[Title 8 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2009 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          8

                         Revised as of January 1, 2009


          Aliens and Nationality
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2009
          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                 3
          Chapter V--Executive Office for Immigration Review, 
          Department of Justice                                    859
  Finding Aids:
      Table of CFR Titles and Chapters........................    1195
      Alphabetical List of Agencies Appearing in the CFR......    1215
      List of CFR Sections Affected...........................    1225

[[Page iv]]





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

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

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

[[Page v]]



                               EXPLANATION

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

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
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    To determine whether a Code volume has been amended since its 
revision date (in this case, January 1, 2009), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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OMB CONTROL NUMBERS

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

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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placed as close as possible to the applicable recordkeeping or reporting 
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OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
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INCORPORATION BY REFERENCE

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This material, like any other properly issued regulation, has the force 
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    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
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20408, or call 202-741-6010.

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This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.



[[Page vii]]


REPUBLICATION OF MATERIAL

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    January 1, 2009.







[[Page ix]]



                               THIS TITLE

    Title 8--Aliens and Nationality is composed of one volume. Chapter I 
contains regulations of the 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, 2009.

    For this volume, Susannah C. Hurley was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.


[[Page 1]]



                     TITLE 8--ALIENS AND NATIONALITY




  --------------------------------------------------------------------
                                                                    Part

chapter i--Department of Homeland Security..................           1

chapter v--Executive Office for Immigration Review, 
  Department of Justice.....................................        1001

[[Page 3]]



               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY




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

  Note: This table shows sections of title 8 of the United States Code 
and corresponding sections of the Immigration and Nationality Act and of 
parts in subchapters A, B, and C of chapter I of title 8 of the Code of 
Federal Regulations. Those sections of title 8 of the United States Code 
bearing an asterisk do not have a corresponding part in chapter I of 
title 8 of the Code of Federal Regulations.

 
                                  Sections I. &                      Sections I. &                      Sections I. &                      Sections I. &
         Sections 8 USC           N. Act and 8     Sections 8 USC    N. Act and 8     Sections 8 USC    N. Act and 8     Sections 8 USC    N. Act and 8
                                       CFR                                CFR                                CFR                                CFR
 
1101*..........................  101             1254.............  244             1355*............  285             1438.............  327
1102*..........................  102             1255.............  245             1356*............  286             1439.............  328
1103*..........................  103             1256.............  246             1357.............  287             1440.............  329
1104*..........................  104             1257.............  247             1358*............  288             1441.............  330
1105*..........................  105             1258.............  248             1359.............  289             1442*............  331
1105a*.........................  106             1259.............  249             1360*............  290             1443.............  332
1151*..........................  201             1260.............  250             1361*............  291             1444.............  333
1152*..........................  202             1281.............  251             1362.............  292             1445.............  334
1153*..........................  203             1282.............  252             1401*............  301             1446.............  335
1154...........................  204             1283.............  253             1402*............  302             1447.............  336
1155...........................  205             1284*............  254             1403*............  303             1448.............  337
1156*..........................  206             1285*............  255             1404*............  304             1449.............  338
1181...........................  211             1286*............  256             1405*............  305             1450.............  339
1182...........................  212             1287*............  257             1406.............  306             1451.............  340
1183...........................  213             1301*............  261             1407*............  307             1452.............  341
1184...........................  214             1302*............  262             1408*............  308             1453.............  342
1185...........................  215             1303*............  263             1409*............  309             1454.............  343
1201...........................  221             1304.............  264             1421*............  310             1455.............  344
1202*..........................  222             1305.............  265             1422*............  311             1457*............  346
1203...........................  223             1306*............  266             1423.............  312             1458*............  347
1204*..........................  224             1321*............  271             1424*............  313             1459*............  348
1221...........................  231             1322*............  272             1425*............  314             1481.............  349
1222...........................  232             1323*............  273             1426*............  315             1482*............  350
1223...........................  233             1324.............  274             1427.............  316             1483*............  351
1224...........................  234             1325*............  275             1428*............  317             1484*............  352
1225...........................  235             1326*............  276             1429.............  318             1485*............  353
1226...........................  236             1327*............  277             1430.............  319             1486*............  354
1227...........................  237             1328*............  278             1431*............  320             1487*............  355
1228...........................  238             1329*............  279             1432*............  321             1488*............  356
1229...........................  239             1330.............  280             1433.............  322             1489*............  357
1230*..........................  240             1351*............  281             1434.............  323             1501*............  358
1251...........................  241             1352.............  282             1435.............  324             1502*............  359
1252...........................  242             1353*............  283             1436*............  325             1503*............  360
1253...........................  243             1354*............  284             1437.............  326
 

                    SUBCHAPTER A--GENERAL PROVISIONS
Part                                                                Page
1               Definitions.................................           9
2               Authority of the Secretary of Homeland 
                    Security................................          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.........................          72
205             Revocation of approval of petitions.........         161
207             Admission of refugees.......................         163
208             Procedures for asylum and withholding of 
                    removal.................................         167
209             Adjustment of status of refugees and aliens 
                    granted asylum..........................         196
210             Special agricultural workers................         199
211             Documentary requirements: Immigrants; 
                    waivers.................................         210
212             Documentary requirements: Nonimmigrants; 
                    waivers; admission of certain 
                    inadmissible aliens; parole.............         214
213             Admission of aliens on giving bond or cash 
                    deposit.................................         256
213a            Affidavits of support on behalf of 
                    immigrants..............................         257
214             Nonimmigrant classes........................         271
215             Controls of aliens departing from the United 
                    States..................................         452
216             Conditional basis of lawful permanent 
                    residence status........................         458
217             Visa waiver program.........................         468
221             Admission of visitors or students...........         472
223             Reentry permits, refugee travel documents, 
                    and advance parole documents............         472
231             Arrival and departure manifests.............         474
232             Detention of aliens for physical and mental 
                    examination.............................         476
233             Contracts with transportation lines.........         477
234             Designation of ports of entry for aliens 
                    arriving by civil aircraft..............         478
235             Inspection of persons applying for admission         480
236             Apprehension and detention of inadmissible 
                    and deportable aliens; removal of aliens 
                    ordered removed.........................         499
237

[Reserved]

238             Expedited removal of aggravated felons......         510
239             Initiation of removal proceedings...........         513
240             Proceedings to determine removability of 
                    aliens in the United States.............         514
241             Apprehension and detention of aliens ordered 
                    removed.................................         527
242-243

[Reserved]

[[Page 5]]

244             Temporary protected status for nationals of 
                    designated states.......................         554
245             Adjustment of status to that of person 
                    admitted for permanent residence........         564
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.....................................         628
246             Rescission of adjustment of status..........         680
247             Adjustment of status of certain resident 
                    aliens..................................         682
248             Change of nonimmigrant classification.......         683
249             Creation of records of lawful admission for 
                    permanent residence.....................         687
250             Removal of aliens who have fallen into 
                    distress................................         688
251             Arrival and departure manifests and lists: 
                    Supporting documents....................         688
252             Landing of alien crewmen....................         691
253             Parole of alien crewmen.....................         695
258             Limitations on performance of longshore work 
                    by alien crewmen........................         697
264             Registration and fingerprinting of aliens in 
                    the United States.......................         700
265             Notices of address..........................         708
270             Penalties for document fraud................         709
271             Diligent and reasonable efforts to prevent 
                    the unauthorized entry of aliens by the 
                    owners of railroad lines, international 
                    bridges or toll roads...................         711
273             Carrier responsibilities at foreign ports of 
                    embarkation; reducing, refunding, or 
                    waiving fines under section 273 of the 
                    Act.....................................         712
274             Seizure and forfeiture of conveyances.......         713
274a            Control of employment of aliens.............         714
280             Imposition and collection of fines..........         741
286             Immigration user fee........................         747
287             Field officers; powers and duties...........         751
289             American Indians born in Canada.............         766
292             Representation and appearances..............         767
293             Deposit of and interest on cash received to 
                    secure immigration bonds................         775
299             Immigration forms...........................         776
                  SUBCHAPTER C--NATIONALITY REGULATIONS
301             Nationals and citizens of the United States 
                    at birth................................         785
306             Special classes of persons who may be 
                    naturalized: Virgin Islanders...........         785
310             Naturalization authority....................         786

[[Page 6]]

312             Educational requirements for naturalization.         788
313             Membership in the Communist Party or any 
                    other totalitarian organizations........         791
315             Persons ineligible to citizenship: Exemption 
                    from military service...................         793
316             General requirements for naturalization.....         795
318             Pending removal proceedings.................         804
319             Special classes of persons who may be 
                    naturalized: Spouses of United States 
                    citizens................................         804
320             Child born outside the United States and 
                    residing permanently in the United 
                    States; requirements for automatic 
                    acquisition of citizenship..............         808
322             Child born outside the United States; 
                    requirements for application for 
                    certificate of citizenship..............         810
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...............         813
325             Nationals but not citizens of the United 
                    States; residence within outlying 
                    possessions.............................         814
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............................         815
328             Special classes of persons who may be 
                    naturalized: Persons with three years 
                    service in Armed Forces of the United 
                    States..................................         816
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.............................         817
330             Special classes of persons who may be 
                    naturalized: Seamen.....................         819
331             Alien enemies; naturalization under 
                    specified conditions and procedures.....         820
332             Naturalization administration...............         821
333             Photographs.................................         823
334             Application for naturalization..............         823
335             Examination on application for 
                    naturalization..........................         826
336             Hearings on denials of applications for 
                    naturalization..........................         833
337             Oath of allegiance..........................         835
338             Certificate of naturalization...............         839
339             Functions and duties of clerks of court 
                    regarding naturalization proceedings....         841
340             Revocation of naturalization................         842
341             Certificates of citizenship.................         845

[[Page 7]]

342             Administrative cancellation of certificates, 
                    documents, or records...................         848
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...         850
343a            Naturalization and citizenship papers lost, 
                    mutilated, or destroyed; new certificate 
                    in changed name; certified copy of 
                    repatriation proceedings................         850
343b            Special certificate of naturalization for 
                    recognition by a foreign state..........         851
343c            Certifications from records.................         853
349             Loss of nationality.........................         853
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..................         853
499             Nationality forms...........................         856

[[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 an arriving alien even if paroled pursuant to 
section 212(d)(5) of the Act, and even after any such parole is 
terminated or revoked. However, an arriving alien who was paroled into 
the United States before April 1, 1997, or who was paroled into the 
United States on or after April 1, 1997, pursuant to a grant of advance 
parole which the alien applied for and obtained in the United States 
prior to the alien's departure from and return to the United States, 
will not be treated, solely by reason of that grant of parole, as an 
arriving alien under section 235(b)(1)(A)(i) of the Act.
    (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; 71 FR 27591, May 12, 2006]



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)
Ogdensburg, NY
Peace Bridge, NY
Rochester, NY

[[Page 21]]

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

                                 Class B

Wichita, KS

[[Page 22]]

                  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(h)...................................................    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, as amended at 73 FR 58030, Oct. 6, 2008]



PART 101_PRESUMPTION OF LAWFUL ADMISSION--Table of Contents




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

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



Sec. 101.1  Presumption of lawful admission.

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

[[Page 32]]

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

[[Page 33]]

under that Act to the proper quota at the time of his admission or 
subsequently and who remained so charged.
    (h) Citizens of the Trust Territory of the Pacific Islands who 
entered Guam prior to December 24, 1952. An alien who establishes that 
while a citizen of the Trust Territory of the Pacific Islands he entered 
Guam prior to December 24, 1952, by records, such as Service records 
subsequent to June 15, 1952, records of the Guamanian Immigration 
Service, records of the Navy or Air Force, or records of contractors of 
those agencies, and was residing in Guam on December 24, 1952.
    (i) Aliens admitted to Guam. An alien who establishes that he was 
admitted to Guam prior to December 24, 1952, by records such as Service 
records subsequent to June 15, 1952, records of the Guamanian 
Immigration Service, records of the Navy or Air Force, or records of 
contractors of those agencies; that he was not excludable under the Act 
of February 5, 1917, as amended; and that he continued to reside in Guam 
until December 24, 1952, and thereafter was not admitted or readmitted 
into Guam as a nonimmigrant, provided that the provisions of this 
paragraph shall not apply to an alien who was exempted from the contract 
laborer provisions of section 3 of the Immigration Act of February 5, 
1917, as amended, through the exercise, expressly or impliedly, of the 
4th or 9th provisos to section 3 of that act.
    (j) Erroneous admission as United States citizens or as children of 
citizens. (1)(i) An alien for whom there exists a record of admission 
prior to September 11, 1957, as a United States citizen who establishes 
that at the time of such admission he was the child of a United States 
citizen parent; he was erroneously issued a United States passport or 
included in the United States passport of his citizen parent 
accompanying him or to whom he was destined; no fraud or 
misrepresentation was practiced by him in the issuance of the passport 
or in gaining admission; he was otherwise admissible at the time of 
entry except for failure to meet visa or passport requirements; and he 
has maintained a residence in the United States since the date of 
admission, or (ii) an alien who meets all of the foregoing requirements 
except that if he were, in fact, a citizen of the United States a 
passport would not have been required, or it had been individually 
waived, and was erroneously admitted as a United States citizen by a 
Service officer. For the purposes of all of the foregoing, the terms 
child and parent shall be defined as in section 101(b) of the 
Immigration and Nationality Act, as amended.
    (2) An alien admitted to the United States before July 1, 1948, in 
possession of a section 4(a) 1924 Act nonquota immigration visa issued 
in accordance with State Department regulations, including a child of a 
United States citizen after he reached the age of 21, in the absence of 
fraud or misrepresentation; a member of a naturalized person's family 
who was admitted to the United States as a United States citizen or as a 
section 4(a) 1924 Act nonquota immigrant on the basis of that 
naturalization, unless he knowingly participated in the unlawful 
naturalization of the parent or spouse rendered void by cancellation, or 
knew at any time prior to his admission to the United States of the 
cancellation; and a member of a naturalized person's family who knew at 
any time prior to his admission to the United States of the cancellation 
of the naturalization of his parent or spouse but was admitted to the 
United States as a United States citizen pursuant to a State Department 
or Service determination based upon a then prevailing administrative 
view, provided the State Department or Service knew of the cancellation.

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



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

other errors.

    An alien who entered the United States as either an immigrant or 
nonimmigrant under any of the following circumstances shall be regarded 
as having been lawfully admitted in such status, except as otherwise 
provided in this part: An alien otherwise admissible whose entry was 
made and recorded under other than his full true

[[Page 34]]

and correct name or whose entry record contains errors in recording sex, 
names of relatives, or names of foreign places of birth or residence, 
provided that he establishes by clear, unequivocal, and convincing 
evidence that the record of the claimed admission relates to him, and, 
if entry occurred on or after May 22, 1918, if under other than his 
full, true and correct name that he also establishes that the name was 
not adopted for the purpose of concealing his identity when obtaining a 
passport or visa, or for the purpose of using the passport or visa of 
another person or otherwise evading any provision of the immigration 
laws, and that the name used at the time of entry was one by which he 
had been known for a sufficient length of time prior to making 
application for a passport or visa to have permitted the issuing 
authority or authorities to have made any necessary investigation 
concerning him or that his true identity was known to such officials.

[32 FR 9622, July 4, 1967]



Sec. 101.3  Creation of record of lawful permanent resident status for person 

born under diplomatic status in the United States.

    (a) Person born to foreign diplomat--(1) Status of person. A person 
born in the United States to a foreign diplomatic officer accredited to 
the United States, as a matter of international law, is not subject to 
the jurisdiction of the United States. That person is not a United 
States citizen under the Fourteenth Amendment to the Constitution. Such 
a person may be considered a lawful permanent resident at birth.
    (2) Definition of foreign diplomatic officer. Foreign diplomatic 
officer means a person listed in the State Department Diplomatic List, 
also known as the Blue List. It includes ambassadors, ministers, 
charg[eacute]s d'affaires, counselors, secretaries and attach[eacute]s 
of embassies and legations as well as members of the Delegation of the 
Commission of the European Communities. The term also includes 
individuals with comparable diplomatic status and immunities who are 
accredited to the United Nations or to the Organization of American 
States, and other individuals who are also accorded comparable 
diplomatic status.
    (b) Child born subject to the jurisdiction of the United States. A 
child born in the United States is born subject to the jurisdiction of 
the United States and is a United States citizen if the parent is not a 
``foreign diplomatic officer'' as defined in paragraph (a)(2) of this 
section. This includes, for example, a child born in the United States 
to one of the following foreign government officials or employees:
    (1) Employees of foreign diplomatic missions whose names appear in 
the State Department list entitled ``Employees of Diplomatic Missions 
Not Printed in the Diplomatic List,'' also known as the White List; 
employees of foreign diplomatic missions accredited to the United 
Nations or the Organization of American States; or foreign diplomats 
accredited to other foreign states. The majority of these individuals 
enjoy certain diplomatic immunities, but they are not ``foreign 
diplomatic officers'' as defined in paragraph (a)(2) of this section. 
The immunities, if any, of their family members are derived from the 
status of the employees or diplomats.
    (2) Foreign government employees with limited or no diplomatic 
immunity such as consular officials named on the State Department list 
entitled ``Foreign Consular Officers in the United States'' and their 
staffs.
    (c) Voluntary registration as lawful permanent resident of person 
born to foreign diplomat. Since a person born in the United States to a 
foreign diplomatic officer is not subject to the jurisdiction of the 
United States, his/her registration as a lawful permanent resident of 
the United States is voluntary. The provisions of section 262 of the Act 
do not apply to such a person unless and until that person ceases to 
have the rights, privileges, exemptions, or immunities which may be 
claimed by a foreign diplomatic officer.
    (d) Retention of lawful permanent residence. To be eligible for 
lawful permanent resident status under paragraph (a) of this section, an 
alien must establish that he/she has not abandoned his/her residence in 
the United States. One of the tests for retention of lawful permanent 
resident status is continuous

[[Page 35]]

residence, not continuous physical presence, in the United States. Such 
a person will not be considered to have abandoned his/her residence in 
the United States solely by having been admitted to the United States in 
a nonimmigrant classification under paragraph (15)(A) or (15)(G) of 
section 101(a) of the Act after a temporary stay in a foreign country or 
countries on one or several occasions.

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

[47 FR 940, Jan. 8, 1982]



Sec. 101.4  Registration procedure.

    The procedure for an application for creation of a record of lawful 
permanent residence and a Permanent Resident Card, Form I-551, for a 
person eligible for presumption of lawful admission for permanent 
residence under Sec. 101.1 or Sec. 101.2 or for lawful permanent 
residence as a person born in the United States to a foreign diplomatic 
officer under Sec. 101.3 is described in Sec. 264.2 of this chapter.

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

[47 FR 941, Jan. 8, 1982, as amended at 63 FR 70315, Dec. 21, 1998]



Sec. 101.5  Special immigrant status for certain G-4 nonimmigrants.

    (a) Application. An application for adjustment to special immigrant 
status under section 101(a)(27)(I) of the INA shall be made on Form I-
485. The application date of the I-485 shall be the date of acceptance 
by the Service as properly filed. If the application date is other than 
the fee receipt date it must be noted and initialed by a Service 
officer. The date of application for adjustment of status is the closing 
date for computing the residence and physical presence requirement. The 
applicant must have complied with all requirements as of the date of 
application.
    (b) Documentation. All documents must be submitted in accordance 
with Sec. 103.2(b) of this chapter. The application shall be 
accompanied by documentary evidence establishing the aggregate residence 
and physical presence required. Documentary evidence may include 
official employment verification, records of official or personnel 
transactions or recordings of events occurring during the period of 
claimed residence and physical presence. Affidavits of credible 
witnesses may also be accepted. Persons unable to furnish evidence in 
their own names may furnish evidence in the names of parents or other 
persons with whom they have been living, if affidavits of the parents or 
other persons are submitted attesting to the claimed residence and 
physical presence. The claimed family relationship to the principle G-4 
international organization officer or employee must be substantiated by 
the submission of verifiable civil documents.
    (c) Residence and physical presence requirements. All applicants 
applying under sections 101(a)(27)(I) (i), (ii), and (iii) of the INA 
must have resided and been physically present in the United States for a 
designated period of time.
    For purposes of this section only, an absence from the United States 
to conduct official business on behalf of the employing organization, or 
approved customary leave shall not be subtracted from the aggregated 
period of required residence or physical presence for the current or 
former G-4 officer or employee or the accompanying spouse and unmarried 
sons or daughters of such officer or employee, provided residence in the 
United States is maintained during such absences, and the duty station 
of the principle G-4 nonimmigrant continues to be in the United States. 
Absence from the United States by the G-4 spouse or unmarried son or 
daughter without the principle G-4 shall not be subtracted from the 
aggregate period of residence and physical presence if on customary 
leave as recognized by the international organization employer. Absence 
by the unmarried son or daughter while enrolled in a school outside the 
United States will not be counted toward the physical presence 
requirement.
    (d) Maintenance of nonimmigrant status. Section 101(a)(27)(I) (i), 
and (ii) requires the applicant to accrue the required period of 
residence and physical presence in the United States while

[[Page 36]]

maintaining status as a G-4 or N nonimmigrant. Section 
101(a)(27)(I)(iii) requires such time accrued only in G-4 nonimmigrant 
status.
    Maintaining G-4 status for this purpose is defined as maintaining 
qualified employment with a ``G'' international organization or 
maintaining the qualifying family relationship with the G-4 
international organization officer or employee. Maintaining status as an 
N nonimmigrant for this purpose requires the qualifying family 
relationship to remain in effect. Unauthorized employment will not 
remove an otherwise eligible alien from G-4 status for residence and 
physical presence requirements, provided the qualifying G-4 status is 
maintained.

[54 FR 5927, Feb. 7, 1989]



PART 103_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.
103.38 Genealogy Program.
103.39 Historical Records.
103.40 Genealogical research requests.
103.41 Genealogy request fees.

    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

[[Page 37]]

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. Any customs officer, as defined in 19 CFR 24.16, is 
hereby authorized to exercise the powers and duties of an immigration 
officer as specified by the Act and this chapter.

[68 FR 10923, Mar. 6, 2003, as amended at 68 FR 35275, June 13, 2003; 69 
FR 35234, June 24, 2004]



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 USCIS office 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 USCIS 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

[[Page 38]]

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 USCIS 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 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) Demonstrating eligibility at time 
of filing. An applicant or petitioner must establish that he or she is 
eligible for the requested benefit at the time of filing the application 
or petition. All required application or petition forms must be properly 
completed and filed with any initial evidence required by applicable 
regulations and/or the form's instructions. Any evidence submitted in 
connection with the application or petition is incorporated into and 
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 USCIS finds that such documents or 
statements are generally available, it may require that the applicant or 
petitioner submit the required document or statement.
    (iii) Evidence provided with a self-petition filed by a spouse or 
child of abusive citizen or resident. The USCIS will consider any 
credible evidence relevant to a self-petition filed by a qualified 
spouse or child of an abusive citizen or lawful permanent resident under 
section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 
204(a)(1)(B)(iii) of the Act. The self-petitioner may, but is not 
required to, demonstrate that preferred

[[Page 39]]

primary or secondary evidence is unavailable. The determination of what 
evidence is credible and the weight to be given that evidence shall be 
within the sole discretion of USCIS.
    (3) Translations. Any document containing foreign language submitted 
to USCIS shall be accompanied by a full English language translation 
which the translator has certified as complete and accurate, and by the 
translator's certification that he or she is competent to translate from 
the foreign language into English.
    (4) Submitting copies of documents. Application and petition forms, 
and documents issued to support an application or petition (such as 
labor certifications, Form DS 2019, medical examinations, affidavits, 
formal consultations, letters of current employment and other 
statements) must be submitted in the original unless previously filed 
with USCIS. Official documents issued by the Department or by the former 
Immigration and Naturalization Service need not be submitted in the 
original unless required by USCIS. Unless otherwise required by the 
applicable regulation or form's instructions, a legible photocopy of any 
other supporting document may be submitted. Applicants and petitioners 
need only submit those original documents necessary to support the 
benefit sought. However, original documents submitted when not required 
will remain a part of the record.
    (5) Request for an original document. USCIS may, at any time, 
request submission of an original document for review. The request will 
set a deadline for submission of the original document. Failure to 
submit the requested original document by the deadline may result in 
denial or revocation of the underlying application or benefit. An 
original document submitted in response to such a request, when no 
longer required by USCIS, will be returned to the petitioner or 
applicant upon completion of the adjudication. If USCIS does not return 
an original document within a reasonable time after completion of the 
adjudication, the petitioner or applicant may request return of the 
original document by submitting a properly completed and signed Form G-
884 to the adjudicating USCIS office.
    (6) Withdrawal. An applicant or petitioner may withdraw an 
application or petition at any time until a decision is issued by USCIS 
or, in the case of an approved petition, until the person is admitted or 
granted adjustment or change of status, based on the petition. However, 
a withdrawal may not be retracted.
    (7) Testimony. The USCIS may require the taking of testimony, and 
may direct any necessary investigation. When a statement is taken from 
and signed by a person, he or she shall, upon request, be given a copy 
without fee. Any allegations made subsequent to filing an 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; Notice of Intent to Deny--(i) Evidence of 
eligibility or ineligibility. If the evidence submitted with the 
application or petition establishes eligibility, USCIS will approve the 
application or petition, except that in any case in which the applicable 
statute or regulation makes the approval of a petition or application a 
matter entrusted to USCIS discretion, USCIS will approve the petition or 
application only if the evidence of record establishes both eligibility 
and that the petitioner or applicant warrants a favorable exercise of 
discretion. If the record evidence establishes ineligibility, the 
application or petition will be denied on that basis.
    (ii) Initial evidence. If all required initial evidence is not 
submitted with the application or petition or does not demonstrate 
eligibility, USCIS in its discretion may deny the application or 
petition for lack of initial evidence or for ineligibility or request 
that the missing initial evidence be submitted within a specified period 
of time as determined by USCIS.
    (iii) Other evidence. If all required initial evidence has been 
submitted but the evidence submitted does not establish eligibility, 
USCIS may: deny the application or petition for ineligibility; request 
more information or evidence from the applicant or petitioner, to be

[[Page 40]]

submitted within a specified period of time as determined by USCIS; or 
notify the applicant or petitioner of its intent to deny the application 
or petition and the basis for the proposed denial, and require that the 
applicant or petitioner submit a response within a specified period of 
time as determined by USCIS.
    (iv) Process. A request for evidence or notice of intent to deny 
will be in writing and will specify the type of evidence required, and 
whether initial evidence or additional evidence is required, or the 
bases for the proposed denial sufficient to give the applicant or 
petitioner adequate notice and sufficient information to respond. The 
request for evidence or notice of intent to deny will indicate the 
deadline for response, but in no case shall the maximum response period 
provided in a request for evidence exceed twelve weeks, nor shall the 
maximum response time provided in a notice of intent to deny exceed 
thirty days. Additional time to respond to a request for evidence or 
notice of intent to deny may not be granted.
    (9) Request for appearance. An applicant, a petitioner, a sponsor, a 
beneficiary, or other individual residing in the United States at the 
time of filing an 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 USCIS, or prior to the dates and times for fingerprinting 
or of the date and time of interview:
    (i) The individual to be fingerprinted or interviewed may, for good 
cause, request that the fingerprinting or interview be rescheduled; or
    (ii) The applicant or petitioner may withdraw the 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 USCIS processing 
will start over from the date of receipt of the required initial 
evidence or request for fingerprint or interview rescheduling. If USCIS 
requests that the applicant or petitioner submit additional evidence or 
respond to other than a request for initial evidence, any time 
limitation imposed on USCIS for processing will be suspended as of the 
date of request. It will resume at the same point where it stopped when 
USCIS receives the requested evidence or response, or a request for a 
decision based on the evidence.
    (ii) Effect on interim benefits. Interim benefits will not be 
granted based on an 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 USCIS may choose to pursue other actions to seek removal of 
a person notwithstanding the pending application. Employment 
authorization previously accorded based on the same status and 
employment as that requested in the current application or petition may 
continue uninterrupted as provided in 8 CFR 274a.12(b)(20) during the 
suspense period.
    (11) Responding to a request for evidence or notice of intent to 
deny. In response to a request for evidence or a notice of intent to 
deny, and within the period afforded for a response, the applicant or 
petitioner may: submit a complete response containing all requested 
information at any time within the period afforded; submit a partial 
response and ask for a decision based on the record; or withdraw the 
application or petition. All requested materials must be submitted 
together at one time, along with the original USCIS request for evidence 
or notice of intent to deny. Submission of only some of the requested 
evidence will be considered a request for a decision on the record.
    (12) Effect where evidence submitted in response to a request does 
not establish

[[Page 41]]

eligibility at the time of filing. An application or petition shall be 
denied where evidence submitted in response to a request for 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 a 
notice of intent to deny or to appear for interview or biometrics 
capture--(i) Failure to submit evidence or respond to a notice of intent 
to deny. If the petitioner or applicant fails to respond to a request 
for evidence or to a notice of intent to deny by the required date, the 
application or petition may be summarily denied as abandoned, denied 
based on the record, or denied for both reasons. If other requested 
material necessary to the processing and approval of a case, such as 
photographs, are not submitted by the required date, the application may 
be summarily denied as abandoned.
    (ii) Failure to appear for biometrics capture, interview or other 
required in-person process. Except as provided in 8 CFR 335.6, if USCIS 
requires an individual to appear for biometrics capture, an interview, 
or other required in-person process but the person does not appear, the 
application or petition shall be considered abandoned and denied unless 
by the appointment time USCIS has received a change of address or 
rescheduling request that the agency concludes warrants excusing the 
failure to appear.
    (14) Effect of request for decision. Where an applicant or 
petitioner does not submit all requested additional evidence and 
requests a decision based on the evidence already submitted, a decision 
shall be issued based on the record. Failure to submit requested 
evidence which precludes a material line of inquiry shall be grounds for 
denying the 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 USCIS 
acknowledgement of a withdrawal may not be appealed. A denial due to 
abandonment may not be appealed, but an applicant or petitioner may file 
a motion to reopen under Sec. 103.5. Withdrawal or denial due to 
abandonment does not preclude the filing of a new 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 USCIS Director or his or her 
designee has determined that such information is relevant and is 
classified under Executive Order No. 12356 (47

[[Page 42]]

FR 14874; April 6, 1982) as requiring protection from unauthorized 
disclosure in the interest of national security.
    (iv) Classified information. An applicant or petitioner shall not be 
provided any information contained in the record or outside the record 
which is classified under Executive Order No. 12356 (47 FR 14874; April 
6, 1982) as requiring protection from unauthorized disclosure in the 
interest of national security, unless the classifying authority has 
agreed in writing to such disclosure. Whenever he/she believes he/she 
can do so consistently with safeguarding both the information and its 
source, the USCIS Director or his or her designee should direct that the 
applicant or petitioner be given notice of the general nature of the 
information and an opportunity to offer opposing evidence. The USCIS 
Director's or his or her designee's authorization to use such classified 
information shall be made a part of the record. A decision based in 
whole or in part on such classified information shall state that the 
information is material to the decision.
    (17) Verifying claimed permanent resident status--(i) Department 
records. The status of an applicant or petitioner who claims that he or 
she is a permanent resident of the United States or was formerly a 
permanent resident of the United States will be verified from official 
Department records. These records include alien and other files, arrival 
manifests, arrival records, Department index cards, Immigrant 
Identification Cards, Certificates of Registry, Declarations of 
Intention issued after July 1, 1929, Permanent Resident Cards (Form I-
551), Alien Registration Receipt Cards (Form I-151), other registration 
receipt forms (Forms AR-3, AR-3a, and AR-103, provided that such forms 
were issued or endorsed to show admission for permanent residence), 
passports, and reentry permits. An official record of a Department index 
card must bear a designated immigrant visa symbol and must have been 
prepared by an authorized official of the Department in the course of 
processing immigrant admissions or adjustments to permanent resident 
status. Other cards, certificates, declarations, permits, and passports 
must have been issued or endorsed to show admission for permanent 
residence. Except as otherwise provided in 8 CFR part 101, and in the 
absence of countervailing evidence, such official records will be 
regarded as establishing lawful admission for permanent residence.
    (ii) Assisting self-petitioners who are spousal-abuse victims. If a 
self-petitioner filing a petition under section 204(a)(1)(A)(iii), 
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is 
unable to present primary or secondary evidence of the abuser's status, 
USCIS will attempt to electronically verify the abuser's citizenship or 
immigration status from information contained in the Department's 
automated or computerized records. Other Department records may also be 
reviewed at the discretion of the adjudicating officer. If USCIS is 
unable to identify a record as relating to the abuser, or the record 
does not establish the abuser's immigration or citizenship status, the 
self-petition will be adjudicated based on the information submitted by 
the self-petitioner.
    (18) Withholding adjudication. A district director may authorize 
withholding adjudication of a visa petition or other application if the 
district director determines that an investigation has been undertaken 
involving a matter relating to eligibility or the exercise of 
discretion, where applicable, in connection with the 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

[[Page 43]]

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)-(d)[Reserved]
    (e) Fingerprinting--(1) General. USCIS 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, USCIS will accept Form FD-258, Applicant Card, only if 
prepared by a USCIS office, a registered State or local law enforcement 
agency designated by a cooperative agreement with USCIS 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, USCIS 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 USCIS office or other location 
designated by USCIS, 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 USCIS, 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, USCIS 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
    (iii) The notice was sent to an address other than the address on 
the application or petition, or the notice of

[[Page 44]]

representation, or that the applicant or petitioner notified USCIS, in 
writing, of a change of address or change of representation subsequent 
to filing and before the notice was sent and USCIS notice was not sent 
to the new address.
    (4) Submission of service fee for fingerprinting--(i) General. The 
USCIS will charge a fee, as prescribed in Sec. 103.7(b)(1), for 
fingerprinting at a USCIS office or a registered State or local law 
enforcement agency designated by a cooperative agreement with the USCIS 
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 USCIS 
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 
USCIS 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 USCIS 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 USCIS 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 USCIS, in writing, of a 
change of address or change of representation subsequent to filing and 
before the notice of deficiency was sent and USCIS 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 USCIS 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.
    (f) Requests for Premium Processing Service--(1) Filing information. 
A petitioner or applicant requesting Premium Processing Service shall 
submit

[[Page 45]]

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 USCIS receives Form I-907, with the fee, 
at the designated address contained in the instructions to the form. 
USCIS 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, USCIS issues and serves on the 
petitioner or applicant an approval notice, a denial 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. USCIS will designate and terminate petitions and applications 
and classifications within such petitions and applications as eligible 
for Premium Processing Service by publication of notices in the Federal 
Register. USCIS will announce by its Web site at http://www.uscis.gov 
the dates upon which the availability of Premium Processing Service 
begins and ends for a designated petition or application and any 
designated classifications within a designated petition or application, 
and applicable conditions of availability.
    (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 USCIS 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 USCIS will continue to process the 
application/petition on the premium processing track.
    (4) Temporary termination of Premium Processing Service. The USCIS 
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, USCIS may temporarily 
terminate the availability of Premium Processing Service for certain 
petitions or applications. The USCIS 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.

    Editorial Note: At 72 FR 19106, Apr. 17, 2007, Sec. 103.2 (d)(2) 
was amended by revising the terms ``the Service'' or ``Service'' to read 
``USCIS''; however, the amendment could not be incorporated because 
paragraph (d)(2) was removed and reserved.



Sec. 103.3  Denials, appeals, and precedent decisions.

