shall refer the application to an immigration judge
for adjudication in removal proceedings.
(d) Applicability of Sec. 103.2(b) of this chapter. No application
for asylum or withholding of deportation shall be subject to denial
pursuant to Sec. 103.2(b) of this chapter.
(e) Duration. If the applicant is granted asylum, the grant will be
effective for an indefinite period, subject to termination as provided
in Sec. 208.24.
(f) Effect of denial of principal's application on separate
applications by dependents. The denial of an asylum application filed by
a principal applicant for asylum shall also result in the denial of
asylum status to any dependents of that principal applicant who are
included in that same application. Such denial shall not preclude a
grant of asylum for an otherwise eligible dependent who has filed a
separate asylum application, nor shall such denial result in an
otherwise eligible dependent becoming ineligible to apply for asylum due
to the provisions of section 208(a)(2)(C) of the Act.
(g) Applicants granted lawful permanent residence status. If an
asylum applicant is granted adjustment of status to lawful permanent
resident, the Service may provide written notice to the applicant that
his or her asylum application will be presumed abandoned and dismissed
without prejudice, unless the applicant submits a written request within
30 days of the notice, that the asylum application be adjudicated. If an
applicant does not respond within 30 days of the date the written notice
was sent or served, the Service may presume the asylum application
abandoned and dismiss it without prejudice.
[62 FR 10337, Mar. 6, 1997, as amended at 63 FR 12986, Mar. 17, 1998; 64
FR 27875, May 21, 1999; 65 FR 76134, Dec. 6, 2000]
Sec. 208.15 Definition of ``firm resettlement.''
An alien is considered to be firmly resettled if, prior to arrival
in the United States, he or she entered into another country with, or
while in that country received, an offer of permanent resident status,
citizenship, or some other type of permanent resettlement unless he or
she establishes:
(a) That his or her entry into that country was a necessary
consequence of his or her flight from persecution, that he or she
remained in that country only as long as was necessary to arrange onward
travel, and that he or she did not establish significant ties in that
country; or
(b) That the conditions of his or her residence in that country were
so substantially and consciously restricted by the authority of the
country of refuge that he or she was not in fact resettled. In making
his or her determination, the asylum officer or immigration judge shall
consider the conditions under which other residents of the country live;
the type of housing, whether permanent or temporary, made available to
the refugee; the types and extent of employment available to the
refugee; and the extent to which the refugee received permission to hold
property and to enjoy other rights and privileges, such as travel
documentation that includes a right of entry or reentry, education,
public relief, or naturalization, ordinarily available to others
resident in the country.
[65 FR 76135, Dec. 6, 2000]
Sec. 208.16 Withholding of removal under section 241(b)(3)(B) of
the Act and withholding of removal under the Convention Against Torture.
(a) Consideration of application for withholding of removal. An
asylum officer shall not decide whether the exclusion, deportation, or
removal of an alien to a country where the alien's life or freedom would
be threatened must be withheld, except in the case of an alien who is
otherwise eligible for asylum but is precluded from being granted such
status due solely to section
[[Page 153]]
207(a)(5) of the Act. In exclusion, deportation, or removal proceedings,
an immigration judge may adjudicate both an asylum claim and a request
for withholding of removal whether or not asylum is granted.
(b) Eligibility for withholding of removal under section 241(b)(3)
of the Act; burden of proof. The burden of proof is on the applicant for
withholding of removal under section 241(b)(3) of the Act to establish
that his or her life or freedom would be threatened in the proposed
country of removal on account of race, religion, nationality, membership
in a particular social group, or political opinion. The testimony of the
applicant, if credible, may be sufficient to sustain the burden of proof
without corroboration. The evidence shall be evaluated as follows:
(1) Past threat to life or freedom. (i) If the applicant is
determined to have suffered past persecution in the proposed country of
removal on account of race, religion, nationality, membership in a
particular social group, or political opinion, it shall be presumed that
the applicant's life or freedom would be threatened in the future in the
country of removal on the basis of the original claim. This presumption
may be rebutted if an asylum officer or immigration judge finds by a
preponderance of the evidence:
(A) There has been a fundamental change in circumstances such that
the applicant's life or freedom would not be threatened on account of
any of the five grounds mentioned in this paragraph upon the applicant's
removal to that country; or
(B) The applicant could avoid a future threat to his or her life or
freedom by relocating to another part of the proposed country of removal
and, under all the circumstances, it would be reasonable to expect the
applicant to do so.
(ii) In cases in which the applicant has established past
persecution, the Service shall bear the burden of establishing by a
preponderance of the evidence the requirements of paragraphs
(b)(1)(i)(A) or (b)(1)(i)(B) of this section.
(iii) If the applicant's fear of future threat to life or freedom is
unrelated to the past persecution, the applicant bears the burden of
establishing that it is more likely than not that he or she would suffer
such harm.
(2) Future threat to life or freedom. An applicant who has not
suffered past persecution may demonstrate that his or her life or
freedom would be threatened in the future in a country if he or she can
establish that it is more likely than not that he or she would be
persecuted on account of race, religion, nationality, membership in a
particular social group, or political opinion upon removal to that
country. Such an applicant cannot demonstrate that his or her life or
freedom would be threatened if the asylum officer or immigration judge
finds that the applicant could avoid a future threat to his or her life
or freedom by relocating to another part of the proposed country of
removal and, under all the circumstances, it would be reasonable to
expect the applicant to do so. In evaluating whether it is more likely
than not that the applicant's life or freedom would be threatened in a
particular country on account of race, religion, nationality, membership
in a particular social group, or political opinion, the asylum officer
or immigration judge shall not require the applicant to provide evidence
that he or she would be singled out individually for such persecution
if:
(i) The applicant establishes that in that country there is a
pattern or practice of persecution of a group of persons similarly
situated to the applicant on account of race, religion, nationality,
membership in a particular social group, or political opinion; and
(ii) The applicant establishes his or her own inclusion in and
identification with such group of persons such that it is more likely
than not that his or her life or freedom would be threatened upon return
to that country.
(3) Reasonableness of internal relocation. For purposes of
determinations under paragraphs (b)(1) and (b)(2) of this section,
adjudicators should consider, among other things, whether the applicant
would face other serious harm in the place of suggested relocation; any
ongoing civil strife within the country; administrative, economic, or
judicial infrastructure; geographical limitations; and social and
cultural constraints, such as age, gender,
[[Page 154]]
health, and social and familial ties. These factors may or may not be
relevant, depending on all the circumstances of the case, and are not
necessarily determinative of whether it would be reasonable for the
applicant to relocate.
(i) In cases in which the applicant has not established past
persecution, the applicant shall bear the burden of establishing that it
would not be reasonable for him or her to relocate, unless the
persecutor is a government or is government-sponsored.
(ii) In cases in which the persecutor is a government or is
government-sponsored, or the applicant has established persecution in
the past, it shall be presumed that internal relocation would not be
reasonable, unless the Service establishes by a preponderance of the
evidence that under all the circumstances it would be reasonable for the
applicant to relocate.
(c) Eligibility for withholding of removal under the Convention
Against Torture. (1) For purposes of regulations under Title II of the
Act, ``Convention Against Torture'' shall refer to the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, subject to any reservations, understandings,
declarations, and provisos contained in the United States Senate
resolution of ratification of the Convention, as implemented by section
2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (Pub.
L. 105-277, 112 Stat. 2681, 2681-821). The definition of torture
contained in Sec. 208.18(a) of this part shall govern all decisions
made under regulations under Title II of the Act about the applicability
of Article 3 of the Convention Against Torture.
(2) The burden of proof is on the applicant for withholding of
removal under this paragraph to establish that it is more likely than
not that he or she would be tortured if removed to the proposed country
of removal. The testimony of the applicant, if credible, may be
sufficient to sustain the burden of proof without corroboration.
(3) In assessing whether it is more likely than not that an
applicant would be tortured in the proposed country of removal, all
evidence relevant to the possibility of future torture shall be
considered, including, but not limited to:
(i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a part of the
country of removal where he or she is not likely to be tortured;
(iii) Evidence of gross, flagrant or mass violations of human rights
within the country of removal, where applicable; and
(iv) Other relevant information regarding conditions in the country
of removal.
(4) In considering an application for withholding of removal under
the Convention Against Torture, the immigration judge shall first
determine whether the alien is more likely than not to be tortured in
the country of removal. If the immigration judge determines that the
alien is more likely than not to be tortured in the country of removal,
the alien is entitled to protection under the Convention Against
Torture. Protection under the Convention Against Torture will be granted
either in the form of withholding of removal or in the form of deferral
of removal. An alien entitled to such protection shall be granted
withholding of removal unless the alien is subject to mandatory denial
of withholding of removal under paragraphs (d)(2) or (d)(3) of this
section. If an alien entitled to such protection is subject to mandatory
denial of withholding of removal under paragraphs (d)(2) or (d)(3) of
this section, the alien's removal shall be deferred under Sec.
208.17(a).
(d) Approval or denial of application--(1) General. Subject to
paragraphs (d)(2) and (d)(3) of this section, an application for
withholding of deportation or removal to a country of proposed removal
shall be granted if the applicant's eligibility for withholding is
established pursuant to paragraphs (b) or (c) of this section.
(2) Mandatory denials. Except as provided in paragraph (d)(3) of
this section, an application for withholding of removal under section
241(b)(3) of the Act or under the Convention Against Torture shall be
denied if the applicant falls within section 241(b)(3)(B) of the Act or,
for applications for withholding
[[Page 155]]
of deportation adjudicated in proceedings commenced prior to April 1,
1997, within section 243(h)(2) of the Act as it appeared prior to that
date. For purposes of section 241(b)(3)(B)(ii) of the Act, or section
243(h)(2)(B) of the Act as it appeared prior to April 1, 1997, an alien
who has been convicted of a particularly serious crime shall be
considered to constitute a danger to the community. If the evidence
indicates the applicability of one or more of the grounds for denial of
withholding enumerated in the Act, the applicant shall have the burden
of proving by a preponderance of the evidence that such grounds do not
apply.
(3) Exception to the prohibition on withholding of deportation in
certain cases. Section 243(h)(3) of the Act, as added by section 413 of
Pub. L. 104-132 (110 Stat. 1214), shall apply only to applications
adjudicated in proceedings commenced before April 1, 1997, and in which
final action had not been taken before April 24, 1996. The discretion
permitted by that section to override section 243(h)(2) of the Act shall
be exercised only in the case of an applicant convicted of an aggravated
felony (or felonies) where he or she was sentenced to an aggregate term
of imprisonment of less than 5 years and the immigration judge
determines on an individual basis that the crime (or crimes) of which
the applicant was convicted does not constitute a particularly serious
crime. Nevertheless, it shall be presumed that an alien convicted of an
aggravated felony has been convicted of a particularly serious crime.
Except in the cases specified in this paragraph, the grounds for denial
of withholding of deportation in section 243(h)(2) of the Act as it
appeared prior to April 1, 1997, shall be deemed to comply with the
Protocol Relating to the Status of Refugees, Jan. 31, 1967, T.I.A.S. No.
6577.
(e) Reconsideration of discretionary denial of asylum. In the event
that an applicant is denied asylum solely in the exercise of discretion,
and the applicant is subsequently granted withholding of deportation or
removal under this section, thereby effectively precluding admission of
the applicant's spouse or minor children following to join him or her,
the denial of asylum shall be reconsidered. Factors to be considered
will include the reasons for the denial and reasonable alternatives
available to the applicant such as reunification with his or her spouse
or minor children in a third country.
(f) Removal to third country. Nothing in this section or Sec.
208.17 shall prevent the Service from removing an alien to a third
country other than the country to which removal has been withheld or
deferred.
[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65
FR 76135, Dec. 6, 2000](
Sec. 208.17 Deferral of removal under the Convention Against Torture.
(a) Grant of deferral of removal. An alien who: has been ordered
removed; has been found under Sec. 208.16(c)(3) to be entitled to
protection under the Convention Against Torture; and is subject to the
provisions for mandatory denial of withholding of removal under Sec.
208.16(d)(2) or (d)(3), shall be granted deferral of removal to the
country where he or she is more likely than not to be tortured.
(b) Notice to alien. (1) After an immigration judge orders an alien
described in paragraph (a) of this section removed, the immigration
judge shall inform the alien that his or her removal to the country
where he or she is more likely than not to be tortured shall be deferred
until such time as the deferral is terminated under this section. The
immigration judge shall inform the alien that deferral of removal:
(i) Does not confer upon the alien any lawful or permanent
immigration status in the United States;
(ii) Will not necessarily result in the alien being released from
the custody of the Service if the alien is subject to such custody;
(iii) Is effective only until terminated; and
(iv) Is subject to review and termination if the immigration judge
determines that it is not likely that the alien would be tortured in the
country to which removal has been deferred, or if the alien requests
that deferral be terminated.
(2) The immigration judge shall also inform the alien that removal
has been deferred only to the country in which it has been determined
that the alien is
[[Page 156]]
likely to be tortured, and that the alien may be removed at any time to
another country where he or she is not likely to be tortured.
(c) Detention of an alien granted deferral of removal under this
section. Nothing in this section shall alter the authority of the
Service to detain an alien whose removal has been deferred under this
section and who is otherwise subject to detention. In the case of such
an alien, decisions about the alien's release shall be made according to
part 241 of this chapter.
(d) Termination of deferral of removal. (1) At any time while
deferral of removal is in effect, the INS District Counsel for the
District with jurisdiction over an alien whose removal has been deferred
under paragraph (a) of this section may file a motion with the
Immigration Court having administrative control pursuant to Sec. 3.11
of this chapter to schedule a hearing to consider whether deferral of
removal should be terminated. The Service motion shall be granted if it
is accompanied by evidence that is relevant to the possibility that the
alien would be tortured in the country to which removal has been
deferred and that was not presented at the previous hearing. The Service
motion shall not be subject to the requirements for reopening in
Sec. Sec. 3.2 and 3.23 of this chapter.
(2) The Immigration Court shall provide notice to the alien and the
Service of the time, place, and date of the termination hearing. Such
notice shall inform the alien that the alien may supplement the
information in his or her initial application for withholding of removal
under the Convention Against Torture and shall provide that the alien
must submit any such supplemental information within 10 calendar days of
service of such notice (or 13 calendar days if service of such notice
was by mail). At the expiration of this 10 or 13 day period, the
Immigration Court shall forward a copy of the original application, and
any supplemental information the alien or the Service has submitted, to
the Department of State, together with notice to the Department of State
of the time, place and date of the termination hearing. At its option,
the Department of State may provide comments on the case, according to
the provisions of Sec. 208.11 of this part.
(3) The immigration judge shall conduct a hearing and make a de novo
determination, based on the record of proceeding and initial application
in addition to any new evidence submitted by the Service or the alien,
as to whether the alien is more likely than not to be tortured in the
country to which removal has been deferred. This determination shall be
made under the standards for eligibility set out in Sec. 208.16(c). The
burden is on the alien to establish that it is more likely than not that
he or she would be tortured in the country to which removal has been
deferred.
(4) If the immigration judge determines that the alien is more
likely than not to be tortured in the country to which removal has been
deferred, the order of deferral shall remain in place. If the
immigration judge determines that the alien has not established that he
or she is more likely than not to be tortured in the country to which
removal has been deferred, the deferral of removal shall be terminated
and the alien may be removed to that country. Appeal of the immigration
judge's decision shall lie to the Board.
(e) Termination at the request of the alien. (1) At any time while
deferral of removal is in effect, the alien may make a written request
to the Immigration Court having administrative control pursuant to Sec.
3.11 of this chapter to terminate the deferral order. If satisfied on
the basis of the written submission that the alien's request is knowing
and voluntary, the immigration judge shall terminate the order of
deferral and the alien may be removed.
(2) If necessary the immigration judge may calendar a hearing for
the sole purpose of determining whether the alien's request is knowing
and voluntary. If the immigration judge determines that the alien's
request is knowing and voluntary, the order of deferral shall be
terminated. If the immigration judge determines that the alien's request
is not knowing and voluntary, the alien's request shall not serve as the
basis for terminating the order of deferral.
[[Page 157]]
(f) Termination pursuant to Sec. 208.18(c). At any time while
deferral of removal is in effect, the Attorney General may determine
whether deferral should be terminated based on diplomatic assurances
forwarded by the Secretary of State pursuant to the procedures in Sec.
208.18(c).
[64 FR 8489, Feb. 19, 1999]
Sec. 208.18 Implementation of the Convention Against Torture.
(a) Definitions. The definitions in this subsection incorporate the
definition of torture contained in Article 1 of the Convention Against
Torture, subject to the reservations, understandings, declarations, and
provisos contained in the United States Senate resolution of
ratification of the Convention.
(1) Torture is defined as any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for
such purposes as obtaining from him or her or a third person information
or a confession, punishing him or her for an act he or she or a third
person has committed or is suspected of having committed, or
intimidating or coercing him or her or a third person, or for any reason
based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity.
(2) Torture is an extreme form of cruel and inhuman treatment and
does not include lesser forms of cruel, inhuman or degrading treatment
or punishment that do not amount to torture.
(3) Torture does not include pain or suffering arising only from,
inherent in or incidental to lawful sanctions. Lawful sanctions include
judicially imposed sanctions and other enforcement actions authorized by
law, including the death penalty, but do not include sanctions that
defeat the object and purpose of the Convention Against Torture to
prohibit torture.
(4) In order to constitute torture, mental pain or suffering must be
prolonged mental harm caused by or resulting from:
(i) The intentional infliction or threatened infliction of severe
physical pain or suffering;
(ii) The administration or application, or threatened administration
or application, of mind altering substances or other procedures
calculated to disrupt profoundly the senses or the personality;
(iii) The threat of imminent death; or
(iv) The threat that another person will imminently be subjected to
death, severe physical pain or suffering, or the administration or
application of mind altering substances or other procedures calculated
to disrupt profoundly the sense or personality.
(5) In order to constitute torture, an act must be specifically
intended to inflict severe physical or mental pain or suffering. An act
that results in unanticipated or unintended severity of pain and
suffering is not torture.
(6) In order to constitute torture an act must be directed against a
person in the offender's custody or physical control.
(7) Acquiescence of a public official requires that the public
official, prior to the activity constituting torture, have awareness of
such activity and thereafter breach his or her legal responsibility to
intervene to prevent such activity.
(8) Noncompliance with applicable legal procedural standards does
not per se constitute torture.
(b) Applicability of Sec. Sec. 208.16(c) and 208.17(a)--(1) Aliens
in proceedings on or after March 22, 1999. An alien who is in exclusion,
deportation, or removal proceedings on or after March 22, 1999 may apply
for withholding of removal under Sec. 208.16(c), and, if applicable,
may be considered for deferral of removal under Sec. 208.17(a).
(2) Aliens who were ordered removed, or whose removal orders became
final, before March 22, 1999. An alien under a final order of
deportation, exclusion, or removal that became final prior to March 22,
1999 may move to reopen proceedings for the sole purpose of seeking
protection under Sec. 208.16(c). Such motions shall be governed by
Sec. Sec. 3.23 and 3.2 of this chapter, except that the time and
numerical limitations on motions to reopen shall not apply and the alien
shall not be required to demonstrate that the evidence sought to be
offered was unavailable and could not have been discovered or presented
at the
[[Page 158]]
former hearing. The motion to reopen shall not be granted unless:
(i) The motion is filed within June 21, 1999; and
(ii) The evidence sought to be offered establishes a prima facie
case that the applicant's removal must be withheld or deferred under
Sec. Sec. 208.16(c) or 208.17(a).
(3) Aliens who, on March 22, 1999, have requests pending with the
Service for protection under Article 3 of the Convention Against
Torture. (i) Except as otherwise provided, after March 22, 1999, the
Service will not:
(A) Consider, under its pre-regulatory administrative policy to
ensure compliance with the Convention Against Torture, whether Article 3
of that Convention prohibits the removal of an alien to a particular
country, or
(B) Stay the removal of an alien based on a request filed with the
Service for protection under Article 3 of that Convention.
(ii) For each alien who, on or before March 22, 1999, filed a
request with the Service for protection under Article 3 of the
Convention Against Torture, and whose request has not been finally
decided by the Service, the Service shall provide written notice that,
after March 22, 1999, consideration for protection under Article 3 can
be obtained only through the provisions of this rule.
(A) The notice shall inform an alien who is under an order of
removal issued by EOIR that, in order to seek consideration of a claim
under Sec. Sec. 208.16(c) or 208.17(a), such an alien must file a
motion to reopen with the immigration court or the Board of Immigration
Appeals. This notice shall be accompanied by a stay of removal,
effective until 30 days after service of the notice on the alien. A
motion to reopen filed under this paragraph for the limited purpose of
asserting a claim under Sec. Sec. 208.16(c) or 208.17(a) shall not be
subject to the requirements for reopening in Sec. Sec. 3.2 and 3.23 of
this chapter. Such a motion shall be granted if it is accompanied by a
copy of the notice described in paragraph (b)(3)(ii) or by other
convincing evidence that the alien had a request pending with the
Service for protection under Article 3 of the Convention Against Torture
on March 22, 1999. The filing of such a motion shall extend the stay of
removal during the pendency of the adjudication of this motion.
(B) The notice shall inform an alien who is under an administrative
order of removal issued by the Service under section 238(b) of the Act
or an exclusion, deportation, or removal order reinstated by the Service
under section 241(a)(5) of the Act that the alien's claim to withholding
of removal under Sec. 208.16(c) or deferral of removal under Sec.
208.17(a) will be considered under Sec. 208.31.
(C) The notice shall inform an alien who is under an administrative
order of removal issued by the Service under section 235(c) of the Act
that the alien's claim to protection under the Convention Against
Torture will be decided by the Service as provided in Sec. 208.18(d)
and 235.8(b)(4) and will not be considered under the provisions of this
part relating to consideration or review by an immigration judge, the
Board of Immigration Appeals, or an asylum officer.
(4) Aliens whose claims to protection under the Convention Against
Torture were finally decided by the Service prior to March 22, 1999.
Sections 208.16(c) and 208.17 (a) and paragraphs (b)(1) through (b)(3)
of this section do not apply to cases in which, prior to March 22, 1999,
the Service has made a final administrative determination about the
applicability of Article 3 of the Convention Against Torture to the case
of an alien who filed a request with the Service for protection under
Article 3. If, prior to March 22, 1999, the Service determined that an
applicant cannot be removed consistent with the Convention Against
Torture, the alien shall be considered to have been granted withholding
of removal under Sec. 208.16(c), unless the alien is subject to
mandatory denial of withholding of removal under Sec. 208.16(d)(2) or
(d)(3), in which case the alien will be considered to have been granted
deferral of removal under 208.17(a). If, prior to March 22, 1999, the
Service determined that an alien can be removed consistent with the
Convention Against Torture, the alien will be considered to have been
finally denied withholding of removal under Sec. 208.16(c) and deferral
of removal under Sec. 208.17(a).
[[Page 159]]
(c) Diplomatic assurances against torture obtained by the Secretary
of State. (1) The Secretary of State may forward to the Attorney General
assurances that the Secretary has obtained from the government of a
specific country that an alien would not be tortured there if the alien
were removed to that country.
(2) If the Secretary of State forwards assurances described in
paragraph (c)(1) of this section to the Attorney General for
consideration by the Attorney General or her delegates under this
paragraph, the Attorney General shall determine, in consultation with
the Secretary of State, whether the assurances are sufficiently reliable
to allow the alien's removal to that country consistent with Article 3
of the Convention Against Torture. The Attorney General's authority
under this paragraph may be exercised by the Deputy Attorney General or
by the Commissioner, Immigration and Naturalization Service, but may not
be further delegated.
(3) Once assurances are provided under paragraph (c)(2) of this
section, the alien's claim for protection under the Convention Against
Torture shall not be considered further by an immigration judge, the
Board of Immigration Appeals, or an asylum officer.
(d) Cases involving aliens ordered removed under section 235(c) of
the Act. With respect to an alien terrorist or other alien subject to
administrative removal under section 235(c) of the Act who requests
protection under Article 3 of the Convention Against Torture, the
Service will assess the applicability of Article 3 through the removal
process to ensure that a removal order will not be executed under
circumstances that would violate the obligations of the United States
under Article 3. In such cases, the provisions of Part 208 relating to
consideration or review by an immigration judge, the Board of
Immigration Appeals, or an asylum officer shall not apply.
(e) Judicial review of claims for protection from removal under
Article 3 of the Convention Against Torture. (1) Pursuant to the
provisions of section 2242(d) of the Foreign Affairs Reform and
Restructuring Act of 1998, there shall be no judicial appeal or review
of any action, decision, or claim raised under the Convention or that
section, except as part of the review of a final order of removal
pursuant to section 242 of the Act; provided however, that any appeal or
petition regarding an action, decision, or claim under the Convention or
under section 2242 of the Foreign Affairs Reform and Restructuring Act
of 1998 shall not be deemed to include or authorize the consideration of
any administrative order or decision, or portion thereof, the appeal or
review of which is restricted or prohibited by the Act.
(2) Except as otherwise expressly provided, nothing in this
paragraph shall be construed to create a private right of action or to
authorize the consideration or issuance of administrative or judicial
relief.
[64 FR 8490, Feb. 19, 1999; 64 FR 13881, Mar. 23, 1999]
Sec. 208.19 Decisions.
The decision of an asylum officer to grant or to deny asylum or to
refer an asylum application, in accordance with Sec. 208.14(b) or (c),
shall be communicated in writing to the applicant. Pursuant to Sec.
208.9(d), an applicant must appear in person to receive and to
acknowledge receipt of the decision to grant or deny asylum, or to refer
an asylum application unless, in the discretion of the asylum office
director, service by mail is appropriate. A letter communicating denial
of asylum or referral of the application shall state the basis for
denial or referral and include an assessment of the applicant's
credibility.
[65 FR 76136, Dec. 6, 2000]
Sec. 208.20 Determining if an asylum application is frivolous.
For applications filed on or after April 1, 1997, an applicant is
subject to the provisions of section 208(d)(6) of the Act only if a
final order by an immigration judge or the Board of Immigration Appeals
specifically finds that the alien knowingly filed a frivolous asylum
application. For purposes of this section, an asylum application is
frivolous if any of its material elements is deliberately fabricated.
Such finding shall only be made if the immigration judge or the Board is
satisfied that the
[[Page 160]]
applicant, during the course of the proceedings, has had sufficient
opportunity to account for any discrepancies or implausible aspects of
the claim. For purposes of this section, a finding that an alien filed a
frivolous asylum application shall not preclude the alien from seeking
withholding of removal.
[64 FR 8492, Feb. 19, 1999. Redesignated at 65 FR 76136, Dec. 6, 2000]
Sec. 208.21 Admission of the asylee's spouse and children.
(a) Eligibility. In accordance with section 208(b)(3) of the Act, a
spouse, as defined in section 101(a)(35) of the Act, 8 U.S.C.
1101(a)(35), or child, as defined in section 101(b)(1) of the Act, also
may be granted asylum if accompanying, or following to join, the
principal alien who was granted asylum, unless it is determined that the
spouse or child is ineligible for asylum under section 208(b)(2)(A)(i),
(ii), (iii), (iv) or (v) of the Act for applications filed on or after
April 1, 1997, or under Sec. 208.13(c)(2)(i)(A), (C), (D), (E), or (F)
for applications filed before April 1, 1997.
(b) Relationship. The relationship of spouse and child as defined in
sections 101(a)(35) and 101(b)(1) of the Act must have existed at the
time the principal alien's asylum application was approved and must
continue to exist at the time of filing for accompanying or following-
to-join benefits and at the time of the spouse or child's subsequent
admission to the United States. If the asylee proves that the asylee is
the parent of a child who was born after asylum was granted, but who was
in utero on the date of the asylum grant, the child shall be eligible to
accompany or follow-to-join the asylee. The child's mother, if not the
principal asylee, shall not be eligible to accompany or follow-to-join
the principal asylee unless the child's mother was the principal
asylee's spouse on the date the principal asylee was granted asylum.
(c) Spouse or child in the United States. When a spouse or child of
an alien granted asylum is in the United States, but was not included in
the asylee's application, the asylee may request accompanying or
following-to-join benefits for his/her spouse or child by filing for
each qualifying family member a separate Form I-730, Refugee/Asylee
Relative Petition, and supporting evidence, with the designated Service
office, regardless of the status of that spouse or child in the United
States. A recent photograph of each derivative must accompany the Form
I-730. The photograph must clearly identify the derivative, and will be
made part of the derivative's immigration record for identification
purposes. Additionally, a separate Form I-730 must be filed by the
asylee for each qualifying family member before February 28, 2000, or
within 2 years of the date in which he/she was granted asylum status,
whichever is later, unless it is determined by the Service that this
period should be extended for humanitarian reasons. Upon approval of the
Form I-730, the Service will notify the asylee of such approval on Form
I-797, Notice of Action. Employment will be authorized incident to
status. To demonstrate employment authorization, the Service will issue
a Form I-94, Arrival-Departure Record, which also reflects the
derivative's current status as an asylee, or the derivative may apply
under Sec. 274a.12(a) of this chapter, using Form I-765, Application
for Employment Authorization, and a copy of the Form I-797. The approval
of the Form I-730 shall remain valid for the duration of the
relationship to the asylee and, in the case of a child, while the child
is under 21 years of age and unmarried, provided also that the
principal's status has not been revoked. However, the approved Form I-
730 will cease to confer immigration benefits after it has been used by
the beneficiary for admission to the United States as a derivative of an
asylee.
(d) Spouse or child outside the United States. When a spouse or
child of an alien granted asylum is outside the United States, the
asylee may request accompanying or following-to-join benefits for his/
her spouse or child(ren) by filing a separate Form I-730 for each
qualifying family member with the designated Service office, setting
forth the full name, relationship, date and place of birth, and current
location of each such person. A recent photograph of each derivative
must accompany the Form I-730. The photograph must clearly identify the
derivative, and will
[[Page 161]]
be made part of the derivative's immigration record for identification
purposes. A separate Form I-730 for each qualifying family member must
be filed before February 28, 2000, or within 2 years of the date in
which the asylee was granted asylum status, whichever is later, unless
the Service determines that the filing period should be extended for
humanitarian reasons. When the Form I-730 is approved, the Service will
notify the asylee of such approval on Form I-797. The approved Form I-
730 shall be forwarded by the Service to the Department of State for
delivery to the American Embassy or Consulate having jurisdiction over
the area in which the asylee's spouse or child is located. The approval
of the Form I-730 shall remain valid for the duration of the
relationship to the asylee and, in the case of a child, while the child
is under 21 years of age and unmarried, provided also that the
principal's status has not been revoked. However, the approved Form I-
730 will cease to confer immigration benefits after it has been used by
the beneficiary for admission to the United States as a derivative of an
asylee.
(e) Denial. If the spouse or child is found to be ineligible for the
status accorded under section 208(c) of the Act, a written notice
stating the basis for denial shall be forwarded to the principal alien.
No appeal shall lie from this decision.
(f) Burden of proof. To establish the claimed relationship of spouse
or child as defined in sections 101(a)(35) and 101(b)(1) of the Act,
evidence must be submitted with the request as set forth in part 204 of
this chapter. Where possible this will consist of the documents
specified in Sec. 204.2 (a)(1)(i)(B), (a)(1)(iii)(B), (a)(2), (d)(2),
and (d)(5) of this chapter. The burden of proof is on the principal
alien to establish by a preponderance of the evidence that any person on
whose behalf he or she is making a request under this section is an
eligible spouse or child.
(g) Duration. The spouse or child qualifying under section 208(c) of
the Act shall be granted asylum for an indefinite period unless the
principal's status is revoked.
[62 FR 10337, Mar. 6, 1997, as amended at 63 FR 3796, Jan. 27, 1998.
Redesignated at 64 FR 8490, Feb. 19, 1999 and further redesignated and
amended at 65 FR 76136, Dec. 6, 2000]
Sec. 208.22 Effect on exclusion, deportation, and removal proceedings.
An alien who has been granted asylum may not be deported or removed
unless his or her asylum status is terminated pursuant to Sec. 208.24.
An alien in exclusion, deportation, or removal proceedings who is
granted withholding of removal or deportation, or deferral of removal,
may not be deported or removed to the country to which his or her
deportation or removal is ordered withheld or deferred unless the
withholding order is terminated pursuant to Sec. 208.24 or deferral is
terminated pursuant to Sec. 208.17(d) or (e).
[64 FR 8492, Feb. 19, 1999. Revised at 65 FR 76136, Dec. 6, 2000]
Sec. 208.23 Restoration of status.
An alien who was maintaining his or her nonimmigrant status at the
time of filing an asylum application and has such application denied may
continue in or be restored to that status, if it has not expired.
[62 FR 10337, Mar. 6, 1997. Redesignated at 64 FR 8490, Feb. 19, 1999
and further redesignated at 65 FR 76136, Dec. 6, 2000]
Sec. 208.24 Termination of asylum or withholding of removal or deportation.
(a) Termination of asylum by the Service. Except as provided in
paragraph (e) of this section, an asylum officer may terminate a grant
of asylum made under the jurisdiction of an asylum officer or a district
director if following an interview, the asylum officer determines that:
(1) There is a showing of fraud in the alien's application such that
he or she was not eligible for asylum at the time it was granted;
(2) As to applications filed on or after April 1, 1997, one or more
of the conditions described in section 208(c)(2) of the Act exist; or
[[Page 162]]
(3) As to applications filed before April 1, 1997, the alien no
longer has a well-founded fear of persecution upon return due to a
change of country conditions in the alien's country of nationality or
habitual residence or the alien has committed any act that would have
been grounds for denial of asylum under Sec. 208.13(c)(2).
(b) Termination of withholding of deportation or removal by the
Service. Except as provided in paragraph (e) of this section, an asylum
officer may terminate a grant of withholding of deportation or removal
made under the jurisdiction of an asylum officer or a district director
if the asylum officer determines, following an interview, that:
(1) The alien is no longer entitled to withholding of deportation or
removal because, owing to a fundamental change in circumstances relating
to the original claim, the alien's life or freedom no longer would be
threatened on account of race, religion, nationality, membership in a
particular social group, or political opinion in the country from which
deportation or removal was withheld.
(2) There is a showing of fraud in the alien's application such that
the alien was not eligible for withholding of removal at the time it was
granted;
(3) The alien has committed any other act that would have been
grounds for denial of withholding of removal under section 241(b)(3)(B)
of the Act had it occurred prior to the grant of withholding of removal;
or
(4) For applications filed in proceedings commenced before April 1,
1997, the alien has committed any act that would have been grounds for
denial of withholding of deportation under section 243(h)(2) of the Act.
(c) Procedure. Prior to the termination of a grant of asylum or
withholding of deportation or removal, the alien shall be given notice
of intent to terminate, with the reasons therefor, at least 30 days
prior to the interview specified in paragraph (a) of this section before
an asylum officer. The alien shall be provided the opportunity to
present evidence showing that he or she is still eligible for asylum or
withholding of deportation or removal. If the asylum officer determines
that the alien is no longer eligible for asylum or withholding of
deportation or removal, the alien shall be given written notice that
asylum status or withholding of deportation or removal and any
employment authorization issued pursuant thereto, are terminated.
(d) Termination of derivative status. The termination of asylum
status for a person who was the principal applicant shall result in
termination of the asylum status of a spouse or child whose status was
based on the asylum application of the principal. Such termination shall
not preclude the spouse or child of such alien from separately asserting
an asylum or withholding of deportation or removal claim.
(e) Removal proceedings. When an alien's asylum status or
withholding of removal or deportation is terminated under this section,
the Service shall initiate removal proceedings, as appropriate, if the
alien is not already in exclusion, deportation, or removal proceedings.
Removal proceedings may take place in conjunction with a termination
hearing scheduled under Sec. 208.24(f).
(f) Termination of asylum, or withholding of deportation or removal,
by an immigration judge or the Board of Immigration Appeals. An
immigration judge or the Board of Immigration Appeals may reopen a case
pursuant to Sec. 3.2 or Sec. 3.23 of this chapter for the purpose of
terminating a grant of asylum, or a withholding of deportation or
removal. In such a reopened proceeding, the Service must establish, by a
preponderance of evidence, one or more of the grounds set forth in
paragraphs (a) or (b) of this section. In addition, an immigration judge
may terminate a grant of asylum, or a withholding of deportation or
removal, made under the jurisdiction of the Service at any time after
the alien has been provided a notice of intent to terminate by the
Service. Any termination under this paragraph may occur in conjunction
with an exclusion, deportation, or removal proceeding.
(g) Termination of asylum for arriving aliens. If the Service
determines that an applicant for admission who had previously been
granted asylum in the United States falls within conditions set forth in
Sec. 208.24 and is inadmissible,
[[Page 163]]
the Service shall issue a notice of intent to terminate asylum and
initiate removal proceedings under section 240 of the Act. The alien
shall present his or her response to the intent to terminate during
proceedings before the immigration judge.
[62 FR 10337, Mar. 6, 1997. Redesignated at 64 FR 8490, Feb. 19, 1999
and futher redesignated and amended at 65 FR 76136, Dec. 6, 2000]
Sec. Sec. 208.25-208.29 [Reserved]
Subpart B_Credible Fear of Persecution
Sec. 208.30 Credible fear determinations involving stowaways and
applicants for admission found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act.
(a) Jurisdiction. The provisions of this subpart apply to aliens
subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to
section 235(b)(1)(B) of the Act, the Service has exclusive jurisdiction
to make credible fear determinations, and the Executive Office for
Immigration Review has exclusive jurisdiction to review such
determinations. Except as otherwise provided in this subpart, paragraphs
(b) through (g) of this section are the exclusive procedures applicable
to credible fear interviews, determinations, and reviews under section
235(b)(1)(B) of the Act.
(b) Treatment of dependents. A spouse or child of an alien may be
included in that alien's credible fear evaluation and determination, if
such spouse or child:
(1) Arrived in the United States concurrently with the principal
alien; and
(2) Desires to be included in the principal alien's determination.
However, any alien may have his or her credible fear evaluation and
determination made separately, if he or she expresses such a desire.
(c) Authority. Asylum officers conducting credible fear interviews
shall have the authorities described in Sec. 208.9(c).
(d) Interview. The asylum officer, as defined in section
235(b)(1)(E) of the Act, will conduct the interview in a nonadversarial
manner, separate and apart from the general public. The purpose of the
interview shall be to elicit all relevant and useful information bearing
on whether the applicant has a credible fear of persecution or torture,
and shall conduct the interview as follows:
(1) If the officer conducting the credible fear interview determines
that the alien is unable to participate effectively in the interview
because of illness, fatigue, or other impediments, the officer may
reschedule the interview.
(2) At the time of the interview, the asylum officer shall verify
that the alien has received Form M-444, Information about Credible Fear
Interview in Expedited Removal Cases. The officer shall also determine
that the alien has an understanding of the credible fear determination
process.
(3) The alien may be required to register his or her identity
electronically or through any other means designated by the Attorney
General.
(4) The alien may consult with a person or persons of the alien's
choosing prior to the interview or any review thereof, and may present
other evidence, if available. Such consultation shall be at no expense
to the Government and shall not unreasonably delay the process. Any
person or persons with whom the alien chooses to consult may be present
at the interview and may be permitted, in the discretion of the asylum
officer, to present a statement at the end of the interview. The asylum
officer, in his or her discretion, may place reasonable limits on the
number of persons who may be present at the interview and on the length
of the statement.
(5) If the alien is unable to proceed effectively in English, and if
the asylum officer is unable to proceed competently in a language chosen
by the alien, the asylum officer shall arrange for the assistance of an
interpreter in conducting the interview. The interpreter must be at
least 18 years of age and may not be the applicant's attorney or
representative of record, a witness testifying on the applicant's
behalf, a representative or employee of the applicant's country of
nationality, or, if the applicant is stateless, the applicant's country
of last habitual residence.
[[Page 164]]
(6) The asylum officer shall create a summary of the material facts
as stated by the applicant. At the conclusion of the interview, the
officer shall review the summary with the alien and provide the alien
with an opportunity to correct any errors therein.
(e) Determination. (1) The asylum officer shall create a written
record of his or her determination, including a summary of the material
facts as stated by the applicant, any additional facts relied on by the
officer, and the officer's determination of whether, in light of such
facts, the alien has established a credible fear of persecution or
torture.
(2) In determining whether the alien has a credible fear of
persecution, as defined in section 235(b)(1)(B)(v) of the Act, or a
credible fear of torture, the asylum officer or immigration judge shall
consider whether the alien's case presents novel or unique issues that
merit consideration in a full hearing before an immigration judge.
(3) If an alien is able to establish a credible fear of persecution
or torture but appears to be subject to one or more of the mandatory
bars to applying for, or being granted, asylum contained in section
208(a)(2) and 208(b)(2) of the Act, or to withholding of removal
contained in section 241(b)(3)(B) of the Act, the Service shall
nonetheless place the alien in proceedings under section 240 of the Act
for full consideration of the alien's claim, if the alien is not a
stowaway. If the alien is a stowaway, the Service shall place the alien
in proceedings for consideration of the alien's claim pursuant to Sec.
208.2(c)(3).
(4) An asylum officer's determination shall not become final until
reviewed by a supervisory asylum officer.
(f) Procedures for a positive credible fear finding. If an alien,
other than an alien stowaway, is found to have a credible fear of
persecution or torture, the asylum officer will so inform the alien and
issue a Form I-862, Notice to Appear, for full consideration of the
asylum and withholding of removal claim in proceedings under section 240
of the Act. If an alien stowaway is found to have a credible fear of
persecution or torture, the asylum officer will so inform the alien and
issue a Form I-863, Notice of Referral to Immigration Judge, for full
consideration of the asylum claim, or the withholding of removal claim,
in proceedings under Sec. 208.2(c). Parole of the alien may be
considered only in accordance with section 212(d)(5) of the Act and
Sec. 212.5 of this chapter.
(g) Procedures for a negative credible fear finding. (1) If an alien
is found not to have a credible fear of persecution or torture, the
asylum officer shall provide the alien with a written notice of decision
and inquire whether the alien wishes to have an immigration judge review
the negative decision, using Form I-869, Record of Negative Credible
Fear Finding and Request for Review by Immigration Judge. The alien
shall indicate whether he or she desires such review on Form I-869. A
refusal by the alien to make such indication shall be considered a
request for review.
(i) If the alien requests such review, or refuses to either request
or decline such review, the asylum officer shall arrange for detention
of the alien and serve him or her with a Form I-863, Notice of Referral
to Immigration Judge, for review of the credible fear determination in
accordance with paragraph (f)(2) of this section.
(ii) If the alien is not a stowaway and does not request a review by
an immigration judge, the officer shall order the alien removed and
issue a Form I-860, Notice and Order of Expedited Removal, after review
by a supervisory asylum officer.
(iii) If the alien is a stowaway and the alien does not request a
review by an immigration judge, the asylum officer shall refer the alien
to the district director for completion of removal proceedings in
accordance with section 235(a)(2) of the Act.
(2) Review by immigration judge of a negative credible fear finding.
(i) The asylum officer's negative decision regarding credible fear
shall be subject to review by an immigration judge upon the applicant's
request, or upon the applicant's refusal either to request or to decline
the review after being given such opportunity, in accordance with
section 235(b)(1)(B)(iii)(III) of the Act.
[[Page 165]]
(ii) The record of the negative credible fear determination,
including copies of the Form I-863, the asylum officer's notes, the
summary of the material facts, and other materials upon which the
determination was based shall be provided to the immigration judge with
the negative determination.
(iii) A credible fear hearing shall be closed to the public unless
the alien states for the record or submits a written statement that the
alien is waiving that requirement; in that event the hearing shall be
open to the public, subject to the immigration judge's discretion as
provided in Sec. 3.27.
(iv) Upon review of the asylum officer's negative credible fear
determination:
(A) If the immigration judge concurs with the determination of the
asylum officer that the alien does not have a credible fear of
persecution or torture, the case shall be returned to the Service for
removal of the alien. The immigration judge's decision is final and may
not be appealed. The Service, however, may reconsider a negative
credible fear finding that has been concurred upon by an immigration
judge after providing notice of its reconsideration to the immigration
judge.
(B) If the immigration judge finds that the alien, other than an
alien stowaway, possesses a credible fear of persecution or torture, the
immigration judge shall vacate the order of the asylum officer issued on
Form I-860 and the Service may commence removal proceedings under
section 240 of the Act, during which time the alien may file an
application for asylum and withholding of removal in accordance with
Sec. 208.4(b)(3)(i).
(C) If the immigration judge finds that an alien stowaway possesses
a credible fear of persecution or torture, the alien shall be allowed to
file an application for asylum and withholding of removal before the
immigration judge in accordance with Sec. 208.4(b)(3)(iii). The
immigration judge shall decide the application as provided in that
section. Such decision may be appealed by either the stowaway or the
Service to the Board of Immigration Appeals. If a denial of the
application for asylum and for withholding of removal becomes final, the
alien shall be removed from the United States in accordance with section
235(a)(2) of the Act. If an approval of the application for asylum or
for withholding of removal becomes final, the Service shall terminate
removal proceedings under section 235(a)(2) of the Act.
[65 FR 76136, Dec. 6, 2000]
Sec. 208.31 Reasonable fear of persecution or torture determinations
involving aliens ordered removed under section 238(b) of the Act and
aliens whose removal is reinstated under section 241(a)(5) of the Act.
(a) Jurisdiction. This section shall apply to any alien ordered
removed under section 238(b) of the Act or whose deportation, exclusion,
or removal order is reinstated under section 241(a)(5) of the Act who,
in the course of the administrative removal or reinstatement process,
expresses a fear of returning to the country of removal. The Service has
exclusive jurisdiction to make reasonable fear determinations, and EOIR
has exclusive jurisdiction to review such determinations.
(b) Initiation of reasonable fear determination process. Upon
issuance of a Final Administrative Removal Order under Sec. 238.1 of
this chapter, or notice under Sec. 241.8(b) of this chapter that an
alien is subject to removal, an alien described in paragraph (a) of this
section shall be referred to an asylum officer for a reasonable fear
determination. In the absence of exceptional circumstances, this
determination will be conducted within 10 days of the referral.
(c) Interview and procedure. The asylum officer shall conduct the
interview in a non-adversarial manner, separate and apart from the
general public. At the time of the interview, the asylum officer shall
determine that the alien has an understanding of the reasonable fear
determination process. The alien may be represented by counsel or an
accredited representative at the interview, at no expense to the
Government, and may present evidence, if available, relevant to the
possibility of persecution or torture. The alien's representative may
present a statement at the end of the interview. The asylum officer, in
his or her discretion, may place
[[Page 166]]
reasonable limits on the number of persons who may be present at the
interview and the length of the statement. If the alien is unable to
proceed effectively in English, and if the asylum officer is unable to
proceed competently in a language chosen by the alien, the asylum
officer shall arrange for the assistance of an interpreter in conducting
the interview. The interpreter may not be a representative or employee
of the applicant's country or nationality, or if the applicant is
stateless, the applicant's country of last habitual residence. The
asylum officer shall create a summary of the material facts as stated by
the applicant. At the conclusion of the interview, the officer shall
review the summary with the alien and provide the alien with an
opportunity to correct errors therein. The asylum officer shall create a
written record of his or her determination, including a summary of the
material facts as stated by the applicant, any additional facts relied
on by the officers, and the officer's determination of whether, in light
of such facts, the alien has established a reasonable fear of
persecution or torture. The alien shall be determined to have a
reasonable fear of persecution or torture if the alien establishes a
reasonable possibility that he or she would be persecuted on account of
his or her race, religion, nationality, membership in a particular
social group or political opinion, or a reasonable possibility that he
or she would be tortured in the country of removal. For purposes of the
screening determination, the bars to eligibility for withholding of
removal under section 241(b)(3)(B) of the Act shall not be considered.
(d) Authority. Asylum officers conducting screening determinations
under this section shall have the authority described in Sec. 208.9(c).
(e) Referral to Immigration Judge. If an asylum officer determines
that an alien described in this section has a reasonable fear of
persecution or torture, the officer shall so inform the alien and issue
a Form I-863, Notice of Referral to the Immigration Judge, for full
consideration of the request for withholding of removal only. Such cases
shall be adjudicated by the immigration judge in accordance with the
provisions of Sec. 208.16. Appeal of the immigration judge's decision
shall lie to the Board of Immigration Appeals.
(f) Removal of aliens with no reasonable fear of persecution or
torture. If the asylum officer determines that the alien has not
established a reasonable fear of persecution or torture, the asylum
officer shall inform the alien in writing of the decision and shall
inquire whether the alien wishes to have an immigration judge review the
negative decision, using Form I-898, Record of Negative Reasonable Fear
Finding and Request for Review by Immigration Judge, on which the alien
shall indicate whether he or she desires such review.
(g) Review by immigration judge. The asylum officer's negative
decision regarding reasonable fear shall be subject to review by an
immigration judge upon the alien's request. If the alien requests such
review, the asylum officer shall serve him or her with a Form I-863. The
record of determination, including copies of the Form I-863, the asylum
officer's notes, the summary of the material facts, and other materials
upon which the determination was based shall be provided to the
immigration judge with the negative determination. In the absence of
exceptional circumstances, such review shall be conducted by the
immigration judge within 10 days of the filing of the Form I-863 with
the immigration court. Upon review of the asylum officer's negative
reasonable fear determination:
(1) If the immigration judge concurs with the asylum officer's
determination that the alien does not have a reasonable fear of
persecution or torture, the case shall be returned to the Service for
removal of the alien. No appeal shall lie from the immigration judge's
decision.
(2) If the immigration judge finds that the alien has a reasonable
fear of persecution or torture, the alien may submit Form I-589,
Application for Asylum and Withholding of Removal.
(i) The immigration judge shall consider only the alien's
application for withholding of removal under Sec. 208.16 and shall
determine whether the alien's removal to the country of removal must be
withheld or deferred.
[[Page 167]]
(ii) Appeal of the immigration judge's decision whether removal must
be withheld or deferred lies to the Board of Immigration Appeals. If the
alien or the Service appeals the immigration judge's decision, the Board
shall review only the immigration judge's decision regarding the alien's
eligibility for withholding or deferral of removal under Sec. 208.16.
[64 FR 8493, Feb. 19, 1999; 64 FR 13881, Mar. 23, 1999]
PART 209_ADJUSTMENT OF STATUS OF REFUGEES AND ALIENS GRANTED ASYLUM--Table
of Contents
Sec.
209.1 Adjustment of status of refugees.
209.2 Adjustment of status of alien granted asylum.
Authority: 8 U.S.C. 1101, 1103, 1157, 1158, 1159, 1228, 1252, 1282;
8 CFR part 2.
Sec. 209.1 Adjustment of status of refugees.
The provisions of this section shall provide the sole and exclusive
procedure for adjustment of status by a refugee admitted under section
207 of the Act whose application is based on his or her refugee status.
(a) Eligibility. (1) Every alien in the United States who is
classified as a refugee under part 207 of this chapter, whose status has
not been terminated, is required to apply to the Service 1 year after
entry in order for the Service to determine his or her admissibility
under section 212 of the Act.
(2) Every alien processed by the Immigration and Naturalization
Service abroad and paroled into the United States as a refugee after
April 1, 1980, and before May 18, 1980, shall be considered as having
entered the United States as a refugee under section 207(a) of the Act.
(b) Application. Upon admission to the United States, every refugee
entrant shall be notified of the requirement to submit an application
for permanent residence 1 year after entry. An application for the
benefits of section 209(a) of the Act shall be filed on Form I-485,
without fee, with the director of the appropriate Service office
identified in the instructions which accompany the Form I-485. A
separate application must be filed by each alien. Every applicant who is
14 years of age or older must submit a completed Form G-325A
(Biographical Information) with the Form I-485 application. Following
submission of the Form I-485 application, a refugee entrant who is 14
years of age or older will be required to execute a Form FD-258
(Applicant Fingerprint Card) at such time and place as the Service will
designate.
(c) Medical examination. A refugee seeking adjustment of status
under section 209(a) of the Act is not required to repeat the medical
examination performed under Sec. 207.2(c), unless there were medical
grounds of inadmissibility applicable at the time of admission. The
refugee is, however, required to establish compliance with the
vaccination requirements described under section 212(a)(1)(A)(ii) of the
Act, by submitting with the adjustment of status application a
vaccination supplement, completed by a designated civil surgeon in the
United States.
(d) Interview. The Service director having jurisdiction over the
application will determine, on a case-by-case basis, whether an
interview by an immigration officer is necessary to determine the
applicant's admissibility for permanent resident status under this part.
(e) Decision. The director will notify the applicant in writing of
the decision of his or her application for admission to permanent
residence. If the applicant is determined to be inadmissible or no
longer a refugee, the director will deny the application and notify the
applicant of the reasons for the denial. The director will, in the same
denial notice, inform the applicant of his or her right to renew the
request for permanent residence in removal proceedings under section 240
of the Act. There is no appeal of the denial of an application by the
director, but such denial will be without prejudice to the alien's right
to renew the application in removal proceedings under part 240 of this
chapter. If the applicant is found to be admissible for permanent
residence under section 209(a) of the Act, the director will approve the
application and admit the applicant for lawful permanent residence as of
the date of the alien's arrival in the United
[[Page 168]]
States. An alien admitted for lawful permanent residence will be issued
Form I-551, Alien Registration Receipt Card.
[63 FR 30109, June 3, 1998]
Sec. 209.2 Adjustment of status of alien granted asylum.
The provisions of this section shall be the sole and exclusive
procedure for adjustment of status by an asylee admitted under section
208 of the Act whose application is based on his or her asylee status.
(a) Eligibility. (1) Except as provided in paragraph (a)(2) of this
section, the status of any alien who has been granted asylum in the
United States may be adjusted by the director to that of an alien
lawfully admitted for permanent residence, provided the alien:
(i) Applies for such adjustment;
(ii) Has been physically present in the United States for at least
one year after having been granted asylum;
(iii) Continues to be a refugee within the meaning of section
101(a)(42) of the Act, or is the spouse or child of a refugee;
(iv) Has not been firmly resettled in any foreign country; and
(v) Is admissible to the United States as an immigrant under the Act
at the time of examination for adjustment without regard to paragraphs
(4), (5)(A), (5)(B), and (7)(A)(i) of section 212(a) of the Act, and
(vi) has a refugee number available under section 207(a) of the Act.
If the application for adjustment filed under this part exceeds the
refugee numbers available under section 207(a) of the Act for the fiscal
year, a waiting list will be established on a priority basis by the date
the application was properly filed.