    (a) Denials and appeals--(1) General--(i) Denial of application or 
petition. When a Service officer denies an application or petition filed 
under Sec. 103.2 of this part, the officer shall explain in writing the 
specific reasons for denial. If Form I-292 (a denial form including 
notification of the right of appeal) is used to notify the applicant or 
petitioner, the duplicate of Form I-292 constitutes the denial order.
    (ii) Appealable decisions. Certain unfavorable decisions on 
applications, petitions, and other types of cases may be appealed. 
Decisions under the appellate jurisdiction of the Board of Immigration 
Appeals (Board) are listed in Sec. 3.1(b) of this chapter. Decisions 
under the appellate jurisdiction of the Associate Commissioner, 
Examinations, are listed in Sec. 103.1(f)(2) of this part.
    (iii) Appeal--(A) Jurisdiction. When an unfavorable decision may be 
appealed, the official making the decision shall state the appellate 
jurisdiction and

[[Page 46]]

shall furnish the appropriate appeal form.
    (B) Meaning of affected party. For purposes of this section and 
Sec. Sec. 103.4 and 103.5 of this part, affected party (in addition to 
the Service) means the person or entity with legal standing in a 
proceeding. It does not include the beneficiary of a visa petition. An 
affected party may be represented by an attorney or representative in 
accordance with part 292 of this chapter.
    (C) Record of proceeding. An appeal and any cross-appeal or briefs 
become part of the record of proceeding.
    (D) Appeal filed by Service officer in case within jurisdiction of 
Board. If an appeal is filed by a Service officer, a copy must be served 
on the affected party.
    (iv) Function of Administrative Appeals Unit (AAU). The AAU is the 
appellate body which considers cases under the appellate jurisdiction of 
the Associate Commissioner, Examinations.
    (v) Summary dismissal. An officer to whom an appeal is taken shall 
summarily dismiss any appeal when the party concerned fails to identify 
specifically any erroneous conclusion of law or statement of fact for 
the appeal. The filing by an attorney or representative accredited under 
8 CFR 292.2(d) of an appeal which is summarily dismissed under this 
section may constitute frivolous behavior as defined in 8 CFR 
292.3(a)(15). Summary dismissal of an appeal under Sec. 103.3(a)(1)(v) 
in no way limits the other grounds and procedures for disciplinary 
action against attorneys or representatives provided in 8 CFR 292.2 or 
in any other statute or regulation.
    (2) AAU appeals in other than special agricultural worker and 
legalization cases--(i) Filing appeal. The affected party 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.

[[Page 47]]

    (iii) When favorable action not warranted. If the reviewing official 
decides favorable action is not warranted with respect to an otherwise 
properly filed appeal, that official shall ask the attorney or 
representative to submit Form G-28 directly to the AAU. The official 
shall also forward the appeal and the relating record of proceeding to 
the AAU. The appeal may be considered properly filed as of its original 
filing date if the attorney or representative submits a properly 
executed Form G-28 entitling that person to file the appeal.
    (B) Untimely appeal--(1) Rejection without refund of filing fee. An 
appeal which is not filed within the time allowed must be rejected as 
improperly filed. In such a case, any filing fee the Service has 
accepted will not be refunded.
    (2) Untimely appeal treated as motion. If an untimely appeal meets 
the requirements of a motion to reopen as described in Sec. 103.5(a)(2) 
of this part or a motion to reconsider as described in Sec. 103.5(a)(3) 
of this part, the appeal must be treated as a motion, and a decision 
must be made on the merits of the case.
    (vi) Brief. The affected party may submit a brief with Form I-290B.
    (vii) Additional time to submit a brief. The affected party may make 
a written request to the AAU for additional time to submit a brief. The 
AAU may, for good cause shown, allow the affected party additional time 
to submit one.
    (viii) Where to submit supporting brief if additional time is 
granted. If the AAU grants additional time, the affected party shall 
submit the brief directly to the AAU.
    (ix) Withdrawal of appeal. The affected party may withdraw the 
appeal, in writing, before a decision is made.
    (x) Decision on appeal. The decision must be in writing. A copy of 
the decision must be served on the affected party and the attorney or 
representative of record, if any.
    (3) Denials and appeals of special agricultural worker and 
legalization applications and termination of lawful temporary resident 
status under sections 210 and 245A. (i) Whenever an application for 
legalization or special agricultural worker status is denied or the 
status of a lawful temporary resident is terminated, the alien shall be 
given written notice setting forth the specific reasons for the denial 
on Form I-692, Notice of Denial. Form I-692 shall also contain advice to 
the applicant that he or she may appeal the decision and that such 
appeal must be taken within 30 days after service of the notification of 
decision accompanied by any additional new evidence, and a supporting 
brief if desired. The Form I-692 shall additionally provide a notice to 
the 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

[[Page 48]]

provisions of part 210a of this title, the alien shall be given written 
notice setting forth the specific reasons for the denial on Form I-692, 
Notice of Denial. Form I-692 shall also contain advice to the alien that 
he or she may appeal the decision and that such appeal must be taken 
within thirty (30) days after service of the notification of decision 
accompanied by any additional new evidence, and a supporting brief if 
desired. The Form I-692 shall additionally provide a notice to the alien 
that if he or she fails to file an appeal from the decision, the Form I-
692 shall serve as a final notice of ineligibility.
    (ii) Form I-694, Notice of Appeal, in triplicate, shall be used to 
file the appeal, and must be accompanied by the appropriate fee. Form I-
694 shall be furnished with the notice of denial at the time of service 
on the alien.
    (iii) Upon receipt of an appeal, the administrative record will be 
forwarded to the Administrative Appeals Unit as provided by Sec. 
103.1(f)(2) of this part for review and decision. The decision on the 
appeal shall be in writing, and if the appeal is dismissed, shall 
include a final notice of ineligibility. A copy of the decision shall be 
served upon the petitioner and his or her attorney or representative of 
record. No further administrative appeal shall lie from this decision, 
nor may the petition be filed or reopened before an immigration judge or 
the Board of Immigration Appeals during exclusion or deportation 
proceedings.
    (iv) Any appeal which is filed that: Fails to state the reason for 
the appeal; is filed solely on the basis of a denial for failure to file 
the petition for adjustment of status under part 210a of this title in a 
timely manner; or is patently frivolous, will be summarily dismissed. An 
appeal received after the thirty (30) day period has tolled will not be 
accepted for processing.
    (b) Oral argument regarding appeal before AAU--(1) Request. If the 
affected party desires oral argument, the affected party must explain in 
writing specifically why oral argument is necessary. For such a request 
to be considered, it must be submitted within the time allowed for 
meeting other requirements.
    (2) Decision about oral argument. The Service has sole authority to 
grant or deny a request for oral argument. Upon approval of a request 
for oral argument, the AAU shall set the time, date, place, and 
conditions of oral argument.
    (c) Service precedent decisions. The Secretary of Homeland Security, 
or specific officials of the Department of Homeland Security designated 
by the Secretary with the concurrence of the 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

[[Page 49]]

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

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



Sec. 103.5  Reopening or reconsideration.

    (a) Motions to reopen or reconsider in other than special 
agricultural worker and legalization cases--(1) When filed by affected 
party--(i) General. Except where the Board has jurisdiction and as 
otherwise provided in 8 CFR parts 3, 210, 242 and 245a, when the 
affected party files a motion, the official having jurisdiction may, for 
proper cause shown, reopen the proceeding or reconsider the prior 
decision. Motions to reopen or reconsider are not applicable to 
proceedings described in Sec. 274a.9 of this chapter. Any motion to 
reconsider an action by the Service filed by an applicant or petitioner 
must be filed within 30 days of the decision that the motion seeks to 
reconsider. Any motion to reopen a proceeding before the Service filed 
by an applicant or petitioner, must be filed within 30 days of the 
decision that the motion seeks to reopen, except that failure to file 
before this period expires, may be excused in the discretion of the 
Service where it is demonstrated that the delay was reasonable and was 
beyond the control of the applicant or petitioner.
    (ii) Jurisdiction. The official having jurisdiction is the official 
who made the latest decision in the proceeding unless the affected party 
moves to a new jurisdiction. In that instance, the new official having 
jurisdiction is the official over such a proceeding in the new 
geographical locations.
    (iii) Filing Requirements--A motion shall be submitted on Form I-
290B and may be accompanied by a brief. It must be:
    (A) In writing and signed by the affected party or the attorney or 
representative of record, if any;
    (B) Accompanied by a nonrefundable fee as set forth in Sec. 103.7;
    (C) Accompanied by a statement about whether or not the validity of 
the unfavorable decision has been or is the subject of any judicial 
proceeding and, if so, the court, nature, date, and status or result of 
the proceeding;
    (D) Addressed to the official having jurisdiction; and
    (E) Submitted to the office maintaining the record upon which the 
unfavorable decision was made for forwarding to the official having 
jurisdiction.

[[Page 50]]

    (iv) Effect of motion or subsequent application or petition. Unless 
the Service directs otherwise, the filing of a motion to reopen or 
reconsider or of a subsequent application or petition does not stay the 
execution of any decision in a case or extend a previously set departure 
date.
    (2) Requirements for motion to reopen. A motion to reopen must state 
the new facts to be provided in the reopened proceeding and be supported 
by affidavits or other documentary evidence. A motion to reopen an 
application or petition denied due to abandonment must be filed with 
evidence that the decision was in error because:
    (i) The requested evidence was not material to the issue of 
eligibility;
    (ii) The required initial evidence was submitted with the 
application or petition, or the request for initial evidence or 
additional information or appearance was complied with during the 
allotted period; or
    (iii) The request for additional information or appearance was sent 
to an address other than that on the application, petition, or notice of 
representation, or that the applicant or petitioner advised the Service, 
in writing, of a change of address or change of representation 
subsequent to filing and before the Service's request was sent, and the 
request did not go to the new address.
    (3) Requirements for motion to reconsider. A motion to reconsider 
must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based 
on an incorrect application of law or Service policy. A motion to 
reconsider a decision on an application or petition must, when filed, 
also establish that the decision was incorrect based on the evidence of 
record at the time of the initial decision.
    (4) Processing motions in proceedings before the Service. A motion 
that does not meet applicable requirements shall be dismissed. Where a 
motion to reopen is granted, the proceeding shall be reopened. The 
notice and any favorable decision may be combined.
    (5) Motion by Service officer--(i) Service motion with decision 
favorable to affected party. When a Service officer, on his or her own 
motion, reopens a Service proceeding or reconsiders a Service decision 
in order to make a new decision favorable to the affected party, the 
Service officer shall combine the motion and the favorable decision in 
one action.
    (ii) Service motion with decision that may be unfavorable to 
affected party. When a Service officer, on his or her own motion, 
reopens a Service proceeding or reconsiders a Service decision, and the 
new decision may be unfavorable to the affected party, the officer shall 
give the affected party 30 days after service of the motion to submit a 
brief. The officer may extend the time period for good cause shown. If 
the affected party does not wish to submit a brief, the affected party 
may waive the 30-day period.
    (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

[[Page 51]]

may sua sponte reopen any proceeding conducted by that Unit under part 
210 or 245a of this chapter and reconsider any decision rendered in such 
proceeding. Motions to reopen a proceeding or reconsider a decision 
under part 210 or 245a of this chapter shall not be considered.
    (c) Motions to reopen or reconsider decisions on replenishment 
agricultural worker petitions. (1) The director of a regional processing 
facility may sua sponte reopen any proceeding under part 210a of this 
title which is within his or her jurisdiction and may render a new 
decision. This decision may reverse a prior favorable decision when it 
is determined that there was fraud during the registration or petition 
processes and the petitioner was not entitled to the status granted. The 
petitioner must be given an opportunity to offer evidence in support of 
the petition and in opposition to the grounds for reopening the petition 
before a new decision is rendered.
    (2) The Associate Commissioner, Examinations or the Chief of the 
Administrative Appeals Unit may sua sponte reopen any proceeding 
conducted by that unit under part 210a of this title and reconsider any 
decision rendered in such proceeding.
    (3) Motions to reopen a proceeding or reconsider a decision under 
part 210a of this title shall not be considered.

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



Sec. 103.5a  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

[[Page 52]]

and upon the person in charge of the institution or the hospital. If the 
confined person is not competent to understand, service shall be made 
only on the person in charge of the institution or hospital in which he 
is confined, such service being deemed service on the confined person.
    (ii) Incompetents and minors. In case of mental incompetency, 
whether or not confined in an institution, and in the case of a minor 
under 14 years of age, service shall be made upon the person with whom 
the incompetent or the minor resides; whenever possible, service shall 
also be made on the near relative, guardian, committee, or friend.
    (d) When personal service not required. Service of other types of 
papers in proceedings described in paragraph (c) of this section, and 
service of any type of papers in any other proceedings, may be 
accomplished either by routine service or by personal service.

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



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,

[[Page 53]]

departure, or naturalization. The district director may cancel a public 
charge bond at any time if he/she finds that the immigrant is not likely 
to become a public charge. A bond may also be cancelled in order to 
allow substitution of another bond. A public charge bond shall be 
cancelled by the district director upon review following the fifth 
anniversity of the admission of the immigrant, provided that the alien 
has filed Form I-356, Request for Cancellation of Public Charge Bond, 
and the district director finds that the immigrant did not become a 
public charge prior to the fifth anniversary. If Form I-356 is not 
filed, the bond shall remain in effect until the form is filed and the 
district director reviews the evidence supporting the form and renders a 
decision to breach or cancel the bond.
    (2) Maintenance of status and departure bonds. When the status of a 
nonimmigrant who has violated the conditions of his admission has been 
adjusted as a result of administrative or legislative action to that of 
a permanent resident retroactively to a date prior to the violation, any 
outstanding maintenance of status and departure bond shall be canceled. 
If an application for adjustment of status is made by a nonimmigrant 
while he is in lawful temporary status, the bond shall be canceled if 
his status is adjusted to that of a lawful permanent resident or if he 
voluntarily departs within any period granted to him. As used in this 
paragraph, the term lawful temporary status means that there must not 
have been a violation of any of the conditions of the alien's 
nonimmigrant classification by acceptance of unauthorized employment or 
otherwise during the time he has been accorded such classification, and 
that from the date of admission to the date of departure or adjustment 
of status he must have had uninterrupted Service approval of his 
presence in the United States in the form of regular extensions of stay 
or dates set by which departure is to occur, or a combination of both. 
An alien admitted as a nonimmigrant shall not be regarded as having 
violated his nonimmigrant status by engaging in employment subsequent to 
his proper filing of an application for adjustment of status under 
section 245 of the Act and part 245 of this chapter. A maintenance of 
status and departure bond posted at the request of an American consular 
officer abroad in behalf of an alien who did not travel to the United 
States shall be canceled upon receipt of notice from an American 
consular officer that the alien is outside the United States and the 
nonimmigrant visa issued pursuant to the posting of the bond has been 
canceled or has expired.
    (3) Substantial performance. Substantial performance of all 
conditions imposed by the terms of a bond shall release the obligor from 
liability.
    (d) Bond schedules--(1) Blanketbonds for departure of visitors and 
transits. The amount of bond required for various numbers of 
nonimmigrant visitors or transits admitted under bond on Forms I-352 
shall be in accordance with the following schedule:

                                 Aliens

1 to 4--$500 each.
5 to 9--$2,500 total bond.
10 to 24--$3,500 total bond.
25 to 49--$5,000 total bond.
50 to 74--$6,000 total bond.
75 to 99--$7,000 total bond.
100 to 124--$8,000 total bond.
125 to 149--$9,000 total bond.
150 to 199--$10,000 total bond.
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.

[[Page 54]]

    (e) Breach of bond. A bond is breached when there has been a 
substantial violation of the stipulated conditions. A final 
determination that a bond has been breached creates a claim in favor of 
the United States which may not be released or discharged by a Service 
officer. The district director having custody of the file containing the 
immigration bond executed on Form I-352 shall determine whether the bond 
shall be declared breached or cancelled, and shall notify the obligor on 
Form I-323 or Form I-391 of the decision, and, if declared breached, of 
the reasons therefor, and of the right to appeal in accordance with the 
provisions of this part.

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



Sec. 103.7  Fees.

    (a) Remittances. (1) Fees shall be submitted with any formal 
application or petition prescribed in this chapter in the amount 
prescribed by law or regulation. Except for fees remitted directly to 
the Board of Immigration Appeals pursuant to the provisions of 8 CFR 
1003.8, or as the Attorney General otherwise may provide by regulation, 
any fee relating to any Department of Justice Executive Office for 
Immigration Review proceeding shall be paid to, and accepted by, any 
BCIS office authorized to accept fees. The immigration court does not 
collect fees. Payment of any fee under this section does not constitute 
filing of the document with the Board of Immigration Appeals or with the 
Immigration Court. The Department of Homeland Security shall return to 
the payer, at the time of payment, a receipt for any fee paid. The BCIS 
shall also return to the payer any documents, submitted with the fee, 
relating to any Immigration Court proceeding.
    (2) Remittances must be drawn on a bank or other institution located 
in the United States and be payable in United States currency. Fees in 
the form of postage stamps shall not be accepted. Remittances to the 
Department of Homeland Security shall be made payable to the 
``Department of Homeland Security'' except that in case of applicants 
residing in the Virgin Islands of the United States, the remittances 
shall be made payable to the ``Commissioner of Finance of the Virgin 
Islands'' and, in the case of applicants residing in Guam, the 
remittances shall be made payable to the ``Treasurer, Guam.'' If an 
application to the Department of Homeland Security is submitted from 
outside the United States, remittance may be made by bank international 
money order or foreign draft drawn on a financial institution in the 
United States and payable to the Department of Homeland Security. 
Remittances to the Board of Immigration Appeals shall be made payable to 
the ``United States Department of Justice,'' in accordance with 8 CFR 
1003.8. A charge of $30.00 will be imposed if a check in payment of a 
fee or any other matter is not honored by the bank or financial 
institution on which it is drawn. A receipt issued by a Department of 
Homeland Security officer for any remittance shall not be binding upon 
the Department of Homeland Security if the remittance is found 
uncollectible. Furthermore, legal and statutory deadlines will not be 
deemed to have been met if payment is not made within 10 business days 
after notification by the Department of Homeland Security of the 
dishonored check.
    (b) Amounts of fees. (1) The following fees and charges are 
prescribed:

For certification of true copies, each--$2.00
For attestation under seal--$2.00
For capturing biometric information (Biometric Fee). A service fee of 
$80 will be charged for any individual who is required to have biometric 
information captured in connection with an application or petition for 
certain immigration and naturalization benefits (other than asylum), and 
whose residence is in the United States; provided that: Extension for 
intercountry adoptions: If applicable, no biometric service fee is 
charged when a written request for an extension of the approval period 
is received by USCIS prior to the expiration date of approval indicated 
on the Form I-171H if a Form I-600 has not yet been submitted in 
connection with an approved Form I-600A. This extension without fee is 
limited to

[[Page 55]]

one occasion. If the approval extension expires prior to submission of 
an associated Form I-600, then a complete application and fee must be 
submitted for a subsequent application.
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 G-1041. For filing a request for a search of indices to historical 
records to be used in genealogical research--$20. The search fee is not 
refundable.
Form G-1041A. For filing a request for a copy of historical records to 
be used in genealogical research--$20 for each file copy from microfilm 
or $35 for each file copy from a textual record. In some cases, the 
researcher may be unable to determine the fee, because the researcher 
will have a file number obtained from a source other than the USCIS 
Genealogy Program and therefore not know the format of the file 
(microfilm or hard copy). In this case, if USCIS locates the file and it 
is a textual file, the Genealogy Program will notify the researcher to 
remit the additional $15. The Genealogy Program will refund the records 
request fee only when it is unable to locate the file previously 
identified in response to the index search request.
Form I-17. For filing a petition for school certification--$1,700, plus 
a site visit fee of $655 for each location listed on the form.
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--$290.
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 Permit (Form 
I-95), in lieu of one lost, mutilated, or destroyed--$320.
Form I-129. For filing a petition for a nonimmigrant worker--$320.
Form I-129F. For filing a petition to classify a nonimmigrant as a 
fianc[eacute]e or fianc[eacute] under section 214(d) of the Act--$455; 
no fee for a K-3 spouse as designated in 8 CFR 214.1(a)(2) who is the 
beneficiary of an immigrant petition filed by a United States citizen on 
Form I-130.
Form I-130. For filing a petition to classify status of an alien 
relative for issuance of an immigrant visa under section 204(a) of the 
Act--$355.
Form I-131. For filing an application for travel document--$305.
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--$475.
Form I-191. For filing an application for discretionary relief under 
section 212(c) of the Act--$545.
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--$545.
Form I-193. For filing an application for waiver of passport and/or 
visa--$545.
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--$545.
Form I-246. For filing application for stay of deportation under part 
243 of this chapter--$155.00
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--$585 (the fee 
will be the same when an appeal is taken from the denial of a petition 
with one or multiple beneficiaries, provided that they are all covered 
by the same petition, and therefore, the same decision). Motions. For 
filing a motion to reopen or reconsider any DHS decision in any type of 
proceeding over which the Executive Office for Immigration Review does 
not have jurisdiction. This fee shall be charged whenever a motion is 
filed to reopen or reconsider a single decision, whether it applies to 
one or multiple beneficiaries--$585.
Form I-360. For filing a petition for an Amerasian, Widow(er), or 
Special Immigrant--$375, except there is no fee for a petition seeking 
classification as: An Amerasian; a self-petitioning battered or abused 
spouse, parent, or child of a United

[[Page 56]]

States citizen or lawful permanent resident; or a Special Immigrant--
Juvenile.
Form I-485. For filing an application for permanent resident status or 
creation of a record of lawful permanent residence--$930 for an 
applicant fourteen years of age or older; $600 for an applicant under 
the age of fourteen years when submitted concurrently for adjudication 
with the Form I-485 of a parent and the applicant is seeking to adjust 
status as a derivative of the parent, based on a relationship to the 
same individual who provides the basis for the parent's adjustment of 
status, or under the same legal authority as the parent; no fee for an 
applicant filing as a refugee under section 209(a) of the Act; provided 
that no additional fee will be charged for a request for travel document 
(advance parole) or employment authorization filed by an applicant who 
has paid the Form I-485 application fee, regardless of whether the Form 
I-131 or Form I-765 is required to be filed by such applicant to receive 
these benefits.
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-526. For filing a petition for an alien entrepreneur--$1,435.
Form I-539. For filing an application to extend or change nonimmigrant 
status--$300.
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 an immigrant visa under section 204(a) of the 
Act. (When more than one petition is submitted by the same petitioner on 
behalf of orphans who are brothers or sisters, only one fee will be 
required.)--$670.
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.)--$670. No fee is charged if Form I-600 has not 
yet been submitted in connection with an approved Form I-600A if a 
written request from the applicant for an extension of the approval has 
been received by USCIS prior to the expiration date of approval 
indicated on the Form I-171H. This extension will require an update of 
the applicant's home study and a determination from USCIS that proper 
care will be provided to an adopted orphan. A no fee extension is 
limited to one occasion. If the Form I-600A approval extension expires 
prior to submission of an associated Form I-600, then a complete 
application and fee must be submitted for any subsequent application.
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 sections 212(h) and (i).)--$545.
Form I-612. For filing an application for waiver of the foreign-
residence requirement under section 212(e) of the Act--$545.
Form I-687. For filing an application for status as a temporary resident 
under section 245A(a) of the Act. A fee of $710 for each application is 
required at the time of filing with the Department of Homeland Security.
Form I-690. For filing an application for waiver of a ground of 
inadmissibility 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 section 210A of the Act--$185.
Form I-694. For appealing the denial of an applications under sections 
210 or 245A of the Act, or a petition under section 210A of the Act--
$545.
Form I-695. For filing an application for replacement of temporary 
resident card (Form I-688)--$130.
Form I-698. For filing an application for adjustment from temporary 
resident status to that of lawful permanent resident under section 
245A(b)(1) of the Act. For applicants filing within thirty-one months 
from the date of adjustment to temporary resident status, a fee of 
$1,370 for each application is required at the time of filing with the 
Department of Homeland Security. 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 $1,410 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).

[[Page 57]]

Form I-751. For filing a petition to remove the conditions on residence, 
based on marriage--$465.
Form I-765. For filing an application for employment authorization 
pursuant to 8 CFR 274a.13--$340.
Form I-800. For filing a petition to classify a Convention adoptee as an 
immediate relative.

--No fee for the first Form I-800 filed for a child on the basis of an 
approved Form I-800A, filed during the approval period.
--If more than one Form I-800 is filed during the approval period for 
different children, the fee is $670 for the second and each subsequent 
Form I-800 submitted.
--If the children are already siblings before the proposed adoption, 
however, only one filing fee of $670 is required, regardless of the 
sequence of submission of the Form I-800.

Form I-800A. For filing an application for determination of suitability 
to adopt a child from a Convention country--$670.
    For filing a Form I-800A, Supplement 3, Request for Action on 
Approved Form I-800A--$340, except that this filing fee is not charged 
if no Form I-800 has been filed based on the approval of the Form I-
800A, and Form I-800A Supplement 3 is filed in order to obtain a first 
extension of the approval of the Form I-800A. * * *
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--$440.
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.
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--$340.
Form I-829. For filing a petition by entrepreneur to remove conditions--
$2,850.
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):

--$275 for adjudication by the Department of Homeland Security, except 
that the maximum amount payable by family members (related as husband, 
wife, unmarried child under 21, unmarried son, or unmarried daughter) 
who submit applications at the same time shall be $550.
--$155 for adjudication by the Immigration Court (a single fee of $155 
will be charged whenever applications are filed by two or more aliens in 
the same proceedings). The $155 fee is not required if the Form I-881 is 
referred to the Immigration Court by the Department of Homeland 
Security.

Form I-901. For remittance of the I-901 SEVIS fee for F and M students--
$200. For remittance of the I-901 SEVIS fee for certain J exchange 
visitors--$180. For remittance of the I-901 SEVIS fee for J-1 au pairs, 
camp counselors, and participants in a summer work/travel program--$35. 
There is no I-901 SEVIS fee remittance obligation for J exchange 
visitors in federally-funded programs with a program identifier 
designation prefix that begins with G-1, G-2, G-3 or G-7.
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 N-300. For filing an application for declaration of intention--
$235.
Form N-336. For filing a request for hearing on a decision in 
naturalization proceedings under section 336 of the Act--$605.
Form N-400. For filing an application for naturalization (other than 
such application filed on or after October 1, 2004, by an

[[Page 58]]

applicant who meets the requirements of sections 328 or 329 of the Act 
with respect to military service, for which no fee is charged)--$595.
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 benefits under section 316(b) 
or 317 of the Act--$305.
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--$380.
Form N-600. For filing an application for a certificate of citizenship 
under section 309(c) or section 341 of the Act--$460, for applications 
filed on behalf of a biological child and $420 for applications filed on 
behalf of an adopted child.
Form N-600K. For filing an application for citizenship and issuance of 
certificate under section 322 of the Act--$460, for an application filed 
on behalf of a biological child and $420 for an application filed on 
behalf of an adopted child.
Form N-644. For filing an application for posthumous citizenship--$80.
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 Square, 
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 
Homeland Security at 6 CFR 5.11.
    (3) The fees prescribed in paragraph (b)(1) of this section shall be 
adjusted annually on or after October 1, 2005, by publication of an 
inflation adjustment. The inflation adjustment will be announced by 
notice in the Federal Register, and the adjustment shall be a composite 
of the Federal civilian pay raise assumption and non-pay inflation 
factor for that fiscal year issued by the Office of Management and 
Budget for agency use in implementing OMB Circular A-76, weighted by pay 
and non-pay proportions of total funding for that fiscal year. If 
Congress enacts a different Federal civilian pay raise percentage than 
the percentage issued by OMB for Circular A-76, the Department of 
Homeland Security may adjust the fees, during the current year or a 
following year to reflect the enacted level. The prescribed fee or 
charge shall be the amount prescribed in paragraph (b)(1) of this 
section, plus the latest inflation adjustment, rounded to the nearest $5 
increment.
    (4) For the schedule of fees relating to proceedings before the 
immigration judges and the Board of Immigration Appeals, see 8 CFR 
1103.7.
    (c) Waiver of fees. (1) Except as otherwise provided in this 
paragraph (c), any of the fees prescribed in paragraph (b) of this 
section relating to applications, petitions, appeals, motions, or 
requests may be waived by the Department of Homeland Security in any 
case under its 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 Department 
of Homeland Security having jurisdiction to render a decision on the 
application, petition, appeal, motion, or request may, in his or her 
discretion, grant the waiver of fee. Fees for ``Passenger Travel Reports 
via Sea and

[[Page 59]]

Air'' and for special statistical tabulations may not be waived. The 
fees for Form I-907, Request for Premium Processing Services, and for 
Forms G-1041 and G-1041A, Genealogy Program request forms, may not be 
waived. The fee for Form I-907, Request for Premium Processing Services, 
may not be waived. For provisions relating to the authority of the 
immigration judges or the Board to waive fees prescribed in paragraph 
(b) of this section in cases under their jurisdiction, see 8 CFR 1003.24 
and 1003.8.
    (2) Fees under the Freedom of Information Act, as amended, may be 
waived or reduced where the Department of Homeland Security 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 BCIS 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 BCIS representative on or before the date the 
fee is required to be paid, a notice prepared on BCIS 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 244.20.
    (5) No fee relating to any application, petition, appeal, motion, or 
request made to United States Citizenship and Immigration Services may 
be waived under paragraph (c)(1) of this section except for the 
following: Biometrics; Form I-90; Form I-485 (only in the case of an 
alien in lawful nonimmigrant status under sections 101(a)(15)(T) or (U) 
of the Act; an applicant under section 209(b) of the Act; an approved 
self-petitioning battered or abused spouse, parent, or child of a United 
States citizen or lawful permanent resident; or an alien to whom section 
212(a)(4) of the Act does not apply with respect to adjustment of 
status); Form I-751; Form I-765; Form I-817; Form N-300; Form N-336; 
Form N-400; Form N-470; Form N-565; Form N-600; Form N-600K; and Form I-
290B and motions filed with United States Citizenship and Immigration 
Services relating to the specified forms in this paragraph (c).
    (d) Authority to certify records. Whenever authorized under 5 U.S.C. 
552 or any other law to furnish information from records to persons 
entitled thereto, the following officials, or their designees authorized 
in writing as specified below, have authority to make certification, as 
follows:
    (1) The Associate Commissioner, Information Systems, the Assistant 
Commissioner, Records Systems Division, the Director, Records Management 
Branch, or their designee, authorized in writing to make certification 
in their absence--copies of files, documents, and records in the custody 
of the Central Office.
    (2) A regional commissioner, or district director, or the designee 
of either, authorized in writing to make certification in his absence--
copies of files, documents, and records in the custody of his office.
    (3) The Immigration and Naturalization Service Program Coordinator, 
El Paso Intelligence Center, or the designee, authorized in writing to 
make certification in event of the Program Coordinator's absence--copies 
of files, documents, and records of the Immigration and Naturalization 
Service in the custody of that office.
    (4) The Assistant Commissioner, Records Systems Division, the 
Director, Records Management Branch, or the Chief, Records Operations 
Section, Central Office, or their designee, authorized in writing to 
make certification in their absence--the non-existence of an official 
Service records.

[38 FR 35296, Dec. 27, 1973]

    Editorial Note: For Federal Register citations affecting Sec. 
103.7, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.

    Editorial Note: At 73 FR 55698, Sept. 26, 2008, Sec. 103.7 was 
amended by revising Form I-290B, effective Oct. 27, 2008. However the

[[Page 60]]

amendment could not be incorporated because the text of the newly 
revised form was not printed.

    Effective Date Note: At 73 FR 75557, Dec. 12, 2008, Sec. 103.7 was 
amended by revising the entry for Form I-601 and adding the entry for 
``Form I-929'' in proper alpha-numeric sequence in paragraph (b)(1), and 
revising paragraph (c)(5), effective Jan. 12, 2009. For the convenience 
of the user, the added and revised text is set forth as follows:



Sec. 103.7  Fees.

                                * * * * *

    (b) * * *
    (1) * * *
    Form I-601. For filing an application for waiver of ground of 
inadmissibility--$545.

                                * * * * *

    Form I-929. For U-1 principal applicant to submit for each 
qualifying family member who plans to seek an immigrant visa or 
adjustment of U status--$215.

                                * * * * *

    (c) * * *
    (5) No fee relating to any application, petition, appeal, motion, or 
request made to U.S. Citizenship and Immigration Services may be waived 
under paragraph (c)(1) of this section except for the following:
    (i) Biometrics; Form I-90; Form I-751; Form I-765; Form I-817; I-
929; Form N-300; Form N-336; Form N-400; Form N-470; Form N-565; Form N-
600; Form N-600K; and Form I-290B and motions filed with U.S. 
Citizenship and Immigration Services relating to the specified forms in 
this paragraph (c); and
    (ii) Only in the case of an alien in lawful nonimmigrant status 
under sections 101(a)(15)(T) or (U) of the Act; an applicant under 
section 209(b) of the Act; an approved VAWA self-petitioner; or an alien 
to whom section 212(a)(4) of the Act does not apply with respect to 
adjustment of status: Form I-485 and Form I-601; and
    (iii) Form I-192 and Form I-193 (only in the case of an alien 
applying for lawful nonimmigrant status under sections 101(a)(15)(T) or 
(U)).

                                * * * * *



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 records of proceedings, documents, 
reports, and other papers maintained by the Service.
    (d) The term record of proceeding is the official history of any 
hearing, examination, or proceeding before the Service, and in addition 
to the application, petition or other initiating document, includes the 
transcript of hearing or interview, exhibits, and any other evidence 
relied upon in the adjudication; papers filed in connection with the 
proceedings, including motions and briefs; the Service officer's 
determination; notice of appeal or certification; the Board or other 
appellate determination; motions to reconsider or reopen; and documents 
submitted in support of appeals, certifications, or motions.

[32 FR 9623, July 4, 1967, as amended at 40 FR 7236, Feb. 19, 1975; 52 
FR 2942, Jan. 29, 1987; 58 FR 31148, June 1, 1993]



Sec. 103.9  Availability of decisions and interpretive material under the 

Freedom of Information Act.

    (a) Precedent decisions. There may be purchased from the 
Superintendent of Documents, U.S. Government Printing Office, 
Washington, DC 20402, bound

[[Page 61]]

volumes of designated precedent decisions entitled ``Administrative 
Decisions Under Immigration and Nationality Laws of the United States,'' 
each containing a cumulative index. Prior to publication in volume from 
current precedent decisions, known as interim decisions, are obtainable 
from the Superintendent of Documents on a single copy or yearly 
subscription basis. Bound volumes and current precedent decisions may be 
read at principal Service offices.
    (b) Unpublished decisions. Each district director in the United 
States will maintain copies of unpublished Service and Board decisions 
relating to proceedings in which the initial decision was made in his 
district. Each regional commissioner will maintain copies of unpublished 
decisions made by him. The Central Office will maintain copies on a 
national basis of unpublished Service decisions.
    (c) Deletion of identifying details. To the extent that information 
in decisions is exempt from disclosure under the Freedom of Information 
Act (5 U.S.C. 552), the deciding officer shall provide for deletion of 
identifying details, as appropriate, from copies of decisions made 
available to the public.
    (d) Statements of policy, interpretations, manuals, instructions to 
staff. Statements of policy, interpretations, and those manuals and 
instructions to staff (or portions thereof), affecting the public, will 
be made available at district offices in the United States and at the 
Central Office with an accompanying index of any material which is 
issued on or after July 4, 1967.
    (e) Public reading rooms. The Central Office and each district 
office in the United States will provide a reading room or reading area 
where the material described in this section will be made available to 
the public. Additional material will be made available in the public 
reading rooms, including the immigration and nationality laws, title 8 
of the United States Code Annotated, title 8 of the Code of Federal 
Regulations--Chapter I, a complete set of the forms listed in parts 299 
and 499 of this chapter, and the Department of State Foreign Affairs 
Manual, Volume 9--Visas. Fees will not be charged for providing access 
to any of these materials, but fees in accordance with Sec. 103.7(b) 
will be charged for furnishing copies.

[32 FR 9623, July 4, 1967, as amended at 36 FR 20151, Oct. 16, 1971; 40 
FR 7237, Feb. 19, 1975; 48 FR 49652, Oct. 27, 1983]



Sec. 103.10  Requests for records under the Freedom of Information Act.