(2) An alien, who was granted asylum in the United States prior to
November 29, 1990 (regardless of whether or not such asylum has been
terminated under section 208(b) of the Act), and is no longer a refugee
due to a change in circumstances in the foreign state where he or she
feared persecution, may also have his or her status adjusted by the
director to that of an alien lawfully admitted for permanent residence
even if he or she is no longer able to demonstrate that he or she
continues to be a refugee within the meaning of section 10l(a)(42) of
the Act, or to be a spouse or child of such a refugee or to have been
physically present in the United States for at least one year after
being granted asylum, so long as he or she is able to meet the
requirements noted in paragraphs (a)(1)(i), (iv), and (v) of this
section. Such persons are exempt from the numerical limitations of
section 209(b) of the Act. However, the number of aliens who are natives
of any foreign state who may adjust status pursuant to this paragraph in
any fiscal year shall not exceed the difference between the per country
limitation established under section 202(a) of the Act and the number of
aliens who are chargeable to that foreign state in the fiscal year under
section 202 of the Act. Aliens who applied for adjustment of status
under section 209(b) of the Act before June 1, 1990, are also exempt
from its numerical limitation without any restrictions.
(b) Inadmissible Alien. An applicant who is inadmissible to the
United States under section 212(a) of the Act, may, under section 209(c)
of the Act, have the grounds of inadmissibility waived by the director
(except for those grounds under paragraphs (27), (29), (33), and so much
of (23) as relates to trafficking in narcotics) for humanitarian
purposes, to assure family unity, or when it is otherwise in the public
interest. An application for the waiver may be filed on Form I-602
(Application by Refugee for Waiver of Grounds of Excludability) with the
application for adjustment. An applicant for adjustment who has had the
status of an exchange alien nonimmigrant under section 101(a)(15)(J) of
the Act, and who is subject to the foreign resident requirement of
section 212(e) of the Act, shall be eligible for adjustment without
regard to the foreign residence requirement.
(c) Application. An application for the benefits of section 209(b)
of the Act may be filed on Form I-485, with the correct fee, with the
director of the appropriate Service office identified in the
instructions to the Form I-485. A separate application must be filed by
each alien. Every applicant who is 14 years of age or older must submit
a
[[Page 169]]
completed Form G-325A (Biographic Information) with the Form I-485
application. Following submission of the Form I-485 application, every
applicant who is 14 years of age or older will be required to execute a
Form FD-258 (Applicant Fingerprint Card) at such time and place as the
Service will designate. Except as provided in paragraph (a)(2) of this
section, the application must also be supported by evidence that the
applicant has been physically present in the United States for at least
1 year. If an alien has been placed in deportation or exclusion
proceedings, the application can be filed and considered only in
proceedings under section 240 of the Act.
(d) Medical examination. An alien seeking adjustment of status under
section 209(b) of the Act 1 year following the grant of asylum under
section 208 of the Act shall submit the results of a medical examination
to determine whether any grounds of inadmissibility described under
section 212(a)(1)(A) of the Act apply. Form I-693, Medical Examination
of Aliens Seeking Adjustment of Status, and a vaccination supplement to
determine compliance with the vaccination requirements described under
section 212(a)(1)(A)(ii) of the Act must be completed by a designed
civil surgeon in the United States and submitted at the time of
application for adjustment of status.
(e) Interview. Each applicant for adjustment of status under this
part shall be interviewed by an immigration officer. The interview may
be waived for a child under 14 years of age. The Service director having
jurisdiction over the application will determine, on a case-by-case
basis, whether an interview by an immigration officer is necessary to
determine the applicant's admissibility for permanent resident status
under this part.
(f) Decision. The applicant shall be notified of the decision, and
if the application is denied, of the reasons for denial. No appeal shall
lie from the denial of an application by the director but such denial
will be without prejudice to the alien's right to renew the application
in proceedings under part 240 of this chapter. If the application is
approved, the director shall record the alien's admission for lawful
permanent residence as of the date one year before the date of the
approval of the application, but not earlier than the date of the
approval for asylum in the case of an applicant approved under paragraph
(a)(2) of this section.
[46 FR 45119, Sept. 10, 1981, as amended at 56 FR 26898, June 12, 1991;
57 FR 42883, Sept. 17, 1992; 63 FR 30109, June 3, 1998]
PART 210_SPECIAL AGRICULTURAL WORKERS--Table of Contents
Sec.
210.1 Definition of terms used in this part.
210.2 Application for temporary resident status.
210.3 Eligibility.
210.4 Status and benefits.
210.5 Adjustment to permanent resident status.
Authority: 8 U.S.C. 1103, 1160, 8 CFR part 2.
Source: 53 FR 10064, Mar. 29, 1988, unless otherwise noted.
Sec. 210.1 Definition of terms used in this part.
(a) Act. The Immigration and Nationality Act, as amended by the
Immigration Reform and Control Act of 1986.
(b) ADIT. Alien Documentation, Identification and Telecommunications
card, Form I-89. Used to collect key data concerning an alien. When
processed together with an alien's photographs, fingerprints and
signature, this form becomes the source document for generation of Form
I-551, Permanent Resident Card.
(c) Application period. The 18-month period during which an
application for adjustment of status to that of a temporary resident may
be accepted, begins on June 1, 1987, and ends on November 30, 1988.
(d) Complete application. A complete application consists of an
executed Form I-700, Application for Temporary Resident Status as a
Special Agricultural Worker, evidence of qualifying agricultural
employment and residence, a report of medical examination, and the
prescribed number of photographs. An application is not complete until
the required fee has been paid and recorded.
[[Page 170]]
(e) Determination process. Determination process as used in this
part means reviewing and evaluating all information provided pursuant to
an application for the benefit sought and making a determination
thereon. If fraud, willful misrepresentation of a material fact, a false
writing or document, or any other activity prohibited by section
210(b)(7) of the Act is discovered during the determination process the
Service shall refer the case to a U.S. Attorney for possible
prosecution.
(f) Family unity. The term family unity as used in section
210(c)(2)(B)(i) of the Act means maintaining the family group without
deviation or change. The family group shall include the spouse,
unmarried minor children who are not members of some other household,
and parents who reside regularly in the household of the family group.
(g) Group 1. Special agricultural workers who have performed
qualifying agricultural employment in the United States for at least 90
man-days in the aggregate in each of the twelve-month periods ending on
May 1, 1984, 1985, and 1986, and who have resided in the United States
for six months in the aggregate in each of those twelve-month periods.
(h) Group 2. Special agricultural workers who during the twelve-
month period ending on May 1, 1986 have performed at least 90 man-days
in the aggregate of qualifying agricultural employment in the United
States.
(i) Legalization Office. Legalization offices are local offices of
the Immigration and Naturalization Service which accept and process
applications for legalization or special agricultural worker status,
under the authority of the district directors in whose districts such
offices are located.
(j) Man-day. The term man-day means the performance during any day
of not less than one hour of qualifying agricultural employment for
wages paid. If employment records relating to an alien applicant show
only piece rate units completed, then any day in which piece rate work
was performed shall be counted as a man-day. Work for more than one
employer in a single day shall be counted as no more than one man-day
for the purposes of this part.
(k) Nonfrivolous application. A complete application will be
determined to 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
[[Page 171]]
States and must establish to the satisfaction of the examining officer
during an interview that his or her claim to eligibility for special
agriculture worker status is credible.
(n) Public cash assistance. Public cash assistance means income or
needs-based monetary assistance. This includes but is not limited to
supplemental security income received by the alien or his immediate
family members through federal, state, or local programs designed to
meet subsistence levels. It does not include assistance in kind, such as
food stamps, public housing, or other non-cash benefits, nor does it
include work-related compensation or certain types of medical assistance
(Medicare, Medicaid, emergency treatment, services to pregnant women or
children under 18 years of age, or treatment in the interest of public
health).
(o) Qualified designated entity. A qualified designated entity is
any state, local, church, community, or voluntary agency, farm labor
organization, association of agricultural employers or individual
designated by the Service to assist aliens in the preparation of
applications for Legalization and/or Special Agricultural Worker status.
(p) Qualifying agricultural employment. Qualifying agricultural
employment means the performance of ``seasonal agricultural services''
described at section 210(h) of the Act as that term is defined in
regulations by the Secretary of Agriculture at 7 CFR part 1d.
(q) Regional processing facility. Regional Processing Facilities are
Service offices established in each of the four Service regions to
adjudicate, under the authority of the Directors of the Regional
Processing Facilities, applications for adjustment of status under
sections 210 and 245a of the Act.
(r) Service. The Immigration and Naturalization Service (INS).
(s) Special agricultural worker. Any individual granted temporary
resident status in the Group 1 or Group 2 classification or permanent
resident status under section 210(a) of the Act.
[53 FR 10064, Mar. 29, 1988, as amended at 54 FR 50339, Dec. 6, 1989; 63
FR 70315, Dec. 21, 1998]
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.
[[Page 172]]
(b) Filing date of application--(1) General. The date the alien
submits an application to a qualified designated entity, legalization
office or overseas processing office shall be considered the filing date
of the application, provided that in the case of an application filed at
a qualified designated entity the alien has consented to have the entity
forward the application to a legalization office. Qualified designated
entities are required to forward completed applications to the
appropriate legalization office within 60 days after the applicant gives
consent for such forwarding.
(2) [Reserved]
(c) Filing of application--(1) General. The application must be
filed on Form I-700 at a qualified designated entity, at a legalization
office, at a designated port of entry, or at an overseas processing
office within the eighteen-month period beginning on June 1, 1987 and
ending on November 30, 1988.
(2) Applications in the United States. (i) The application must be
filed on Form I-700 with the required fee and, if the applicant is 14
years or older, the application must be accompanied by a completed Form
FD-258 (Fingerprint Card).
(ii) All fees for applications filed in the United States, other
than those within the provisions of Sec. 210.2(c)(4), must be submitted
in the exact amount in the form of a money order, cashier's check, or
bank check made payable to the Immigration and Naturalization Service.
No personal checks or currency will be accepted. Fees will not be waived
or refunded under any circumstances.
(iii) In the case of an application filed at a legalization office,
including an application received from a qualified designated entity,
the district director may, at his or her discretion, require filing
either by mail or in person, or may permit filing in either manner.
(iv) Each applicant, regardless of age, must appear at the
appropriate Service legalization office and must be fingerprinted for
the purpose of issuance of Form I-688A. Each applicant shall be
interviewed by an immigration officer, except that the interview may be
waived when it is impractical because of the health of the applicant.
(3) Filing at overseas processing offices. (i) The application must
be filed on 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
[[Page 173]]
the applicant intends to submit as proof of such employment. The
applicant must establish to the satisfaction of the examining officer
during an interview that his or her claim to eligibility for special
agricultural worker classification is credible, and that he or she is
otherwise admissible to the United States under the provisions of Sec.
210.3(e) of this part including, if required, approval of an application
for waiver of grounds of excludability.
(ii) Procedures. The fee for any application under this paragraph
including applications for waivers of grounds of excludability, must be
submitted in United States currency. Application fees shall not be
collected until the examining immigration officer has determined that
the applicant has presented a preliminary application and is admissible
to the United States including, if required, approval of an application
for waiver of grounds of excludability as provided in this paragraph.
Applicants at designated ports of entry must present proof of identity
in the form of a valid passport, a ``cartilla'' (Mexican military
service registration booklet), a Form 13 (``Forma trece''--Mexican lieu
passport identity document), or a certified copy of a birth certificate
accompanied by additional evidence of identity bearing a photograph and/
or fingerprint of the applicant. Upon a determination by an immigration
officer at a designated port of entry that an applicant has presented a
preliminary application, the applicant shall be admitted to the United
States as an applicant for special agricultural worker status. All
preliminary applicants shall be considered as prospective applicants for
the Group 2 classification. However, such applicants may later submit a
complete application for either the Group 1 or Group 2 classification to
a legalization office. Preliminary applicants are not required to pay
the application fee a second time when submitting the complete
application to a legalization office.
(iii) Conditions of admission. Aliens who present a preliminary
application shall be admitted to the United States for a period of
ninety (90) days with authorization to accept employment, if they are
determined by an immigration officer to be admissible to the United
States. Such aliens are required, within that ninety-day period, to
submit 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
[[Page 174]]
legalization program, will be permitted to examine individual
applications.
(2) Files and records prepared by qualified designated entities
under this section are confidential. The Attorney General and the
Service shall not have access to these files and records without the
consent of the alien.
(3) All information furnished pursuant to an application for
temporary resident status under this part including documentary evidence
filed with the application shall be used only in the determination
process, including a determination under Sec. 210.4(d) of this part, or
to enforce the provisions of section 210(b)(7) of the Act, relating to
prosecutions for fraud and false statements made in connection with
applications, as provided in paragraph (e)(4) of this section.
(4) If a determination is made by the Service that the alien has, in
connection with his or her application, engaged in fraud or willful
misrepresentation or concealment of a material fact, knowingly provided
a false writing or document in making his or her application, knowingly
made a false statement or representation, or engaged in any other
activity prohibited by section 210(b)(7) of the Act, the Service shall
refer the matter to the U.S. Attorney for prosecution of the alien or
any person who created or supplied a false writing or document for use
in an application for adjustment of status under this part.
(f) Decision. The applicant shall be notified in writing of the
decision and, if the application is denied, of the reason(s) therefor.
An adverse decision under this part including an overseas application
may be appealed to the Associate Commissioner, Examinations
(Administrative Appeals Unit) on Form I-694. The appeal with the
required fee shall be filed with the Regional Processing Facility in
accordance with the provisions of Sec. 103.3(a)(2) of this chapter. An
applicant for Group 1 status as defined in Sec. 210.1(f) of this part
who is determined to be ineligible for that status may be classified as
a temporary resident under Group 2 as defined in Sec. 210.1(g) of this
part if otherwise eligible for Group 2 status. In such a case the
applicant shall be notified of the decision to accord him or her Group 2
status and to deny Group 1 status. He or she is entitled to file an
appeal in 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
[[Page 175]]
temporary residence if otherwise admissible under the provisions of
section 210(c) of the Act and if he or she is not ineligible under the
provisions of paragraph (d) of this section.
(b) Proof of eligibility--(1) Burden of proof. An alien applying for
adjustment of status under this part has the burden of proving by a
preponderance of the evidence that he or she has worked the requisite
number of man-days, is admissible to the United States under the
provisions of section 210(c) of the Act, is otherwise eligible for
adjustment of status under this section and in the case of a Group 1
applicant, has resided in the United States for the requisite periods.
If the applicant cannot provide documentation which shows qualifying
employment for each of the requisite man-days, or in the case of a Group
1 applicant, which meets the residence requirement, the applicant may
meet his or her burden of proof by providing documentation sufficient to
establish the requisite employment or residence as a matter of just and
reasonable inference. The inference to be drawn from the documentation
provided shall depend on the extent of the documentation, its
credibility and amenability to verification as set forth in paragraphs
(b)(2) and (3) of this section. If an applicant establishes that he or
she has in fact performed the requisite qualifying agricultural
employment by producing sufficient evidence to show the extent of that
employment as a matter of just and reasonable inference, the burden then
shifts to the Service to disprove the applicant's evidence by showing
that the inference drawn from the evidence is not reasonable.
(2) Evidence. The sufficiency of all evidence produced by the
applicant will be judged according to its probative value and
credibility. Original documents will be given greater weight than
copies. To meet his or her burden of proof, an applicant must provide
evidence of eligibility apart from his or her own testimony. Analysis of
evidence submitted will include consideration of the fact that work
performed by minors and spouses is sometimes credited to a principal
member of a family.
(3) Verification. Personal testimony by an applicant which is not
corroborated, in whole or in part, by other credible evidence (including
testimony 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.
[[Page 176]]
(c) Documents. A complete application for adjustment of status must
be accompanied by proof of identity, evidence of qualifying employment,
evidence of residence and such evidence of admissibility or eligibility
as may be requested by the examining immigration officer in accordance
with requirements specified in this part. At the time of filing,
certified copies of documents may be submitted in lieu of originals.
However, at the time of the interview, wherever possible, the original
documents must be presented except for the following: Official
government records; employment or employment related records maintained
by employers, unions, or collective bargaining organizations; medical
records; school records maintained by a school or school board; or other
records maintained by a party other than the applicant. Copies of
records maintained by parties other than the applicant which are
submitted in evidence must be certified as true and correct by such
parties and must bear their seal or signature or the signature and title
of persons authorized to act in their behalf. If at the time of the
interview the return of original documents is desired by the applicant,
they must be accompanied by notarized copies or copies certified true
and correct by a qualified designated entity or by the alien's
representative in the format prescribed in Sec. 204.2(j)(1) or (2) of
this chapter. At the discretion of the district director or consular
officer, original documents, even if accompanied by certified copies,
may be temporarily retained for further examination.
(1) Proof of identity. Evidence to establish identity is listed
below in descending order of preference:
(i) Passport;
(ii) Birth certificate;
(iii) Any national identity document from a foreign country bearing
a photo and/or fingerprint (e.g., ``cedula'', ``cartilla'', ``carte
d'identite,'' etc.);
(iv) Driver's license or similar document issued by a state if it
contains a photo;
(v) Baptismal record or marriage certificate;
(vi) Affidavits, or
(vii) Such other documentation which may establish the identity of
the applicant.
(2) Assumed names--(i) General. In cases where an applicant claims
to have met any of the eligibility criteria under an assumed name, the
applicant 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
[[Page 177]]
knowledge of the applicant's employment. The affiant must be identified
by name and address; the name of the applicant and the relationship of
the affiant to the applicant must be stated; and the source of the
information in the affidavit (e.g. personal knowledge, reliance on
information provided by others, etc.) must be indicated. The affidavit
must also provide information regarding the crop and the type of work
performed by the applicant and the period during which such work was
performed. The affiant must provide a certified copy of corroborating
records or state the affiant's willingness to personally verify the
information provided. The weight and probative value of any affidavit
accepted will be determined on the basis of the substance of the
affidavit and any documents which may be affixed thereto which may
corroborate the information provided.
(4) Proof of residence. Evidence to establish residence in the
United States during the requisite period(s) includes: Employment
records as described in paragraph (c)(3) of this section; utility bills
(gas, electric, phone, etc.), receipts, or letters from companies
showing the dates during which the applicant received service; school
records (letters, report cards, etc.) from the schools that the
applicant or his or her children have attended in the United States
showing the name of school, name and, if available, address of student,
and periods of attendance, and hospital or medical records showing
similar information; attestations by churches, unions, or other
organizations to the applicant's residence by letter which: Identify
applicant by name, are signed by an official (whose title is shown),
show inclusive dates of membership, state the address where applicant
resided during the membership period, include the seal of the
organization impressed on the letter, establish how the author knows the
applicant, and the origin of the information; and additional documents
that could show that the applicant was in the United States at a
specific time, such as: Money order receipts for money sent out of the
country; passport entries; birth certificates of children born in the
United States; bank books with dated transactions; letters of
correspondence between the applicant and another person or organization;
Social Security card; Selective Service card; automobile license
receipts, title, vehicle registration, etc.; deeds, mortgages, contracts
to which applicant has been a party; tax receipts; insurance policies,
receipts, or 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
[[Page 178]]
assure family unity, or when the granting of such a waiver is in the
public interest. If an alien is excludable on grounds which may be
waived as set forth in this paragraph, he or she shall be advised of the
procedures for applying for a waiver of grounds of excludability on Form
I-690. When an application for waiver of grounds of excludability is
submitted in conjunction with an application for temporary residence
under this section, it shall be accepted for processing at the
legalization office, overseas processing office, or designated port of
entry. If an application for waiver of grounds of excludability is
submitted after the alien's preliminary interview at the legalization
office it shall be forwarded to the appropriate regional processing
facility. All applications for waivers of grounds of excludability must
be accompanied by the correct fee in the exact amount. All fees for
applications filed in the United States other than those within the
provisions of Sec. 210.2(c)(4) must be in the form of a money order,
cashier's check, or bank check. No personal checks or currency will be
accepted. Fees for waiver applications filed at the designated port of
entry under the preliminary application standard must be submitted in
United States currency. Fees will not be waived or refunded under any
circumstances. Generally, an application for waiver of grounds of
excludability under this part submitted at a legalization office or
overseas processing office will be approved or denied by the director of
the regional processing facility in whose jurisdiction the applicant's
application for adjustment of status was filed. However, in cases
involving clear statutory ineligibility or admitted fraud, such
application for a waiver may be denied by the district director in whose
jurisdiction the application is filed; in cases filed at overseas
processing offices, such application for a waiver may be denied by a
consular officer; or, in cases returned to a legalization office for
reinterview, such application may be approved at the discretion of the
district director. Waiver applications filed at the port of entry under
the preliminary application standard will be approved or denied by the
district director having jurisdiction over the port of entry. The
applicant shall be notified of the decision and, if the application is
denied, of the reason(s) therefor. The applicant may appeal the decision
within 30 days after the service of the notice pursuant to the
provisions of Sec. 103.3(a)(2) of this chapter.
(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]
[[Page 179]]
Sec. 210.4 Status and benefits.
(a) Date of adjustment. The status of an alien whose application for
temporary resident status is approved shall be adjusted to that of a
lawful temporary resident as of the date on which the fee was paid at a
legalization office, except that the status of an alien who applied for
such status at an overseas processing office whose application has been
recommended for approval by that office shall be adjusted as of the date
of his or her admission into the United States.
(b) Employment and travel authorization--(1) General. Authorization
for employment and travel abroad for temporary resident status
applicants under section 210 of the Act be granted by the INS. In the
case of an application which has been filed with a qualified designated
entity, employment authorization may only be granted after a
nonfrivolous application has been received at a legalization office, and
receipt of the fee has been recorded.
(2) Employment and travel authorization prior to the granting of
temporary resident status. Permission to travel abroad and to accept
employment will be granted to the applicant after an interview has been
conducted in connection with a nonfrivolous application at a Service
office. If an interview appointment cannot be scheduled within 30 days
from the date an application is filed at a Service office, authorization
to accept employment will be granted, valid until the scheduled
appointment date. Employment authorization, both prior and subsequent to
an interview, will be restricted to increments not exceeding 1 year,
pending final determination on the application for temporary resident
status. If a final determination has not been made prior to the
expiration date on the Employment Authorization Document (Form I-766,
Form I-688A or Form I-688B) that date may be extended upon return of the
employment authorization document by the applicant to the appropriate
Service office. Persons submitting applications who currently have work
authorization incident to status as defined in Sec. 274a.12(b) of this
chapter shall be granted work authorization by the Service effective on
the date the alien's prior work authorization expires. Permission to
travel abroad shall be granted in accordance with the Service's advance
parole provisions contained in Sec. 212.5(f) of this chapter.
(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
[[Page 180]]
the result of fraud or willful misrepresentation as provided in section
212(a)(19) of the Act;
(ii) The alien commits an act which renders him or her inadmissible
as an immigrant, unless a waiver is secured pursuant to Sec.
210.3(e)(2) of this part;
(iii) The alien is convicted of any felony, or three or more
misdemeanors in the United States.
(3) Procedure. (i) Termination of an alien's status under paragraph
(d)(2) of this section will be made only on notice to the alien sent by
certified mail directed to his or her last known address, and to his or
her representative. The alien must be given an opportunity to offer
evidence in opposition to the grounds alleged for termination of his or
her status. Evidence in opposition must be submitted within thirty (30)
days after the service of the Notice of Intent to Terminate. If the
alien's status is terminated, the director of the regional processing
facility shall notify the alien of the decision and the reasons for the
termination, and further notify the alien that any Service Form I-94,
Arrival-Departure Record or other official Service document issued to
the alien authorizing employment and/or travel abroad, or any Form I-
688, Temporary Resident Card previously issued to the alien will be
declared void by the director of the regional processing facility within
thirty (30) days if no appeal of the termination decision is filed
within that period. The alien may appeal the decision to the Associate
Commissioner, Examinations (Administrative Appeals Unit) using Form I-
694. Any appeal with the required fee shall be filed with the regional
processing facility within thirty (30) days after the service of the
notice of termination. If no appeal is filed within that period, the
Forms I-94, I-688 or other official Service document shall be deemed
void, and must be surrendered without delay to an immigration officer or
to the issuing office of the Service.
(ii) Termination proceedings must be commenced before the alien
becomes eligible for adjustment of status under Sec. 210.5 of this
part. The timely commencement of termination proceedings will preclude
the alien from becoming a lawful permanent resident until a final
determination is made in the proceedings, including any appeal.
[53 FR 10064, Mar. 29, 1988, as amended at 55 FR 12629, Apr. 5, 1990; 60
FR 21975, May 4, 1995; 61 FR 46536, Sept. 4, 1996; 65 FR 82255, Dec. 28,
2000]
Sec. 210.5 Adjustment to permanent resident status.
(a) Eligibility and date of adjustment to permanent resident status.
The status of an alien lawfully admitted to the United States for
temporary residence under section 210(a)(1) of the Act, if the alien has
otherwise maintained such status as required by the Act, shall be
adjusted to that of an alien lawfully admitted to the United States for
permanent residence as of the following dates:
(1) Group 1. Aliens determined to be eligible for Group 1
classification, whose adjustment to temporary residence occurred prior
to November 30, 1988, shall be adjusted to lawful permanent residence as
of December 1, 1989. Those aliens whose adjustment to temporary
residence occurred after November 30, 1988 shall be adjusted to lawful
permanent residence one year from the date of the adjustment to
temporary residence.
(2) Group 2. Aliens determined to be eligible for Group 2
classification whose adjustment to temporary residence occurred prior to
November 30, 1988, shall be adjusted to lawful permanent residence as of
December 1, 1990. Those aliens whose adjustment to temporary residence
occurred after November 30, 1988 shall be adjusted to lawful permanent
residence two years from the date of the adjustment to temporary
residence.
(b) ADIT processing--(1) General. To obtain proof of permanent
resident status an alien described in paragraph (a) of this section must
appear at a legalization or Service office designated for this purpose
for preparation of Form I-551, Permanent Resident Card. Such appearance
may be prior to the date of adjustment, but only upon invitation by the
Service. Form I-551 shall be issued subsequent to the date of
adjustment.
(2) Upon appearance at a Service office for preparation of Form I-
551, an alien must present proof of identity,
[[Page 181]]
suitable ADIT photographs, and a fingerprint and signature must be
obtained from the alien on Form I-89.
[53 FR 10064, Mar. 29, 1988, as amended at 54 FR 50339, Dec. 6, 1989; 63
FR 70315, Dec. 21, 1998]
PART 211_DOCUMENTARY REQUIREMENTS: IMMIGRANTS; WAIVERS--Table of Contents
Sec.
211.1 Visas.
211.2 Passports.
211.3 Expiration of immigrant visas, reentry permits, refugee travel
documents, and Form I-551.
211.4 Waiver of documents for returning residents.
211.5 Alien commuters.
Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257; 8 CFR
part 2.
Source: 62 FR 10346, Mar. 6, 1997, unless otherwise noted.
Sec. 211.1 Visas.
(a) General. Except as provided in paragraph (b)(1) of this section,
each arriving alien applying for admission (or boarding the vessel or
aircraft on which he or she arrives) into the United States for lawful
permanent residence, or as a lawful permanent resident returning to an
unrelinquished lawful permanent residence in the United States, shall
present one of the following:
(1) A valid, unexpired immigrant visa;
(2) A valid, unexpired Form I-551, Permanent Resident Card, if
seeking readmission after a temporary absence of less than 1 year, or in
the case of a crewmember regularly serving on board a vessel or aircraft
of United States registry seeking readmission after any temporary
absence connected with his or her duties as a crewman;
(3) A valid, unexpired Form I-327, Permit to Reenter the United
States;
(4) A valid, unexpired Form I-571, Refugee Travel Document, properly
endorsed to reflect admission as a lawful permanent resident;
(5) An expired Form I-551, Permanent Resident Card, accompanied by a
filing receipt issued within the previous 6 months for either a Form I-
751, Petition to Remove the Conditions on Residence, or Form I-829,
Petition by Entrepreneur to Remove Conditions, if seeking admission or
readmission after a temporary absence of less than 1 year;
(6) A Form I-551, whether or not expired, presented by a civilian or
military employee of the United States Government who was outside the
United States pursuant to official orders, or by the spouse or child of
such employee who resided abroad while the employee or serviceperson was
on overseas duty and who is preceding, accompanying or following to join
within 4 months the employee, returning to the United States; or
(7) Form I-551, whether or not expired, or a transportation letter
issued by an American consular officer, presented by an employee of the
American University of Beirut, who was so employed immediately preceding
travel to the United States, returning temporarily to the United States
before resuming employment with the American University of Beirut, or
resuming permanent residence in the United States.
(b) Waivers. (1) A waiver of the visa required in paragraph (a) of
this section shall be granted without fee or application by the district
director, upon presentation of the child's birth certificate, to a child
born subsequent to the issuance of an immigrant visa to his or her
accompanying parent who applies for admission during the validity of
such a visa; or a child born during the temporary visit abroad of a
mother who is a lawful permanent resident alien, or a national, of the
United States, provided that the child's application for admission to
the United States is made within 2 years of birth, the child is
accompanied by the parent who is applying for readmission as a permanent
resident upon the first return of the parent to the United States after
the birth of the child, and the accompanying parent is found to be
admissible to the United States.
(2) For an alien described in paragraph (b)(1) of this section,
recordation of the child's entry shall be on Form I-181, Memorandum of
Creation of Record of Admission for Lawful Permanent Residence. The
carrier of such
[[Page 182]]
alien shall not be liable for a fine pursuant to section 273 of the Act.
(3) If an immigrant alien returning to an unrelinquished lawful
permanent residence in the United States after a temporary absence
abroad believes that good cause exists for his or her failure to present
an immigrant visa, Form I-551, or reentry permit, the alien may file an
application for a waiver of this requirement with the district director
in charge of the port-of-entry. To apply for this waiver, the alien must
file Form I-193, Application for Waiver of Passport and/or Visa, with
the fee prescribed in Sec. 103.7(b)(1) of this chapter, except that if
the alien's Form I-551 was lost or stolen, the alien shall instead file
Form I-90, Application to Replace Permanent Resident Card, with the fee
prescribed in Sec. 103.7(b)(1) of this chapter, provided the temporary
absence did not exceed 1 year. In the exercise of discretion, the
district director in charge of the port-of-entry may waive the alien's
lack of an immigrant visa, Form I-551, or reentry permit and admit the
alien as a returning resident, if the district director is satisfied
that the alien has established good cause for the alien's failure to
present an immigrant visa, Form I-551, or reentry permit. Filing the
Form I-90 will serve as both application for replacement and as
application for waiver of passport and visa, without the obligation to
file a separate waiver application.
(c) Immigrants having occupational status defined in section
101(a)(15) (A), (E), or (G) of the Act. An immigrant visa, reentry
permit, or Form I-551 shall be invalid when presented by an alien who
has an occupational status under section 101(a)(15) (A), (E), or (G) of
the Act, unless he or she has previously submitted, or submits at the
time he or she applies for admission to the United States, the written
waiver required by section 247(b) of the Act and 8 CFR part 247.
(d) Returning temporary residents. (1) Form I-688, Temporary
Resident Card, may be presented in lieu of an immigrant visa by an alien
whose status has been adjusted to that of a temporary resident under the
provisions of Sec. 210.1 of this chapter, such status not having
changed, and who is returning to an unrelinquished residence within one
year after a temporary absence abroad.
(2) Form I-688 may be presented in lieu of an immigrant visa by an
alien whose status has been adjusted to that of a temporary resident
under the provisions of Sec. 245a.2 of this chapter, such status not
having changed, and who is returning to an unrelinquished residence
within 30 days after a temporary absence abroad, provided that the
aggregate of all such absences abroad during the temporary residence
period has not exceeded 90 days.
[62 FR 10346, Mar. 6, 1997, as amended at 63 FR 39218, July 22, 1998; 63
FR 70315, Dec. 21, 1998]
Sec. 211.2 Passports.
(a) A passport valid for the bearer's entry into a foreign country
at least 60 days beyond the expiration date of his or her immigrant visa
shall be presented by each immigrant except an immigrant who:
(1) Is the parent, spouse, or unmarried son or daughter of a United
States citizen or of an alien lawful permanent resident of the United
States;
(2) Is entering under the provisions of Sec. 211.1(a)(2) through
(a)(7);
(3) Is a child born during the temporary visit abroad of a mother
who is a lawful permanent resident alien, or a national, of the United
States, provided that the child's application for admission to the
United States is made within 2 years of birth, the child is accompanied
by the parent who is applying for readmission as a permanent resident
upon the first return of the parent to the United States after the birth
of the child, and the accompanying parent is found to be admissible to
the United States;
(4) Is a stateless person or a person who because of his or her
opposition to Communism is unwilling or unable to obtain a passport from
the country of his or her nationality, or is the accompanying spouse or
unmarried son or daughter of such immigrant; or
(5) Is a member of the Armed Forces of the United States.
(b) Except as provided in paragraph (a) of this section, if an alien
seeking admission as an immigrant with an immigrant visa believes that
good cause exists for his or her failure to present
[[Page 183]]
a passport, the alien may file an application for a waiver of this
requirement with the district director in charge of the port-of-entry.
To apply for this waiver, the alien must file Form I-193, Application
for Waiver of Passport and/or Visa, with the fee prescribed in Sec.
103.7(b)(1) of this chapter. In the exercise of discretion, the district
director in charge of the port-of-entry may waive the alien's lack of
passport and admit the alien as an immigrant, if the district director
is satisfied that the alien has established good cause for the alien's
failure to present a passport.
Sec. 211.3 Expiration of immigrant visas, reentry permits, refugee
travel documents, and Form I-551.
An immigrant visa, reentry permit, refugee travel document, or Form
I-551 shall be regarded as unexpired if the rightful holder embarked or
enplaned before the expiration of his or her immigrant visa, reentry
permit, or refugee travel document, or with respect to Form I-551,
before the first anniversary of the date on which he or she departed
from the United States, provided that the vessel or aircraft on which he
or she so embarked or enplaned arrives in the United States or foreign
contiguous territory on a continuous voyage. The continuity of the
voyage shall not be deemed to have been interrupted by scheduled or
emergency stops of the vessel or aircraft en route to the United States
or foreign contiguous territory, or by a layover in foreign contiguous
territory necessitated solely for the purpose of effecting a
transportation connection to the United States.
Sec. 211.4 Waiver of documents for returning residents.
(a) Pursuant to the authority contained in section 211(b) of the
Act, an alien previously lawfully admitted to the United States for
permanent residence who, upon return from a temporary absence was
inadmissible because of failure to have or to present a valid passport,
immigrant visa, reentry permit, border crossing card, or other document
required at the time of entry, may be granted a waiver of such
requirement in the discretion of the district director if the district
director determines that such alien:
(1) Was not otherwise inadmissible at the time of entry, or having
been otherwise inadmissible at the time of entry is with respect thereto
qualified for an exemption from deportability under section 237(a)(1)(H)
of the Act; and
(2) Is not otherwise subject to removal.
(b) Denial of a waiver by the district director is not appealable
but shall be without prejudice to renewal of an application and
reconsideration in proceedings before the immigration judge.
Sec. 211.5 Alien commuters.
(a) General. An alien lawfully admitted for permanent residence or a
special agricultural worker lawfully admitted for temporary residence
under section 210 of the Act may commence or continue to reside in
foreign contiguous territory and commute as a special immigrant defined
in section 101(a)(27)(A) of the Act to his or her place of employment in
the United States. An alien commuter engaged in seasonal work will be
presumed to have taken up residence in the United States if he or she is
present in this country for more than 6 months, in the aggregate, during
any continuous 12-month period. An alien commuter's address report under
section 265 of the Act must show his or her actual residence address
even though it is not in the United States.
(b) Loss of residence status. An alien commuter who has been out of
regular employment in the United States for a continuous period of 6
months shall be deemed to have lost residence status, notwithstanding
temporary entries in the interim for other than employment purposes. An
exception applies when employment in the United States was interrupted
for reasons beyond the individual's control other than lack of a job
opportunity or the commuter can demonstrate that he or she has worked 90
days in the United States in the aggregate during the 12-month period
preceding the application for admission into the United States. Upon
loss of status, Form I-551 or I-688 shall become invalid and must be
surrendered to an immigration officer.
[[Page 184]]
(c) Eligibility for benefits under the immigration and nationality
laws. Until he or she has taken up residence in the United States, an
alien commuter cannot satisfy the residence requirements of the
naturalization laws and cannot qualify for any benefits under the
immigration laws on his or her own behalf or on behalf of his or her
relatives other than as specified in paragraph (a) of this section. When
an alien commuter takes up residence in the United States, he or she
shall no longer be regarded as a commuter. He or she may facilitate
proof of having taken up such residence by notifying the Service as soon
as possible, preferably at the time of his or her first reentry for that
purpose. Application for issuance of a new Permanent Resident Card to
show that he or she has taken up residence in the United States shall be
made on Form I-90.
[62 FR 10346, Mar. 6, 1997, as amended at 63 FR 70315, Dec. 21, 1998]
PART 212_DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF
CERTAIN INADMISSIBLE ALIENS; PAROLE--Table of Contents
Sec.
212.1 Documentary requirements for nonimmigrants.
212.2 Consent to reapply for admission after deportation, removal or
departure at Government expense.
212.3 Application for the exercise of discretion under section 212(c).
212.4 Applications for the exercise of discretion under section
212(d)(1) and 212(d)(3).
212.5 Parole of aliens into the United States.
212.6 Border crossing identification cards.
212.7 Waiver of certain grounds of inadmissibility.
212.8 Certification requirement of section 212(a)(14).
212.9 Applicability of section 212(a)(32) to certain derivative third
and sixth preference and nonpreference immigrants.
212.10 Section 212(k) waiver.
212.11 Controlled substance convictions.
212.12 Parole determinations and revocations respecting Mariel Cubans.
212.13 [Reserved]
212.14 Parole determinations for alien witnesses and informants for whom
a law enforcement authority (``LEA'') will request S
classification.
212.15 Certificates for foreign health care workers.
212.16 Applications for exercise of discretion relating to T
nonimmigrant status.
Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184,
1187, 1223, 1225, 1226, 1227.
Source: 17 FR 11484, Dec. 19, 1952, unless otherwise noted.
Sec. 212.1 Documentary requirements for nonimmigrants.
A valid unexpired visa and an unexpired passport, valid for the
period set forth in section 212(a)(26) of the Act, shall be presented by
each arriving nonimmigrant alien except that the passport validity
period for an applicant for admission who is a member of a class
described in section 102 of the Act is not required to extend beyond the
date of his application for admission if so admitted, and except as
otherwise provided in the Act, this chapter, and for the following
classes:
(a) Citizens of Canada or Bermuda, Bahamian nationals or British
subjects resident in certain islands--(1) Canadian citizens. A passport
is not required except after a visit outside of the Western Hemisphere.
A visa is not required.
(2) Citizens of the British Overseas Territory of Bermuda. A
passport is not required except after a visit outside of the Western
Hemisphere. A visa is not required.
(3) Bahamian nationals or British subjects resident in the Bahamas.
A passport is required. A visa required of such an alien unless, prior
to or at the time of embarkation for the United States on a vessel or
aircraft, the alien satisfied the examining U.S. immigration officer at
the Bahamas, that he or she is clearly and beyond a doubt entitled to
admission, under section 212(a) of the Immigration and Nationality Act,
in all other respects.
(4) British subjects resident in the Cayman Islands or in the Turks
and Caicos Islands. A passport is required. A visa is required of such
an alien unless he or she arrives directly from the Cayman Islands or
the Turks and Caicos Islands and presents a current certificate from the
Clerk of Court of the Cayman Islands or the Turks and Caicos Islands
indicating no criminal record.
[[Page 185]]
(b) Certain Caribbean residents--(1) British, French, and
Netherlands nationals, and nationals of certain adjacent islands of the
Caribbean which are independent countries. A visa is not required of a
British, French, or Netherlands national, or of a national of Barbados,
Grenada, Jamaica, or Trinidad and Tobago, who has his or her residence
in British, French, or Netherlands territory located in the adjacent
islands of the Caribbean area, or in Barbados, Grenada, Jamaica, or
Trinidad and Tobago, who:
(i) Is proceeding to the United States as an agricultural worker;
(ii) Is the beneficiary of a valid, unexpired indefinite
certification granted by the Department of Labor for employment in the
Virgin Islands of the United States and is proceeding to the Virgin
Islands of the United States for such purpose, or
(iii) Is the spouse or child of an alien described in paragraph
(b)(1)(i) or (b)(1)(ii) of this section, and is accompanying or
following to join him or her.
(2) Nationals of the British Virgin Islands. A visa is not required
of a national of the British Virgin Islands who has his or her residence
in the British Virgin Islands, if:
(i) The alien is seeking admission solely to visit the Virgin
Islands of the United States; or
(ii) At the time of embarking on an aircraft at St. Thomas, U.S.
Virgin Islands, the alien meets each of the following requirements:
(A) The alien is traveling to any other part of the United States by
aircraft as a nonimmigrant visitor for business or pleasure (as
described in section 101(a)(15)(B) of the Act);
(B) The alien satisfies the examining U.S. Immigration officer at
the port-of-entry that he or she is clearly and beyond a doubt entitled
to admission in all other respects; and
(C) The alien presents a current Certificate of Good Conduct issued
by the Royal Virgin Islands Police Department indicating that he or she
has no criminal record.
(c) Mexican nationals. (1) A visa and a passport are not required of
a Mexican national who:
(i) Is in possession of a Form DSP-150, B-1/B-2 Visa and Border
Crossing Card, containing a machine-readable biometric identifier,
issued by the DOS and is applying for admission as a temporary visitor
for business or pleasure from contiguous territory.
(ii) Is a Mexican national entering solely for the purpose of
applying for a Mexican passport or other official Mexican document at a
Mexican consular office on the United States side of the border.
(2) A visa shall not be required of a Mexican national who:
(i) Is in possession of a Form DSP-150, with a biometric identifier,
issued by the DOS, and a passport, and is applying for admission as a
temporary visitor for business or pleasure from other than contiguous
territory;
(ii) Is a crew member employed on an aircraft belonging to a Mexican
company owned carrier authorized to engage in commercial transportation
into the United States; or
(iii) Bears a Mexican diplomatic or official passport and who is a
military or civilian official of the Federal Government of Mexico
entering the United States for 6 months or less for a purpose other than
on assignment as a permanent employee to an office of the Mexican
Federal Government in the United States, and the official's spouse or
any of the official's dependent family members under 19 years of age,
bearing diplomatic or official passports, who are in the actual company
of such official at the time of admission into the United States. This
provision does not apply to the spouse or any of the official's family
members classifiable under section 101(a)(15)(F) or (M) of the Act.
(3) A Mexican national who presents a BCC at a POE must present the
DOS-issued DSP-150 containing a machine-readable biometric identifier.
The alien will not be permitted to cross the border into the United
States unless the biometric identifier contained on the card matches the
appropriate biometric characteristic of the alien.
(4) Mexican nationals presenting a combination B-1/B-2 nonimmigrant
visa and border crossing card (or similar stamp in a passport), issued
by DOS
[[Page 186]]
prior to April 1, 1998, that does not contain a machine-readable
biometric identifier, may be admitted on the basis of the nonimmigrant
visa only, provided it has not expired and the alien remains admissible.
A passport is also required.
(5) Aliens entering pursuant to International Boundary and Water
Commission Treaty. A visa and a passport are not required of an alien
employed either directly or indirectly on the construction, operation,
or maintenance of works in the United States undertaken in accordance
with the treaty concluded on February 3, 1944, between the United States
and Mexico regarding the functions of the International Boundary and
Water Commission, and entering the United States temporarily in
connection with such employment.
(d) Citizens of the Freely Associated States, formerly Trust
Territory of the Pacific Islands. Citizens of the Republic of the
Marshall Islands and the Federated States of Micronesia may enter into,
lawfully engage in employment, and establish residence in the United
States and its territories and possessions without regard to paragraphs
(14), (20) and (26) of section 212(a) of the Act pursuant to the terms
of Pub. L. 99-239. Pending issuance by the aforementioned governments of
travel documents to eligible citizens, travel documents previously
issued by the Trust Territory of the Pacific Islands will continue to be
accepted for purposes of identification and to establish eligibility for
admission into the United States, its territories and possessions.
(e) Aliens entering Guam pursuant to section 14 of Pub. L. 99-396,
``Omnibus Territories Act.'' (1) A visa is not required of an alien who
is a citizen of a country enumerated in paragraph (e)(3) of this section
who:
(i) Is classifiable as a vistor for business or pleasure;
(ii) Is solely entering and staying on Guam for a period not to
exceed fifteen days;
(iii) Is in possession of a round-trip nonrefundable and
nontransferable transportation ticket bearing a confirmed departure date
not exceeding fifteen days from the date of admission to Guam;
(iv) Is in possession of a completed and signed Visa Waiver
Information Form (Form I-736);
(v) Waives any right to review or appeal the immigration officer's
determination of admissibility at the port of entry at Guam; and
(vi) Waives any right to contest any action for deportation, other
than on the basis of a request for asylum.
(2) An alien is eligible for the waiver provision if all of the
eligibility criteria in paragraph (e)(1) of this section have been met
prior to embarkation and the alien is a citizen of a country that:
(i) Has a visa refusal rate of 16.9% or less, or a country whose
visa refusal rate exceeds 16.9% and has an established preinspection or
preclearance program, pursuant to a bilateral agreement with the United
States under which its citizens traveling to Guam without a valid United
States visa are inspected by the Immigration and Naturalization Service
prior to departure from that country;
(ii) Is within geographical proximity to Guam, unless the country
has a substantial volume of nonimmigrant admissions to Guam as
determined by the Commissioner and extends reciprocal privileges to
citizens of the United States;
(iii) Is not designated by the Department of State as being of
special humanitarian concern; and
(iv) Poses no threat to the welfare, safety or security of the
United States, its territories, or commonwealths.
Any potential threats to the welfare, safety, or security of the United
States, its territories, or commonwealths will be dealt with on a
country by country basis, and a determination by the Commissioner of the
Immigration and Naturalization Service that a threat exists will result
in the immediate deletion of that country from the listing in paragraph
(e)(3) of this section.
(3)(i) The following geographic areas meet the eligibility criteria
as stated in paragraph (e)(2) of this section: Australia, Brunei,
Indonesia, Japan, Malaysia, Nauru, New Zealand, Papua New Guinea,
Republic of Korea, Singapore, Solomon Islands, Taiwan (residents thereof
who begin their travel in
[[Page 187]]
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)-(2) [Reserved]
(3) Foreign government officials in transit. If an alien is of the
class described in section 212(d)(8) of the Act, only a valid unexpired
visa and a travel document valid for entry into a foreign country for at
least 30 days from the date of admission to the United States are
required.
(g) Unforeseen emergency. A nonimmigrant seeking admission to the
United States must present an unexpired visa and a passport valid for
the amount of time set forth in section 212(a)(7)(B) of the Act or a
valid biometric border crossing card, issued by the DOS on Form DSP-150,
at the time of application for admission, unless the nonimmigrant
satisfies the requirements described in one or more of the paragraphs
(a) through (f),(i) or (o) of this section. Upon a nonimmigrant's
application on Form I-193, Application for Waiver of Passport and/or
Visa, a district director may, in the exercise of his or her discretion,
on a case-by-case basis, waive the documentary requirements if satisfied
that the nonimmigrant cannot present the required documents because of
an unforeseen emergency. The district director 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) Nonimmigrant spouses, fianc[eacute]es, fianc[eacute]s, and
children of U.S. citizens. Notwithstanding any of the provisions of this
part, an alien seeking admission as a spouse, fianc[eacute]e,
fianc[eacute], or child of a U.S. citizen, or as a child of the spouse,
fian[eacute], or finac[eacute]e of a U.S. citizen, pursuant to section
101(a)(15)(K)
[[Page 188]]
of the Act shall be in possession of an unexpired nonimmigrant visa
issued by an American consular officer classifying the alien under that
section, or be inadmissible under section 212(a)(7)(B) of the Act.
(i) Visa Waiver Pilot Program. A visa is not required of any alien
who is eligible to apply for admission to the United States as a Visa
Waiver Pilot Program applicant pursuant to the provisions of section 217
of the Act and part 217 of this chapter if such alien is a national of a
country designated under the Visa Waiver Pilot Program, who seeks
admission to the United States for a period of 90 days or less as a
visitor for business or pleasure.
(j) Officers authorized to act upon recommendations of United States
consular officers for waiver of visa and passport requirements. All
district directors, the officers in charge are authorized to act upon
recommendations made by United States consular officers or by officers
of the Visa Office, Department of State, pursuant to the provisions of
22 CFR 41.7 for waiver of visa and passport requirements under the
provisions of section 212(d)(4)(A) of the Act. The District Director at
Washington, DC, has jurisdiction in such cases recommended to the
Service at the seat of Government level by the Department of State.
Neither an application nor fee are required if the concurrence in a
passport or visa waiver is requested by a U.S. consular officer or by an
officer of the Visa Office. The district director or the Deputy
Commissioner, may at any time revoke a waiver previously authorized
pursuant to this paragraph and notify the nonimmigrant alien in writing
to that effect.
(k) Cancellation of nonimmigrant visas by immigration officers. Upon
receipt of advice from the Department of State that a nonimmigrant visa
has been revoked or invalidated, and request by that Department for such
action, immigration officers shall place an appropriate endorsement
thereon.
(l) Treaty traders and investors. Notwithstanding any of the
provisions of this part, an alien seeking admission as a treaty trader
or investor under the provisions of Chapter 16 of the North American
Free Trade Agreement (NAFTA) pursuant to section 101(a)(15)(E) of the
Act, shall be in possession of a nonimmigrant visa issued by an American
consular officer classifying the alien under that section.
(m) Aliens in S classification. Notwithstanding any of the
provisions of this part, an alien seeking admission pursuant to section
101(a)(15)(S) of the Act must be in possession of appropriate documents
issued by a United States consular officer classifying the alien under
that section.
(n) Alien in Q-2 classification. Notwithstanding any of the
provisions of this part, an alien seeking admission as a principal
according to section 101(a)(15)(Q)(ii) of the Act must be in possession
of a Certification Letter issued by the Department of State's Program
Administrator documenting participation in the Irish peace process
cultural and training programs.
(o) Alien in T-2 through T-4 classification. Individuals seeking T-2
through T-4 nonimmigrant status may avail themselves of the provisions
of paragraph (g) of this section, except that the authority to waive
documentary requirements resides with the Service Center.
(Secs. 103, 104, 212 of the Immigration and Nationality Act, as amended
(8 U.S.C. 1103, 1104, 1132))
[26 FR 12066, Dec. 16, 1961]
Editorial Note: For Federal Register citations affecting Sec.
212.1, see the List of CFR Sections Affected, which appears in the
Finding Aids section in the printed volume and on GPO Access.
Sec. 212.2 Consent to reapply for admission after deportation, removal
or departure at Government expense.
(a) Evidence. Any alien who has been deported or removed from the
United States is inadmissible to the United States unless the alien has
remained outside of the United States for five consecutive years since
the date of deportation or removal. If the alien has been convicted of
an aggravated felony, he or she must remain outside of the United States
for twenty consecutive years from the deportation date before he or she
is eligible to re-enter the United States. Any alien who has been
deported or removed from the United
[[Page 189]]
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, may be
waived under section 212 (g), (h), or (i) of the Act, the consular
officer must also forward a recommendation as to whether the waiver
should be granted.
(d) Applicant for immigrant visa. Except as provided in paragraph
(g)(3) of this section, an applicant for an immigrant visa who is not
physically present in the United States and who requires permission to
reapply must file Form I-212 with the district director having
jurisdiction over the place where the deportation or removal proceedings
were held. Except as provided in paragraph (g)(3) of this section, if
the applicant also requires a waiver under section 212 (g), (h), or (i)
of the Act, Form I-601, Application for Waiver of Grounds of
Excludability, must be filed simultaneously with the Form I-212 with the
American consul having jurisdiction over the alien's place of residence.
The consul must forward these forms to the appropriate Service office
abroad with jurisdiction over the area within which the consul is
located.
(e) Applicant for adjustment of status. An applicant for adjustment
of status under section 245 of the Act and part 245 of this chapter must
request permission to reapply for entry in conjunction with his or her
application for adjustment of status. This request is
[[Page 190]]
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.
(3) If an alien who is an applicant for parole authorization under
Sec. 245.15(t)(2) of this chapter requires consent to reapply for
admission after deportation, removal, or departure at Government
expense, or a waiver under section 212(g), 212(h), or 212(i) of the Act,
he or she may file the requisite Form I-212 or Form I-601 at the
Nebraska Service Center concurrently with the Form I-131, Application
for Travel Document. If an alien who is an applicant for parole
authorization under Sec. 245.13(k)(2) of this chapter requires consent
to reapply for admission after deportation, removal, or departure at
Government expense, or a waiver under section 212(g), 212(h), or 212(i)
of the Act, he or she may file the requisite Form I-212 or Form I-601 at
the Texas Service Center concurrently with the Form I-131, Application
for Travel Document.
(h) Decision. An applicant who has submitted a request for consent
to reapply for admission after deportation or removal must be notified
of the decision. If the application is denied, the applicant must be
notified of the reasons for the denial and of his or her right to appeal
as provided in part 103 of this chapter. Except in the case of an
applicant seeking to be granted advance permission to reapply for
admission prior to his or her departure from the United States, the
denial of the application shall be without prejudice to the renewal of
the application in the course of proceedings before an immigration judge
under section 242 of the Act and this chapter.
(i) Retroactive approval. (1) If the alien filed Form I-212 when
seeking admission at a port of entry, the approval of the Form I-212
shall be retroactive to either:
(i) The date on which the alien embarked or reembarked at a place
outside the United States; or
(ii) The date on which the alien attempted to be admitted from
foreign contiguous territory.
(2) If the alien filed Form I-212 in conjunction with an application
for adjustment of status under section 245 of the Act, the approval of
Form I-212 shall be retroactive to the date on which the alien embarked
or reembarked at a place outside the United States.
(j) Advance approval. An alien whose departure will execute an order
of deportation shall receive a conditional approval depending upon his
or her satisfactory departure. However, the grant of permission to
reapply does not waive inadmissibility under section 212(a) (16) or (17)
of the Act resulting from exclusion, deportation, or removal proceedings
which are instituted subsequent to the date permission to reapply is
granted.
[56 FR 23212, May 21, 1991, as amended at 64 FR 25766, May 12, 1999; 65
FR 15854, Mar. 24, 2000]
[[Page 191]]
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
(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.