    (a) Place and manner of requesting records--(1) Place. Records 
should be requested from the office that maintains the records sought, 
if known, or from the Headquarters of the Immigration and Naturalization 
Service, 425 I Street, NW., Washington, DC 20536. 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

[[Page 62]]

to ensure expeditous handling; however, a request may be submitted in 
any written form. Each request made under this section pertaining to the 
availability of a record must describe the record with sufficient 
specificity with respect to names, dates, subject matter and location to 
permit it to be identified and located. A request for all records 
falling within a reasonably specific category shall be regarded as 
reasonably described if the description enables the records to be 
identified by any process not unreasonably burdensome. If it is 
determined that the request does not reasonably describe the records 
sought, the response rejecting the request on that ground shall specify 
the reason why the request failed to meet requirements and shall extend 
to the requester an opportunity to confer with Service personnel to 
reformulate the request. Individuals seeking access to records about 
themselves by mail shall establish their identity by submitting a 
notarized signature along with their address, date of birth, place of 
birth, and alien or employee identification number if applicable.
    (b) Authority to grant and deny requests--(1) Grant or deny. The 
Associate Commissioner for Information Resources Management, regional 
administrators, district directors, service center directors, and heads 
of suboffices specified in paragraph (a)(1) of this section, or their 
designees, may grant or deny requests under exemptions in 5 U.S.C. 552 
(b) and (c).
    (2) [Reserved]
    (3) Authority to state that a record cannot be located or does not 
exist. The head of any office specified in paragraph (a)(1) of this 
section has authority to notify a requester that a record cannot be 
located from the information supplied, or is known to have been 
destroyed or otherwise disposed of.
    (c) Prompt response--(1) Response within 10 days. Within 10 days 
(excluding Saturdays, Sundays, and legal holidays) of the receipt of a 
request by the Service (or in the case of an improperly addressed 
request, of its receipt by the appropriate office as specified in 
paragraph (a) of this section), the authorized Service official shall 
either comply with or deny the request unless an extension of time is 
requested as required under 28 CFR 16.1(d). A request improperly 
addressed will not be deemed to have been received for purposes of 5 
U.S.C 552 (a)(6) until it has been or would have been received by the 
appropriate office with the exercise of due diligence by Service 
personnel.
    (2) Treatment of delay as a denial. If no substantive reply is made 
at the end of the 10 working day period, and any properly invoked 
extension period, requesters may deem their request to be denied and 
exercise their right to appeal in accordance with 28 CFR 16.8 and 
paragraph (d)(3) of this section.
    (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

[[Page 63]]

of its receipt, appeal the denial to the Assistant Attorney General, 
Office of Legal Policy, (Attention: Office of Information and Privacy), 
Department of Justice, Washington, DC 20530. Both the envelope and 
letter must be clearly marked: ``FREEDOM OF INFORMATION APPEAL'' or 
``INFORMATION APPEAL.''
    (e) Agreement to pay fees. In accordance with 28 CFR 16.3(c) a 
requester automatically agrees to pay fees up to $25.00 by filing a 
Freedom of Information Act request unless a waiver or reduction of fees 
is sought. Accordingly, all letters of acknowledgment must confirm the 
requester's obligation to pay.

[40 FR 7237, Feb. 19, 1975, as amended at 41 FR 34938, Aug. 18, 1976; 42 
FR 15408, March 22, 1977; 43 FR 22332, May 25, 1978; 44 FR 23514, Apr. 
20, 1979; 48 FR 49652, Oct. 27, 1983; 48 FR 51430, Nov. 9, 1983; 52 FR 
2942, Jan. 29, 1987; 58 FR 31148, 31149, June 1, 1993]



Sec. 103.11  Business information.

    Business information provided to the Service by a business submitter 
shall not be disclosed pursuant to a Freedom of Information Act request 
except in accordance with 28 CFR 16.7.

[58 FR 31149, June 1, 1993]



Sec. 103.12  Definition of the term ``lawfully present'' aliens for purposes 

of applying for Title II Social Security benefits under Public Law 104-193.

    (a) Definition of the term an ``alien who is lawfully present in the 
United States.'' For the purposes of section 401(b)(2) of Pub. L. 104-
193 only, an ``alien who is lawfully present in the United States'' 
means:
    (1) A qualified alien as defined in section 431(b) of Pub. L. 104-
193;
    (2) An alien who has been inspected and admitted to the United 
States and who has not violated the terms of the status under which he 
or she was admitted or to which he or she has changed after admission;
    (3) An alien who has been paroled into the United States pursuant to 
section 212(d)(5) of the Act for less than 1 year, except:
    (i) Aliens paroled for deferred inspection or pending exclusion 
proceedings under 236(a) of the Act; and
    (ii) Aliens paroled into the United States for prosecution pursuant 
to 8 CFR 212.5(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]

[[Page 64]]



Sec. 103.20  Purpose and scope.

    (a) Sections 103.20 through 103.36 comprise the regulations of the 
Service implementing the Privacy Act of 1974, Public Law 93-597. The 
regulations apply to all records contained in systems of records 
maintained by the Service which are identifiable by individual name or 
identifier and which are retrieved by individual name or identifier, 
except those personnel records governed by regulations of the Office of 
Personnel Management. The regulations set forth the procedures by which 
individuals may seek access to records pertaining to themselves and 
request correction of those records. The regulations also set forth the 
requirements applicable to Service employees maintaining, collecting, 
using or disseminating such records.
    (b) The Associate Commissioner, Information Systems, shall ensure 
that the provisions of 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

[[Page 65]]

by another individual of his own choosing. Both the individual seeking 
access and the individual accompanying him shall be required to sign the 
required form indicating that the Service is authorized to discuss the 
contents of the subject record in the presence of both individuals.
    (e) Specification of records sought. Requests for access to records, 
either in person or by mail, shall describe the nature of the records 
sought, the approximate dates covered by the record, the system in which 
it is thought to be included as described in the ``Notice of Systems of 
Records'' published in the Federal Register, and the identity of the 
individual or office of the Service having custody of the system of 
records. In addition, the published ``Notice of Systems of Records'' for 
individual systems may include further requirements of specification, 
where necessary, to retrieve the individual record from the system.
    (f) Agreement to pay fees. In accordance with 28 CFR 16.3(c) a 
requester automatically agrees to pay fees up to $25.00 by filing a 
Privacy Act request unless a waiver or reduction of fees is sought. 
Accordingly, all letters of acknowledgement must confirm the requester's 
obligation to pay.

[40 FR 44481, Sept. 26, 1975; 40 FR 46092, Oct. 6, 1975, as amended at 
42 FR 33025, June 29, 1977; 48 FR 49653, Oct. 27, 1983; 58 FR 31149, 
June 1, 1993; 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.

[[Page 66]]

    (3) Information compiled as part of an employee background 
investigation which has been exempted pursuant to 5 U.S.C. 552a(k)(5) 
shall be made available to an individual upon request except to the 
extent that it identifies a confidential source. If and only if 
information identifying a confidential source can be deleted or the 
pertinent parts of the record summarized in a manner which protects the 
identity of the confidential source, the document with deletions made or 
the summary shall be furnished to the requester.
    (4) Testing or examination material which has been exempted pursuant 
to 5 U.S.C. 552a(k)(6) shall not be made available to an individual if 
disclosure would compromise the objectivity or fairness of the testing 
or examination process but shall be made available if no such compromise 
possibility exists.
    (5) The Service records which are exempted and the reasons for the 
exemptions are enumerated in 28 CFR 16.99.

[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27, 1983; 
58 FR 31149, June, 1, 1993]



Sec. 103.23  Special access procedures.

    (a) Records of other agencies. When information sought from a system 
of records of the Service includes information from other agencies or 
components of the Department of Justice that has been classified under 
Executive Order 12356, the request and the requested documents shall be 
referred to the appropriate agency or other component for classification 
review and processing. Only with the consent of the responsible agency 
or component, may the requester be informed of the referral as specified 
in section 3.4(f) of E.O. 12356.
    (b) Medical records. When an individual requests medical records 
concerning himself, which are not otherwise exempt from disclosure, the 
responsible official as specified in Sec. 103.10(a) of this part shall, 
if deemed necessary, advise the individual that records will be provided 
only to a physician designated in writing by the individual. Upon 
receipt of the designation, the responsible official as specified in 
Sec. 103.10(a) of this part will permit the physician to review the 
records or to receive copies of the records by mail, upon proper 
verification of identity. The determination of which records should be 
made available directly to the individual and which records should not 
be disclosed because of possible harm to the individual shall be made by 
the physician.

[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27, 1983; 
58 FR 31149, 31150, June, 1, 1993]



Sec. 103.24  Requests for accounting of record disclosure.

    At the time of his request for access or correction or at any other 
time, an individual may request an accounting of disclosures made of his 
record outside the Department of Justice. Requests for accounting shall 
be directed to the appropriate responsible official 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

[[Page 67]]

CFR 16.1(d) shall be applicable to requests for access to information 
pursuant to the Privacy Act of 1974.

[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]



Sec. 103.26  Fees for copies of records.

    The fees charged by the Service under the Privacy Act shall be those 
specified in 28 CFR 16.47. Remittances shall be made in accordance with 
Sec. 103.7(a) of this part.

[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]



Sec. 103.27  Appeals from denials of access.

    An individual who has been denied access by the Service to the 
records concerning him may appeal that decision in the manner prescribed 
in 28 CFR 16.48.

[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993]



Sec. 103.28  Requests for correction of records.

    (a) How made. A request for amendment or correction is made by the 
individual concerned, either in person or by mail, by addressing the 
written request to the FOIA/PA Officer at the location where the record 
is maintained. The requester's identity must be established as provided 
in Sec. 103.21 of this part. The request must indicate the particular 
record involved, the nature of the correction sought, and the 
justification. A request made by mail should be addressed to the FOIA/PA 
Officer at the location where the system of records is maintained and 
the request and envelope must be clearly marked ``Privacy Correction 
Request.'' Where the requester cannot determine the precise location of 
the system of records or believes that the same record appears in more 
than one system, the request may be addressed to the Headquarters FOIA/
PA Officer, Immigration and Naturalization Service, 425 I Street, NW., 
Washington, DC 20536. That officer will assist the requester in 
identifying the location of the records.
    (b) Initial determination. Within 10 working days of the receipt of 
the request, the appropriate Service official shall advise the requester 
that the request has been received. If a correction is to be made, the 
requester shall be advised of the right to obtain a copy of the 
corrected record upon payment of the standard fee, established in 28 CFR 
16.47. If a correction or amendment is refused, in whole or in part, the 
requester shall be given the reasons and advised of the right to appeal 
to the Assistant Attorney General under 28 CFR 16.50.
    (c) Appeals. A refusal, in whole or in part, to amend or correct a 
record may be appealed as provided in 28 CFR 16.50.
    (d) Appeal determinations. 28 CFR 16.50 provides for appeal 
determinations.
    (e) Statements of disagreement. Statements of disagreement may be 
furnished by the individual in the manner prescribed in 28 CFR 16.50.
    (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.

[[Page 68]]



Sec. 103.30  Accounting for disclosures.

    (a) An accounting of each disclosure of information for which 
accounting is required (see Sec. 103.24 of this part) shall be attached 
to the relating record. A copy of Form G-658, Record of Information 
Disclosure (Privacy Act), or other disclosure document shall be used for 
this accounting. The responsible official as specified in Sec. 
103.10(a) of this part shall advise the requester, promptly upon request 
as described in Sec. 103.24, of the persons or agencies outside the 
Department of Justice to which records concerning the requester have 
been disclosed.
    (b) Accounting records, at a minimum, shall include the 
identification of the particular record disclosed, the name and address 
of the person or agency to which disclosed, and the date of the 
disclosure. Accounting records shall be maintained for at least 5 years, 
or until the record is destroyed or transferred to the Archives, 
whichever is later.
    (c) Accounting is not required to be kept for disclosures made 
within the Department of Justice or disclosures made pursuant to the 
Freedom of Information Act.

[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27, 1983; 
58 FR 31150, June, 1, 1993]



Sec. 103.31  Notices of subpoenas and emergency disclosures.

    (a) Subpoenas. When records concerning an individual are subpoenaed 
by a Grand Jury, court, or a quasijudicial agency, the official served 
with the subpoena shall be responsible for assuring that notice of its 
issuance is provided to the individual. Notice shall be provided within 
10 days of the service of the subpoena or, in the case of a Grand Jury 
subpoena, within 10 days of its becoming a matter of public record. 
Notice shall be mailed to the last known address of the individual and 
shall contain the following information: The date the subpoena is 
returnable, the court in which it is returnable, the name and number of 
the case or proceeding, and the nature of the information sought. Notice 
of the issuance of subpoenas is not required if the system of records 
has been exempted from the notice requirement pursuant to 5 U.S.C. 
552a(j), by a Notice of Exemption published in the Federal Register.
    (b) Emergency disclosures. If information concerning an individual 
has been disclosed to any person under compelling circumstances 
affecting health or safety, the individual shall be notified at his last 
known address within 10 working days of the disclosure. Notification 
shall include the following information: The nature of the information 
disclosed, the person or agency to whom it was disclosed, the date of 
the disclosure, and the compelling circumstances justifying the 
disclosure. Notification shall be given by the officer who made or 
authorized the disclosure.



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]

[[Page 69]]



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 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]



Sec. 103.38  Genealogy Program.

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

[73 FR 28030, May 15, 2008]



Sec. 103.39  Historical Records.

    Historical Records are files, forms, and documents now located 
within the following records series:
    (a) Naturalization Certificate Files (C-Files), from September 27, 
1906 to April 1, 1956. Copies of records relating to all U.S. 
naturalizations in Federal, State, county, or municipal courts, overseas 
military naturalizations, replacement of old law naturalization 
certificates, and the issuance of Certificates of Citizenship in 
derivative, repatriation, and resumption cases. The majority of C-Files 
exist only on microfilm. Standard C-Files generally contain at least one 
application form (Declaration of Intention and/or Petition for 
Naturalization, or other application) and a duplicate certificate of 
naturalization or certificate of citizenship. Many files contain 
additional documents, including correspondence, affidavits, or other 
records. Only C-Files dating from 1929 onward include photographs.
    (b) Microfilmed Alien Registration Forms, from August 1, 1940 to 
March 31, 1944. Microfilmed copies of 5.5 million

[[Page 70]]

Alien Registration Forms (Form AR-2) completed by all aliens age 14 and 
older, residing in or entering the United States between August 1, 1940 
and March 31, 1944. The two-page form called for the following 
information: Name; name at arrival; other names used; street address; 
post-office address; date of birth; place of birth; citizenship; sex; 
marital status; race; height; weight; hair and eye color; date, place, 
vessel, and class of admission of last arrival in United States; date of 
first arrival in United States; number of years in United States; usual 
occupation; present occupation; name, address, and business of present 
employer; membership in clubs, organizations, or societies; dates and 
nature of military or naval service; whether citizenship papers filed, 
and if so date, place, and court for declaration or petition; number of 
relatives living in the United States; arrest record, including date, 
place, and disposition of each arrest; whether or not affiliated with a 
foreign government; signature; and fingerprint.
    (c) Visa Files, from July 1, 1924 to March 31, 1944. Original 
arrival records of immigrants admitted for permanent residence under 
provisions of the Immigration Act of 1924. Visa forms contain all 
information normally found on a ship passenger list of the period, as 
well as the immigrant's places of residence for 5 years prior to 
emigration, names of both the immigrant's parents, and other data. In 
most cases, birth records or affidavits are attached to the visa, and in 
some cases, marriage, military, or police records may also be attached 
to the visa.
    (d) Registry Files, from March 2, 1929 to March 31, 1944. Original 
records documenting the creation of immigrant arrival records for 
persons who entered the United States prior to July 1, 1924, and for 
whom no arrival record could later be found. Most files also include 
documents supporting the immigrant's claims regarding arrival and 
residence (e.g., proofs of residence, receipts, and employment records).
    (e) Alien-Files numbered below 8 million (A8000000), and documents 
therein dated prior to May 1, 1951. Individual alien case files (A-
files) became the official file for all immigration records created or 
consolidated after April 1, 1944. The United States issued A-numbers 
ranging up to approximately 6 million to aliens and immigrants who were 
within or entered the United States between 1940 and 1945. The United 
States entered the 6 million and 7 million series of A-numbers between 
circa 1944 and May 1, 1951. Any documents dated after May 1, 1951, 
though found in an A-File numbered below 8 million, will remain subject 
to FOIA/PA restrictions.

[73 FR 28030, May 15, 2008]



Sec. 103.40  Genealogical Research Requests.

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

[[Page 71]]

may be required to ensure a successful search.
    (d) Information required to retrieve records. As required on Form G-
1041A, requests for copies of historical records or files must identify 
the record by number or other specific data used by the Genealogy 
Program Office to retrieve the record. C-Files must be identified by a 
naturalization certificate number. Forms AR-2 and A-Files numbered below 
8 million must be identified by Alien Registration Number. Visa Files 
must be identified by the Visa File Number. Registry Files must be 
identified by the Registry File Number (for example, R-12345).
    (e) Information required for release of records. Subjects will be 
presumed deceased if their birth dates are more than 100 years prior to 
the date of the request. In other cases, the subject is presumed to be 
living until the requestor establishes to the satisfaction of the 
Genealogy Program Office that the subject is deceased. As required on 
Form G-1041A, primary or secondary documentary evidence of the subject's 
death will be required (including but not limited to death records, 
published obituaries or eulogies, published death notices, church or 
bible records, photographs of gravestones, and/or copies of official 
documents relating to payment of death benefits). All documentary 
evidence must be attached to Form G-1041A or submitted in accordance 
with instructions provided on Form G-1041A.
    (f) Processing of index search requests. This service is designed 
for customers who are unsure whether USCIS has any record of their 
ancestor, or who suspect a record exists but cannot identify that record 
by number. Each request for index search services will generate a search 
of the indices to determine the existence of responsive historical 
records. If no record is found, USCIS will notify the customer 
accordingly. If records are found, USCIS will provide the customer with 
the search results, including the type of record found and the file 
number or other information identifying the record. The customer can use 
this information to request a copy of the record(s).
    (g) Processing of record copy requests. This service is designed for 
customers who can identify a specific record or file to be retrieved, 
copied, reviewed, and released. Customers may identify one or more files 
in a single request. However, separate fees will apply to each file 
requested. Upon receipt of requests identifying specific records by 
number or other identifying information, USCIS will retrieve, review, 
duplicate, and then mail the record(s) to the requester. It is possible 
that USCIS will find a record that contains data that is not releasable 
to the customer. An example would be names and birth dates of persons 
who might be living. The FOIA/PA only permits release of this type of 
information when the affected individual submits a release authorization 
to USCIS. Therefore, the Genealogy Program Office will contact and 
inform the customer of this requirement. The customer will have the 
opportunity to submit the release authorization. The customer can also 
agree to the transfer of the document request to the FOIA/PA program for 
treatment as a FOIA/PA request as described in 6 CFR Part 5. Document 
retrieval charges will apply in all cases where documents are retrieved.

[73 FR 28031, May 15, 2008]



Sec. 103.41  Genealogy request fees.

    (a) Genealogy search fee. See 8 CFR 103.7(b)(1).
    (b) Genealogy records fees. See 8 CFR 103.7(b)(1).
    (c) Manner of submission. When a request is submitted online, credit 
card payments are required. These payments will be processed through the 
Treasury Department's Pay.Gov financial management system. Cashier's 
checks or money orders in the exact amount must be submitted for 
requests submitted with Form G-1041 or Form G-1041A in accordance with 8 
CFR 103.7(a)(1). Personal Checks will not be accepted.

[73 FR 28031, May 15, 2008]

                           PART 109 [RESERVED]

[[Page 72]]



PART 204_IMMIGRANT PETITIONS--Table of Contents




                   Subpart A_Immigrant Visa Petitions

Sec.
204.1 General information about immediate relative and family-sponsored 
          petitions.
204.2 Petitions for relatives, widows and widowers, and abused spouses 
          and children.
204.3 Orphan cases under section 101(b)(1)(F) of the Act (non-Convention 
          cases).
204.4 Amerasian child of a United States citizen.
204.5 Petitions for employment-based immigrants.
204.6 Petitions for employment creation aliens.
204.7 Preservation of benefits contained in savings clause of 
          Immigration and Nationality Act Amendments of 1976.
204.8 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?

Subpart B [Reserved]

         Subpart C_Intercountry Adoption of a Convention Adoptee

204.300 Scope of this subpart.
204.301 Definitions.
204.302 Role of service providers.
204.303 Determination of habitual residence.
204.304 Improper inducement prohibited.
204.305 State preadoption requirements.
204.306 Classification as an immediate relative based on Convention 
          adoption.
204.307 Who may file a Form I-800A or Form I-800.
204.308 Where to file Form I-800A or Form I-800.
204.309 Factors requiring denial of a Form I-800A or Form I-800.
204.310 Filing requirements for Form I-800A.
204.311 Convention adoption home study requirements.
204.312 Adjudication of the Form I-800A.
204.313 Filing and adjudication of the Form I-800.
204.314 Appeal.

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a, 1255, 
1641; 8 CFR part 2.

    Effective Date Note: At 73 FR 78127, Dec. 19, 2008, the authority 
citation for part 204 was revised, effective Jan. 18, 2009. For the 
convenience of the user, the revised text is set forth as follows:
    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1184, 1186a, 
1255, 1641; 8 CFR part 2.



                   Subpart A_Immigrant Visa Petitions



Sec. 204.1  General information about immediate relative and family-sponsored 

petitions.

    (a) Types of petitions. Petitions may be filed for an alien's 
classification as an immediate relative under section 201(b) of the Act 
or as a preference immigrant under section 203(a) of the Act based on a 
qualifying relationship to a citizen or lawful permanent resident of the 
United States, as follows:
    (1) A citizen or lawful permanent resident of the United States 
petitioning under section 204(a)(1)(A)(i) or 204(a)(1)(B)(i) of the Act 
for a qualifying relative's classification as an immediate relative 
under section 201(b) of the Act or as a preference immigrant under 
section 203(a) of the Act must file a Form I-130, Petition for Alien 
Relative. These petitions are described in Sec. 204.2;
    (2) A widow or widower of a United States citizen self-petitioning 
under section 204(a)(1)(A)(ii) of the Act as an immediate relative under 
section 201(b) of the Act must file a Form I-360, Petition for 
Amerasian, Widow, or Special Immigrant. These petitions are described in 
Sec. 204.2;
    (3) A spouse or child of an abusive citizen or lawful permanent 
resident of the United States self-petitioning under section 
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 
204(a)(1)(B)(iii) of the Act for classification as an immediate relative 
under section 201(b) of the Act or as a preference immigrant under 
section 203(a) of the Act must file a Form I-360, Petition for 
Amerasian, Widow, or Special Immigrant. These petitions are described in 
Sec. 204.2;

[[Page 73]]

    (4) A U.S. citizen seeking to have USCIS accord immediate relative 
status to a child based on the citizen's adoption of the child as an 
orphan, as defined in section 101(b)(1)(F) of the Act, must follow the 
procedures in Sec. 204.3.
    (5) A U.S. citizen seeking to have USCIS accord immediate relative 
status to a child under section 101(b)(1)(G) of the Act on the basis of 
a Convention adoption must:
    (i) File a Form I-800A, Application to Determine Suitability as 
Adoptive Parents for a Convention adoptee; and
    (ii) After USCIS approves the Form I-800A, file a Form I-800, 
Petition to Classify Convention adoptee as Immediate Relative, as 
provided in 8 CFR part 204, subpart C.
    (6) Any person filing a petition under section 204(f) of the Act as, 
or on behalf of, an Amerasian for classification as an immediate 
relative under section 201(b) of the Act or as a preference immigrant 
under section 203(a)(1) or 203(a)(3) of the Act must file a Form I-360, 
Petition for Amerasian, Widow, or Special Immigrant. These petitions are 
described in Sec. 204.4.
    (b) Filing fee. Forms I-130 and I-360 must be accompanied by the 
appropriate fee under 8 CFR 103.7(b)(1).
    (c) Filing date. The filing date of a petition shall be the date it 
is properly filed under paragraph (d) of this section and shall 
constitute the priority date.
    (d) Proper filing. A petition shall be considered properly filed if:
    (1) It is signed by the petitioner, and
    (2) A fee has been received by the Service office or United States 
Consular office having jurisdiction.
    (3) If, during normal processing, a delay results from deficiencies 
in the initial filing, the priority date will be established only when 
the petition is properly signed by the petitioner and the fee has been 
collected by the Service. If questions arise concerning the filing of 
the petition which cannot be resolved through a check of the Service fee 
receipting system (FARES) or other fee collection system, then the 
director may consider the date of receipt of the petition to be the 
priority date.
    (e) Jurisdiction--(1) Petitioner or self-petitioner residing in the 
United States. The petition or self-petition must be filed with the 
Service office having jurisdiction over the place where the petitioner 
or self-petitioner is residing. When the petition or self-petition is 
accompanied by an application for adjustment of status, the petition or 
self-petition may be filed with the Service office having jurisdiction 
over the beneficiary's or self-petitioner's place of residence.
    (2) Petitioner residing in certain countries abroad. The Service has 
overseas offices located in Vienna, Austria; Frankfurt, Germany; Athens, 
Greece; Hong Kong; New Delhi, India; Rome, Italy; Nairobi, Kenya; Seoul, 
Korea; Ciudad Juarez, Mexico City, Monterrey, Guadalajara, and Tijuana, 
Mexico; Manila, the Philippines; Singapore; Bangkok, Thailand; and 
London, the United Kingdom of Great Britain and Northern Ireland. If the 
petitioner resides in one of these countries, the petition must be filed 
with the Service office located in that country. The beneficiary does 
not have to reside in the same jurisdiction as the petitioner for the 
Service to accept the petition. The overseas Service officer may accept 
and adjudicate a petition filed by a petitioner who does not reside 
within the office's jurisdiction when it is established that emergent or 
humanitarian reasons for acceptance exist or when it is in the national 
interest. An overseas Service officer may not accept or approve a self-
petition filed by the spouse or child of an abusive citizen or lawful 
permanent resident of the United States under section 204(a)(1)(A)(iii), 
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act. 
These self-petitions must be filed with the Service office in the United 
States having jurisdiction over the self-petitioner's place of residence 
in the United States.
    (3) Jurisdiction assumed by United States consular officer. United 
States consular officers assigned to visa-issuing posts abroad, except 
those in countries listed in paragraph (e)(2) of this section, are 
authorized to accept and approve a relative petition or a petition filed 
by a widow or widower if the petitioner resides in the area over which 
the post has jurisdiction, regardless of the beneficiary's residence or 
physical presence at the time of filing. In emergent or humanitarian 
cases and

[[Page 74]]

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 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

[[Page 75]]

lawful permanent residence. Photocopies of Form I-551 or of a 
Certificate of Naturalization or Certificate of Citizenship may be 
submitted as evidence of status as a lawfully permanent resident or 
United States citizen, respectively.
    (2) Secondary evidence. If primary evidence is unavailable, the 
petitioner must present secondary evidence. Any evidence submitted as 
secondary evidence will be evaluated for authenticity and credibility. 
Secondary evidence may include, but is not limited to, one or more of 
the following documents:
    (i) A baptismal certificate with the seal of the church, showing the 
date and place of birth in the United States and the date of baptism;
    (ii) Affidavits sworn to by persons who were living at the time and 
who have personal knowledge of the event to which they attest. The 
affidavits must contain the affiant's full name and address, date and 
place of birth, relationship to the parties, if any, and complete 
details concerning how the affiant acquired knowledge of the event;
    (iii) Early school records (preferably from the first school) 
showing the date of admission to the school, the child's date and place 
of birth, and the name(s) and place(s) of birth of the parent(s);
    (iv) Census records showing the name, place of birth, and date of 
birth or age of the petitioner; or
    (v) If it is determined that it would cause unusual delay or 
hardship to obtain documentary proof of birth in the United States, a 
United States citizen petitioner who is a member of the Armed Forces of 
the United States and who is serving outside the United States may 
submit a statement from the appropriate authority of the Armed Forces. 
The statement should attest to the fact that the personnel records of 
the Armed Forces show that the petitioner was born in the United States 
on a certain date.
    (3) Evidence submitted with a self-petition. If a self-petitioner 
filing under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 
204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is unable to present 
primary or secondary evidence of the abuser's status, the Service will 
attempt to electronically verify the abuser's citizenship or immigration 
status from information contained in Service computerized records. Other 
Service records may also be reviewed at the discretion of the 
adjudicating officer. If the Service is unable to identify a record as 
relating to the abuser or the record does not establish the abuser's 
immigration or citizenship status, the self-petition will be adjudicated 
based on the information submitted by the self-petitioner.

[57 FR 41056, Sept. 9, 1992, as amended at 58 FR 48778, Sept. 20, 1993; 
61 FR 13072, 13073, Mar. 26, 1996; 63 FR 70315, Dec. 21, 1998; 72 FR 
19106, Apr. 17, 2007; 72 FR 56853, Oct. 4, 2007]



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;

[[Page 76]]

    (3) Documentation showing commingling of financial resources;
    (4) Birth certificate(s) of child(ren) born to the petitioner and 
prior spouse;
    (5) Affidavits sworn to or affirmed by third parties having personal 
knowledge of the bona fides of the prior marital relationship. (Each 
affidavit must contain the full name and address, date and place of 
birth of the person making the affidavit; his or her relationship, if 
any, to the petitioner, beneficiary or prior spouse; and complete 
information and details explaining how the person acquired his or her 
knowledge of the prior marriage. The affiant may be required to testify 
before an immigration officer about the information contained in the 
affidavit. Affidavits should be supported, if possible, by one or more 
types of documentary evidence listed in this paragraph.); or
    (6) Any other documentation which is relevant to establish that the 
prior marriage was not entered into in order to evade the immigration 
laws of the United States.
    (C) The petitioner must establish by clear and convincing evidence 
that the prior marriage was not entered into for the purpose of evading 
the immigration laws. Failure to meet the ``clear and convincing 
evidence'' standard will result in the denial of the petition. Such a 
denial shall be without prejudice to the filing of a new petition once 
the petitioner has acquired five years of lawful permanent residence. 
The director may choose to initiate deportation proceedings based upon 
information gained through the adjudication of the petition; however, 
failure to initiate such proceedings shall not establish that the 
petitioner's prior marriage was not entered into for the purpose of 
evading the immigration laws. Unless the petition is approved, the 
beneficiary shall not be accorded a filing date within the meaning of 
section 203(c) of the Act based upon any spousal second preference 
petition.
    (ii) Fraudulent marriage prohibition. Section 204(c) of the Act 
prohibits the approval of a visa petition filed on behalf of an alien 
who has attempted or conspired to enter into a marriage for the purpose 
of evading the immigration laws. The director will deny a petition for 
immigrant visa classification filed on behalf of any alien for whom 
there is substantial and probative evidence of such an attempt or 
conspiracy, regardless of whether that alien received a benefit through 
the attempt or conspiracy. Although it is not necessary that the alien 
have been convicted of, or even prosecuted for, the attempt or 
conspiracy, the evidence of the attempt or conspiracy must be contained 
in the alien's file.
    (iii) Marriage during proceedings--general prohibition against 
approval of visa petition. A visa petition filed on behalf of an alien 
by a United States citizen or a lawful permanent resident spouse shall 
not be approved if the marriage creating the relationship occurred on or 
after November 10, 1986, and while the alien was in exclusion, 
deportation, or removal proceedings, or judicial proceedings relating 
thereto. Determination of commencement and termination of proceedings 
and exemptions shall be in accordance with Sec. 245.1(c)(9) of this 
chapter, except that the burden in visa petition proceedings to 
establish eligibility for the exemption in Sec. 245.1(c)(9)(iii)(F) of 
this chapter shall rest with the petitioner.
    (A) Request for exemption. No application or fee is required to 
request an exemption. The request must be made in writing and submitted 
with the Form 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

[[Page 77]]

required to testify before an immigration officer as to the information 
contained in the affidavit. Affidavits must be sworn to or affirmed by 
people who have personal knowledge of the marital relationship. Each 
affidavit must contain the full name and address, date and place of 
birth of the person making the affidavit and his or her relationship to 
the spouses, if any. The affidavit must contain complete information and 
details explaining how the person acquired his or her knowledge of the 
marriage. Affidavits should be supported, if possible, by one or more 
types of documentary evidence listed in this paragraph); or
    (6) Any other documentation which is relevant to establish that the 
marriage was not entered into in order to evade the immigration laws of 
the United States.
    (C) Decision. Any petition filed during the prohibited period shall 
be denied, unless the petitioner establishes eligibility for an 
exemption from the general prohibition. The petitioner shall be notified 
in writing of the decision of the director.
    (D) Denials. The denial of a petition because the marriage took 
place during the prohibited period shall be without prejudice to the 
filing of a new petition after the beneficiary has resided outside the 
United States for the required period of two years following the 
marriage. The denial shall also be without prejudice to the 
consideration of a new petition or a motion to reopen the visa petition 
proceedings if deportation or exclusion proceedings are terminated after 
the denial other than by the beneficiary's departure from the United 
States. Furthermore, the denial shall be without prejudice to the 
consideration of a new petition or motion to reopen the visa petition 
proceedings, if the petitioner establishes eligibility for the bona fide 
marriage exemption contained in this part: Provided, That no motion to 
reopen visa petition proceedings may be accepted if the approval of the 
motion would result in the beneficiary being accorded a priority date 
within the meaning of section 203(c) of the Act earlier than November 
29, 1990.
    (E) Appeals. The decision of the Board of Immigration Appeals 
concerning the denial of a relative visa petition because the petitioner 
failed to establish eligibility for the bona fide marriage exemption 
contained in this part will constitute the single level of appellate 
review established by statute.
    (F) Priority date. A preference beneficiary shall not be accorded a 
priority date within the meaning of section 203(c) of the Act based upon 
any relative petition filed during the prohibited period, unless an 
exemption contained in this part has been granted. Furthermore, a 
preference beneficiary shall not be accorded a priority date prior to 
November 29, 1990, based upon the approval of a request for 
consideration for the bona fide marriage exemption contained in this 
part.
    (2) Evidence for petition for a spouse. In addition to evidence of 
United States citizenship or lawful permanent residence, the petitioner 
must also provide evidence of the claimed relationship. A petition 
submitted on behalf of a spouse must be accompanied by a recent ADIT-
style photograph of the petitioner, a recent ADIT-style photograph of 
the beneficiary, a certificate of marriage issued by civil authorities, 
and proof of the legal termination of all previous marriages of both the 
petitioner and the beneficiary. However, non-ADIT-style photographs may 
be 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

[[Page 78]]

must have a separate petition filed on his or her behalf. A child 
accompanying or following to join a principal alien under section 
203(a)(2) of the Act may be included in the principal alien's second 
preference visa petition. The child will be accorded second preference 
classification and the same priority date as the principal alien. 
However, if the child reaches the age of twenty-one prior to the 
issuance of a visa to the principal alien parent, a separate petition 
will be required. In such a case, the original priority date will be 
retained if the subsequent petition is filed by the same petitioner. 
Such retention of priority date will be accorded only to a son or 
daughter previously eligible as a derivative beneficiary under a second 
preference spousal petition.
    (b) Petition by widow or widower of a United States citizen--(1) 
Eligibility. A widow or widower of a United States citizen may file a 
petition and be classified as an immediate relative under section 201(b) 
of the Act if:
    (i) He or she had been married for at least two years to a United 
States citizen.

    (Note: The United States citizen is not required to have had the 
status of United States citizen for the entire two year period, but must 
have been a United States citizen at the time of death.)