[[Page 192]]
(g) Relief for certain aliens who were in deportation proceedings
before April 24, 1996. Section 440(d) of Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) shall not apply to any applicant for
relief under this section whose deportation proceedings were commenced
before the Immigration Court before April 24, 1996.
[56 FR 50034, Oct. 3, 1991, as amended at 60 FR 34090, June 30, 1995; 61
FR 59825, Nov. 25, 1996; 66 FR 6446, Jan. 22, 2001]
Sec. 212.4 Applications for the exercise of discretion under section
212(d)(1) and 212(d)(3).
(a) Applications under section 212(d)(3)(A)--(1) General. District
directors and officers in charge outside the United States in the
districts of Bangkok, Thailand; Mexico City, Mexico; and Rome, Italy are
authorized to act upon recommendations made by consular officers for the
exercise of discretion under section 212(d)(3)(A) of the Act. The
District Director, Washington, DC, has jurisdiction in such cases
recommended to the Service at the seat-of-government level by the
Department of State. When a consular officer or other State Department
official recommends that the benefits of section 212(d)(3)(A) of the Act
be accorded an alien, neither an application 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,
[[Page 193]]
including the period of such membership or affiliation, whether the
applicant held any office in the organization, and whether his
membership or affiliation was voluntary or involuntary. If the applicant
alleges that his membership or affiliation was involuntary, the
statement shall include the basis for that allegation. When the
application is made because the applicant may be inadmissible due to
disease, mental or physical defect, or disability of any kind, the
application shall describe the disease, defect, or disability. If the
purpose of seeking admission to the United States is for treatment,
there shall be attached to the application statements in writing to
establish that satisfactory treatment cannot be obtained outside the
United States; that arrangements have been completed for treatment, and
where and from whom treatment will be received; what financial
arrangements for payment of expenses incurred in connection with the
treatment have been made, and that a bond will be available if required.
When the application is made because the applicant may be inadmissible
due to the conviction of one or more crimes, the designation of each
crime, the date and place of its commission and of the conviction
thereof, and the sentence or other judgment of the court shall be stated
in the application; in such a case the application shall be supplemented
by the official record of each conviction, and any other documents
relating to commutation of sentence, parole, probation, or pardon. If
the application is made at the time of the applicant's arrival to the
district director at a port of entry, the applicant shall establish that
he was not aware of the ground of inadmissibility and that it could not
have been ascertained by the exercise of reasonable diligence, and he
shall be in possession of a passport and visa, if required, or have been
granted a waiver thereof. The applicant shall be notified of the
decision and if the application is denied of the reasons therefor and of
his right to appeal to the Board within 15 days after the mailing of the
notification of decision in accordance with the Provisions of part 3 of
this chapter. If denied, the denial shall be without prejudice to
renewal of the application in the course of proceedings before a special
inquiry officer under sections 235 and 236 of the Act and this chapter.
When an appeal may not be taken from a decision of a special inquiry
officer excluding an alien but the alien has applied for the exercise of
discretion under section 212(d)(3)(B) of the Act, the alien may appeal
to the Board from a denial of such application in accordance with the
provisions of Sec. 236.5(b) of this chapter.
(c) Terms of authorization--(1) General. Except as provided in
paragraph (c)(2) of this section, each authorization under section
212(d)(3)(A) or (B) of the Act shall specify:
(i) Each section of law under which the alien is inadmissible;
(ii) The intended date of each arrival, unless the applicant is a
bona fide crewman. However, if the authorization is valid for multiple
entries rather than for a specified number of entries, this information
shall be specified only with respect to the initial entry;
(iii) The length of each stay authorized in the United States, which
shall not exceed the period justified and shall be subject to
limitations specified in 8 CFR part 214. However, if the authorization
is valid for multiple entries rather than for a specified number of
entries, this information shall be specified only with respect to the
initial entry;
(iv) The purpose of each stay;
(v) The number of entries for which the authorization is valid;
(vi) Subject to the conditions set forth in paragraph (c)(2) of this
section, the dates on or between which each application for admission at
POEs in the United States is valid;
(vii) The justification for exercising the authority contained in
section 212(d)(3) of the Act; and
(viii) That the authorization is subject to revocation at any time.
(2) Conditions of admission. (i) For aliens issued an authorization
for temporary admission in accordance with this section, admissions
pursuant to section 212(d)(3) of the Act shall be subject to the terms
and conditions set forth in the authorization.
(ii) The period for which the alien's admission is authorized
pursuant to this section shall not exceed the period
[[Page 194]]
justified, or the limitations specified, in 8 CFR part 214 for each
class of nonimmigrant, whichever is less.
(3) Validity. (i) Authorizations granted to crew members may be
valid for a maximum period of 2 years for application for admission at
U.S. POEs and may be valid for multiple entries.
(ii) An authorization issued in conjunction with an application for
a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, issued by the DOS
shall be valid for a period not to exceed the validity of the biometric
BCC for applications for admission at U.S. POEs and shall be valid for
multiple entries.
(iii) A multiple entry authorization for a person other than a crew
member or applicant for a Form DSP-150 may be made valid for a maximum
period of 5 years for applications for admission at U.S. POEs.
(iv) An authorization that was previously issued in conjunction with
Form I-185, Nonresident Alien Canadian Border Crossing Card, and that is
noted on the card may remain valid. Although the waiver may remain
valid, the non-biometric border crossing card portion of this document
is not valid after that date. This waiver authorization shall cease if
otherwise revoked or voided.
(v) A single-entry authorization to apply for admission at a U.S.
POE shall not be valid for more than 6 months from the date the
authorization is issued.
(vi) An authorization may not be revalidated. Upon expiration of the
authorization, a new application and authorization are required.
(d) Admission of groups inadmissible under section 212(a)(28) for
attendance at international conferences. When the Secretary of State
recommends that a group of nonimmigrant aliens and their accompanying
family members be admitted to attend international conferences
notwithstanding their inadmissibility under section 212(a)(28) of the
Act, the Deputy Commissioner, may enter an order pursuant to the
authority contained in section 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
[[Page 195]]
in the national interest to exercise the discretion to waive the ground
of excludability, other than section 212(a)(3)(E) of the Act. The
Commissioner may at any time revoke a waiver previously authorized under
section 212(d)(1) of the Act. In the event the Commissioner decides to
revoke a previously authorized waiver for an S nonimmigrant, the
Assistant Attorney General, Criminal Division, and the relevant LEA
shall be notified in writing to that effect. The Assistant Attorney
General, Criminal Division, shall concur in or object to the decision.
Unless the Assistant Attorney General, Criminal Division, objects within
7 days, he or she shall be deemed to have concurred in the decision. In
the event of an objection by the Assistant Attorney General, Criminal
Division, the matter will be expeditiously referred to the Deputy
Attorney General for a final resolution. In no circumstances shall the
alien or the relevant LEA have a right of appeal from any decision to
revoke.
(2) Grounds of removal. Nothing shall prohibit the Service from
removing from the United States an alien classified pursuant to section
101(a)(15)(S) of the Act for conduct committed after the alien has been
admitted to the United States as an S nonimmigrant, or after the alien's
change to S classification, or for conduct or a condition undisclosed to
the Attorney General prior to the alien's admission in, or change to, S
classification, unless such conduct or condition is waived prior to
admission and classification. In the event the Commissioner decides to
remove an S nonimmigrant from the United States, the Assistant Attorney
General, Criminal Division, and the relevant LEA shall be notified in
writing to that effect. The Assistant Attorney General, Criminal
Division, shall concur in or object to that decision. Unless the
Assistant Attorney General, Criminal Division, objects within 7 days, he
or she shall be deemed to have concurred in the decision. In the event
of an objection by the Assistant Attorney General, Criminal Division,
the matter will be expeditiously referred to the Deputy Attorney General
for a final resolution. In no circumstances shall the alien or the
relevant LEA have a right of appeal from any decision to remove.
[29 FR 15252, Nov. 13, 1964, as amended at 30 FR 12330, Sept. 28, 1965;
31 FR 10413, Aug. 3, 1966; 32 FR 15469, Nov. 7, 1967; 35 FR 3065, Feb.
17, 1970; 35 FR 7637, May 16, 1970; 40 FR 30470, July 21, 1975; 51 FR
32295, Sept. 10, 1986; 53 FR 40867, Oct. 19, 1988; 60 FR 44264, Aug. 25,
1995; 60 FR 52248, Oct. 5, 1995; 67 FR 71448, Dec. 2, 2002]
Sec. 212.5 Parole of aliens into the United States.
(a) The authority of the Secretary to continue an alien in custody
or grant parole under section 212(d)(5)(A) of the Act shall be exercised
by the Assistant Commissioner, Office of Field Operations; Director,
Detention and Removal; directors of field operations; port directors;
special agents in charge; deputy special agents in charge; associate
special agents in charge; assistant special agents in charge; resident
agents in charge; field office directors; deputy field office directors;
chief patrol agents; district directors for services; and those other
officials as may be designated in writing, subject to the parole and
detention authority of the Secretary or his designees. The Secretary or
his designees may invoke, in the exercise of discretion, the authority
under section 212(d)(5)(A) of the Act.
(b) The parole of aliens within the following groups who have been
or are detained in accordance with Sec. 235.3(b) or (c) of this chapter
would generally be justified only on a case-by-case basis for ``urgent
humanitarian reasons'' or ``significant public benefit,'' provided the
aliens present neither a security risk nor a risk of absconding:
(1) Aliens who have serious medical conditions in which continued
detention would not be appropriate;
(2) Women who have been medically certified as pregnant;
(3) Aliens who are defined as juveniles in Sec. 236.3(a) of this
chapter. The Director, Detention and Removal; directors of field
operations; field office directors; deputy field office directors; or
chief patrol agents shall follow the guidelines set forth in Sec.
236.3(a) of this chapter and paragraphs (b)(3)(i) through (iii) of this
section in determining under what conditions a juvenile should be
paroled from detention:
[[Page 196]]
(i) Juveniles may be released to a relative (brother, sister, aunt,
uncle, or grandparent) not in Service detention who is willing to
sponsor a minor and the minor may be released to that relative
notwithstanding that the juvenile has a relative who is in detention.
(ii) If a relative who is not in detention cannot be located to
sponsor the minor, the minor may be released with an accompanying
relative who is in detention.
(iii) If the Service cannot locate a relative in or out of detention
to sponsor the minor, but the minor has identified a non-relative in
detention who accompanied him or her on arrival, the question of
releasing the minor and the accompanying non-relative adult shall be
addressed on a case-by-case basis;
(4) Aliens who will be witnesses in proceedings being, or to be,
conducted by judicial, administrative, or legislative bodies in the
United States; or
(5) Aliens whose continued detention is not in the public interest
as determined by those officials identified in paragraph (a) of this
section.
(c) In the case of all other arriving aliens, except those detained
under Sec. 235.3(b) or (c) of this chapter and paragraph (b) of this
section, those officials listed in paragraph (a) of this section may,
after review of the individual case, parole into the United States
temporarily in accordance with section 212(d)(5)(A) of the Act, any
alien applicant for admission, under such terms and conditions,
including those set forth in paragraph (d) of this section, as he or she
may deem appropriate. An alien who arrives at a port-of-entry and
applies for parole into the United States for the sole purpose of
seeking adjustment of status under section 245A of the Act, without
benefit of advance authorization as described in paragraph (f) of this
section shall be denied parole and detained for removal in accordance
with the provisions of Sec. 235.3(b) or (c) of this chapter. An alien
seeking to enter the United States for the sole purpose of applying for
adjustment of status under section 210 of the Act shall be denied parole
and detained for removal under Sec. 235.3(b) or (c) of this chapter,
unless the alien has been recommended for approval of such application
for adjustment by a consular officer at an Overseas Processing Office.
(d) Conditions. In any case where an alien is paroled under
paragraph (b) or (c) of this section, those officials listed in
paragraph (a) of this section may require reasonable assurances that the
alien will appear at all hearings and/or depart the United States when
required to do so. Not all factors listed need be present for parole to
be exercised. Those officials should apply reasonable discretion. The
consideration of all relevant factors includes:
(1) The giving of an undertaking by the applicant, counsel, or a
sponsor to ensure appearances or departure, and a bond may be required
on Form I-352 in such amount as may be deemed appropriate;
(2) Community ties such as close relatives with known addresses; and
(3) Agreement to reasonable conditions (such as periodic reporting
of whereabouts).
(e) Termination of parole--(1) Automatic. Parole shall be
automatically terminated without written notice (i) upon the departure
from the United States of the alien, or, (ii) if not departed, at the
expiration of the time for which parole was authorized, and in the
latter case the alien shall be processed in accordance with paragraph
(e)(2) of this section except that no written notice shall be required.
(2)(i) On notice. In cases not covered by paragraph (e)(1) of this
section, upon accomplishment of the purpose for which parole was
authorized or when in the opinion of one of the officials listed in
paragraph (a) of this section, neither humanitarian reasons nor public
benefit warrants the continued presence of the alien in the United
States, parole shall be terminated upon written notice to the alien and
he or she shall be restored to the status that he or she had at the time
of parole. When a charging document is served on the alien, the charging
document will constitute written notice of termination of parole, unless
otherwise specified. Any further inspection or hearing shall be
conducted under section 235 or 240 of the Act and this chapter, or any
order of exclusion, deportation, or removal previously entered shall be
executed. If the exclusion, deportation, or
[[Page 197]]
removal order cannot be executed within a reasonable time, the alien
shall again be released on parole unless in the opinion of the official
listed in paragraph (a) of this section the public interest requires
that the alien be continued in custody.
(ii) An alien who is granted parole into the United States after
enactment of the Immigration Reform and Control Act of 1986 for other
than the specific purpose of applying for adjustment of status under
section 245A of the Act shall not be permitted to avail him or herself
of the privilege of adjustment thereunder. Failure to abide by this
provision through making such an application will subject the alien to
termination of parole status and institution of proceedings under
sections 235 and 236 of the Act without the written notice of
termination required by Sec. 212.5(e)(2)(i) of this chapter.
(f) Advance authorization. When parole is authorized for an alien
who will travel to the United States without a visa, the alien shall be
issued Form I-512.
(g) Parole for certain Cuban nationals. Notwithstanding any other
provision respecting parole, the determination whether to release on
parole, or to revoke the parole of, a native of Cuba who last came to
the United States between April 15, 1980, and October 20, 1980, shall be
governed by the terms of Sec. 212.12.
(h) Effect of parole of Cuban and Haitian nationals. (1) Except as
provided in paragraph (h)(2) of this section, any national of Cuba or
Haiti who was paroled into the United States on or after October 10,
1980, shall be considered to have been paroled in the special status for
nationals of Cuba or Haiti, referred to in section 501(e)(1) of the
Refugee Education Assistance Act of 1980, Public Law 96-422, as amended
(8 U.S.C. 1522 note).
(2) A national of Cuba or Haiti shall not be considered to have been
paroled in the special status for nationals of Cuba or Haiti, referred
to in section 501(e)(1) of the Refugee Education Assistance Act of 1980,
Public Law 96-422, as amended, if the individual was paroled into the
United States:
(i) In the custody of a Federal, State or local law enforcement or
prosecutorial authority, for purposes of criminal prosecution in the
United States; or
(ii) Solely to testify as a witness in proceedings before a
judicial, administrative, or legislative body in the United States.
[47 FR 30045, July 9, 1982, as amended at 47 FR 46494, Oct. 19, 1982; 52
FR 16194, May 1, 1987; 52 FR 48802, Dec. 28, 1987; 53 FR 17450, May 17,
1988; 61 FR 36611, July 12, 1996; 62 FR 10348, Mar. 6, 1997; 65 FR
80294, Dec. 21, 2000; 65 FR 82255, Dec. 28, 2000; 67 FR 39257, June 7,
2002; 68 FR 35152, June 12, 2003]
Sec. 212.6 Border crossing identification cards.
(a) Application for Form DSP-150, B-1/B-2 Visa and Border Crossing
Card, issued by the Department of State. A citizen of Mexico, who seeks
to travel temporarily to the United States for business or pleasure
without a visa and passport, must apply to the DOS on Form DS-156,
Visitor Visa Application, to obtain a Form DSP-150 in accordance with
the applicable DOS regulations at 22 CFR 41.32 and/or instructions.
(b) Use--(1) Application for admission with Non-resident Canadian
Border Crossing Card, Form I-185, containing separate waiver
authorization; Canadian residents bearing DOS-issued combination B-1/B-2
visa and border crossing card (or similar stamp in a passport). (i) A
Canadian citizen or other person sharing common nationality with Canada
and residing in Canada who presents a Form I-185 that contains a
separate notation of a waiver authorization issued pursuant to Sec.
212.4 may be admitted on the basis of the waiver, provided the waiver
has not expired or otherwise been revoked or voided. Although the waiver
may remain valid on or after October 1, 2002, the non-biometric border
crossing card portion of the document is not valid after that date.
(ii) A Canadian resident who presents a combination B-1/B-2 visa and
border crossing card (or similar stamp in a passport) issued by the DOS
prior to April 1, 1998, that does not contain a machine-readable
biometric identifier, may be admitted on the basis of the nonimmigrant
visa only, provided it has not expired and the alien remains otherwise
admissible.
[[Page 198]]
(2) Application for admission by a national of Mexico--Form DSP-150
issued by the DOS; DOS-issued combination B-1/B-2 visa and border
crossing card (or similar stamp in a passport). (i) The rightful holder
of a Form DSP-150 issued by the DOS may be admitted under Sec. 235.1(f)
of this chapter if found otherwise admissible and if the biometric
identifier contained on the card matches the appropriate biometric
characteristic of the alien.
(ii) The bearer of a combination B-1/B-2 nonimmigrant visa and
border crossing card (or similar stamp in a passport) issued by DOS
prior to April 1, 1998, that does not contain a machine-readable
biometric identifier, may be admitted on the basis of the nonimmigrant
visa only, provided it has not expired and the alien remains otherwise
admissible. A passport is also required.
(iii) Any alien seeking admission as a visitor for business or
pleasure, must also present a valid passport with his or her border
crossing card, and shall be issued a Form I-94 if the alien is applying
for admission from:
(A) A country other than Mexico or Canada, or
(B) Canada if the alien has been in a country other than the United
States or Canada since leaving Mexico.
(c) Validity. Forms I-185, I-186, and I-586 are invalid on or after
October 1, 2002. If presented on or after that date, these documents
will be voided at the POE.
(d) Voidance for reasons other than expiration of the validity of
the form--(1) At a POE. (i) In accordance with 22 CFR 41.122, a Form
DSP-150 or combined B-1/B-2 visitor visa and non-biometric border
crossing identification card or (a similar stamp in a passport), issued
by the DOS, may be physically cancelled and voided by a supervisory
immigration officer at a POE if it is considered void pursuant to
section 222(g) of the Act when presented at the time of application for
admission, or as the alien departs the United States. If the card is
considered void and if the applicant for admission is not otherwise
subject to expedited removal in accordance with 8 CFR part 235, the
applicant shall be advised in writing that he or she may request a
hearing before an immigration judge. The purpose of the hearing shall be
to determine his/her admissibility in accordance with Sec. 235.6 of
this chapter. The applicant may be represented at this hearing by an
attorney of his/her own choice at no expense to the Government. He or
she shall also be advised of the availability of free legal services
provided by organizations and attorneys qualified under 8 CFR part 3,
and organizations recognized under Sec. 292.2 of this chapter located
in the district where the removal hearing is to be held. If the
applicant requests a hearing, the Form DSP-150 or combined B-1/B-2
visitor visa and non-biometric border crossing identification card (or
similar stamp in a passport), issued by the DOS, shall be held by the
Service for presentation to the immigration judge.
(ii) If the applicant chooses not to have a hearing, the Form DSP-
150 or combined B-1/B-2 visitor visa and non-biometric BCC (or similar
stamp in a passport) issued by the DOS, shall be voided and physically
cancelled. The alien to whom the card or stamp was issued by the DOS
shall be notified of the action taken and the reasons for such action by
means of Form I-275, Withdrawal of Application for Admission/Consular
Notification, delivered in person or by mailing the Form I-275 to the
last known address. The DOS shall be notified of the cancellation of the
biometric Form DSP-150 or combined B-1/B-2 visitor visa and non-
biometric BCC (or similar stamp in a passport) issued by DOS, by means
of a copy of the original Form I-275. Nothing in this paragraph limits
the Service's ability to remove an alien pursuant to 8 CFR part 235
where applicable.
(2) Within the United States. In accordance with former section 242
of the Act (before amended by section 306 of the IIRIRA of 1996, Div. C,
Public Law 104-208, 110 Stat. 3009 (Sept. 30, 1996,) or current sections
235(b), 238, and 240 of the Act, if the holder of a Form DSP-150, or
other combined B-1/B-2 visa and BCC, or (similar stamp in a passport)
issued by the DOS, is placed under removal proceedings, no action to
cancel the card or stamp shall be taken pending the outcome of the
hearing. If the alien is ordered removed or granted voluntary departure,
the card or stamp
[[Page 199]]
shall be physically cancelled and voided by an immigration officer. In
the case of an alien holder of a BCC who is granted voluntary departure
without a hearing, the card shall be declared void and physically
cancelled by an immigration officer who is authorized to issue a Notice
to Appear or to grant voluntary departure.
(3) In Mexico or Canada. Forms I-185, I-186 or I-586 issued by the
Service and which are now invalid, or a Form DSP-150 or combined B-1/B-2
visitor visa and non-biometric BCC, or (similar stamp in a passport)
issued by the DOS may be declared void by United States consular
officers or United States immigration officers in Mexico or Canada.
(4) Grounds. Grounds for voidance of a Form I-185, I-186, I-586, a
DOS-issued non-biometric BCC, or the biometric Form DSP-150 shall be
that the holder has violated the immigration laws; that he/she is
inadmissible to the United States; that he/she has abandoned his/her
residence in the country upon which the card was granted; or if the BCC
is presented for admission on or after October 1, 2002, it does not
contain a machine-readable biometric identifier corresponding to the
bearer and is invalid on or after October 1, 2002.
(e) Replacement. If a valid Border Crossing Card (Forms I-185, I-
186, or I-586) previously issued by the Service, a non-biometric border
crossing card issued by the DOS before April 1998, or a Form DSP-150
issued by the DOS has been lost, stolen, mutilated, or destroyed, the
person to whom the card was issued may apply for a new card as provided
for in the DOS regulations found at 22 CFR 41.32 and 22 CFR 41.103.
[67 FR 71448, Dec. 2, 2002 ]
Sec. 212.7 Waiver of certain grounds of inadmissibility.
(a) General--(1) Filing procedure--(i) Immigrant visa or K
nonimmigrant visa applicant. An applicant for an immigrant visa or ``K''
nonimmigrant visa who is inadmissible and seeks a waiver of
inadmissibility shall file an application on Form I-601 at the consular
office considering the visa application. Upon determining that the alien
is admissible except for the grounds for which a waiver is sought, the
consular officer shall transmit the Form I-601 to the Service for
decision.
(ii) Adjustment of status applicant. An applicant for adjustment of
status who is excludable and seeks a waiver under section 212(h) or (i)
of the Act shall file an application on Form I-601 with the director or
immigration judge considering the application for adjustment of status.
(iii) Parole authorization applicant under Sec. 245.15(t). An
applicant for parole authorization under Sec. 245.15(t) of this chapter
who is inadmissible and seeks a waiver under section 212(h) or (i) of
the Act must file an application on Form I-601 with the Director of the
Nebraska Service Center considering the Form I-131.
(iv) Parole authorization applicant under Sec. 245.13(k)(2) of this
chapter. An applicant for parole authorization under Sec. 245.13(k)(2)
of this chapter who is inadmissible and seeks a waiver under section
212(h) or (i) of the Act must file an application on Form I-601 with the
Director of the Texas Service Center adjudicating the Form I-131.
(2) Termination of application for lack of prosecution. An applicant
may withdraw the application at any time prior to the final decision,
whereupon the case will be closed and the consulate notified. If the
applicant fails to prosecute the application within a reasonable time
either before or after interview the applicant shall be notified that if
he or she fails to prosecute the application within 30 days the case
will be closed subject to being reopened at the applicant's request. If
no action has been taken within the 30-day period immediately
thereafter, the case will be closed and the appropriate consul notified.
(3) Decision. If the application is approved the director shall
complete Form I-607 for inclusion in the alien's file and shall notify
the alien of the decision. If the application is denied the applicant
shall be notified of the decision, of the reasons therefor, and of the
right to appeal in accordance with part 103 of this chapter.
(4) Validity. A waiver granted under section 212(h) or section
212(i) of the Act shall apply only to those grounds of excludability and
to those crimes,
[[Page 200]]
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;
(iii) The Service office having jurisdiction over the alien if the
alien is in the United States;
(iv) The Nebraska Service Center, if the alien is outside the United
States and seeking parole authorization under Sec. 245.15(t)(2) of this
chapter; or
(v) The Texas Service Center if the alien is outside the United
States and is seeking parole authorization under Sec. 245.13(k)(2) of
this chapter.
(3) Section 212(a)(6) (tuberculosis). If the alien is excludable
under section 212(a)(6) of the Act because of tuberculosis, he shall
execute Statement A on the reverse of page 1 of Form I-601. In addition,
he or his sponsor in the United States is responsible for having
Statement B executed by the physician or health facility which has
agreed to supply treatment or observation; and, if required, Statement C
shall be executed by the appropriate local or State health officer.
(4) Section 212(a) (1) or (3) (certain mental conditions)--(i)
Arrangements for submission of medical report. If the alien is
excludable under section 212(a) (1) or (3) (because of mental
retardation or because of a past history of mental illness) he or his
sponsoring family member shall submit an executed Form I-601 to the
consular or Service office with a statement that arrangements have been
made for the submission to that office of a medical report. The medical
report shall contain a complete medical history of the alien, including
details of any hospitalization or institutional care or treatment for
any physical or mental condition; findings as to the current physical
condition of the alien, including reports of chest X-ray examination and
of serologic test for syphilis if the alien is 15 years of age or over,
and other pertinent diagnostic tests; and findings as to the current
mental condition of the alien, with information as to prognosis and life
expectancy and with a report of a psychiatric examination conducted by a
psychiatrist who shall, in case of mental retardation, also provide an
evaluation of the alien's intelligence. For an alien with a past history
of mental illness, the medical report shall also contain available
information on which the U.S. Public Health Service can base a finding
as to whether the alien has been free of such mental illness for a
period of time sufficient in the light of such history to demonstrate
recovery. Upon receipt of the medical report, the consular or Service
[[Page 201]]
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 medical
education or training as of
[[Page 202]]
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 waiver recommendation. Only the
[[Page 203]]
Service, however, may grant or deny the waiver application. If granted,
such a waiver shall be subject to the terms and conditions imposed under
section 214(l) of the Act (as redesignated by section 671(a)(3)(A) of
Pub. L. 104-208). Although the alien is not required to submit a
separate waiver application to the Service, the burden rests on the
alien to establish eligibility for the waiver. If the Service approves a
waiver request made under Pub. L. 103-416, the foreign medical graduate
(and accompanying dependents) may apply for change of nonimmigrant
status, from J-1 to H-1B and, in the case of dependents of such a
foreign medical graduate, from J-2 to H-4. Aliens receiving waivers
under section 220 of Pub. L. 103-416 are subject, in all cases, to the
provisions of section 214(g)(1)(A) of the Act.
(i) Eligiblity criteria. J-1 foreign medical graduates (with
accompanying J-2 dependents) are eligible to apply for a waiver of the
2-year requirement under Pub. L. 103-416 based on a request by a State
Department of Public Health (or its equivalent) if:
(A) They were admitted to the United States under section
101(a)(15)(J) of the Act, or acquired J nonimmigrant status before June
1, 2002, to pursue graduate medical education or training in the United
States.
(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
[[Page 204]]
care facility and in the specified HHS-designated shortage area named in
the waiver application.
(iv) Failure to fulfill the three-year employment contract due to
extenuating circumstances. A foreign medical graduate who fails to meet
the terms and conditions imposed on the waiver under section 214(l) of
the Act and this paragraph will once again become subject to the 2-year
requirement under section 212(e) of the Act.
Under section 214(l)(1)(B) of the Act, however, the Service, in the
exercise of discretion, may excuse early termination of the foreign
medical graduate's 3-year period of employment with the health care
facility named in the waiver application due to extenuating
circumstances. Extenuating circumstances may include, but are not
limited to, closure of the health care facility or hardship to the
alien. In determining whether to excuse such early termination of
employment, the Service shall base its decision on the specific facts of
each case. In all cases, the burden of establishing eligibility for a
favorable exercise of discretion rests with the foreign medical
graduate. Depending on the circumstances, closure of the health care
facility named in the waiver application may, but need not, be
considered an extenuating circumstance excusing early termination of
employment. Under no circumstances will a foreign medical graduate be
eligible to apply for change of status to another nonimmigrant category,
for an immigrant visa or for status as a lawful permanent resident prior
to completing the requisite 3-year period of employment for a health
care facility located in an HHS-designated shortage area.
(v) Required evidence. A foreign medical graduate who seeks to have
early termination of employment excused due to extenuating circumstances
shall submit documentary evidence establishing such a claim. In all
cases, the foreign medical graduate shall submit an employment contract
with another health care facility located in an HHS-designated shortage
area for the balance of the required 3-year period of employment. A
foreign medical graduate claiming extenuating circumstances based on
hardship shall also submit evidence establishing that such hardship was
caused by unforeseen circumstances beyond his or her control. A foreign
medical graduate claiming extenuating circumstances based on closure of
the health care facility named in the waiver application shall also
submit evidence that the facility has closed or is about to be closed.
(vi) Notification requirements. A J-1 foreign medical graduate who
has been granted a waiver of the 2-year requirement pursuant to Pub. L.
103-416, is required to comply with the terms and conditions specified
in section 214(l) of the Act and the implementing regulations in this
section. If the foreign medical graduate subsequently applies for and
receives H-1B status, he or she must also comply with the terms and
conditions of that nonimmigrant status. Such compliance shall also
include notifying the Service of any material change in the terms and
conditions of the H-1B employment, by filing either an amended or a new
H-1B petition, as required, under Sec. Sec. 214.2(h)(2)(i)(D),
214.2(h)(2)(i)(E), and 214.2(h)(11) of this chapter.
(A) Amended H-1B petitions. The health care facility named in the
waiver application and H-1B petition shall file an amended H-1B
petition, as required under Sec. 214.2(h)(2)(i)(E) of this chapter, if
there are any material changes in the terms and conditions of the
beneficiary's employment or eligibility as specified in the waiver
application filed under Pub. L. 103-416 and in the subsequent H-1B
petition. In such a case, an amended H-1B petition shall be accompanied
by evidence that the alien will continue practicing medicine with the
original employer in an HHS-designated shortage area.
(B) New H-1B petitions. A health care facility seeking to employ a
foreign medical graduate who has been granted a waiver under Pub. L.
103-416 (prior to the time the alien has completed his or her 3-year
contract with the facility named in the waiver application and original
H-1B petition), shall file a new H-1B petition with the Service, as
required under Sec. Sec. 214.2(h)(2)(i) (D) and (E) of this chapter.
Although a new waiver application need not be filed, the new H-1B
petition shall be accompanied by
[[Page 205]]
the documentary evidence generally required under Sec. 214.2(h) of this
chapter, and the following additional documents:
(1) A copy of Form I-797 (and/or I-797A and I-797B) relating to the
waiver and nonimmigrant H status granted under Pub. L. 103-416;
(2) An explanation from the foreign medical graduate, with
supporting evidence, establishing that extenuating circumstances
necessitate a change in employment;
(3) An employment contract establishing that the foreign medical
graduate will practice medicine at the health care facility named in the
new H-1B petition for the balance of the required 3-year period; and
(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
[[Page 206]]
appeal. If the foreign country of the alien's nationality or last
residence has furnished statement in writing that it has no objection to
his/her being granted a waiver of the foreign residence requirement and
the Director, United States Information Agency has made a favorable
recommendation, the Director shall be notified of the decision and, if
the foreign residence requirement is not waived, of the reasons therefor
and of the foregoing right of appeal. However, this ``no objection''
provision is not applicable to the exchange visitor admitted to the
United States on or after January 10, 1977 to receive graduate medical
education or training, or who acquired such status on or after that date
for such purpose; except that the alien who commenced a program before
January 10, 1977 and who was readmitted to the United States on or after
that date to continue participation in the same program, is eligible for
the ``no objection'' waiver.
(d) Criminal grounds of inadmissibility involving violent or
dangerous crimes. The Attorney General, in general, will not favorably
exercise discretion under section 212(h)(2) of the Act (8 U.S.C.
1182(h)(2)) to consent to an application or reapplication for a visa, or
admission to the United States, or adjustment of status, with respect to
immigrant aliens who are inadmissible under section 212(a)(2) of the Act
in cases involving violent or dangerous crimes, except in extraordinary
circumstances, such as those involving national security or foreign
policy considerations, or cases in which an alien clearly demonstrates
that the denial of the application for adjustment of status or an
immigrant visa or admission as an immigrant would result in exceptional
and extremely unusual hardship. Moreover, depending on the gravity of
the alien's underlying criminal offense, a showing of extraordinary
circumstances might still be insufficient to warrant a favorable
exercise of discretion under section 212(h)(2) of the Act.
(Secs. 103, 203, 212 of the Immigration and Nationality Act, as amended
by secs. 4, 5, 18 of Pub. L. 97-116, 95 Stat. 1611, 1620, (8 U.S.C.
1103, 1153, 1182)
[29 FR 12584, Sept. 4, 1964]
Editorial Note: For Federal Register citations affecting Sec.
212.7, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 212.8 Certification requirement of section 212(a)(14).
(a) General. The certification requirement of section 212(a)(14) of
the Act applies to aliens seeking admission to the United States or
adjustment of status under section 245 of the Act for the purpose of
performing skilled or unskilled labor, who are preference immigrants as
described in section 203(a) (3) or (6) of the Act, or who are
nonpreference immigrants as described in section 203(a)(8). The
certification requirement shall not be applicable to a nonpreference
applicant for admission to the United States or to a nonpreference
applicant for adjustment of status under section 245 who establishes
that he will not perform skilled or unskilled labor. A native of the
Western Hemisphere who established a priority date with a consular
officer prior to January 1, 1977 and who was found to be entitled to an
exemption from the labor certification requirement of section 212(a)(14)
of the Act under the law in effect prior to January 1, 1977 as the
parent, spouse or child of a United States citizen or lawful permanent
resident alien shall continue to be exempt from that requirement for so
long as the relationship upon which the exemption is based continues to
exist.
(b) Aliens not required to obtain labor certifications. The
following persons are not considered to be within the purview of section
212(a)(14) of the Act and do not require a labor certification: (1) A
member of the Armed Forces of the United States; (2) a spouse or child
accompanying or following to join his spouse or parent who either has a
labor certification or is a nondependent alien who does not require such
a certification; (3) a female alien who intends to marry a citizen or
alien lawful permanent resident of the United States, who establishes
satisfactorily that she does not intend to seek employment in the United
States and whose fiance has guaranteed her support; (4) an alien who
establishes on Form I-526 that he
[[Page 207]]
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, if submittal is requested by the Service.
[31 FR 10021, July 23, 1966; 31 FR 10355, Aug. 22, 1966, as amended at
34 FR 5326, Mar. 18, 1969; 38 FR 31166, Nov. 12, 1973; 41 FR 37566,
Sept. 7, 1976; 41 FR 55850, Dec. 23, 1976; 47 FR 44990, Oct. 13, 1982;
48 FR 19157, Apr. 28, 1983]
Sec. 212.9 Applicability of section 212(a)(32) to certain derivative
third and sixth preference and nonpreference immigrants.
A derivative beneficiary who is the spouse or child of a qualified
third or sixth preference or nonpreference immigrant and who is also a
graduate of a medical school as defined by section 101(a)(41) of the Act
is not considered to be an alien who is coming to the United States
principally to perform services as a member of the medical profession.
Therefore, a derivative third or sixth preference or nonpreference
immigrant under section 203(a)(8) of the Act, who is also a graduate of
a medical school, is eligible for an immigrant visa or for adjustment of
status under section 245 of the Act, whether or not such derivative
immigrant has passed Parts I and II of the National Board of Medical
Examiners Examination or equivalent examination.
(Secs. 103, 203(a)(8), and 212(a)(32), 8 U.S.C 1103, 1153(a)(8), and
1182(a)(32))
[45 FR 63836, Sept. 26, 1980]
Sec. 212.10 Section 212(k) waiver.
Any applicant for admission who is in possession of an immigrant
visa, and who is excludable under sections 212(a)(14), (20), or (21) of
the Act, may apply to the district director at the port of entry for a
waiver under section 212(k) of the Act. If the application for waiver is
denied by the district director, the application may be renewed in
exclusion proceedings before an immigration judge as provided in part
236 of this chapter.
(Secs. 103, 203, 212 of the Immigration and Nationality Act, as amended
by secs. 4, 5, 18 of Pub. L. 97-116, 95 Stat. 1611, 1620, (8 U.S.C.
1103, 1153, 1182)
[47 FR 44236, Oct. 7, 1982]
Sec. 212.11 Controlled substance convictions.
In determining the admissibility of an alien who has been convicted
of a violation of any law or regulation of a State, the United States,
or a foreign country relating to a controlled substance, the term
controlled substance as used in section 212(a)(23) of the Act, shall
mean the same as that referenced in the Controlled Substances Act, 21
U.S.C. 801, et seq., and shall include any substance contained in
Schedules I through V of 21 CFR 1308.1, et seq. For the purposes of this
section, the term controlled substance includes controlled substance
analogues as defined in 21 U.S.C. 802(23) and 813.
[53 FR 9282, Mar. 22, 1988]
Sec. 212.12 Parole determinations and revocations respecting Mariel Cubans.
(a) Scope. This section applies to any native of Cuba who last came
to the United States between April 15, 1980, and October 20, 1980
(hereinafter referred to as Mariel Cuban) and who is being detained by
the Immigration and Naturalization Service (hereinafter referred to as
the Service) pending his or her exclusion hearing, or pending his or her
return to Cuba or to another country. It covers Mariel Cubans who have
never been paroled as well as those Mariel Cubans whose previous parole
has been revoked by the Service. It
[[Page 208]]
also applies to any Mariel Cuban, detained under the authority of the
Immigration and Nationality Act in any facility, who has not been
approved for release or who is currently awaiting movement to a Service
or Bureau Of Prisons (BOP) facility. In addition, it covers the
revocation of parole for those Mariel Cubans who have been released on
parole at any time.
(b) Parole authority and decision. The authority to grant parole
under section 212(d)(5) of the Act to a detained Mariel Cuban shall be
exercised by the Commissioner, acting through the Associate Commissioner
for Enforcement, as follows:
(1) Parole decisions. The Associate Commissioner for Enforcement
may, in the exercise of discretion, grant parole to a detained Mariel
Cuban for emergent reasons or for reasons deemed strictly in the public
interest. A decision to retain in custody shall briefly set forth the
reasons for the continued detention. A decision to release on parole may
contain such special conditions as are considered appropriate. A copy of
any decision to parole or to detain, with an attached copy translated
into Spanish, shall be provided to the detainee. Parole documentation
for Mariel Cubans shall be issued by the district director having
jurisdiction over the alien, in accordance with the parole determination
made by the Associate Commissioner for Enforcement.
(2) Additional delegation of authority. All references to the
Commissioner and Associate Commissioner for Enforcement in this section
shall be deemed to include any person or persons (including a committee)
designated in writing by the Commissioner or Associate Commissioner for
Enforcement to exercise powers under this section.
(c) Review Plan Director. The Associate Commissioner for Enforcement
shall appoint a Director of the Cuban Review Plan. The Director shall
have authority to establish and maintain appropriate files respecting
each Mariel Cuban to be reviewed for possible parole, to determine the
order in 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
[[Page 209]]
(vii) Any other information which is probative of whether the
detainee is likely to adjust to life in a community, is likely to engage
in future acts of violence, is likely to engage in future criminal
activity, or is likely to violate the conditions of his parole.
(4) Procedure for review. The following procedures will govern the
review process:
(i) Record review. Initially, the Director or a Panel shall review
the detainee's file. Upon completion of this record review, the Director
or the Panel shall issue a written recommendation that the detainee be
released on parole or scheduled for a personal interview.
(ii) Personal interview. If a recommendation to grant parole after
only a record review is not accepted or if the detainee is not
recommended for release, a Panel shall personally interview the
detainee. The scheduling of such interviews shall be at the discretion
of the Director. The detainee may be accompanied during the interview by
a person of his choice, who is able to attend at the time of the
scheduled interview, to assist in answering any questions. The detainee
may submit to the Panel any information, either orally or in writing,
which he believes presents a basis for release on parole.
(iii) Panel recommendation. Following completion of the interview
and its deliberations, the Panel shall issue a written recommendation
that the detainee be released on parole or remain in custody pending
deportation or pending further observation and subsequent review. This
written recommendation shall include a brief statement of the factors
which the Panel deems material to its recommendation. The recommendation
and appropriate file material shall be forwarded to the Associate
Commissioner for Enforcement, to be considered in the exercise of
discretion pursuant to Sec. 212.12(b).
(e) Withdrawal of parole approval. The Associate Commissioner for
Enforcement may, in his or her discretion, withdraw approval for parole
of any detainee prior to release when, in his or her opinion, the
conduct of the detainee, or any other circumstance, indicates that
parole would no longer be appropriate.
(f) Sponsorship. No detainee may be released on parole until
suitable sponsorship or placement has been found for the detainee. The
paroled detainee must abide by the parole conditions specified by the
Service in relation to his sponsorship or placement. The following
sponsorships and placements are suitable:
(1) Placement by the Public Health Service in an approved halfway
house or mental health project;
(2) Placement by the Community Relations Service in an approved
halfway house or community project; and
(3) Placement with a close relative such as a parent, spouse, child,
or sibling who is a lawful permanent resident or a citizen of the United
States.
(g) Timing of reviews. The timing of review shall be in accordance
with the following guidelines.
(1) Parole revocation cases. The Director shall schedule the review
process in the case of a new or returning detainee whose previous
immigration parole has been revoked. The review process will commence
with a scheduling of a file review, which will ordinarily be expected to
occur within approximately three months after parole is revoked. In the
case of a Mariel Cuban who is in the custody of the Service, the Cuban
Review Plan Director may, in his or her discretion, suspend or postpone
the parole review process if such detainee's prompt deportation is
practicable and proper.
(2) Continued detention cases. A subsequent review shall be
commenced for any detainee within one year of a refusal to grant parole
under Sec. 212.12(b), unless a shorter interval is specified by the
Director.
(3) Discretionary reviews. The Cuban Review Plan Director, in his
discretion, may schedule a review of a detainee at any time when the
Director deems such a review to be warranted.
(h) Revocation of parole. The Associate Commissioner for Enforcement
shall have authority, in the exercise of discretion, to revoke parole in
respect to Mariel Cubans. A district director may also revoke parole
when, in the district director's opinion, revocation
[[Page 210]]
is in the public interest and circumstances do not reasonably permit
referral of the case to the Associate Commissioner. Parole may be
revoked in the exercise of discretion when, in the opinion of the
revoking official:
(1) The purposes of parole have been served;
(2) The Mariel Cuban violates any condition of parole;
(3) It is appropriate to enforce an order of exclusion or to
commence proceedings against a Mariel Cuban; or
(4) The period of parole has expired without being renewed.
[52 FR 48802, Dec. 28, 1987, as amended at 59 FR 13870, Mar. 24, 1994;
65 FR 80294, Dec. 21, 2000]
Sec. 212.13 [Reserved]
Sec. 212.14 Parole determinations for alien witnesses and informants
for whom a law enforcement authority (``LEA'') will request S classification.
(a) Parole authority. Parole authorization under section 212(d)(5)
of the Act for aliens whom LEAs seek to bring to the United States as
witnesses or informants in criminal/counter terrorism matters and to
apply for S classification shall be exercised as follows:
(1) Grounds of eligibility. The Commissioner may, in the exercise of
discretion, grant parole to an alien (and the alien's family members)
needed for law enforcement purposes provided that a state or federal
LEA:
(i) Establishes its intention to file, within 30 days after the
alien's arrival in the United States, 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
[[Page 211]]
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
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]
Sec. 212.15 Certificates for foreign health care workers.
(a) General certification requirements. (1) Except as provided in
paragraph (b) or paragraph (d)(1) of this section, any alien who seeks
admission to the United States as an immigrant or as a nonimmigrant for
the primary purpose of performing labor in a health care occupation
listed in paragraph (c) of this section is inadmissible unless the alien
presents a certificate from a credentialing organization, listed in
paragraph (e) of this section.
(2) In the alternative, an eligible alien who seeks to enter the
United
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States for the primary purpose of performing labor as a nurse may
present a certified statement as provided in paragraph (h) of this
section.
(3) A certificate or certified statement described in this section
does not constitute professional authorization to practice in that
health care occupation.
(b) Inapplicability of the ground of inadmissibility. This section
does not apply to:
(1) Physicians;
(2) Aliens seeking admission to the United States to perform
services in a non-clinical health care occupation. A non-clinical care
occupation is one in which the alien is not required to perform direct
or indirect patient care. Occupations which are considered to be non-
clinical include, but are not limited to, medical teachers, medical
researchers, and managers of health care facilities;
(3) Aliens coming to the United States to receive training as an H-3
nonimmigrant, or receiving training as part of an F or J nonimmigrant
program.
(4) The spouse and dependent children of any immigrant or
nonimmigrant alien;
(5) Any alien applying for adjustment of status to that of a
permanent resident under any provision of law other than under section
245 of the Act, or any alien who is seeking adjustment of status under
section 245 of the Act on the basis of a relative visa petition approved
under section 203(a) of the Act, or any alien seeking adjustment of
status under section 245 of the Act on the basis of an employment-based
petition approved pursuant to section 203(b) of the Act for employment
that does not fall under one of the covered health care occupations
listed in paragraph (c) of this section.
(c) Covered health care occupations. With the exception of the
aliens described in paragraph (b) of this section, this paragraph (c)
applies to any alien seeking admission to the United States to perform
labor in one of the following health care occupations, regardless of
where he or she received his or her education or training:
(1) Licensed Practical Nurses, Licensed Vocational Nurses, and
Registered Nurses.
(2) Occupational Therapists.
(3) Physical Therapists.
(4) Speech Language Pathologists and Audiologists.
(5) Medical Technologists (Clinical Laboratory Scientists).
(6) Physician Assistants.
(7) Medical Technicians (Clinical Laboratory Technicians)
(d) Presentation of certificate or certified statements. (1) Aliens
required to obtain visas. Except as provided in paragraph (n) of this
section, if 8 CFR 212.1 requires an alien who is described in paragraph
(a) of this section and who is applying for admission as a nonimmigrant
seeking to perform labor in a health care occupation as described in
this section to obtain a nonimmigrant visa, the alien must present a
certificate or certified statement to a consular officer at the time of
visa issuance and to the Department of Homeland Security (DHS) at the
time of admission. The certificate or certified statement must be valid
at the time of visa issuance and admission at a port-of-entry. An alien
who has previously presented a foreign health care worker certification
or certified statement for a particular health care occupation will be
required to present it again at the time of visa issuance or each
admission to the United States.
(2) Aliens not requiring a nonimmigrant visa. Except as provided in
paragraph (n) of this section, an alien described in paragraph (a) of
this section who, pursuant to 8 CFR 212.1, is not required to obtain a
nonimmigrant visa to apply for admission to the United States must
present a certificate or certified statement as provided in this section
to an immigration officer at the time of initial application for
admission to the United States to perform labor in a particular health
care occupation. An alien who has previously presented a foreign health
care worker certification or certified statement for a particular health
care occupation will be required to present it again at the time of each
application for admission.
(e) Approved credentialing organizations for health care workers. An
alien may present a certificate from any
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credentialing organization listed in this paragraph (e) with respect to
a particular health care field. In addition to paragraphs (e)(1) through
(e)(3) of this section, the DHS will notify the public of additional
credentialing organizations through the publication of notices in the
Federal Register.
(1) The Commission on Graduates of Foreign Nursing Schools (CGFNS)
is authorized to issue certificates under section 212(a)(5)(C) of the
Act for nurses, physical therapists, occupational therapists, speech-
language pathologists and audiologists, medical technologists (also
known as clinical laboratory scientists), medical technicians (also
known as clinical laboratory technicians), and physician assistants.
(2) The National Board for Certification in Occupational Therapy
(NBCOT) is authorized to issue certificates in the field of occupational
therapy pending final adjudication of its credentialing status under
this part.
(3) The Foreign Credentialing Commission on Physical Therapy (FCCPT)
is authorized to issue certificates in the field of physical therapy
pending final adjudication of its credentialing status under this part.
(f) Requirements for issuance of health care certification. (1)
Prior to issuing a certification to an alien, the organization must
verify the following:
(i) That the alien's education, training, license, and experience
are comparable with that required for an American health care worker of
the same type;
(ii) That the alien's education, training, license, and experience
are authentic and, in the case of a license, unencumbered;
(iii) That the alien's education, training, license, and experience
meet all applicable statutory and regulatory requirements for admission
into the United States. This verification is not binding on the DHS; and
(iv) Either that the alien has passed a test predicting success on
the occupation's licensing or certification examination, provided such a
test is recognized by a majority of states licensing the occupation for
which the certification is issued, or that the alien has passed the
occupation's licensing or certification examination.
(2) A certificate issued under section 212(a)(5)(C) of the Act must
contain the following:
(i) The name, address, and telephone number of the credentialing
organization, and a point of contact to verify the validity of the
certificate;
(ii) The date the certificate was issued;
(iii) The health care occupation for which the certificate was
issued; and
(iv) The alien's name, and date and place of birth.
(g) English language requirements. (1) With the exception of those
aliens described in paragraph (g)(2) of this section, every alien must
meet certain English language requirements in order to obtain a
certificate. The Secretary of HHS has sole authority to set standards
for these English language requirements, and has determined that an
alien must have a passing score on one of the three tests listed in
paragraph (g)(3) of this section before he or she can be granted a
certificate. HHS will notify The Department of Homeland Security of
additions or deletions to this list, and The Department of Homeland
Security will publish such changes in the Federal Register.
(2) The following aliens are exempt from the English language
requirements:
(i) Alien nurses who are presenting a certified statement under
section 212(r) of the Act; and
(ii) Aliens who have graduated from a college, university, or
professional training school located in Australia, Canada (except
Quebec), Ireland, New Zealand, the United Kingdom, or the United States.
(3) The following English testing services have been approved by the
Secretary of HHS:
(i) Educational Testing Service (ETS).
(ii) Test of English in International Communication (TOEIC) Service
International.
(iii) International English Language Testing System (IELTS).
(4) Passing English test scores for various occupations.
(i) Occupational and physical therapists. An alien seeking to
perform labor
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in the United States as an occupational or physical therapist must
obtain the following scores on the English tests administered by ETS:
Test Of English as a Foreign Language (TOEFL): Paper-Based 560,
Computer-Based 220; Test of Written English (TWE): 4.5; Test of Spoken
English (TSE): 50. The certifying organizations shall not accept the
results of the TOEIC, or the IELTS for the occupation of occupational
therapy or physical therapy.
(ii) Registered nurses and other health care workers requiring the
attainment of a baccalaureate degree. An alien coming to the United
States to perform labor as a registered nurse (other than a nurse
presenting a certified statement under section 212(r) of the Act) or to
perform labor in another health care occupation requiring a
baccalaureate degree (other than occupational or physical therapy) must
obtain one of the following combinations of scores to obtain a
certificate:
(A) ETS: TOEFL: Paper-Based 540, Computer-Based 207; TWE: 4.0; TSE:
50;
(B) TOEIC Service International: TOEIC: 725; plus TWE: 4.0 and TSE:
50; or
(C) IELTS: 6.5 overall with a spoken band score of 7.0. This would
require the Academic module.
(iii) Occupations requiring less than a baccalaureate degree. An
alien coming to the United States to perform labor in a health care
occupation that does not require a baccalaureate degree must obtain one
of the following combinations of scores to obtain a certificate:
(A) ETS: TOEFL: Paper-Based 530, Computer-Based 197; TWE: 4.0; TSE:
50;
(B) TOEIC Service International: TOEIC: 700; plus TWE 4.0 and TSE:
50; or
(C) IELTS: 6.0 overall with a spoken band score of 7.0. This would
allow either the Academic or the General module.
(h) Alternative certified statement for certain nurses. (1) CGFNS is
authorized to issue certified statements under section 212(r) of the Act
for aliens seeking to enter the United States to perform labor as
nurses. The DHS will notify the public of new organizations that are
approved to issue certified statements through notices published in the
Federal Register.
(2) An approved credentialing organization may issue a certified
statement to an alien if each of the following requirements is
satisfied:
(i) The alien has a valid and unrestricted license as a nurse in a
state where the alien intends to be employed and such state verifies
that the foreign licenses of alien nurses are authentic and
unencumbered;
(ii) The alien has passed the National Council Licensure Examination
for registered nurses (NCLEX-RN);
(iii) The alien is a graduate of a nursing program in which the
language of instruction was English;
(iv) The nursing program was located in Australia, Canada (except
Quebec), Ireland, New Zealand, South Africa, the United Kingdom, or the
United States; or in any other country designated by unanimous agreement
of CGFNS and any equivalent credentialing organizations which have been
approved for the certification of nurses and which are listed at
paragraph (e) of this section; and
(v) The nursing program was in operation on or before November 12,
1999, or has been approved by unanimous agreement of CGFNS and any
equivalent credentialing organizations that have been approved for the
certification of nurses.
(3) An individual who obtains a certified statement need not comply
with the certificate requirements of paragraph (f) or the English
language requirements of paragraph (g) of this section.
(4) A certified statement issued to a nurse under section 212(r) of
the Act must contain the following information:
(i) The name, address, and telephone number of the credentialing
organization, and a point of contact to verify the validity of the
certified statement;
(ii) The date the certified statement was issued; and
(iii) The alien's name, and date and place of birth.
(i) Streamlined certification process--(1) Nurses. An alien nurse
who has graduated from an entry level program accredited by the National
League for Nursing Accreditation Commission
[[Page 215]]
(NLNAC) or the Commission on Collegiate Nursing Education (CCNE) is
exempt from the educational comparability review and English language
proficiency testing.
(2) Occupational Therapists. An alien occupational therapist who has
graduated from a program accredited by the Accreditation Council for
Occupational Therapy Education (ACOTE) of the American Occupational
Therapy Association (AOTA) is exempt from the educational comparability
review and English language proficiency testing.
(3) Physical therapists. An alien physical therapist who has
graduated from a program accredited by the Commission on Accreditation
in Physical Therapy Education (CAPTE) of the American Physical Therapy
Association (APTA) is exempt from the educational comparability review
and English language proficiency testing.
(4) Speech language pathologists and audiologists. An alien speech
language pathologists and/or audiologist who has graduated from a
program accredited by the Council on Academic Accreditation in Audiology
and Speech Language Pathology (CAA) of the American Speech-Language-
Hearing Association (ASHA) is exempt from the educational comparability
review and English language proficiency testing.
(j) Application process for credentialing organizations--(1)
Organizations other than CGFNS. An organization, other than CGFNS,
seeking to obtain approval to issue certificates to health care workers,
or certified statements to nurses shall submit Form I-905, Application
for Authorization to Issue Certification for Health Care Workers, and
all accompanying required evidence, to the Director, Nebraska Service
Center, in duplicate with the appropriate fee contained in 8 CFR
103.7(b)(1). An organization seeking authorization to issue certificates
or certified statements must agree to submit all evidence required by
the DHS and, upon request, allow the DHS to review the organization's
records related to the certification process. As required on Form I-905,
the application must:
(i) Clearly describe and identify the organization seeking
authorization to issue certificates;
(ii) List the occupations for which the organization desires to
provide certificates;
(iii) Describe how the organization substantially meets the
standards described at paragraph (k) of this section;
(iv) Describe the organization's expertise, knowledge, and
experience in the health care occupation(s) for which it desires to
issue certificates;
(v) Provide a point of contact;
(vi) Describe the verification procedure the organization has
designed in order for the DHS to verify the validity of a certificate;
and
(vii) Describe how the organization will process and issue in a
timely manner the certificates.
(2) Applications filed by CGFNS. (i) CGFNS shall submit Form I-905
to the Director, Nebraska Service Center, to ensure that it will be in
compliance with the regulations governing the issuance and content of
certificates to nurses, physical therapists, occupational therapists,
speech-language pathologists and audiologists, medical technologists
(also known as clinical laboratory scientists), medical technicians
(also known as clinical laboratory technicians), and physician
assistants under section 212(a)(5)(C) of the Act, or issuing certified
statements to nurses under section 212(r) of the Act.
(ii) Prior to issuing certificates for any other health care
occupations, CGFNS shall submit Form I-905, Application for
Authorization to Issue Certification for Health Care Workers, to the
Director, Nebraska Service Center with the appropriate fee contained in
8 CFR 103.7(b)(1) for authorization to issue such certificates. The DHS
will evaluate CGFNS' expertise with respect to the particular health
care occupation for which authorization to issue certificates is sought,
in light of CGFNS' statutory designation as a credentialing
organization.
(3) Procedure for review of applications by credentialing
organizations. (i) After receipt of Form I-905, the Director, Nebraska
Service Center shall, in all cases, forward a copy of the application
and supporting documents to the Secretary of HHS in order to obtain an
opinion on the merits of the application. The DHS will not render a
decision on the request until the Secretary
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of HHS provides an opinion. The DHS shall accord the Secretary of HHS'
opinion great weight in reaching its decision. The DHS may deny the
organization's request notwithstanding the favorable recommendation from
the Secretary of HHS, on grounds unrelated to the credentialing of
health care occupations or health care services.
(ii) The DHS will notify the organization of the decision on its
application in writing and, if the request is denied, of the reasons for
the denial. Approval of authorization to issue certificates to foreign
health care workers or certified statements to nurses will be made in 5-
year increments, subject to the review process described at paragraph
(l) of this section.
(iii) If the application is denied, the decision may be appealed
pursuant to 8 CFR 103.3 to the Associate Commissioner for Examinations.
(k) Standards for credentialing organizations. The DHS will evaluate
organizations, including CGFNS, seeking to obtain approval from the DHS
to issue certificates for health care workers, or certified statements
for nurses. Any organization meeting the standards set forth in
paragraph (k)(1) of this section can be eligible for authorization to
issue certificates. While CGFNS has been specifically listed in the
statute as an entity authorized to issue certificates, it is not exempt
from governmental oversight. All organizations will be reviewed,
including CGFNS, to guarantee that they continue to meet the standards
required of all certifying organizations, under the following:
(1) Structure of the organization. (i) The organization shall be
incorporated as a legal entity.
(ii)(A) The organization shall be independent of any organization
that functions as a representative of the occupation or profession in
question or serves as or is related to a recruitment/placement
organization.
(B) The DHS shall not approve an organization that is unable to
render impartial advice regarding an individual's qualifications
regarding training, experience, and licensure.
(C) The organization must also be independent in all decision making
matters pertaining to evaluations and/or examinations that it develops
including, but not limited to: policies and procedures; eligibility
requirements and application processing; standards for granting
certificates and their renewal; examination content, development, and
administration; examination cut-off scores, excluding those pertaining
to English language requirements; grievance and disciplinary processes;
governing body and committee meeting rules; publications about
qualifying for a certificate and its renewal; setting fees for
application and all other services provided as part of the screening
process; funding, spending, and budget authority related to the
operation of the certification organization; ability to enter into
contracts and grant arrangements; ability to demonstrate adequate
staffing and management resources to conduct the program(s) including
the authority to approve selection of, evaluate, and initiate dismissal
of the chief staff member.
(D) An organization whose fees are based on whether an applicant
receives a visa may not be approved.
(iii) The organization shall include the following representation in
the portion of its organization responsible for overseeing certification
and, where applicable, examinations:
(A) Individuals from the same health care discipline as the alien
health care worker being evaluated who are eligible to practice in the
United States; and
(B) At least one voting public member to represent the interests of
consumers and protect the interests of the public at large. The public
member shall not be a member of the discipline or derive significant
income from the discipline, its related organizations, or the
organization issuing the certificate.
(iv) The organization must have a balanced representation such that
the individuals from the same health care discipline, the voting public
members, and any other appointed individuals have an equal say in
matters relating to credentialing and/or examinations.
(v) The organization must select representatives of the discipline
using one
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of the following recommended methods, or demonstrate that it has a
selection process that meets the intent of these methods:
(A) Be selected directly by members of the discipline eligible to
practice in the United States;
(B) Be selected by members of a membership organization representing
the discipline or by duly elected representatives of a membership
organization; or
(C) Be selected by a membership organization representing the
discipline from a list of acceptable candidates supplied by the
credentialing body.
(vi) The organization shall use formal procedures for the selection
of members of the governing body that prohibit the governing body from
selecting a majority of its successors. Not-for-profit corporations
which have difficulty meeting this requirement may provide in their
applications evidence that the organization is independent, and free of
material conflicts of interest regarding whether an alien receives a
visa.
(vii) The organization shall be separate from the accreditation and
educational functions of the discipline, except for those entities
recognized by the Department of Education as having satisfied the
requirement of independence.
(viii) The organization shall publish and make available a document
which clearly defines the responsibilities of the organization and
outlines any other activities, arrangements, or agreements of the
organization that are not directly related to the certification of
health care workers.
(2) Resources of the organization. (i) The organization shall
demonstrate that its staff possess the knowledge and skills necessary to
accurately assess the education, work experience, licensure of health
care workers, and the equivalence of foreign educational institutions,
comparable to those of United States-trained health care workers and
institutions.
(ii) The organization shall demonstrate the availability of
financial and material resources to effectively and thoroughly conduct
regular and ongoing evaluations on an international basis.
(iii) If the health care field is one for which a majority of the
states require a predictor test, the organization shall demonstrate the
ability to conduct examinations in those countries with educational and
evaluation systems comparable to the majority of states.
(iv) The organization shall have the resources to publish and make
available general descriptive materials on the procedures used to
evaluate and validate credentials, including eligibility requirements,
determination procedures, examination schedules, locations, fees,
reporting of results, and disciplinary and grievance procedures.
(3) Candidate evaluation and testing mechanisms. (i) The
organization shall publish and make available a comprehensive outline of
the information, knowledge, or functions covered by the evaluation/
examination process, including information regarding testing for English
language competency.
(ii) The organization shall use reliable evaluation/examination
mechanisms to evaluate individual credentials and competence that is
objective, fair to all candidates, job related, and based on knowledge
and skills needed in the discipline.
(iii) The organization shall conduct ongoing studies to substantiate
the reliability and validity of the evaluation/examination mechanisms.
(iv) The organization shall implement a formal policy of periodic
review of the evaluation/examination mechanism to ensure ongoing
relevance of the mechanism with respect to knowledge and skills needed
in the discipline.
(v) The organization shall use policies and procedures to ensure
that all aspects of the evaluation/examination procedures, as well as
the development and administration of any tests, are secure.
(vi) The organization shall institute procedures to protect against
falsification of documents and misrepresentation, including a policy to
request each applicant's transcript(s) and degree(s) directly from the
educational licensing authorities.
(vii) The organization shall establish policies and procedures that
govern the length of time the applicant's records must be kept in their
original format.
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(viii) The organization shall publish and make available, at least
annually, a summary of all screening activities for each discipline
including, at least, the number of applications received, the number of
applicants evaluated, the number receiving certificates, the number who
failed, and the number receiving renewals.
(4) Responsibilities to applicants applying for an initial
certificate or renewal. (i) The organization shall not discriminate
among applicants as to age, sex, race, religion, national origin,
disability, or marital status and shall include a statement of
nondiscrimination in announcements of the evaluation/examination
procedures and renewal certification process.
(ii) The organization shall provide all applicants with copies of
formalized application procedures for evaluation/examination and shall
uniformly follow and enforce such procedures for all applicants.
Instructions shall include standards regarding English language
requirements.
(iii) The organization shall implement a formal policy for the
periodic review of eligibility criteria and application procedures to
ensure that they are fair and equitable.
(iv) Where examinations are used, the organization shall provide
competently proctored examination sites at least once annually.
(v) The organization shall report examination results to applicants
in a uniform and timely fashion.
(vi) The organization shall provide applicants who failed either the
evaluation or examination with information on general areas of
deficiency.
(vii) The organization shall implement policies and procedures to
ensure that each applicant's examination results are held confidential
and delineate the circumstances under which the applicant's
certification status may be made public.
(viii) The organization shall have a formal policy for renewing the
certification if an individual's original certification has expired
before the individual first seeks admission to the United States or
applies for adjustment of status. Such procedures shall be restricted to
updating information on licensure to determine the existence of any
adverse actions and the need to re-establish English competency.
(ix) The organization shall publish due process policies and
procedures for applicants to question eligibility determinations,
examination or evaluation results, and eligibility status.
(x) The organization shall provide all qualified applicants with a
certificate in a timely manner.
(5) Maintenance of comprehensive and current information. (i) The
organization shall maintain comprehensive and current information of the
type necessary to evaluate foreign educational institutions and
accrediting bodies for purposes of ensuring that the quality of foreign
educational programs is equivalent to those training the same occupation
in the United States. The organization shall examine, evaluate, and
validate the academic and clinical requirements applied to each
country's accrediting body or bodies, or in countries not having such
bodies, of the educational institution itself.
(ii) The organization shall also evaluate the licensing and
credentialing system(s) of each country or licensing jurisdiction to
determine which systems are equivalent to that of the majority of the
licensing jurisdictions in the United States.
(6) Ability to conduct examinations fairly and impartially. An
organization undertaking the administration of a predictor examination,
or a licensing or certification examination shall demonstrate the
ability to conduct such examination fairly and impartially.
(7) Criteria for awarding and governing certificate holders. (i) The
organization shall issue a certificate after the education, experience,
license, and English language competency have been evaluated and
determined to be equivalent to their United States counterparts. In
situations where a United States nationally recognized licensure or
certification examination, or a test predicting the success on the
licensure or certification examination, is offered overseas, the
applicant must pass the examination or the predictor test prior to
receiving certification. Passage of a test predicting the success on the
licensure or certification examination may be accepted only if a
majority of states (and Washington, DC) licensing
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the profession in which the alien intends to work recognize such a test.
(ii) The organization shall have policies and procedures for the
revocation of certificates at any time if it is determined that the
certificate holder was not eligible to receive the certificate at the
time that it was issued. If the organization revokes an individual's
certificate, it must notify the DHS, via the Nebraska Service Center,
and the appropriate state regulatory authority with jurisdiction over
the individual's health care profession. The organization may not
reissue a certificate to an individual whose certificate has been
revoked.
(8) Criteria for maintaining accreditation. (i) The organization
shall advise the DHS of any changes in purpose, structure, or activities
of the organization or its program(s).
(ii) The organization shall advise the DHS of any major changes in
the evaluation of credentials and examination techniques, if any, or in
the scope or objectives of such examinations.
(iii) The organization shall, upon the request of the DHS, submit to
the DHS, or any organization designated by the DHS, information
requested of the organization and its programs for use in investigating
allegations of non-compliance with standards and for general purposes of
determining continued approval as an independent credentialing
organization.
(iv) The organization shall establish performance outcome measures
that track the ability of the certificate holders to pass United States
licensure or certification examinations. The purpose of the process is
to ensure that certificate holders pass United States licensure or
certification examinations at the same pass rate as graduates of United
States programs. Failure to establish such measures, or having a record
showing an inability of persons granted certificates to pass United
States licensure examinations at the same rate as graduates of United
States programs, may result in a ground for termination of approval.
Information regarding the passage rates of certificate holders shall be
maintained by the organization and provided to HHS on an annual basis,
to the DHS as part of the 5-year reauthorization application, and at any
other time upon request by HHS or the DHS.
(v) The organization shall be in ongoing compliance with other
policies specified by the DHS.
(l) DHS review of the performance of certifying organizations. The
DHS will review credentialing organizations every 5 years to ensure
continued compliance with the standards described in this section. Such
review will occur concurrent with the adjudication of a Form I-905
requesting reauthorization to issue health care worker certificates. The
DHS will notify the credentialing organization in writing of the results
of the review and request for reauthorization. The DHS may conduct a
review of the approval of any request for authorization to issue
certificates at any time within the 5-year period of authorization for
any reason. If at any time the DHS determines that an organization is
not complying with the terms of its authorization or if other adverse
information relating to eligibility to issue certificates is developed,
the DHS may initiate termination proceedings.
(m) Termination of certifying organizations. (1) If the DHS
determines that an organization has been convicted, or the directors or
officers of an authorized credentialing organization have individually
been convicted of the violation of state or federal laws, or other
information is developed such that the fitness of the organization to
continue to issue certificates or certified statements is called into
question, the DHS shall automatically terminate authorization for that
organization to issue certificates or certified statements by issuing to
the organization a notice of termination of authorization to issue
certificates to foreign health care workers. The notice shall reference
the specific conviction that is the basis of the automatic termination.
(2) If the DHS determines that an organization is not complying with
the terms of its authorization or other adverse information relating to
eligibility to issue certificates is uncovered during the course of a
review or otherwise brought to the DHS' attention, or if the DHS
determines that an organization currently authorized to issue
certificates or certified statements has
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not submitted an application or provided all information required on
Form I-905 within 6 months of July 25, 2003, the DHS will issue a Notice
of Intent to Terminate authorization to issue certificates to the
credentialing organization. The Notice shall set forth reasons for the
proposed termination.
(i) The credentialing organization shall have 30 days from the date
of the Notice of Intent to Terminate authorization to rebut the
allegations, or to cure the noncompliance identified in the DHS's notice
of intent to terminate.
(ii) DHS will forward to HHS upon receipt any information received
in response to a Notice of Intent to Terminate an entity's authorization
to issue certificates. Thirty days after the date of the Notice of
Intent to Terminate, the DHS shall forward any additional evidence and
shall request an opinion from HHS regarding whether the organization's
authorization should be terminated. The DHS shall accord HHS' opinion
great weight in determining whether the authorization should be
terminated. After consideration of the rebuttal evidence, if any, and
consideration of HHS' opinion, the DHS will promptly provide the
organization with a written decision. If termination of credentialing
status is made, the written decision shall set forth the reasons for the
termination.
(3) An adverse decision may be appealed pursuant to 8 CFR 103.3 to
the Associate Commissioner for Examinations. Termination of
credentialing status shall remain in effect until and unless the
terminated organization reapplies for credentialing status and is
approved, or its appeal of the termination decision is sustained by the
Administrative Appeals Office. There is no waiting period for an
organization to re-apply for credentialing status.
(n) Transition--(1) One year waiver. Under the discretion given to
the Secretary, DHS, under section 212(d)(3) of the Act (and, for cases
described in paragraph (d)(1) of this section, upon the recommendation
of the Secretary of State), the Secretary has determined that until July
26, 2004 the DHS shall, subject to the conditions in paragraph (n)(2) of
this section, exercise favorably the discretion given to the Secretary
under section 212(d)(3) of the Act and may admit, extend the period of
authorized stay, or change the nonimmigrant status of an alien described
in paragraph (d)(1) or paragraph (d)(2) of this section to the United
States temporarily, despite the alien's inadmissibility under section
212(a)(5)(C) of the Act and paragraph (a) of this section in any case,
if the DHS admits the alien, or extends the alien's period of authorized
stay, or changes the alien's status on or before July 26, 2004; and the
alien is not inadmissible under any other provision of section 212(a) of
the Act (or has obtained a waiver of that inadmissibility). On or after
July 26, 2004, such discretion shall be applied on a case by case basis.
(2) Conditions. Until July 26, 2004, the temporary admission,
extension of stay, or change of status of an alien described in
paragraph (d)(1) or (d)(2) of this section that is provided for under
this paragraph (n) is subject to the following conditions:
(i) The admission, extension of stay, or change of status may not be
for a period longer than 1 year from the date of the decision, even if
the relevant provision of 8 CFR 214.2 would ordinarily permit the
alien's admission for a longer period;
(ii) The alien must obtain the certification required by paragraph
(a) of this section within 1 year of the date of decision to admit the
alien or to extend the alien's stay or change the alien's status; and,
(iii) Any subsequent petition or application to extend the period of
the alien's authorized stay or change the alien's nonimmigrant status
must include proof that the alien has obtained the certification
required by paragraph (a) of this section, if the extension or stay or
change of status is sought for the primary purpose of the alien's
performing labor in a health care occupation listed in paragraph (c) of
this section.
(3) Immigrant aliens. An alien described in paragraph (a) of this
section, who is coming to the United States as an immigrant or is
applying for adjustment of status pursuant to section 245 of the Act (8
U.S.C. 1255), to perform labor in a health care occupation described in
paragraph (c) of this section,
[[Page 221]]
must submit the certificate or certified statement as provided in this
section at the time of visa issuance or adjustment of status.
(4) Expiration of certificate or certified statement. The
individual's certification or certified statement must be used for any
admission into the United States, change of status within the United
States, or adjustment of status within 5 years of the date that it is
issued.
(5) Revocation of certificate or certified statement. When a
credentialing organization notifies the DHS, via the Nebraska Service
Center, that an individual's certification or certified statement has
been revoked, the DHS will take appropriate action, including, but not
limited to, revocation of approval of any related petitions, consistent
with the Act and DHS regulations at 8 CFR 205.2, 8 CFR
214.2(h)(11)(iii), and 8 CFR 214.6(d)(5)(iii).
[68 FR 43915, July 25, 2003]
Sec. 212.16 Applications for exercise of discretion relating to T
nonimmigrant status.
(a) Filing the waiver application. An alien applying for the
exercise of discretion under section 212(d)(13) or (d)(3)(B) of the Act
(waivers of inadmissibility) in connection with an application for T
nonimmigrant status shall submit Form I-192, with the appropriate fee in
accordance with Sec. 103.7(b)(1) of this chapter or an application for
a fee waiver, to the Service with the completed Form I-914 application
package for status under section 101(a)(15)(T)(i) of the Act.
(b) Treatment of waiver application. (1) The Service shall determine
whether a ground of inadmissibility exists with respect to the alien
applying for T nonimmigrant status. If a ground of inadmissibility is
found, the Service shall determine if it is in the national interest to
exercise discretion to waive the ground of inadmissibility, except for
grounds of inadmissibility based upon sections 212(a)(3), 212(a)(10)(C)
and 212(a)(10)(E) of the Act, which the Commissioner may not waive.
Special consideration will be given to the granting of a waiver of a
ground of inadmissibility where the activities rendering the alien
inadmissible were caused by or incident to the victimization described
under section 101(a)(15)(T)(i) of the Act.
(2) In the case of applicants inadmissible on criminal and related
grounds under section 212(a)(2) of the Act, the Service will only
exercise its discretion in exceptional cases unless the criminal
activities rendering the alien inadmissible were caused by or were
incident to the victimization described under section 101(a)(15)(T)(i)
of the Act.
(3) An application for waiver of a ground of inadmissibility for T
nonimmigrant status (other than under section 212(a)(6) of the Act) will
be granted only in exceptional cases when the ground of inadmissibility
would prevent or limit the ability of the applicant to adjust to
permanent resident status after the conclusion of 3 years.
(4) The Service shall have sole discretion to grant or deny a
waiver, and there shall be no appeal of a decision to deny a waiver.
However, nothing in this paragraph (b) is intended to prevent an
applicant from re-filing a request for a waiver of a ground of
inadmissibility in appropriate cases.
(c) Incident to victimization. When an applicant for status under
section 101(a)(15)(T) of the Act seeks a waiver of a ground of
inadmissibility under section 212(d)(13) of the Act on grounds other
than those described in sections 212(a)(1) and (a)(4) of the Act, the
applicant must establish that the activities rendering him or her
inadmissible were caused by, or were incident to, the victimization
described in section 101(a)(15)(T)(i)(I) of the Act.
(d) Revocation. The Commissioner may at any time revoke a waiver
previously authorized under section 212(d) of the Act. Under no
circumstances shall the alien or any party acting on his or her behalf
have a right to appeal from a decision to revoke a waiver.
[67 FR 4795, Jan. 31, 2002]
PART 213_ADMISSION OF ALIENS ON GIVING BOND OR CASH DEPOSIT--Table of Contents
Authority: 8 U.S.C. 1103; 8 CFR part 2.
[[Page 222]]
Sec. 213.1 Admission under bond or cash deposit.
The district director having jurisdiction over the intended place of
residence of an alien may accept a public charge bond prior to the
issuance of an immigrant visa to the alien upon receipt of a request
directly from a United States consular officer or upon presentation by
an interested person of a notification from the consular officer
requiring such a bond. Upon acceptance of such a bond, the district
director shall notify the U.S. consular officer who requested the bond,
giving the date and place of acceptance and the amount of the bond. The
district director having jurisdiction over the place where the
examination for admission is being conducted or the special inquiry
officer to whom the case is referred may exercise the authority
contained in section 213 of the Act. All bonds and agreements covering
cash deposits given as a condition of admission of an alien under
section 213 of the Act shall be executed on Form I-352 and shall be in
the sum of not less than $1,000. The officer accepting such deposit
shall give his receipt therefor on Form I-305. For procedures relating
to bond riders, acceptable sureties, cancellation or breaching of bonds,
see Sec. 103.6 of this chapter.
[29 FR 10579, July 30, 1964, as amended at 32 FR 9626, July 4, 1967; 62
FR 10349, Mar. 6, 1997]
PART 213a_AFFIDAVITS OF SUPPORT ON BEHALF OF IMMIGRANTS--Table of Contents
Sec.
213a.1 Definitions.
213a.2 Use of affidavit of support.
213a.3 Notice of change of address.
213a.4 Actions for reimbursement, public notice, and congressional
reports.
213a.5 Relationship of this part to other affidavits of support.
Authority: 8 U.S.C. 1183a; 8 CFR part 2.
Source: 62 FR 54352, Oct. 20, 1997, unless otherwise noted.
Sec. 213a.1 Definitions.
As used in this part, the term:
Domicile means the place where a sponsor has a residence, as defined
in section 101(a)(33) of the Act, in the United States, with the
intention to maintain that residence for the foreseeable future,
provided, that a permanent resident who is living abroad temporarily
shall be considered to be domiciled in the United States if the
permanent resident has applied for and obtained the preservation of
residence benefit under section 316(b) or section 317 of the Act, and
provided further, that a citizen who is living abroad temporarily shall
be considered to be domiciled in the United States if the citizen's
employment abroad meets the requirements of section 319(b)(1) of the
Act.
Federal poverty line means the level of income equal to the poverty
guidelines as issued by the Secretary of Health and Human Services in
accordance with 42 U.S.C. 9902 that is applicable to a household of the
size involved. For purposes of considering the Form I-864, Affidavit of
Support Under Section 213A of the Act, the Service and Consular Posts
will use the most recent income-poverty guidelines published in the
Federal Register by the Department of Health and Human Services. These
guidelines are updated annually, and the Service and Consular Posts will
begin to use updated guidelines on the first day of the second month
after the date the guidelines are published in the Federal Register.
Household income means the income used to determine whether the
sponsor meets the minimum income requirements under sections
213A(f)(1)(E), 213A(f)(3), or 213A(f)(5) of the Act. It includes the
sponsor's income and may also include the incomes of any individuals who
either are related to the sponsor by birth, marriage, or adoption and
have been living in the sponsor's residence for the previous 6 months or
are lawfully listed as dependents on the sponsor's Federal income tax
return for the most recent tax year, even if such dependents do not live
at the same residence as the sponsor.
Household size means the number obtained by adding: (1) The sponsor
and all persons living at the same residence with the sponsor who are
related to the sponsor by birth, marriage, or adoption; (2) all persons
whom the sponsor has claimed as a dependent on the sponsor's Federal
income tax return for
[[Page 223]]
the most recent tax year, even if such persons do not live at the same
residence as the sponsor; and (3) the number of aliens the sponsor has
sponsored under any prior Forms I-864 for whom the sponsor's support
obligation has not terminated, plus the number of aliens to be sponsored
under the current Form I-864, even if such aliens do not or will not
live at the same residence as the sponsor.
Immigration Officer, solely for purposes of this part, includes a
Consular Officer, as defined by section 101(a)(9) of the Act, as well as
an Immigration Officer, as defined by Sec. 103.1(j) of this chapter.
Income means an individual's gross income, for purposes of the
individual's Federal income tax liability, including a joint income tax
return.
Intending immigrant means any beneficiary of an immigrant visa
petition filed under section 204 of the Act, including any alien who
will accompany or follow-to-join the principal beneficiary.
Means-tested public benefit means either a Federal means-tested
public benefit, which is any public benefit funded in whole or in part
by funds provided by the Federal Government that the Federal agency
administering the Federal funds has determined to be a Federal means-
tested public benefit under the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, Public Law 104-193, or a State
means-tested public benefit, which is any public benefit for which no
Federal funds are provided that a State, State agency, or political
subdivision of a State has determined to be a means-tested public
benefit. No benefit shall be considered to be a means-tested public
benefit if it is a benefit described in sections 401(b), 411(b), 422(b)
or 423(d) of Public Law 104-193.
Program official means the officer or employee of any Federal,
State, or local government agency or of any private agency that
administers any means-tested public benefit program who has authority to
act on the agency's behalf in seeking reimbursement of means-tested
public benefits.
Relative means a husband, wife, father, mother, child, adult son,
adult daughter, brother, or sister.
Significant ownership interest means an ownership interest of 5
percent or more in a for-profit entity that filed an immigrant visa
petition to accord a prospective employee an immigrant status under
section 203(b) of the Act.
Sponsor means a person who either is eligible to execute or has
executed an affidavit of support under this part.
Sponsored immigrant means an immigrant on whose behalf a sponsor has
executed an affidavit of support under this part, including any spouse
or child who will accompany or follow-to-join the beneficiary of an
immigrant visa petition filed by a sponsor.
Sec. 213a.2 Use of affidavit of support.
(a) General. (1) In any case specified in paragraph (a)(2) of this
section, an intending immigrant is inadmissible as an alien likely to
become a public charge, unless a sponsor has executed on behalf of the
intending immigrant a Form I-864, Affidavit of Support Under Section
213A of the Act, in accordance with section 213A of the Act, this
section, and the instructions on Form I-864. An affidavit of support is
executed when a sponsor signs a Form I-864 before a notary public or an
Immigration or Consular Officer and that form I-864 is submitted to an
Immigration or Consular officer. The sponsor must execute a separate
affidavit of support for each visa petition beneficiary and for each
alien who will accompany or follow-to-join a visa petition beneficiary.
For any spouse or children immigrating with a sponsored immigrant, the
sponsor may execute an affidavit of support by submitting photocopies of
the Form I-864 and all accompanying documentation, but each photocopy of
the Form I-864 must have an original signature. Under this rule, a
spouse or child is immigrating with a sponsored immigrant if he or she
is listed in Part 3 of Form I-864 and applies for an immigrant visa or
adjustment of status within 6 months of the date the Form I-864 is
originally signed. The signature on the Form I-864, including
photocopies, must be notarized by a notary public or signed before an
Immigration or Consular Officer.
(2)(i) Except for cases specified in paragraph (a)(2)(ii) of this
section, paragraph (a)(1) of this section applies
[[Page 224]]
to any application for an immigrant visa or for adjustment of status
filed on or after December 19, 1997, in which an intending immigrant
seeks an immigrant visa, admission as an immigrant, or adjustment of
status as:
(A) An immediate relative under section 201(b)(2)(A)(i) of the Act;
(B) A family-based immigrant under section 203(a) of the Act; or
(C) An employment-based immigrant under section 203(b) of the Act,
if a relative of the intending immigrant either filed the employment-
based immigrant petition or has a significant ownership interest in the
entity that filed the immigrant visa petition on behalf of the intending
immigrant.
(ii) Paragraph (a)(1) of this section shall not apply if the
intending immigrant:
(A) Filed a visa petition on his or her own behalf pursuant to
section 204(a)(1)(A)(ii), (iii), or (iv) or section 204(a)(1)(B)(ii) or
(iii) of the Act, or who seeks to accompany or follow-to-join an
immigrant who filed a visa petition on his or his own behalf pursuant to
section 204(a)(1)(A)(ii), (iii), or (iv) or section 204(a)(1)(B)(ii) or
(iii) of the Act; or
(B) Seeks admission as an immigrant on or after December 19, 1997,
in a category specified in paragraph (a)(2)(i) of this section with an
immigrant visa issued before December 19, 1997.
(b) Affidavit of support sponsors. The following individuals must
execute Form I-864 on behalf of the intending immigrant in order for the
intending immigrant to be found admissible on public charge grounds:
(1) For immediate relatives and family-based immigrants. The person
who filed the immigrant visa petition, the approval of which forms the
basis of the intending immigrant's eligibility to apply for an immigrant
visa or adjustment of status as an immediate relative or as a family-
sponsored immigrant, must execute a Form I-864 on behalf of the
intending immigrant.
(2) For employment-based immigrants. A relative of an intending
immigrant seeking an immigrant visa under section 203(b) of the Act who
either filed the immigrant visa petition on behalf of the intending
immigrant or owns a significant ownership interest in an entity that
filed an immigrant visa petition on behalf of the intending immigrant.
(c) Sponsorship requirements--(1) General. A sponsor must:
(i) Be at least 18 years of age;
(ii) Be domiciled in the United States or any territory or
possession of the United States; and
(iii)(A) Be a citizen of the United States or an alien lawfully
admitted for permanent residence in the case described in paragraph
(a)(2)(i)(A) or (B) of this section; or
(B) Be a citizen or national of the United States or an alien
lawfully admitted for permanent residence in the case described in
paragraph (a)(2)(i)(C) of this section or if the individual is a joint
sponsor.
(2) Demonstration of ability to support sponsored immigrants. In
order for the intending immigrant to overcome the public charge ground
of inadmissibility, the sponsor must demonstrate the means to maintain
an annual income of at least 125 percent of the Federal poverty line. If
the sponsor is on active duty in the Armed Forces of the United States
(other than active duty for training) and the intending immigrant is the
sponsor's spouse or child, the sponsor's income must equal at least 100
percent of the Federal poverty line.
(i) Proof of income. (A) The sponsor must file with the Form I-864 a
copy of his or her Federal income tax returns for each of the 3 most
recent taxable years, if he or she had a legal duty to file. By
executing Form I-864, the sponsor certifies under penalty of perjury
under United States law that each return is a true and correct copy of
the return that the sponsor filed with the Internal Revenue Service for
that taxable year.
(B) If the sponsor had no legal duty to file a Federal income tax
return for any of the 3 most recent tax years, the sponsor must explain
why he or she had no legal duty to a file a Federal income tax return
for each year for which no Federal income tax return is available. If
the sponsor had no legal obligation to file a Federal income tax return,
he or she may submit other evidence of annual income.
[[Page 225]]
(C)(1) The sponsor's ability to meet the income requirement will be
determined based on the sponsor's household income. The sponsor may rely
entirely on his or her own income as his or her household income if it
is sufficient to meet the requirement. If needed, the sponsor may
include in his or her household income the incomes of other individuals
if they either are related to the sponsor by birth, marriage, or
adoption and have been living in the sponsor's residence for the
previous 6 months or are lawfully listed as dependents on the sponsor's
Federal income tax return for the most recent tax year. In order for the
Immigration Officer or Consular Officer to consider the income of any of
these individuals, the sponsor must include with the Form I-864 a
written contract on Form I-864A between the sponsor and each other
individual on whose income the sponsor seeks to rely.
Under this written contract each other individual must agree, in
consideration of the sponsor's signing of the Form I-864, to provide to
the sponsor as much financial assistance as may be necessary to enable
the sponsor to maintain the sponsored immigrants at the annual income
level required by section 213A(a)(1)(A) of the Act, to be jointly and
severally liable for any reimbursement obligation that the sponsor may
incur, and to submit to the personal jurisdiction of any court that has
subject matter jurisdiction over a civil suit to enforce the contract or
the affidavit of support. The sponsor, as a party to the contract, may
bring suit to enforce the contract. The sponsored immigrants and any
Federal, State, or local agency or private entity that provides a means-
tested public benefit to a sponsored immigrant are third party
beneficiaries of the contract between the sponsor and the other
individual or individuals on whose income the sponsor relies and may
bring an action to enforce the contract in the same manner as third
party beneficiaries of other contracts. If there is no spouse or child
immigrating with the sponsored immigrant, then there will be no need for
the sponsored immigrant to sign a Form I-864A, even if the sponsor will
rely on the income of the sponsored immigrant to meet the income
requirement. If, however, the sponsor seeks to rely on a sponsored
immigrant's income to establish the sponsor's ability to support the
sponsored immigrant's spouse or children, then the sponsored immigrant
whose income is to be relied on must sign the Form I-864A.
(2) If the sponsor relies on the income of any other individual, the
sponsor must also attach that individual's Federal income tax returns
for each of the 3 most recent tax years. That individual must certify,
under penalty of perjury, on Form I-864A that each tax return submitted
is a true and correct copy of the Federal income tax return filed with
the Internal Revenue Service. If that individual has no legal obligation
to file a Federal income tax return, he or she must explain and submit
other evidence of annual income. If the individual whose income the
sponsor will rely on is not lawfully claimed as a dependent on the
sponsor's Federal income tax return for the most recent tax year, then
the sponsor must also attach proof of the relationship between the
sponsor and that individual and proof of residency in the sponsor's
residence during at least the preceding 6 months.
(ii) Proof of employment or self-employment. The sponsor must attach
evidence of current employment which provides the sponsor's salary or
wage, or evidence of current self employment. If the sponsor is
unemployed or retired, the sponsor must state the length of his or her
unemployment or retirement. The same information must be provided for
any other person whose income is used to qualify under this section.
(iii) Determining the sufficiency of an affidavit of support. The
sufficiency of an affidavit of support shall be determined in accordance
with this paragraph.
(A) Income. The sponsor shall first calculate the total income
attributable to the sponsor under paragraph (c)(2)(i)(C) of this
section.
(B) Number of persons to be supported. The sponsor shall then
determine his or her household size as defined in Sec. 213a.1.
[[Page 226]]
(C) Sufficiency of Income. The sponsor's income shall be considered
sufficient if the household income calculated under paragraph
(c)(2)(iii)(A) of this section would equal at least 125 percent of the
Federal poverty line for the sponsor's household size as defined in
Sec. 213a.1, except that the sponsor's income need only equal at least
100 percent of the Federal poverty line for the sponsor's household
size, if the sponsor is on active duty (other than for training) in the
Armed Forces of the United States and the intending immigrant is the
sponsor's spouse or child.
(iv) Inability to meet income requirement. If the sponsor is unable
to meet the minimum income requirement in paragraph (c)(2)(iii) of this
section, the intending immigrant is inadmissible unless the sponsor and/
or the intending immigrant demonstrates significant assets or a joint
sponsor executes a separate Form I-864.
(A) Significant assets. The sponsor may submit evidence of the
sponsor's ownership of significant assets, such as savings accounts,
stocks, bonds, certificates of deposit, real estate, or other assets. A
sponsored immigrant may submit evidence of the sponsored immigrant's
assets as a part of the affidavit of support, even if the sponsored
immigrant is not required to sign a Form I-864A. The assets of any
person who has signed a Form I-864A will also be considered in
determining whether the assets are sufficient to meet this requirement.
The combined cash value of all the assets (the total value of the assets
less any offsetting liabilities) must exceed five times the difference
between the sponsor's household income and the Federal poverty line for
the sponsor's household size (including all immigrants sponsored in any
affidavit of support in force under this section).
(B) Joint sponsor. A joint sponsor must execute a separate Form I-
864 on behalf of the intending immigrant(s) and be willing to accept
joint and several liability with the sponsor. A joint sponsor must meet
the eligibility requirements under paragraph (c)(1) of this section. A
joint sponsor's household income must meet or exceed the income
requirement in paragraph (c)(2)(iii) of this section unless the joint
sponsor can demonstrate significant assets as provided in paragraph
(c)(2)(iv)(A) of this section.
(v) Immigration or Consular Officer's determination of insufficient
income and/or assets. Notwithstanding paragraphs (c)(2)(iii)(C) and
(c)(2)(iv) (A) and (B) of this section, an Immigration Officer or
Consular Officer may determine the income and/or assets of the sponsor
or a joint sponsor to be insufficient if the Immigration Officer or
Consular Officer determines, based on the sponsor's or joint sponsor's
employment situation, income for the previous 3 years, assets, or
receipt of welfare benefits, that the sponsor or joint sponsor cannot
maintain his or her income at the required level.
(vi) Verification of employment, income and assets. The Government
may pursue verification of any information provided on or with Form I-
864, including information on employment, income, or assets, with the
employer, financial or other institutions, the Internal Revenue Service,
or the Social Security Administration.
(vii) Effect of fraud or material concealment or misrepresentation.
If the Consular Officer or Immigration Officer finds that the sponsor or
joint sponsor has concealed or misrepresented facts concerning income,
or household size, or any other material fact, the Consular Officer or
Immigration Officer shall conclude that the affidavit of support is not
sufficient to establish that the sponsored immigrant is not likely to
become a public charge, and the sponsor or joint sponsor may be liable
for criminal prosecution under the laws of the United States.
(d) Legal effect of affidavit of support. Execution of a Form I-864
under this section creates a contract between the sponsor and the U.S.
Government for the benefit of the sponsored immigrant, and of any
Federal, State, or local governmental agency or private entity that
administers any means-tested public benefits program. The sponsored
immigrant, or any Federal, State, or local governmental agency or
private entity that provides any means-tested public benefit to the
sponsored immigrant after the sponsored immigrant acquires permanent
resident status, may seek enforcement
[[Page 227]]
of the sponsor's obligations through an appropriate civil action.
(e) Termination of support obligation. (1)(i) The sponsor's support
obligation with respect to a sponsored immigrant terminates by operation
of law when the sponsored immigrant:
(A) Becomes a citizen of the United States;
(B) Has worked, or can be credited with, 40 qualifying quarters of
work; provided, that the sponsored immigrant is not credited with any
quarter beginning after December 31, 1996, during which the sponsored
immigrant receives any Federal means-tested public benefit;
(C) Ceases to hold the status of an alien lawfully admitted for
permanent residence and has departed the United States; or
(D) Dies.
(ii) The sponsor's support obligation also terminates if the sponsor
dies.
(2) The termination of the sponsor's support obligation does not
relieve the sponsor (or the sponsor's estate) of any reimbursement
obligation under section 213A(b) of the Act that accrued before the
support obligation terminated.
(f) In the case of an alien who seeks to follow-to-join the
principal sponsored immigrant, as provided for by section 203(d) of the
Act, the same sponsor who filed the visa petition and affidavit of
support for the principal sponsored immigrant must, at the time that the
alien seeks to follow-to-join the principal sponsored immigrant, sign an
affidavit of support on behalf of the alien who seeks to follow-to-join
the principal sponsored immigrant. If that sponsor has died, then the
alien who seeks to follow-to-join the principal sponsored immigrant
shall be held to be inadmissible, unless another person, who would
qualify as a joint sponsor if the principal sponsor were still alive,
submits on behalf of the alien who seeks to follow-to-join the principal
sponsored immigrant, an affidavit of support that meets the requirements
of this section. If the original sponsor is deceased and no other
eligible sponsor is available, the principal sponsored immigrant may
sign an affidavit of support on behalf of the alien seeking to follow-
to-join the principal immigrant, if the principal sponsored immigrant
can meet the requirements of paragraph (c) of this section.
[62 FR 54352, Oct. 20, 1997; 62 FR 60122, Nov. 6, 1997; 62 FR 64048,
Dec. 3, 1997]
Sec. 213a.3 Notice of change of address.
(a) General. If the address of a sponsor (including a joint sponsor)
changes for any reason while the sponsor's support obligation under the
affidavit of support remains in effect with respect to any sponsored
immigrant, the sponsor shall file Form I-865, Sponsor's Notice of Change
of Address, with the Service no later than 30 days after the change of
address becomes effective.
(b) Civil penalty--(1) Amount of penalty. (i) Except as provided in
paragraph (b)(1)(ii) of this section, if the sponsor fails to give
notice in accordance with paragraph (a) of this section, the Service may
impose on the sponsor a civil penalty in an amount within the penalty
range established in section 213A(d)(2)(A) of the Act.
(ii) If the sponsor, knowing that the sponsored immigrant has
received any means-tested public benefit, fails to give notice in
accordance with paragraph (a) of this section, the Service may impose on
the sponsor a civil penalty in an amount within the penalty range
established in section 213A(d)(2)(B) of the Act.
(2) Procedure for imposing penalty. The procedure for imposing a
civil penalty under this paragraph follows that which is established at
8 CFR part 280.
(c) Change of address. If the sponsor is an alien, filing Form I-865
under this section does not satisfy or substitute for the change of
address notice required under Sec. 265.1 of this chapter.
Sec. 213a.4 Actions for reimbursement, public notice, and congressional
reports.
(a) Requests for reimbursement. Requests for reimbursement under
section 213A(b)(2) of the Act must be served by personal service, as
defined by Sec. 103.5a(a)(2) of this chapter. The request for
reimbursement shall specify the date the sponsor's affidavit of support
was received by the Service, the sponsored immigrant's name, alien
registration number, address, and date of birth, as well as the types of
means-
[[Page 228]]
tested public benefit(s) that the sponsored immigrant received, the
dates the sponsored immigrant received the means-tested public
benefit(s), and the total amount of the means-tested public benefit(s)
received. It is not necessary to make a separate request for each type
of means-tested public benefit, nor for each separate payment. The
agency may instead aggregate in a single request all benefit payments
the agency has made as of the date of the request. The request for
reimbursement shall also notify the sponsor that the sponsor must,
within 45 days of the date of service, respond to the request for
reimbursement either by paying the reimbursement or by arranging to
commence payments pursuant to a payment schedule that is agreeable to
the program official. Prior to filing a lawsuit against a sponsor to
enforce the sponsor's support obligation under section 213A(b)(2) of the
Act, a Federal, State, or local governmental agency or a private entity
must wait 45 days from the date it issues a written request for
reimbursement under section 213A(b)(1) of the Act. If a sponsored
immigrant, a Federal, State, or local agency, or a private entity sues
the sponsor and obtains a final civil judgment against the sponsor, the
sponsored immigrant, the Federal, State, or local agency, or the private
entity shall mail a certified copy of the final civil judgment to the
Service's Statistics Branch, 425 I Street, NW., Washington, DC 20536.
The copy should be accompanied by a cover letter that includes the
reference ``Civil Judgments for Congressional Reports under section
213A(i)(3) of the Act.'' Failure to file a certified copy of the final
civil judgment in accordance with this section has no effect on the
plaintiff's ability to collect on the judgment pursuant to law.
(b) Federal, State, and local government agencies should issue
public notice of determinations regarding which benefits are considered
``means-tested public benefits'' prior to December 19, 1997, the date
the new affidavit of support goes into effect, or as soon as possible
thereafter. Additional notices should be issued whenever an agency
revises its determination of which benefits are considered ``means-
tested public benefits.''
(c) Congressional reports. (1) For purposes of section 213A(i)(3) of
the Act, a sponsor shall be considered to be in compliance with the
financial obligations of section 213A of the Act unless the sponsored
immigrant or a Federal, State, or local agency or private entity has
sued the sponsor, obtained a final judgment enforcing the sponsor's
obligations under section 213A(a)(1)(A) or 213A(b) of the Act, and
mailed a certified copy of the final judgment to the Service's
Statistics Branch, 425 I Street, NW., Washington, DC 20536.
(2) If a Federal, State, or local agency or private entity that
administers any means-tested public benefit makes a determination under
section 421(e) of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 in the case of any sponsored immigrant, the
program official shall send written notice of the determination,
including the name of the sponsored immigrant and of the sponsor, to the
Service's Statistics Branch. The written notice should include the
reference ``Determinations under 421(e) of the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996.''
Sec. 213a.5 Relationship of this part to other affidavits of support.
Nothing in this part precludes the continued use of Form I-134,
Affidavit of Support (other than INA section 213A), or of Form I-361,
Affidavit of Financial Support and Intent to Petition for Legal Custody
for Public Law 97-359 Amerasian, in any case, other than a case
described in Sec. 213a.2(a)(2), in which these forms were used prior to
enactment of section 213A of the Act. The obligations of section 213A of
the Act do not bind a person who executes Form I-134 or Form I-361,
although the person who executes Form I-361 remains subject to the
provisions of section 204(f)(4)(B) of the Act and of Sec. 204.4(i) of
this chapter.
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.
[[Page 229]]
214.3 Approval of schools for enrollment of F and M nonimmigrants.
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.
214.7 What is habitual residence in the territories and possessions of
the United States and what are the consequences thereof?
214.8-214.10 Reserved
214.11 Alien victims of severe forms of trafficking in persons.
214.12 Preliminary enrollment of schools in the Student and Exchange
Visitor Information System (SEVIS).
214.13-214.14 Reserved
214.15 Certain spouses and children of lawful permanent residents.
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221,
1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110 Stat.
3009-708; section 141 of the Compacts of Free Association with the
Federated States of Micronesia and the Republic of the Marshall Islands,
and with the Government of Palau, 48 U.S.C. 1901, note, and 1931 note,
respectively; 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[eacute](e), (K)(ii) for the spouse, and (K)(iii) for the children
of either;
(vi) Section 101(a)(15)(L) is divided into (L)(i) for principal
aliens and (L)(ii) for such alien's spouse and children;
(vii) Section 101(a)(15)(Q)(ii) is divided to create a (Q)(iii) for
subclassification for the spouse and children of a nonimmigrant
classified under section 101(a)(15)(Q)(ii) of the Act;
(viii) Section 101(a)(15)(T)(ii) is divided into (T)(ii), (T)(iii)
and (T)(iv) for the spouse, child, and parent, respectively, of a
nonimmigrant classified under section 101(a)(15)(T)(i); and
(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)(B)...................... H-1B.
101(a)(15)(H)(i)(C)...................... H-1C.
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-3.
101(a)(15)(K)(iii)....................... K-2; K-4.
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.
[[Page 230]]
101(a)(15)(P)(iv)........................ P-4.
101(a)(15)(Q)(i)......................... Q-1.
101(a)(15)(Q)(ii)........................ Q-2.
101(a)(15)(Q)(iii)....................... Q-3.
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.
101(a)(15)(T)(i)......................... T-1
101(a)(15)(T)(ii)........................ T-2
101(a)(15)(T)(iii)....................... T-3
101(a)(15)(T)(iv)........................ T-4
101(a)(15)(V)............................ V-1, V-2, or V-3
Cdn FTA, Professional.................... TC.
NAFTA, Principal......................... TN.
NAFTA, Dependent......................... TD.
Visa Waiver, Business.................... WB.
Visa Waiver, Tourist..................... WT.
------------------------------------------------------------------------
Note 1: The classification designation K-2 is for the child of a K-
1. The classification designation K-4 is for the child of a K-3.
Note 2: The classification designation V-1 is for the spouse of a
lawful permanent resident; the classification designation V-2 is for the
principal beneficiary of an I-130 who is the child of an LPR; the
classification V-3 is for the derivative child of a V-1 or V-2 alien.
(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),
(M), or (Q)(ii) 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:
[[Page 231]]
(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 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.
(4) Section 101(a)(15)(Q)(ii). The inspecting immigration officer
shall readmit for the unexpired period of stay authorized prior to the
alien's departure, if the alien:
(i) Is admissible;
(ii) Is applying for readmission after an absence from the United
States not exceeding 30 days solely in contiguous territory or adjacent
islands;
(iii) Is in possession of a valid passport;
(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 principal
alien must also present a Certification Letter issued by the Department
of State's Program Administrator.
(c) Extensions of stay--(1) Filing on Form I-129. An employer
seeking the services of an E-1, E-2, H-1B, H-2A, H-2B, H-3, L-1, O-1, O-
2, P-1, P-2, P-3, Q-1, 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. In order to be
eligible for an extension of stay, nonimmigrant aliens in K-3/K-4 status
must do so in accordance with Sec. 214.2(k)(10).
(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;
[[Page 232]]
(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);
(vi) Any nonimmigrant who is classified pursuant to section
101(a)(15)(S) of the Act beyond a total of 3 years; or
(vii) Any nonimmigrant who is classified according to section
101(a)(15)(Q)(ii) 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
section 242 of the Act (prior to April 1, 1997) or removal proceedings
under section 240 of the Act.
(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 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) Registration and false information. A nonimmigrant's admission
and continued stay in the United States is conditioned on compliance
with any registration, photographing, and fingerprinting requirements
under Sec. 264.1(f) of this chapter that relate to the maintenance of
nonimmigrant status and also on the full and truthful disclosure of all
information requested by the Service. Willful failure by a nonimmigrant
to register or 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 237(a)(1)(C)(i) of the Act (8 U.S.C. 1227(a)(1)(C)(i)).
(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.
[[Page 233]]
(h) Education privacy and F, J, and M nonimmigrants. As authorized
by section 641(c)(2) of Division C of Pub. L. 104-208, 8 U.S.C. 1372,
and Sec. 2.1(a) of this chapter, the Service has determined that, with
respect to F and M nonimmigrant students and J nonimmigrant exchange
visitors, waiving the provisions of the Family Educational Rights and
Privacy Act (FERPA), 20 U.S.C. 1232g, is necessary for the proper
implementation of 8 U.S.C. 1372. An educational agency or institution
may not refuse to report information concerning an F or M nonimmigrant
student or a J nonimmigrant exchange visitor that the educational agency
or institution is required to report under 8 U.S.C. 1372 and Sec.
214.3(g) (or any corresponding Department of State regulation concerning
J nonimmigrants) on the basis of FERPA and any regulation implementing
FERPA. The waiver of FERPA under this paragraph authorizes and requires
an educational agency or institution to report information concerning an
F, J or M nonimmigrant that would ordinarily be protected by FERPA, but
only to the extent that 8 U.S.C. 1372 and Sec. 214.3(g) (or any
corresponding Department of State regulation concerning J nonimmigrants)
requires the educational agency or institution to report information.
(i) Employment in a health care occupation. Except as provided in 8
CFR 212.15(n), any alien described in 8 CFR 212.15(a) who is coming to
the United States to perform labor in a heath care occupation described
in 8 CFR 212.15(c) must obtain a certificate from a credentialing
organization described in 8 CFR 212.15(e). The certificate or certified
statement must be presented to the Department of Homeland Security (DHS)
in accordance with 8 CFR 212.15(d). In the alternative, an eligible
alien seeking admission as a nurse may obtain a certified statement as
provided in 8 CFR 212.15(h).
(j) Extension of stay or change of status for health care worker. In
the case of any alien admitted temporarily as a nonimmigrant under
section 212(d)(3) of the Act and 8 CFR 212.15(n) for the primary purpose
of the providing labor in a health care occupation described in 8 CFR
212.15(c), a petition to extend the period of the alien's authorized
stay or to change the alien's status shall be denied if:
(1) The petitioner or applicant fails to submit the certification
required by 8 CFR 212.15(a) with the petition or application to extend
the alien's stay or change the alien's status; or
(2) The petition or application to extend the alien's stay or change
the alien's status does include the certification required by 8 CFR
212.15(a), but the alien obtained the certification more than 1 year
after the date of the alien's admission under section 212(d)(3) of the
Act and 8 CFR 212.15(n). While the DHS may admit, extend the period of
authorize stay, or change the status of a nonimmigrant health care
worker for a period of 1 year if the alien does not have certification
on or before July 26, 2004, the alien will not be eligible for a
subsequent admission, change of status, or extension of stay as a health
care worker if the alien has not obtained the requisite certification 1
year after the initial date of admission, change of status, or extension
of stay as a health care worker.
[26 FR 12067, Dec. 16, 1961]
Editorial Note: For Federal Register citations affecting Sec.
214.1, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
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,
[[Page 234]]
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 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
[[Page 235]]
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 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.
[[Page 236]]
(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 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 Free 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, unexpired
entry documents such as a passport and visa, or a passport and BCC in
the case of Mexican applicants, a description of the purpose for which
the alien is seeking admission, 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 Canada/U.S. Free Trade Agreement and, with
respect to Mexico, are those requirements which were 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.)
[[Page 237]]
(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 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
[[Page 238]]
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.
(6) [Reserved]
(7) Enrollment in a course of study prohibited. An alien who is
admitted as, or changes status to, a B-1 or B-2 nonimmigrant on or after
April 12, 2002, or who files a request to extend the period of
authorized stay in B-1 or B-2 nonimmigrant status on or after such date,
violates the conditions of his or her B-1 or B-2 status if the alien
enrolls in a course of study. Such an alien who desires to enroll in a
course of study must either obtain an F-1 or M-1 nonimmigrant visa from
a consular officer abroad and seek readmission to the United States, or
apply for and obtain a change of status under section 248 of the Act and
8 CFR part 248. The alien may not enroll in the course of study until
the Service has admitted the alien as an F-1 or M-1 nonimmigrant or has
approved the alien's application under part 248 of this chapter and
changed the alien's status to that of an F-1 or M-1 nonimmigrant.
(c) Transits.