    (ii) The petition is filed within two years of the death of the 
citizen spouse or before November 29, 1992, if the citizen spouse died 
before November 29, 1990;
    (iii) The alien petitioner and the citizen spouse were not legally 
separated at the time of the citizen's death; and
    (iv) The alien spouse has not remarried.
    (2) Evidence for petition of widow or widower. If a petition is 
submitted by the widow or widower of a deceased United States citizen, 
it must be accompanied by evidence of citizenship of the United States 
citizen and primary evidence, if available, of the relationship in the 
form of a marriage certificate issued by civil authorities, proof of the 
termination of all prior marriages of both husband and wife, and the 
United States citizen's death certificate issued by civil authorities. 
To determine the availability of primary documents, the Service will 
refer to the Department of State's Foreign Affairs Manual (FAM). When 
the FAM shows that primary documents are generally available in the 
country at issue but the petitioner claims that his or her document is 
unavailable, a letter from the appropriate registrar stating that the 
document is not available will be required before the Service will 
accept secondary evidence. Secondary evidence will be evaluated for its 
authenticity and credibility. Secondary evidence may include:
    (i) Such evidence of the marriage and termination of prior marriages 
as religious documents, tribal records, census records, or affidavits; 
and
    (ii) Such evidence of the United States citizen's death as religious 
documents, funeral service records, obituaries, or affidavits. 
Affidavits submitted as secondary evidence pursuant to paragraphs 
(b)(2)(i) and (b)(2)(ii) of this section must be sworn to or affirmed by 
people who have personal knowledge of the event to which they attest. 
Each affidavit should contain the full name and address, date and place 
of birth of the person making the affidavit and his or her relationship, 
if any, to the widow or widower. Any such affidavit must contain 
complete 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

[[Page 79]]

or married son or daughter of an alien widow or widower.
    (c) Self-petition by spouse of abusive citizen or lawful permanent 
resident--(1) Eligibility--(i) Basic eligibility requirements. A spouse 
may file a self-petition under section 204(a)(1)(A)(iii) or 
204(a)(1)(B)(ii) of the Act for his or her classification as an 
immediate relative or as a preference immigrant if he or she:
    (A) Is the spouse of a citizen or lawful permanent resident of the 
United States;
    (B) Is eligible for immigrant classification under section 
201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship;
    (C) Is residing in the United States;
    (D) Has resided in the United States with the citizen or lawful 
permanent resident spouse;
    (E) Has been battered by, or has been the subject of extreme cruelty 
perpetrated by, the citizen or lawful permanent resident during the 
marriage; or is that parent of a child who has been battered by, or has 
been the subject of extreme cruelty perpetrated by, the citizen or 
lawful permanent resident during the marriage;
    (F) Is a person of good moral character;
    (G) Is a person whose deportation would result in extreme hardship 
to himself, herself, or his or her child; and
    (H) Entered into the marriage to the citizen or lawful permanent 
resident in good faith.
    (ii) Legal status of the marriage. The self-petitioning spouse must 
be legally married to the abuser when the petition is properly filed 
with the Service. A spousal self-petition must be denied if the marriage 
to the abuser legally ended through annulment, death, or divorce before 
that time. After the self-petition has been properly filed, the legal 
termination of the marriage will have no effect on the decision made on 
the self-petition. The self-petitioner's remarriage, however, will be a 
basis for the denial of a pending self-petition.
    (iii) Citizenship or immigration status of the abuser. The abusive 
spouse must be a citizen of the United States or a lawful permanent 
resident of the United States when the petition is filed and when it is 
approved. Changes in the abuser's citizenship or lawful permanent 
resident status after the approval will have no effect on the self-
petition. A self-petition approved on the basis of a relationship to an 
abusive lawful permanent resident spouse will not be automatically 
upgraded to immediate relative status. The self-petitioner would not be 
precluded, however, from filing a new self-petition for immediate 
relative classification after the abuser's naturalization, provided the 
self-petitioner continues to meet the self-petitioning requirements.
    (iv) Eligibility for immigrant classification. A self-petitioner is 
required to comply with the provisions of section 204(c) of the Act, 
section 204(g) of the Act, and section 204(a)(2) of the Act.
    (v) Residence. A self-petition will not be approved if the self-
petitioner is not residing in the United States when the self-petition 
is filed. The self-petitioner is not required to be living with the 
abuser when the petition is filed, but he or she must have resided with 
the abuser in the United States in the past.
    (vi) Battery or extreme cruelty. For the purpose of this chapter, 
the phrase ``was battered by or was the subject of extreme cruelty'' 
includes, but is not limited to, being the victim of any act or 
threatened act of violence, including 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

[[Page 80]]

convicted of an offense or offenses but admits to the commission of an 
act or acts that could show a lack of good moral character under section 
101(f) of the Act. A person who was subjected to abuse in the form of 
forced prostitution or who can establish that he or she was forced to 
engage in other behavior that could render the person excludable under 
section 212(a) of the Act would not be precluded from being found to be 
a person of good moral character, provided the person has not been 
convicted for the commission of the offense or offenses in a court of 
law. A self-petitioner will also be found to lack good moral character, 
unless he or she establishes extenuating circumstances, if he or she 
willfully failed or refused to support dependents; or committed unlawful 
acts that adversely reflect upon his or her moral character, or was 
convicted or imprisoned for such acts, although the acts do not require 
an automatic finding of lack of good moral character. A self-
petitioner's claim of good moral character will be evaluated on a case-
by-case basis, taking into account the provisions of section 101(f) of 
the Act and the standards of the average citizen in the community. If 
the results of record checks conducted prior to the issuance of an 
immigrant visa or approval of an application for adjustment of status 
disclose that the self-petitioner is no longer a person of good moral 
character or that he or she has not been a person of good moral 
character in the past, a pending self-petition will be denied or the 
approval of a self-petition will be revoked.
    (viii) Extreme hardship. The Service will consider all credible 
evidence of extreme hardship submitted with a self-petition, including 
evidence of hardship arising from circumstances surrounding the abuse. 
The extreme hardship claim will be evaluated on a case-by-case basis 
after a review of the evidence in the case. Self-petitioners are 
encouraged to cite and document all applicable factors, since there is 
no guarantee that a particular reason or reasons will result in a 
finding that deportation would cause extreme hardship. Hardship to 
persons other than the self-petitioner or the self-petitioner's child 
cannot be considered in determining whether a self-petitioning spouse's 
deportation would cause extreme hardship.
    (ix) Good faith marriage. A spousal self-petition cannot be approved 
if the self-petitioner entered into the marriage to the abuser for the 
primary purpose of circumventing the immigration laws. A self-petition 
will not be denied, however, solely because the spouses are not living 
together and the marriage is no longer viable.
    (2) Evidence for a spousal self-petition--(i) General. Self-
petitioners are encouraged to submit primary evidence whenever possible. 
The Service will consider, however, any credible evidence relevant to 
the petition. The determination of what evidence is credible and the 
weight to be given that evidence shall be within the sole discretion of 
the Service.
    (ii) Relationship. A self-petition filed by a spouse must be 
accompanied by evidence of citizenship of the United States citizen or 
proof of the immigration status of the lawful permanent resident abuser. 
It must also be accompanied by evidence of the relationship. Primary 
evidence of a marital relationship is a marriage certificate issued by 
civil authorities, and proof of the termination of all prior marriages, 
if any, 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

[[Page 81]]

credible evidence of residency may be submitted.
    (iv) Abuse. Evidence of abuse may include, but is not limited to, 
reports and affidavits from police, judges and other court officials, 
medical personnel, school officials, clergy, social workers, and other 
social service agency personnel. Persons who have obtained an order of 
protection against the abuser or have taken other legal steps to end the 
abuse are strongly encouraged to submit copies of the relating legal 
documents. Evidence that the abuse victim sought safe-haven in a 
battered women's shelter or similar refuge may be relevant, as may a 
combination of documents such as a photograph of the visibly injured 
self-petitioner supported by affidavits. Other forms of credible 
relevant evidence will also be considered. Documentary proof of non-
qualifying abuses may only be used to establish a pattern of abuse and 
violence and to support a claim that qualifying abuse also occurred.
    (v) Good moral character. Primary evidence of the self-petitioner's 
good moral character is the self-petitioner's affidavit. The affidavit 
should be accompanied by a local police clearance or a state-issued 
criminal background check from each locality or state in the United 
States in which the self-petitioner has resided for six or more months 
during the 3-year period immediately preceding the filing of the self-
petition. Self-petitioners who lived outside the United States during 
this time should submit a police clearance, criminal background check, 
or similar report issued by the appropriate authority in each foreign 
country in which he or she resided for six or more months during the 3-
year period immediately preceding the filing of the self-petition. If 
police clearances, criminal background checks, or similar reports are 
not available for some or all locations, the self-petitioner may include 
an explanation and submit other evidence with his or her affidavit. The 
Service will consider other credible evidence of good moral character, 
such as affidavits from responsible persons who can knowledgeably attest 
to the self-petitioner's good moral character.
    (vi) Extreme hardship. Evidence of extreme hardship may include 
affidavits, birth certificates of children, medical reports, protection 
orders and other court documents, police reports, and other relevant 
credible evidence.
    (vii) Good faith marriage. Evidence of good faith at the time of 
marriage may include, but is not limited to, proof that one spouse has 
been listed as the other's spouse on insurance policies, property 
leases, income tax forms, or bank accounts; and testimony or other 
evidence regarding courtship, wedding ceremony, shared residence and 
experiences. Other types of readily available evidence might include the 
birth certificates of children born to the abuser and the spouse; 
police, medical, or court documents providing information about the 
relationship; and affidavits of persons with personal knowledge of the 
relationship. All credible relevant evidence will be considered.
    (3) Decision on and disposition of the petition--(i) Petition 
approved. If the self-petitioning spouse will apply for adjustment of 
status under section 245 of the Act, the approved petition will be 
retained by the Service. If the self-petitioner will apply for an 
immigrant visa abroad, the approved self-petition will be forwarded to 
the Department of State's National Visa Center.
    (ii) Petition denied. If the self-petition is denied, the self-
petitioner will be notified in writing of the reasons for the denial and 
of the right to appeal the decision.
    (4) Derivative beneficiaries. A child accompanying or following-to-
join the self-petitioning spouse may be accorded the same preference and 
priority date as the self-petitioner without the necessity of a separate 
petition, if the child has not been classified as an immigrant based on 
his or her own self-petition. A derivative child who had been included 
in a parent's self-petition may later file a self-petition, provided the 
child meets the self-petitioning requirements. A child who has been 
classified as an immigrant based on a petition filed by the abuser or 
another relative may also be derivatively included in a parent's self-
petition. The derivative child must be unmarried, less than 21 years 
old, and otherwise qualify as the self-petitioner's child under section 
101(b)(1)(F) of the Act until he or she becomes a

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lawful permanent resident based on the derivative classification.
    (5) Name change. If the self-petitioner's current name is different 
than the name shown on the documents, evidence of the name change (such 
as the petitioner's marriage certificate, legal document showing name 
change, or other similar evidence) must accompany the self-petition.
    (6) Prima facie determination. (i) Upon receipt of a self-petition 
under paragraph (c)(1) of this section, the Service shall make a 
determination as to whether the petition and the supporting 
documentation establish a ``prima facie case'' for purposes of 8 U.S.C. 
1641, as amended by section 501 of Public Law 104-208.
    (ii) For purposes of paragraph (c)(6)(i) of this section, a prima 
facie case is established only if the petitioner submits a completed 
Form I-360 and other evidence supporting all of the elements required of 
a self-petitioner in paragraph (c)(1) of this section. A finding of 
prima facie eligibility does not relieve the petitioner of the burden of 
providing additional evidence in support of the petition and does not 
establish eligibility for the underlying petition.
    (iii) If the Service determines that a petitioner has made a ``prima 
facie case,'' the Service shall issue a Notice of Prima Facie Case to 
the petitioner. Such Notice shall be valid until the Service either 
grants or denies the petition.
    (iv) For purposes of adjudicating the petition submitted under 
paragraph (c)(1) of this section, a prima facie determination--
    (A) Shall not be considered evidence in support of the petition;
    (B) Shall not be construed to make a determination of the 
credibility or probative value of any evidence submitted along with that 
petition; and,
    (C) Shall not relieve the self-petitioner of his or her burden of 
complying with all of the evidentiary requirements of paragraph (c)(2) 
of this section.
    (d) Petition for a child or son or daughter--(1) Eligibility. A 
United States citizen may file a petition on behalf of an unmarried 
child under twenty-one years of age for immediate relative 
classification under section 201(b) of the Act. A United States citizen 
may file a petition on behalf of an unmarried son or daughter over 
twenty-one years of age under section 203(a)(1) or for a married son or 
daughter for preference classification under section 203(a)(3) of the 
Act. An alien lawfully admitted for permanent residence may file a 
petition on behalf of a child or an unmarried son or daughter for 
preference classification under section 203(a)(2) of the Act.
    (2) Evidence to support petition for child or son or daughter. In 
addition to evidence of United States citizenship or lawful permanent 
resident, the petitioner must also provide evidence of the claimed 
relationship.
    (i) Primary evidence for a legitimate child or son or daughter. If a 
petition is submitted by the mother, the birth certificate of the child 
showing the mother's name must accompany the petition. If the mother's 
name on the birth certificate is different from her name on the 
petition, evidence of the name change must also be submitted. If a 
petition is submitted by the father, the birth certificate of the child, 
a marriage certificate of the parents, and 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

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child has been legitimated. Primary evidence of the relationship should 
consist of the beneficiary's birth certificate and the parents' marriage 
certificate or other evidence of legitimation issued by civil 
authorities.
    (iii) Primary evidence for an illegitimate child or son or daughter. 
If a petition is submitted by the mother, the child's birth certificate, 
issued by civil authorities and showing the mother's name, must 
accompany the petition. If the mother's name on the birth certificate is 
different from her name as reflected in the petition, evidence of the 
name change must also be submitted. If the petition is submitted by the 
purported father of a child or son or daughter born out of wedlock, the 
father must show that he is the natural father and that a bona fide 
parent-child relationship was established when the child or son or 
daughter was unmarried and under twenty-one years of age. Such a 
relationship will be deemed to exist or to have existed where the father 
demonstrates or has demonstrated an active concern for the child's 
support, instruction, and general welfare. Primary evidence to establish 
that the petitioner is the child's natural father is the beneficiary's 
birth certificate, issued by civil authorities and showing the father's 
name. If the father's name has been legally changed, evidence of the 
name change must accompany the petition. Evidence of a parent/child 
relationship should establish more than merely a biological 
relationship. Emotional and/or financial ties or a genuine concern and 
interest by the father for the child's support, instruction, and general 
welfare must be shown. There should be evidence that the father and 
child actually lived together or that the father held the child out as 
being his own, that he provided for some or all of the child's needs, or 
that in general the father's behavior evidenced a genuine concern for 
the child. The most persuasive evidence for establishing a bona fide 
parent/child relationship and financial responsibility by the father is 
documentary evidence which was contemporaneous with the events in 
question. Such evidence may include, but is not limited to: money order 
receipts or cancelled checks showing the father's financial support of 
the beneficiary; the father's income tax returns; the father's medical 
or insurance records which include the beneficiary as a dependent; 
school records for the beneficiary; correspondence between the parties; 
or notarized affidavits of friends, neighbors, school officials, or 
other associates knowledgeable about the relationship.
    (iv) Primary evidence for a stepchild. If a petition is submitted by 
a stepparent on behalf of a stepchild or stepson or stepdaughter, the 
petition must be supported by the stepchild's or stepson's or 
stepdaughter's birth certificate, issued by civil authorities and 
showing the name of the beneficiary's parent to whom the petitioner is 
married, a marriage certificate issued by civil authorities which shows 
that the petitioner and the child's natural parent were married before 
the stepchild or stepson or stepdaughter reached the age of eighteen; 
and evidence of the termination of any prior marriages of the petitioner 
and the natural parent of the stepchild or stepson or stepdaughter.
    (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

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name and address, date and place of birth, relationship to the party, if 
any, and complete details concerning how the affiant acquired knowledge 
of the event.
    (vi) Blood tests. The director may require that a specific Blood 
Group Antigen Test be conducted of the beneficiary and the beneficiary's 
father and mother. In general, blood tests will be required only after 
other forms of evidence have proven inconclusive. If the specific Blood 
Group Antigen Test is also found not to be conclusive and the director 
determines that additional evidence is needed, a Human Leucocyte Antigen 
(HLA) test may be requested. Tests will be conducted, at the expense of 
the petitioner or beneficiary, by the United States Public Health 
Service physician who is authorized overseas or by a qualified medical 
specialist designated by the district director. The results of the test 
should be reported on Form G-620. Refusal to submit to a Specific Blood 
Group Antigen or HLA test when requested may constitute a basis for 
denial of the petition, unless a legitimate religious objection has been 
established. When a legitimate religious objection is established, 
alternate forms of evidence may be considered based upon documentation 
already submitted.
    (vii) Primary evidence for an adopted child or son or daughter. A 
petition may be submitted on behalf of an adopted child or son or 
daughter by a United States citizen or lawful permanent resident if the 
adoption took place before the beneficiary's sixteenth birthday, and if 
the child has been in the legal custody of the adopting parent or 
parents and has resided with the adopting parent or parents for at least 
two years. A copy of the adoption decree, issued by the civil 
authorities, must accompany the petition.
    (A) Legal custody means the assumption of responsibility for a minor 
by an adult under the laws of the state and under the order or approval 
of a court of law or other appropriate government entity. This provision 
requires that a legal process involving the courts or other recognized 
government entity take place. If the adopting parent was granted legal 
custody by the court or recognized governmental entity prior to the 
adoption, that period may be counted toward fulfillment of the two-year 
legal custody requirement. However, if custody was not granted prior to 
the adoption, the adoption decree shall be deemed to mark the 
commencement of legal custody. An informal custodial or guardianship 
document, such as a sworn affidavit signed before a notary public, is 
insufficient for this purpose.
    (B) Evidence must also be submitted to show that the beneficiary 
resided with the petitioner for at least two years. Generally, such 
documentation must establish that the petitioner and the beneficiary 
resided together in a familial relationship. Evidence of parental 
control may include, but is not limited to, evidence that the adoptive 
parent owns or maintains the property where the child resides and 
provides financial support and day-to-day supervision. The evidence must 
clearly indicate the physical living arrangements of the adopted child, 
the adoptive parent(s), and the natural parent(s) for the period of time 
during which the adoptive parent claims to have met the residence 
requirement. When the adopted child continued to reside in the same 
household as a natural parent(s) during the period in which the adoptive 
parent petitioner seeks to establish his or her compliance with this 
requirement, the petitioner has the burden of establishing that he or 
she exercised primary parental control during that period of residence.
    (C) Legal custody and residence occurring prior to or after the 
adoption will satisfy both requirements. Legal custody, like residence, 
is accounted for in the aggregate. Therefore, a break in legal custody 
or residence will not affect the time already fulfilled. To meet the 
definition of child contained in sections 101(b)(1)(E) and 101(b)(2) of 
the Act, the child must have been under 16 years of age when the 
adoption is finalized.
    (D) On or after the Convention effective date, as defined in 8 CFR 
part 204.301, a United States citizen who is habitually resident in the 
United States, as determined under 8 CFR 204.303, may not file a Form I-
130 under this section on behalf of child who was habitually resident in 
a Convention

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country, as determined under 8 CFR 204.303, unless the adoption was 
completed before the Convention effective date. In the case of any 
adoption occurring on or after the Convention effective date, a Form I-
130 may be filed and approved only if the United States citizen 
petitioner was not habitually resident in the United States at the time 
of the adoption.
    (E) For purposes of paragraph (d)(2)(vii)(D) of this section, USCIS 
will deem a United States citizen, 8 CFR 204.303 notwithstanding, to 
have been habitually resident outside the United States, if the citizen 
satisfies the 2-year joint residence and custody requirements by 
residing with the child outside the United States.
    (F) For purposes of paragraph (d)(2)(vii)(D) of this section, USCIS 
will not approve a Form I-130 under section 101(b)(1)(E) of the Act on 
behalf of an alien child who is present in the United States based on an 
adoption that is entered on or after the Convention effective date, but 
whose habitual residence immediately before the child's arrival in the 
United States was in a Convention country. However, the U.S. citizen 
seeking the child's adoption may file a Form I-800A and Form I-800 under 
8 CFR part 204, subpart C.
    (3) Decision on and disposition of petition. The approved petition 
will be forwarded to the Department of State's Processing Center. If the 
beneficiary is in the United States and is eligible for adjustment of 
status under section 245 of the Act, the approved petition will be 
retained by the Service. If the petition is denied, the petitioner will 
be notified of the reasons for the denial and of the right to appeal in 
accordance with the provisions of 8 CFR 3.3.
    (4) Derivative beneficiaries. A spouse or child accompanying or 
following to join a principal alien as used in this section may be 
accorded the same preference and priority date as the principal alien 
without the necessity of a separate petition. However, a child of an 
alien who is approved for classification as an immediate relative is not 
eligible for derivative classification and must have a separate petition 
approved on his or her behalf.
    (5) Name change. When the petitioner's name does not appear on the 
child's birth certificate, evidence of the name change (such as the 
petitioner's marriage certificate, legal document showing name change, 
or other similar evidence) must accompany the petition. If the 
beneficiary's name has been legally changed, evidence of the name change 
must also accompany the petition.
    (e) Self-petition by child of abusive citizen or lawful permanent 
resident--(1) Eligibility. (i) A child may file a self-petition under 
section 204(a)(1)(A)(iv) or 204(a)(1)(B)(iii) of the Act if he or she:
    (A) Is the child of a citizen or lawful permanent resident of the 
United States;
    (B) Is eligible for immigrant classification under section 
201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship;
    (C) Is residing in the United States;
    (D) Has resided in the United States with the citizen or lawful 
permanent resident parent;
    (E) Has been battered by, or has been the subject of extreme cruelty 
perpetrated by, the citizen or lawful permanent resident parent while 
residing with that parent;
    (F) Is a person of good moral character; and
    (G) Is a person whose deportation would result in extreme hardship 
to himself or herself.
    (ii) Parent-child relationship to the abuser. The self-petitioning 
child must be unmarried, less than 21 years of age, and otherwise 
qualify as the abuser's child under the definition of child contained in 
section 101(b)(1) of the Act when the petition is filed and when it is 
approved. Termination of the abuser's parental rights or a change in 
legal custody does not alter the self-petitioning relationship provided 
the child meets the requirements of section 101(b)(1) of the Act.
    (iii) Citizenship or immigration status of the abuser. The abusive 
parent must be a citizen of the United States or a lawful permanent 
resident of the United States when the petition is filed and when it is 
approved. Changes in the abuser's citizenship or lawful permanent 
resident status after the approval will have no effect on the self-
petition. A self-petition approved on the basis of

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a relationship to an abusive lawful permanent resident will not be 
automatically upgraded to immediate relative status. The self-
petitioning child would not be precluded, however, from filing a new 
self-petition for immediate relative classification after the abuser's 
naturalization, provided the self-petitioning child continues to meet 
the self-petitioning requirements.
    (iv) Eligibility for immigrant classification. A self-petitioner is 
required to comply with the provisions of section 204(c) of the Act, 
section 204(g) of the Act, and section 204(a)(2) of the Act.
    (v) Residence. A self-petition will not be approved if the self-
petitioner is not residing in the United States when the self-petition 
is filed. The self-petitioner is not required to be living with the 
abuser when the petition is filed, but he or she must have resided with 
the abuser in the United States in the past.
    (vi) Battery or extreme cruelty. For the purpose of this chapter, 
the phrase ``was battered by or was the subject of extreme cruelty'' 
includes, but is not limited to, being the victim of any act or 
threatened act of violence, including any forceful detention, which 
results or threatens to result in physical or mental injury. 
Psychological or sexual abuse or exploitation, including rape, 
molestation, incest (if the victim is a minor), or forced prostitution 
shall be considered acts of violence. Other abusive actions may also be 
acts of violence under certain circumstances, including acts that, in 
and of themselves, may not initially appear violent but are a part of an 
overall pattern of violence. The qualifying abuse must have been 
committed by the citizen or lawful permanent resident parent, must have 
been perpetrated against the self-petitioner, and must have taken place 
while the self-petitioner was residing with the abuser.
    (vii) Good moral character. A self-petitioner will be found to lack 
good moral character if he or she is a person described in section 
101(f) of the Act. Extenuating circumstances may be taken into account 
if the person has not been convicted of an offense or offenses but 
admits to the commission of an act or acts that could show a lack of 
good moral character under section 101(f) of the Act. A person who was 
subjected to abuse in the form of forced prostitution or who can 
establish that he or she was forced to engage in other behavior that 
could render the person excludable under section 212(a) of the Act would 
not be precluded from being found to be a person of good moral 
character, provided the person has not been convicted for the commission 
of the offense or offenses in a court of law. A self-petitioner will 
also be found to lack good moral character, unless he or she establishes 
extenuating circumstances, if he or she willfully failed or refused to 
support dependents; or committed unlawful acts that adversely reflect 
upon his or her moral character, or was convicted or imprisoned for such 
acts, although the acts do not require an automatic finding of lack of 
good moral character. A self-petitioner's claim of good moral character 
will be evaluated on a case-by-case basis, taking into account the 
provisions of section 101(f) of the Act and the standards of the average 
citizen in the community. If the results of record checks conducted 
prior to the issuance of an immigrant visa or approval of an application 
for adjustment of status disclose that the self-petitioner is no longer 
a person of good moral character or that he or she has not been a person 
of good moral character in the past, a pending self-petition will be 
denied or the approval of a self-petition will be revoked.
    (viii) Extreme hardship. The Service will consider all credible 
evidence of extreme hardship submitted with a self-petition, including 
evidence of hardship arising from circumstances surrounding the abuse. 
The extreme 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.

[[Page 87]]

    (2) Evidence for a child's self-petition--(i) General. Self-
petitioners are encouraged to submit primary evidence whenever possible. 
The Service will consider, however, any credible evidence relevant to 
the petition. The determination of what evidence is credible and the 
weight to be given that evidence shall be within the sole discretion of 
the Service.
    (ii) Relationship. A self-petition filed by a child must be 
accompanied by evidence of citizenship of the United States citizen or 
proof of the immigration status of the lawful permanent resident abuser. 
It must also be accompanied by evidence of the relationship. Primary 
evidence of the relationship between:
    (A) The self-petitioning child and an abusive biological mother is 
the self-petitioner's birth certificate issued by civil authorities;
    (B) A self-petitioning child who was born in wedlock and an abusive 
biological father is the child's birth certificate issued by civil 
authorities, the marriage certificate of the child's parents, and 
evidence of legal termination of all prior marriages, if any;
    (C) A legitimated self-petitioning child and an abusive biological 
father is the child's birth certificate issued by civil authorities, and 
evidence of the child's legitimation;
    (D) A self-petitioning child who was born out of wedlock and an 
abusive biological father is the child's birth certificate issued by 
civil authorities showing the father's name, and evidence that a bona 
fide parent-child relationship has been established between the child 
and the parent;
    (E) A self-petitioning stepchild and an abusive stepparent is the 
child's birth certificate issued by civil authorities, the marriage 
certificate of the child's parent and the stepparent showing marriage 
before the stepchild reached 18 years of age, and evidence of legal 
termination of all prior marriages of either parent, if any; and
    (F) An adopted self-petitioning child and an abusive adoptive parent 
is an adoption decree showing that the adoption took place before the 
child reached 16 years of age, and evidence that the child has been 
residing with and in the legal custody of the abusive adoptive parent 
for at least 2 years.
    (iii) Residence. One or more documents may be submitted showing that 
the self-petitioner and the abuser have resided together in the United 
States. One or more documents may also be submitted showing that the 
self-petitioner is residing in the United States when the self-petition 
is filed. Employment records, school records, hospital or medical 
records, rental records, insurance policies, affidavits or any other 
type of relevant credible evidence of residency may be submitted.
    (iv) Abuse. Evidence of abuse may include, but is not limited to, 
reports and affidavits from police, judges and other court officials, 
medical personnel, school officials, clergy, social workers, and other 
social service agency personnel. Persons who have obtained an order of 
protection against the abuser or taken other legal steps to end the 
abuse are strongly encouraged to submit copies of the relating legal 
documents. Evidence that the abuse victim sought safe-haven in a 
battered women's shelter or similar refuge may be relevant, as may a 
combination of documents such as a photograph of the visibly injured 
self-petitioner supported by affidavits. Other types of credible 
relevant evidence will also be considered. Documentary proof of non-
qualifying abuse may only be used to establish a pattern of abuse and 
violence and to support a claim that qualifying abuse also occurred.
    (v) Good moral character. Primary evidence of the self-petitioner's 
good moral character is the self-petitioner's affidavit. The affidavit 
should be accompanied by a local police clearance or a state-issued 
criminal background check from each locality or state in 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-

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petition. If police clearances, criminal background checks, or similar 
reports are not available for some or all locations, the self-petitioner 
may include an explanation and submit other evidence with his or her 
affidavit. The Service will consider other credible evidence of good 
moral character, such as affidavits from responsible persons who can 
knowledgeably attest to the self-petitioner's good moral character. A 
child who is less than 14 years of age is presumed to be a person of 
good moral character and is not required to submit affidavits of good 
moral character, police clearances, criminal background checks, or other 
evidence of good moral character.
    (vi) Extreme hardship. Evidence of extreme hardship may include 
affidavits, medical reports, protection orders and other court 
documents, police reports, and other relevant credible evidence.
    (3) Decision on and disposition of the petition--(i) Petition 
approved. If the self-petitioning child will apply for adjustment of 
status under section 245 of the Act, the approved petition will be 
retained by the Service. If the self-petitioner will apply for an 
immigrant visa abroad, the approved self-petition will be forwarded to 
the Department of State's National Visa Center.
    (ii) Petition denied. If the self-petition is denied, the self-
petitioner will be notified in writing of the reasons for the denial and 
of the right to appeal the decision.
    (4) Derivative beneficiaries. A child of a self-petitioning child is 
not eligible for derivative classification and must have a petition 
filed on his or her behalf if seeking immigrant classification.
    (5) Name change. If the self-petitioner's current name is different 
than the name shown on the documents, evidence of the name change (such 
as the petitioner's marriage certificate, legal document showing the 
name change, or other similar evidence) must accompany the self-
petition.
    (6) Prima facie determination. (i) Upon receipt of a self-petition 
under paragraph (e)(1) of this section, the Service shall make a 
determination as to whether the petition and the supporting 
documentation establish a ``prima facie case'' for purposes of 8 U.S.C. 
1641, as amended by section 501 of Public Law 104-208.
    (ii) For purposes of paragraph (e)(6)(i) of this section, a prima 
facie case is established only if the petitioner submits a completed 
Form I-360 and other evidence supporting all of the elements required of 
a self-petitioner in paragraph (e)(1) of this section. A finding of 
prima facie eligibility does not relieve the petitioner of the burden of 
providing additional evidence in support of the petition and does not 
establish eligibility for the underlying petition.
    (iii) If the Service determines that a petitioner has made a ``prima 
facie case'' the Service shall issue a Notice of Prima Facie Case to the 
petitioner. Such Notice shall be valid until the Service either grants 
or denies the petition.
    (iv) For purposes of adjudicating the petition submitted under 
paragraph (e)(1) of this section, a prima facie determination:
    (A) Shall not be considered evidence in support of the petition;
    (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

[[Page 89]]

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 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

[[Page 90]]

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 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

[[Page 91]]

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.
    (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)

[[Page 92]]

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.
    (iii) A currently valid petition classifying the married son or 
married daughter of a United States citizen for preference status under 
section 203(a)(3) of the Act shall, upon legal termination of the 
beneficiary's marriage, be regarded as having been approved under 
section 203(a)(1) of the Act if the beneficiary is over twenty-one years 
of age. The beneficiary's priority date is the same as the date the 
petition for classification under section 203(a)(3) of the Act was 
properly filed. If the beneficiary is under twenty-one years of age, the 
petition shall be regarded as having been approved for classification as 
an immediate relative under section 201(b) of the Act as of the date the 
petition for classification under section 203(a)(3) of the Act was 
properly filed.
    (iv) A currently valid visa petition previously approved to classify 
the beneficiary as an immediate relative as the spouse of a United 
States citizen must be regarded, upon the death of the petitioner, as 
having been approved as a Form I-360, Petition for Amerasian, Widow(er) 
or Special Immigrant for classification under paragraph (b) of this 
section, if, on the date of the petitioner's death, the beneficiary 
satisfies the requirements of

[[Page 93]]

paragraph (b)(1) of this section. If the petitioner dies before the 
petition is approved, but, on the date of the petitioner's death, the 
beneficiary satisfies the requirements of paragraph (b)(1) of this 
section, then the petition shall be adjudicated as if it had been filed 
as a Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant 
under paragraph (b) of this section.
    (2) By the beneficiary's attainment of the age of twenty-one years. 
A currently valid petition classifying the child of a United States 
citizen as an immediate relative under section 201(b) of the Act shall 
be regarded as having been approved for preference status under section 
203(a)(1) of the Act as of the beneficiary's twenty-first birthday. The 
beneficiary's priority date is the same as the date the petition for 
section 201(b) classification was filed.
    (3) By the petitioner's naturalization. Effective upon the date of 
naturalization of a petitioner who had been lawfully admitted for 
permanent residence, a currently valid petition according preference 
status under section 203(a)(2) of the Act to the petitioner's spouse and 
unmarried children under twenty-one years of age shall be regarded as 
having been approved for immediate relative status under section 201(b) 
of the Act. Similarly, a currently valid petition according preference 
status under section 203(a)(2) of the Act for the unmarried son or 
daughter over twenty-one years of age shall be regarded as having been 
approved under section 203(a)(1) of the Act. In any case of conversion 
to classification under section 203(a)(1) of the Act, the beneficiary's 
priority date is the same as the date the petition for classification 
under section 203(a)(2) of the Act was properly filed. A self-petition 
filed under section 204(a)(1)(B)(ii) or 204(a)(1)(B)(iii) of the Act 
based on the relationship to an abusive lawful permanent resident of the 
United States for classification under section 203(a)(2) of the Act will 
not be affected by the abuser's naturalization and will not be 
automatically converted to a petition for immediate relative 
classification.

[57 FR 41057, Sept. 9, 1992, as amended at 60 FR 34090, June 30, 1995; 
60 FR 38948, July 31, 1995; 61 FR 13073, 13075, 13077, Mar. 26, 1996; 62 
FR 10336, Mar. 6, 1997; 62 FR 60771, Nov. 13, 1997; 71 FR 35749, June 
21, 2006; 72 FR 19107, Apr. 17, 2007; 72 FR 56853, Oct. 4, 2007]



Sec. 204.3  Orphan cases under section 101(b)(1)(F) of the Act (non-Convention 

cases).

    (a) This section addresses the immigration classification of alien 
orphans as provided for in section 101(b)(1)(F) of the Act.
    (1) Except as provided in paragraph (a)(2) of this section, a child 
who meets the definition of orphan contained in section 101(b)(1)(F) of 
the Act is eligible for classification as the immediate relative of a 
U.S. citizen if:
    (i) The U.S. citizen seeking the child's immigration can document 
that the citizen (and his or her spouse, if any) are capable of 
providing, and will provide, proper care for an alien orphan; and
    (ii) The child is an orphan under section 101(b)(1)(F) of the Act.


A U.S. citizen may submit the documentation necessary for each of these 
determinations separately or at one time, depending on when the orphan 
is identified.
    (2) Form I-600A or Form I-600 may not be filed under this section on 
or after the Convention effective date, as defined in 8 CFR 204.301, on 
behalf of a child who is habitually resident in a Convention country, as 
defined in 8 CFR 204.301. On or after the Convention effective date, 
USCIS may approve a Form I-600 on behalf of a child who is habitually 
resident in a Convention country only if the Form I-600A or Form I-600 
was filed before the Convention effective date.
    (b) Definitions. As used in this section, the term:
    Abandonment by both parents means that the parents have willfully 
forsaken all parental rights, obligations, and claims to the child, as 
well as all control over and possession of the child, without intending 
to transfer, or without transferring, these rights to any specific 
person(s). Abandonment must include not only the intention to

[[Page 94]]

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 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

[[Page 95]]

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 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

[[Page 96]]

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 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

[[Page 97]]

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.
    (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:

[[Page 98]]

    (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 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

[[Page 99]]

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 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

[[Page 100]]

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 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

[[Page 101]]

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 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.