(1) [Reserved]
(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 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
[[Page 239]]
(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) Treaty traders and investors--(1) Treaty trader. An alien, if
otherwise admissible, may be classified as a nonimmigrant treaty trader
(E-1) under the provisions of section 101(a)(15)(E)(i) of the Act if the
alien:
(i) Will be in the United States solely to carry on trade of a
substantial nature, which is international in scope, either on the
alien's behalf or as an employee of a foreign person or organization
engaged in trade principally between the United States and the treaty
country of which the alien is a national, taking into consideration any
conditions in the country of which the alien is a national which may
affect the alien's ability to carry on such substantial trade; and
(ii) Intends to depart the United States upon the expiration or
termination of treaty trader (E-1) status.
(2) Treaty investor. An alien, if otherwise admissible, may be
classified as a nonimmigrant treaty investor (E-2) under the provision
of section 101(a)(15)(E)(ii) of the Act if the alien:
(i) Has invested or is actively in the process of investing a
substantial amount of capital in a bona fide enterprise in the United
States, as distinct from a relatively small amount of capital in a
marginal enterprise solely for the purpose of earning a living;
(ii) Is seeking entry solely to develop and direct the enterprise;
and
(iii) Intends to depart the United States upon the expiration or
termination of treaty investor (E-2) status.
(3) Employee of treaty trader or treaty investor. An alien employee
of a treaty trader, if otherwise admissible, may be classified as E-1,
and an alien employee of a treaty investor, if otherwise admissible, may
be classified as E-2 if the
[[Page 240]]
employee is in or is coming to the United States to engage in duties of
an executive or supervisory character, or, if employed in a lesser
capacity, the employee has special qualifications that make the alien's
services essential to the efficient operation of the enterprise. The
employee must have the same nationality as the principal alien employer.
In addition, the employee must intend to depart the United States upon
the expiration or termination of E-1 or E-2 status. The principal alien
employer must be:
(i) A person in the United States having the nationality of the
treaty country and maintaining nonimmigrant treaty trader or treaty
investor status or, if not in the United States, would be classifiable
as a treaty trader or treaty investor; or
(ii) An enterprise or organization at least 50 percent owned by
persons in the United States having the nationality of the treaty
country and maintaining nonimmigrant treaty trader or treaty investor
status or who, if not in the United States, would be classifiable as
treaty traders or treaty investors.
(4) Spouse and children of treaty trader or treaty investor. The
spouse and child of a treaty trader or treaty investor accompanying or
following to join the principal alien, if otherwise admissible, may
receive the same classification as the principal alien. The nationality
of a spouse or child of a treaty trader or treaty investor is not
material to the classification of the spouse or child under the
provisions of section 101(a)(15)(E) of the Act.
(5) Nonimmigrant intent. An alien classified under section
101(a)(15)(E) of the Act shall maintain an intention to depart the
United States upon the expiration or termination of E-1 or E-2 status.
However, an application for initial admission, change of status, or
extension of stay in E classification may not be denied solely on the
basis of an approved request for permanent labor certification or a
filed or approved immigrant visa preference petition.
(6) Treaty country. A treaty country is, for purposes of this
section, a foreign state with which a qualifying Treaty of Friendship,
Commerce, or Navigation or its equivalent exists with the United States.
A treaty country includes a foreign state that is accorded treaty visa
privileges under section 101(a)(15)(E) of the Act by specific
legislation.
(7) Treaty country nationality. The nationality of an individual
treaty trader or treaty investor is determined by the authorities of the
foreign state of which the alien is a national. In the case of an
enterprise or organization, ownership must be traced as best as is
practicable to the individuals who are ultimately its owners.
(8) Terms and conditions of E treaty status--(i) Limitations on
employment. The Service determines the terms and conditions of E treaty
status at the time of admission or approval of a request to change
nonimmigrant status to E classification. A treaty trader, treaty
investor, or treaty employee may engage only in employment which is
consistent with the terms and conditions of his or her status and the
activity forming the basis for the E treaty status.
(ii) Subsidiary employment. Treaty employees may perform work for
the parent treaty organization or enterprise, or any subsidiary of the
parent organization or enterprise. Performing work for subsidiaries of a
common parent enterprise or organization will not be deemed to
constitute a substantive change in the terms and conditions of the
underlying E treaty employment if, at the time the E treaty status was
determined, the applicant presented evidence establishing:
(A) The enterprise or organization, and any subsidiaries thereof,
where the work will be performed; the requisite parent-subsidiary
relationship; and that the subsidiary independently qualifies as a
treaty organization or enterprise under this paragraph;
(B) In the case of an employee of a treaty trader or treaty
investor, the work to be performed requires executive, supervisory, or
essential skills; and
(C) The work is consistent with the terms and conditions of the
activity forming the basis of the classification.
(iii) Substantive changes. Prior Service approval must be obtained
where there will be a substantive change in the terms or conditions of E
status. In such cases, a treaty alien must file a
[[Page 241]]
new application on Form I-129 and E supplement, in accordance with the
instructions on that form, requesting extension of stay in the United
States. In support of an alien's Form I-129 application, the treaty
alien must submit evidence of continued eligibility for E classification
in the new capacity. Alternatively, the alien must obtain from a
consular officer a visa reflecting the new terms and conditions and
subsequently apply for admission at a port-of-entry. The Service will
deem there to have been a substantive change necessitating the filing of
a new Form I-129 application in cases where there has been a fundamental
change in the employing entity's basic characteristics, such as a
merger, acquisition, or sale of the division where the alien is
employed.
(iv) Non-substantive changes. Prior approval is not required, and
there is no need to file a new Form I-129, if there is no substantive,
or fundamental, change in the terms or conditions of the alien's
employment which would affect the alien's eligibility for E
classification. Further, prior approval is not required if corporate
changes occur which do not affect the previously approved employment
relationship, or are otherwise non-substantive. To facilitate admission,
the alien may:
(A) Present a letter from the treaty-qualifying company through
which the alien attained E classification explaining the nature of the
change;
(B) Request a new Form I-797, Approval Notice, reflecting the non-
substantive change by filing with the appropriate Service Center Form I-
129, with fee, and a complete description of the change, or;
(C) Apply directly to State for a new E visa reflecting the change.
An alien who does not elect one of the three options contained in
paragraph (e)(8)(iv) (A) through (C) of this section, is not precluded
from demonstrating to the satisfaction of the immigration officer at the
port-of-entry in some other manner, his or her admissibility under
section 101(a)(15)(E) of the Act.
(v) Advice. To ascertain whether a change is substantive, an alien
may file with the Service Center Form I-129, with fee, and a complete
description of the change, to request appropriate advice. In cases
involving multiple employees, an alien may request that a Service Center
determine if a merger or other corporate restructuring requires the
filing of separate applications by filing a single Form I-129, with fee,
and attaching a list of the related receipt numbers for the employees
involved and an explanation of the change or changes. Where employees
are located within multiple jurisdictions, such a request for advice
must be filed with the Service Center in Lincoln, Nebraska.
(vi) Approval. If an application to change the terms and conditions
of E status or employment is approved, the Service shall notify the
applicant on Form I-797. An extension of stay in nonimmigrant E
classification may be granted for the validity of the approved
application. The alien is not authorized to begin the new employment
until the application is approved. Employment is authorized only for the
period of time the alien remains in the United States. If the alien
subsequently departs from the United States, readmission in E
classification may be authorized where the alien presents his or her
unexpired E visa together with the Form I-797, Approval Notice,
indicating Service approval of a change of employer or of a change in
the substantive terms or conditions of treaty status or employment in E
classification, or, in accordance with 22 CFR 41.112(d), where the alien
is applying for readmission after an absence not exceeding 30 days
solely in contiguous territory.
(vii) An unauthorized change of employment to a new employer will
constitute a failure to maintain status within the meaning of section
237(a)(1)(C)(i) of the Act. In all cases where the treaty employee will
be providing services to a subsidiary under this paragraph, the
subsidiary is required to comply with the terms of 8 CFR part 274a.
(9) Trade--definitions. For purposes of this paragraph: Items of
trade include but are not limited to goods, services, international
banking, insurance, monies, transportation, communications, data
processing, advertising, accounting, design and engineering, management
consulting, tourism, technology
[[Page 242]]
and its transfer, and some news-gathering activities. For purposes of
this paragraph, goods are tangible commodities or merchandise having
extrinsic value. Further, as used in this paragraph, services are
legitimate economic activities which provide other than tangible goods.
Trade is the existing international exchange of items of trade for
consideration between the United States and the treaty country. Existing
trade includes successfully negotiated contracts binding upon the
parties which call for the immediate exchange of items of trade.
Domestic trade or the development of domestic markets without
international exchange does not constitute trade for purposes of section
101(a)(15)(E) of the Act. This exchange must be traceable and
identifiable. Title to the trade item must pass from one treaty party to
the other.
(10) Substantial trade. Substantial trade is an amount of trade
sufficient to ensure a continuous flow of international trade items
between the United States and the treaty country. This continuous flow
contemplates numerous transactions over time. Treaty trader status may
not be established or maintained on the basis of a single transaction,
regardless of how protracted or monetarily valuable the transaction.
Although the monetary value of the trade item being exchanged is a
relevant consideration, greater weight will be given to more numerous
exchanges of larger value. There is no minimum requirement with respect
to the monetary value or volume of each individual transaction. In the
case of smaller businesses, an income derived from the value of numerous
transactions which is sufficient to support the treaty trader and his or
her family constitutes a favorable factor in assessing the existence of
substantial trade.
(11) Principal trade. Principal trade between the United States and
the treaty country exists when over 50 percent of the volume of
international trade of the treaty trader is conducted between the United
States and the treaty country of the treaty trader's nationality.
(12) Investment. An investment is the treaty investor's placing of
capital, including funds and other assets (which have not been obtained,
directly or indirectly, through criminal activity), at risk in the
commercial sense with the objective of generating a profit. The treaty
investor must be in possession of and have control over the capital
invested or being invested. The capital must be subject to partial or
total loss if investment fortunes reverse. Such investment capital must
be the investor's unsecured personal business capital or capital secured
by personal assets. Capital in the process of being invested or that has
been invested must be irrevocably committed to the enterprise. The alien
has the burden of establishing such irrevocable commitment. The alien
may use any legal mechanism available, such as the placement of invested
funds in escrow pending admission in, or approval of, E classification,
that would not only irrevocably commit funds to the enterprise, but
might also extend personal liability protection to the treaty investor
in the event the application for E classification is denied.
(13) Bona fide enterprise. The enterprise must be a real, active,
and operating commercial or entrepreneurial undertaking which produces
services or goods for profit. The enterprise must meet applicable legal
requirements for doing business in the particular jurisdiction in the
United States.
(14) Substantial amount of capital. A substantial amount of capital
constitutes an amount which is:
(i) Substantial in relationship to the total cost of either
purchasing an established enterprise or creating the type of enterprise
under consideration;
(ii) Sufficient to ensure the treaty investor's financial commitment
to the successful operation of the enterprise; and
(iii) Of a magnitude to support the likelihood that the treaty
investor will successfully develop and direct the enterprise. Generally,
the lower the cost of the enterprise, the higher, proportionately, the
investment must be to be considered a substantial amount of capital.
(15) Marginal enterprise. For purposes of this section, an
enterprise may not be marginal. A marginal enterprise is an enterprise
that does not have the
[[Page 243]]
present or future capacity to generate more than enough income to
provide a minimal living for the treaty investor and his or her family.
An enterprise that does not have the capacity to generate such income,
but that has a present or future capacity to make a significant economic
contribution is not a marginal enterprise. The projected future income-
generating capacity should generally be realizable within 5 years from
the date the alien commences the normal business activity of the
enterprise.
(16) Solely to develop and direct. An alien seeking classification
as a treaty investor (or, in the case of an employee of a treaty
investor, the owner of the treaty enterprise) must demonstrate that he
or she does or will develop and direct the investment enterprise. Such
an applicant must establish that he or she controls the enterprise by
demonstrating ownership of at least 50 percent of the enterprise, by
possessing operational control through a managerial position or other
corporate device, or by other means.
(17) Executive and supervisory character. The applicant's position
must be principally and primarily, as opposed to incidentally or
collaterally, executive or supervisory in nature. Executive and
supervisory duties are those which provide the employee ultimate control
and responsibility for the enterprise's overall operation or a major
component thereof. In determining whether the applicant has established
possession of the requisite control and responsibility, a Service
officer shall consider, where applicable:
(i) That an executive position is one which provides the employee
with great authority to determine the policy of, and the direction for,
the enterprise;
(ii) That a position primarily of supervisory character provides the
employee supervisory responsibility for a significant proportion of an
enterprise's operations and does not generally involve the direct
supervision of low-level employees, and;
(iii) Whether the applicant possesses executive and supervisory
skills and experience; a salary and position title commensurate with
executive or supervisory employment; recognition or indicia of the
position as one of authority and responsibility in the overall
organizational structure; responsibility for making discretionary
decisions, setting policies, directing and managing business operations,
supervising other professional and supervisory personnel; and that, if
the position requires some routine work usually performed by a staff
employee, such functions may only be of an incidental nature.
(18) Special qualifications. Special qualifications are those skills
and/or aptitudes that an employee in a lesser capacity brings to a
position or role that are essential to the successful or efficient
operation of the treaty enterprise. In determining whether the skills
possessed by the alien are essential to the operation of the employing
treaty enterprise, a Service officer must consider, where applicable:
(i) The degree of proven expertise of the alien in the area of
operations involved; whether others possess the applicant's specific
skill or aptitude; the length of the applicant's experience and/or
training with the treaty enterprise; the period of training or other
experience necessary to perform effectively the projected duties; the
relationship of the skill or knowledge to the enterprise's specific
processes or applications, and the salary the special qualifications can
command; that knowledge of a foreign language and culture does not, by
itself, meet the special qualifications requirement, and;
(ii) Whether the skills and qualifications are readily available in
the United States. In all cases, in determining whether the applicant
possesses special qualifications which are essential to the treaty
enterprise, a Service officer must take into account all the particular
facts presented. A skill that is essential at one point in time may
become commonplace at a later date. Skills that are needed to start up
an enterprise may no longer be essential after initial operations are
complete and running smoothly. Some skills are essential only in the
short-term for the training of locally hired employees. Under certain
circumstances, an applicant may be able to establish his or her
essentiality to the treaty enterprise for
[[Page 244]]
a longer period of time, such as, in connection with activities in the
areas of product improvement, quality control, or the provision of a
service not yet generally available in the United States. Where the
treaty enterprise's need for the applicant's special qualifications, and
therefore, the applicant's essentiality, is time-limited, Service
officers may request that the applicant provide evidence of the period
for which skills will be needed and a reasonable projected date for
completion of start-up or replacement of the essential skilled workers.
(19) Period of admission. Periods of admission are as follows:
(i) A treaty trader or treaty investor may be admitted for an
initial period of not more than 2 years.
(ii) The spouse and minor children accompanying or following to join
a treaty trader or treaty investor shall be admitted for the period
during which the principal alien is in valid treaty trader or investor
status. The temporary departure from the United States of the principal
trader or investor shall not affect the derivative status of the
dependent spouse and minor unmarried children, provided the familial
relationship continues to exist and the principal remains eligible for
admission as an E nonimmigrant to perform the activity.
(iii) Unless otherwise provided for in this chapter, an alien shall
not be admitted in E classification for a period of time extending more
than 6 months beyond the expiration date of the alien's passport.
(20) Extensions of stay. Requests for extensions of stay may be
granted in increments of not more than 2 years. A treaty trader or
treaty investor in valid E status may apply for an extension of stay by
filing an application for extension of stay on Form I-129 and E
Supplement, with required accompanying documents, in accordance with
Sec. 214.1 and the instructions on that form.
(i) For purposes of eligibility for an extension of stay, the alien
must prove that he or she:
(A) Has at all times maintained the terms and conditions of his or
her E nonimmigrant classification;
(B) Was physically present in the United States at the time of
filing the application for extension of stay; and
(C) Has not abandoned his or her extension request.
(ii) With limited exceptions, it is presumed that employees of
treaty enterprises with special qualifications who are responsible for
start-up operations should be able to complete their objectives within 2
years. Absent special circumstances, therefore, such employees will not
be eligible to obtain an extension of stay.
(iii) Subject to paragraph (e)(5) of this section and the
presumption noted in paragraph (e)(22)(ii) of this section, there is no
specified number of extensions of stay that a treaty trader or treaty
investor may be granted.
(21) Change of nonimigrant status. (i) An alien in another valid
nonimmigrant status may apply for change of status to E classification
by filing an application for change of status on Form I-129 and E
Supplement, with required accompanying documents establishing
eligibility for a change of status and E classification, in accordance
with 8 CFR part 248 and the instructions on Form I-129 and E Supplement.
(ii) The spouse or minor children of an applicant seeking a change
of status to that of treaty trader or treaty investor alien shall file
concurrent applications for change of status to derivative treaty
classification on the appropriate Service form. Applications for
derivative treaty status shall:
(A) Be approved only if the principal treaty alien is granted treaty
alien status and continues to maintain that status;
(B) Be approved for the period of admission authorized in paragraph
(e)(20) of this section.
(22) Denial of treaty trader or treaty investor status to citizens
of Canada or Mexico in the case of certain labor disputes. (i) A citizen
of Canada or Mexico may be denied E treaty trader or treaty investor
status as described in section 101(a)(15)(E) of the Act and section B of
Annex 1603 of the NAFTA if:
(A) The Secretary of Labor certifies to or otherwise informs the
Commissioner that a strike or other labor dispute involving a work
stoppage of
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workers in the alien's occupational classification is in progress at the
place where the alien is or intends to be employed; and
(B) Temporary entry of that alien may affect adversely either:
(1) The settlement of any labor dispute that is in progress at the
place or intended place of employment, or
(2) The employment of any person who is involved in such dispute.
(ii) 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 Secretary 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:
(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 E nonimmigrants; and
(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.
(iii) Although participation by an E 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.
(iv) 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 (e)(22)(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
entry to an applicant for E status.
(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 may be admitted into
the United States in nonimmigrant status under section 101(a)(15)(F) of
the Act, if:
(A) The student presents a SEVIS Form I-20 issued in his or her own
name by a school approved by the Service for attendance by F-1 foreign
students. (In the alternative, for a student seeking admission prior to
August 1, 2003, the student may present a currently-valid Form I-20A-B/
I-20ID, if that form was issued by the school prior to January 30,
2003);
(B) The student has documentary evidence of financial support in the
amount indicated on the SEVIS Form I-20 (or the Form I-20A-B/I-20ID);
(C) For students seeking initial admission only, the student intends
to attend the school specified in the student's visa (or, where the
student is exempt from the requirement for a visa, the school indicated
on the SEVIS Form I-20 (or the Form I-20A-B/I-20ID)); and
(D) In the case of a student who intends to study at a public
secondary school, the student has demonstrated that he or she has
reimbursed the local educational agency that administers the school for
the full, unsubsidized per capita cost of providing education at the
school for the period of the student's attendance.
(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;
[[Page 246]]
(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.)
(iii) Use of SEVIS. On January 30, 2003, the use of the Student and
Exchange Visitor Information System (SEVIS) will become mandatory for
the issuance of any new Form I-20. A student or dependent who presents a
non-SEVIS Form I-20 issued on or after January 30, 2003, will not be
accepted for admission to the United States. Non-SEVIS Forms I-20 issued
prior to January 30, 2003, will continue to be acceptable until August
1, 2003. However, schools must issue a SEVIS Form I-20 to any current
student requiring a reportable action (e.g., extension of status,
practical training, and requests for employment authorization) or a new
Form I-20, or for any aliens who must obtain a new nonimmigrant student
visa. As of August 1, 2003, the records of all current or continuing
students must be entered in SEVIS.
(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) Admission of the spouse and minor children of an F-1 student.
The spouse and minor children accompanying an F-1 student are eligible
for admission in F-2 status if the student is admitted in F-1 status.
The spouse and minor children following-to-join an F-1 student are
eligible for admission to the United States in F-2 status if they are
able to demonstrate that the F-1 student has been admitted and is, or
will be within 30 days, enrolled in a full course of study, or engaged
in approved practical training following completion of studies. In
either case, at the time they seek admission, the eligible spouse and
minor children of an F-1 student with a SEVIS Form I-20 must
individually present an original SEVIS Form I-20 issued in the name of
each F-2 dependent issued by a school authorized by the Service for
attendance by F-1 foreign students. Prior to August 1, 2003, if exigent
circumstances are demonstrated, the Service will allow the dependent of
an F-1 student in possession of a SEVIS Form I-20 to enter the United
States using a copy of the F-1 student's SEVIS Form I-20. (In the
alternative, for dependents seeking admission to the United States prior
to August 1, 2003, a copy of the F-1 student's current Form I-20ID
issued prior to January 30, 2003, with proper endorsement by the DSO
will satisfy this requirement.) A new SEVIS Form I-20 (or Form I-20A-B)
is required for a dependent where there has been any substantive change
in the F-1 student's current information.
(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 SEVIS Form I-20 (or, for readmission prior to August
1, 2003, a current Form I-20ID which was issued prior to January 30,
2003), properly endorsed by the DSO for reentry if there has been no
substantive change to the most recent Form I-20 information; or
(ii) A new SEVIS Form I-20 (or, for readmission prior to August 1,
2003, a new Form I-20ID which was issued prior to January 30, 2003), if
there has been a substantive change in the information on the student's
most recent Form I-20 information, 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. Except for border commuter
students covered by the provisions of paragraph (f)(18) of this section,
an F-1 student is admitted for duration of status. 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
[[Page 247]]
Service for attendance by foreign students, or engaging in authorized
practical training following completion of studies, except that an F-1
student who is admitted to attend a public high school is restricted to
an aggregate of 12 months of study at any public high school(s). An F-1
student may be admitted for a period up to 30 days before the indicated
report date or program start date listed on Form I-20. 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) Preparation for departure. An F-1 student who has completed a
course of study and any authorized practical training following
completion of studies will be allowed an additional 60-day period to
prepare for departure from the United States or to transfer in
accordance with paragraph (f)(8) of this section. An F-1 student
authorized by the DSO to withdraw from classes will be allowed a 15-day
period for departure from the United States. However, an F-1 student who
fails to maintain a full course of study without the approval of the DSO
or otherwise fails to maintain status is not eligible for an additional
period for departure.
(v) Emergent circumstances as determined by the Commissioner. Where
the Commissioner has suspended the applicability of any or all of the
requirements for on-campus or off-campus employment authorization for
specified students pursuant to paragraphs (f)(9)(i) or (f)(9)(ii) of
this section by notice in the Federal Register, an affected student who
needs to reduce his or her full course of study as a result of accepting
employment authorized by such notice in the Federal Register will be
considered to be in status during the authorized employment, subject to
any other conditions specified in the notice, provided that, for the
duration of the authorized employment, the student is registered for the
number of semester or quarter hours of instruction per academic term
specified in the notice, which in no event shall be less than 6 semester
or quarter hours of instruction per academic term if the student is at
the undergraduate level or less than 3 semester or quarter hours of
instruction per academic term if the student is at the graduate level,
and is continuing to make progress toward completing the course of
study.
(vi) Extension of duration of status. The Commissioner may, by
notice in the Federal Register, at any time she determines that the H-1B
numerical limitation as described in section 214(g)(1)(A) of the Act
will likely be reached prior to the end of a current fiscal year, extend
for such a period of time as the Commissioner deems necessary to
complete the adjudication of the H-1B application, the duration of
status of any F-1 student on behalf of whom an employer has timely filed
an application for change of status to H-1B. The alien, according to 8
CFR part 248, must not have violated the terms of his or her
nonimmigrant stay in order to obtain this extension of stay. An F-1
student whose duration of status has been so extended shall be
considered to be maintaining lawful nonimmigrant status for all purposes
under the Act, provided that the alien does not violate the terms and
conditions of his or her F nonimmigrant stay. An extension made under
this paragraph applies to the F-2 dependent aliens.
(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 course of study at an
institution not approved
[[Page 248]]
for attendance by foreign students as provided in Sec. 214.3(a)(3) does
not satisfy this requirement. 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 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 curriculum at an approved private elementary or
middle school or public or private academic high school which is
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 toward graduation.
(F) Notwithstanding paragraphs (f)(6)(i)(A) and (f)(6)(i)(B) of this
section, an alien who has been granted employment authorization pursuant
to the terms of a document issued by the Commissioner under paragraphs
(f)(9)(i) or (f)(9)(ii) of this section and published in the Federal
Register shall be deemed to be engaged in a ``full course of study'' if
he or she remains registered for no less than the number of semester or
quarter hours of instruction per academic term specified by the
Commissioner in the notice for the validity period of such employment
authorization.
(G) For F-1 students enrolled in classes for credit or classroom
hours, no more than the equivalent of one class or three credits per
session, term, semester, trimester, or quarter may be counted toward the
full course of study requirement if the class is taken on-line or
through distance education and does not require the student's physical
attendance for classes, examination or other purposes integral to
completion of the class. An on-line or distance education course is a
course that is offered principally through the use of television, audio,
or computer transmission including open broadcast, closed circuit,
cable, microwave, or satellite, audio conferencing, or computer
conferencing. If the F-1 student's course of study is in a language
study program, no on-line or distance education classes may be
considered to count toward a student's full course of study requirement.
(H) 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.
(ii) Institution of higher learning. For purposes of this paragraph,
a college or university is an institution of higher
[[Page 249]]
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 allow
an F-1 student to engage in less than a full course of study as provided
in this paragraph (f)(6)(iii). Except as otherwise noted, a reduced
course load must consist of at least six semester or quarter hours, or
half the clock hours required for a full course of study. A student who
drops below a full course of study without the prior approval of the DSO
will be considered out of 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.
(A) Academic difficulties. The DSO may authorize a reduced course
load on account of a student's initial difficulty with the English
language or reading requirements, unfamiliarity with U.S. teaching
methods, or improper course level placement. The student must resume a
full course of study at the next available term, session, or semester,
excluding a summer session, in order to maintain student status. A
student previously authorized to drop below a full course of study due
to academic difficulties is not eligible for a second authorization by
the DSO due to academic difficulties while pursuing a course of study at
that program level. A student authorized to drop below a full course of
study for academic difficulties while pursuing a course of study at a
particular program level may still be authorized for a reduced course
load due to an illness medical condition as provided for in paragraph
(B) of this section.
(B) Medical conditions. The DSO may authorize a reduced course load
(or, if necessary, no course load) due to a student's temporary illness
or medical condition for a period of time not to exceed an aggregate of
12 months while the student is pursuing a course of study at a
particular program level. In order to authorize a reduced course load
based upon a medical condition, the student must provide medical
documentation from a licensed medical doctor, doctor of osteopathy, or
licensed clinical psychologist, to the DSO to substantiate the illness
or medical condition. The student must provide current medical
documentation and the DSO must reauthorize the drop below full course of
study each new term, session, or semester. A student previously
authorized to drop below a full course of study due to illness or
medical condition for an aggregate of 12 months may not be authorized by
a DSO to reduce his or her course load on subsequent occasions while
pursuing a course of study at the same program level. A student may be
authorized to reduce course load for a reason of illness or medical
condition on more than one occasion while pursuing a course of study, so
long as the aggregate period of that authorization does not exceed 12
months.
(C) Completion of course of study. The DSO may authorize a reduced
course load in the student's final term, semester, or session if fewer
courses are needed to complete the course of study. If the student is
not required to take any additional courses to satisfy the requirements
for completion, but continues to be enrolled for administrative
purposes, the student is considered to have completed the course of
study and must take action to maintain status. Such action may include
application for change of status or departure from the U.S.
(D) Reporting requirements for non-SEVIS schools. A DSO must report
to the Service any student who is authorized to reduce his or her course
load. Within 21 days of the authorization, the DSO must send a photocopy
of the student's current Form I-20ID along with Form I-538 to Service's
data processing center indicating the date and reason that the student
was authorized to drop below full time status. Similarly, the DSO will
report to the Service no more than 21 days after the student has resumed
a full course of study by submitting a current copy of the students'
Form I-20ID to the Service's
[[Page 250]]
data processing center indicating the date a full course of study was
resumed and the new program end date with Form I-538, if applicable.
(E) SEVIS reporting requirements. In order for a student to be
authorized to drop below a full course of study, the DSO must update
SEVIS prior to the student reducing his or her course load. The DSO must
update SEVIS with the date, reason for authorization, and the start date
of the next term or session. The DSO must also notify SEVIS within 21
days of the student's commencement of a full course of study. If an
extension of the program end date is required due to the drop below a
full course of study, the DSO must update SEVIS by completing a new
SEVIS Form I-20 with the new program end date in accordance with
paragraph (f)(7) of this section.
(iv) Concurrent enrollment. An F-1 student may be enrolled in two
different Service-approved schools at one time as long as the combined
enrollment amounts to a full time course of study. In cases where a
student is concurrently enrolled, the school from which the student will
earn his or her degree or certification should issue the Form I-20, and
conduct subsequent certifications and updates to the Form I-20. The DSO
from this school is also responsible for all of the reporting
requirements to the Service. In instances where a student is enrolled in
programs with different full course of study requirements (e.g., clock
hours vs. credit hours), the DSO is permitted to determine what
constitutes a full time course of study.
(7) Extension of stay--(i) General. An F-1 student who is admitted
for duration of status is not required to apply for extension of stay as
long as the student is maintaining status and making normal progress
toward completion of his or her educational objective. An F-1 student
who is currently maintaining status and making normal progress toward
completing his or her educational objective, but who is unable to
complete his or her course of study by the program end date on the Form
I-20, must apply prior to the program end date for a program extension
pursuant to paragraph (f)(7)(iii) of this section.
(ii) Report date and program completion date on Form I-20. When
determining the report date on the Form I-20, the DSO may choose a
reasonable date to accommodate a student's need to be in attendance for
required activities at the school prior to the actual start of classes.
Such required activities may include, but are not limited to, research
projects and orientation sessions. However, for purposes of employment,
the DSO may not indicate a report date more than 30 days prior to the
start of classes. When determining the program completion date on Form
I-20, the DSO should make a reasonable estimate based upon the time an
average student would need to complete a similar program in the same
discipline.
(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 may be granted an extension by the DSO if the DSO certifies 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 extensions. A DSO may not grant an extension if the
student did not apply for an extension until after the program end date
noted on the Form I-20. An F-1 student who is unable to complete the
educational program within the time listed on Form I-20 and who is
ineligible for program extension pursuant to this paragraph (f)(7) is
considered out of status. If eligible, the student may apply for
reinstatement under the provisions of paragraph (f)(16) of this section.
(iv) Notification. Upon granting a program extension, a DSO at a
non-SEVIS school must immediately submit notification to the Service's
data processing center using Form I-538 and the top page of Form I-20A-B
showing the new program completion date. For a school enrolled in SEVIS,
a DSO may grant a program extension only by updating SEVIS and issuing a
new Form I-20 reflecting the current program end date. A DSO may grant
an extension any time prior to the program end date
[[Page 251]]
listed on the student's original Form I-20.
(8) School transfer.(i) A student who is maintaining status may
transfer to another Service approved school by following the
notification procedure prescribed in paragraph (f)(8)(ii) of this
section. However, an F-1 student is not permitted to remain in the
United States when transferring between schools or programs unless the
student will begin classes at the transfer school or program within 5
months of transferring out of the current school or within 5 months of
the program completion date on his or her current Form I-20, whichever
is earlier. In the case of an F-1 student authorized to engage in post-
completion optional practical training (OPT), the student must be able
resume classes within 5 months of transferring out of the school that
recommended OPT or the date the OPT authorization ends, whichever is
earlier. 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, or, in the alternative, may depart
the country and return as an initial entry in a new F-1 nonimmigrant
status.
(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.
(A) Non-SEVIS School to Non-SEVIS school. To transfer from one non-
SEVIS school to a different non-SEVIS school, the student must first
notify the school he or she is attending of the intent to transfer, then
obtain a Form I-20 issued in accordance with the provisions of 8 CFR
214.3(k) from the school to which he or she intends to transfer. Prior
to issuance of any Form I-20, the DSO at the transfer school is
responsible for determining that the student has been maintaining status
at his or her current school and is eligible for transfer to the new
school. The transfer will be effected only if the student completes the
Student Certification portion of the Form I-20 and returns the form to a
DSO of the transfer school within 15 days of the program start date
listed on Form I-20. Upon receipt of the student's Form I-20 the DSO
must note ``transfer completed on (date)'' in the space provided for the
DSO's remarks, thereby acknowledging the student's attendance at the
transfer school; return the Form I-20 to the student; submit the School
copy of the Form I-20 to Service's Data Processing Center within 30 days
of receipt from the student; and forward a photocopy of the school copy
to the school from which the student transferred.
(B) Non-SEVIS school to SEVIS school. To transfer from a non-SEVIS
school to a SEVIS school, the student must first notify the school he or
she is attending of the intent to transfer, then obtain a SEVIS Form I-
20 issued in accordance with the provisions of 8 CFR 214.3(k) from the
school to which he or she intends to transfer. Prior to issuance of any
Form I-20, the DSO at the transfer school is responsible for determining
that the student has been maintaining status at his or her current
school and is eligible for transfer to the new school. Once the transfer
school has issued the SEVIS Form I-20 to the student indicating a
transfer, the transfer school becomes responsible for updating and
maintaining the student's record in SEVIS. The student is then required
to notify the DSO at the transfer school within 15 days of the program
start date listed on SEVIS Form I-20. Upon notification that the student
is enrolled in classes, the DSO of the transfer school must update SEVIS
to reflect the student's registration and current address, thereby
acknowledging that the student has completed the transfer process. In
the remarks section of the student's SEVIS Form I-20, the DSO must note
that the transfer has been completed, including the date, and return the
form to the student. The transfer is effected when
[[Page 252]]
the transfer school updates SEVIS indicating that the student has
registered in classes within the 30 days required by Sec.
214.3(g)(3)(iii).
(C) SEVIS school to SEVIS school. To transfer from a SEVIS school to
a SEVIS school the student must first notify his or her current school
of the intent to transfer and must indicate the school to which he or
she intends to transfer. Upon notification by the student, the current
school will update the student's record in SEVIS as a ``transfer out''
and indicate the school to which the student intends to transfer, and a
release date. The release date will be the current semester or session
completion date, or the date of expected transfer if earlier than the
established academic cycle. The current school will retain control over
the student's record in SEVIS until the student completes the current
term or reaches the release date. At the request of the student, the DSO
of the current school may cancel the transfer request at any time prior
to the release date. As of the release date specified by the current
DSO, the transfer school will be granted full access to the student's
SEVIS record and then becomes responsible for that student. The current
school conveys authority and responsibility over that student to the
transfer school, and will no longer have full SEVIS access to that
student's record. As such, a transfer request may not be cancelled by
the current DSO after the release date has been reached. After the
release date, the transfer DSO must complete the transfer of the
student's record in SEVIS and may issue a SEVIS Form I-20. The student
is then required to contact the DSO at the transfer school within 15
days of the program start date listed on the SEVIS Form I-20. Upon
notification that the student is enrolled in classes, the DSO of the
transfer school must update SEVIS to reflect the student's registration
and current address, thereby acknowledging that the student has
completed the transfer process. In the remarks section of the student's
SEVIS Form I-20, the DSO must note that the transfer has been completed,
including the date, and return the form to the student. The transfer is
effected when the transfer school notifies SEVIS that the student has
enrolled in classes in accordance with the 30 days required by Sec.
214.3(g)(3)(iii).
(D) SEVIS school to non-SEVIS school. To transfer from a SEVIS
school to a non-SEVIS school, the student must first notify his or her
current school of the intent to transfer and must indicate the school to
which he or she intends to transfer. Upon notification by the student,
the current school will update the student's status in SEVIS as ``a
transfer out'', enter a ``release'' or expected transfer date, and
update the transfer school as ``non-SEVIS.'' The student must then
notify the school to which the he or she intends to transfer of his or
her intent to enroll. After the student has completed his or her current
term or session, or has reached the expected transfer date, the DSO at
the current school will no longer have full access to the student's
SEVIS record. At this point, if the student has notified the transfer
school of his or her intent to transfer, and the transfer school has
determined that the student has been maintaining status at his or her
current school, the transfer school may issue the student a Form I-20.
The transfer will be effected only if the student completes the Student
Certification portion of the Form I-20 and returns the form to a
designated school official of the transfer school within 15 days of the
program start date listed on Form I-20. Upon receipt of the student's
Form I-20 the DSO must do as follows: note ``transfer completed on
(date)'' in the space provided for the DSO's remarks, thereby
acknowledging the student's attendance; return the Form I-20 to the
student; submit the school copy of the Form I-20 to the Service's data
processing center within 30 days of receipt from the student; and
forward a photocopy of the school copy to the school from which the
student transferred.
(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;
[[Page 253]]
(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 20
hours a week while school is in session, unless the Commissioner
suspends the applicability of this limitation due to emergent
circumstances, as determined by the Commissioner, by means of notice in
the Federal Register, the student demonstrates to the DSO that the
employment is necessary to avoid severe economic hardship resulting from
the emergent circumstances, and the DSO notates the Form I-20 in
accordance with the Federal Register document. 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. In the case of a transfer in SEVIS,
the student may only engage in on-campus employment at the school having
jurisdiction over the student's SEVIS record. Upon initial entry to
begin a new course of study, an F-1 student may not begin on-campus
employment more than 30 days prior to the actual start of classes.
(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. In emergent
circumstances as determined by the Commissioner, the Commissioner may
suspend the applicability of any or all of the requirements of paragraph
(f)(9)(ii) of this section by notice in the Federal Register.
(B) [Reserved]
(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.
[[Page 254]]
(D) Procedure for off-campus employment authorization due to severe
economic hardship. The student must request a recommendation from the
DSO for off-campus employment. The DSO at a non-SEVIS school must make
such a certification on Form I-538, Certification by Designated School
Official. The DSO of a SEVIS school must complete such certification in
SEVIS. The DSO may recommend the student for work off-campus for one
year intervals by certifying 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) 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)
of this section is unavailable or otherwise insufficient to meet the
needs that have arisen as a result of the unforeseen circumstances.
(E) [Reserved]
(F) Severe economic hardship application. (1) The applicant should
submit the economic hardship application for employment authorization on
Form I-765, with the fee required by 8 CFR 103.7(b)(1), to the service
center having jurisdiction over his or her place of residence.
Applicants at a non-SEVIS school should submit Form I-20, Form I-538,
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 paragraph (f)(9)(i) of this section. Students enrolled
in a SEVIS school should submit the SEVIS Form I-20 with the employment
page demonstrating the DSO's comments and certification.
(2) The Service shall adjudicate the application for work
authorization 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 to
the service center 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, Form I-20 ID or SEVIS Form I-20
with employment page completed by DSO certifying eligibility for
employment, and a completed Form I-765, with required fee as contained
in Sec. 103.7(b)(1) of this chapter.
(10) Practical training. Practical training may be authorized to an
F-1 student who has been lawfully enrolled on a full time basis, in a
Service-approved college, university, conservatory, or seminary for one
full academic year. This provision also includes students who, during
their course of study, were enrolled in a study abroad program, if the
student had spent at least one full academic term enrolled in a full
course of study in the United States prior to
[[Page 255]]
studying abroad. A student may be authorized 12 months of practical
training, and becomes eligible for another 12 months of practical
training when he or she changes to a higher educational level. Students
in English language training programs are ineligible for practical
training. An eligible student may request employment authorization for
practical training in a position that is directly related to his or her
major area of study. There are two types of practical training
available:
(i) Curricular practical training. An F-1 student may be authorized
by the DSO to participate in a curricular practical training program
that is an integral part of an established curriculum. Curricular
practical training is defined to be alternative work/study, internship,
cooperative education, or any other type of required internship or
practicum that 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 academic training. Exceptions to the one academic year
requirement are provided for students enrolled in graduate studies that
require immediate participation in curricular practical training. A
request for authorization for curricular practical training must be made
to the DSO. A student may begin curricular practical training only after
receiving his or her Form I-20 with the DSO endorsement.
(A) Non-SEVIS process. A student must request authorization for
curricular practical training using Form I-538. Upon approving the
request for authorization, the DSO shall: certify Form I-538 and send
the form to the Service's data processing center; endorse the student's
Form I-20 ID with ``full-time (or part-time) curricular practical
training authorized for (employer) at (location) from (date) to
(date)''; and sign and date the Form I-20ID before returning it to the
student.
(B) SEVIS process. To grant authorization for a student to engage in
curricular practical training, a DSO at a SEVIS school will update the
student's record in SEVIS as being authorized for curricular practical
training that is directly related to the student's major area of study.
The DSO will indicate whether the training is full-time or part-time,
the employer and location, and the employment start and end date. The
DSO will then print a copy of the employment page of the SEVIS Form I-20
indicating that curricular practical training has been approved. The DSO
must sign, date, and return the SEVIS Form I-20 to the student prior to
the student's commencement of employment.
(ii) Optional practical training--(A) General. A student may apply
to the Service for authorization for temporary employment for optional
practical training directly related to the student's major area of
study. The student may not begin optional practical training until the
date indicated on his or her employment authorization document, Form I-
766 or Form 688B. A student may submit an application for authorization
to engage in optional practical training up to 90 days prior to being
enrolled for one full academic year, provided that the period of
employment will not begin until after the completion of the full
academic year as indicated by the DSO. A student may be granted
authorization to engage in temporary employment for optional practical
training:
(1) During the student's annual vacation and at other times when
school is not in session, if the student is currently enrolled, and is
eligible for registration and intends to register for the next term or
session;
(2) While school is in session, provided that practical training
does not exceed 20 hours a week while school is in session; or
(3) After completion of the course of study, or, for a student in a
bachelor's, master's, or doctoral degree program, after completion of
all course requirements for the degree (excluding thesis or equivalent).
Continued enrollment, for the school's administrative purposes, after
all requirements for the degree have been met does not preclude
eligibility for optional practical training. However, optional practical
training must be requested prior to the completion of all course
requirements for the degree or prior to the completion of the course of
study. A student must complete all practical training within
[[Page 256]]
a 14-month period following the completion of study.
(B) Termination of practical training. Authorization to engage in
optional practical training employment is automatically terminated when
the student transfers to another school or begins study at another
educational level.
(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-Non SEVIS schools. 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.
(E) SEVIS process. In making a recommendation for optional practical
training under SEVIS, the DSO will update the student's record in SEVIS
as having been recommended for optional practical training. A DSO who
recommends a student for optional practical training is responsible for
maintaining the record of the student for the duration of the time that
training is authorized. The DSO will indicate in SEVIS whether the
employment is to be full-time or part-time, and note in SEVIS the start
and end date of employment. The DSO will then print the employment page
of the student's SEVIS Form I-20, and sign and date the form to indicate
that optional practical training has been recommended. The student must
file with the service center for an Employment Authorization Document,
on Form I-765, with fee and the SEVIS Form I-20 employment page
indicating that optional practical training has been recommended by the
DSO.
(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 optional practical training on Form
I-20ID, or, for a SEVIS school, on an updated SEVIS Form I-20.
(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. An F-1 student authorized by
the Service to engage in practical training is required to report any
change of name or address, or interruption of such employment to the DSO
for the duration of the authorized training. A DSO who recommends a
student for optional practical training is responsible for updating the
student's record to reflect these reported changes for the duration of
the time that training is authorized.
(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
[[Page 257]]
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-2 spouse and minor
children of an F-1 student shall each be issued an individual SEVIS Form
I-20 in accordance with the provisions of Sec. 214.3(k).
(i) Employment. The F-2 spouse and children of an F-1 student may
not accept employment.
(ii) Study. (A) The F-2 spouse of an F-1 student may not engage in
full time study, and the F-2 child may only engage in full time study if
the study is in an elementary or secondary school (kindergarten through
twelfth grade). The F-2 spouse and child may engage in study that is
avocational or recreational in nature.
(B) An F-2 spouse or F-2 child desiring to engage in full time
study, other than that allowed for a child in paragraph (f)(15)(ii)(A)
of this section, must apply for and obtain a change of nonimmigrant
classification to F-1, J-1, or M-1 status. An F-2 spouse or child who
was enrolled on a full time basis prior to January 1, 2003, will be
allowed to continue study but must file for a change of nonimmigrant
classification to F-1, J-1, or M-1 status on or before March 11, 2003.
(C) An F-2 spouse or F-2 child violates his or her nonimmigrant
status by engaging in full time study except as provided in paragraph
(f)(15)(ii)(A) or (B) of this section.
(16) Reinstatement to student status--(i) General. The district
director may consider reinstating a student who makes a request for
reinstatement on Form I-539, Application to Extend/Change Nonimmigrant
Status, accompanied by a properly completed SEVIS Form I-20 indicating
the DSO's recommendation for reinstatement (or a properly completed Form
I-20A-B issued prior to January 30, 2003, from the school the student is
attending or intends to attend prior to August 1, 2003). The district
director may consider granting the request if the student:
(A) Has not been out of status for more than 5 months at the time of
filing the request for reinstatement (or demonstrates that the failure
to file within the 5 month period was the result of exceptional
circumstances and that the student filed the request for reinstatement
as promptly as possible under these exceptional circumstances);
(B) Does not have a record of repeated or willful violations of
Service regulations;
(C) Is currently pursuing, or intending to pursue, a full course of
study in the immediate future at the school which issued the Form I-20;
(D) Has not engaged in unauthorized employment;
(E) Is not deportable on any ground other than section 237(a)(1)(B)
or (C)(i) of the Act; and
(F) Establishes to the satisfaction of the Service, by a detailed
showing, either that:
(1) The violation of status resulted from circumstances beyond the
student's control. Such circumstances might include serious injury or
illness, closure of the institution, a natural disaster, or
inadvertence, oversight, or neglect on the part of the DSO, but do not
include instances where a pattern of repeated violations or where a
willful failure on the part of the student resulted in the need for
reinstatement; or
[[Page 258]]
(2) The violation relates to a reduction in the student's course
load that would have been within a DSO's power to authorize, and that
failure to approve reinstatement would result in extreme hardship to the
student.
(ii) Decision. If the Service reinstates the student, the Service
shall endorse the student's copy of Form I-20 to indicate the student
has been reinstated and return the form to the student. If the Form I-20
is from a non-SEVIS school, the school copy will be forwarded to the
school. If the Form I-20 is from a SEVIS school, the adjudicating
officer will update SEVIS to reflect the Service's decision. In either
case, if the Service does not reinstate the student, the student may not
appeal that decision.
(17) Current name and address. A student must inform the DSO and the
Service of any legal changes to his or her name or of any change of
address, within 10 days of the change, in a manner prescribed by the
school. A student enrolled at a SEVIS school can satisfy the requirement
in 8 CFR 265.1 of notifying the Service by providing a notice of a
change of address within 10 days to the DSO, who in turn shall enter the
information in SEVIS within 21 days of notification by the student. A
student enrolled at a non-SEVIS school must submit a notice of change of
address to the Service, as provided in 8 CFR 265.1, within 10 days of
the change. Except in the case of a student who cannot receive mail
where he or she resides, the address provided by the student must be the
actual physical location where the student resides rather than a mailing
address. In cases where a student provides a mailing address, the school
must maintain a record of, and must provide upon request from the
Service, the actual physical location where the student resides.
(18) Special rules for certain border commuter students--(i)
Applicability. For purposes of the special rules in this paragraph
(f)(18), the term ``border commuter student'' means a national of Canada
or Mexico who is admitted to the United States as an F-1 nonimmigrant
student to enroll in a full course of study, albeit on a part-time
basis, in an approved school located within 75 miles of a United States
land border. A border commuter student must maintain actual residence
and place of abode in the student's country of nationality, and seek
admission to the United States at a land border port-of-entry. These
special rules do not apply to a national of Canada or Mexico who is:
(A) Residing in the United States while attending an approved school
as an F-1 student, or
(B) Enrolled in a full course of study as defined in paragraph
(f)(6) of this section.
(ii) Full course of study. The border commuter student must be
enrolled in a full course of study at the school that leads to the
attainment of a specific educational or professional objective, albeit
on a part-time basis. A designated school official at the school may
authorize an eligible border commuter student to enroll in a course load
below that otherwise required for a full course of study under paragraph
(f)(6) of this section, provided that the reduced course load is
consistent with the border commuter student's approved course of study.
(iii) Period of admission. An F-1 nonimmigrant student who is
admitted as a border commuter student under this paragraph (f)(18) will
be admitted until a date certain. The DSO is required to specify a
completion date on the Form I-20 that reflects the actual semester or
term dates for the commuter student's current term of study. A new Form
I-20 will be required for each new semester or term that the border
commuter student attends at the school. The provisions of paragraphs
(f)(5) and (f)(7) of this section, relating to duration of status and
extension of stay, are not applicable to a border commuter student.
(iv) Employment. A border commuter student may not be authorized to
accept any employment in connection with his or her F-1 student status,
except for curricular practical training as provided in paragraph
(f)(10)(i) of this section or post-completion optional practical
training as provided in paragraph (f)(10)(ii)(A)(3) of this section.
(g) Representatives to international organizations--(1) General. The
determination by a consular officer prior to admission and the
recognition by the
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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 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-
[[Page 260]]
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. 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
[[Page 261]]
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.
(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)(c) 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
[[Page 262]]
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-1C, 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-1C 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
(as defined at section 212(m)(6) of the Act) 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. This classification will expire 4 years from June 11, 2001.
(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
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 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-1B,
[[Page 263]]
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. A United States employer seeking to classify
an alien as an H-1C nonimmigrant registered nurse shall file a petition
on Form I-129 at the Vermont Service Center. 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
seeks to change employers, the prospective 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 employment with the new petitioner until the
petition is approved. An H-1C nonimmigrant alien may not change
employers.
(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 alien's eligibility as
specified in the original approved petition. An amended or new H-1C, 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. A United States agent may file a petition
in cases involving workers who are traditionally self-employed or
workers who 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 on its behalf. A United States agent may be:
the actual employer of the beneficiary, the representative of both the
employer and the beneficiary, or, a person or entity authorized by the
employer to act for, or in place of, the employer as it agent. A
petition filed by a United States agent is subject to the following
conditions;
(1) An agent performing the function of an employer must guarantee
the wages and other terms and conditions of employment by contractual
agreement with the beneficiary or beneficiaries of the petition. The
agent/employer must also provide an itinerary of definite employment and
information on any other services planned for the period of time
requested.
(2) 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 or beneficiaries if the supporting
documentation includes a complete itinerary of services or engagements.
The itinerary shall specify
[[Page 264]]
the dates of each service or engagement, the names and addresses of the
actual employers, and the names and addresses of the establishment,
venues, or locations where the services will be performed. In
questionable cases, a contract between the employers and the beneficiary
or beneficiaries may be required. The burden is on the agent to explain
the terms and conditions of the employment and to provide any required
documentation.
(3) A foreign employer who, through a United States agent, files a
petition for an H nonimmigrant alien is responsible for complying with
all of the employer sanctions provisions of section 274A of the Act and
8 CFR part 274a.
(ii) Multiple beneficiaries. More than one beneficiary may be
included in an H-1C, 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-1C)--(i) General. (A) For
purposes of H-1C classification, the term ``registered nurse'' means 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.
(B) A United States employer which provides health care services is
referred to as a facility. A facility may file an H-1C petition for an
alien nurse to perform the services of a registered nurse, if the
facility meets the eligibility standards of 20 CFR 655.1111 and the
other requirements of the Department of Labor's regulations in 20 CFR
part 655, subpart L.
(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 or application for change of status for an H-1C nurse
may be filed and adjudicated only at the Vermont Service Center.
(ii) [Reserved]
(iii) Beneficiary requirements. An H-1C 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;
(B) Has passed the examination given by the Commission on Graduates
of Foreign Nursing Schools (CGFNS), or has obtained a full and
unrestricted
[[Page 265]]
(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-1C petition:
(A) A current copy of the DOL's notice of acceptance of the filing
of its attestation on Form ETA 9081;
(B) A statement describing any limitations which the laws of the
state or jurisdiction of intended employment place on the alien's
services; and
(C) Evidence that the alien(s) named on the petition meets the
definition of a registered nurse as defined at 8 CFR 214.2(h)(3)(i)(A),
and satisfies the requirements contained in section 212(m)(1) of the
Act.
(v) Licensure requirements. (A) A nurse who is granted H-1C
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.
(B) An alien who was admitted as an H-1C nonimmigrant on the basis
of a temporary license or authorization to practice as a registered
nurse must comply with the licensing requirements for registered nurses
in the state of intended employment. An alien admitted as an H-1C
nonimmigrant is required to obtain a full and unrestricted license if
required by the state of intended employment. The Service must be
notified pursuant to Sec. 214.2(h)(11) when an H-1C nurse is no longer
licensed as a registered nurse in the state of intended employment.
(C) A nurse shall automatically lose his or her eligibility for H-1C
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.
(vi) Other requirements. (A) If the Secretary of Labor notifies the
Service that a facility which employs H-1C nonimmigrant nurses 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 H-1C nonimmigrant nurses to be employed
by the facility for a period of at least 1 year from the date of receipt
of such notice. The Secretary of Labor shall make a recommendation with
respect to the length of debarment. If the Secretary of Labor recommends
a longer period of debarment, the Service will give considerable weight
to that recommendation.
(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,
[[Page 266]]
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 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;
[[Page 267]]
(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 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
[[Page 268]]
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
(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:
[[Page 269]]
(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-1C 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-1C nurses. For purposes of licensure, H-1C 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 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
[[Page 270]]
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 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
[[Page 271]]
(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.
(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
[[Page 272]]
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
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.
[[Page 273]]
(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 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
[[Page 274]]
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.
(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
[[Page 275]]
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, a United
States agent, or a foreign employer filing through a United States
agent. For purposes of paragraph (h) of this section, a foreign employer
is any employer who is not amendable to service of process in the United
States. A foreign employer may not directly petition for an H-2B
nonimmigrant but must use the services of a United States agent to file
a petition for an H-2B nonimmigrant. A United States agent petitioning
on behalf of a foreign employer must be authorized to file the petition,
and to accept service of process in the United States in proceedings
under section 274A of the Act, on behalf of the employer. The
petitioning employer shall consider available United States 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 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
[[Page 276]]
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 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
[[Page 277]]
(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, 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
[[Page 278]]
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.
(vii) Traded professional H-2B athletes. In the case of a
professional H-2B athlete who is traded from one organization or another
organization, employment authorization for the player will automatically
continue for a period of 30 days after the player's acquisition by the
new organization, within which time the new organization is expected to
file a new Form I-129 for H-2B nonimmigrant classification. If a new
Form I-129 is not filed within 30 days, employment authorization will
cease. If a new Form I-129 is filed within 30 days, the professional
athlete shall be deemed to be in valid H-2B status, and employment shall
continue to be authorized, until the petition is adjudicated. If the new
petition is denied, employment authorization will cease.