[[Page 102]]

    (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.
    (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

[[Page 103]]

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 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

[[Page 104]]

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 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

[[Page 105]]

shall be forwarded to the Department of State.
    (9) Orphan petition approved by an overseas Service office. If the 
orphan petition is approved by an overseas Service office located in the 
country of the orphan's residence, the prospective adoptive parents 
shall be advised in writing, and the petition and supporting documents 
shall be forwarded to the immigrant visa-issuing post having 
jurisdiction for immigrant visa processing.
    (10) Orphan petition approved at an immigrant visa-issuing post. If 
the orphan petition is approved at an immigrant visa-issuing post, the 
post shall initiate immigrant visa processing.
    (11) Orphan petition found to be ``not readily approvable'' by a 
consular officer. If the consular officer adjudicating the orphan 
petition finds that it is ``not readily approvable,'' he or she shall 
notify the prospective adoptive parents in his or her consular district 
and forward the petition, the supporting documents, the findings of the 
I-604 investigation conducted pursuant to paragraph (k)(1) of this 
section, and any other relating documentation to the overseas Service 
office having jurisdiction pursuant to Sec. 100.4(b) of this chapter.
    (12) Orphan petition denied: petitioner fails to establish that the 
child is an orphan. If the director finds that the petitioner has failed 
to establish that the child is an orphan who is eligible for the 
benefits sought, the applicable provisions of 8 CFR part 103 regarding a 
letter of intent to deny and notification of appeal rights shall govern.
    (13) Orphan petition denied: petitioner files orphan petition more 
than eighteen months after the approval of the advanced processing 
application. If the petitioner files the orphan petition more than 
eighteen months after the approval date of the advanced processing 
application, the petition shall be denied. This action shall be without 
prejudice to a new filing at any time with fee.
    (14) Revocation. The approval of an advanced processing application 
or an orphan petition shall be automatically revoked in accordance with 
Sec. 205.1 of this chapter, if an applicable reason exists. The 
approval of an advanced processing application or an orphan petition 
shall be revoked if the director becomes aware of information that would 
have resulted in denial had it been known at the time of adjudication. 
Such a revocation or any other revocation on notice shall be made in 
accordance with Sec. 205.2 of this chapter.
    (i) Child-buying as a ground for denial. An orphan petition must be 
denied under this section if the prospective adoptive parents or 
adoptive parent(s), or a person or entity working on their behalf, have 
given or will given money or other consideration either directly or 
indirectly to the child's parent(s), agent(s), other individual(s), or 
entity as payment for the child or as an inducement to release the 
child. Nothing in this paragraph shall be regarded as precluding 
reasonable payment for necessary activities such as administrative, 
court, legal, translation, and/or medical services related to the 
adoption proceedings.
    (j) Telegraphic notifications--(1) Telegraphic notification of 
approval of advanced processing application. Unless conditions preclude 
normal telegraphic transmissions, whenever an advanced processing 
application is approved in the United States, the director shall send 
telegraphic notification of the approval to the overseas site if a 
prospective adoptive parent advises the director that the petitioner 
intends to travel abroad and file the orphan petition abroad.
    (2) Requesting a change in visa-issuing posts. If a prospective 
adoptive parent is in the United States, he or she may request the 
director to transfer notification of the approved advanced processing 
application to another visa-issuing post. Such a request shall be made 
on Form I-824 (Application for 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

[[Page 106]]

cable previously sent to your post/office in this matter is hereby 
invalidated. The approval is being transferred to the other post/office 
addressed in this telegram. Please forward the approved advanced 
processing application to that destination.'' Prior to sending such a 
telegram, the director must ensure that the change in posts does not 
alter any conditions of the approval.
    (3) Telegraphic notification of approval of an orphan petition. 
Unless conditions preclude normal telegraphic transmissions, whenever a 
petition is approved by a stateside Service office, the director shall 
send telegraphic notification of the approval to the immigrant visa-
issuing post.
    (k) Other considerations--(1) I-604 investigations. An I-604 
investigation must be completed in every orphan case. The investigation 
must be completed by a consular officer except when the petition is 
properly filed at a Service office overseas, in which case it must be 
completed by a Service officer. An I-604 investigation shall be 
completed before a petition is adjudicated abroad. When a petition is 
adjudicated by a stateside Service office, the I-604 investigation is 
normally completed after the case has been forwarded to visa-issuing 
post abroad. However, in a case where the director of a stateside 
Service office adjudicating the petition has articulable concerns that 
can only be resolved through the I-604 investigation, he or she shall 
request the investigation prior to adjudication. In any case in which 
there are significant differences between the facts presented in the 
approved advanced processing application and/or orphan petition and the 
facts uncovered by the I-604 investigation, the overseas site may 
consult directly with the appropriate Service office. In any instance 
where an I-604 investigation reveals negative information sufficient to 
sustain a denial or revocation, the investigation report, supporting 
documentation, and petition shall be forwarded to the appropriate 
Service office for action. Depending on the circumstances surrounding 
the case, the I-604 investigation shall include, but shall not 
necessarily be limited to, document checks, telephonic checks, 
interview(s) with the natural parent(s), and/or a field investigation.
    (2) Authority of consular officers. An American consular officer is 
authorized to approve an orphan petition if the Service has made a 
favorable determination on the related advanced processing application, 
and the petitioner, who has traveled abroad to a country with no Service 
office in order to locate or adopt an orphan, has properly filed the 
petition, and the petition is approvable. A consular officer, however, 
shall refer any petition which is ``not clearly approvable'' for a 
decision by the Service office having jurisdiction pursuant to Sec. 
100.4(b) of this chapter. The consular officer's adjudication includes 
all aspects of eligibility for classification as an orphan under section 
101(b)(1)(F) of the Act other than the issue of the ability of the 
prospective adoptive parents to furnish proper care to the orphan. 
However, if the consular officer has a well-founded and substantive 
reason to believe that the advanced processing approval was obtained on 
the basis of fraud or misrepresentation, or has knowledge of a change in 
material fact subsequent to the approval of the advanced processing 
application, he or she shall consult with the Service office having 
jurisdiction pursuant to Sec. 100.4(b) of this chapter.
    (3) Child in the United States. A child who is in parole status and 
who has not been adopted in the United States is eligible for the 
benefits of an orphan petition when all the requirements of sections 
101(b)(1)(F) and 204 (d) and (e) of the Act have been met. A child in 
the United States either illegally or as a nonimmigrant, however, is 
ineligible for the benefits of an orphan petition.
    (4) Liaison. Each director shall develop and maintain liaison with 
State 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

[[Page 107]]

adoption agencies, organizations representing adoptive parents, and 
adoption attorneys.

[59 FR 38881, Aug. 1, 1994; 59 FR 42878, Aug. 19, 1994, as amended at 63 
FR 12986, Mar. 17, 1998; 68 FR 46926, Aug. 7, 2003; 72 FR 56853, Oct. 4, 
2007]



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 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;

[[Page 108]]

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

[[Page 109]]

the terms of the sponsorship are being observed. A report from the 
agency concerning the placement, including information regarding any 
family separation or dislocation abroad that results from the placement, 
must also be submitted. In addition, the agency must submit to the 
Director, Outreach Program, Immigration and Naturalization Service, 
Washington, DC, within 90 days of each occurrence, reports of any 
breakdowns in sponsorship that occur, and reports of the steps taken to 
remedy these breakdowns. The petitioner must also submit a statement 
from the agency:
    (1) Indicating that, before signing the sponsorship agreement, the 
sponsor has been provided a report covering pre-placement screening and 
evaluation, including a health evaluation, of the beneficiary;
    (2) Describing the agency's orientation of both the sponsor and the 
beneficiary on the legal and cultural aspects of the placement;
    (3) Describing the initial facilitation of the placement through 
introduction, translation, and similar services; and
    (4) Describing the contingency plans to place the beneficiary in 
another suitable home if the initial placement fails. The new sponsor 
must execute and submit a Form I-361 to the Service office having 
jurisdiction over the beneficiary's residence in the United States. The 
original sponsor nonetheless retains financial responsibility for the 
beneficiary under the terms of the guarantee of financial support and 
intent to petition for legal custody which that sponsor executed, unless 
that responsibility is assumed by a new sponsor. In the event that the 
new sponsor does not comply with the terms of the new guarantee of 
financial support and intent to petition for legal custody and if, for 
any reason, that guarantee is not enforced, the original sponsor again 
becomes financially responsible for the beneficiary.
    (2) One-stage processing of petition. If the petitioner chooses to 
have the petition processed under the one-stage processing procedure 
described in paragraph (e) of this section, the petitioner must submit 
all evidence required by paragraph (f)(1) of this section.
    (g) Decision--(1) General. The director shall notify the petitioner 
of the decision and, if the petition is denied, of the reasons for the 
denial. If the petition is denied, the petitioner may appeal the 
decision under part 103 of this chapter.
    (2) Denial upon completion of preliminary processing. The director 
may deny the petition upon completion of the preliminary processing 
under paragraph (d) of this section for:
    (i) Failure to establish that there is reason to believe the alien 
was fathered by a United States citizen; or
    (ii) Failure to meet the sponsorship requirements if the 
fingerprints of the sponsor, required in paragraph (f)(1) of this 
section, were submitted during the preliminary processing and the 
completed background check of the sponsor discloses adverse information 
resulting in a finding that the sponsor is not of good moral character.
    (3) Denial upon completion of final processing. The director may 
deny the petition upon completion of final processing if it is 
determined that the sponsorship requirements, or one or more of the 
other applicable requirements, have not been met.
    (4) Denial upon completion of one-stage processing. The director may 
deny the petition upon completion of all processing if any of the 
applicable requirements in a case being processed under the one-stage 
processing described in paragraph (e) of this section are not met.
    (h) Classification of Public Law 97-359 Amerasian. If the petition 
is approved the beneficiary is classified as follows:
    (1) An unmarried beneficiary under the age of twenty-one is 
classified as the child of a United States citizen under section 201(b) 
of the Act;
    (2) An unmarried beneficiary twenty-one years of age or older is 
classified as the unmarried son or daughter of a United States citizen 
under section 203(a)(1) of the Act; and
    (3) A married beneficiary is classified as the married son or 
daughter of a 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

[[Page 110]]

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 before 
October 1, 1991, Form I-360 may be accepted and adjudicated at a Service 
District Office or sub-office.
    (e) Retention of section 203(b) (1), (2), or (3) priority date. A 
petition approved on behalf of an alien under sections 203(b) (1), (2), 
or (3) of the Act accords the alien the priority date of the approved

[[Page 111]]

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

[[Page 112]]

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

[[Page 113]]

or she had full responsibility for the class taught or if the research 
conducted toward the degree has been recognized within the academic 
field as outstanding. Evidence of teaching and/or research experience 
shall be in the form of letter(s) from current or former employer(s) and 
shall include the name, address, and title of the writer, and a specific 
description of the duties performed by the alien; and
    (iii) An offer of employment from a prospective United States 
employer. A labor certification is not required for this classification. 
The offer of employment shall be in the form of a letter from:
    (A) A United States university or institution of higher learning 
offering the alien a tenured or tenure-track teaching position in the 
alien's academic field;
    (B) A United States university or institution of higher learning 
offering the alien a permanent research position in the alien's academic 
field; or
    (C) A department, division, or institute of a private employer 
offering the alien a permanent research position in the alien's academic 
field. The department, division, or institute must demonstrate that it 
employs at least three persons full-time in research positions, and that 
it has achieved documented accomplishments in an academic field.
    (j) Certain multinational executives and managers. (1) A United 
States employer may file a petition on Form I-140 for classification of 
an alien under section 203(b)(1)(C) of the Act as a multinational 
executive or manager.
    (2) Definitions. As used in this section:
    Affiliate means:
    (A) One of two subsidiaries both of which are owned and controlled 
by the same parent or individual;
    (B) One of two legal entities owned and controlled by the same group 
of individuals, each individual owning and controlling approximately the 
same share or proportion of each entity; or
    (C) In the case of a partnership that is organized in the United 
States to provide accounting services, along with managerial and/or 
consulting services, and markets its accounting services under an 
internationally recognized name under an agreement with a worldwide 
coordinating organization that is owned and controlled by the member 
accounting firms, a partnership (or similar organization) that is 
organized outside the United States to provide accounting' services 
shall be considered to be an affiliate of the United States partnership 
if it markets its accounting services under the same internationally 
recognized name under the agreement with the worldwide coordinating 
organization of which the United States partnership is also a member.
    Doing business means the regular, systematic, and continuous 
provision of goods and/or services by a firm, corporation, or other 
entity and does not include the mere presence of an agent or office.
    Executive capacity means an assignment within an organization in 
which the employee primarily:
    (A) Directs the management of the organization or a major component 
or function of the organization;
    (B) Establishes the goals and policies of the organization, 
component, or function;
    (C) Exercises wide latitude in discretionary decisionmaking; and
    (D) Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization.
    Managerial capacity means an assignment within an organization in 
which the employee primarily:
    (A) Manages the organization, or a department, subdivision, 
function, or component of the organization;
    (B) Supervises and controls the work of other supervisory, 
professional, or managerial employees, or manages an essential function 
within the organization, or a department or subdivision of the 
organization;
    (C) If another employee or other employees are directly supervised, 
has the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or, if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and
    (D) Exercises direction over the day-to-day operations of the 
activity or

[[Page 114]]

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

[[Page 115]]

least five years of progressive experience in the specialty shall be 
considered the equivalent of a master's degree. If a doctoral degree is 
customarily required by the specialty, the alien must have a United 
States doctorate or a foreign equivalent degree.
    Exceptional ability in the sciences, arts, or business means a 
degree of expertise significantly above that ordinarily encountered in 
the sciences, arts, or business.
    Profession means one of the occupations listed in section 101(a)(32) 
of the Act, as well as any occupation for which a United States 
baccalaureate degree or its foreign equivalent is the minimum 
requirement for entry into the occupation.
    (3) Initial evidence. The petition must be accompanied by 
documentation showing that the alien is a professional holding an 
advanced degree or an alien of exceptional ability in the sciences, the 
arts, or business.
    (i) To show that the alien is a professional holding an advanced 
degree, the petition must be accompanied by:
    (A) An official academic record showing that the alien has a United 
States advanced degree or a foreign equivalent degree; or
    (B) An official academic record showing that the alien has a United 
States baccalaureate degree or a foreign equivalent degree, and evidence 
in the form of letters from current or former employer(s) showing that 
the alien has at least five years of progressive post-baccalaureate 
experience in the specialty.
    (ii) To show that the alien is an alien of exceptional ability in 
the sciences, arts, or business, the petition must be accompanied by at 
least three of the following:
    (A) An official academic record showing that the alien has a degree, 
diploma, certificate, or similar award from a college, university, 
school, or other institution of learning relating to the area of 
exceptional ability;
    (B) Evidence in the form of letter(s) from current or former 
employer(s) showing that the alien has at least ten years of full-time 
experience in the occupation for which he or she is being sought;
    (C) A license to practice the profession or certification for a 
particular profession or occupation;
    (D) Evidence that the alien has commanded a salary, or other 
renumeration for services, which demonstrates exceptional ability;
    (E) Evidence of membership in professional associations; or
    (F) Evidence of recognition for achievements and significant 
contributions to the industry or field by peers, governmental entities, 
or professional or business organizations.
    (iii) If the above standards do not readily apply to the 
beneficiary's occupation, the petitioner may submit comparable evidence 
to establish the beneficiary's eligibility.
    (4) Labor certification or evidence that alien qualifies for Labor 
Market Information Pilot Program--(i) General. Every petition under this 
classification must be accompanied by an individual labor certification 
from the Department of Labor, by an application for Schedule A 
designation (if applicable), or by documentation to establish that the 
alien qualifies for one of the shortage occupations in the Department of 
Labor's Labor Market Information Pilot Program. To apply for Schedule A 
designation or to establish that the alien's occupation is within the 
Labor Market Information Program, a fully executed uncertified Form ETA-
750 in duplicate must accompany the petition. The job offer portion of 
the individual labor certification, Schedule A application, or Pilot 
Program application must demonstrate that the job requires a 
professional holding an advanced degree or the equivalent or an alien of 
exceptional ability.
    (ii) Exemption from job offer. The director may exempt the 
requirement of a job offer, and thus of a labor certification, for 
aliens of exceptional ability in the sciences, arts, or business if 
exemption would be in the national interest. To apply for the exemption, 
the petitioner must submit Form ETA-750B, Statement of Qualifications of 
Alien, in duplicate, as well as evidence to support the claim that such 
exemption would be in the national interest.
    (l) Skilled workers, professionals, and other workers. (1) Any 
United States employer may file a petition on Form

[[Page 116]]

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

[[Page 117]]

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

[[Page 118]]

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

[[Page 119]]

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

[[Page 120]]

    (D) The alien's completion of the denomination's requirements for 
ordination.
    (10) Evidence relating to compensation. Initial evidence must 
include verifiable evidence of how the petitioner intends to compensate 
the alien. Such compensation may include salaried or non-salaried 
compensation. This evidence may include past evidence of compensation 
for similar positions; budgets showing monies set aside for salaries, 
leases, etc.; verifiable documentation that room and board will be 
provided; or other evidence acceptable to USCIS. If IRS documentation, 
such as IRS Form W-2 or certified tax returns, is available, it must be 
provided. If IRS documentation is not available, an explanation for its 
absence must be provided, along with comparable, verifiable 
documentation.
    (11) Evidence relating to the alien's prior employment. Qualifying 
prior experience during the two years immediately preceding the petition 
or preceding any acceptable break in the continuity of the religious 
work, must have occurred after the age of 14, and if acquired in the 
United States, must have been authorized under United States immigration 
law. If the alien was employed in the United States during the two years 
immediately preceding the filing of the application and:
    (i) Received salaried compensation, the petitioner must submit IRS 
documentation that the alien received a salary, such as an IRS Form W-2 
or certified copies of income tax returns.
    (ii) Received non-salaried compensation, the petitioner must submit 
IRS documentation of the non-salaried compensation if available.
    (iii) Received no salary but provided for his or her own support, 
and provided support for any dependents, the petitioner must show how 
support was maintained by submitting with the petition additional 
documents such as audited financial statements, financial institution 
records, brokerage account statements, trust documents signed by an 
attorney, or other verifiable evidence acceptable to USCIS.
    If the alien was employed outside the United States during such two 
years, the petitioner must submit comparable evidence of the religious 
work.
    (12) Inspections, evaluations, verifications, and compliance 
reviews. The supporting evidence submitted may be verified by USCIS 
through any means determined appropriate by USCIS, up to and including 
an on-site inspection of the petitioning organization. The inspection 
may include a tour of the organization's facilities, an interview with 
the organization's officials, a review of selected organization records 
relating to compliance with immigration laws and regulations, and an 
interview with any other individuals or review of any other records that 
the USCIS considers pertinent to the integrity of the organization. An 
inspection may include the organization headquarters, satellite 
locations, or the work locations planned for the applicable employee. If 
USCIS decides to conduct a pre-approval inspection, satisfactory 
completion of such inspection will be a condition for approval of any 
petition.
    (n) Closing action--(1) Approval. An approved employment-based 
petition will be forwarded to the National Visa Center of the Department 
of State if the beneficiary resides outside of the United States. If the 
Form I-140 petition indicates that the alien has filed or will file an 
application for adjustment to permanent residence in the United States 
(Form I-485) the approved visa petition (Form I-140), will be retained 
by the Service for consideration with the application for permanent 
residence (Form I-485). If a visa is available, and Form I-485 has not 
been filed, the alien will be instructed on the Form I-797, Notice of 
Action, (mailed out upon approval of the Form I-140 petition) to file 
the Form I-485.
    (2) Denial. The denial of a petition for classification under 
section 203(b)(1), 203(b)(2), 203(b)(3), or 203(b)(4) of the Act (as it 
relates to special immigrants under section 101(a)(27)(C) of the Act) 
shall be appealable to the Associate Commissioner for Examinations. The 
petitioner shall be informed in plain language of the reasons for denial 
and of his or her right to appeal.
    (3) Validity of approved petitions. Unless revoked under section 
203(e) or 205

[[Page 121]]

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; 73 FR 72291, Nov. 26, 2008]

    Effective Date Note: At 73 FR 78127, Dec. 19, 2008, Sec. 204.5 was 
amended by adding paragraph (o), effective Jan. 18, 2009. For the 
convenience of the user, the added text is set forth as follows:



Sec. 204.5  Petitions for employment-based immigrants.

                                * * * * *

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



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

[[Page 122]]

working hours per week. In the case of the Immigrant Investor Pilot 
Program, ``full-time employment'' also means employment of a qualifying 
employee in a position that has been created indirectly through revenues 
generated from increased exports resulting from the Pilot Program that 
requires a minimum of 35 working hours per week. A job-sharing 
arrangement whereby two or more qualifying employees share a full-time 
position shall count as full-time employment provided the hourly 
requirement per week is met. This definition shall not include 
combinations of part-time positions even if, when combined, such 
positions meet the hourly requirement per week.
    High employment area means a part of a metropolitan statistical area 
that at the time of investment:
    (i) Is not a targeted employment area; and
    (ii) Is an area with an unemployment rate significantly below the 
national average unemployment rates.
    Invest means to contribute capital. A contribution of capital in 
exchange for a note, bond, convertible debt, obligation, or any other 
debt arrangement between the alien entrepreneur and the new commercial 
enterprise does not constitute a contribution of capital for the 
purposes of this part.
    New means established after November 29, 1990.
    Qualifying employee means a United States citizen, a lawfully 
admitted permanent resident, or other immigrant lawfully authorized to 
be employed in the United States including, but not limited to, a 
conditional resident, a temporary resident, an asylee, a refugee, or an 
alien remaining in the United States under suspension of deportation. 
This definition does not include the alien entrepreneur, the alien 
entrepreneur's spouse, sons, or daughters, or any nonimmigrant alien.
    Regional center means any economic unit, public or private, which is 
involved with the promotion of economic growth, including increased 
export sales, improved regional productivity, job creation, and 
increased domestic capital investment.
    Rural area means any area not within either a metropolitan 
statistical area (as designated by the Office of Management and Budget) 
or the outer boundary of any city or town having a population of 20,000 
or more.
    Targeted employment area means an area which, at the time of 
investment, is a rural area or an area which has experienced 
unemployment of at least 150 percent of the national average rate.
    Troubled business means a business that has been in existence for at 
least two years, has incurred a net loss for accounting purposes 
(determined on the basis of generally accepted accounting principles) 
during the twelve- or twenty-four month period prior to the priority 
date on the alien entrepreneur's Form I-526, and the loss for such 
period is at least equal to twenty percent of the troubled business's 
net worth prior to such loss. For purposes of determining whether or not 
the troubled business has been in existence for two years, successors in 
interest to the troubled business will be deemed to have been in 
existence for the same period of time as the business they succeeded.
    (f) Required amounts of capital--(1) General. Unless otherwise 
specified, the amount of capital necessary to make a qualifying 
investment in the United States is one million United States dollars 
($1,000,000).
    (2) Targeted employment area. The amount of capital necessary to 
make a qualifying investment in a targeted employment area within the 
United States is five hundred thousand United States dollars ($500,000).
    (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

[[Page 123]]

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

[[Page 124]]

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

[[Page 125]]

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

[[Page 126]]

city or town with a population of 20,000 or more in which the enterprise 
is principally doing business has been designated a high unemployment 
area. The letter must meet the requirements of 8 CFR 204.6(i).
    (k) Decision. The petitioner will be notified of the decision, and, 
if the petition is denied, of the reasons for the denial and of the 
petitioner's right of appeal to the Associate Commissioner for 
Examinations in accordance with the provisions of part 103 of this 
chapter. The decision must specify whether or not the new commercial 
enterprise is principally doing business within a targeted employment 
area.
    (l) Disposition of approved petition. The approved petition will be 
forwarded to the United States consulate selected by the petitioner and 
indicated on the petition. If a consulate has not been designated, the 
petition will be forwarded to the consulate having jurisdiction over the 
place of the petitioner's last residence abroad. If the petitioner is 
eligible for adjustment of status to conditional permanent residence, 
and if the petition indicates that the petitioner intends to apply for 
such adjustment, the approved petition will be retained by the Service 
for consideration in conjunction with the application for adjustment of 
status.
    (m) Immigrant Investor Pilot Program--(1) Scope. The Immigrant 
Investor Pilot Program is established solely pursuant to the provisions 
of section 610 of the Departments of Commerce, Justice, and State, the 
Judiciary, and Related Agencies Appropriation Act, and subject to all 
conditions and restrictions stipulated in that section. Except as 
provided herein, aliens seeking to obtain immigration benefits under 
this paragraph continue to be subject to all conditions and restrictions 
set forth in section 203(b)(5) of the Act and this section.
    (2) Number of immigrant visas allocated. The annual allocation of 
the visas available under the Immigrant Investor Pilot Program is set at 
300 for each of the five fiscal years commencing on October 1, 1993.
    (3) Requirements for regional centers. Each regional center wishing 
to participate in the Immigrant Investor Pilot Program shall submit a 
proposal to the Assistant Commissioner for Adjudications, which:
    (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

[[Page 127]]

the procedure for appeal shall be the same as those contained in 8 CFR 
103.3.
    (6) Termination of participation of regional centers. To ensure that 
regional centers continue to meet the requirements of section 610(a) of 
the Appropriations Act, the Assistant Commissioner for Adjudications 
shall issue a notice of intent to terminate the participation of a 
regional center in the pilot program upon a determination that the 
regional center no longer serves the purpose of promoting economic 
growth, including increased export sales, improved regional 
productivity, job creation, and increased domestic capital investment. 
The notice of intent to terminate shall be made upon notice to the 
regional center and shall set forth the reasons for termination. The 
regional center must be provided thirty days from receipt of the notice 
of intent to terminate to offer evidence in opposition to the ground or 
grounds alleged in the notice of intent to terminate. If the Assistant 
Commissioner for Adjudications determines that the regional center's 
participation in the Pilot Program should be terminated, the Assistant 
Commissioner for Adjudications shall notify the regional center of the 
decision and of the reasons for termination. The regional center may 
appeal the decision within thirty days after the service of notice to 
the Associate Commissioner for Examinations as provided in 8 CFR 103.3.
    (7) Requirements for alien entrepreneurs. An alien seeking an 
immigrant visa as an alien entrepreneur under the Immigrant Investor 
Pilot Program must demonstrate that his or her qualifying investment is 
within a regional center approved pursuant to paragraph (m)(4) of this 
section and that such investment will create jobs indirectly through 
revenues generated from increased exports resulting from the new 
commercial enterprise.
    (i) Exports. For purposes of paragraph (m) of this section, the term 
``exports'' means services or goods which are produced directly or 
indirectly through revenues generated from a new commercial enterprise 
and which are transported out of the United States;
    (ii) Indirect job creation. To show that 10 or more jobs are 
actually created indirectly by the business, reasonable methodologies 
may be used. Such 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]

[[Page 128]]



Sec. 204.8  Petitions for employees of certain United States businesses 

operating in Hong Kong.

    (a) General. A petition to accord an alien status as an employee of 
a United States business operating in Hong Kong pursuant to section 124 
of the Immigration Act of 1990 shall be filed by the employer on Form I-
140, Immigrant Petition for Alien Worker. Since section 124 provides for 
up to 12,000 additional visa numbers only in each of fiscal years 1991 
through 1993, petitions for these employees will not be accepted after 
September 30, 1993.
    (b) Definitions. As used in this section:
    Affiliate means one of two subsidiaries both of which are owned and 
controlled by the same parent or individual or one of two legal entities 
owned and controlled by the same group of individuals, each individual 
owning and controlling approximately the same share or proportion of 
each entity. Effective October 1, 1991, in the case of a partnership 
that is organized in the United States to provide accounting services 
along with managerial and consulting services and that markets its 
accounting services under an internationally recognized name under an 
agreement with a worldwide coordinating organization that is owned and 
controlled by the member accounting firms, a partnership (or similar 
organization) that is organized outside the United States to provide 
accounting services shall be considered to be an affiliate of the United 
States partnership if its markets its accounting services under the same 
internationally recognized name under the agreement with the worldwide 
coordinating organization of which the United States partnership is also 
a member.
    Executive capacity means an assignment within an organization in 
which the employee primarily:
    (i) Directs the management of the organization or a major component 
or function of the organization;
    (ii) Establishes the goals and policies of the organization, 
component, or function;
    (iii) Exercises wide latitude in discretionary decision-making; and
    (iv) Receives only general supervision or direction from higher 
level 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

[[Page 129]]

half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control 
and veto power; or owns, directly or indirectly, less than half the 
entity, but in fact controls the entity.
    Supervisor means any individual having authority, in the interest of 
the employer, to hire, transfer, suspend, lay off, recall, promote, 
discharge, assign, award, or discipline other employees, or 
responsibility to direct them, or to adjust their grievances, or 
effectively recommend such action, if in connection with the foregoing, 
the exercise of such authority is not merely of a routine or clerical 
nature, but requires the use of independent judgement.
    United States business, as used in this section, means an entity or 
organization created under the laws of the United States which has a 
United States principal place of business and which is at least 50 
percent owned by United States citizens or permanent residents.
    (c) Jurisdiction. The petition must be filed at the Service Center 
having jurisdiction over the corporate headquarters of the business in 
the United States. There will be no concurrent filing of a petition with 
an application for status as a permanent resident (Form I-485).
    (d) Eligibility. The alien beneficiary must:
    (1) Be a resident of Hong Kong who:
    (i) Is employed in Hong Kong and has been employed in Hong Kong 
during the 12 previous consecutive months; or
    (ii) Is employed outside of Hong Kong during a temporary absence 
(i.e., of limited duration) from Hong Kong at the request of the 
employer and had been employed in Hong Kong for 12 consecutive months 
prior to such absence(s); and
    (2) Be employed as an officer or supervisor or in a capacity that is 
managerial or executive or involves specialized knowledge, by a 
qualifying business entity. A qualifying business entity is one which:
    (i) Is owned and organized in the United States (or is the 
subsidiary or affiliate of a business owned and organized in the United 
States);
    (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

[[Page 130]]

immediate immigration is intended, a specific job description must be 
included with the employer's attestation. If immigration will be 
deferred, a simple commitment by the employer that a qualifying job will 
be available in the United States will be acceptable. Prior to seeking 
admission to the United States, a deferred visa applicant must present a 
specific job description letter for redetermination of eligibility. Such 
letter shall be presented to the visa-issuing consular post, or to the 
Service office where the alien is applying for adjustment of status in 
the United States.
    (g) Closing action--(1) Approval. If the alien is residing in Hong 
Kong, an approved petition will be forwarded for visa processing to the 
United States Consulate at Hong Kong. Whether the alien is in Hong Kong 
or is adjusting in the United States, the legend ``HONG KONG SEC. 124'' 
will be clearly printed in the block used for indicating preference at 
the top of Form I-140.
    (2) Denial. The denial of a petition filed under this provision 
shall be appealable to the Associate Commissioner, Examinations. 
Notification of denial and appeal rights, and the procedure for appeal 
shall be the same as those contained in 8 CFR 103.3.
    (3) Revocation. A petition approved under this provision shall be 
automatically revoked for the same reasons provided in 8 CFR 205.1(c). 
The procedure for revocation on notice shall be the procedure described 
in 8 CFR 205.2. Termination of employment shall be grounds for automatic 
revocation; however, a transfer within the same company to a different 
division, section, subsidiary, or affiliate (regardless of geographical 
location) will not be disqualifying.

[56 FR 23210, May 21, 1991, as amended at 57 FR 14792, 14793, Apr. 23, 
1992]



Sec. 204.9  Special immigrant status for certain aliens who have served 

honorably (or are enlisted to serve) in the Armed Forces of the United States 

for at least 12 years.

    (a) Petition for Armed Forces special immigrant. An alien may not be 
classified as an Armed Forces special immigrant unless the alien is the 
beneficiary of an approved petition to classify such an 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

[[Page 131]]

the spouse or child is named in the petition and without the approval of 
a separate petition, but only if the executive department under which 
the immigrant serves or served recommends the granting of special 
immigrant status to the principal immigrant.
    (1) The relationship of spouse and child as defined in section 
101(b)(1) of the Act must have existed at the time the principal alien's 
special immigrant application under section 101(a)(27)(K) of the Act was 
approved. The spouse or child of an immigrant classified as a section 
103(a)(27)(K) special immigrant is entitled to a derivative status 
corresponding to the classification and priority date of the beneficiary 
of the petition.
    (2) When a spouse or child of an alien granted special immigrant 
status under section 101(a)(27)(K) of the Act is in the United States 
but was not included in the principal alien's application, the spouse or 
child shall file Form I-485, Application to Register Permanent Residence 
or Adjust Status, with the director having jurisdiction over his or her 
place of residence, regardless of the status of that spouse or child in 
the United States. The application must be supported by evidence that 
the principal alien has been granted special immigrant status under 
section 101(a)(27)(K) of the Act.
    (3) Revocation of derivative status. The termination of special 
immigrant status for a person who was the principal applicant shall 
result in termination of the special immigrant status of a spouse or 
child whose status was based on the special immigrant application of the 
principal.
    (d) Documents which must be submitted in support of the petition. 
(1) A petition to classify an immigrant as a special immigrant under 
section 101(a)(27)(K) of the Act must be accompanied by the following:
    (i) Certified proof of reenlistment (after 6 years of active duty 
service), or certification of past active duty status of 12 years, 
issued by the authorizing official of the executive department in which 
the applicant serves or has served, which certifies that the applicant 
has the required honorable active duty service and commitment. The 
authorizing official need not be at a level 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 132]]

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 or engineer 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. USCIS must approve a 
petition filed on behalf of the alien on or before September 30, 2006, 
or until 950 petitions have been approved on behalf of eligible 
scientists, whichever is earliest.
    (b) Definitions. As used in this section the term:
    Baltic states mean the sovereign nations of Latvia, Lithuania, and 
Estonia.
    Eligible independent states and Baltic scientists means aliens:
    (1) Who are nationals of any of the independent states of the former 
Soviet Union or the Baltic states; and
    (2) Who are scientists or engineers who have expertise in nuclear, 
chemical, biological, or other 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 nuclear, chemical, 
biological, or other high-technology defense projects, as defined by the 
Secretary of Homeland Security, that are clearly applicable to 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.
    (c) Filing requirements--(1) Application form and time limits. A 
petition to classify an alien under section 203(b)(2)(A) of the Act as a 
scientist from 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 by 
anyone on the alien's behalf. Such petition must be properly filed with 
all initial evidence described in paragraph (e) of this section by 
September 30, 2006 or before the limit of 950 visas has been reached, 
whichever is earliest. To clarify that the petition is for a Soviet 
scientist, the petitioner should clearly print the words ``SOVIET 
SCIENTIST'' in Part 2 of Form I-140 and check block ``d'', indicating 
the petition is for a member of the professions holding an advanced 
degree or an alien of exceptional ability.
    (2) 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.
    (d) Priority date. The priority date of any petition filed for this 
classification is the date the completed, signed petition (including all 
initial evidence as defined in paragraph (e) of this section and the 
correct fee) is properly filed with the USCIS.
    (e) Initial evidence. The petition 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 as defined 
in paragraph (b) of this section. Such evidence may include, 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) A letter from the Department of State, Bureau of 
Nonproliferation that verifies that the alien possesses expertise in 
nuclear, chemical, biological, or other high-technology field or who has 
prior or current work experience in high-technology defense projects 
which are clearly applicable to the design, development, or production 
of ballistic missiles, nuclear, biological, chemical, or other high-
technology weapons of mass destruction and endorses the applicant as 
having exceptional ability in one or more of these fields. Such 
endorsement shall establish that the

[[Page 133]]

alien possesses exceptional ability in the relevant field.
    (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. USCIS 
may consult with other United States Government agencies, such as the 
Departments of Defense and Energy or other relevant agencies with 
expertise in nuclear, chemical, biological, or other high-technology 
defense projects. USCIS may, in its discretion, accept a favorable 
report from such agencies as evidence in addition to the documentation 
prescribed under paragraph (e) of this section.
    (h) Aliens previously granted permanent residence. No alien 
previously granted lawful permanent residence may request or be granted 
classification or any benefits under this provision.
    (i) Decision--(1) Approval. If the petition is approved and the 
beneficiary is outside the United States the applicant will be notified 
of the decision and the petition will be forwarded to the National Visa 
Center. If the beneficiary is in the United States and seeks to apply 
for adjustment of status, the petition will be retained by USCIS.
    (2) Denial. If the petition is denied, the petitioner will be 
advised of the decision and of the right to appeal in accordance with 8 
CFR part 103.
    (j) Rejection. Petitions filed under this provision on or after 
September 30, 2006 or after the limit of 950 visas has been reached will 
be rejected and the fee refunded.

[70 FR 21131, Apr. 25, 2005]



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 vacated, terminated, or otherwise ended; and
    (6) Has been the subject of judicial proceedings or administrative 
proceedings authorized or recognized by

[[Page 134]]

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 the aggregate 5 years of qualifying full-time clinical practice 
during the 6-year period beginning on the date of the

[[Page 135]]

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 may be required to submit supplemental 
evidence noted in paragraph (c) of this section. The requirement that 
supplemental evidence be issued and

[[Page 136]]

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 physician is offered new employment to 
practice full-time in another underserved area of the United States.

[[Page 137]]

    (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.
    (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

[[Page 138]]

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]

Subpart B [Reserved]



         Subpart C_Intercountry Adoption of a Convention Adoptee

    Source: 72 FR 56854, Oct. 4, 2007, unless otherwise noted.



Sec. 204.300  Scope of this subpart.

    (a) Convention adoptees. This subpart governs the adjudication of a 
Form I-800A or Form I-800 for a Convention adoptee under section 
101(b)(1)(G) of the Act. The provisions of this subpart enter into force 
on the Convention effective date, as defined in 8 CFR 204.301.
    (b) Orphan cases. On or after the Convention effective date, no Form 
I-600A or I-600 may be filed under section 101(b)(1)(F) of the Act and 8 
CFR 204.3 in relation to the adoption of a child who is habitually 
resident in a Convention country. If a Form I-600A or Form I-600 was 
filed before the Convention effective date, the case will continue to be 
governed by 8 CFR 204.3, as in effect before the Convention effective 
date.
    (c) Adopted children. This subpart does not apply to the immigrant 
visa classification of adopted children, as defined in section 
101(b)(1)(E) of the Act. For the procedures that govern classification 
of adopted children as defined in section 101(b)(1)(E) of the Act, see 8 
CFR 204.2.



Sec. 204.301  Definitions.

    The definitions in 22 CFR 96.2 apply to this subpart C. In addition, 
as used in this subpart C, the term:
    Abandonment means:
    (1) That a child's parent has willfully forsaken all parental 
rights, obligations, and claims to the child, as well as all custody of 
the child without intending to transfer, or without transferring, these 
rights to any specific individual(s) or entity.
    (2) The child's parent must have actually surrendered such rights, 
obligations, claims, control, and possession.
    (3) That a parent's knowledge that a specific person or persons may 
adopt a child does not void an abandonment; however, a purported act of 
abandonment cannot be conditioned on the child's adoption by that 
specific person or persons.
    (4) That if the parent(s) entrusted the child to a third party for 
custodial care in anticipation of, or preparation for, adoption, the 
third party (such as a governmental agency, a court of competent 
jurisdiction, an adoption agency, or an orphanage) must have been 
authorized under the Convention country's child welfare laws to act in 
such a capacity.
    (5) That, if the parent(s) entrusted the child to an orphanage, the 
parent(s) did not intend the placement to be merely temporary, with the 
intention of retaining the parent-child relationship, but that the child 
is abandoned if the parent(s) entrusted the child permanently and 
unconditionally to an orphanage.
    (6) That, although a written document from the parent(s) is not 
necessary to prove abandonment, if any written document signed by the 
parent(s) is presented to prove abandonment, the document must specify 
whether the parent(s) who signed the

[[Page 139]]

document was (were) able to read and understand the language in which 
the document is written. If the parent is not able to read or understand 
the language in which the document is written, then the document is not 
valid unless the document is accompanied by a declaration, signed by an 
identified individual, establishing that that identified individual is 
competent to translate the language in the document into a language that 
the parent understands and that the individual, on the date and at the 
place specified in the declaration, did in fact read and explain the 
document to the parent in a language that the parent understands. The 
declaration must also indicate the language used to provide this 
explanation. If the person who signed the declaration is an officer or 
employee of the Central Authority (but not of an agency or entity 
authorized to perform a Central Authority function by delegation) or any 
other governmental agency, the person must certify the truth of the 
facts stated in the declaration. Any other individual who signs a 
declaration must sign the declaration under penalty of perjury under 
United States law.
    Adoption means the judicial or administrative act that establishes a 
permanent legal parent-child relationship between a minor and an adult 
who is not already the minor's legal parent and terminates the legal 
parent-child relationship between the adoptive child and any former 
parent(s).
    Adult member of the household means:
    (1) Any individual other than the applicant, who has the same 
principal residence as the applicant and who had reached his or her 18th 
birthday on or before the date a Form I-800A is filed; or
    (2) Any person who has not yet reached his or her 18th birthday 
before the date a Form I-800A is filed, or who does not actually live at 
the same residence, but whose presence in the residence is relevant to 
the issue of suitability to adopt, if the officer adjudicating the Form 
I-800A concludes, based on the facts of the case, that it is necessary 
to obtain an evaluation of how that person's presence in the home 
affects the determination whether the applicant is suitable as the 
adoptive parent(s) of a Convention adoptee.
    Applicant means the U.S. citizen (and his or her spouse, if any) who 
has filed a Form I-800A under this subpart C. The applicant may be an 
unmarried U.S. citizen who is at least 24 years old when the Form I-800A 
is filed, or a married U.S. citizen of any age and his or her spouse of 
any age. Although the singular term ``applicant'' is used in this 
subpart, the term includes both a married U.S. citizen and his or her 
spouse.
    Birth parent means a ``natural parent'' as used in section 
101(b)(1)(G) of the Act.
    Central Authority means the entity designated as such under Article 
6(1) of the Convention by any Convention country or, in the case of the 
United States, the United States Department of State. Except as 
specified in this Part, ``Central Authority'' also means, solely for 
purposes of this Part, an individual who or entity that is performing a 
Central Authority function, having been authorized to do so by the 
designated Central Authority, in accordance with the Convention and the 
law of the Central Authority's country.
    Competent authority means a court or governmental agency of a 
foreign country that has jurisdiction and authority to make decisions in 
matters of child welfare, including adoption.
    Convention means the Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption, opened for signature at 
The Hague on May 29, 1993.
    Convention adoptee means a child habitually resident in a Convention 
country who is eligible to immigrate to the United States on the basis 
of a Convention adoption.
    Convention adoption, except as specified in 8 CFR 204.300(b), means 
the adoption, on or after the Convention effective date, of an alien 
child habitually resident in a Convention country by a U.S. citizen 
habitually resident in the United States, when in connection with the 
adoption the child has moved, or will move, from the Convention country 
to the United States.
    Convention country means a country that is a party to the Convention 
and

[[Page 140]]

with which the Convention is in force for the United States.
    Convention effective date means the date on which the Convention 
enters into force for the United States as announced by the Secretary of 
State under 22 CFR 96.17.
    Custody for purposes of emigration and adoption exists when:
    (1) The competent authority of the country of a child's habitual 
residence has, by a judicial or administrative act (which may be either 
the act granting custody of the child or a separate judicial or 
administrative act), expressly authorized the petitioner, or an 
individual or entity acting on the petitioner's behalf, to take the 
child out of the country of the child's habitual residence and to bring 
the child to the United States for adoption in the United States.
    (2) If the custody order shows that custody was given to an 
individual or entity acting on the petitioner's behalf, the custody 
order must indicate that the child is to be adopted in the United States 
by the petitioner.
    (3) A foreign judicial or administrative act that is called an 
adoption but that does not terminate the legal parent-child relationship 
between the former parent(s) and the adopted child and does not create 
the permanent legal parent-child relationship between the petitioner and 
the adopted child will be deemed a grant of custody of the child for 
purposes of this part, but only if the judicial or administrative act 
expressly authorizes the custodian to take the child out of the country 
of the child's habitual residence and to bring the child to the United 
States for adoption in the United States by the petitioner.
    Deserted or desertion means that a child's parent has willfully 
forsaken the child and has refused to carry out parental rights and 
obligations and that, as a result, the child has become a ward of a 
competent authority in accordance with the laws of the Convention 
country.
    Disappeared or Disappearance means that a child's parent has 
unaccountably or inexplicably passed out of the child's life so that the 
parent's whereabouts are unknown, there is no reasonable expectation of 
the parent's reappearance, and there has been a reasonable effort to 
locate the parent as determined by a competent authority in accordance 
with the laws of the Convention country. A stepparent who under the 
definition of ``Parent'' in this section is deemed to be a child's legal 
parent, may be found to have disappeared if it is established that the 
stepparent either never knew of the child's existence, or never knew of 
their legal relationship to the child.
    Home study preparer means a person (whether an individual or an 
agency) authorized under 22 CFR part 96 to conduct home studies for 
Convention adoption cases, either as a public domestic authority, an 
accredited agency, a temporarily accredited agency, approved person, 
supervised provider, or exempted provider and who (if not a public 
domestic authority) holds any license or other authorization that may be 
required to conduct adoption home studies under the law of the 
jurisdiction in which the home study is conducted.
    Incapable of providing proper care means that, in light of all the 
relevant circumstances including but not limited to economic or 
financial concerns, extreme poverty, medical, mental, or emotional 
difficulties, or long term-incarceration, the child's two living birth 
parents are not able to provide for the child's basic needs, consistent 
with the local standards of the Convention country.
    Irrevocable consent means a document which indicates the place and 
date the document was signed by a child's legal custodian, and which 
meets the other requirements specified in this definition, in which the 
legal custodian freely consents to the termination of the legal 
custodian's legal relationship with the child. If the irrevocable 
consent is signed by the child's birth mother or any legal custodian 
other than the birth father, the irrevocable consent must have been 
signed after the child's birth; the birth father may sign an irrevocable 
consent before the child's birth if permitted by the law of the child's 
habitual residence. This provision does not preclude a birth father from 
giving consent to the termination of his legal relationship to the child 
before the child's birth, if the birth father is permitted to do so 
under

[[Page 141]]

the law of the country of the child's habitual residence.
    (1) To qualify as an irrevocable consent under this definition, the 
document must specify whether the legal custodian is able to read and 
understand the language in which the consent is written. If the legal 
custodian is not able to read or understand the language in which the 
document is written, then the document does not qualify as an 
irrevocable consent unless the document is accompanied by a declaration, 
signed, by an identified individual, establishing that that identified 
individual is competent to translate the language in the irrevocable 
consent into a language that the parent understands, and that the 
individual, on the date and at the place specified in the declaration, 
did in fact read and explain the consent to the legal custodian in a 
language that the legal custodian understands. The declaration must also 
indicate the language used to provide this explanation. If the person 
who signed the declaration is an officer or employee of the Central 
Authority (but not of an agency or entity authorized to perform a 
Central Authority function by delegation) or any other governmental 
agency, the person must certify the truth of the facts stated in the 
declaration. Any other individual who signs a declaration must sign the 
declaration under penalty of perjury under United States law.
    (2) If more than one individual or entity is the child's legal 
custodian, the consent of each legal custodian may be recorded in one 
document, or in an additional document, but all documents, taken 
together, must show that each legal custodian has given the necessary 
irrevocable consent.
    Legal custodian means the individual who, or entity that, has legal 
custody of a child, as defined in 22 CFR 96.2.
    Officer means a USCIS officer with jurisdiction to adjudicate Form 
I-800A or Form I-800 or a Department of State officer with jurisdiction, 
by delegation from USCIS, to grant either provisional or final approval 
of a Form I-800.
    Parent means any person who is related to a child as described in 
section 101(b)(1)(A), (B), (C), (D), (E), (F), or (G) and section 
101(b)(2) of the Act, except that a stepparent described in section 
101(b)(1)(B) of the Act is not considered a child's parent, solely for 
purposes of classification of the child as a Convention adoptee, if the 
petitioner establishes that, under the law of the Convention country, 
there is no legal parent-child relationship between a stepparent and 
stepchild. This definition includes a stepparent if the stepparent 
adopted the child, or if the stepparent, under the law of the Convention 
country, became the child's legal parent by marrying the other legal 
parent. A stepparent who is a legal parent may consent to the child's 
adoption, or may be found to have abandoned or deserted the child, or to 
have disappeared from the child's life, in the same manner as would 
apply to any other legal parent.
    Petitioner means the U.S. citizen (and his or her spouse, if any) 
who has filed a Form I-800 under this subpart C. The petitioner may be 
an unmarried U.S. citizen who is at least 25 years old when the Form I-
800 is filed, or a married U.S. citizen of any age and his or her spouse 
of any age. Although the singular term ``petitioner'' is used in this 
subpart, the term includes both a married U.S. citizen and his or her 
spouse.
    Sole parent means:
    (1) The child's mother, when the competent authority has determined 
that the child's father has abandoned or deserted the child, or has 
disappeared from the child's life; or
    (2) The child's father, when the competent authority has determined 
that the child's mother has abandoned or deserted the child, or has 
disappeared from the child's life; except that
    (3) A child's parent is not a sole parent if the child has acquired 
another parent within the meaning of section 101(b)(2) of the Act and 
this section.
    Suitability as adoptive parent(s) means that USCIS is satisfied, 
based on the evidence of record, that it is reasonable to conclude that 
the applicant is capable of providing, and will provide, proper parental 
care to an adopted child.
    Surviving parent means the child's living parent when the child's 
other parent is dead, and the child has not acquired another parent 
within the meaning of section 101(b)(2) of the Act and this section.

[[Page 142]]



Sec. 204.302  Role of service providers.

    (a) Who may provide services in Convention adoption cases. Subject 
to the limitations in paragraph (b) or (c) of this section, a U.S. 
citizen seeking to file a Form I-800A or I-800 may use the services of 
any individual or entity authorized to provide services in connection 
with adoption, except that the U.S. citizen must use the services of an 
accredited agency, temporarily accredited agency, approved person, 
supervised provider public domestic authority or exempted provider when 
required to do so under 22 CFR part 96.
    (b) Unauthorized practice of law prohibited. An adoption agency or 
facilitator, including an individual or entity authorized under 22 CFR 
part 96 to provide the six specific adoption services identified in 22 
CFR 96.2, may not engage in any act that constitutes the legal 
representation, as defined in 8 CFR 1.1(i), (j) and (m), of the 
applicant (for a Form I-800A case) or petitioner (for a Form I-800 case) 
unless authorized to do so as provided in 8 CFR part 292. An individual 
authorized under 8 CFR part 292 to practice before USCIS may provide 
legal services in connection with a Form I-800A or I-800 case, but may 
not provide any of the six specific adoption services identified in 22 
CFR 96.2, unless the individual is authorized to do so under 22 CFR part 
96 (for services provided in the United States) or under the laws of the 
country of the child's habitual residence (for services performed 
outside the United States). The provisions of 8 CFR 292.5 concerning 
sending notices about a case do not apply to an adoption agency or 
facilitator that is not authorized under 8 CFR part 292 to engage in 
representation before USCIS.
    (c) Application of the Privacy Act. Except as permitted by the 
Privacy Act, 5 U.S.C. 552a and the relevant Privacy Act notice 
concerning the routine use of information, USCIS may not disclose or 
give access to any information or record relating to any applicant or 
petitioner who has filed a Form I-800A or Form I-800 to any individual 
or entity other than that person, including but not limited to an 
accredited agency, temporarily accredited agency, approved person, 
public domestic authority, exempted provider, or supervised provider, 
unless the applicant who filed the Form I-800A or the petitioner who 
filed Form I-800 has filed a written consent to disclosure, as provided 
by the Privacy Act, 5 U.S.C. 552a.



Sec. 204.303  Determination of habitual residence.

    (a) U.S. Citizens. For purposes of this subpart, a U.S. citizen who 
is seeking to have an alien classified as the U.S. citizen's child under 
section 101(b)(1)(G) of the Act is deemed to be habitually resident in 
the United States if the individual:
    (1) Has his or her domicile in the United States, even if he or she 
is living temporarily abroad; or
    (2) Is not domiciled in the United States but establishes by a 
preponderance of the evidence that:
    (i) The citizen will have established a domicile in the United 
States on or before the date of the child's admission to the United 
States for permanent residence as a Convention adoptee; or
    (ii) The citizen indicates on the Form I-800 that the citizen 
intends to bring the child to the United States after adopting the child 
abroad, and before the child's 18th birthday, at which time the child 
will be eligible for, and will apply for, naturalization under section 
322 of the Act and 8 CFR part 322. This option is not available if the 
child will be adopted in the United States.
    (b) Convention adoptees. A child whose classification is sought as a 
Convention adoptee is, generally, deemed for purposes of this subpart C 
to be habitually resident in the country of the child's citizenship. If 
the child's actual residence is outside the country of the child's 
citizenship, the child will be deemed habitually resident in that other 
country, rather than in the country of citizenship, if the Central 
Authority (or another competent authority of the country in which the 
child has his or her actual residence) has determined that the child's 
status in that country is sufficiently stable for that country properly 
to exercise jurisdiction over the child's adoption or custody. This 
determination must be made by the Central Authority itself, or by 
another competent authority of the

[[Page 143]]

country of the child's habitual residence, but may not be made by a 
nongovernmental individual or entity authorized by delegation to perform 
Central Authority functions. The child will not be considered to be 
habitually resident in any country to which the child travels 
temporarily, or to which he or she travels either as a prelude to, or in 
conjunction with, his or her adoption and/or immigration to the United 
States.



Sec. 204.304  Improper inducement prohibited.

    (a) Prohibited payments. Neither the applicant/petitioner, nor any 
individual or entity acting on behalf of the applicant/petitioner may, 
directly or indirectly, pay, give, offer to pay, or offer to give to any 
individual or entity or request, receive, or accept from any individual 
or entity, any money (in any amount) or anything of value (whether the 
value is great or small), directly or indirectly, to induce or influence 
any decision concerning:
    (1) The placement of a child for adoption;
    (2) The consent of a parent, a legal custodian, individual, or 
agency to the adoption of a child;
    (3) The relinquishment of a child to a competent authority, or to an 
agency or person as defined in 22 CFR 96.2, for the purpose of adoption; 
or
    (4) The performance by the child's parent or parents of any act that 
makes the child a Convention adoptee.
    (b) Permissible payments. Paragraph (a) of this section does not 
prohibit an applicant/petitioner, or an individual or entity acting on 
behalf of an applicant/petitioner, from paying the reasonable costs 
incurred for the services designated in this paragraph. A payment is not 
reasonable if it is prohibited under the law of the country in which the 
payment is made or if the amount of the payment is not commensurate with 
the costs for professional and other services in the country in which 
any particular service is provided. The permissible services are:
    (1) The services of an adoption service provider in connection with 
an adoption;
    (2) Expenses incurred in locating a child for adoption;
    (3) Medical, hospital, nursing, pharmaceutical, travel, or other 
similar expenses incurred by a mother or her child in connection with 
the birth or any illness of the child;
    (4) Counseling services for a parent or a child for a reasonable 
time before and after the child's placement for adoption;
    (5) Expenses, in an amount commensurate with the living standards in 
the country of the child's habitual residence, for the care of the birth 
mother while pregnant and immediately following the birth of the child;
    (6) Expenses incurred in obtaining the home study;
    (7) Expenses incurred in obtaining the reports on the child as 
described in 8 CFR 204.313(d)(3) and (4);
    (8) Legal services, court costs, and travel or other administrative 
expenses connected with an adoption, including any legal services 
performed for a parent who consents to the adoption of a child or 
relinquishes the child to an agency; and
    (9) Any other service the payment for which the officer finds, on 
the basis of the facts of the case, was reasonably necessary.
    (c) Department of State requirements. See 22 CFR 96.34, 96.36 and 
96.40 for additional regulatory information concerning fees in relation 
to Convention adoptions.



Sec. 204.305  State preadoption requirements.

    State preadoption requirements must be complied with when a child is 
coming into the State as a Convention adoptee to be adopted in the 
United States. A qualified Convention adoptee is deemed to be coming to 
be adopted in the United States if either of the following factors 
exists:
    (a) The applicant/petitioner will not complete the child's adoption 
abroad; or
    (b) In the case of a married applicant/petitioner, the child was 
adopted abroad only by one of the spouses, rather than by the spouses 
jointly, so that it will be necessary for the other spouse to adopt the 
child after the child's admission.

[[Page 144]]



Sec. 204.306  Classification as an immediate relative based on a Convention 

adoption.

    (a) Unless 8 CFR 204.309 requires the denial of a Form I-800A or 
Form I-800, a child is eligible for classification as an immediate 
relative, as defined in section 201(b)(2)(A)(i) of the Act, on the basis 
of a Convention adoption, if the U.S. citizen who seeks to adopt the 
child establishes that:
    (1) The United States citizen is (or, if married, the United States 
citizen and the United States citizen's spouse are) eligible and 
suitable to adopt; and
    (2) The child is a Convention adoptee.
    (b) A U.S. citizen seeking to have USCIS classify an alien child as 
the U.S. citizen's child under section 101(b)(1)(G) of the Act must 
complete a two-step process:
    (1) First, the U.S. citizen must file a Form I-800A under 8 CFR 
204.310;
    (2) Then, once USCIS has approved the Form I-800A and a child has 
been identified as an alien who may qualify as a Convention adoptee, the 
U.S. citizen must file a Form I-800 under 8 CFR 204.313.



Sec. 204.307  Who may file a Form I-800A or Form I-800.

    (a) Eligibility to file Form I-800A. Except as provided in paragraph 
(c) of this section, the following persons may file a Form I-800A:
    (1) An unmarried United States citizen who is at least 24 years old 
and who is habitually resident in the United States, as determined under 
8 CFR 204.303(a); or
    (2) A married United States citizen, who is habitually resident in 
the United States, as determined under 8 CFR 204.303(a), and whose 
spouse will also adopt any child adopted by the citizen based on the 
approval of a Form I-800A; and
    (3) The citizen's spouse must also be either a U.S. citizen, a non-
citizen U.S. national, or an alien who, if living in the United States, 
holds a lawful status under U.S. immigration law. If an alien spouse is 
present in a lawful status other than the status of an alien lawfully 
admitted for permanent residence, such status will be a factor evaluated 
in determining whether the family's situation is sufficiently stable to 
support a finding that the applicant is suitable as the adoptive parents 
of a Convention adoptee.
    (b) Eligibility to file a Form I-800. Except as provided in 
paragraph (c) of this section, the following persons may file a Form I-
800:
    (1) An unmarried United States citizen who is at least 25 years old 
and who is habitually resident in the United States, as determined under 
8 CFR 204.303(a); or
    (2) A married United States citizen, who is habitually resident in 
the United States as determined under 8 CFR 204.303(a), and whose spouse 
will also adopt the child the citizen seeks to adopt. The spouse must be 
either a United States citizen or a non-citizen U.S. national or an 
alien who, if living in the United States, holds a lawful status under 
U.S. immigration law; and
    (3) The person has an approved and unexpired Form I-800A.
    (c) Exceptions. (1) No applicant may file a Form I-800A, and no 
petitioner may file a Form I-800, if:
    (i) The applicant filed a prior Form I-800A that USCIS denied under 
8 CFR 204.309(a); or
    (ii) The applicant filed a prior Form I-600A under 8 CFR 204.3 that 
USCIS denied under 8 CFR 204.3(h)(4); or
    (iii) The petitioner filed a prior Form I-800 that USCIS denied 
under 8 CFR 204.309(b)(3); or
    (iv) The petitioner filed a prior Form I-600 under 8 CFR 204.3 that 
USCIS denied under 8 CFR 204.3(i).
    (2) This bar against filing a subsequent Form I-800A or Form I-800 
expires one year after the date on which the decision denying the prior 
Form I-800A, I-600A, I-800 or I-600 became administratively final. If 
the applicant (for a Form I-800A or I-600A case) or the petitioner (for 
a Form I-800 or I-600 case) does not appeal the prior decision, the one-
year period ends one year after the date of the original decision 
denying the prior Form I-800A, I-600A, I-800 or I-600. Any Form I-800A, 
or Form I-800 filed during this one-year period will be denied. If the 
applicant (for a Form I-800A or Form I-600A case) or petitioner (for a 
Form I-800 or I-600 case) appeals the prior decision, the bar to filing 
a new Form I-800A or I-800 applies while the appeal is pending and

[[Page 145]]

ends one year after the date of an Administrative Appeals Office 
decision affirming the denial.
    (3) Any facts underlying a prior denial of a Form I-800A, I-800, I-
600A, or I-600 are relevant to the adjudication of any subsequently 
filed Form I-800A or Form I-800 that is filed after the expiration of 
this one year bar.



Sec. 204.308  Where to file Form I-800A or Form I-800.

    (a) Form I-800A. An applicant must file a Form I-800A with the USCIS 
office identified in the instructions that accompany Form I-800A.
    (b) Form I-800. After a Form I-800A has been approved, a petitioner 
may file a Form I-800 on behalf of a Convention adoptee with the 
stateside or overseas USCIS office identified in the instructions that 
accompany Form I-800. The petitioner may also file the Form I-800 with a 
visa-issuing post that would have jurisdiction to adjudicate a visa 
application filed by or on behalf of the Convention adoptee, when filing 
with the visa-issuing post is permitted by the instructions that 
accompany Form I-800.
    (c) Final approval of Form I-800. Once a Form I-800 has been 
provisionally approved under 8 CFR 204.313(g) and the petitioner has 
either adopted or obtained custody of the child for purposes of 
emigration and adoption, the Department of State officer with 
jurisdiction to adjudicate the child's application for an immigrant or 
nonimmigrant visa has jurisdiction to grant final approval of the Form 
I-800. The Department of State officer may approve the Form I-800, but 
may not deny it; the Department of State officer must refer any Form I-
800 that is ``not clearly approvable'' for a decision by a USCIS office 
having jurisdiction over Form I-800 cases. If the Department of State 
officer refers the Form I-800 to USCIS because it is ``not clearly 
approvable,'' then USCIS has jurisdiction to approve or deny the Form I-
800. In the case of an alien child who is in the United States and who 
is eligible both under 8 CFR 204.309(b)(4) for approval of a Form I-800 
and under 8 CFR part 245 for adjustment of status, the USCIS office with 
jurisdiction to adjudicate the child's adjustment of status application 
also has jurisdiction to grant final approval of the Form I-800.
    (d) Use of electronic filing. When, and if, USCIS adopts electronic, 
internet-based or other digital means for filing Convention cases, the 
terms ``filing a Form I-800A'' and ``filing a Form I-800'' will include 
an additional option. Rather than filing the Form I-800A or Form I-800 
and accompanying evidence in a paper format, the submission of the same 
required information and accompanying evidence may be filed according to 
the digital filing protocol that USCIS adopts.



Sec. 204.309  Factors requiring denial of a Form I-800A or Form I-800.

    (a) Form I-800A. A USCIS officer must deny a Form I-800A if:
    (1) The applicant or any additional adult member of the household 
failed to disclose to the home study preparer or to USCIS, or concealed 
or misrepresented, any fact(s) about the applicant or any additional 
member of the household concerning the arrest, conviction, or history of 
substance abuse, sexual abuse, child abuse, and/or family violence, or 
any other criminal history as an offender; the fact that an arrest or 
conviction or other criminal history has been expunged, sealed, 
pardoned, or the subject of any other amelioration does not relieve the 
applicant or additional adult member of the household of the obligation 
to disclose the arrest, conviction or other criminal history;
    (2) The applicant, or any additional adult member of the household, 
failed to cooperate in having available child abuse registries checked 
in accordance with 8 CFR 204.311;
    (3) The applicant, or any additional adult member of the household, 
failed to disclose, as required by 8 CFR 204.311, each and every prior 
adoption home study, whether completed or not, including those that did 
not favorably recommend for adoption or custodial care, the person(s) to 
whom the prior home study related; or
    (4) The applicant is barred by 8 CFR 204.307(c) from filing the Form 
I-800A.
    (b) Form I-800. A USCIS officer must deny a Form I-800 if:
    (1) Except as specified in 8 CFR 204.312(e)(2)(ii) with respect to a 
new Form I-800 filed with a new Form I-

[[Page 146]]

800A to reflect a change in marital status, the petitioner completed the 
adoption of the child, or acquired legal custody of the child for 
purposes of emigration and adoption, before the provisional approval of 
the Form I-800 under 8 CFR 204.313(g). This restriction will not apply 
if a competent authority in the country of the child's habitual 
residence voids, vacates, annuls, or terminates the adoption or grant of 
custody and then, after the provisional approval of the Form I-800, and 
after receipt of notice under article 5(c) of the Convention that the 
child is, or will be, authorized to enter and reside permanently in the 
United States, permits a new grant of adoption or custody. The prior 
adoption must be voided, vacated, annulled or otherwise terminated 
before the petitioner files a Form I-800.
    (2) Except as specified in 8 CFR 204.312(e)(2)(ii) with respect to a 
new Form I-800 filed with a new Form I-800A to reflect a change in 
marital status, the petitioner, or any additional adult member of the 
household had met with, or had any other form of contact with, the 
child's parents, legal custodian, or other individual or entity who was 
responsible for the child's care when the contact occurred, unless the 
contact was permitted under this paragraph. An authorized adoption 
service provider's sharing of general information about a possible 
adoption placement is not ``contact'' for purposes of this section. 
Contact is permitted under this paragraph if:
    (i) The first such contact occurred only after USCIS had approved 
the Form I-800A filed by the petitioner, and after the competent 
authority of the Convention country had determined that the child is 
eligible for intercountry adoption and that the required consents to the 
adoption have been given; or
    (ii) The competent authority of the Convention country had permitted 
earlier contact, either in the particular instance or through laws or 
rules of general application, and the contact occurred only in 
compliance with the particular authorization or generally applicable 
laws or rules. If the petitioner first adopted the child without 
complying with the Convention, the competent authority's decision to 
permit the adoption to be vacated, and to allow the petitioner to adopt 
the child again after complying with the Convention, will also 
constitute approval of any prior contact; or
    (iii) The petitioner was already, before the adoption, the father, 
mother, son, daughter, brother, sister, uncle, aunt, first cousin (that 
is, the petitioner, or either spouse, in the case of a married 
petitioner had at least one grandparent in common with the child's 
parent), second cousin (that is, the petitioner, or either spouse, in 
the case of a married petitioner, had at least one great-grandparent in 
common with the child's parent) nephew, niece, husband, former husband, 
wife, former wife, father-in-law, mother-in-law, son-in-law, daughter-
in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, 
stepdaughter, stepbrother, stepsister, half brother, or half sister of 
the child's parent(s).
    (3) The USCIS officer finds that the petitioner, or any individual 
or entity acting on behalf of the petitioner has engaged in any conduct 
related to the adoption or immigration of the child that is prohibited 
by 8 CFR 204.304, or that the petitioner has concealed or misrepresented 
any material facts concerning payments made in relation to the adoption;
    (4) The child is present in the United States, unless the 
petitioner, after compliance with the requirements of this subpart, 
either adopt(s) the child in the Convention country, or else, after 
having obtained custody of the child under the law of the Convention 
country for purposes of emigration and adoption, adopt(s) the child in 
the United States. This subpart does not require the child's actual 
return to the Convention country; whether to permit the child's adoption 
without the child's return is a matter to be determined by the Central 
Authority of the country of the child's habitual residence, but approval 
of a Form I-800 does not relieve an alien child of his or her 
ineligibility for adjustment of status under section 245 of the Act, if 
the child is present in the United States without inspection or is 
otherwise ineligible for adjustment of status. If the child is in the 
United States but is not eligible for adjustment of status, the Form I-
800 may

[[Page 147]]

be provisionally approved only if the child will leave the United States 
after the provisional approval and apply for a visa abroad before the 
final approval of the Form I-800.
    (5) Except as specified in 8 CFR 204.312(e)(2)(ii) with respect to a 
new Form I-800 filed with a new Form I-800A to reflect a change in 
marital status, the petitioner files the Form I-800:
    (i) Before the approval of a Form I-800A, or
    (ii) After the denial of a Form I-800A; or
    (iii) After the expiration of the approval of a Form I-800A;
    (6) The petitioner is barred by 8 CFR 204.307(c) from filing the 
Form I-800.
    (c) Notice of intent to deny. Before denying a Form I-800A under 
paragraph (a) or a Form I-800 under paragraph (b) of this section, the 
USCIS officer will notify the applicant (for a Form I-800A case) or 
petitioner (for a Form I-800 case) in writing of the intent to deny the 
Form I-800A or Form I-800 and provide 30 days in which to submit 
evidence and argument to rebut the claim that this section requires 
denial of the Form I-800A or Form I-800.
    (d) Rebuttal of intent to deny. If USCIS notifies the applicant that 
USCIS intends to deny a Form I-800A under paragraph (a) of this section, 
because the applicant or any additional adult member(s) of the household 
failed to disclose to the home study preparer or to USCIS, or concealed 
or misrepresented, any fact(s) concerning the arrest, conviction, or 
history of substance abuse, sexual abuse or child abuse, and/or family 
violence, or other criminal history, or failed to cooperate in search of 
child abuse registries, or failed to disclose a prior home study, the 
applicant may rebut the intent to deny only by establishing, by clear 
and convincing evidence that:
    (1) The applicant or additional adult member of the household did, 
in fact, disclose the information; or
    (2) If it was an additional adult member of the household who failed 
to cooperate in the search of child abuse registries, or who failed to 
disclose to the home study preparer or to USCIS, or concealed or 
misrepresented, any fact(s) concerning the arrest, conviction, or 
history of substance abuse, sexual abuse or child abuse, and/or family 
violence, or other criminal history, or failed to disclose a prior home 
study, that that person is no longer a member of the household and that 
that person's conduct is no longer relevant to the suitability of the 
applicant as the adoptive parent of a Convention adoptee.



Sec. 204.310  Filing requirements for Form I-800A.

    (a) Completing and filing the Form. A United States citizen seeking 
to be determined eligible and suitable as the adoptive parent of a 
Convention adoptee must:
    (1) Complete Form I-800A, including a Form I-800A Supplement 1 for 
each additional adult member of the household, in accordance with the 
instructions that accompany the Form I-800A.
    (2) Sign the Form I-800A personally. One spouse cannot sign for the 
other, even under a power of attorney or similar agency arrangement.
    (3) File the Form I-800A with the USCIS office that has jurisdiction 
under 8 CFR 204.308(a) to adjudicate the Form I-800A, together with:
    (i) The fee specified in 8 CFR 103.7(b)(1) for the filing of Form I-
800A;
    (ii) The additional biometrics information collection fee required 
under 8 CFR 103.7(b)(1) for the applicant and each additional adult 
member of the household;
    (iii) Evidence that the applicant is a United States citizen, as set 
forth in 8 CFR 204.1(g), or, in the case of a married applicant, 
evidence either that both spouses are citizens or, if only one spouse is 
a United States citizen, evidence of that person's citizenship and 
evidence that the other spouse, if he or she lives in the United States, 
is either a non-citizen United States national or an alien who holds a 
lawful status under U.S. immigration law.
    (iv) A copy of the current marriage certificate, unless the 
applicant is not married;
    (v) If the applicant has been married previously, a death 
certificate or divorce or dissolution decree to establish the legal 
termination of all previous marriages, regardless of current marital 
status;

[[Page 148]]

    (vi) If the applicant is not married, his or her birth certificate, 
U.S. passport biographical information page, naturalization or 
citizenship certificate, or other evidence, to establish that he or she 
is at least 24 years old;
    (vii) A written description of the preadoption requirements, if any, 
of the State of the child's proposed residence in cases where it is 
known that any child the applicant may adopt will be adopted in the 
United States, and of the steps that have already been taken or that are 
planned to comply with these requirements. The written description must 
include a citation to the State statutes and regulations establishing 
the requirements. Any preadoption requirements which cannot be met at 
the time the Form I-800A is filed because of the operation of State law 
must be noted and explained when the Form I-800A is filed.
    (viii) A home study that meets the requirements of 8 CFR 204.311 and 
that bears the home study preparer's original signature. If the home 
study is not included with the Form I-800A, the director of the office 
that has jurisdiction to adjudicate the Form I-800A will make a written 
request for evidence, directing the applicant to submit the home study. 
If the applicant fails to submit the home study within the period 
specified in the request for evidence, the director of the office that 
has jurisdiction to adjudicate the Form I-800A will deny the Form I-
800A. Denial of a Form I-800A under this paragraph for failure to submit 
a home study is not subject to appeal, but the applicant may file a new 
Form I-800A, accompanied by a new filing fee.
    (b) Biometrics. Upon the proper filing of a Form I-800A, USCIS will 
arrange for the collection of biometrics from the applicant and each 
additional adult member of the household, as prescribed in 8 CFR 
103.2(e), but with no upper age limit. It will be necessary to collect 
the biometrics of each of these persons again, if the initial collection 
expires before approval of the Form I-800A. USCIS may waive this 
requirement for any particular individual if USCIS determines that that 
person is physically unable to comply. However, USCIS will require the 
submission of affidavits, police clearances, or other evidence relating 
to whether that person has a criminal history in lieu of collecting the 
person's biometrics.
    (c) Change in marital status. If, while a Form I-800A is pending, an 
unmarried applicant marries, or the marriage of a married applicant 
ends, an amended Form I-800A and amended home study must be filed to 
reflect the change in marital status. No additional filing fee is 
required to file an amended Form I-800A while the original Form I-800A 
is still pending. See 8 CFR 204.312(e)(2) concerning the need to file a 
new Form I-800A if the marital status changes after approval of a Form 
I-800A.