(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 279]]
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 H-1B nonimmigrants, excluding those
involved in Department of Defense research and development projects or
coproduction projects, may not exceed:
(1) 115,000 in fiscal year 1999;
(2) 115,000 in fiscal year 2000;
(3) 107,500 in fiscal year 2001; and
(4) 65,000 in each succeeding fiscal year.
(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.
(E) Aliens classified as H-1C nonimmigrants may not exceed 500 in a
fiscal year.
(ii) Procedures. (A) Each alien issued a visa or otherwise provided
nonimmigrant status under section 101(a)(15)(H)(i)(b),
101(a)(15)(H)(i)(c), or 101(a)(15)(H)(ii) 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
[[Page 280]]
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 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.
(F) The 500 H-1C nonimmigrant visas issued each fiscal year shall be
allocated in the following manner:
(1) For each fiscal year, the number of visas issued to the states
of California, Florida, Illinois, Michigan, New York, Ohio,
Pennsylvania, and Texas shall not exceed 50 each (except as provided for
in paragraph (h)(8)(ii)(F)(3) of this section).
(2) For each fiscal year, the number of visas issued to the states
not listed in paragraph (h)(8)(ii)(F)(1) of this section shall not
exceed 25 each (except as provided for in paragraph (h)(8)(ii)(F)(3) of
this section).
(3) If the total number of visas available during the first three
quarters of a fiscal year exceeds the number of approvable H-1C
petitions during those quarters, visas may be issued during the last
quarter of the fiscal year to nurses who will be working in a state
whose cap has already been reached for that fiscal year.
(4) When an approved H-1C petition is not used because the alien(s)
does not obtain H-1C classification, e.g., the alien is never admitted
to the United States, or the alien never worked for the facility, the
facility must notify the Service according to the instructions contained
in paragraph (h)(11)(ii) of this section. The Service will subtract H-1C
petitions approved in the current fiscal year that are later revoked
from the total count of approved H-1C petitions, provided that the alien
never commenced employment with the facility.
(5) If the number of alien nurses included in an H-1C petition
exceeds the number available for the remainder of a fiscal year, the
Service shall approve the petition for the beneficiaries to the
allowable amount in the order that they are listed on the petition. The
remaining beneficiaries will be considered for approval in the
subsequent fiscal year.
(6) Once the 500 cap has been reached, the Service will reject any
new petitions subsequently filed requesting a work start date prior to
the first day 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.
[[Page 281]]
(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)(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.
(B) H-2B petition--(1) Labor certification attached. If a
certification by the Secretary of Labor or the Governor of 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 Director,
Administrative Appeals Office, Headquarters. 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.
(C)(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.
(D) H-1C petition for a registered nurse. An approved petition for
an alien classified under section 101(a)(15)(H)(i)(c) of the Act shall
be valid for a period of 3 years.
(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
[[Page 282]]
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 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
[[Page 283]]
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-1C limitation on admission. The maximum period of admission
for an H-1C nonimmigrant alien is 3 years. The maximum period of
admission for an H-1C alien begins on the date the H-1C alien is
admitted to the United and ends on the third anniversary of the alien's
admission date. Periods of time spent out of the United States for
business or personal reasons during the validity period of the H-1C
petition count towards the alien's maximum period of admission. When an
H-1C alien has reached the 3-year maximum period of admission, the H-1C
alien is no longer eligible for admission to the United States as an H-
1C nonimmigrant alien.
(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.
(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)(iii) through
(h)(13)(iv) of this section shall not apply to 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
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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-1C extension of stay. The maximum
period of admission for an H-1C alien is 3 years. An H-1C alien who was
initially admitted to the United States for less than 3 years may
receive an extension of stay up to the third anniversary date of his or
her initial admission. An H-1C nonimmigrant may not receive an extension
of stay beyond the third anniversary date of his or her initial
admission to 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 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-1B or H-1C
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-1C 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-1C 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
[[Page 285]]
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 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.
(19) Additional fee for filing certain H-1B petitions. (i) A United
States employer (other than an exempt employer as defined in paragraph
(h)(19)(iii) of this section) who files a Form I-129, on or after
December 1, 1998, and before October 1, 2001, must include the
additional fee required in Sec. 103.7(b)(1) of this chapter, if the
petition is filed for any of the following purposes:
(A) An initial grant of H-1B status under section
101(a)(15)(H)(i)(b) of the Act;
(B) An initial extension of stay, as provided in paragraph
(h)(15)(i) of this section; or
(C) Authorization for a change in employers, as provided in
paragraph (h)(2)(i)(D) of this section.
(ii) A petitioner must submit the $110 filing fee and additional
$500 filing fee in a single remittance totaling $610. Payment of the
$610 sum ($110 filing fee and additional $500 filing fee) must be made
at the same time to constitute a single remittance. A petitioner may
submit two checks, one in the amount of $500 and the other in the amount
of $110. The Service will accept remittances of the $500 fee only from
the United States employer or its representative of record, as defined
under 8 CFR part 292 and 8 CFR 103.2(a).
(iii) The following exempt organizations are not required to pay the
additional fee:
[[Page 286]]
(A) An institution of higher education, as defined in section 101(a)
of the Higher Education Act of 1965;
(B) An affiliated or related nonprofit entity. A nonprofit entity
(including but not limited to hospitals and medical or research
institutions) that is connected or associated with an institution of
higher education, through shared ownership or control by the same board
or federation operated by an institution of higher education, or
attached to an institution of higher education as a member, branch,
cooperative, or subsidiary; or
(C) A nonprofit research organization or governmental research
organization. A nonprofit research organization is an organization that
is primarily engaged in basic research and/or applied research. A
governmental research organization is a United States Government entity
whose primary mission is the performance or promotion of basic research
and/or applied research. Basic research is general research to gain more
comprehensive knowledge or understanding of the subject under study,
without specific applications in mind. Basic research is also research
that advances scientific knowledge, but does not have specific immediate
commercial objectives although it may be in fields of present or
potential commercial interest. It may include research and investigation
in the sciences, social sciences, or humanities. Applied research is
research to gain knowledge or understanding to determine the means by
which a specific, recognized need may be met. Applied research includes
investigations oriented to discovering new scientific knowledge that has
specific commercial objectives with respect to products, processes, or
services. It may include research and investigation in the sciences,
social sciencies, or humanities.
(iv) Non-profit or tax exempt organizations. For purposes of
paragraphs (h)(19)(iii) (B) and (C) of this section, a nonprofit
organization or entity is:
(A) Defined as a tax exempt organization under the Internal Revenue
Code of 1986, section 501(c)(3), (c)(4) or (c)(6), 26 U.S.C. 501(c)(3),
(c)(4) or (c)(6), and
(B) Has been approved as a tax exempt organization for research or
educational purposes by the Internal Revenue Service.
(v) Filing situations where the $500 filing fee is not required. The
$500 filing fee is not required:
(A) If the petition is an amended H-1B petition that does not
contain any requests for an extension of stay;
(B) If the petition is an H-1B petition filed for the sole purpose
of correcting a Service error; or
(C) If the petition is the second or subsequent request for an
extension of stay filed by the employer regardless of when the first
extension of stay was filed or whether the $500 filing fee was paid on
the initial petition or the first extension of stay.
(vi) Petitioners required to file Form I-129W. All petitioners must
submit Form I-129W with the appropriate supporting documentation with
the petition for an H-1B nonimmigrant alien. Petitioners who do not
qualify for a fee exemption are required only to fill our Part A of Form
I-129W.
(vii) Evidence to be submitted in support of the Form I-129W. (A)
Employer claiming to be exempt. An employer claiming to be exempt from
the $500 filing fee must complete both Parts A and B of Form I-129W
along with Form I-129. The employer must also submit evidence as
described on Form I-129W establishing that it meets one of the
exemptions described at paragraph (h)(19)(iii) of this section. A United
States employer claiming an exemption from the $500 filing fee on the
basis that it is a non-profit research organization must submit evidence
that it has tax exempt status under the Internal Revenue Code of 1986,
section 501(c)(3), (c)(4) or (c)(6), 26 U.S.C. 501(c)(3), (c)(4) or
(c)(6). All other employers claiming an exemption must submit a
statement describing why the organization or entity is exempt.
(B) Exempt filing situations. Any non-exempt employer who claims
that the $500 filing fee does not apply with respect to a particular
filing for one of the reasons described in Sec. 214.2(h)(19)(v), must
submit a statement describing why the filing fee is not required.
(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
[[Page 287]]
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) Eligibility for admission. A
nonimmigrant exchange visitor and his or her accompanying spouse and
minor children may be admitted into the United States in J-1 and J-2
classifications under section 101(a)(15)(J) of the Act, if the exchange
visitor and his or her accompanying spouse and children each presents a
SEVIS Form DS-2019 issued in his or her own name by a program approved
by the Department of State for participation by J-1 exchange visitors.
Prior to August 1, 2003, if exigent circumstances are demonstrated, the
Service will allow the dependent of an exchange visitor possessing a
SEVIS Form DS-2019 to enter the United States using a copy of the
exchange visitor's SEVIS Form DS-2019. However, where the exchange
visitor presents a properly completed Form DS-2019, Certificate of
Eligibility for Exchange Visitor (J-1) Status, which was issued to the
J-1 exchange visitor by a program approved by the Department of State
for participation by exchange visitors and which remains valid for the
admission of the exchange visitor, the accompanying spouse and children
may be admitted on the basis of the J-1's non-SEVIS Form DS-2019.
(ii) Admission period. An exchange alien, and J-2 spouse and
children, may be admitted for a period up to 30 days before the report
date or start of the approved program listed on Form DS-2019. The
initial admission of an exchange visitor, spouse and children may not
exceed the period specified on Form DS-2019, plus a period of 30 days
for the purposes of travel or for the period designated by the
Commissioner as provided in paragraph (j)(1)(vi) of this section.
Regulations of the Department of State published at 22 CFR part 62 give
general limitations on the stay of the various classes of exchange
visitors. A spouse or child may not be admitted for longer than the
principal exchange visitor.
(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 DS-2019 which indicates the date to which the alien's program
is extended. The extension may not exceed the period specified on Form
DS-2019, 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 DS-2019, 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 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
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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.
(vi) Extension of duration of status. The Commissioner may, by
notice in the Federal Register, at any time she determines that the H-1B
numerical limitation as described in section 214(g)(1)(A) of the Act
will likely be reached prior to the end of a current fiscal year, extend
for such a period of time as the Commissioner deems necessary to
complete the adjudication of the H-1B application, the duration of
status of any J-1 alien on behalf of whom an employer has timely filed
an application for change of status to H-1B. The alien, in accordance
with 8 CFR part 248, must not have violated the terms of his or her
nonimmigrant stay and is not subject to the 2-year foreign residence
requirement at 212(e) of the Act. Any J-1 student whose duration of
status has been extended shall be considered to be maintaining lawful
nonimmigrant status for all purposes under the Act, provided that the
alien does not violate the terms and conditions of his or her J
nonimmigrant stay. An extension made under this paragraph also applies
to the J-2 dependent aliens.
(vii) Use of SEVIS. At a date to be established by the Department of
State, the use of the Student and Exchange Visitor Information System
(SEVIS) will become mandatory for designated program sponsors. After
that date, which will be announced by publication in the Federal
Register, all designated program sponsors must begin issuance of the
SEVIS Form DS-2019.
(viii) Current name and address. A J-1 exchange visitor must inform
the Service and the responsible officer of the exchange visitor program
of any legal changes to his or her name or of any change of address,
within 10 days of the change, in a manner prescribed by the program
sponsor. A J-1 exchange visitor enrolled in a SEVIS program can satisfy
the requirement in 8 CFR 265.1 of notifying the Service by providing a
notice of a change of address within 10 days to the responsible officer,
who in turn shall enter the information in SEVIS within 21 days of
notification by the exchange visitor. A J-1 exchange visitor enrolled at
a non-SEVIS program must submit a change of address to the Service, as
provided in 8 CFR 265.1, within 10 days of the change. Except in the
case of an exchange visitor who cannot receive mail where he or she
resides, the address provided by the exchange visitor must be the actual
physical location where the exchange visitor resides rather than a
mailing address. In cases where an exchange visitor provides a mailing
address, the exchange visitor program must maintain a record of, and
must provide upon request from the Service, the actual physical location
where the exchange visitor resides.
(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 DS-2019 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
[[Page 289]]
may be obtained if the participant is accepted in another approved
program and a Form DS-2019, 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 DS-2019.
(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.
(k) Spouses, Fianc[eacute]es, and Fianc[eacute]s 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)(i) 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 K-1 beneficiary have met. The
petitioner shall establish to the satisfaction of the director that the
petitioner and K-1 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 K-1 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 K-1 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 K-1 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.
[[Page 290]]
(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 K-1 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) [Reserved]
(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-1 visa issued on
or after November 10, 1986, the K-1 beneficiary and his or her 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.
(7) Eligibility, petition and supporting documents for K-3/K-4
classification. To be classified as a K-3 spouse as defined in section
101(a)(15)(k)(ii) of the Act, or the K-4 child of such alien defined in
section 101(a)(15)(K)(iii) of the Act, the alien spouse must be the
beneficiary of an immigrant visa petition filed by a U.S. citizen on
Form I-130, Petition for Alien Relative, and the beneficiary of an
approved petition for a K-3 nonimmigrant visa filed on Form I-129F. The
petitions 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, or such other
place as the Commissioner may designate.
(8) Period of admission for K3/K-4 status. Aliens entering the
United States as a K-3 shall be admitted for a period of 2 years. Aliens
entering the United States as a K-4 shall be admitted for a period of 2
years or until that alien's 21st birthday, whichever is shorter.
(9) Employment authorization. An alien admitted to the United States
as a nonimmigrant under section 101(a)(15)(K) of the Act shall be
authorized to work incident to status for the period of authorized stay.
K-1/K-2 aliens seeking work authorization must apply, with fee, to the
Service for work authorization pursuant to Sec. 274a.12(a)(6) of this
chapter. K-3/K-4 aliens must apply to the Service for a document
evidencing employment authorization pursuant to Sec. 274a.12(a)(9) of
this chapter. Employment authorization documents issued to K-3/K-4
aliens may be renewed only upon a showing that the applicant has an
application or petition awaiting approval, equivalent to the showing
required for an extension of stay pursuant to Sec. 214.2(k)(10).
(10) Extension of stay for K-3/K-4 status--(i) General. A K-3/K-4
alien may apply for extension of stay, on Form I-539, Application to
Extend/Change Nonimmigrant Status, 120 days prior to the expiration of
his or her authorized stay. Extensions for K-4 status must be filed
concurrently with the alien's parent's K-3 status extension application.
In addition, the citizen parent of a K-4 alien filing for extension of K
status should file Form I-130 on their behalf. Extension will be granted
in 2-year intervals upon a showing of eligibility pursuant to section
101(a)(15)(K)(ii) or (iii) of the Act. Aliens wishing to extend their
period of stay as a K-3 or K-4 alien pursuant to Sec. 214.1(c)(2) must
show that one of the following has been filed with the Service or the
Department of State, as applicable, and is awaiting approval:
(A) The Form I-130, Petition for Alien Relative, filed by the K-3's
U.S. citizen spouse who filed the Form I-129F;
(B) An application for an immigrant visa based on a Form I-130
described in Sec. 214.2(K)(10)(i);
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(C) A Form I-485, Application for Adjustment to that of Permanent
Residence, based on a Form I-130 described in Sec. 214.2(k)(10)(i);
(ii) ``Good Cause'' showing. Aliens may file for an extension of
stay as a K-3/K-4 nonimmigrant after a Form I-130 filed on their behalf
has been approved, without filing either an application for adjustment
of status or an immigrant visa upon a showing of ``good cause.'' A
showing of ``good cause'' may include an illness, a job loss, or some
other catastrophic event that has prevented the filing of an adjustment
of status application by the K-3/K-4 alien. The event or events must
have taken place since the alien entered the United States as a K-3/K-4
nonimmigrant. The burden of establishing ``good cause'' rests solely
with the applicant. Whether the applicant has shown ``good cause'' is a
purely discretionary decision by the Service from which there is no
appeal.
(iii) Notice of intent to deny. When an adverse decision is proposed
on the basis of evidence not submitted by the applicant, the Service
shall notify the applicant of its intent to deny the application for
extension of stay and the basis for the proposed denial. The applicant
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
material will be considered in making a final decision.
(11) Termination of K-3/K-4 status. The status of an alien admitted
to the United States as a K-3/K-4 under section 101(a)(15)(K)(ii) or
(iii) of the Act, shall be automatically terminated 30 days following
the occurrence of any of the following:
(i) The denial or revocation of the Form I-130 filed on behalf of
that alien;
(ii) The denial or revocation of the immigrant visa application
filed by that alien;
(iii) The denial or revocation of the alien's application for
adjustment of status to that of lawful permanent residence;
(iv) The K-3 spouse's divorce from the U.S. citizen becomes final;
(v) The marriage of an alien in K-4 status.
(vi) The denial of any of these petitions or applications to a K-3
also results in termination of a dependent K-4's status. For purposes of
this section, there is no denial or revocation of a petition or
application until the administrative appeal applicable to that
application or petition has been exhausted.
(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
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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.
(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
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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 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
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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.
(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
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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 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-
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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.
(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
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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 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
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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 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
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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 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
[[Page 300]]
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 filing an application for or approval of a permanent
labor certification, preference petition, or filing of an application
for adjustment of status on L-1 classification. An alien may
legitimately come to the United States for a temporary period as an L-1
nonimmigrant and, at the same time, lawfully seek to become a permanent
resident of the United States provided he or she intends to depart
voluntarily at the end of his or her authorized stay. The filing of an
application for or approval of a permanent labor certification, an
immigrant visa preference petition, or the filing of an application of
readjustment of status for an L-1 nonimmigrant shall not be the basis
for denying:
(i) An L-1 petition filed on behalf of the alien,
(ii) A request to extend an L-1 petition which had previously been
filed on behalf of the alien;
(iii) An application for admission as an L-1 nonimmigrant by the
alien, or as an L-2 nonimmigrant by the spouse or child of such alien;
(iv) An application for change of status to H-1 or L-2 nonimmigrant
filed by the alien, or to H-1, H-4, or L-1 status filed by the L-2
spouse or child of such alien;
(v) An application for change of status to H-4 nonimmigrant filed by
the L-1 nonimmigrant, if his or her spouse has been approved for
classification as an H-1; or
(vi) An application for extension of stay filed by the alien, or by
the L-2 spouse or child of such alien.
(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 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.
[[Page 301]]
(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 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. A nonimmigrant
student may be admitted into the United States in nonimmigrant status
under section 101(a)(15)(M) of the Act, if:
(A) The student presents a SEVIS Form I-20 issued in his or her own
name by a school approved by the Service for attendance by M-1 foreign
students. (In the alternative, for a student seeking admission prior to
August 1, 2003, the student may present a currently-valid Form I-20M-N/
I-20ID, if that form was issued by the school prior to January 30,
2003);
(B) The student has documentary evidence of financial support in the
[[Page 302]]
amount indicated on the SEVIS Form I-20 (or the Form I-20M-N/I-20ID);
and
(C) For students seeking initial admission only, the student intends
to attend the school specified in the student's visa (or, where the
student is exempt from the requirement for a visa, the school indicated
on the SEVIS Form I-20 (or the Form I-20M-N/I-20ID)).
(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.
(iii) Use of SEVIS. On January 30, 2003, the use of the Student and
Exchange Visitor Information System (SEVIS) will become mandatory for
the issuance of any new Form I-20. A student or dependent who presents a
non-SEVIS Form I-20 issued on or after January 30, 2003, will not be
accepted for admission to the United States. Non-SEVIS Forms I-20 issued
prior to January 30, 2003, will continue to be accepted for admission to
the United States until August 1, 2003. However, schools must issue a
SEVIS Form I-20 to any current student requiring a reportable action
(e.g., extension of status, practical training, and requests for
employment authorization) or a new Form I-20, or for any aliens who must
obtain a new nonimmigrant student visa. As of August 1, 2003, the
records of all current or continuing students must be entered in SEVIS.
(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) Admission of the spouse and minor children of an M-1 student.
The spouse and minor children accompanying an M-1 student are eligible
for admission in M-2 status if the student is admitted in M-1 status.
The spouse and minor children following-to-join an M-1 student are
eligible for admission to the United States in M-2 status if they are
able to demonstrate that the M-1 student has been admitted and is, or
will be within 30 days, enrolled in a full course of study, or engaged
in approved practical training following completion of studies. In
either case, at the time they seek admission, the eligible spouse and
minor children of an M-1 student with a SEVIS Form I-20 must
individually present an original SEVIS Form I-20 issued in the name of
each M-2 dependent issued by a school authorized by the Service for
attendance by M-1 foreign students. Prior to August 1, 2003, if exigent
circumstances are demonstrated, the Service will allow the dependent of
an M-1 student in possession of a SEVIS Form I-20 to enter the United
States using a copy of the M-1 student's SEVIS Form I-20. (In the
alternative, for dependents seeking admission to the United States prior
to August 1, 2003, a copy of the M-1 student's current Form I-20ID
issued prior to January 30, 2003, with proper endorsement by the DSO
will satisfy this requirement.) A new SEVIS Form I-20 (or Form I-20M-N)
is required for a dependent where there has been any substantive change
in the M-1 student's current information.
(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
[[Page 303]]
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. A student in M nonimmigrant status is admitted
for a fixed time period, which is the period necessary to complete the
course of study indicated on the Form I-20, plus practical training
following completion of the course of study, plus an additional 30 days
to depart the United States, but not to exceed a total period of one
year. An M-1 student may be admitted for a period up to 30 days before
the report date or start date of the course of study listed on the Form
I-20. An M-1 student who fails to maintain a full course of study or
otherwise fails to maintain status is not eligible for the additional
30-day period of stay.
(6)-(8) [Reserved]
(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.
(v) On-line courses/distance education programs. No on-line or
distance education classes may be considered to count toward an M-1
student's full course of study requirement if such classes do not
require the student's physical attendance for classes, examination or
other purposes integral to completion of the class. An on-line or
distance education course is a course that is offered principally
through the use of television, audio, or computer transmission including
open broadcast, closed circuit, cable, microwave, or satellite, audio
conferencing, or computer conferencing.
(vi) Reduced course load. The designated school official may
authorize an M-1 student to engage in less than a
[[Page 304]]
full course of study only where the student has been compelled by
illness or a medical condition that has been documented by a licensed
medical doctor, doctor of osteopathy, or licensed clinical psychologist,
to interrupt or reduce his or her course of study. A DSO may not
authorize a reduced course load for more than an aggregate of 5 months
per course of study. An M-1 student previously authorized to drop below
a full course of study due to illness or medical condition for an
aggregate of 5 months, may not be authorized by the DSO to reduce his or
her course load on subsequent occasions during his or her particular
course of study.
(A) Non-SEVIS schools. A DSO must report any student who has been
authorized by the DSO to carry a reduced course load. Within 21 days of
the authorization, the DSO must send a photocopy of the student's Form
I-20 to the Service's data processing center indicating the date that
authorization was granted. The DSO must also report to the Service's
data processing center when the student has resumed a full course of
study, no more than 21 days from the date the student resumed a full
course of study. In this case, the DSO must submit a photocopy of the
student's Form I-20 indicating the date that a full course of study was
resumed, with a new program end date.
(B) SEVIS reporting. In order for a student to be authorized to drop
below a full course of study, the DSO must update SEVIS prior to the
student reducing his or her course load. The DSO must update SEVIS with
the date, reason for authorization, and the start date of the next term
or session. The DSO must also notify SEVIS within 21 days of the
student's commencement of a full course of study.
(10) Extension of stay--(i) Eligibility. The cumulative time of
extensions that can be granted to an M-1 student is limited to a period
of 3 years from the M-1 student's original start date, plus 30 days. No
extension can be granted to an M-1 student if the M-1 student is unable
to complete the course of study within 3 years of the original program
start date. This limit includes extensions that have been granted due to
a drop below full course of study, a transfer of schools, or
reinstatement. An M-1 student may be granted an extension of stay if it
is established that:
(A) He or she is a bona fide nonimmigrant currently maintaining
student status;
(B) Compelling educational or medical reasons have resulted in a
delay to his or her course of study. Delays caused by academic probation
or suspension are not acceptable reasons for program extension; and
(C) He or she 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. A student must apply to the Service for an
extension on Form I-539, Application to Extend/Change Nonimmigrant
Status. A student's M-2 spouse and children seeking an extension of stay
must be included in the application. The student must submit the
application to the service center having jurisdiction over the school
the student is currently authorized to attend, at least 15 days but not
more than 60 days before the program end date on the student's Form I-
20. The application must also be accompanied by the student's Form I-20
and the Forms I-94 of the student's spouse and children, if applicable.
(iii) Period of stay. If an application for extension 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 30 days within which to depart from
the United States, or for a total period of one year, whichever is less.
A student's M-2 spouse and children are not eligible for an extension
unless the M-1 student is granted an extension of stay, or for a longer
period than is granted to the M-1 student.
(iv) SEVIS update. A DSO must update SEVIS to recommend that a
student be approved for an extension of stay. The SEVIS Form I-20 must
be printed with the recommendation and new program end date for
submission by mail to the service center, with Form I-539, and Forms I-
94 if applicable.
(11) School transfer--(i) Eligibility. An M-1 student may not
transfer to another school after six months from the
[[Page 305]]
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. A student must apply to the Service on Form I-539
for permission to transfer between schools. Upon application for school
transfer, a student may effect the transfer subject to approval of the
application. A student who transfers without complying with this
requirement 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 determined to be the
program start date listed on the Form I-20, and the student will be
granted an extension of stay for the period of time necessary to
complete the new course of study plus 30 days, or for a total period of
one year, whichever is less.
(A) Non-SEVIS school. The application must be accompanied by the
Form I-20ID copy and the Form I-94 of the student's spouse and children,
if applicable. The Form I-539 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 center
having jurisdiction over the school the student is currently authorized
to attend. Upon approval, the adjudicating officer will endorse the name
of the school to which the transfer is authorized on the student's Form
I-20ID copy and return it to the student. The officer will also endorse
Form I-20M-N to indicate that a school transfer has been authorized and
forward it to the Service's processing center for updating. The
processing center will forward Form I-20M-N to the school to which the
transfer has been authorized to notify the school of the action taken.
(B) SEVIS school. The student must first notify his or her current
school of the intent to transfer and indicate the school to which the
student intends to transfer. Upon notification by the student, the
current school must update SEVIS to show the student as a ``transfer
out'' and input the ``release date'' for transfer. Once updated as a
``transfer out'' the transfer school is permitted to generate a SEVIS
Form I-20 for transfer but will not gain access to the student's SEVIS
record until the release date is reached. Upon receipt of the SEVIS Form
I-20 from the transfer school, the student must submit Form I-539 in
accordance with Sec. 214.2(m)(11) to the service center with
jurisdiction over the current school. The student may enroll in the
transfer school at the next available term or session and is required to
notify the DSO of the transfer school immediately upon beginning
attendance. The transfer school must update the student's registration
record in SEVIS in accordance with Sec. 214.3(g)(3). Upon approval of
the transfer application, the Service officer will endorse the name of
the school to which the transfer is authorized on the student's SEVIS
Form I-20 and return it to the student.
(C) Transition process. Once SEVIS is fully operational and
interfaced with the service center benefit processing system, the
Service officer will transmit the approval of the transfer to SEVIS and
endorse the name of the school to which transfer is authorized on the
student's SEVIS Form I-20 and return it to the student. As part of a
transitional process until that time, the student is required to notify
the DSO at the transfer school of the decision of the Service within 15
days of the receipt of the adjudication by the Service. Upon
notification by the student of the approval of the Service, the DSO must
immediately update SEVIS to show that approval of the transfer has been
granted. The DSO must then print an updated SEVIS Form I-20 for
[[Page 306]]
the student indicating that the transfer has been completed. If the
application for transfer is denied, the student is out of status and the
DSO must terminate the student's record in SEVIS.
(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 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, a 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.
(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.
(ii) Application. A M-1 student must apply for permission to accept
employment for practical training on Form I-765, with fee as contained
in 8 CFR 103.7(b)(1), accompanied by a Form I-20 that has been endorsed
for practical training by the designated school official. The
application must be submitted prior to the program end date listed on
the student's Form I-20 but not more than 90 days before the program end
date. 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.
(vi) SEVIS process. The DSO must update the student's record in
SEVIS to recommend that the Service approve
[[Page 307]]
the student for practical training, and print SEVIS Form I-20 with the
recommendation, for the student to submit to the Service with Form I-765
as provided in this paragraph (m)(14).
(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 a student who makes a request for
reinstatement on Form I-539, Application to Extend/Change Nonimmigrant
Status, accompanied by a properly completed SEVIS Form I-20 indicating
the DSO's recommendation for reinstatement (or a properly completed Form
I-20M-N issued prior to January 30, 2003, from the school the student is
attending or intends to attend prior to August 1, 2003). The district
director may consider granting the request only if the student:
(A) Has not been out of status for more than 5 months at the time of
filing the request for reinstatement (or demonstrates that the failure
to file within the 5 month period was the result of exceptional
circumstances and that the student filed the request for reinstatement
as promptly as possible under these exceptional circumstances);
(B) Does not have a record of repeated or willful violations of the
Service regulations;
(C) Is currently pursuing, or intends to pursue, a full course of
study at the school which issued the Form I-20M-N or SEVIS Form I-20;
(D) Has not engaged in unlawful employment;
(E) Is not deportable on any ground other than section 237(a)(1)(B)
or (C)(i) of the Act; and
(F) Establishes to the satisfaction of the Service, by a detailed
showing, either that:
(1) The violation of status resulted from circumstances beyond the
student's control. Such circumstances might include serious injury or
illness, closure of the institution, a natural disaster, or
inadvertence, oversight or neglect on the part of the DSO, but do not
include instances where a pattern of repeated violations or where a
willful failure on the part of the student resulted in the need for
reinstatement; or
(2) The violation relates to a reduction in the student's course
load that would have been within a DSO's power to authorize, and that
failure to approve reinstatement would result in extreme hardship to the
student.
(ii) Decision. If the Service reinstates the student, the Service
shall endorse the student's copy of Form I-20 to indicate that the
student has been reinstated and return the form to the student. If the
Form I-20 is from a non-SEVIS school, the school copy will be forwarded
to the school. If the Form I-20 is from a SEVIS school, the adjudicating
officer will update SEVIS to reflect the Service's decision. In either
case, if the Service does not reinstate the student, the student may not
appeal the decision. The district director will send notification to the
school of the decision.
(17) Spouse and children of M-1 student. The M-2 spouse and minor
children of an M-1 student shall each be issued an individual SEVIS Form
I-20 in accordance with the provisions of Sec. 214.3(k).
(i) Employment. The M-2 spouse and children may not accept
employment.
(ii) Study. (A) The M-2 spouse may not engage in full time study,
and the M-2 child may only engage in full time study if the study is in
an elementary or secondary school (kindergarten through twelfth grade).
The M-2 spouse and child may engage in study that is avocational or
recreational in nature.
(B) An M-2 spouse or M-2 child desiring to engage in full time
study, other than that allowed for a child in paragraph (m)(17)(ii) of
this section, must apply for and obtain a change of nonimmigrant
classification to F-1, J-1, or M-1 status. An M-2 spouse or child who
was enrolled on a full time basis prior to January 1, 2003, will be
allowed to continue study but must file for a change of nonimmigrant
classification to F-1, J-1, or M-1 status on or before March 11, 2003.
(C) An M-2 spouse or M-2 child violates his or her nonimmigrant
status
[[Page 308]]
by engaging in full time study except as provided in paragraph
(m)(17)(i) and (ii) of this section.
(18) Current name and address. A student must inform the Service and
the DSO of any legal changes to his or her name or of any change of
address, within 10 days of the change, in a manner prescribed by the
school. A student enrolled at a SEVIS school can satisfy the requirement
in 8 CFR 265.1 of notifying the Service by providing a notice of a
change of address within 10 days to the DSO, and the DSO in turn shall
enter the information in SEVIS within 21 days of notification by the
student. A nonimmigrant student enrolled at a non-SEVIS institution must
submit a notice of change of address to the Service, as provided in 8
CFR 265.1, within 10 days of the change. Except in the case of a student
who cannot receive mail where he or she resides, the address provided by
the student must be the actual physical location where the student
resides rather than a mailing address. In cases where a student provides
a mailing address, the school must maintain a record of, and must
provide upon request from the Service, the actual physical location
where the student resides.
(19) Special rules for certain border commuter students--(i)
Applicability. For purposes of the special rules in this paragraph
(m)(19), the term ``border commuter student'' means a national of Canada
or Mexico who is admitted to the United States as an M-1 student to
enroll in a full course of study, albeit on a part-time basis, in an
approved school located within 75 miles of a United States land border.
The border commuter student must maintain actual residence and place of
abode in the student's country of nationality, and seek admission to the
United States at a land border port-of-entry. These special rules do not
apply to a national of Canada or Mexico who is:
(A) Residing in the United States while attending an approved school
as an M-1 student, or
(B) Enrolled in a full course of study as defined in paragraph
(m)(9) of this section.
(ii) Full course of study. The border commuter student must be
enrolled in a full course of study at the school that leads to the
attainment of a specific educational or vocational objective, albeit on
a part-time basis. A designated school official at the school may
authorize an eligible border commuter student to enroll in a course load
below that otherwise required for a full course of study under paragraph
(m)(9) of this section, provided that the reduced course load is
consistent with the border commuter student's approved course of study.
(iii) Period of stay. An M-1 border commuter student is not entitled
to an additional 30-day period of stay otherwise available under
paragraph (m)(5) of this section.
(iv) Employment. A border commuter student may not be authorized to
accept any employment in connection with his or her M-1 student status,
except for practical training as provided in paragraph (m)(14) of this
section.
(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)
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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 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. Except as provided for in
paragraph (o)(2)(iv)(A) of this section, a petitioner seeking to
classify an alien as an O-1 or O-2 nonimmigrant shall file a petition on
Form I-129, Petition for a 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. An O-1 or O-2 petition shall be adjudicated at the
appropriate Service Center, even in emergency situations. Only one
beneficiary may be included on an O-1 petition. O-2 aliens must be filed
for on a separate petition from the O-1 alien. An O-1 or O-2 petition
may only be filed by a United States employer, a United States agent, or
a foreign employer through a United States agent. For purposes of
paragraph (o) of this section, a foreign employer is any employer who is
not amenable to service of process in the United States. A foreign
employer may not directly petition for an O nonimmigrant alien but
instead must use the services of a United States agent to file a
petition for an O nonimmigrant alien. A United States agent petitioning
on behalf of a foreign employer must be authorized to file the petition,
[[Page 310]]
and to accept services of process in the United States in proceedings
under section 274A of the Act, on behalf of the foreign employer. 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 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.
(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. A United States agent may file a petition
in cases involving workers who are traditionally self-employed or
workers who 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 United States agent may be:
The actual employer of the beneficiary, the representative of both the
employer and the beneficiary; or, a person or entity authorized by the
employer to act for, or in place of, the employer as its agent. A
petition filed
[[Page 311]]
by an agent is subject to the following conditions:
(1) 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.
(2) 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.
(3) A foreign employer who, through a United States agent, files a
petition for an O nonimmigrant alien is responsible for complying with
all of the employer sanctions provisions of section 274A of the Act and
8 CFR part 274a.
(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 same period of time, and in
the same location.
(G) Traded professional O-1 athletes. In the case of a professional
O-1 athlete who is traded from one organization to another organization,
employment authorization for the player will automatically continue for
a period of 30 days after acquisition by the new organization, within
which time the new organization is expected to file a new Form I-129. If
a new Form I-129 is not filed within 30 days, employment authorization
will cease. If a new Form I-129 is filed within 30 days, the
professional athlete shall be deemed to be in valid O-1 status, and
employment shall continue to be authorized, until the petition is
adjudicated. If the new petition is denied, employment authorization
will cease.
(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
[[Page 312]]
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;
(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
[[Page 313]]
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
(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
[[Page 314]]
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.
(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.
[[Page 315]]
(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 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
[[Page 316]]
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
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.
[[Page 317]]
(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
(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
[[Page 318]]
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 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
[[Page 319]]
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 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 United States employer, a
United States sponsoring organization, a United States agent, or a
foreign employer through a United States agent. For purposes of
paragraph (p) of this section, a foreign
[[Page 320]]
employer is any employer who is not amenable to service of process in
the United States. Foreign employers seeking to employ a P-1 alien may
not directly petition for the alien but must use a United States agent.
A United States agent petitioning on behalf of a foreign employer must
be authorized to file the petition, and to accept service of process in
the United States in proceedings under section 274A of the Act, on
behalf of the foreign employer. A P-2 petition for an artist or
entertainer in a reciprocal exchange program shall be filed by the
United States labor organization which negotiated the reciprocal
exchange agreement, the sponsoring organization, or a United States
employer. A P-3 petition for an artist or entertainer in a culturally
unique program shall be filed by the sponsoring organization or a United
States employer. Essential support personnel may not be included on the
petition filed for the principal alien(s). These aliens require a
separate petition. Except as provided for in paragraph (p)(2)(iv)(A) of
this section, 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 emergency 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 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.
(B) Services for more than one employer. If the beneficiary or
beneficiaries 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 agent files the petition pursuant to paragraph
(p)(2)(iv)(E) of this section.
(C) Change of employer--(1) General. 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. The alien may not commence
employment with the new employer or
[[Page 321]]
sponsor until the petition and request for extension have been approved.
(2) Traded professional P-1 athletes. In the case of a professional
P-1 athlete who is traded from one organization to another organization,
employment authorization for the player will automatically continue for
a period of 30 days after acquisition by the new organization, within
which time the new organization is expected to file a new Form I-129 for
P-1 nonimmigrant classification. If a new Form I-129 is not filed within
30 days, employment authorization will cease. If a new Form I-129 is
filed within 30 days, the professional athlete shall be deemed to be in
valid P-1 status, and employment shall continue to be authorized, until
the petition is adjudicated. If the new petition is denied, employment
authorization will cease.
(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 performance, engagements, or competitions during the validity
period of the petition without filing an amended petition.
(E) Agents as petitioners. A United States agent may file a petition
in cases involving workers who are traditionally self-employed or
workers who 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 on its behalf. A United States agent may be:
the actual employer of the beneficiary; the representative of both the
employer and the beneficiary; or, a person or entity authorized by the
employer to act for, or in place of, the employer as its agent. A
petition filed by an United States agent is subject to the following
conditions:
(1) 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 or beneficiaries. The agent/
employer must also provide an itinerary of definite employment and
information on any other services planned for the period of time
requested.
(2) 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 or beneficiaries 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, the names and addresses of
the establishment, venues, or locations where the services will be
performed. In questionable cases, a contract between the employer(s) and
the beneficiary or beneficiaries may be required. The burden is on the
agent to explain the terms and conditions of the employment and to
provide any required documentation.
(3) A foreign employer who, through a United States agent, files a
petition for a P nonimmigrant alien is responsible for complying with
all of the employer sanctions provisions of section 274A of the Act and
8 CFR part 274a.
(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.
(H) Substitution of beneficiaries. A petitioner may request
substitution of beneficiaries in approved 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. In order to add additional new
essential support personnel, a new I-129 petition must be
[[Page 322]]
filed with the appropriate Service Center.
(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 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
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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 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
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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.
(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
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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 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
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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 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
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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 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.
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(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:
(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
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(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 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
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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) Cultural visitors--(1)(i) International cultural exchange
visitors program. Paragraphs (q)(2) through (q)(11) of this section
provide the rules governing nonimmigrant aliens who are visiting the
United States temporarily in an international cultural exchange visitors
program (Q-1).
(ii) Irish peace process cultural and training program. Paragraph
(q)(15) of this section provides the rules governing nonimmigrant aliens
who are visiting the United States temporarily under the Irish peace
process cultural and training program (Q-2) and their dependents (Q-3).
(iii) 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
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agent or office of the qualifying employer.
Duration of program means the time in which a qualified employer is
conducting an approved international 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 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)(i) of the Act.
(2) Admission of international cultural exchange 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 an
international cultural exchange visitor in Q-1 status.
(ii) Limitation on admission. Any alien who has been admitted into
the United States as an international cultural exchange visitor under
section 101(a)(15)(Q)(i) of the Act shall not be readmittted in Q-1
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-1 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 international cultural exchange 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-1 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:
[[Page 332]]
(A) Accessibility to the public. The international cultural exchange
program must take place in a school, museum, business or other
establishment 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 international cultural exchange 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 international cultural exchange 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 international cultural exchange 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
international cultural exchange 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 international cultural exchange visitors. To
be eligible for international cultural exchange 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 an international cultural exchange 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 international cultural
exchange 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 international cultural exchange
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
international cultural exchange program, a copy of the initial program
approval notice
[[Page 333]]
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 for international cultural exchange visitor
program--(i) General. A United States employer seeking to bring in
international cultural exchange visitors must file a petition on Form I-
129, Petition for a 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 international cultural
exchange 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 international cultural exchange 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-1 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 international cultural exchange 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
international cultural exchange 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 international cultural exchange visitor
may work part-time for multiple employers provided that each employer
has an approved petition for the alien.
(v) Change of employers. If an international cultural exchange
visitor is in the United States under section 101(a)(15)(Q)(i) of the
Act and decides to change employers, the new employer must file a
petition. However, the total period of time the international cultural
exchange visitor may stay in the United States remains limited to
fifteen (15) months.
(6) Substitution or replacements of participants in an international
cultural exchange visitor program. 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 international cultural exchange 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 international
cultural exchange 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
international cultural exchange visitor's wages and certify that the
international cultural exchange visitor is offered wages and working
[[Page 334]]
conditions comparable to those accorded to local domestic workers in
accordance with paragraph (q)(11)(ii) of this section.
(7) Approval of petition for international cultural exchange visitor
program. (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
international cultural exchange visitors, their classification, and the
petition's period of validity.
(iii) An approved petition for an alien classified under section
101(a)(15)(Q)(i) of 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)(i) 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 international
cultural exchange 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
section 101(a)(15)(Q)(i) of the Act.
(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. No
further action or notice by the Service is necessary in the case of
automatic revocation. In any other case, the Service shall follow the
revocation procedures in paragraphs (q)(9) (iii) through (v) of this
section.
(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 international cultural exchange visitor is no longer
employed by the petitioner in the capacity specified in the petition, or
if the international cultural exchange 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)(i) of the Act cannot exceed
fifteen (15) months. The authorized stay of an international cultural
exchange 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
[[Page 335]]
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)(i) of the Act may be employed only by the
qualified employer through which the alien attained Q-1 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-1 nonimmigrant status within
the meaning of section 237(a)(1)(C)(i) of the Act.
(ii) Wages and working conditions. The wages and working conditions
of an international cultural exchange 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.
(12)-(14) [Reserved]
(15) Irish peace process cultural and training program visitors (Q-
2) and their dependents (Q-3)--(i) General. An Irish Peace Process
Cultural and Training Program (IPPCTP) visitor is a nonimmigrant alien
coming to the United States temporarily to gain or upgrade work skills
through training and temporary employment and to experience living in a
diverse and peaceful environment.
(ii) What are the requirements for participation? (A) The principal
alien must have been physically resident in either Northern Ireland or
the counties of Louth, Monaghan, Cavan, Leitrim, Sligo, and Donegal in
the Republic of Ireland, for at least 3 months immediately preceding
application to the program and must show that he or she has no intention
of abandoning this residence.
(B) The principal alien must be between the ages of 18 and 35.
(C) The principal alien must:
(1) Be unemployed for at least 3 months, or have completed or
currently be enrolled in a training/employment program sponsored by the
Training and Employment Agency of Northern Ireland (T&EA) or by the
Training and Employment Authority of Ireland (FAS), or by other such
publicly funded programs, or have been made redundant from employment
(i.e., lost their job), or have received a notice of redundancy
(termination of employment); or
(2) Be a currently employed person whose employer has nominated him/
her to participate in this program for additional training or job
experience that is to benefit both the participant and his/her employer
upon returning home.
(D) The principal alien must intend to come to the United States
temporarily, for a period not to exceed 36 months, in order to obtain
training, employment, and the experience of coexistence and conflict
resolution in a diverse society.
(iii) Are there any limitations on admissions? (A) No more than
4,000 participants, including spouses and any minor children of
principal aliens, may be admitted annually for 3 consecutive program
years, beginning with FY 2000 (October 1, 1999, through September 30,
2000).
(B) For each alien admitted under section 101(a)(15)(Q)(ii) of the
Act, the number of aliens admitted under section 101(a)(15)(H)(ii)(b) of
the Act is reduced by one for that fiscal year or the subsequent fiscal
year.
(C) This program expires on October 1, 2005.
(iv) What are the requirements for initial admission to the United
States? (A) Principal aliens, their spouses, and minor children of
principal aliens must present valid passports and either a Q-2 or Q-3
visa at the time of inspection.
(B) Initial admission for those principal and dependent aliens in
this program who received their visas at either the U.S. Embassy in
Dublin or the U.S. Consulate in Belfast must take place at the Service's
Pre-Flight Inspection facilities at either the Shannon or Dublin
airports in the Republic of Ireland.
(C) The principal alien will be required to present a Certification
Letter issued by the Department of State's (DOS') Program Administrator
documenting him or her as an individual selected for participation in
the IPPCTP. Eligible dependents may be requested
[[Page 336]]
to present written documentation certifying their relationship to the
principal.
(v) May the principal alien and dependents make brief visits outside
the United States? (A) The principal alien, spouse, and any minor
children of the principal alien may make brief departures, for periods
not to exceed 3 consecutive months, and may be readmitted without having
to obtain a new visa. However, such periods of time spent outside the
United States will not be added to the end of stay, which is not to
exceed a total of 3 years from the initial date of entry of the
principal alien.
(B) Those participants or dependents who remain outside the United
States in excess of 3 consecutive months will not be readmitted by the
Service on their initial Q-2 or Q-3 visa. Instead, any such individual
and eligible dependents wishing to rejoin the program will be required
to reapply to the program and be in receipt of a new Q-2 or Q-3 visa and
a Certification Letter issued by the DOS' Program Administrator, prior
to any subsequent admission to the United States.
(vi) How long may a Q-2 or Q-3 visa holder remain in the United
States under this program? (A) The principal alien and any accompanying,
or following-to-join, spouse or minor children of the principal alien
are admitted for the duration of the principal alien's planned cultural
and training program or 36 months, whichever is shorter.
(B) Those participants and eligible dependents admitted for specific
periods less than 36 months may extend their period of stay through the
Service so that their total period of stay is 36 months, provided the
extension of stay is related to employment or training certified by the
DOS' Program Administrator.
(vii) How is employment authorized under this program? (A) Following
endorsement of his/her Form I-94, Arrival-Departure Record, by a Service
officer, any principal alien admitted under section 101(a)(15)(Q)(ii) of
the Act is permitted to work for an employer or employers listed on the
Certification Letter issued by the DOS' Program Administrator.
(B) The accompanying spouse and minor children of the principal
alien may not accept employment, unless the spouse has also been
designated as a principal alien (Q-2) in this program and has been
issued a Certification Letter by the DOS' Program Administrator.
(viii) May the principal alien change employers? Principal aliens
wishing to change employers must request such a change through the DOS'
Program Administrator to the Service. Following review and consideration
of the request by the Service, the Service will inform the participant
of the decision. The Service will grant such approval of employers only
if the new employer has been approved by DOS in accordance with its
regulations and such approval is communicated to the Service through the
DOS' Program Administrator. If approved, the participant's Form I-94
will be annotated to show the new employer. If denied, there is no
appeal under this section.
(ix) May the principal alien hold other jobs during his/her U.S.
visit? No; any principal alien classified as an Irish peace process
cultural and training program visitor may only engage in employment that
has been certified by the DOS' Program Administrator and approved by the
DOS or the Service as endorsed on the Form I-94. An alien who engages in
unauthorized employment violates the terms of the Q-2 visa and will be
considered to have violated section 237(a)(1)(C)(i) of the Act.
(x) What happens if a principal alien loses his/her job? A principal
alien, who loses his or her job, will have 30 days from his/her last
date of employment to locate appropriate employment or training, to have
the job offer certified by the DOS' Program Administrator in accordance
with the DOS' regulations and to have it approved by the Service. If
appropriate employment or training cannot be found within this 30-day-
period, the principal alien and any accompany family members will be
required to depart the United States.
(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 member of a
religious denomination having a bona fide nonprofit religious
organization in the United States, may
[[Page 337]]
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 Nonimmigrant Worker). The
documentation shall consist of:
[[Page 338]]
(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 States. The admission symbol for the
[[Page 339]]
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 nonimmigrant aliens--(1) General--(i) Background. The North
Atlantic Treaty Organization (NATO) is constituted of nations signatory
to the North Atlantic Treaty. The Agreement Between the Parties to the
North Atlantic Treaty Regarding the Status of Their Forces, signed in
London, June 1951 (NATO Status of Forces Agreement), is the agreement
between those nations that defines the terms of the status of their
armed forces while serving abroad.
(A) Nonimmigrant aliens classified as NATO-1 through NATO-5 are
officials, employees, or persons associated with NATO, and members of
their immediate families, who may enter the United States in accordance
with the NATO Status of Forces Agreement or the Protocol on the Status
of International Military Headquarters set up pursuant to the North
Atlantic Treaty (Paris Protocol). The following specific classifications
shall be assigned to such NATO nonimmigrants:
(1) NATO-1--A principal permanent representative of a Member State
to NATO (including any of its subsidiary bodies) resident in the United
States and resident members of permanent representative's official
staff; Secretary General, Deputy Secretary General, Assistant
Secretaries General and Executive Secretary of NATO; other permanent
NATO officials of similar rank; and the members of the immediate family
of such persons.
(2) NATO-2--Other representatives of Member States to NATO
(including any of its subsidiary bodies) including representatives,
advisers and technical experts of delegations, and the members of the
immediate family of such persons; dependents of members of a force
entering in accordance with the provisions of the NATO Status of Forces
[[Page 340]]
Agreement or in accordance with the provisions of the Paris Protocol;
members of such a force, if issued visas.
(3) NATO-3--Official clerical staff accompanying a representative of
a Member State to NATO (including any of its subsidiary bodies) and the
members of the immediate family of such persons.
(4) NATO-4--Officials of NATO (other than those classifiable under
NATO-1) and the members of their immediate family
(5) NATO-5--Experts, other than NATO officials classifiable under
NATO-4, employed on missions on behalf of NATO and their dependents.
(B) Nonimmigrant aliens classified as NATO-6 are civilians, and
members of their immediate families, who may enter the United States as
employees of a force entering in accordance with the NATO Status of
Forces Agreement, or as members of a civilian component attached to or
employed by NATO Headquarters, Supreme Allied Commander, Atlantic
(SACLANT), set up pursuant to the Paris Protocol.
(C) Nonimmigrant aliens classified as NATO-7 are attendants,
servants, or personal employees of nonimmigrant aliens classified as
NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, and NATO-6, who are authorized
to work only for the NATO-1 through NATO-6 nonimmigrant from whom they
derive status, and members of their immediate families.
(ii) Admission and extension of stay. NATO-1, NATO-2, NATO-3, NATO-
4, and NATO-5 aliens are normally exempt from inspection under 8 CFR
235.1(c). NATO-6 aliens may be authorized admission for duration of
status. NATO-7 aliens may be admitted for not more than 3 years and may
be granted extensions of temporary stay in increments of not more than 2
years. In addition, an application for extension of temporary stay for a
NATO-7 alien must be accompanied by a statement signed by the employing
official stating that he or she intends to continue to employ the NATO-7
applicant, describing the work the applicant will perform, and
acknowledging that this is, and will be, the sole employment of the
NATO-7 applicant.
(2) Definition of a dependent of a NATO-1, NATO-2, NATO-3, NATO-4,
NATO-5, or NATO-6. For purposes of employment in the United States, the
term dependent of a NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6
principal alien, as used in this section, means any of the following
immediate members of the family habitually residing in the same
household as the NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6
principal alien assigned to official duty 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 agreements do not specify under the age of
23 as the maximum age for employment of such sons and daughters;
(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
Service may require medical certification(s) as it deems necessary to
document such mental or physical disability.
(3) Dependent employment requirements based on formal bilateral
employment agreements and informal de facto reciprocal arrangements--(i)
Formal bilateral employment agreements. The Department of State's Family
Liaison office (FLO) shall maintain all listing of NATO Member States
which have entered into formal bilateral employment agreements that
include NATO personnel. A dependent of a NATO-1, NATO-2, NATO-3, NATO-4,
NATO-5, or NATO-6 principal alien assigned to official duty in the
United States may accept, or continue in, unrestricted employment based
on such formal bilateral agreement upon favorable recommendation by
SACLANT, pursuant to paragraph (s)(5) of this section, and
[[Page 341]]
issuance of employment authorization documentation by the Service in
accordance with 8 CFR part 274a. The application procedures are set
forth in paragraph (s)(5) of this section.
(ii) Informal de facto reciprocal arrangements. For purposes of this
section, an informal de facto reciprocal arrangement exists when the
Office of the Secretary of Defense, Foreign Military Rights Affairs
(OSD/FMRA), certifies, with State Department concurrence, that a NATO
Member State allows appropriate employment in the local economy for
dependents of members of the force and members of the civilian component
of the United States assigned to duty in the NATO Member State. OSD/FMRA
and State's FLO shall maintain a listing of countries with which such
reciprocity exists. Dependents of a NATO-1, NATO-2, NATO-3, NATO-4,
NATO-5, or NATO-6 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 SACLANT, pursuant to paragraph (s)(5) of this section, and issuance
of employment authorization by the Service in accordance with 8 CFR part
274a. Additionally, the application procedures set forth in paragraph
(s)(5) of this section must be complied with, and the following
conditions must be met:
(A) Both the principal alien and the dependent requesting employment
are maintaining NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6
status, as appropriate;
(B) The principal alien's total length of assignment in the United
States is expected to last more than 6 months;
(C) Employment of a similar nature for dependents of members of the
force and members of the civilian component of the United States
assigned to official duty in the NATO Member State employing the
principal alien is not prohibited by the NATO Member State;
(D) The proposed employment is not in an occupation listed in the
Department of Labor's 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 United States 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, of 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 NATO-1, NATO-2, NATO-
3, NATO-4, NATO-5, or NATO-6 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; or
who cannot establish that they have paid taxes and social security on
income from current or previous United States employment.