Sec. 204.311  Convention adoption home study requirements.

    (a) Purpose. For immigration purposes, a home study is a process for 
screening and preparing an applicant who is interested in adopting a 
child from a Convention country.
    (b) Preparer. Only an individual or entity defined under 8 CFR 
204.301 as a home study preparer for Convention cases may complete a 
home study for a Convention adoption. In addition, the individual or 
entity must be authorized to complete adoption home studies under the 
law of the jurisdiction in which the home study is conducted.
    (c) Study requirements. The home study must:
    (1) Be tailored to the particular situation of the applicant and to 
the specific Convention country in which the applicant intends to seek a 
child for adoption. For example, an applicant who has previously adopted 
children will require different preparation than an applicant who has no 
adopted children. A home study may address the applicant's suitability 
to adopt in more than one Convention country, but if the home study does 
so, the home study must separately assess the applicant's suitability as 
to each specific Convention country.
    (2) If there are any additional adult members of the household, 
identify each of them by name, alien registration number (if the 
individual has one), and date of birth.
    (3) Include an interview by the preparer of any additional adult 
member of the household and an assessment of

[[Page 149]]

him or her in light of the requirements of this section.
    (4) Be no more than 6 months old at the time the home study is 
submitted to USCIS.
    (5) Include the home study preparer's assessment of any potential 
problem areas, a copy of any outside evaluation(s), and the home study 
preparer's recommended restrictions, if any, on the characteristics of 
the child to be placed in the home. See 8 CFR 204.309(a) for the 
consequences of failure to disclose information or cooperate in 
completion of a home study.
    (6) Include the home study preparer's signature, in accordance with 
paragraph (f) of this section.
    (7) State the number of interviews and visits, the participants, 
date and location of each interview and visit, and the date and location 
of any other contacts with the applicant and any additional adult member 
of the household.
    (8) Summarize the pre-placement preparation and training already 
provided to the applicant concerning the issues specified in 22 CFR 
96.48(a) and (b), the plans for future preparation and training with 
respect to those issues, or with respect to a particular child, as 
specified in 22 CFR 96.48(c), and the plans for post-placement 
monitoring specified in 22 CFR 96.50, in the event that the child will 
be adopted in the United States rather than abroad.
    (9) Specify whether the home study preparer made any referrals as 
described in paragraph (g)(4) of this section, and include a copy of the 
report resulting from each referral, the home study preparer's 
assessment of the impact of the report on the suitability of the 
applicant to adopt, and the home study preparer's recommended 
restrictions, if any, on the characteristics of the child to be placed 
in the home.
    (10) Include results of the checks conducted in accordance with 
paragraph (i) of this section including that no record was found to 
exist, that the State or foreign country will not release information to 
the home study preparer or anyone in the household, or that the State or 
foreign country does not have a child abuse registry.
    (11) Include each person's response to the questions regarding abuse 
and violence in accordance with paragraph (j) of this section.
    (12) Include a certified copy of the documentation showing the final 
disposition of each incident which resulted in arrest, indictment, 
conviction, and/or any other judicial or administrative action for 
anyone subject to the home study and a written statement submitted with 
the home study giving details, including any mitigating circumstances 
about each arrest, signed, under penalty of perjury, by the person to 
whom the arrest relates.
    (13) Contain an evaluation of the suitability of the home for 
adoptive placement of a child in light of any applicant's or additional 
adult member of the household's history of abuse and/or violence as an 
offender, whether this history is disclosed by an applicant or any 
additional adult member of the household or is discovered by home study 
preparer, regardless of the source of the home study preparer's 
discovery. A single incident of sexual abuse, child abuse, or family 
violence is sufficient to constitute a ``history'' of abuse and/or 
violence.
    (14) Contain an evaluation of the suitability of the home for 
adoptive placement of a child in light of disclosure by an applicant, or 
any additional adult member of the household, of a history of substance 
abuse. A person has a history of substance abuse if his or her current 
or past use of alcohol, controlled substances, or other substances 
impaired or impairs his or her ability to fulfill obligations at work, 
school, or home, or creates other social or interpersonal problems that 
may adversely affect the applicant's suitability as an adoptive parent.
    (15) Include a general description of the information disclosed in 
accordance with paragraph (m) of this section concerning the physical, 
mental, and emotional health of the applicant and of any additional 
adult member of the household.
    (16) Identify the agency involved in each prior or terminated home 
study in accordance with paragraph (o) of this section, when the prior 
home study process began, the date the prior home study was completed, 
and whether the prior home study recommended for or

[[Page 150]]

against finding the applicant or additional adult member of the 
household suitable for adoption, foster care, or other custodial care of 
a child. If a prior home study was terminated without completion, the 
current home study must indicate when the prior home study began, the 
date of termination, and the reason for the termination.
    (d) Duty to disclose. (1) The applicant, and any additional adult 
members of the household, each has a duty of candor and must:
    (i) Give true and complete information to the home study preparer.
    (ii) Disclose any arrest, conviction, or other adverse criminal 
history, whether in the United States or abroad, even if the record of 
the arrest, conviction or other adverse criminal history has been 
expunged, sealed, pardoned, or the subject of any other amelioration. A 
person with a criminal history may be able to establish sufficient 
rehabilitation.
    (iii) Disclose other relevant information, such as physical, mental 
or emotional health issues, or behavioral issues, as specified in 
paragraph (m) of this section. Such problems may not necessarily 
preclude approval of a Form I-800A, if, for example, they have been or 
are being successfully treated.
    (2) This duty of candor is an ongoing duty, and continues while the 
Form I-800A is pending, after the Form I-800A is approved, and while any 
subsequent Form I-800 is pending, and until there is a final decision 
admitting the Convention adoptee to the United States with a visa. The 
applicant and any additional adult member of the household must notify 
the home study preparer and USCIS of any new event or information that 
might warrant submission of an amended or updated home study.
    (e) State standards. In addition to the requirements of this 
section, the home study preparer must prepare the home study according 
to the requirements that apply to a domestic adoption in the State of 
the applicant's actual or proposed residence in the United States.
    (f) Home study preparer's signature. The home study preparer (or, if 
the home study is prepared by an entity, the officer or employee who has 
authority to sign the home study for the entity) must personally sign 
the home study, and any updated or amended home study. The home study 
preparer's signature must include a declaration, under penalty of 
perjury under United States law, that:
    (1) The signer personally, and with the professional diligence 
reasonably necessary to protect the best interests of any child whom the 
applicant might adopt, either actually conducted or supervised the home 
study, including personal interview(s), the home visits, and all other 
aspects of the investigation needed to prepare the home study; if the 
signer did not personally conduct the home study, the person who 
actually did so must be identified;
    (2) The factual statements in the home study are true and correct, 
to the best of the signer's knowledge, information and belief; and
    (3) The home study preparer has advised the applicant of the duty of 
candor under paragraph (d) of this section, specifically including the 
on-going duty under paragraph (d)(2) of this section concerning 
disclosure of new events or information warranting submission of an 
updated or amended home study.
    (g) Personal interview(s) and home visit(s). The home study preparer 
must:
    (1) Conduct at least one interview in person, and at least one home 
visit, with the applicant.
    (2) Interview, at least once, each additional adult member of the 
household, as defined in 8 CFR 204.301. The interview with an additional 
adult member of the household should also be in person, unless the home 
study preparer determines that interviewing that individual in person is 
not reasonably feasible and explains in the home study the reason for 
this conclusion.
    (3) Provide information on and assess the suitability of the 
applicant as the adoptive parent of a Convention adoptee based on the 
applicant's background, family and medical history (including physical, 
mental and emotional health), social environment, reasons for adoption, 
ability to undertake an intercountry adoption, and the characteristics 
of the child(ren) for whom they would be qualified to care.

[[Page 151]]

    (4) Refer the applicant to an appropriate licensed professional, 
such as a physician, psychiatrist, clinical psychologist, clinical 
social worker, or professional substance abuse counselor, for an 
evaluation and written report, if the home study preparer determines 
that there are areas beyond his or her expertise that need to be 
addressed. The home study preparer must also make such a referral if 
such a referral would be required for a domestic adoption under the law 
of the State of the applicant's actual or proposed place of residence in 
the United States.
    (5) Apply the requirements of this paragraph to each additional 
adult member of the household.
    (h) Financial considerations. (1) Assessment of the finances of the 
applicant must include:
    (i) A description of the applicant's income, financial resources, 
debts, and expenses.
    (ii) A statement concerning the evidence that was considered to 
verify the source and amount of income and financial resources.
    (2) Any income designated for the support of one or more children in 
the applicant's care and custody, such as funds for foster care, or any 
income designated for the support of another member of the household, 
must not be counted towards the financial resources available for the 
support of a prospective adoptive child.
    (3) USCIS will not routinely require a detailed financial statement 
or supporting financial documents. However, should the need arise, USCIS 
reserves the right to ask for such detailed documentation.
    (i) Checking available child abuse registries. The home study 
preparer must ensure that a check of the applicant, and of each 
additional adult member of the household, has been made with available 
child abuse registries in any State or foreign country that the 
applicant, or any additional adult member of the household, has resided 
in since that person's 18th birthday. USCIS may also conduct its own 
check of any child abuse registries to which USCIS has access. Depending 
on the extent of access to a relevant registry allowed by the State or 
foreign law, the home study preparer must take one of the following 
courses of action:
    (1) If the home study preparer is allowed access to information from 
the child abuse registries, he or she must make the appropriate checks 
for the applicant and each additional adult member of the household;
    (2) If the State or foreign country requires the home study preparer 
to secure permission from the applicant and each additional adult member 
of the household before gaining access to information in such 
registries, the home study preparer must secure such permission from 
those individuals and make the appropriate checks;
    (3) If the State or foreign country will only release information 
directly to an individual to whom the information relates, then the 
applicant and the additional adult member of the household must secure 
such information and provide it to the home study preparer.
    (4) If the State or foreign country will release information neither 
to the home study preparer nor to the person to whom the information 
relates, or has not done so within 6 months of a written request for the 
information, this unavailability of information must be noted in the 
home study.
    (j) Inquiring about history of abuse or violence as an offender. The 
home study preparer must ask each applicant and each additional adult 
member of the household whether he or she has a history as an offender, 
whether in the United States or abroad, of substance abuse, sexual 
abuse, or child abuse, or family violence, even if such history did not 
result in an arrest or conviction. This evaluation must include:
    (1) The dates of each arrest or conviction or history of substance 
abuse, sexual abuse or child abuse, and/or family violence; or,
    (2) If not resulting in an arrest, the date or time period (if 
occurring over an extended period of time) of each occurrence and
    (3) Details including any mitigating circumstances about each 
incident.
    Each statement must be signed, under penalty of perjury, by the 
person to whom the incident relates.
    (k) Criminal history. The applicant, and any additional adult 
members of the household, must also disclose to

[[Page 152]]

the home study preparer and USCIS any history, whether in the United 
States or abroad, of any arrest and/or conviction (other than for minor 
traffic offenses) in addition to the information that the person must 
disclose under paragraph (j) of this section. If an applicant or an 
additional adult member of the household has a criminal record, the 
officer may still find that the applicant will be suitable as the 
adoptive parent of a Convention adoptee, if there is sufficient evidence 
of rehabilitation as described in paragraph (l) of this section.
    (l) Evidence of rehabilitation. If an applicant, or any additional 
adult member of the household, has a history of substance abuse, sexual 
abuse or child abuse, and/or family violence as an offender, or any 
other criminal history, the home study preparer may, nevertheless, make 
a favorable finding if the applicant has demonstrated that the person 
with this adverse history has achieved appropriate rehabilitation. A 
favorable recommendation cannot be made based on a claim of 
rehabilitation while an applicant or any additional adult member of the 
household is on probation, parole, supervised release, or other similar 
arrangement for any conviction. The home study must include a discussion 
of the claimed rehabilitation, which demonstrates that the applicant is 
suitable as the adoptive parent(s) of a Convention adoptee. Evidence of 
rehabilitation may include:
    (1) An evaluation of the seriousness of the arrest(s), 
conviction(s), or history of abuse, the number of such incidents, the 
length of time since the last incident, the offender's acceptance of 
responsibility for his or her conduct, and any type of counseling or 
rehabilitation programs which have been successfully completed, or
    (2) A written opinion from an appropriate licensed professional, 
such as a psychiatrist, clinical psychologist, or clinical social 
worker.
    (m) Assessment with respect to physical, mental and emotional health 
or behavioral issues. The home study must address the current physical, 
mental and emotional health of the applicant, or any additional adult 
member of the household, as well as any history of illness or of any 
mental, emotional, psychological, or behavioral instability if the home 
study preparer determines, in the exercise of reasonable professional 
judgment, that the suitability of the applicant as an adoptive parent 
may be affected adversely by such history. Paragraph (g)(4) of this 
section, regarding referral to professionals, applies to any home study 
involving prior psychiatric care, or issues arising from sexual abuse, 
child abuse, or family violence issues if, in the home study preparer's 
reasonable professional judgment, such referral(s) may be necessary or 
helpful to the proper completion of the home study.
    (n) Prior home study. The home study preparer must ask each 
applicant, and any additional adult member of the household, whether he 
or she previously has had a prior home study completed, or began a home 
study process in relation to an adoption or to any form of foster or 
other custodial care of a child that was not completed, whether or not 
the prior home study related to an intercountry adoption, and must 
include each individual's response to this question in the home study 
report. A copy of any previous home study that did not favorably 
recommend the applicant or additional adult member of the household must 
be attached to any home study submitted with a Form I-800A. If a copy of 
any prior home study that did not favorably recommend the applicant or 
additional adult member of the household is no longer available, the 
current home study must explain why the prior home study is no longer 
available. The home study preparer must evaluate the relevance of any 
prior unfavorable or uncompleted home study to the suitability of the 
applicant as the adoptive parent of a Convention adoptee.
    (o) Living accommodations. The home study must include a detailed 
description of the living accommodations where the applicant currently 
resides. If the applicant is planning to move, the home study must 
include a description of the living accommodations where the child will 
reside with the applicant, if known. If the applicant is residing abroad 
at the time of the home study, the home study must include a

[[Page 153]]

description of the living accommodations where the child will reside in 
the United States with the applicant, if known. Each description must 
include an assessment of the suitability of accommodations for a child 
and a determination whether such space meets applicable State 
requirements, if any.
    (p) Handicapped or special needs child. A home study conducted in 
conjunction with the proposed adoption of a special needs or handicapped 
child must contain a discussion of the preparation, willingness, and 
ability of the applicant to provide proper care for a child with the 
handicap or special needs. This information will be used to evaluate the 
suitability of the applicant as the adoptive parent of a special needs 
or handicapped child. If this information is not included in the home 
study, an updated or amended home study will be necessary if the 
applicant seeks to adopt a handicapped or special needs child.
    (q) Addressing a Convention country's specific requirements. If the 
Central Authority of the Convention country has notified the Secretary 
of State of any specific requirements that must be met in order to adopt 
in the Convention country, the home study must include a full and 
complete statement of all facts relevant to the applicant's eligibility 
for adoption in the Convention country, in light of those specific 
requirements.
    (r) Specific approval for adoption. If the home study preparer's 
findings are favorable, the home study must contain his or her specific 
approval of the applicant for adoption of a child from the specific 
Convention country or countries, and a discussion of the reasons for 
such approval. The home study must include the number of children the 
applicant may adopt at the same time. The home study must state whether 
there are any specific restrictions to the adoption based on the age or 
gender, or other characteristics of the child. If the home study 
preparer has approved the applicant for a handicapped or special needs 
adoption, this fact must be clearly stated.
    (s) Home study preparer's authority to conduct home studies. The 
home study must include a statement in which the home study preparer 
certifies that he or she is authorized under 22 CFR part 96 to complete 
home studies for Convention adoption cases. The certification must 
specify the State or country under whose authority the home study 
preparer is licensed or authorized, cite the specific law or regulation 
authorizing the preparer to conduct home studies, and indicate the 
license number, if any, and the expiration date, if any, of this 
authorization or license. The certification must also specify the basis 
under 22 CFR part 96 (public domestic authority, accredited agency, 
temporarily accredited agency, approved person, exempted provider, or 
supervised provider) for his or her authorization to conduct Convention 
adoption home studies.
    (t) Review of home study. (1) If the law of the State in which the 
applicant resides requires the competent authority in the State to 
review the home study, such a review must occur and be documented before 
the home study is submitted to USCIS.
    (2) When the home study is not performed in the first instance by an 
accredited agency or temporarily accredited agency, as defined in 22 CFR 
part 96, then an accredited agency or temporarily accredited agency, as 
defined in 22 CFR part 96, must review and approve the home study as 
specified in 22 CFR 96.47(c) before the home study is submitted to 
USCIS. This requirement for review and approval by an accredited agency 
or temporarily accredited agency does not apply to a home study that was 
actually prepared by a public domestic authority, as defined in 22 CFR 
96.2.
    (u) Home study updates and amendments. (1) A new home study 
amendment or update will be required if there is:
    (i) A significant change in the applicant's household, such as a 
change in residence, marital status, criminal history, financial 
resources; or
    (ii) The addition of one or more children in the applicant's home, 
whether through adoption or foster care, birth, or any other means. Even 
if the original home study provided for the adoption of more than one 
adopted child, the applicant must submit an amended home study 
recommending adoption of

[[Page 154]]

an additional child, because the addition of the already adopted 
child(ren) to the applicant's household is a significant change in the 
household that should be assessed before the adoption of any additional 
child(ren);
    (iii) The addition of other dependents or additional adult member(s) 
of the household to the family prior to the prospective child's 
immigration into the United States;
    (iv) A change resulting because the applicant is seeking to adopt a 
handicapped or special needs child, if the home study did not already 
address the applicant's suitability as the adoptive parent of a child 
with the particular handicap or special need;
    (v) A change to a different Convention country. This change requires 
the updated home study to address suitability under the requirements of 
the new Convention country;
    (vi) A lapse of more than 6 months between the date the home study 
is completed and the date it is submitted to USCIS; or
    (vii) A change to the child's proposed State of residence. The 
preadoption requirements of the new State must be complied with in the 
case of a child coming to the United States to be adopted.
    (2) Any updated or amended home study must:
    (i) Meet the requirements of this section;
    (ii) Be accompanied by a copy of the home study that is being 
updated or amended, including all prior updates and amendments;
    (iii) Include a statement from the preparer that he or she has 
reviewed the home study that is being updated or amended and is 
personally and fully aware of its contents; and
    (iv) Address whether the home study preparer recommends approval of 
the proposed adoption and the reasons for the recommendation.
    (3) If submission of an updated or amended home study becomes 
necessary before USCIS adjudicates the Form I-800A, the applicant may 
simply submit the updated or amended home study to the office that has 
jurisdiction over the Form I-800A.
    (4) If it becomes necessary to file an updated or amended home study 
after USCIS has approved the Form I-800A, the applicant must file a Form 
I-800A Supplement 3 with the filing fee specified in 8 CFR 103.7(b)(1) 
and the amended or updated home study. If USCIS determines that the 
amended or updated home study shows that the applicant remains suitable 
as the adoptive parent(s) of a Convention adoptee, USCIS will issue a 
new approval notice that will expire on the same date as the original 
approval. If the applicant also wants to have USCIS extend the approval 
period for the Form I-800A, the applicant must submit the updated or 
amended home study with an extension request under 8 CFR 204.312(e)(3), 
rather than under this paragraph (u) of this section.
    (5) Each update must indicate that the home study preparer has 
updated the screening of the applicant and any additional adult member 
of the household under paragraphs (i) through (l) of this section, and 
must indicate the results of this updated screening.



Sec. 204.312  Adjudication of the Form I-800A.

    (a) USCIS action. The USCIS officer must approve a Form I-800A if 
the officer finds, based on the evidence of record, that the applicant 
is eligible under 8 CFR 204.307(a) to file a Form I-800A and the USCIS 
officer is satisfied that the applicant is suitable as the adoptive 
parent of a child from the specified Convention country. If the 
applicant sought approval for more than one Convention country, the 
decision will specify each country for which the Form I-800A is 
approved, and will also specify whether the Form I-800A is denied with 
respect to any particular Convention country.
    (b) Evaluation of the home study. In determining suitability to 
adopt, the USCIS officer will give considerable weight to the home 
study, but is not bound by it. Even if the home study is favorable, the 
USCIS officer must deny the Form I-800A if, on the basis of the evidence 
of record, the officer finds, for a specific and articulable reason, 
that the applicant has failed to establish that he or she is suitable as 
the adoptive parent of a child from the Convention country. The USCIS 
officer may

[[Page 155]]

consult the accredited agency or temporarily accredited agency that 
approved the home study, the home study preparer, the applicant, the 
relevant State or local child welfare agency, or any appropriate 
licensed professional, as needed to clarify issues concerning whether 
the applicant is suitable as the adoptive parent of a Convention 
adoptee. If this consultation yields evidence that is adverse to the 
applicant, the USCIS officer may rely on the evidence only after 
complying with the provisions of 8 CFR 103.2(b)(16) relating to the 
applicant's right to review and rebut adverse information.
    (c) Denial of application. (1) The USCIS officer will deny the Form 
I-800A if the officer finds that the applicant has failed to establish 
that the applicant is:
    (i) Eligible under 8 CFR 204.307(a) to file Form I-800A; or
    (ii) Suitable as the adoptive parent of a child from the Convention 
country.
    (2) Before denying a Form I-800A, the USCIS officer will comply with 
8 CFR 103.2(b)(16), if required to do so under that provision, and may 
issue a request for evidence or a notice of intent to deny under 8 CFR 
103.2(b)(8).
    (3) A denial will be in writing, giving the reason for the denial 
and notifying the applicant of the right to appeal, if any, as provided 
in 8 CFR 204.314.
    (4) It is for the Central Authority of the other Convention country 
to determine how its own adoption requirements, as disclosed in the home 
study under 8 CFR 204.311(q), should be applied in a given case. For 
this reason, the fact that the applicant may be ineligible to adopt in 
the other Convention country under those requirements, will not warrant 
the denial of a Form I-800A, if USCIS finds that the applicant has 
otherwise established eligibility and suitability as the adoptive parent 
of a Convention adoptee.
    (d) Approval notice. (1) If USCIS approves the Form I-800A, USCIS 
will notify the applicant in writing as well as the Department of State. 
The notice of approval will specify:
    (i) The expiration date for the notice of approval, as determined 
under paragraph (e) of this section, and
    (ii) The name(s) and marital status of the applicant; and
    (iii) If the applicant is not married and not yet 25 years old, the 
applicant's date of birth.
    (2) Once USCIS approves the Form I-800A, or extends the validity 
period for a prior approval under paragraph (e) of this section, any 
submission of the home study to the Central Authority of the country of 
the child's habitual residence must consist of the entire and complete 
text of the same home study and of any updates or amendments submitted 
to USCIS.
    (e) Duration or revocation of approval. (1) A notice of approval 
expires 15 months after the date on which USCIS received the FBI 
response on the applicant's, and any additional adult member of the 
household's, biometrics, unless approval is revoked. If USCIS received 
the responses on different days, the 15-month period begins on the 
earliest response date. The notice of approval will specify the 
expiration date. USCIS may extend the validity period for the approval 
of a Form I-800A only as provided in paragraph (e)(3) of this section.
    (2) (i) The approval of a Form I-800A is automatically revoked if 
before the final decision on a Convention adoptee's application for 
admission with an immigrant visa or for adjustment of status:
    (A) The marriage of the applicant terminates; or
    (B) An unmarried applicant marries; or
    (C) In the case of a married applicant, either spouse files with a 
USCIS or Department of State officer a written document withdrawing his 
or her signature on the Form I-800A.
    (ii) This revocation is without prejudice to the filing of a new 
Form I-800A, with fee, accompanied by a new or amended home study, 
reflecting the change in marital status. If a Form I-800 had already 
been filed based on the approval of the prior Form I-800A, a new Form I-
800 must also be filed with the new Form I-800A under this paragraph. 
The new Form I-800 will be adjudicated only if the new Form I-800A is 
approved. The new Form I-800 will not be subject to denial under 8 CFR 
204.309(b)(1) or (2), unless the original Form I-800 would have been 
subject to denial under either of those provisions.

[[Page 156]]

    (3)(i) If the 15-month validity period for a Form I-800A approval is 
about to expire, and the applicant has not filed a Form I-800, the 
applicant may file Form I-800A Supplement 3, with the filing fee under 8 
CFR 103.7(b)(1), if required. The applicant may not file a Form I-800A 
Supplement 3 seeking extension of an approval notice more than 90 days 
before the expiration of the validity period for the Form I-800A 
approval, but must do so on or before the date on which the validity 
period expires. The applicant is not required to pay the Form I-800A 
Supplement 3 filing fee for the first request to extend the approval of 
a Form I-800A. If the applicant files a second or subsequent Form I-800A 
Supplement 3 to obtain a second or subsequent extension, however, the 
applicant must pay the Form I-800A Supplement 3 filing fee, as specified 
in 8 CFR 103.7(b), for the second, or any subsequent, Form I-800A 
Supplement 3 that is filed to obtain a second or subsequent extension. 
Any Form I-800A Supplement 3 that is filed to obtain an extension of the 
approval of a Form I-800A must be accompanied by:
    (A) A statement, signed by the applicant under penalty of perjury, 
detailing any changes to the answers given to the questions on the 
original Form I-800A;
    (B) An updated or amended home study as required under 8 CFR 
204.311(u); and
    (C) A photocopy of the Form I-800A approval notice.
    (ii) Upon receipt of the Form I-800A Supplement 3, USCIS will 
arrange for the collection of the biometrics of the applicant and of 
each additional adult member of the applicant's household.
    (iii) If USCIS continues to be satisfied that the applicant remains 
suitable as the adoptive parent of a Convention adoptee, USCIS will 
extend the approval of the Form I-800A to a date not more than 15 months 
after the date on which USCIS received the new biometric responses. If 
new responses are received on different dates, the new 15-month period 
begins on the earliest response date. The new notice of approval will 
specify the new expiration date.
    (iv) There is no limit to the number of extensions that may be 
requested and granted under this section, so long as each request is 
supported by an updated or amended home study that continues to 
recommend approval of the applicant for intercountry adoption and USCIS 
continues to find that the applicant remain suitable as the adoptive 
parent(s) of a Convention adoptee.
    (4) In addition to the automatic revocation provided for in 
paragraph (e)(2) of this section, the approval of a Form I-800A may be 
revoked pursuant to 8 CFR 205.1 or 205.2.



Sec. 204.313  Filing and adjudication of a Form I-800.

    (a) When to file. Once a Form I-800A has been approved and the 
Central Authority has proposed placing a child for adoption by the 
petitioner, the petitioner may file the Form I-800. The petitioner must 
complete the Form I-800 in accordance with the instructions that 
accompany the Form I-800, and must sign the Form I-800 personally. In 
the case of a married petitioner, one spouse cannot sign for the other, 
even under a power of attorney or similar agency arrangement. The 
petitioner may then file the Form I-800 with the stateside or overseas 
USCIS office or the visa issuing post that has jurisdiction under 8 CFR 
204.308(b) to adjudicate the Form I-800, together with the evidence 
specified in this section and the filing fee specified in 8 CFR 
103.7(b)(1), if more than one Form I-800 is filed for children who are 
not siblings.
    (b) What to include on the Form. (1) The petitioner must specify on 
the Form I-800 either that:
    (i) The child will seek an immigrant visa, if the Form I-800 is 
approved, because the child will reside in the United States with the 
petitioner (in the case of a married petitioner, if only one spouse is a 
United States citizen, with that spouse) after the child's admission to 
the United States on the basis of the proposed adoption; or
    (ii) The child will seek a nonimmigrant visa, in order to travel to 
the United States to obtain naturalization under section 322 of the Act, 
because the petitioner intends to complete the adoption abroad and the 
petitioner and the child will continue to reside abroad immediately 
following

[[Page 157]]

the adoption, rather than residing in the United States with the 
petitioner. This option is not available if the child will be adopted in 
the United States.
    (2) In applying this paragraph (b), if a petitioner is a United 
States citizen who is domiciled in the United States, but who is posted 
abroad temporarily under official orders as a member of the Uniformed 
Services as defined in 5 U.S.C. 2101, or as a civilian officer or 
employee of the United States Government, the child will be deemed to be 
coming to the United States to reside in the United States with that 
petitioner.
    (c) Filing deadline. (1) The petitioner must file the Form I-800 
before the expiration of the notice of the approval of the Form I-800A 
and before the child's 16th birthday. Paragraphs (c)(2) and (3) of this 
section provide special rules for determining that this requirement has 
been met.
    (2) If the appropriate Central Authority places the child with the 
petitioner for intercountry adoption more than 6 months after the 
child's 15th birthday but before the child's 16th birthday, the 
petitioner must still file the Form I-800 before the child's 16th 
birthday. If the evidence required by paragraph (d)(3) or (4) of this 
section is not yet available, instead of that evidence, the petitioner 
may submit a statement from the primary provider, signed under penalty 
of perjury under United States law, confirming that the Central 
Authority has, in fact, made the adoption placement on the date 
specified in the statement. Submission of a Form I-800 with this 
statement will satisfy the statutory requirement that the petition must 
be submitted before the child's 16th birthday, but no provisional or 
final approval of the Form I-800 will be granted until the evidence 
required by paragraph (d)(3) or (4) of this section has been submitted. 
When submitted, the evidence required by paragraph (d)(3) and (4) must 
affirmatively show that the Central Authority did, in fact, make the 
adoption placement decision before the child's 16th birthday.
    (3) If the Form I-800A was filed after the child's 15th birthday but 
before the child's 16th birthday, the filing date of the Form I-800A 
will be deemed to be the filing date of the Form I-800, provided the 
Form I-800 is filed not more than 180 days after the initial approval of 
the Form I-800A.
    (d) Required evidence. Except as specified in paragraph (c)(2) of 
this section, the petitioner must submit the following evidence with the 
properly completed Form I-800:
    (1) The Form I-800A approval notice and, if applicable, proof that 
the approval period has been extended under 8 CFR 204.312(e);
    (2) A statement from the primary provider, as defined in 22 CFR 
96.2, signed under penalty of perjury under United States law, 
indicating that all of the pre-placement preparation and training 
provided for in 22 CFR 96.48 has been completed;
    (3) The report required under article 16 of the Convention, 
specifying the child's name and date of birth, the reasons for making 
the adoption placement, and establishing that the competent authority 
has, as required under article 4 of the Convention:
    (i) Established that the child is eligible for adoption;
    (ii) Determined, after having given due consideration to the 
possibility of placing the child for adoption within the Convention 
country, that intercountry adoption is in the child's best interests;
    (iii) Ensured that the legal custodian, after having been counseled 
as required, concerning the effect of the child's adoption on the legal 
custodian's relationship to the child and on the child's legal 
relationship to his or her family of origin, has freely consented in 
writing to the child's adoption, in the required legal form;
    (iv) Ensured that if any individual or entity other than the legal 
custodian must consent to the child's adoption, this individual or 
entity, after having been counseled as required concerning the effect of 
the child's adoption, has freely consented in writing, in the required 
legal form, to the child's adoption;
    (v) Ensured that the child, after having been counseled as 
appropriate concerning the effects of the adoption; has freely consented 
in writing, in the required legal form, to the adoption, if the child is 
of an age that, under the

[[Page 158]]

law of the country of the child's habitual residence, makes the child's 
consent necessary, and that consideration was given to the child's 
wishes and opinions; and
    (vi) Ensured that no payment or inducement of any kind has been 
given to obtain the consents necessary for the adoption to be completed.
    (4) The report under paragraph (d)(3) of this section must be 
accompanied by:
    (i) A copy of the child's birth certificate, or secondary evidence 
of the child's age; and
    (ii) A copy of the irrevocable consent(s) signed by the legal 
custodian(s) and any other individual or entity who must consent to the 
child's adoption unless, as permitted under article 16 of the 
Convention, the law of the country of the child's habitual residence 
provides that their identities may not be disclosed, so long as the 
Central Authority of the country of the child's habitual residence 
certifies in its report that the required documents exist and that they 
establish the child's age and availability for adoption;
    (iii) A statement, signed under penalty of perjury by the primary 
provider (or an authorized representative if the primary provider is an 
agency or other juridical person), certifying that the report is a true, 
correct, and complete copy of the report obtained from the Central 
Authority of the Convention country;
    (iv) A summary of the information provided to the petitioner under 
22 CFR 96.49(d) and (f) concerning the child's medical and social 
history. This summary, or a separate document, must include:
    (A) A statement concerning whether, from any examination as 
described in 22 CFR 96.49(e) or for any other reason, there is reason to 
believe that the child has any medical condition that makes the child 
inadmissible under section 212(a)(1) of the Act; if the medical 
information that is available at the provisional approval stage is not 
sufficient to assess whether the child may be inadmissible under section 
212(a)(1), the submission of this information may be deferred until the 
petitioner seeks final approval of the Form I-800;
    (B) If both of the child's birth parents were the child's legal 
custodians and signed the irrevocable consent, the factual basis for 
determining that they are incapable of providing proper care for the 
child, as defined in 8 CFR 204.301;
    (C) Information about the circumstances of the other birth parent's 
death, if applicable, supported by a copy of the death certificate, 
unless paragraph (d)(4)(ii) of this section makes it unnecessary to 
provide a copy of the death certificate;
    (D) If a sole birth parent was the legal custodian, the 
circumstances leading to the determination that the other parent 
abandoned or deserted the child, or disappeared from the child's life; 
and
    (E) If the legal custodian was the child's prior adoptive parent(s) 
or any individual or entity other than the child's birth parent(s), the 
circumstances leading to the custodian's acquisition of custody of the 
child and the legal basis of that custody.
    (v) If the child will be adopted in the United States, the primary 
provider's written report, signed under penalty of perjury by the 
primary provider (or an authorized representative if the primary 
provider is an agency or other juridical person) detailing the primary 
adoption service provider's plan for post-placement duties, as specified 
in 22 CFR 96.50; and
    (5) If the child may be inadmissible under any provision of section 
212(a) for which a waiver is available, a properly completed waiver 
application for each such ground; and
    (6) Either a Form I-864W, Intending Immigrant's I-864 Exemption, or 
a Form I-864, Affidavit of Support, as specified in 8 CFR 213a.2.
    (e) Obtaining the home study and supporting evidence. The materials 
from the Form I-800A proceeding will be included in the record of the 
Form I-800 proceeding.
    (f) Investigation. An investigation concerning the alien child's 
status as a Convention adoptee will be completed before the Form I-800 
is adjudicated in any case in which the officer with jurisdiction to 
grant provisional or final approval of the Form I-800 determines,