(iii) State's FLO shall inform the Service, by contacting
Headquarters, Adjudications, Attention: Chief, Business and Trade
Services Branch, 425 I Street, NW., Washington, DC 20536, of any
additions or changes to the formal bilateral employment agreements and
informal de facto reciprocal arrangements.
(4) Applicability of a formal bilateral agreement or an informal de
facto arrangement for NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6
dependents. The applicability of a formal bilateral agreement shall be
based on the NATO Member 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
NATO Member State which employs the principal alien, and the principal
alien also must be a national of the NATO Member State which employs him
or her in the United States. Dependents of SACLANT employees receive
bilateral agreement or de facto arrangement employment privileges as
appropriate based upon the nationality of the SACLANT employee
(principal alien).
(5) Application procedures. The following procedures are required
for dependent employment applications under bilateral agreements and de
facto arrangements:
[[Page 342]]
(i) The dependent of a NATO alien shall submit a complete
application for employment authorization, including Form I-765 and Form
I-566, completed in accordance with the instructions on, or attached to,
those forms. The complete application shall be submitted to SACLANT for
certification of the Form I-566 and forwarding to the Service.
(ii) In a case where a bilateral dependent employment agreement
containing a numerical limitation on the number of dependents authorized
to work is applicable, the certifying officer of SACLANT shall not
forward the application for employment authorization to the Service
unless, following consultation with State's Office of Protocol, the
certifying officer has confirmed that this numerical limitation has not
been reached. The countries with such limitations are indicated on the
bilateral/de facto dependent employment listing issued by State's FLO.
(iii) SACLANT shall keep copies of each application and certified
Form I-566 for 3 years from the date of the certification.
(iv) A dependent applying under the terms of a de facto arrangement
must also attach a statement from the prospective employer which
includes the dependent's name, a description of the position offered,
the duties to be performed, the hours to be worked, the salary offered,
and verification that the dependent possesses the qualifications for the
position.
(v) A dependent applying under paragraph (s)(2) (iii) or (iv) of
this section must also submit a certified statement from the post-
secondary educational institution confirming that he or she is pursuing
studies on a full-time basis.
(vi) A dependent applying under paragraph (s)(2)(v) of this section
must also submit medical certification regarding his or her condition.
The certification should identify both the dependent and the certifying
physician, give the physician's phone number, identify the condition,
describe the symptoms, provide a clear prognosis, and certify that the
dependent is unable to maintain a home of his or her own.
(vii) The Service may require additional supporting documentation,
but only after consultation with SACLANT.
(6) Period of time for which employment may be authorized. If
approved, an application to accept or continue employment under this
paragraph shall be granted in increments of not more than 3 years.
(7) Income tax and Social Security liability. Dependents who are
granted employment authorization under this paragraph are responsible
for payment of all Federal, state, and local income taxes, employment
and related taxes and Social Security contributions on any remuneration
received.
(8) No appeal. There shall be no appeal from a denial of permission
to accept or continue employment under this paragraph.
(9) Unauthorized employment. An alien classified as a NATO-1, NATO-
2, NATO-3, NATO-4, NATO-5, NATO-6, or NATO-7 who is not a NATO principal
alien and who engages in employment outside the scope of, or in a manner
contrary to, this paragraph may be considered in violation of status
pursuant to section 237(a)(1)(C)(i) of the Act. A NATO principal alien
in those classifications who engages in employment outside the scope of
his or her official position may be considered in violation of status
pursuant to section 237(a)(1)(C)(i) of the Act.
(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
(``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
[[Page 343]]
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 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
[[Page 344]]
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 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
[[Page 345]]
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;
(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:
[[Page 346]]
(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).
(u) [Reserved]
(v) Certain spouses and children of LPRs. Section 214.15 of this
chapter provides the procedures and requirements pertaining to V
nonimmigrant status.
(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, which appears in the
Finding Aids section in the printed volume and on GPO Access.
Sec. 214.3 Approval of schools for enrollment of F and M nonimmigrants.
(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, 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
[[Page 347]]
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.
(i) Filing a petition after the SEVIS mandatory compliance date. Any
school or school system seeking approval for attendance by nonimmigrant
students after the SEVIS mandatory compliance date must electronically
file a petition for initial approval using the Student and Exchange
Visitor Information (SEVIS). To electronically file a petition, the
petitioning school must access SEVIS on the Internet and provide the
following information: the school's name; the first, middle, and last
name of the contact person for the school; and the email address of the
contact person. Once this basic information has been submitted, the
school will be issued a temporary ID and password in order to access the
SEVIS site to complete and submit an electronic Form I-17.
(ii) [Reserved]
(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) A private 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.
(v) The following may not be approved for attendance by foreign
students:
(A) A home school,
(B) A public elementary school, or
(C) An adult education program, as defined by section 203(l) of the
Adult Education and Family Literacy Act, Public Law 105-220, as amended,
20 U.S.C. 9202(l), if the adult education program is funded in whole or
in part by a grant under the Adult Education and Family Literacy Act, or
by any other Federal, State, county or municipal funding.
(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
[[Page 348]]
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 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 may be required to 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.
(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;
[[Page 349]]
(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 jurisdiction over the school
any material modification to its name, address, or curriculum for a
determination of continued eligibility for approval. 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 8 CFR 214.4, and is subject to review every 2 years.
(3) SEVIS reporting. Upon approval of a petition, the district
director shall update SEVIS to reflect approval of the petition. An e-
mail notification will be sent to the principal DSO by SEVIS. An
approved school that has been enrolled in SEVIS must immediately update
SEVIS to reflect any material changes to its name, address or curriculum
for a determination of continued eligibility for approval.
(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.
(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) Current address where the student and his or her dependents
physically reside. In the event the student or his or her dependents
reside on or off campus and cannot receive mail at that location, the
school may provide a mailing address. The school, however, must maintain
a record of the physical location of residence of the student and his or
her dependents and provide such information to the Service upon request.
Once SEVIS is modified, in cases where the mailing and physical address
are not the same, the school will be required to report both the
student's current mailing and current physical address in SEVIS.
(v) The student's current academic status.
(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
[[Page 350]]
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 for non-SEVIS students. 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. In the case of a student that does not have an electronic
record in SEVIS, the Service will notify the school if the student
enters the U.S. to attend their institution. No later than 30 days
following the deadline for registering for classes, the school is then
required to contact the Service if that student fails to register.
(3) SEVIS reporting requirements.(i) Within 21 days of a change in
any of the information contained in paragraph (e)(3) of this section,
schools must update SEVIS with the current information.
(ii) Schools are also required to report within 21 days of the
occurrence the following events:
(A) Any student who has failed to maintain status or complete his or
her program;
(B) A change of the student's or dependent's legal name or U.S.
address;
(C) Any student who has graduated early or prior to the program end
date listed on SEVIS Form I-20;
(D) Any disciplinary action taken by the school against the student
as a result of the student being convicted of a crime; and
(E) Any other notification request made by SEVIS with respect to the
current status of the student.
(iii) Each term or session and no later than 30 days after the
deadline for registering for classes, schools are required to report the
following registration information:
(A) Whether the student has enrolled at the school, dropped below a
full course of study without prior authorization by the DSO, or failed
to enroll;
(B) The current address of each enrolled student; and
(C) The start date of the student's next session, term, semester,
trimester, or quarter.
(4) Administrative correction of a student's record. In instances
where technological or computer problems on the part of SEVIS cause an
error in the student's record, the DSO may request the SEVIS system
administrator, without fee, to administratively correct the student's
record.
(h) SEVIS certification and school review--(1) Review of schools for
initial enrollment in SEVIS. Each school that is currently approved for
attendance by nonimmigrants under section 101(a)(15)(F)(i) or
101(a)(15)(m)(i) of the Act, is required to apply for review by the
Service for continuation of approval and access to SEVIS no later than
the SEVIS mandatory compliance date.
(i) SEVIS certification process. In order to ensure that the Service
has sufficient time to review and adjudicate all submitted Forms I-17
prior to the SEVIS mandatory compliance date, schools must
electronically complete a Form I-17 in SEVIS and submit a certification
fee of $580 at least 75 days prior to the SEVIS mandatory compliance
date. A school may still submit a Form I-17 any time prior to the SEVIS
mandatory compliance date. However schools that file petitions less than
75 days prior to the SEVIS mandatory compliance date may experience a
period during which they may not issue Forms I-20 as the Service
completes the review process. Schools may begin the review process by
accessing the
[[Page 351]]
SEVIS website and entering the basic contact information required in
order to receive a temporary user ID and password for SEVIS. Using this
ID and password, the school official will again access the SEVIS website
and complete and submit the electronic Form I-17.
(ii) Preliminary enrollment in SEVIS. Schools that were approved for
preliminary enrollment by the Service under 8 CFR 214.12 must complete
the certification review process, including submission of the required
fee, prior to May 14, 2004.
(2) Service adjudication. The Service will review the electronic
Form I-17 information submitted in SEVIS and will require an on-site
visit of the school. If the Service approves the certification request,
SEVIS will be updated to reflect the approval and will automatically
generate permanent passwords and IDs for all Designated School Officials
listed. Upon the discretion of the Service, certain schools may be
conditionally enrolled in SEVIS prior to the on-site visit, as provided
in Sec. 214.12(e). If the Service does allow a school to enroll in
SEVIS prior to an on-site review, the school will be subject to a full-
scale review and on-site visit at a later date. If the Service denies
SEVIS certification, the Service will send electronic notification
through SEVIS to the school and mail written notification that includes
the reasons for denial and the process for seeking review of such
denial.
(3) Two-year review of school approval. The Service will review the
approval of a school every 2 years and will charge a recertification fee
to review a school's compliance with the reporting requirements of
paragraph (g)(2) of this section and continued eligibility for approval
pursuant to paragraph (e) of this section. If the Service determines
that a recertification should be denied, the school will be notified of
the reasons for denial and the process for seeking review of such
denial.
(4) Periodic review of approved schools. In addition, the Service
may, at any time, review the approval of a school to verify compliance
with the reporting requirements of paragraph (g)(2) of this section and
continued eligibility for approval pursuant to paragraph (e) of this
section. The Service 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 Service 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 whether the school still meets the
eligibility requirements. If upon completion of the review, the Service
determines that the school is not eligible for continued access to
SEVIS, the Service will institute withdrawal proceedings in accordance
with 8 CFR 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 school
official (DSO) of a school approved by the Service to enroll
nonimmigrant students must sign any completed Form I-20 issued for
either a prospective or continuing student or a dependent. A Form I-20
issued by an approved school system must state which school within the
system the student will attend. The form must only be issued from within
the United States. Only a designated official of a Service approved
school shall issue a Certificate of Eligibility, Form I-20, to a
prospective student and his or her dependents, and only after the
following conditions are met:
[[Page 352]]
(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 Sec. Sec. 214.1(b), 214.2(b), 214.2(f), 214.2(m), and 214.4, a
Designated Official, Designated School Official (DSO), or Principal
Designated School Official (PDSO), 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 PDSO and any other DSO must be named by the
president, owner, or head of a school or school system. The PDSO and DSO
may not delegate this designation to any other person.
(i) A PDSO and DSO must be either a citizen or lawful permanent
resident of the United States.
(ii) Each campus must have one PDSO. The PDSO is responsible for
updating SEVIS to reflect the addition or deletion of all designated
officials on his or her associated campus. The Service will also use the
PDSO as the point of contact on any issues that relate to the school's
compliance with the regulations as well as any system alerts generated
by SEVIS. In all other respects the PDSO and DSO will share the same
responsibilities.
(iii) Each school may have up to 10 designated officials at any one
time, including the PDSO. In a multi-campus school, each campus may have
up to 10 designated officials at any one time including a required PDSO.
In a private elementary or public or private secondary school system,
however, the entire school system is limited to 10 designated officials
at any one time including the PDSO.
(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 update SEVIS upon any changes to the
persons who are principal or designated officials, and furnish the name
and title of the new official within 21 days of the change. Any changes
to the PDSO or DSO must be made by the PDSO. In its discretion, the
Service may reject the submission of any individual as a DSO or withdraw
a previous submission by a school of an individual.
(3) Statement of designated officials. A petition for school
approval must include a statement by each designated official certifying
that the official is familiar with the Service regulations relating to
the requirements for admission and maintenance of status of nonimmigrant
students, change of nonimmigrant status under part 248 of this chapter,
and school approval under Sec. Sec. 214.3 and 214.4, and affirming the
official's intent to comply with these regulations. At the time a new
designated official is added, the designated official must make the same
certification.
[30 FR 919, Jan. 29, 1965]
Editorial Note: For Federal Register citations affecting Sec.
214.3, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
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
[[Page 353]]
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 Sec. Sec.
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.
(3) Automatic withdrawal as of SEVIS mandatory compliance date. The
present approval of any school that has not filed for enrollment in
SEVIS by the mandatory compliance date for attendance of nonimmigrant
students under section 101(a)(15)(F)(i) or 101(a)(15)(M)(i) of the Act
is automatically withdrawn as of the day following the mandatory
compliance date for SEVIS. Given the time necessary to conduct a review
of each school, the Service will review and adjudicate Form I-17
petitions for approval in SEVIS prior to the SEVIS mandatory compliance
date only for Form I-17 petitions filed at least 75 days prior to this
mandatory date. If a Form I-17 petition is filed less than 75 days prior
to the mandatory compliance date and is not adjudicated prior to the
mandatory compliance date, the school will not be authorized to access
SEVIS and will be unable to issue any SEVIS Forms I-20 until the
adjudication is complete.
(b) Notice. Whenever a district director has reason to believe that
an approved school or school system in his/ her district is no longer
entitled to approval, a proceeding shall be commenced by service upon
its designated
[[Page 354]]
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; 67 FR 60112, Sept. 25, 2002]
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 355]]
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 a
least a baccalaureate degree or appropriate credentials demonstrating
status as a professional in a profession set forth in Appendix 1603.D.1
of the NAFTA.
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, in substance, self-employed. A professional will be deemed to
be self-employed if he or she will be rendering services to a
corporation or entity of which the professional is the sole or
controlling shareholder or owner.
Temporary entry, as defined in the NAFTA, means entry without the
intent to establish permanent residence. The alien must satisfy the
inspecting immigration officer that the proposed stay is temporary. A
temporary period has a reasonable, finite end that does not equate to
permanent residence. In order to establish that the alien's entry will
be temporary, the alien must demonstrate to the satisfaction of the
inspecting immigration officer that his or her work assignment in the
United States will end at a predictable time and that he or she will
depart upon completion of the assignment.
(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\
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\1\ A business person seeking temporary employment under this
Appendix may also perform training functions relating to the profession,
including conducting seminars.
---------------------------------------------------------------------------
Appendix 1603.D.1 (Annotated)
--Accountant--Baccalaureate or Licenciatura Degree; or C.P.A., C.A.,
C.G.A., or C.M.A.
--Architect--Baccalaureate or Licenciatura Degree; or state/provincial
license.\2\
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\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.
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--Computer Systems Analyst--Baccalaureate or Licenciatura Degree; or
Post-Secondary Diploma \3\ or Post Secondary Certificate \4\
and three years' experience.
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\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.
[[Page 356]]
--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.
--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.
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\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.
[[Page 357]]
--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.
--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.
[[Page 358]]
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 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;
[[Page 359]]
(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 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
[[Page 360]]
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 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
[[Page 361]]
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 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
[[Page 362]]
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 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
[[Page 363]]
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 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
[[Page 364]]
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 (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, as amended at 63 FR 1335, Jan. 9, 1998]
Sec. 214.7 What is habitual residence in the territories and possessions
of the United States and what are the consequences thereof?
(a) Definitions. As used in this section, the term:
(1) Compacts means the agreements of free association between the
United States and the governments of the Republic of the Marshall
Islands, the Federated States of Micronesia, and Palau, approved by
Public Law 99-239 with respect to the governments of the Republic of the
Marshall Islands and the Federated States of Micronesia, and by Public
Law 99-658, with respect to Palau.
(2) Freely associated states (FAS) means the following parts of the
former Trust Territories of the Pacific Islands, namely, the Republic of
the Marshall Islands, the Federated States of Micronesia, and Palau.
(3) Territories and possessions of the United States means all
territories and possessions of the United States to which the Act
applies, including those commonwealths of the United States that are not
States. It does not include American Samoa and the Commonwealth of the
Northern Mariana Islands, as long as the Act does not apply to them.
(4)(i) Habitual resident means a citizen of the FAS who has been
admitted to a territory or possession of the United States (other than
American Samoa or the Commonwealth of the Northern Mariana Islands, as
long as the Act is not applicable to them) pursuant to section 141(a) of
the Compacts and who occupies in such territory or possession a habitual
residence as that term is defined in section 461 of the Compacts, namely
a place of general abode or a principal, actual dwelling place of a
continuing or lasting nature. The term ``habitual resident'' does not
apply to:
(A) A person who has established a continuing residence in a
territory or possession of the United States, but whose cumulative
physical presence in the United States amounts to less than 365 days; or
(B) A dependent of a resident representative described in section
152 of the Compacts; or
(C) A person who entered the United States for the purpose of full-
time studies as long as such person maintains that status.
(ii) Since the term ``habitual'' resident requires that the person
have entered the United States pursuant to section 141(a) of the
Compacts, the term does not apply to FAS citizens whose presence in the
territories or possessions is based on an authority other than section
141(a), such as:
(A) Members of the Armed Forces of the United States described in 8
CFR Sec. 235.1(c);
(B) Persons lawfully admitted for permanent residence in the United
States; or
(C) Persons having nonimmigrant status whose entry into the United
States is based on provisions of the
[[Page 365]]
Compacts or the Act other than section 141(a) of the Compacts.
(5) Dependent means a citizen of the FAS, as defined in section
141(a) of the Compacts, who:
(i) Is a habitual resident;
(ii) Resides with a principal habitual resident;
(iii) Relies for financial support on that principal habitual
resident; and
(iv) Is either the parent, spouse, or unmarried child under the age
of 21 of the principal habitual resident or the parent or child of the
spouse of the principal habitual resident.
(6) Principal habitual resident means a habitual resident with whom
one or more dependents reside and on whom dependent(s) rely for
financial support.
(7) Self-supporting means:
(i) Having a lawful occupation of a current and continuing nature
that provides 40 hours of gainful employment each week. A part-time
student attending an accredited college or institution of higher
learning in a territory or possession of the United States receives for
each college or graduate credit-hour of study a three-hour credit toward
the 40-hour requirement; or
(ii) If the person cannot meet the 40-hour employment requirement,
having lawfully derived funds that meet or exceed 100 percent of the
official poverty guidelines for Hawaii for a family unit of the
appropriate size as published annually by the Department of Health and
Human Services.
(8) Receipt of unauthorized public benefits means the acceptance of
public benefits by fraud or willful misrepresentation in violation of
section 401 or 411 of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Public Law 104-193, 110 Stat. 2261, 2268, as
amended by sections 5561 and 5565 of the Balanced Budget Act of 1997,
Public Law 105-33, 111 Stat. 638. 639.
(b) Where do these rules regarding habitual residence apply? The
rules in this section apply to habitual residents living in a territory
or possession of the United States to which the Act applies. Those
territories and possessions are at present Guam, the Commonwealth of
Puerto Rico, and the American Virgin Islands. These rules do not apply
to habitual residents living in American Samoa or the Commonwealth of
the Northern Mariana Islands, as long as the Act does not extend to
them. These rules are not applicable to habitual residents living in the
fifty States or the District of Columbia.
(c) When is an arriving FAS citizen presumed to be a habitual
resident? (1) An arriving FAS citizen will be subject to the rebuttable
presumption that he or she is a habitual resident if the Service has
reason to believe that the arriving FAS citizen was previously admitted
to the territory or possession more than one year ago; and
(2) That the arriving FAS citizen either;
(i) Failed to turn in his or her Form I-94 when he or she previously
departed from the United States; or
(ii) Failed to apply for a replacement Form I-94.
(d) What rights do habitual residents have? Habitual residents have
the right to enter, reside, study, and work in the United States, its
territories or possessions, in nonimmigrant status without regard to the
requirements of sections 212(a)(5)(A) and 212(a)(7)(A) and (B) of the
Act.
(e) What are the limitations on the rights of habitual residents?
(1) A habitual resident who is not a dependent is subject to removal if
he or she:
(i) Is not and has not been self-supporting for a period exceeding
60 consecutive days for reasons other than a lawful strike or other
labor dispute involving work stoppage; or
(ii) Has received unauthorized public benefits by fraud or willful
misrepresentation; or
(iii) Is subject to removal pursuant to section 237 of the Act, or
any other provision of the Act.
(2) Any dependent is removable from a territory or possession of the
United States if:
(i) The principal habitual resident who financially supports him or
her and with whom he or she resides, becomes subject to removal unless
the dependent establishes that he or she has become a dependent of
another habitual resident or becomes self-supporting; or
(ii) The dependent, as an individual, receives unauthorized public
benefits by fraud or willful misrepresentation; or
[[Page 366]]
(iii) The dependent, as an individual, is subject to removal
pursuant to section 237 of the Act, or any other provision of the Act.
[65 FR 56465, Sept. 19, 2000]
Sec. Sec. 214.8-214.14 [Reserved]
Sec. 214.11 Alien victims of severe forms of trafficking in persons.
(a) Definitions. The Service shall apply the following definitions
as provided in sections 103 and 107(e) of the Trafficking Victims
Protection Act (TVPA) with due regard for the definitions and
application of these terms in 28 CFR part 1100 and the provisions of
chapter 77 of title 18, United States Code:
Bona fide application means an application for T-1 nonimmigrant
status as to which, after initial review, the Service has determined
that there appears to be no instance of fraud in the application, the
application is complete, properly filed, contains an LEA endorsement or
credible secondary evidence, includes completed fingerprint and
background checks, and presents prima facie evidence to show eligibility
for T nonimmigrant status, including admissibility.
Child means a person described as such in section 101(b)(1) of the
Act.
Coercion means threats of serious harm to or physical restraint
against any person; any scheme, plan, or pattern intended to cause a
person to believe that failure to perform an act would result in serious
harm to or physical restraint against any person; or the abuse or
threatened abuse of the legal process.
Commercial sex act means any sex act on account of which anything of
value is given to or received by any person.
Debt bondage means the status or condition of a debtor arising from
a pledge by the debtor of his or her personal services or of those of a
person under his or her control as a security for debt, if the value of
those services as reasonably assessed is not applied toward the
liquidation of the debt or the length and nature of those services are
not respectively limited and defined.
Immediate family member means the spouse or a child of a victim of a
severe form of trafficking in persons, and, in the case of a victim of a
severe form of trafficking in persons who is under 21 years of age, a
parent of the victim.
Involuntary servitude means a condition of servitude induced by
means of any scheme, plan, or pattern intended to cause a person to
believe that, if the person did not enter into or continue in such
condition, that person or another person would suffer serious harm or
physical restraint; or the abuse or threatened abuse of legal process.
Accordingly, involuntary servitude includes ``a condition of servitude
in which the victim is forced to work for the defendant by the use or
threat of physical restraint or physical injury, or by the use or threat
of coercion through law or the legal process. This definition
encompasses those cases in which the defendant holds the victim in
servitude by placing the victim in fear of such physical restraint or
injury or legal coercion.'' (United States v. Kozminski, 487 U.S. 931,
952 (1988)).
Law Enforcement Agency (LEA) means any Federal law enforcement
agency that has the responsibility and authority for the detection,
investigation, or prosecution of severe forms of trafficking in persons.
LEAs include the following components of the Department of Justice: the
United States Attorneys' Offices, the Civil Rights and Criminal
Divisions, the Federal Bureau of Investigation (FBI), the Immigration
and Naturalization Service (Service), and the United States Marshals
Service. The Diplomatic Security Service, Department of State, also is
an LEA.
Law Enforcement Agency (LEA) endorsement means Supplement B,
Declaration of Law Enforcement Officer for Victim of Trafficking in
Persons of Form I-914, Application for T Nonimmigrant Status.
Peonage means a status or condition of involuntary servitude based
upon real or alleged indebtedness.
Reasonable request for assistance means a reasonable request made by
a law enforcement officer or prosecutor to a victim of a severe form of
trafficking in persons to assist law enforcement authorities in the
investigation or prosecution of the acts of trafficking in persons. The
``reasonableness'' of the
[[Page 367]]
request depends on the totality of the circumstances taking into account
general law enforcement and prosecutorial practices, the nature of the
victimization, and the specific circumstances of the victim, including
fear, severe traumatization (both mental and physical), and the age and
maturity of young victims.
Severe forms of trafficking in persons means sex trafficking in
which a commercial sex act is induced by force, fraud, or coercion, or
in which the person induced to perform such act has not attained 18
years of age; or the recruitment, harboring, transportation, provision,
or obtaining of a person for labor or services, through the use of
force, fraud, or coercion for the purpose of subjection to involuntary
servitude, peonage, debt bondage, or slavery.
Sex trafficking means the recruitment, harboring, transportation,
provision, or obtaining of a person for the purpose of a commercial sex
act.
TVPA means the Trafficking Victims Protection Act of 2000, Division
A of the VTVPA, Pub. L. 106-386.
United States means the continental United States, Alaska, Hawaii,
Puerto Rico, Guam, and the United States Virgin Islands.
Victim of a severe form of trafficking in persons means an alien who
is or has been subject to a severe form of trafficking in persons, as
defined in section 103 of the VTVPA and in this section.
VTVPA means the Victims of Trafficking and Violence Protection Act
of 2000, Pub. L. 106-386.
(b) Eligibility. Under section 101(a)(15)(T)(i) of the Act, and
subject to section 214(n) of the Act, the Service may classify an alien,
if otherwise admissible, as a T-1 nonimmigrant if the alien demonstrates
that he or she:
(1) Is or has been a victim of a severe form of trafficking in
persons;
(2) Is physically present in the United States, American Samoa, or
the Commonwealth of the Northern Mariana Islands, or at a port-of-entry
thereto, on account of such trafficking in persons;
(3) Either:
(i) Has complied with any reasonable request for assistance in the
investigation or prosecution of acts of such trafficking in persons, or
(ii) Is less than 15 years of age; and
(4) Would suffer extreme hardship involving unusual and severe harm
upon removal, as described in paragraph (i) of this section.
(c) Aliens ineligible for T nonimmigrant status. No alien, otherwise
admissible, shall be eligible to receive a T nonimmigrant status under
section 101(a)(15)(T) of the Act if there is substantial reason to
believe that the alien has committed an act of a severe form of
trafficking in persons.
(d) Application procedures for T status--(1) Filing an application.
An applicant seeking T nonimmigrant status shall submit, by mail, a
complete application package containing Form I-914, Application for T
Nonimmigrant Status, along with all necessary supporting documentation,
to the Service.
(2) Contents of the application package. In addition to Form I-914,
an application package must include the following:
(i) The proper fee for Form I-914 as provided in Sec. 103.7(b)(1)
of this chapter, or an application for a fee waiver as provided in Sec.
103.7(c) of this chapter;
(ii) Three current photographs;
(iii) The fingerprint fee as provided in Sec. 103.7(b)(1) of this
chapter;
(iv) Evidence demonstrating that the applicant is a victim of a
severe form of trafficking in persons as set forth in paragraph (f) of
this section;
(v) Evidence that the alien is physically present in the United
States on account of a severe form of trafficking in persons as set
forth in paragraph (g) of this section;
(vi) Evidence that the applicant has complied with any reasonable
request for assistance in the investigation or prosecution of acts of
severe forms of trafficking in persons, as set forth in paragraph (h) of
this section, or has not attained 15 years of age; and
(vii) Evidence that the applicant would suffer extreme hardship
involving unusual and severe harm if he or she were removed from the
United States, as set forth in paragraph (i) of this section.
(3) Evidentiary standards. The applicant may submit any credible
evidence relevant to the essential elements of the T nonimmigrant
status. Original documents or copies may be submitted as set forth in
Sec. 103.2(b)(4) and (b)(5) of
[[Page 368]]
this chapter. Any document containing text in a foreign language shall
be submitted in accordance with Sec. 103.2(b)(3) of this chapter.
(4) Filing deadline in cases in which victimization occurred prior
to October 28, 2000. Victims of a severe form of trafficking in persons
whose victimization occurred prior to October 28, 2000 must file a
completed application within one (1) year of January 31, 2002 in order
to be eligible to receive T-1 nonimmigrant status. If the victimization
occurred prior to October 28, 2000, an alien who was a child at the time
he or she was a victim of a severe form of trafficking in persons must
file a T status application within one (1) year of his or her 21st
birthday, or one (1) year of January 31, 2002, whichever is later. For
purposes of determining the filing deadline, an act of severe form of
trafficking in persons will be deemed to have occurred on the last day
in which an act constituting an element of a severe form of trafficking
in persons, as defined in paragraph (a) of this section, occurred. If
the applicant misses the deadline, he or she must show that exceptional
circumstances prevented him or her from filing in a timely manner.
Exceptional circumstances may include severe trauma, either
psychological or physical, that prevented the victim from applying
within the allotted time.
(5) Fingerprint procedure. All applicants for T nonimmigrant status
must be fingerprinted for the purpose of conducting a criminal
background check in accordance with the process and procedures described
in Sec. 103.2(e) of this chapter. After submitting an application with
fee to the Service, the applicant will be notified of the proper time
and location to appear for fingerprinting.
(6) Personal interview. After the filing of an application for T
nonimmigrant status, the Service may require an applicant to participate
in a personal interview. The necessity of an interview is to be
determined solely by the Service. All interviews will be conducted in
person at a Service-designated location. Every effort will be made to
schedule the interview in a location convenient to the applicant.
(7) Failure to appear for an interview or failure to follow
fingerprinting requirements.(i) Failure to appear for a scheduled
interview without prior authorization or to comply with fingerprint
processing requirements may result in the denial of the application.
(ii) Failure to appear shall be excused if the notice of the
interview or fingerprint appointment was not mailed to the applicant's
current address and such address had been provided to the Service unless
the Service determines that the applicant received reasonable notice of
the appointment. The applicant must notify the Service of any change of
address in accordance with Sec. 265.1 of this chapter prior to the date
on which the notice of the interview or fingerprint appointment was
mailed to the applicant.
(iii) Failure to appear at the interview or fingerprint appointment
may be excused, at the discretion of the Service, if the applicant
promptly contacts the Service and demonstrates that such failure to
appear was the result of exceptional circumstances.
(8) Aliens in pending immigration proceedings. Individuals who
believe they are victims of severe forms of trafficking in persons and
who are in pending immigration proceedings must inform the Service if
they intend to apply for T nonimmigrant status under this section. With
the concurrence of Service counsel, a victim of a severe form of
trafficking in persons in proceedings before an immigration judge or the
Board of Immigration Appeals (Board) may request that the proceedings be
administratively closed (or that a motion to reopen or motion to
reconsider be indefinitely continued) in order to allow the alien to
pursue an application for T nonimmigrant status with the Service. If the
alien appears eligible for T nonimmigrant status, the immigration judge
or the Board, whichever has jurisdiction, may grant such a request to
administratively close the proceeding or continue a motion to reopen or
motion to reconsider indefinitely. In the event the Service finds an
alien ineligible for T-1 nonimmigrant status, the Service may recommence
proceedings that have been
[[Page 369]]
administratively closed by filing a motion to re-calendar with the
immigration court or a motion to reinstate with the Board. If the alien
is in Service custody pending the completion of immigration proceedings,
the Service may continue to detain the alien until a decision has been
rendered on the application. An alien who is in custody and requests
bond or a bond redetermination will be governed by the provisions of
part 236 of this chapter.
(9) T applicants with final orders of exclusion, deportation or
removal. An alien who is the subject of a final order is not precluded
from filing an application for T-1 nonimmigrant status directly with the
Service. The filing of an application for T nonimmigrant status has no
effect on the Service's execution of a final order, although the alien
may file a request for stay of removal pursuant to Sec. 241.6(a) of
this chapter. However, if the Service subsequently determines, under the
procedures of this section, that the application is bona fide, the
Service will automatically stay execution of the final order of
deportation, exclusion, or removal, and the stay will remain in effect
until a final decision is made on the T-1 application. The time during
which such a stay is in effect shall not be counted in determining the
reasonableness of the duration of the alien's continued detention under
the standards of Sec. 241.4 of this chapter. If the T-1 application is
denied, the stay of the final order is deemed lifted as of the date of
such denial, without regard to whether the alien appeals the decision.
If the Service grants an application for T nonimmigrant status, the
final order shall be deemed canceled by operation of law as of the date
of the approval.
(e) Dissemination of information. In appropriate cases, and in
accordance with Department of Justice policies, the Service shall make
information from applications for T-1 nonimmigrant status available to
other Law Enforcement Agencies (LEAs) with the authority to detect,
investigate, or prosecute severe forms of trafficking in persons. The
Service shall coordinate with the appropriate Department of Justice
component responsible for prosecution in all cases where there is a
current or impending prosecution of any defendants who may be charged
with severe forms of trafficking in persons crimes in connection with
the victimization of the applicant to ensure that the Department of
Justice component responsible for prosecution has access to all witness
statements provided by the applicant in connection with the application
for T-1 nonimmigrant status, and any other documents needed to
facilitate investigation or prosecution of such severe forms of
trafficking in persons offenses.
(f) Evidence demonstrating that the applicant is a victim of a
severe form of trafficking in persons. The applicant must submit
evidence that fully establishes eligibility for each element of the T
nonimmigrant status to the satisfaction of the Attorney General. First,
an alien must demonstrate that he or she is a victim of a severe form of
trafficking in persons. The applicant may satisfy this requirement
either by submitting an LEA endorsement, by demonstrating that the
Service previously has arranged for the alien's continued presence under
28 CFR 1100.35, or by submitting sufficient credible secondary evidence,
describing the nature and scope of any force, fraud, or coercion used
against the victim (this showing is not necessary if the person induced
to perform a commercial sex act is under the age of 18). An application
must contain a statement by the applicant describing the facts of his or
her victimization. In determining whether an applicant is a victim of a
severe form of trafficking in persons, the Service will consider all
credible and relevant evidence.
(1) Law Enforcement Agency endorsement. An LEA endorsement is not
required. However, if provided, it must be submitted by an appropriate
law enforcement official on Supplement B, Declaration of Law Enforcement
Officer for Victim of Trafficking in Persons, of Form I-914. The LEA
endorsement must be filled out completely in accordance with the
instructions contained on the form and must attach the results of any
name or database inquiry performed. In order to provide persuasive
evidence, the LEA endorsement must contain a description of the
victimization upon which the application is based (including the dates
the
[[Page 370]]
severe forms of trafficking in persons and victimization occurred), and
be signed by a supervising official responsible for the investigation or
prosecution of severe forms of trafficking in persons. The LEA
endorsement must address whether the victim had been recruited,
harbored, transported, provided, or obtained specifically for either
labor or services, or for the purposes of a commercial sex act. The
traffickers must have used force, fraud, or coercion to make the victim
engage in the intended labor or services, or (for those 18 or older) the
intended commercial sex act. The situations involving labor or services
must rise to the level of involuntary servitude, peonage, debt bondage,
or slavery. The decision of whether or not to complete an LEA
endorsement for an applicant shall be at the discretion of the LEA.
(2) Primary evidence of victim status. The Service will consider an
LEA endorsement as primary evidence that the applicant has been the
victim of a severe form of trafficking in persons provided that the
details contained in the endorsement meet the definition of a severe
form of trafficking in persons under this section. In the alternative,
documentation from the Service granting the applicant continued presence
in accordance with 28 CFR 1100.35 will be considered as primary evidence
that the applicant has been the victim of a severe form of trafficking
in persons, unless the Service has revoked the continued presence based
on a determination that the applicant is not a victim of a severe form
of trafficking in persons.
(3) Secondary evidence of victim status; Affidavits. Credible
secondary evidence and affidavits may be submitted to explain the
nonexistence or unavailability of the primary evidence and to otherwise
establish the requirement that the applicant be a victim of a severe
form of trafficking in persons. The secondary evidence must include an
original statement by the applicant indicating that he or she is a
victim of a severe form of trafficking in persons; credible evidence of
victimization and cooperation, describing what the alien has done to
report the crime to an LEA; and a statement indicating whether similar
records for the time and place of the crime are available. The statement
or evidence should demonstrate that good faith attempts were made to
obtain the LEA endorsement, including what efforts the applicant
undertook to accomplish these attempts. Applicants are encouraged to
provide and document all credible evidence, because there is no
guarantee that a particular piece of evidence will result in a finding
that the applicant was a victim of a severe form of trafficking in
persons. If the applicant does not submit an LEA endorsement, the
Service will proceed with the adjudication based on the secondary
evidence and affidavits submitted. A non-exhaustive list of secondary
evidence includes trial transcripts, court documents, police reports,
news articles, and copies of reimbursement forms for travel to and from
court. In addition, applicants may also submit their own affidavit and
the affidavits of other witnesses. The determination of what evidence is
credible and the weight to be given that evidence shall be within the
sole discretion of the Service.
(4) Obtaining an LEA endorsement. A victim of a severe form of
trafficking in persons who does not have an LEA endorsement should
contact the LEA to which the alien has provided assistance to request an
endorsement. If the applicant has not had contact with an LEA regarding
the acts of severe forms of trafficking in persons, the applicant should
promptly contact the nearest Service or Federal Bureau of Investigation
(FBI) field office or U.S. Attorneys' Office to file a complaint, assist
in the investigation or prosecution of acts of severe forms of
trafficking in persons, and request an LEA endorsement. If the applicant
was recently liberated from the trafficking in persons situation, the
applicant should ask the LEA for an endorsement. Alternatively, the
applicant may contact the Department of Justice, Civil Rights Division,
Trafficking in Persons and Worker Exploitation Task Force complaint
hotline at 1-888-428-7581 to file a complaint and be referred to an LEA.
(g) Physical presence on account of trafficking in persons. The
applicant must establish that he or she is physically present in the
United States,
[[Page 371]]
American Samoa, or the Commonwealth of the Northern Mariana Islands, or
at a port-of-entry thereto on account of such trafficking, and that he
or she is a victim of a severe form of trafficking in persons that forms
the basis for the application. Specifically, the physical presence
requirement reaches an alien who: is present because he or she is being
subjected to a severe form of trafficking in persons; was recently
liberated from a severe form of trafficking in persons; or was subject
to severe forms of trafficking in persons at some point in the past and
whose continuing presence in the United States is directly related to
the original trafficking in persons.
(1) In general. The evidence and statements included with the
application must state the date and place (if known) and the manner and
purpose (if known) for which the applicant entered the United States,
American Samoa, or the Commonwealth of the Northern Mariana Islands, or
a port-of-entry thereto, and demonstrate that the applicant is present
now on account of the applicant's victimization as described in
paragraph (f) of this section and section 101(a)(15)(T)(i)(I) of the
Act.
(2) Opportunity to depart. If the alien has escaped the traffickers
before law enforcement became involved in the matter, he or she must
show that he or she did not have a clear chance to leave the United
States in the interim. The Service will consider whether an applicant
had a clear chance to leave in light of the individual applicant's
circumstances. Information relevant to this determination may include,
but is not limited to, circumstances attributable to the trafficking in
persons situation, such as trauma, injury, lack of resources, or travel
documents that have been seized by the traffickers. This determination
may reach both those who entered the United States lawfully and those
who entered without being admitted or paroled. The Service will consider
all evidence presented to determine the physical presence requirement,
including asking the alien to answer questions on Form I-914, about when
he or she escaped from the trafficker, what activities he or she has
undertaken since that time, including the steps he or she may have taken
to deal with the consequences of having been trafficked, and the
applicant's ability to leave the United States.
(3) Departure from the United States. An alien who has voluntarily
left (or has been removed from) the United States at any time after the
act of a severe form of trafficking in persons shall be deemed not to be
present in the United States as a result of such trafficking in persons
unless the alien's reentry into the United States was the result of the
continued victimization of the alien or a new incident of a severe form
of trafficking in persons described in section 101(a)(15)(T)(i)(I) of
the Act.
(h) Compliance with reasonable requests from a law enforcement
agency for assistance in the investigation or prosecution. Except as
provided in paragraph (h)(3) of this section, the applicant must submit
evidence that fully establishes that he or she has complied with any
reasonable request for assistance in the investigation or prosecution of
acts of severe forms of trafficking in persons. As provided in paragraph
(h)(3) of this section, if the victim of a severe form of trafficking in
persons is under age 15, he or she is not required to comply with any
reasonable request for assistance in order to be eligible for T
nonimmigrant status, but may cooperate at his or her discretion.
(1) Primary evidence of compliance with law enforcement requests. An
LEA endorsement describing the assistance provided by the applicant is
not required evidence. However, if an LEA endorsement is provided as set
forth in paragraph (f)(1) of this section, it will be considered primary
evidence that the applicant has complied with any reasonable request in
the investigation or prosecution of the severe form of trafficking in
persons of which the applicant was a victim. If the Service has reason
to believe that the applicant has not complied with any reasonable
request for assistance by the endorsing LEA or other LEAs, the Service
will contact the LEA and both the Service and the LEA will take all
practical steps to reach a resolution acceptable to both agencies. The
Service may, at its discretion, interview the alien regarding the
evidence for and against the compliance, and allow the alien to
[[Page 372]]
submit additional evidence of such compliance. If the Service determines
that the alien has not complied with any reasonable request for
assistance, then the application will be denied, and any approved
application based on the LEA endorsement will be revoked pursuant to
this section.
(2) Secondary evidence of compliance with law enforcement requests;
Affidavits. Credible secondary evidence and affidavits may be submitted
to show the nonexistence or unavailability of the primary evidence and
to otherwise establish the requirement that the applicant comply with
any reasonable request for assistance in the investigation or
prosecution of that severe form of trafficking in persons. The secondary
evidence must include an original statement by the applicant that
indicates the reason the LEA endorsement does not exist or is
unavailable, and whether similar records documenting any assistance
provided by the applicant are available. The statement or evidence must
show that an LEA that has responsibility and authority for the
detection, investigation, or prosecution of severe forms of trafficking
in persons has information about such trafficking in persons, that the
victim has complied with any reasonable request for assistance in the
investigation or prosecution of such acts of trafficking, and, if the
victim did not report the crime at the time, why the crime was not
previously reported. The statement or evidence should demonstrate that
good faith attempts were made to obtain the LEA endorsement, including
what efforts the applicant undertook to accomplish these attempts. In
addition, applicants may also submit their own affidavit and the
affidavits of other witnesses. The determination of what evidence is
credible and the weight to be given that evidence shall be within the
sole discretion of the Service. Applicants are encouraged to describe
and document all applicable factors, since there is no guarantee that a
particular reason will result in a finding that the applicant has
complied with reasonable requests. An applicant who never has had
contact with an LEA regarding the acts of severe forms of trafficking in
persons will not be eligible for T-1 nonimmigrant status.
(3) Exception for applicants under the age of 15. Applicants under
the age of 15 are not required to demonstrate compliance with the
requirement of any reasonable request for assistance in the
investigation and prosecution of acts of severe forms of trafficking in
persons. Applicants under the age of 15 must provide evidence of their
age. Primary evidence that a victim of a severe form of trafficking in
persons has not yet reached the age of 15 would be an official copy of
the alien's birth certificate, a passport, or a certified medical
opinion. Secondary evidence regarding the age of the applicant also may
be submitted in accordance with Sec. 103.2(b)(2)(i) of this chapter. An
applicant under the age of 15 still must provide evidence demonstrating
that he or she satisfies the other necessary requirements, including
that he or she is the victim of a severe form of trafficking in persons
and faces extreme hardship involving unusual and severe harm if removed
from the United States.
(i) Evidence of extreme hardship involving unusual and severe harm
upon removal. To be eligible for T-1 nonimmigrant status under section
101(a)(15)(T)(i) of the Act, an applicant must demonstrate that removal
from the United States would subject the applicant to extreme hardship
involving unusual and severe harm.
(1) Standard. Extreme hardship involving unusual and severe harm is
a higher standard than that of extreme hardship as described in Sec.
240.58 of this chapter. A finding of extreme hardship involving unusual
and severe harm may not be based upon current or future economic
detriment, or the lack of, or disruption to, social or economic
opportunities. Factors that may be considered in evaluating whether
removal would result in extreme hardship involving unusual and severe
harm should take into account both traditional extreme hardship factors
and those factors associated with having been a victim of a severe form
of trafficking in persons. These factors include, but are not limited
to, the following:
(i) The age and personal circumstances of the applicant;
[[Page 373]]
(ii) Serious physical or mental illness of the applicant that
necessitates medical or psychological attention not reasonably available
in the foreign country;
(iii) The nature and extent of the physical and psychological
consequences of severe forms of trafficking in persons;
(iv) The impact of the loss of access to the United States courts
and the criminal justice system for purposes relating to the incident of
severe forms of trafficking in persons or other crimes perpetrated
against the applicant, including criminal and civil redress for acts of
trafficking in persons, criminal prosecution, restitution, and
protection;
(v) The reasonable expectation that the existence of laws, social
practices, or customs in the foreign country to which the applicant
would be returned would penalize the applicant severely for having been
the victim of a severe form of trafficking in persons;
(vi) The likelihood of re-victimization and the need, ability, or
willingness of foreign authorities to protect the applicant;
(vii) The likelihood that the trafficker in persons or others acting
on behalf of the trafficker in the foreign country would severely harm
the applicant; and
(viii) The likelihood that the applicant's individual safety would
be seriously threatened by the existence of civil unrest or armed
conflict as demonstrated by the designation of Temporary Protected
Status, under section 244 of the Act, or the granting of other relevant
protections.
(2) Evidence. An applicant is encouraged to describe and document
all factors that may be relevant to his or her case, since there is no
guarantee that a particular reason or reasons will result in a finding
that removal would cause extreme hardship involving unusual and severe
harm to the applicant. Hardship to persons other than the alien victim
of a severe form of trafficking in persons cannot be considered in
determining whether an applicant would suffer extreme hardship involving
unusual and severe harm.
(3) Evaluation. The Service will evaluate on a case-by-case basis,
after a review of the evidence, whether the applicant has demonstrated
extreme hardship involving unusual or severe harm. The Service will
consider all credible evidence submitted regarding the nature and scope
of the hardship should the applicant be removed from the United States,
including evidence of hardship arising from circumstances surrounding
the victimization as described in section 101(a)(15)(T)(i)(I) of the Act
and any other circumstances. In appropriate cases, the Service may
consider evidence from relevant country condition reports and any other
public or private sources of information. The determination that extreme
hardship involving unusual or severe harm to the alien exists is to be
made solely by the Service.
(j) Waiver of grounds of inadmissibility. An application for a
waiver of inadmissibility under section 212(d)(13) or section 212(d)(3)
of the Act must be filed in accordance with Sec. 212.16 of this
chapter, and submitted to the Service with the completed application
package.
(k) Bona fide application for T-1 nonimmigrant status--(1) Criteria.
Once an application is submitted to the Service, the Service will
conduct an initial review to determine if the application is a bona fide
application for T nonimmigrant status. An application shall be
determined to be bona fide if, after initial review, it is properly
filed, there appears to be no instance of fraud in the application, the
application is complete (including the LEA endorsement or other
secondary evidence), the application presents prima facie evidence of
each element to show eligibility for T-1 nonimmigrant status, and the
Service has completed the necessary fingerprinting and criminal
background checks. If an alien is inadmissible under section 212(a) of
the Act, the application will not be deemed to be bona fide unless the
only grounds of inadmissibility are those under the circumstances
described in section 212(d)(13) of the Act, or unless the Service has
granted a waiver of inadmissibility on any other grounds. All waivers
are discretionary and require a request for a waiver. Under section
212(d)(13), an application can be bona fide before the waiver is
granted. This
[[Page 374]]
is not the case under other grounds of inadmissibility.
(2) Determination by the Service. An application for T-1 status
under this section will not be treated as a bona fide application until
the Service has provided the notice described in paragraph (k)(3) of
this section. In the event that an application is incomplete, the
Service will request the additional information as provided in Sec.
103.2(b)(8) of this chapter. If the application is complete, but does
not present sufficient evidence to establish prima facie eligibility for
each required element of T nonimmigrant status, the Service will
adjudicate the application on the basis of the evidence presented, in
accordance with the procedures of this section.
(3) Notice to alien. Once an application is determined to be a bona
fide application for a T-1 nonimmigrant status, the Service will provide
written confirmation to the applicant.
(4) Stay of final order of exclusion, deportation, or removal. A
determination by the Service that an application for T-1 nonimmigrant
status is bona fide automatically stays the execution of any final order
of exclusion, deportation, or removal. This stay shall remain in effect
until there is a final decision on the T application. The filing of an
application for T nonimmigrant status does not stay the execution of a
final order unless the Service has determined that the application is
bona fide. Neither an immigration judge nor the Board of Immigration
Appeals (Board) has jurisdiction to adjudicate an application for a stay
of execution, deportation, or removal order, on the basis of the filing
of an application for T nonimmigrant status.
(l) Review and decision on applications--(1) De novo review. The
Service shall conduct a de novo review of all evidence submitted and is
not bound by its previous factual determinations as to any essential
elements of the T nonimmigrant status application. Evidence previously
submitted for this and other immigration benefits or relief may be used
by the Service in evaluating the eligibility of an applicant for T
nonimmigrant status. However, the Service will not be bound by its
previous factual determinations as to any essential elements of the T
classification. The Service will determine, in its sole discretion, the
evidentiary value of previously or concurrently submitted evidence.
(2) Burden of proof. At all stages of the processing of an
application for any benefits under T nonimmigrant status, the burden
shall be on the applicant to present to the Service evidence that fully
establishes eligibility for the desired benefit.
(3) Decision. After completing its review of the application, the
Service shall issue a written decision granting or denying the
application. If the Service determines that the applicant has met the
requirements for T-1 nonimmigrant status, the Service shall grant the
application, subject to the annual limitation as provided in paragraph
(m) of this section. Along with the approval, the Service will include a
list of nongovernmental organizations to which the applicant can refer
regarding the alien's options while in the United States and resources
available to the alien.
(4) Work authorization. When the Service grants an application for
T-1 nonimmigrant status, the Service will provide the alien with an
Employment Authorization Document incident to that status, which shall
extend concurrently with the duration of the alien's T-1 nonimmigrant
status.
(m) Annual cap. In accordance with section 214(n)(2) of the Act, the
total number of principal aliens issued T-1 nonimmigrant status may not
exceed 5,000 in any fiscal year.
(1) Issuance of T-1 nonimmigrant status. Once the cap is reached in
any fiscal year, the Service will continue to review and consider
applications in the order they are received. The Service will determine
if the applicants are eligible for T-1 nonimmigrant status, but will not
issue T-1 nonimmigrant status at that time. The revocation of an alien's
T-1 status will have no effect on the annual cap.
(2) Waiting list. All eligible applicants who, due solely to the
cap, are not granted T-1 nonimmigrant status shall be placed on a
waiting list and will receive notice of such placement. While on the
waiting list, the applicant shall maintain his or her current means to
[[Page 375]]
prevent removal (deferred action, parole, or stay of removal) and any
employment authorization, subject to any limits imposed on that
authorization. Priority on the waiting list is determined by the date
the application was properly filed, with the oldest applications
receiving the highest priority. As new classifications become available
in subsequent years, the Service will issue them to applicants on the
waiting list, in the order in which the applications were properly
filed, providing the applicant remains admissible. The Service may
require new fingerprint and criminal history checks before issuing an
approval. After T-1 nonimmigrant status has been issued to qualifying
applicants on the waiting list, any remaining T-1 nonimmigrant numbers
will be issued to new qualifying applicants in the order that the
applications were properly filed.
(n) [Reserved]
(o) Admission of the T-1 applicant's immediate family members--(1)
Eligibility. Subject to section 214(n) of the Act, an alien who has
applied for or been granted T-1 nonimmigrant status may apply for
admission of an immediate family member, who is otherwise admissible to
the United States, in a T-2 (spouse) or T-3 (child) derivative status
(and, in the case of a T-1 principal applicant who is a child, a T-4
(parent) derivative status), if accompanying or following to join the
principal alien. The applicant must submit evidence sufficient to
demonstrate that:
(i) The alien for whom T-2, T-3, or T-4 status is being sought is an
immediate family member of a T-1 nonimmigrant, as defined in paragraph
(a) of this section, and is otherwise eligible for that status; and
(ii) The immediate family member or the T-1 principal would suffer
extreme hardship, as described in paragraph (o)(5) of this section, if
the immediate family member was not allowed to accompany or follow to
join the principal T-1 nonimmigrant.
(2) Filing procedures. A T-1 principal may apply for T-2, T-3, or T-
4 nonimmigrant status for an immediate family member by submitting Form
I-914 and all necessary documentation by mail, including Supplement A,
to the Service. The application for derivative T nonimmigrant status for
eligible family members can be filed on the same application as the T-1
application, or in a separate application filed at a subsequent time.
(3) Contents of the application package for an immediate family
member. In addition to Form I-914, an application for T-2, T-3, or T-4
nonimmigrant status must include the following:
(i) The proper fee for Form I-914 as provided in Sec. 103.7(b)(1)
of this chapter, or an application for a fee waiver as provided in Sec.
103.7(c) of this chapter;
(ii) Three current photographs;
(iii) The fingerprint fee as provided in Sec. 103.2(e) of this
chapter for each immediate family member;
(iv) Evidence demonstrating the relationship of an immediate family
member, as provided in paragraph (o)(4) of this section; and
(v) Evidence demonstrating extreme hardship as provided in paragraph
(o)(5) of this section.
(4) Relationship. The relationship must exist at the time the
application for the T-1 nonimmigrant status was filed, and must continue
to exist at the time of the application for T-2, T-3, or T-4 status and
at the time of the immediate family member's subsequent admission to the
United States. If the T-1 principal alien proves that he or she became
the parent of a child after the T-1 nonimmigrant status was filed, the
child shall be eligible to accompany or follow to join the T-1
principal.
(5) Evidence demonstrating extreme hardship for immediate family
members. The application must demonstrate that each alien for whom T-2,
T-3, or T-4 status is being sought, or the principal T-1 applicant,
would suffer extreme hardship if the immediate family member was not
admitted to the United States or was removed from the United States (if
already present). When the immediate family members are following to
join the principal, the extreme hardship must be substantially different
than the hardship generally experienced by other residents of their
country of origin who are not victims of a severe form of trafficking in
persons. The Service will consider all credible evidence of extreme
hardship to the T-1 recipient or the individual
[[Page 376]]
immediate family members. The determination of the extreme hardship
claim will be evaluated on a case-by-case basis, in accordance with the
factors outlined in Sec. 240.58 of this chapter. Applicants are
encouraged to raise and document all applicable factors, since there is
no guarantee that a particular reason or reasons will result in a
finding of extreme hardship if the applicant is not allowed to enter or
remain in the United States. In addition to these factors, other factors
that may be considered in evaluating extreme hardship include, but are
not limited to, the following:
(i) The need to provide financial support to the principal alien;
(ii) The need for family support for a principal alien; or
(iii) The risk of serious harm, particularly bodily harm, to an
immediate family member from the perpetrators of the severe forms of
trafficking in persons.
(6) Fingerprinting; interviews. The provisions for fingerprinting
and interviews in paragraphs (c)(5) through (c)(7) of this section also
are applicable to applications for immediate family members.
(7) Admissibility. If an alien is inadmissible, an application for a
waiver of inadmissibility under section 212(d)(13) or section 212(d)(3)
of the Act must be filed in accordance with Sec. 212.16 of this
chapter, and submitted to the Service with the completed application
package.
(8) Review and decision. After reviewing the application under the
standards of paragraph (l) of this section, the Service shall issue a
written decision granting or denying the application for T-2, T-3, or T-
4 status.
(9) Derivative grants. Individuals who are granted T-2, T-3, or T-4
nonimmigrant status are not subject to an annual cap. Applications for
T-2, T-3, or T-4 nonimmigrant status will not be granted until a T-1
status has been issued to the related principal alien.
(10) Employment authorization. An alien granted T-2, T-3, or T-4
nonimmigrant status may apply for employment authorization by filing
Form I-765, Application for Employment Authorization, with the
appropriate fee or an application for fee waiver, in accordance with the
instructions on, or attached to, that form. For derivatives in the
United States, the Form I-765 may be filed concurrently with the filing
of the application for T-2, T-3, or T-4 status or at any time
thereafter. If the application for employment authorization is approved,
the T-2, T-3, or T-4 alien will be granted employment authorization
pursuant to Sec. 274a.12(c)(25) of this chapter. Employment
authorization will last for the length of the duration of the T-1
nonimmigrant status.
(11) Aliens outside the United States. When the Service approves an
application for a qualifying immediate family member who is outside the
United States, the Service will notify the T-1 principal alien of such
approval on Form I-797, Notice of Action. Form I-914, Supplement A,
Supplemental Application for Immediate Family Members of T-1 Recipient,
must be forwarded to the Department of State for delivery to the
American Embassy or Consulate having jurisdiction over the area in which
the T-1 recipient's qualifying immediate family member is located. The
supplemental form may be used by a consular officer in determining the
alien's eligibility for a T-2, T-3, or T-4 visa, as appropriate.
(p) Duration of T nonimmigrant status--(1) In general. An approved T
nonimmigrant status shall expire after 3 years from the date of
approval. The status is not renewable. At the time an alien is approved
for T nonimmigrant status, the Service shall notify the alien that his
or her nonimmigrant status will expire in 3 years from the date of the
approval of the alien's Form I-914. The applicant shall immediately
notify the Service of any changes in the applicant's circumstances that
may affect eligibility under section 101(a)(15)(T)(i) of the Act and
this section.
(2) Information pertaining to adjustment of status. The Service
shall further notify the alien of the requirement that the T alien apply
for adjustment of status within the 90 days immediately preceding the
third anniversary of the alien's having been approved such nonimmigrant
status, and that the failure to apply for adjustment of status as set
forth in section 245(l) of
[[Page 377]]
the Act will result in termination of the alien's T nonimmigrant status
in the United States at the end of the 3-year period. If the alien
properly files for adjustment of status to that of a person admitted for
permanent residence within the 90-day period immediately preceding the
third anniversary of the date of the approval of the alien's Form I-914,
the alien shall continue to be in a T nonimmigrant status with all the
rights, privileges, and responsibilities, including employment
authorization, provided to a person possessing such status until such
time as a final decision is rendered on the alien's application for
adjustment of status.
(q) De novo review. The Service shall conduct a de novo review of
all evidence submitted at all stages in the adjudication of an
application for T nonimmigrant status. Evidence previously submitted for
this and other immigration benefits or relief may be used by the Service
in evaluating the eligibility of an applicant for T nonimmigrant status.
However, the Service will not be bound by its previous factual
determinations as to any essential elements of the T classification. The
Service will determine, in its sole discretion, the evidentiary value of
previously or concurrently submitted evidence.
(r) Denial of application. Upon denial of any T application, the
Service shall notify the applicant, any LEA providing an LEA
endorsement, and the Department of Health and Human Service's Office of
Refugee Resettlement in writing of the decision and the reasons for the
denial in accordance with Sec. 103.3 of this chapter. Upon denial of an
application for T nonimmigrant status, any benefits derived as a result
of having filed a bona fide application will automatically be revoked
when the denial becomes final. If an applicant chooses to appeal the
denial pursuant to the provisions of Sec. 103.3 of this chapter, the
denial will not become final until the appeal is adjudicated.
(s) Revocation of approved T nonimmigrant status. The alien shall
immediately notify the Service of any changes in the terms and
conditions of an alien's circumstances that may affect eligibility under
section 101(a)(15)(T) of the Act and this section.
(1) Grounds for notice of intent to revoke. The Service shall send
to the T nonimmigrant a notice of intent to revoke the status in
relevant part if it is determined that:
(i) The T nonimmigrant violated the requirements of section
101(a)(15)(T) of the Act or this section;
(ii) The approval of the application violated this section or
involved error in preparation procedure or adjudication that affects the
outcome;
(iii) In the case of a T-2 spouse, the alien's divorce from the T-1
principal alien has become final;
(iv) In the case of a T-1 principal alien, an LEA with jurisdiction
to detect or investigate the acts of severe forms of trafficking in
persons by which the alien was victimized notifies the Service that the
alien has unreasonably refused to cooperate with the investigation or
prosecution of the trafficking in persons and provides the Service with
a detailed explanation of its assertions in writing; or
(v) The LEA providing the LEA endorsement withdraws its endorsement
or disavows the statements made therein and notifies the Service with a
detailed explanation of its assertions in writing.
(2) Notice of intent to revoke and consideration of evidence. A
district director may revoke the approval of a T nonimmigrant status at
any time, even after the validity of the status has expired. The notice
of intent to revoke shall be in writing and shall contain a detailed
statement of the grounds for the revocation and the time period allowed
for the T nonimmigrant's rebuttal. The alien 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
approval of the T nonimmigrant status. The determination of what is
relevant evidence and the weight to be given to that evidence shall be
within the sole discretion of the director.
(3) Revocation of T nonimmigrant status. If, upon reconsideration,
the approval previously granted is revoked, the director shall provide
the alien
[[Page 378]]
with a written notification of the decision that explains the specific
reasons for the revocation. The director also shall notify the LEA that
supplied an endorsement to the alien, any consular officer having
jurisdiction over the applicant, and HHS's Office of Refugee
Resettlement.
(4) Appeal of a revocation of approval. The alien may appeal the
decision to revoke the approval within 15 days after the service of
notice of the revocation. All appeals of a revocation of approval will
be processed and adjudicated in accordance with Sec. 103.3 of this
chapter.
(5) Effect of revocation of T-1 status. In the event that a
principal alien's T-1 nonimmigrant status is revoked, all T nonimmigrant
status holders deriving status from the revoked status automatically
shall have that status revoked. In the case where a T-2, T-3, or T-4
application is still awaiting adjudication, it shall be denied. The
revocation of an alien's T-1 status will have no effect on the annual
cap as described in paragraph (m) of this section.
(t) Removal proceedings without revocation. Nothing in this section
shall prohibit the Service from instituting removal proceedings under
section 240 of the Act for conduct committed after admission, or for
conduct or a condition that was not disclosed to the Service prior to
the granting of nonimmigrant status under section 101(a)(15)(T) of the
Act, including the misrepresentation of material facts in the
applicant's application for T nonimmigrant status.
(u) [Reserved]
(v) Service officer referral. Any Service officer who receives a
request from an alien seeking protection as a victim of a severe form of
trafficking in persons or seeking information regarding T nonimmigrant
status shall follow the procedures for protecting and providing services
to victims of severe forms of trafficking outlined in 28 CFR 1100.31.
Aliens believed to be victims of a severe form of trafficking in persons
shall be referred to the local Service office with responsibility for
investigations relating to victims of severe forms of trafficking in
persons for a consultation within 7 days. The local Service office may,
in turn, refer the victim to another LEA with responsibility for
investigating or prosecuting severe forms of trafficking in persons. If
the alien has a credible claim to victimization, he or she will be given
the opportunity to submit an application for T status pursuant to
section 101(a)(15)(T) of the Act and any other benefit or protection for
which he or she may be eligible. An alien determined not to have a
credible claim to being a victim of a severe form of trafficking in
persons and who is subject to removal will be removed in accordance with
Service policy.
[67 FR 4795, Jan. 31, 2002]
Sec. 214.12 Preliminary enrollment of schools in the Student and
Exchange Visitor Information System (SEVIS).
(a) Private elementary and private secondary schools, public high
schools, post-secondary schools, language schools, and vocational
schools are eligible for preliminary enrollment in Student and Exchange
Visitor Information System (SEVIS), beginning on or after July 1, 2002,
but only if the school is accredited by an accrediting agency recognized
by the United States Department of Education, CAPE, or AACS, or in the
case of a public high school, the school provides certification from the
appropriate public official that the school meets the requirements of
the state or local public educational system and has been continuously
approved by the Service for a minimum of three years, as of July 1,
2002, for the admission of F or M nonimmigrant students. A school may
establish that it is accredited by showing that it has been designated
as an eligible school under Title IV of the Higher Education Act of
1965.
(b) Preliminary enrollment in SEVIS is optional for eligible
schools. The preliminary enrollment period will be open from July 1,
2002, through August 16, 2002, or, if later, until the Service begins
the SEVIS full scale certification process. The process for eligible
schools to apply for preliminary enrollment through the Internet is as
follows:
(1) Eligible institutions must access the Internet site, http://
[[Page 379]]
www.ins.usdoj.gov/sevis. Upon accessing the site, the president, owner,
head of the school or designated school official will be asked to enter
the following information: the school's name; the first, middle, and
last name of the contact person for the school; and the e-mail address
and phone number of the contact person.
(2) Once this information has been submitted, the Service will issue
the school a temporary ID and password, which will be forwarded to the
e-mail address listed. When the contact person receives this temporary
ID and password, the school will again access the Internet site and will
electronically enter the school's information for its Form I-17.
(c) The Service will review the information by a school submitted as
provided in paragraph (b) of this section, and will preliminarily enroll
a school in SEVIS, if it is determined to be eligible under the
standards of paragraph (a) of this section. If the officer determines
that the school is eligible for preliminary enrollment, the officer will
update SEVIS and enroll the school and permanent user IDs and passwords
will be automatically generated via e-mail to the DSOs listed on the
Form I-17. Schools that are not approved by the Service for preliminary
enrollment will be notified that they must apply for certification in
accordance with the Interim Certification Rule. A school that is granted
preliminary enrollment will have to use SEVIS for the issuance of any
new Form I-20 to a new or continuing student.
(d) Schools granted preliminary enrollment in SEVIS will not have to
apply for certification at this time. However, all such schools will be
required to apply for certification, and pay the certification fee,
prior to May 14, 2004.
(e) Eligible schools that meet the standards of paragraph (a) of
this section, but do not apply for preliminary enrollment in SEVIS prior
to the close of the preliminary enrollment period will have to apply for
certification review under the Interim Certification Rule and pay the
certification fee before enrolling in SEVIS. However, once a school
meeting the standards of paragraph (a) of this section applies for
certification review, the Service will have the discretion, after a
review of the school's application, to allow the school to enroll in
SEVIS without requiring an on-site visit prior to enrollment. If the
Service permits such a school to enroll in SEVIS prior to completion of
the on-site visit, the on-site visit must be completed prior to May 14,
2004.
(f) Schools that are not eligible to apply for preliminary
enrollment in SEVIS under this section--including flight schools--will
have to apply for certification under the Interim Certification Rule,
pay the certification fee, and undergo a full certification review
including an on-site visit, prior to being allowed to enroll in SEVIS.
[67 FR 44346, July 1, 2002]
Sec. 214.15 Certain spouses and children of lawful permanent residents.
(a) Aliens abroad. Under section 101(a)(15)(v) of the Act, certain
eligible spouses and children of lawful permanent residents may apply
for a V nonimmigrant visa at a consular office abroad and be admitted to
the United States in V-1 (spouse), V-2 (child), or V-3 (dependent child
of the spouse or child who is accompanying or following to join the
principal beneficiary) nonimmigrant status to await the approval of:
(1) A relative visa petition;
(2) The availability of an immigrant visa number; or
(3) Lawful permanent resident (LPR) status through adjustment of
status or an immigrant visa.
(b) Aliens already in the United States. Eligible aliens already in
the United States may apply to the Service to obtain V nonimmigrant
status for the same purpose. Aliens in the United States in V
nonimmigrant status are entitled to reside in the United States as V
nonimmigrants and obtain employment authorization.
(c) Eligibility. Subject to section 214(o) of the Act, an alien who
is the beneficiary (including a child of the principal alien, if
eligible to receive a visa under section 203(d) of the Act) of an
immigrant visa petition to accord a status under section 203(a)(2)(A) of
the Act that was filed with the Service
[[Page 380]]
under section 204 of the Act on or before December 21, 2000, may apply
for V nonimmigrant status if:
(1) Such immigrant visa petition has been pending for 3 years or
more; or
(2) Such petition has been approved, and 3 or more years have passed
since such filing date, in either of the following circumstances:
(i) An immigrant visa is not immediately available to the alien
because of a waiting list of applicants for visas under section
203(a)(2)(A) of the Act; or
(ii) The alien's application for an immigrant visa, or the alien's
application for adjustment of status under section 245 of the Act,
pursuant to the approval of such petition, remains pending.
(d) The definition of ``pending''. For purposes of this section, a
pending petition is defined as a petition to accord a status under
section 203(a)(2)(A) of the Act that was filed with the Service under
section 204 of the Act on or before December 21, 2000, that has not been
adjudicated. In addition, the petition must have been properly filed
according to Sec. 103.2(a) of this chapter, and if, subsequent to
filing, the Service returns the petition to the applicant for any reason
or makes a request for evidence, the petitioner must satisfy the Service
request within the time period set forth at Sec. 103.2(b)(8) of this
chapter. If the Service denies a petition, but the petitioner appeals
that decision, the petition will be considered pending until the
administrative appeal is decided by the Service. A petition rejected by
the Service as not properly filed is not considered to be pending.
(e) Classification process for aliens outside the United States--
(1) V nonimmigrant visa. An eligible alien may obtain a V nonimmigrant
visa from the Department of State at a consular office abroad pursuant
to the procedures set forth in 22 CFR 41.86.
(2) Aliens applying for admission to the United States as a V
nonimmigrant at a port-of-entry. Aliens applying under section 235 of
the Act for admission to the United States at a port-of-entry as a V
nonimmigrant must have a visa in the appropriate category. Such aliens
are exempt from the ground of inadmissibility under section 212(a)(9)(B)
of the Act.
(f) Application by aliens in the United States. An alien described
in paragraph (c) of this section who is in the United States may apply
to the Service to obtain V nonimmigrant status pursuant to the
procedures set forth in this section and 8 CFR part 248. The alien must
be admissible to the United States, except that, in determining the
alien's admissibility in V nonimmigrant status, sections 212(a)(6)(A),
(a)(7), and (a)(9)(B) of the Act do not apply.
(1) Contents of application. To apply for V nonimmigrant status, an
eligible alien must submit:
(i) Form I-539, Application to Extend/Change Nonimmigrant Status,
with the fee required by Sec. 103.7(b)(1) of this chapter;
(ii) The fingerprint fee as required by Sec. 103.2(e)(4) of this
chapter;
(iii) Form I-693, Medical Examination of Aliens Seeking Adjustment
of Status, without the vaccination supplement; and
(iv) Evidence of eligibility as described by Supplement A to Form I-
539 and in paragraph (f)(2) of this section.
(2) Evidence. Supplement A to Form I-539 provides instructions
regarding the submission of evidence. An alien applying for V
nonimmigrant status with the Service should submit proof of filing of
the immigrant petition that qualifies the alien for V status. Proof of
filing may include Form I-797, Notice of Action, which serves as a
receipt of the petition or as a notice of approval, or a receipt for a
filed petition or notice of approval issued by a local district office.
If the alien does not have such proof, the Service will review other
forms of evidence, such as correspondence to or from the Service
regarding a pending petition. If the alien does not have any of the
items previously mentioned in this paragraph, but believes he or she is
eligible for V nonimmigrant status, he or she should state where and
when the petition was filed, the name and alien number of the
petitioner, and the names of all beneficiaries (if known).
(g) Period of admission-- (1) Spouse of an LPR. An alien admitted to
the United States in V-1 nonimmigrant status (or whose status in the
United
[[Page 381]]
States is changed to V-1) will be granted a period of admission not to
exceed 2 years.
(2) Child of an LPR or derivative child. An alien admitted to the
United States in V-2 or V-3 nonimmigrant status (or whose status in the
United States is changed to V-2 or V-3) will be granted a period of
admission not to exceed 2 years or the day before the alien's 21st
birthday, whichever comes first.
(3) Extension of status. An alien may apply to the Service for an
extension of V nonimmigrant status pursuant to this part and 8 CFR part
248. Aliens may apply for the extension of V nonimmigrant status,
submitting Form I-539, and the associated filing fee, on or before 120
days before the expiration of their status. If approved, the Service
will grant an extension of status to aliens in V nonimmigrant status who
remain eligible for V nonimmigrant status for a period not to exceed 2
years, or in the case of a child in V-2 or V-3 status, the day before
the alien's 21st birthday, whichever comes first.
(4) Special rules. The following special rules apply with respect to
aliens who have a current priority date in the United States, but do not
have a pending application for an immigrant visa abroad or an
application to adjust status.
(i) For an otherwise eligible alien who applies for admission to the
United States in a V nonimmigrant category at a designated Port-of-Entry
and has a current priority date but does not have a pending immigrant
visa abroad or application for adjustment of status in the United
States, the Service will admit the alien for a 6-month period (or to the
date of the day before the alien's 21st birthday, as appropriate).
(ii) For such an alien in the United States who applies for
extension of V nonimmigrant status, the Service will grant a one-time
extension not to exceed 6 months.
(iii) If the alien has not filed an application, either for
adjustment of status or for an immigrant visa within that 6-month
period, the alien cannot extend or be admitted or readmitted to V
nonimmigrant status. If the alien does file an application, either for
adjustment of status or for an immigrant visa within the time allowed,
the alien will continue to be eligible for further extensions of V
nonimmigrant status as provided in this section while that application
remains pending.
(h) Employment authorization. An alien in V nonimmigrant status may
apply to the Service for employment authorization pursuant to this
section and Sec. 274a.12(a)(15) of this chapter. An alien must file
Form I-765, Application for Employment Authorization, with the fee
required by 8 CFR 103.7. The Service will grant employment authorization
to aliens in V nonimmigrant status who remain eligible for V
nonimmigrant status valid for a period equal to the alien's authorized
admission as a V nonimmigrant.
(i) Travel abroad; unlawful presence--(1) V nonimmigrant status in
the United States. An alien who applies for and obtains V nonimmigrant
status in the United States will be issued Form I-797, Notice of Action,
indicating the alien's V status in the United States. Form I-797 does
not serve as a travel document. If such an alien departs the United
States, he or she must obtain a V visa from a consular office abroad in
order to be readmitted to the United States as a V nonimmigrant. This
visa requirement, however, does not apply if the alien traveled to
contiguous territory or adjacent islands, possesses another valid visa,
and is eligible for automatic revalidation.
(2) V nonimmigrants with a pending Form I-485. An alien in V
nonimmigrant status with a pending Form I-485 (Application to Register
Permanent Residence or Adjust Status) that was properly filed with the
Service does not have to obtain advance parole in order to prevent the
abandonment of that application when the alien departs the United
States.
(3) Unlawful presence--(i) Nonimmigrant admission. An alien
otherwise eligible for admission as a V nonimmigrant is not subject to
the ground of inadmissibility under section 212(a)(9)(B) of the Act.
This is true even if the alien had accrued more than 180 days of
unlawful presence in the United States and is applying for admission as
a nonimmigrant after travel abroad.
(ii) Permanent resident status. A V nonimmigrant alien is subject to
the
[[Page 382]]
ground of inadmissibility under section 212(a)(9)(B) of the Act when
applying for an immigrant visa or for adjustment of status to that of a
lawful permanent resident. Therefore, a departure from the United States
at any time after having accrued more than 180 days of unlawful presence
will render the alien inadmissible under that section for the purpose of
adjustment of status or admission as an immigrant, unless he or she has
obtained a waiver under section 212(a)(9)(B)(v) of the Act or falls
within one of the exceptions in section 212(a)(9)(B)(iii) of the Act.
(j) Termination of status--(1) General. The status of an alien
admitted to the United States as a V nonimmigrant under section
101(a)(15)(V) of the Act shall be automatically terminated 30 days
following the occurrence of any of the following:
(i) The denial, withdrawal, or revocation of the Form I-130,
Petition for Immediate Relative, filed on behalf of that alien;
(ii) The denial or withdrawal of the immigrant visa application
filed by that alien;
(iii) The denial or withdrawal of the alien's application for
adjustment of status to that of lawful permanent residence;
(iv) The V-1 spouse's divorce from the LPR becomes final; or
(v) The marriage of an alien in V-2 or V-3 status.
(2) Dependents. When a principal alien's V nonimmigrant status is
terminated, the V nonimmigrant status of any alien listed as a V-3
dependent or who is seeking derivative benefits is also terminated.
(3) Appeals. If the denial of the immigrant visa petition is
appealed, the alien's V nonimmigrant status does not terminate until 30
days after the administrative appeal is dismissed.
(4) Violations of status. Nothing in this section precludes the
Service from immediately initiating removal proceedings for other
violations of an alien's V nonimmigrant status.
(k) Naturalization of the petitioner. If the lawful permanent
resident who filed the qualifying Form I-130 immigrant visa petition
subsequently naturalizes, the V nonimmigrant status of the spouse and
any children will terminate after his or her current period of admission
ends. However, in such a case, the alien spouse or child will be
considered an immediate relative of a U.S. citizen as defined in section
201(b) of the Act and will immediately be eligible to apply for
adjustment of status and related employment authorization. If the V-1
spouse or V-2 child had already filed an application for adjustment of
status by the time the LPR naturalized, a new application for adjustment
will not be required.
(l) Aliens in proceedings. An alien who is already in immigration
proceedings and believes that he or she may have become eligible to
apply for V nonimmigrant status should request before the immigration
judge or the Board, as appropriate, that the proceedings be
administratively closed (or before the Board that a previously-filed
motion for reopening or reconsideration be indefinitely continued) in
order to allow the alien to pursue an application for V nonimmigrant
status with the Service. If the alien appears eligible for V
nonimmigrant status, the immigration judge or the Board, whichever has
jurisdiction, shall administratively close the proceeding or continue
the motion indefinitely. In the event that the Service finds an alien
eligible for V nonimmigrant status, the Service can adjudicate the
change of status under this section. In the event that the Service finds
an alien ineligible for V nonimmigrant status, the Service shall
recommence proceedings by filing a motion to re-calendar.
[66 FR 46702, Sept. 7, 2001]
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.
[[Page 383]]
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 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
[[Page 384]]
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 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
[[Page 385]]
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 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.
[[Page 386]]
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 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,
[[Page 387]]
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 Sec. Sec. 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 Sec. Sec. 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 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.
[[Page 388]]
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 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
[[Page 389]]
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
will 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 removal proceedings. In
addition to the notice of termination, the director shall issue a notice
to appear in accordance with 8 CFR part 239. During the ensuing removal
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 removal proceedings under section 240 of the
Act.
[62 FR 10349, Mar. 6, 1997]
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
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
[[Page 390]]
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 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
removal 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 notice to appear in accordance with Sec. 239.2 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,
[[Page 391]]
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 a notice to appear shall be issued placing the alien under
removal 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, and issue a notice to appear to initiate removal 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 approved and the conditional basis of the
alien's permanent residence status removed, regardless of any action
taken or contemplated regarding other possible grounds for removal.
(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 Permanent Resident Card (if
necessary), at which time the alien shall surrender any Permanent
Resident 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 a notice to appear under section 239
of the Act and 8 CFR part
[[Page 392]]
239. 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 Permanent Resident 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 removal
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 or 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; 62 FR 10349, Mar. 6, 1997; 63 FR 70315, Dec.
21, 1998]
Sec. 216.5 Waiver of requirement to file joint petition to remove
conditions by alien spouse.
(a) General. (1) 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 Form I-751, Petition to Remove the Conditions on Residence, 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:
(i) Deportation or removal from the United States would result in
extreme hardship;
(ii) 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
(iii) 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.
(2) A conditional resident who is in exclusion, deportation, or
removal proceedings may apply for the waiver only until such time as
there is a final order of exclusion, deportation or removal.
(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 service center director may refer the application
to the appropriate local office 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 removal 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
removal from the United States, the director shall take into account
only those factors that arose subsequent to the alien's entry as a
conditional permanent resident. The director shall bear in mind that any
removal from the United States is likely to result in a certain degree
of hardship, and that only in those cases 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
[[Page 393]]
(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 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 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
[[Page 394]]
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
Permanent Resident Card issued by the Service and issue a notice to
appear placing the alien in removal proceedings. No appeal shall lie
from the decision of the director; however, the alien may seek review of
such decision in removal proceedings.
[53 FR 30018, Aug. 10, 1988, as amended at 56 FR 22637, May 16, 1991; 59
FR 26591, May 23, 1994; 62 FR 10350, Mar. 6, 1997; 63 FR 70315, Dec. 21,
1998]
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;
(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.
[[Page 395]]
(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 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
[[Page 396]]
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 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 Permanent Resident Card, Form I-551, at
which time the alien shall surrender any Permanent Resident Card
previously issued.
[[Page 397]]
(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 Permanent Resident 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, as amended at 63 FR 70315, Dec. 21, 1998]
PART 217_VISA WAIVER PROGRAM--Table of Contents
Sec.
217.1 Scope.
217.2 Eligibility.
217.3 Maintenance of status.
217.4 Inadmissibility and deportability.
217.5 [Reserved]
217.6 Carrier agreements.
217.7 Electronic data transmission requirement.
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 (VWPP) described in this section is
established pursuant to the provisions of section 217 of the Act.
[62 FR 10351, Mar. 6, 1997]
Sec. 217.2 Eligibility.
(a) Definitions. As used in this part, the term:
Carrier 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.
Designated country refers to Andorra, Australia, Austria, Belgium,
Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy,
Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand,
Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden,
Switzerland, and the United Kingdom. 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, the
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. After May 15, 2003, citizens of
Belgium must present a machine-readable passport in order to be granted
admission under the Visa Waiver Program.
Round trip ticket means any return trip transportation ticket in the
name of an arriving Visa Waiver Pilot Program applicant on a
participating carrier valid for at least 1 year, electronic ticket
record, airline employee passes indicating return passage, individual
vouchers for return passage, group vouchers for return passage for
charter flights, and military travel orders which include military
dependents for return to duty stations outside the United States on U.S.
military flights. A period of validity of 1 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 Form
I-775, Visa Waiver Pilot Program Agreement.
(b) Special program requirements--(1) General. In addition to
meeting all of the requirements for the Visa Waiver Pilot Program
specified in section 217 of the Act, each applicant must possess a
valid, unexpired passport issued by a designated country and present a
completed, signed Form I-94W, Nonimmigrant Visa Waiver Arrival/Departure
Form.
(2) Persons previously removed as deportable aliens. Aliens who have
been deported or removed from the United States, after having been
determined deportable, require the consent of the
[[Page 398]]
Attorney General to apply for admission to the United States pursuant to
section 212(a)(9)(A)(iii) of the Act. Such persons 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, unless otherwise exempt.
(c) Restrictions on manner of arrival--(1) Applicants arriving by
air and sea. Applicants must arrive on a carrier that is signatory to a
Visa Waiver Pilot Program Agreement and at the time of arrival must have
a round trip ticket that 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; except that the
round trip ticket may transport the traveler to contiguous territory or
an adjacent island, if the traveler is a resident of the country of
destination.
(2) Applicants arriving at land border ports-of-entry. Any Visa
Waiver Pilot Program 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. A round-trip
transportation ticket is not required of applicants at land border
ports-of-entry.
(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 all other program requirements.
[62 FR 10351, Mar. 6, 1997, as amended at 62 FR 50999, Sept. 30, 1997;
64 FR 42007, Aug. 3, 1999; 67 FR 7945, Feb. 21, 2002; 68 FR 10957, Mar.
7, 2003]
Sec. 217.3 Maintenance of status.
(a) 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
30 days. If departure is accomplished during that period, the alien is
to be regarded as having satisfactorily accomplished the visit without
overstaying the allotted time.
(b) 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 after a departure to foreign contiguous
territory or adjacent island for the balance of his or her original Visa
Waiver Pilot Program admission period if he or she is otherwise
admissible and meets all the conditions of this part with the exception
of arrival on a signatory carrier.
[62 FR 10351, Mar. 6, 1997]
Sec. 217.4 Inadmissibility and deportability.
(a) Determinations of 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 inadmissible to the United States under one
or more of the grounds of inadmissibility listed in section 212 of the
Act (other than for lack of a visa), or who is in possession of and
presents fraudulent or counterfeit travel documents, will be refused
admission into 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 issued a Form I-863,
Notice of Referral to Immigration Judge, for a proceeding in accordance
with Sec. 208.2(b)(1) and (2) of this chapter.
(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
[[Page 399]]
Attorney General enumerated in section 212(d) of the Act.
(3) Refusal of admission under paragraph (a)(1) of this section
shall not constitute removal for purposes of the Act.
(b) Determination of deportability. (1) 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 grounds of
deportability listed in section 237 of the Act shall be removed from the
United States to his or her country of nationality or last residence.
Such removal 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 issued a Form I-863 for a proceeding in accordance with Sec.
208.2(b)(1) and (2) of this chapter.
(2) Removal by the district director under paragraph (b)(1) of this
section is equivalent in all respects and has the same consequences as
removal after proceedings conducted under section 240 of the Act.
(c)(1) Removal of inadmissible aliens who arrived by air or sea.
Removal of an alien 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 by
section 217(a)(7) of the Act. 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 inadmissible or deportable alien at carrier
expense, as provided in the carrier agreement.
(2) Removal of inadmissible 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;
62 FR 10351, Mar. 6, 1997]
Sec. 217.5 [Reserved]
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.
(b) Termination of agreements. The Commissioner, on behalf of the
Attorney General, may terminate any carrier agreement under this part,
with 5 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 15 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 15 days' written
notice to the other party.
[62 FR 10352, Mar. 6, 1997]
Sec. 217.7 Electronic data transmission requirement.
(a) No waivers granted. An alien who applies for admission under the
provisions of the Visa Waiver Program pursuant to section 217 of the Act
after arriving via sea or air at a port of entry will not be granted a
waiver of the visa requirement of section 212(a)(7)(B)(i)(II) of the Act
unless the carrier transporting such an alien is electronically
transmitting the data required in paragraphs (b) and (c) of this
section.
(b)(1) Passenger arrival data. Each carrier shall transmit the data
elements set forth in paragraph (c) of this section for each passenger
transported by the carrier under section 217 of the Act. The information
must be transmitted to the Service via the U.S. Customs Data Center,
U.S. Customs Service
[[Page 400]]
Headquarters, by means of an electronic data interchange system that is
approved by the U.S. Customs Service in conjunction with the Service.
The Service must receive the information for each passenger no later
than 15 minutes after the flight or the vessel has departed from the
last foreign port or place.
(2) Passenger departure data. Each carrier shall transmit the data
elements set forth in paragraph (c) of this section for each passenger
departing the United States aboard the carrier after having been
admitted under section 217 of the act. The information must be
transmitted to the Service via the U.S. Customs Data Center, U.S.
Customs Service Headquarters by means of an electronic data interchange
system that is approved by the U.S. Customs Service in conjunction with
the Service. The Service must receive the information for each passenger
no later than 15 minutes before the flight or vessel has departed from
the United States. If additional passengers board after the original
manifest has been submitted, or if passengers exit after boarding but
prior to departure, carriers will also be required to submit amended or
updated passenger manifest information electronically to the Service no
later than 15 minutes after the flight or vessel has departed from the
United States.
(c) Required passenger and flight or vessel data elements.
(1) Last name.
(2) First name.
(3) Middle name or middle initial.
(4) Date of birth.
(5) Gender or sex (F=Female; M=Male).
(6) Nationality.
(7) Document number.
(8) Country of document issuance.
(9) Document type (e.g., P=Passport, V=Visa, A=Alien registration
card).
(10) Airline International Air Transport Association (IATA) carrier
code or vessel name.
(11) Airline flight number, or tail number for private or corporate
aircraft;
(12) Date and time of scheduled flight or vessel arrival into the
United States.
(13) Date and time of scheduled flight or vessel departure from the
United States.
(14) Port of arrival.
(15) Port of departure.
(16) Contact name and number.
(17) Traveler status (e.g., P=Passenger, C=Crewmember).
[67 FR 63249, Oct. 11, 2002]
PART 221_ADMISSION OF VISITORS OR STUDENTS--Table of Contents
Authority: 8 U.S.C. 1101, 1103, 1201; 8 CFR part 2.
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 Sec.
103.6 of this chapter.
[32 FR 9626, July 4, 1967, as amended at 34 FR 1008, Jan. 23, 1969; 62
FR 10352, Mar. 6, 1997]
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
[[Page 401]]
to the Status of Refugees, November 1, 1968, 19 U.S.T. 6223 (TIAS) 6577;
8 CFR part 2.
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 29, 1951, for the purpose of travel. Except as provided in Sec.
223.3(d)(2)(i), a person who holds refugee status pursuant to section
207 of the Act, or asylum 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.
[59 FR 1464, Jan. 11, 1994, as amended at 62 FR 10352, Mar. 6, 1997]
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--(i) General. 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
asylum status under section 208 of the Act, or is a permanent resident
and received such status as a direct result of his or her asylum or
refugee status.
(ii) Discretionary authority to adjudicate an application from an
alien not within the United States. As a matter of discretion, a
district director having jurisdiction over a port-of-entry or a
preinspection station where an alien is an applicant for admission, or
an overseas district director having jurisdiction over the place where
an alien is physically present, may accept and adjudicate an application
for a refugee travel document from an alien who previously had been
admitted to the United States as a refugee, or who previously had been
granted asylum status in the United States, and who had departed from
the United States without having applied for such refugee travel
document, provided:
(A) The alien submits a Form I-131, Application for Travel Document,
with the fee required under Sec. 103.7(b)(1) of this chapter;
(B) The district director is satisfied that the alien did not intend
to abandon his or her refugee status at the time of departure from the
United States;
(C) The alien did not engage in any activities while outside the
United States that would be inconsistent with continued refugee or
asylee status; and
(D) The alien has been outside the United States for less than 1
year since his or her last departure.
(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
[[Page 402]]
(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 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.
[59 FR 1464, Jan. 11, 1994, as amended at 62 FR 10352, Mar. 6, 1997]
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) Inspection and immigration status.
Upon arrival in the United States, an alien who presents a valid
unexpired refugee travel document, or who has been allowed to file an
application for a refugee travel document and this application has been
approved under the procedure set forth in Sec. 223.2(b)(2)(ii), 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, or (in the case of an alien discussed in Sec.
223.2(b)(2)(ii)) which will be endorsed in such document, unless he or
she is no longer eligible for that status, or he or she applies for and
is found eligible for some other immigration status.
(ii) Inadmissibility. If an alien who presents a valid unexpired
refugee travel document appears to the examining immigration officer to
be inadmissible, he or she shall be referred for proceedings under
section 240 of the Act. Section 235(c) of the Act shall not be
applicable.
[59 FR 1464, Jan. 11, 1994, as amended at 62 FR 10353, Mar. 6, 1997]
[[Page 403]]
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: 8 U.S.C. 1101, 1103, 1182, 1221, 1223 and 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- 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) [Reserved]
(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. Citizens of Canada or the
British Overseas Territory of Bermuda are not required to complete the
departure portion of the Form I-94 if they are entering the United
States for business or pleasure under section 101(a)(15)(B) of the Act,
and intend to remain in the United States for less than 6 months.
[48 FR 21548, May 13, 1983, as amended at 48 FR 36093, Aug. 9, 1983; 48
FR 40209, Sept. 6, 1983; 68 FR 5193, Jan. 31, 2003; 68 FR 46929, Aug. 7,
2003]
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
[[Page 404]]
hours of the departure, exclusive of Saturdays, Sundays, and legal
holidays. Failure to submit departure 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 OF ALIENS FOR PHYSICAL AND MENTAL EXAMINATION--Table
of Contents
232.1 General.
232.2 Examination in the United States of alien applicants for benefits
under the immigration laws and other aliens.
232.3 Arriving aliens.
Authority: 8 U.S.C. 1103, 1222, 1224, 1252; 8 CFR part 2.
Sec. 232.1 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.
Redesignated at 62 FR 10353, Mar. 6, 1997]
Sec. 232.2 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 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
[[Page 405]]
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. Redesignated at 62 FR 10353, Mar. 6, 1997]
Sec. 232.3 Arriving aliens.
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 or 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 or
her intention to effect such detention by serving on the master or agent
Form I-259 in accordance with Sec. 235.3(a) of this chapter.
[62 FR 10353, Mar. 6, 1997]
PART 233_CONTRACTS WITH TRANSPORTATION LINES--Table of Contents
Sec.
233.1 Contracts.
233.2 Transportation lines bringing aliens to the United States from or
through foreign contiguous territory or adjacent islands.
233.3 [Reserved]
233.4 Preinspection outside the United States.
233.5 Aliens entering Guam pursuant to section 14 of Public Law 99-396,
``Omnibus Territories Act''.
Authority: 8 U.S.C. 1103, 1182, 1223.
Source: Redesignated at 62 FR 10353, Mar. 6, 1997.
Sec. 233.1 Contracts.
The contracts with transportation lines referred to in section
233(c) of the
[[Page 406]]
Act may be entered into by the Executive Associate Commissioner for
Programs, or by an immigration officer designated by the Executive
Associate Commissioner for Programs on behalf of the government and
shall be documented on Form I-420. The contracts with transportation
lines referred to in section 233(a) 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 Associate Commissioner for
Examinations or an immigration officer designated by the Executive
Associate Commissioner for Programs and having jurisdiction over the
location where the inspection will take place.
[62 FR 10353, Mar. 6, 1997]
Sec. 233.2 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. 233.3 [Reserved]
Sec. 233.4 Preinspection outside the United States.
(a) Form I-425 agreements. A transportation line bringing applicants
for admission to the United States through preinspection sites outside
the United States shall enter into an agreement on Form I-425. Such an
agreement shall be negotiated directly by the Service's Headquarters
Office of Inspections and the head office of the transportation line.
(b) Signatory lines. A list of transportation lines with currently
valid transportation agreements on Form I-425 is maintained by the
Service's Headquarters Office of Inspections and is available upon
written request.
[62 FR 10353, Mar. 6, 1997]
Sec. 233.5 Aliens entering Guam pursuant to section 14 of Public Law
99-396, ``Omnibus Territories Act.'
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 Service's Headquarters and head offices of the transportation lines.
[62 FR 10353, Mar. 6, 1997]
PART 234_DESIGNATION OF PORTS OF ENTRY FOR ALIENS ARRIVING BY CIVIL
AIRCRAFT--Table of Contents
Sec.
234.1 Definitions.
234.2 Landing requirements.
234.3 Aircraft; how considered.
234.4 International airports for entry of aliens.
Authority: 8 U.S.C. 1103, 1221, 1229; 8 CFR part 2.
Source: Redesignated at 62 FR 10353, Mar. 6, 1997.
Sec. 234.1 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
[[Page 407]]
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. 234.2 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 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 and crew required to be inspected under the act on flights
originating in Cuba shall land only at John F. Kennedy International
Airport, Jamaica, New York; the Los Angeles International Airport, Los
Angeles, California; or the Miami International Airport, Miami, Florida,
unless advance permission to land elsewhere has been obtained from the
Office of Field Operations at Headquarters.
(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; 65 FR 58903, Oct. 3, 2000]
Sec. 234.3 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.
[22 FR 9795, Dec. 6, 1957. Redesignated and amended at 62 FR 10353, Mar.
6, 1997]
[[Page 408]]
Sec. 234.4 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 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 235_INSPECTION OF PERSONS APPLYING FOR ADMISSION--Table of Contents
Sec.
235.1 Scope of examination.
235.2 Parole for deferred inspection.
235.3 Inadmissible aliens and expedited removal.
235.4 Withdrawal of application for admission.
235.5 Preinspection.
235.6 Referral to immigration judge.
235.7 Automated inspection services.
235.8 Inadmissibility on security and related grounds.
235.9 Northern Marianas identification card.
235.10 U.S. Citizen Identification Card.
235.11 Admission of conditional permanent residents.
Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1201, 1224, 1225,
1226, 1228; 8 CFR part 2.
Sec. 235.1 Scope of examination.
(a) General. Application to lawfully enter the United States shall
be made in person to an immigration officer at a U.S. port-of-entry when
the port is open for inspection, or as otherwise designated in this
section.
(b) U.S. citizens. A person claiming U.S. citizenship must establish
that fact to the examining 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 applicant for admission fails to satisfy the
examining immigration officer that he or she is a U.S. citizen, he or
she 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 or
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 removal 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 and his or 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 or her entry shall
not be recorded.
(d) Alien applicants for admission. (1) Each alien seeking admission
at a United States port-of-entry shall present whatever documents are
required and shall establish to the satisfaction of the immigration
officer that he or she is not subject to removal under the immigration
laws, Executive Orders, or Presidential Proclamations and is entitled
under all of the applicable provisions of the immigration laws
[[Page 409]]
and this chapter to enter the United States. A person claiming to have
been lawfully admitted for permanent residence must establish that fact
to the satisfaction of the inspecting immigration officer and must
present proper documents in accordance with Sec. 211.1 of this chapter.
(2) An alien present in the United States who has not been admitted
or paroled or an alien who seeks entry at other than an open, designated
port-of-entry, except as otherwise permitted in this section, is subject
to the provisions of section 212(a) of the Act and to removal under
section 235(b) or 240 of the Act.
(3) An alien who is brought to the United States, whether or not to
a designated port-of-entry and regardless of the means of
transportation, after having been interdicted in international or United
States waters, is considered an applicant for admission and shall be
examined under section 235(b) of the Act.
(4) An alien stowaway is not an applicant for admission and may not
be admitted to the United States. A stowaway shall be removed from the
United States under section 235(a)(2) of the Act. The provisions of
section 240 of the Act are not applicable to stowaways, nor is the
stowaway entitled to further hearing or review of the removal, except
that an alien stowaway who indicates an intention to apply for asylum,
or expresses a fear of persecution, a fear of torture, or a fear of
return to the country of proposed removal shall be referred to an asylum
officer for a determination of credible fear of persecution or torture
in accordance with section 235(b)(1)(B) of the Act and Sec. 208.30 of
this chapter. An alien stowaway who is determined to have a credible
fear of persecution or torture shall have his or her asylum application
adjudicated in accordance with Sec. 208.2(b)(2) of this chapter.
(e) U.S. citizens, lawful permanent residents of the United States,
and other aliens, entering the United States along the northern border,
other than at a port-of-entry. A citizen of Canada or a permanent
resident of Canada who is a national of a country listed in Sec.
217.2(a) of this chapter may, if in possession of a valid, unexpired,
Canadian Border Boat Landing Permit(Form I-68) or evidence of enrollment
in any other Service Alternative Inspections program (e.g., the
Immigration and Naturalization Service Passenger Accelerated Service
System (INSPASS) or the Port Passenger Accelerated Service System
(PORTPASS)), enter the United States by means of a pleasure craft along
the northern border of the United States from time-to-time without
further inspection. No persons other than those described in this
paragraph may participate in this program. Permanent residents of Canada
who are nationals of a designated Visa Waiver Program country listed in
Sec. 217.2(a) of this chapter must be in possession of a valid,
unexpired passport issued by his or her country of nationality, and an
unexpired multiple entry Form I-94W, Nonimmigrant Visa Waiver Arrival/
Departure Form, or an unexpired passport, valid unexpired United States
visa and I-94 Arrival/Departure Form. When an entry to the United States
is made by a person who is a Canadian citizen or a permanent resident of
Canada who is a national of a designated Visa Waiver Program country
listed in Sec. 217.2(a) of this chapter, entry may be made under this
program only for a purpose as described in section 101(a)(15)(B)(ii) of
the Act as a visitor for pleasure. Persons seeking to enter the United
States for any other purpose must do so at a port-of-entry staffed by
immigration inspectors. Persons aboard a vessel which has crossed the
international boundary between the United States and Canada and who do
not intend to land in the United States, other than at a staffed port-
of-entry, are not required to be in possession of Form I-68, Canadian
Border Boat Landing Permit, or evidence of enrollment in an Alternative
Inspections program merely because they have crossed the international
boundary. However, the Service retains the right to conduct inspections
or examinations of all persons applying for admission or readmission to
or seeking transit through the United States in accordance with the Act.
(1) Application. An eligible applicant may apply for a Canadian
Border Boat Landing Permit by completing the Form I-68 in triplicate.
Application forms will be made readily available through the Internet,
from a Service
[[Page 410]]
office, or by mail. A family may apply on a single application. For the
purposes of this paragraph, a family is defined as a husband, wife,
unmarried children under the age of 21, and the parents of either
husband or wife, who reside at the same address. In order for the I-68
application to be considered complete, it must be accompanied by the
following:
(i) For each person included on the application, evidence of
citizenship, and, if not a citizen of the Untied States or Canada,
evidence of legal permanent resident status in either the United States
or Canada. Evidence of residency must be submitted by all applicants. It
is not required that all persons on the application be of the same
nationality; however, they must all be individually eligible to
participate in this program.
(ii) If multiple members of a family, as defined in paragraph (e)(1)
of this section, are included on a single application, evidence of the
familial relationship.
(iii) A fee as prescribed in Sec. 103.7(b)(1) of this chapter.
(iv) A copy of any previously approved Form I-68.
(v) A permanent resident of Canada who is a national of a Visa
Waiver Program may apply for admission simultaneously with the Form I-68
application and thereby obtain a Form I-94 or I-94W.
(2) Submission of Form I-68. Except as indicated in this paragraph,
Form I-68 shall be properly completed and submitted in person, along
with the documentary evidence and the required fee as specified in Sec.
103.7(b)(1) of this chapter, to a United States immigration officer at a
Canadian border Port-of-Entry located within the district having
jurisdiction over the applicant's residence or intended place of
landing. Persons previously granted Form I-68 approval may apply by mail
to the issuing Service office for renewal if a copy of the previous Form
I-68 is included in the application. At the discretion of the district
director concerned, any applicant for renewal of Form I-68 may be
required to appear for an interview in person if the applicant does not
appear to be clearly eligible for renewal.
(3) Denial of Form I-68. If the applicant has committed a violation
of any immigration or customs regulation or, in the case of an alien, is
inadmissible to the United States, approval of the Form I-68 shall be
denied. However, if, in the exercise of discretion, the district
director waives under section 212(d)(3) of the Act all applicable
grounds of inadmissibility, the I-68 application may be approved for
such non-citizens. If the Form I-68 application is denied, the applicant
shall be given written notice of and the reasons for the denial by
letter from the district director. There is no appeal from the denial of
the Form I-68 application, but the denial is without prejudice to a
subsequent application for this program or any other Service benefit,
except that the applicant may not submit a subsequent Form I-68
application for 90 days after the date of the last denial.
(4) Validity. Form I-68 shall be valid for 1 year from the date of
issuance, or until revoked or violated by the Service.
(5) Conditions for participation in the I-68 program. Upon being
inspected and positively identified by an immigration officer and found
admissible and eligible for participation in the I-68 program, a
participant must agree to abide by the following conditions:
(i) Form I-68 may be used only when entering the United States by
means of a vessel exclusively used for pleasure, including chartered
vessels when such vessel has been chartered by an approved Form I-68
holder. When used by a person who is a not a citizen or a lawful
permanent resident of the United States, admission shall be for a period
not to exceed 72 hours to visit within 25 miles of the shore line along
the northern border of the United States, including the shore line of
Lake Michigan and Puget Sound.
(ii) Participants must be in possession of any authorization
documents issued for participation in this program or another Service
Alternative Inspections program (INSPASS or PORTPASS). Participants over
the age of 15 years and who are not in possession of an INSPASS or
PORTPASS enrollment card must also be in possession of a photographic
identification document issued by a governmental
[[Page 411]]
agency. Participants who are permanent residents of Canada who are
nationals of a Visa Waiver Program country listed in Sec. 217.2(a) of
this chapter must also be in possession of proper documentation as
described in paragraph (e) of this section.
(iii) Participants may not import merchandise or transport
controlled or restricted items while entering the United States under
this program. The entry of any merchandise or goods must be in
accordance with the laws and regulations of all Federal Inspection
Services.
(iv) Participants must agree to random checks or inspections that
may be conducted by the Service, at any time and at any location, to
ensure compliance.
(v) Participants 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 Controlled Substance Act (21 U.S.C. 802).
(vi) Participants acknowledge that all devices, decals, cards, or
other Federal Government supplied identification or technology used to
identify or inspect persons or vessels seeking entry via this program
remain the property of the United States Government at all times, and
must be surrendered upon request by a Border Patrol Agent or any other
officer of a Federal Inspection Service.
(vii) The captain, charterer, master, or owner (if aboard) of each
vessel bringing persons into the United States is responsible for
determining that all persons aboard the vessel are in possession of a
valid, unexpired Form I-68 or other evidence of participation in a
Service Alternative Inspections program (INSPASS or PORTPASS) prior to
entry into the territorial waters of the United States. If any person on
board is not in possession of such evidence, the captain, charterer,
master, or owner must transport such person to a staffed United States
Port-of-Entry for an in-person immigration inspection.
(6) Revocation. The district director, the chief patrol agent, or
their designated representatives may revoke the designation of any
participant who violates any condition of this program, as contained in
paragraph (e)(5) of this section, 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, has abandoned his or her
residence in the United States or Canada, is inadmissible to the United
States, or who is otherwise determined by an immigration officer to be
ineligible for continued participation in this program. Such persons 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 vessels. If permission to participate is revoked, a
written request to the district director for restoration of permission
to participate may be made. The district director will notify the person
of his or her decision and the reasons therefore in writing.
(7) Compliance checking. Participation in this program does not
relieve the holder from responsibility to comply with all other aspects
of United States Immigration, Customs, or other Federal inspection
service laws or regulations. To prevent abuse, the United States
Immigration and Naturalization Service retains the right to conduct
inspections or examinations of all persons applying for admission or
readmission to or seeking transit through the United States in
accordance with the Immigration and Nationality Act.
(f) Form I-94, Arrival Departure Record. (1) Unless otherwise
exempted, each arriving nonimmigrant who is admitted to the United
States shall be issued, upon payment of a fee prescribed in Sec.
103.7(b)(1) of this chapter for land border admissions, a Form I-94 as
evidence of the terms of admission. A Form I-94 issued at a land border
port-of-entry shall be considered issued for multiple entries unless
specifically annotated for a limited number of entries. A Form I-94
issued at other than a land border port-of-entry, unless issued for
multiple entries, must be surrendered upon departure from the United
States in accordance with the instructions on the form. Form I-94 is not
required by:
(i) Any nonimmigrant alien described in Sec. 212.1(a) of this
chapter and 22 CFR 41.33 who is admitted as a visitor for
[[Page 412]]
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 admitted only to the U.S. Virgin Islands as a visitor for
business or pleasure under Sec. 212.1(b) of this chapter;
(iii) Except as provided in paragraph (f)(1)(v) of this section, any
Mexican national who is exempt from a visa and passport pursuant to
Sec. 212.1(c)(1) of this chapter, or who is in possession of a passport
and valid visa who is admitted as a nonimmigrant visitor for a period
not to exceed 72 hours to visit within 25 miles of the border;
(iv) Bearers of Mexican diplomatic or official passports described
in Sec. 212.1(c) of this chapter; or
(v) Any Mexican national who is exempt from a visa and passport
pursuant to Sec. 212.1(c)(1) of this chapter, or is in possession of a
passport and valid visa who is admitted as a nonimmigrant visitor at the
Mexican border POEs in the State of Arizona at Sasabe, Nogales,
Mariposa, Naco, or Douglas for a period not to exceed 72 hours to visit
within the State of Arizona and within 75 miles of the border.
(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, endorsed with the parole stamp.
[62 FR 10353, Mar. 6, 1997, as amended at 62 FR 47751, Sept. 11, 1997;
64 FR 8494, Feb. 19, 1999; 64 FR 36561, July 7, 1999; 64 FR 68617, Dec.
8, 1999; 67 FR 71449, Dec. 2, 2002; 68 FR 5193, Jan. 31, 2003]
Sec. 235.2 Parole for deferred inspection.
(a) A district director may, in his or her discretion, defer the
inspection of any vessel or aircraft, or of any alien, to another
Service office or port-of-entry. 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 deferred, shall be regarded as an applicant for
admission at that onward port.
(b) An examining immigration officer may defer further examination
and refer the alien's case to the district director having jurisdiction
over the place where the alien is seeking admission, or over the place
of the alien's residence or destination in the United States, if the
examining immigration officer has reason to believe that the alien can
overcome a finding of inadmissibility by:
(1) Posting a bond under section 213 of the Act;
(2) Seeking and obtaining a waiver under section 211 or 212(d)(3) or
(4) of the Act; or
(3) Presenting additional evidence of admissibility not available at
the time and place of the initial examination.
(c) Such deferral shall be accomplished pursuant to the provisions
of section 212(d)(5) of the Act for the period of time necessary to
complete the deferred inspection.
(d) Refusal of a district director to authorize admission under
section 213 of the Act, or to grant an application for the benefits of
section 211 or section 212(d) (3) or (4) of the Act, shall be without
prejudice to the renewal of such application or the authorizing of such
admission by the immigration judge without additional fee.
(e) Whenever an alien on arrival is found or believed to be
suffering from a disability that renders it impractical to proceed with
the examination under the Act, the examination of such alien, members of
his or her 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.
[62 FR 10355, Mar. 6, 1997]