[[Page 159]]

on the basis of specific facts, that completing the investigation will 
aid in the provisional or final adjudication of the Form I-800. 
Depending on the circumstances surrounding the case, the investigation 
may include, but is not limited to, document checks, telephone checks, 
interview(s) with the birth or prior adoptive parent(s), a field 
investigation, and any other appropriate investigatory actions. In any 
case in which there are significant differences between the facts 
presented in the approved Form I-800A or Form I-800 and the facts 
uncovered by the investigation, the office conducting the investigation 
may consult directly with the appropriate USCIS office. In any instance 
where the investigation reveals negative information sufficient to 
sustain a denial of the Form I-800 (including a denial of a Form I-800 
that had been provisionally approved) or the revocation of the final 
approval of the Form I-800, the results of the investigation, including 
any supporting documentation, and the Form I-800 and its supporting 
documentation will be forwarded to the appropriate USCIS office for 
action. Although USCIS is not precluded from denying final approval of a 
Form I-800 based on the results of an investigation under this 
paragraph, the grant of provisional approval under paragraph (g), and 
the fact that the Department of State has given the notice contemplated 
by article 5(c) of the Convention, shall constitute prima facie evidence 
that the grant of adoption or custody for purposes of adoption will, 
ordinarily, warrant final approval of the Form I-800. The Form I-800 may 
still be denied, however, if the Secretary of State declines to issue 
the certificate provided for under section 204(d)(2) of the Act or if 
the investigation under this paragraph establishes the existence of 
facts that clearly warrant denial of the petition.
    (g) Provisional approval. (1) The officer will consider the evidence 
described in paragraph (d) of this section and any additional evidence 
acquired as a result of any investigation completed under paragraph (f) 
of this section, to determine whether the preponderance of the evidence 
shows that the child qualifies as a Convention adoptee. Unless 8 CFR 
204.309(b) prohibits approval of the Form I-800, the officer will serve 
the petitioner with a written order provisionally approving the Form I-
800 if the officer determines that the child does qualify for 
classification as a ``child'' under section 101(b)(1)(G), and that the 
proposed adoption or grant of custody will meet the Convention 
requirements.
    (i) The provisional approval will expressly state that the child 
will, upon adoption or acquisition of custody, be eligible for 
classification as a Convention adoptee, adjudicate any waiver 
application and (if any necessary waiver of inadmissibility is granted) 
direct the petitioner to obtain and present the evidence required under 
paragraph (h) of this section in order to obtain final approval of the 
Form I-800.
    (ii) The grant of a waiver of inadmissibility in conjunction with 
the provisional approval of a Form I-800 is conditioned upon the 
issuance of an immigrant or nonimmigrant visa for the child's admission 
to the United States based on the final approval of the same Form I-800. 
If the Form I-800 is finally denied or the immigrant or nonimmigrant 
visa application is denied, the waiver is void.
    (2) If the petitioner filed the Form I-800 with USCIS and the child 
will apply for an immigrant or nonimmigrant visa, then, upon provisional 
approval of the Form I-800, the officer will forward the notice of 
provisional approval, Form I-800, and all supporting evidence to the 
Department of State. If the child will apply for adjustment of status, 
USCIS will retain the record of proceeding.
    (h) Final approval. (1) To obtain final approval of a provisionally 
approved Form I-800, the petitioner must submit to the Department of 
State officer who has jurisdiction of the child's application for an 
immigrant or nonimmigrant visa, or to the USCIS officer who has 
jurisdiction of the child's adjustment of status application, a copy of 
the following document(s):
    (i) If the child is adopted in the Convention country, the adoption 
decree or administrative order from the competent authority in the 
Convention country showing that the petitioner has adopted the child; in 
the case of a married petitioner, the decree or order

[[Page 160]]

must show that both spouses adopted the child; or
    (ii) If the child will be adopted in the United States:
    (A) The decree or administrative order from the competent authority 
in the Convention country giving custody of the child for purposes of 
emigration and adoption to the petitioner or to an individual or entity 
acting on behalf of the petitioner. In the case of a married petitioner, 
an adoption decree that shows that the child was adopted only by one 
spouse, but not by both, will be deemed to show that the petitioner has 
acquired sufficient custody to bring the child to the United States for 
adoption by the other spouse;
    (B) If not already provided before the provisional approval 
(because, for example, the petitioner thought the child would be adopted 
abroad, but that plan has changed so that the child will now be adopted 
in the United States), a statement from the primary provider, signed 
under penalty of perjury under United States law, summarizing the plan 
under 22 CFR 96.50 for monitoring of the placement until the adoption is 
finalized in the United States;
    (C) If not already provided before the provisional approval 
(because, for example, the petitioner thought the child would be adopted 
abroad, but that plan has changed so that the child will now be adopted 
in the United States), a written description of the preadoption 
requirements that apply to adoptions in the State of the child's 
proposed residence and a description of when and how, after the child's 
immigration, the petitioner intends to complete the child's adoption. 
The written description must include a citation to the relevant State 
statutes or regulations and specify how the petitioner intends to comply 
with any requirements that can be satisfied only after the child arrives 
in the United States.
    (2) If the Secretary of State, after reviewing the evidence that the 
petitioner provides under paragraph (h)(1)(i) or (ii) of this section, 
issues the certificate required under section 204(d)(2) of the Act, the 
Department of State officer who has jurisdiction over the child's visa 
application has authority, on behalf of USCIS, to grant final approval 
of a Form I-800. In the case of an alien who will apply for adjustment 
of status, the USCIS officer with jurisdiction of the adjustment 
application has authority to grant this final approval upon receiving 
the Secretary of State's certificate under section 204(d)(2) of the Act.
    (i) Denial of Form I-800. (1) A USCIS officer with authority to 
grant provisional or final approval will deny the Form I-800 if the 
officer finds that the child does not qualify as a Convention adoptee, 
or that 8 CFR 204.309(b) of this section requires denial of the Form I-
800. Before denying a Form I-800, the officer will comply with the 
requirements of 8 CFR 103.2(b)(16)), if required to do so under that 
provision, and may issue a request for evidence or a notice of intent to 
deny under 8 CFR 103.2(b)(8).
    (2) The decision will be in writing, specifying the reason(s) for 
the denial and notifying the petitioner of the right to appeal, if any, 
as specified in 8 CFR 204.314.
    (3) If a Department of State officer finds, either at the 
provisional approval stage or the final approval stage, that the Form I-
800 is ``not clearly approvable,'' or that 8 CFR 204.309(b) warrants 
denial of the Form I-800, the Department of State officer will forward 
the Form I-800 and accompanying evidence to the USCIS office with 
jurisdiction over the place of the child's habitual residence for review 
and decision.



Sec. 204.314  Appeal.

    (a) Decisions that may be appealed.
    (1) Except as provided in paragraph (b) of this section:
    (i) An applicant may appeal the denial of a Form I-800A (including 
the denial of a request to extend the prior approval of a Form I-800A) 
and
    (ii) A petitioner may appeal the denial of a Form I-800.
    (2) The provisions of 8 CFR 103.3, concerning how to file an appeal, 
and how USCIS adjudicates an appeal, apply to the appeal of a decision 
under this subpart C.
    (b) Decisions that may not be appealed. There is no appeal from the 
denial of:
    (1) Form I-800A because the Form I-800A was filed during any period 
during

[[Page 161]]

which 8 CFR 204.307(c) bars the filing of a Form I-800A; or
    (2) Form I-800A for failure to timely file a home study as required 
by 8 CFR 204.310(a)(3)(viii); or
    (3) Form I-800 that is denied because the Form I-800 was filed 
during any period during which 8 CFR 204.307(c) bars the filing of a 
Form I-800;
    (4) Form I-800 filed either before USCIS approved a Form I-800A or 
after the expiration of the approval of a Form I-800A.



PART 205_REVOCATION OF APPROVAL OF PETITIONS--Table of Contents




Sec.
205.1 Automatic revocation.
205.2 Revocation on notice.

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182, and 
1186a.



Sec. 205.1  Automatic revocation.

    (a) Reasons for automatic revocation. The approval of a petition or 
self-petition made under section 204 of the Act and in accordance with 
part 204 of this chapter is revoked as of the date of approval:
    (1) If the Secretary of State shall terminate the registration of 
the beneficiary pursuant to the provisions of section 203(e) of the Act 
before October 1, 1991, or section 203(g) of the Act on or after October 
1, 1994;
    (2) If the filing fee and associated service charge are not paid 
within 14 days of the notification to the remitter that his or her check 
or other financial instrument used to pay the filing fee has been 
returned as not payable; or
    (3) If any of the following circumstances occur before the 
beneficiary's or self-petitioner's journey to the United States 
commences or, if the beneficiary or self-petitioner is an applicant for 
adjustment of status to that of a permanent resident, before the 
decision on his or her adjustment application becomes final:
    (i) Immediate relative and family-sponsored petitions, other than 
Amerasian petitions. (A) Upon written notice of withdrawal filed by the 
petitioner or self-petitioner with any officer of the Service who is 
authorized to grant or deny petitions.
    (B) Upon the death of the beneficiary or the self-petitioner.
    (C) Upon the death of the petitioner, unless:
    (1) The petition is deemed under 8 CFR 204.2(i)(1)(iv) to have been 
approved as a Form I-360, Petition for Amerasian, Widow(er) or Special 
Immigrant under 8 CFR 204.2(b); or
    (2) U.S. Citizenship and Immigration Services (USCIS) determines, as 
a matter of discretion exercised for humanitarian reasons in light of 
the facts of a particular case, that it is inappropriate to revoke the 
approval of the petition. USCIS may make this determination only if the 
principal beneficiary of the visa petition asks for reinstatement of the 
approval of the petition and establishes that a person related to the 
principal beneficiary in one of the ways described in section 
213A(f)(5)(B) of the Act is willing and able to file an affidavit of 
support under 8 CFR part 213a as a substitute sponsor.
    (D) Upon the legal termination of the marriage when a citizen or 
lawful permanent resident of the United States has petitioned to accord 
his or her spouse immediate relative or family-sponsored preference 
immigrant classification under section 201(b) or section 203(a)(2) of 
the Act. The approval of a spousal self-petition based on the 
relationship to an abusive citizen or lawful permanent resident of the 
United States filed under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) 
of the Act, however, will not be revoked solely because of the 
termination of the marriage to the abuser.
    (E) Upon the remarriage of the spouse of an abusive citizen or 
lawful permanent resident of the United States when the spouse has self-
petitioned under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the 
Act for immediate relative classification under section 201(b) of the 
Act or for preference classification under section 203(a)(2) of the Act.
    (F) Upon a child reaching the age of 21, when he or she has been 
accorded immediate relative status under section 201(b) of the Act. A 
petition filed on behalf of a child under section 204(a)(1)(A)(i) of the 
Act or a self-petition filed by a child of an abusive United States 
citizen under section

[[Page 162]]

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.
    (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

[[Page 163]]

the petition for classification as a special immigrant juvenile was 
filed before June 1, 1994, or unless the change in circumstances 
resulted from the beneficiary's adoption or placement in a guardianship 
situation:
    (A) Upon the beneficiary reaching the age of 21;
    (B) Upon the marriage of the beneficiary;
    (C) Upon the termination of the beneficiary's dependency upon the 
juvenile court;
    (D) Upon the termination of the beneficiary's eligibility for long-
term foster care; or
    (E) Upon the determination in administrative or judicial proceedings 
that it is in the beneficiary's best interest to be returned to the 
country of nationality or last habitual residence of the beneficiary or 
of his or her parent or parents.
    (b) Notice. When it shall appear to the director that the approval 
of a petition has been automatically revoked, he or she shall cause a 
notice of such revocation to be sent promptly to the consular office 
having jurisdiction over the visa application and a copy of such notice 
to be mailed to the petitioner's last known address.

[61 FR 13077, Mar. 26, 1996, as amended at 71 FR 35749, June 21, 2006]



Sec. 205.2  Revocation on notice.

    (a) General. Any Service officer authorized to approve a petition 
under section 204 of the Act may revoke the approval of that petition 
upon notice to the petitioner on any ground other than those specified 
in Sec. 205.1 when the necessity for the revocation comes to the 
attention of this Service.
    (b) Notice of intent. Revocation of the approval of a petition of 
self-petition under paragraph (a) of this section will be made only on 
notice to the petitioner or self-petitioner. The petitioner or self-
petitioner must be given the opportunity to offer evidence in support of 
the petition or self-petition and in opposition to the grounds alleged 
for revocation of the approval.
    (c) Notification of revocation. If, upon reconsideration, the 
approval previously granted is revoked, the director shall provide the 
petitioner or the self-petitioner with a written notification of the 
decision that explains the specific reasons for the revocation. The 
director shall notify the consular officer having jurisdiction over the 
visa application, if applicable, of the revocation of an approval.
    (d) Appeals. The petitioner or self-petitioner may appeal the 
decision to revoke the approval within 15 days after the service of 
notice of the revocation. The appeal must be filed as provided in part 3 
of this chapter, unless the Associate Commissioner for Examinations 
exercises appellate jurisdiction over the revocation under part 103 of 
this chapter. Appeals filed with the Associate Commissioner for 
Examinations must meet the requirements of part 103 of this chapter.

[48 FR 19156, Apr. 28, 1983, as amended at 58 FR 42851, Aug. 12, 1993; 
61 FR 13078, Mar. 26, 1996]



PART 207_ADMISSION OF REFUGEES--Table of Contents




Sec.
207.1 Eligibility.
207.2 Applicant 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 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/

[[Page 164]]

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]



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

[[Page 165]]

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 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

[[Page 166]]

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]



Sec. 207.8  Physical presence in the United States.

    For the purpose of adjustment of status under section 209(a)(1) of 
the Act, the required one year physical presence of the applicant in the 
United States is

[[Page 167]]

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 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

[[Page 168]]

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;
    (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;

[[Page 169]]

    (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 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

[[Page 170]]

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 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

[[Page 171]]

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:
    (i) Serious illness or mental or physical disability, including any 
effects of persecution or violent harm suffered in

[[Page 172]]

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.
    (6) Safe Third Country Agreement. Asylum officers have authority to 
apply section 208(a)(2)(A) of the Act, relating to the determination 
that the alien may be removed to a safe country pursuant to a bilateral 
or multilateral agreement, only as provided in 8 CFR 208.30(e). For 
provisions relating to the authority of immigration judges with respect 
to section 208(a)(2)(A), see 8 CFR 1240.11(g).
    (b) Filing location--(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

[[Page 173]]

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 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; 69 FR 69488, Nov. 
29, 2004]



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,

[[Page 174]]

that parole is required to meet a medical emergency or is necessary for 
a legitimate law enforcement objective.
    (c) Exception to prohibition on removal. A motion to reopen or an 
order to remand accompanied by an asylum application pursuant to Sec. 
208.4(b)(3)(iii) shall not stay execution of a final exclusion, 
deportation, or removal order unless such stay is specifically granted 
by the Board of Immigration Appeals or the immigration judge having 
jurisdiction over the motion.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65 
FR 76132, Dec. 6, 2000]



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

[[Page 175]]

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 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

[[Page 176]]

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 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

[[Page 177]]

English and the applicant's native language or any other language in 
which the applicant is fluent. The interpreter must be at least 18 years 
of age. Neither the applicant's attorney or representative of record, a 
witness testifying on the applicant's behalf, nor a representative or 
employee of the applicant's country of nationality, or if stateless, 
country of last habitual residence, may serve as the applicant's 
interpreter. Failure without good cause to comply with this paragraph 
may be considered a failure to appear for the interview for purposes of 
Sec. 208.10.

[62 FR 10337, Mar. 6, 1997, as amended at 65 FR 76133, Dec. 6, 2000]



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

[[Page 178]]

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. 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;

[[Page 179]]

    (B) There is a reasonable possibility of suffering such persecution 
if he or she were to return to that country; and
    (C) He or she is unable or unwilling to return to, or avail himself 
or herself of the protection of, that country because of such fear.
    (ii) An applicant does not have a well-founded fear of persecution 
if the applicant could avoid persecution by relocating to another part 
of the applicant's country of nationality or, if stateless, another part 
of the applicant's country of last habitual residence, if under all the 
circumstances it would be reasonable to expect the applicant to do so.
    (iii) In evaluating whether the applicant has sustained the burden 
of proving that he or she has a well-founded fear of persecution, the 
asylum officer or immigration judge shall not require the applicant to 
provide evidence that there is a reasonable possibility he or she would 
be singled out individually for persecution if:
    (A) The applicant establishes that there is a pattern or practice in 
his or her country of nationality or, if stateless, in his or her 
country of last habitual residence, of persecution of a group of persons 
similarly situated to the applicant on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion; and
    (B) The applicant establishes his or her own inclusion in, and 
identification with, such group of persons such that his or her fear of 
persecution upon return is reasonable.
    (3) Reasonableness of internal relocation. For purposes of 
determinations under paragraphs (b)(1)(i), (b)(1)(ii), and (b)(2) of 
this section, adjudicators should consider, but are not limited to 
considering, whether the applicant would face other serious harm in the 
place of suggested relocation; any ongoing civil strife within the 
country; administrative, economic, or judicial infrastructure; 
geographical limitations; and social and cultural constraints, such as 
age, gender, health, and social and familial ties. Those factors may, or 
may not, be relevant, depending on all the circumstances of the case, 
and are not necessarily determinative of whether it would be reasonable 
for the applicant to relocate.
    (i) In cases in which the applicant has not established past 
persecution, the applicant shall bear the burden of establishing that it 
would not be reasonable for him or her to relocate, unless the 
persecution is by a government or is government-sponsored.
    (ii) In cases in which the persecutor is a government or is 
government-sponsored, or the applicant has established persecution in 
the past, it shall be presumed that internal relocation would not be 
reasonable, unless the Service establishes by a preponderance of the 
evidence that, under all the circumstances, it would be reasonable for 
the applicant to relocate.
    (c) Mandatory denials--(1) Applications filed on or after April 1, 
1997. For applications filed on or after April 1, 1997, an applicant 
shall not qualify for asylum if section 208(a)(2) or 208(b)(2) of the 
Act applies to the applicant. If the applicant is found to be ineligible 
for asylum under either section 208(a)(2) or 208(b)(2) of the Act, the 
applicant shall be considered for eligibility for withholding of removal 
under section 241(b)(3) of the Act. The applicant shall also be 
considered for eligibility for withholding of removal under the 
Convention Against Torture if the applicant requests such consideration 
or if the evidence presented by the alien indicates that the alien may 
be tortured in the country of removal.
    (2) Applications filed before April 1, 1997. (i) An immigration 
judge or asylum officer shall not grant asylum to any applicant who 
filed his or her application before April 1, 1997, if the alien:
    (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

[[Page 180]]

of any person on account of race, religion, nationality, membership in a 
particular social group, or political opinion.
    (ii) If the evidence indicates that one of the above grounds apply 
to the applicant, he or she shall have the burden of proving by a 
preponderance of the evidence that he or she did not so act.
    (F) Is described within section 212(a)(3)(B)(i)(I),(II), and (III) 
of the Act as it existed prior to April 1, 1997, and as amended by the 
Anti-terrorist and Effective Death Penalty Act of 1996 (AEDPA), unless 
it is determined that there are no reasonable grounds to believe that 
the individual is a danger to the security of the United States.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65 
FR 76133, Dec. 6, 2000]



Sec. 208.14  Approval, denial, referral, or dismissal of application.

    (a) By an immigration judge. Unless otherwise prohibited in Sec. 
208.13(c), an immigration judge may grant or deny asylum in the exercise 
of discretion to an applicant who qualifies as a refugee under section 
101(a)(42) of the Act.
    (b) Approval by an asylum officer. In any case within the 
jurisdiction of the 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

[[Page 181]]

based on information elicited from the asylum interview, an asylum 
officer may refer the applicant directly to an immigration judge in 
removal proceedings under section 240 of the Act, without conducting a 
separate credible fear interview pursuant to Sec. 208.30. If such 
applicant is not found to have a credible fear based on information 
elicited at the asylum interview, an asylum officer will conduct a 
credible fear interview and the applicant will be subject to the 
credible fear process specified at Sec. 208.30(b).
    (B) Inadmissible on other grounds. In the case of an applicant who 
was paroled into the United States on or after April 1, 1997, and will 
be charged as inadmissible to the United States under provisions of the 
Act other than, or in addition to, sections 212(a)(6)(C) or 212(a)(7), 
the asylum officer shall refer the application to an immigration judge 
for adjudication in removal proceedings.
    (d) Applicability of Sec. 103.2(b) of this chapter. No application 
for asylum or withholding of deportation shall be subject to denial 
pursuant to Sec. 103.2(b) of this chapter.
    (e) Duration. If the applicant is granted asylum, the grant will be 
effective for an indefinite period, subject to termination as provided 
in Sec. 208.24.
    (f) Effect of denial of principal's application on separate 
applications by dependents. The denial of an asylum application filed by 
a principal applicant for asylum shall also result in the denial of 
asylum status to any dependents of that principal applicant who are 
included in that same application. Such denial shall not preclude a 
grant of asylum for an otherwise eligible dependent who has filed a 
separate asylum application, nor shall such denial result in an 
otherwise eligible dependent becoming ineligible to apply for asylum due 
to the provisions of section 208(a)(2)(C) of the Act.
    (g) Applicants granted lawful permanent residence status. If an 
asylum applicant is granted adjustment of status to lawful permanent 
resident, the Service may provide written notice to the applicant that 
his or her asylum application will be presumed abandoned and dismissed 
without prejudice, unless the applicant submits a written request within 
30 days of the notice, that the asylum application be adjudicated. If an 
applicant does not respond within 30 days of the date the written notice 
was sent or served, the Service may presume the asylum application 
abandoned and dismiss it without prejudice.

[62 FR 10337, Mar. 6, 1997, as amended at 63 FR 12986, Mar. 17, 1998; 64 
FR 27875, May 21, 1999; 65 FR 76134, Dec. 6, 2000]



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]

[[Page 182]]



Sec. 208.16  Withholding of removal under section 241(b)(3)(B) of the Act and 

withholding of removal under the Convention Against Torture.

    (a) Consideration of application for withholding of removal. An 
asylum officer shall not decide whether the exclusion, deportation, or 
removal of an alien to a country where the alien's life or freedom would 
be threatened must be withheld, except in the case of an alien who is 
otherwise eligible for asylum but is precluded from being granted such 
status due solely to section 207(a)(5) of the Act. In exclusion, 
deportation, or removal proceedings, an immigration judge may adjudicate 
both an asylum claim and a request for withholding of removal whether or 
not asylum is granted.
    (b) Eligibility for withholding of removal under section 241(b)(3) 
of the Act; burden of proof. The burden of proof is on the applicant for 
withholding of removal under section 241(b)(3) of the Act to establish 
that his or her life or freedom would be threatened in the proposed 
country of removal on account of race, religion, nationality, membership 
in a particular social group, or political opinion. The testimony of the 
applicant, if credible, may be sufficient to sustain the burden of proof 
without corroboration. The evidence shall be evaluated as follows:
    (1) Past threat to life or freedom. (i) If the applicant is 
determined to have suffered past persecution in the proposed country of 
removal on account of race, religion, nationality, membership in a 
particular social group, or political opinion, it shall be presumed that 
the applicant's life or freedom would be threatened in the future in the 
country of removal on the basis of the original claim. This presumption 
may be rebutted if an asylum officer or immigration judge finds by a 
preponderance of the evidence:
    (A) There has been a fundamental change in circumstances such that 
the applicant's life or freedom would not be threatened on account of 
any of the five grounds mentioned in this paragraph upon the applicant's 
removal to that country; or
    (B) The applicant could avoid a future threat to his or her life or 
freedom by relocating to another part of the proposed country of removal 
and, under all the circumstances, it would be reasonable to expect the 
applicant to do so.
    (ii) In cases in which the applicant has established past 
persecution, the Service shall bear the burden of establishing by a 
preponderance of the evidence the requirements of paragraphs 
(b)(1)(i)(A) or (b)(1)(i)(B) of this section.
    (iii) If the applicant's fear of future threat to life or freedom is 
unrelated to the past persecution, the applicant bears the burden of 
establishing that it is more likely than not that he or she would suffer 
such harm.
    (2) Future threat to life or freedom. An applicant who has not 
suffered past persecution may demonstrate that his or her life or 
freedom would be threatened in the future in a country if he or she can 
establish that it is more likely than not that he or she would be 
persecuted on account of race, religion, nationality, membership in a 
particular social group, or political opinion upon removal to that 
country. Such an applicant cannot demonstrate that his or her life or 
freedom would be threatened if the asylum officer or immigration judge 
finds that the applicant could avoid a future threat to his or her life 
or freedom by relocating to another part of the proposed country of 
removal and, under all the circumstances, it would be reasonable to 
expect the applicant to do so. In evaluating whether it is more likely 
than not that the applicant's life or freedom would be threatened in a 
particular country on account of race, religion, nationality, membership 
in a particular social group, or political opinion, the asylum officer 
or immigration judge shall not require the applicant to provide evidence 
that he or she would be singled out individually for such persecution 
if:
    (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

[[Page 183]]

life or freedom would be threatened upon return to that country.
    (3) Reasonableness of internal relocation. For purposes of 
determinations under paragraphs (b)(1) and (b)(2) of this section, 
adjudicators should consider, among other things, whether the applicant 
would face other serious harm in the place of suggested relocation; any 
ongoing civil strife within the country; administrative, economic, or 
judicial infrastructure; geographical limitations; and social and 
cultural constraints, such as age, gender, health, and social and 
familial ties. These factors may or may not be relevant, depending on 
all the circumstances of the case, and are not necessarily determinative 
of whether it would be reasonable for the applicant to relocate.
    (i) In cases in which the applicant has not established past 
persecution, the applicant shall bear the burden of establishing that it 
would not be reasonable for him or her to relocate, unless the 
persecutor is a government or is government-sponsored.
    (ii) In cases in which the persecutor is a government or is 
government-sponsored, or the applicant has established persecution in 
the past, it shall be presumed that internal relocation would not be 
reasonable, unless the Service establishes by a preponderance of the 
evidence that under all the circumstances it would be reasonable for the 
applicant to relocate.
    (c) Eligibility for withholding of removal under the Convention 
Against Torture. (1) For purposes of regulations under Title II of the 
Act, ``Convention Against Torture'' shall refer to the United Nations 
Convention Against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment, subject to any reservations, understandings, 
declarations, and provisos contained in the United States Senate 
resolution of ratification of the Convention, as implemented by section 
2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (Pub. 
L. 105-277, 112 Stat. 2681, 2681-821). The definition of torture 
contained in Sec. 208.18(a) of this part shall govern all decisions 
made under regulations under Title II of the Act about the applicability 
of Article 3 of the Convention Against Torture.
    (2) The burden of proof is on the applicant for withholding of 
removal under this paragraph to establish that it is more likely than 
not that he or she would be tortured if removed to the proposed country 
of removal. The testimony of the applicant, if credible, may be 
sufficient to sustain the burden of proof without corroboration.
    (3) In assessing whether it is more likely than not that an 
applicant would be tortured in the proposed country of removal, all 
evidence relevant to the possibility of future torture shall be 
considered, including, but not limited to:
    (i) Evidence of past torture inflicted upon the applicant;
    (ii) Evidence that the applicant could relocate to a part of the 
country of removal where he or she is not likely to be tortured;
    (iii) Evidence of gross, flagrant or mass violations of human rights 
within the country of removal, where applicable; and
    (iv) Other relevant information regarding conditions in the country 
of removal.
    (4) In considering an application for withholding of removal under 
the Convention Against Torture, the immigration judge shall first 
determine whether the alien is more likely than not to be tortured in 
the country of removal. If the immigration judge determines that the 
alien is more likely than not to be tortured in the country of removal, 
the alien is entitled to protection under the Convention Against 
Torture. Protection under the Convention Against Torture will be granted 
either in the form of withholding of removal or in the form of deferral 
of removal. An alien entitled to such protection shall be granted 
withholding of removal unless the alien is subject to 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)

[[Page 184]]

and (d)(3) of this section, an application for withholding of 
deportation or removal to a country of proposed removal shall be granted 
if the applicant's eligibility for withholding is established pursuant 
to paragraphs (b) or (c) of this section.
    (2) Mandatory denials. Except as provided in paragraph (d)(3) of 
this section, an application for withholding of removal under section 
241(b)(3) of the Act or under the Convention Against Torture shall be 
denied if the applicant falls within section 241(b)(3)(B) of the Act or, 
for applications for withholding of deportation adjudicated in 
proceedings commenced prior to April 1, 1997, within section 243(h)(2) 
of the Act as it appeared prior to that date. For purposes of section 
241(b)(3)(B)(ii) of the Act, or section 243(h)(2)(B) of the Act as it 
appeared prior to April 1, 1997, an alien who has been convicted of a 
particularly serious crime shall be considered to constitute a danger to 
the community. If the evidence indicates the applicability of one or 
more of the grounds for denial of withholding enumerated in the Act, the 
applicant shall have the burden of proving by a preponderance of the 
evidence that such grounds do not apply.
    (3) Exception to the prohibition on withholding of deportation in 
certain cases. Section 243(h)(3) of the Act, as added by section 413 of 
Pub. L. 104-132 (110 Stat. 1214), shall apply only to applications 
adjudicated in proceedings commenced before April 1, 1997, and in which 
final action had not been taken before April 24, 1996. The discretion 
permitted by that section to override section 243(h)(2) of the Act shall 
be exercised only in the case of an applicant convicted of an aggravated 
felony (or felonies) where he or she was sentenced to an aggregate term 
of imprisonment of less than 5 years and the immigration judge 
determines on an individual basis that the crime (or crimes) of which 
the applicant was convicted does not constitute a particularly serious 
crime. Nevertheless, it shall be presumed that an alien convicted of an 
aggravated felony has been convicted of a particularly serious crime. 
Except in the cases specified in this paragraph, the grounds for denial 
of withholding of deportation in section 243(h)(2) of the Act as it 
appeared prior to April 1, 1997, shall be deemed to comply with the 
Protocol Relating to the Status of Refugees, Jan. 31, 1967, T.I.A.S. No. 
6577.
    (e) Reconsideration of discretionary denial of asylum. In the event 
that an applicant is denied asylum solely in the exercise of discretion, 
and the applicant is subsequently granted withholding of deportation or 
removal under this section, thereby effectively precluding admission of 
the applicant's spouse or minor children following to join him or her, 
the denial of asylum shall be reconsidered. Factors to be considered 
will include the reasons for the denial and reasonable alternatives 
available to the applicant such as reunification with his or her spouse 
or minor children in a third country.
    (f) Removal to third country. Nothing in this section or Sec. 
208.17 shall prevent the Service from removing an alien to a third 
country other than the country to which removal has been withheld or 
deferred.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65 
FR 76135, Dec. 6, 2000]



Sec. 208.17  Deferral of removal under the Convention Against Torture.

    (a) Grant of deferral of removal. An alien who: has been ordered 
removed; has been found under Sec. 208.16(c)(3) to be entitled to 
protection under the Convention Against Torture; and is subject to the 
provisions for mandatory denial of withholding of removal under Sec. 
208.16(d)(2) or (d)(3), shall be granted deferral of removal to the 
country where he or she is more likely than not to be tortured.
    (b) Notice to alien. (1) After an immigration judge orders an alien 
described in paragraph (a) of this section removed, the immigration 
judge shall inform the alien that his or her removal to the country 
where he or she is more 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

[[Page 185]]

of the Service if the alien is subject to such custody;
    (iii) Is effective only until terminated; and
    (iv) Is subject to review and termination if the immigration judge 
determines that it is not likely that the alien would be tortured in the 
country to which removal has been deferred, or if the alien requests 
that deferral be terminated.
    (2) The immigration judge shall also inform the alien that removal 
has been deferred only to the country in which it has been determined 
that the alien is likely to be tortured, and that the alien may be 
removed at any time to another country where he or she is not likely to 
be tortured.
    (c) Detention of an alien granted deferral of removal under this 
section. Nothing in this section shall alter the authority of the 
Service to detain an alien whose removal has been deferred under this 
section and who is otherwise subject to detention. In the case of such 
an alien, decisions about the alien's release shall be made according to 
part 241 of this chapter.
    (d) Termination of deferral of removal. (1) At any time while 
deferral of removal is in effect, the INS District Counsel for the 
District with jurisdiction over an alien whose removal has been deferred 
under paragraph (a) of this section may file a motion with the 
Immigration Court having administrative control pursuant to Sec. 3.11 
of this chapter to schedule a hearing to consider whether deferral of 
removal should be terminated. The Service motion shall be granted if it 
is accompanied by evidence that is relevant to the possibility that the 
alien would be tortured in the country to which removal has been 
deferred and that was not presented at the previous hearing. The Service 
motion shall not be subject to the requirements for reopening in 
Sec. Sec. 3.2 and 3.23 of this chapter.
    (2) The Immigration Court shall provide notice to the alien and the 
Service of the time, place, and date of the termination hearing. Such 
notice shall inform the alien that the alien may supplement the 
information in his or her initial application for withholding of removal 
under the Convention Against Torture and shall provide that the alien 
must submit any such supplemental information within 10 calendar days of 
service of such notice (or 13 calendar days if service of such notice 
was by mail). At the expiration of this 10 or 13 day period, the 
Immigration Court shall forward a copy of the original application, and 
any supplemental information the alien or the Service has submitted, to 
the Department of State, together with notice to the Department of State 
of the time, place and date of the termination hearing. At its option, 
the Department of State may provide comments on the case, according to 
the provisions of Sec. 208.11 of this part.
    (3) The immigration judge shall conduct a hearing and make a de novo 
determination, based on the record of proceeding and initial application 
in addition to any new evidence submitted by the Service or the alien, 
as to whether the alien is more likely than not to be tortured in the 
country to which removal has been deferred. This determination shall be 
made under the standards for eligibility set out in Sec. 208.16(c). The 
burden is on the alien to establish that it is more likely than not that 
he or she would be tortured in the country to which removal has been 
deferred.
    (4) If the immigration judge determines that the alien is more 
likely than not to be tortured in the country to which removal has been 
deferred, the order of deferral shall remain in place. If the 
immigration judge determines that the alien has not established that he 
or she is more likely than not to be tortured in the country to which 
removal has been deferred, the deferral of removal shall be terminated 
and the alien may be removed to that country. Appeal of the immigration 
judge's decision shall lie to the Board.
    (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

[[Page 186]]

knowing and voluntary, the immigration judge shall terminate the order 
of deferral and the alien may be removed.
    (2) If necessary the immigration judge may calendar a hearing for 
the sole purpose of determining whether the alien's request is knowing 
and voluntary. If the immigration judge determines that the alien's 
request is knowing and voluntary, the order of deferral shall be 
terminated. If the immigration judge determines that the alien's request 
is not knowing and voluntary, the alien's request shall not serve as the 
basis for terminating the order of deferral.
    (f) Termination pursuant to Sec. 208.18(c). At any time while 
deferral of removal is in effect, the Attorney General may determine 
whether deferral should be terminated based on diplomatic assurances 
forwarded by the Secretary of State pursuant to the procedures in Sec. 
208.18(c).

[64 FR 8489, Feb. 19, 1999]



Sec. 208.18  Implementation of the Convention Against Torture.

    (a) Definitions. The definitions in this subsection incorporate the 
definition of torture contained in Article 1 of the Convention Against 
Torture, subject to the reservations, understandings, declarations, and 
provisos contained in the United States Senate resolution of 
ratification of the Convention.
    (1) Torture is defined as any act by which severe pain or suffering, 
whether physical or mental, is intentionally inflicted on a person for 
such purposes as obtaining from him or her or a third person information 
or a confession, punishing him or her for an act he or she or a third 
person has committed or is suspected of having committed, or 
intimidating or coercing him or her or a third person, or for any reason 
based on discrimination of any kind, when such pain or suffering is 
inflicted by or at the instigation of or with the consent or 
acquiescence of a public official or other person acting in an official 
capacity.
    (2) Torture is an extreme form of cruel and inhuman treatment and 
does not include lesser forms of cruel, inhuman or degrading treatment 
or punishment that do not amount to torture.
    (3) Torture does not include pain or suffering arising only from, 
inherent in or incidental to lawful sanctions. Lawful sanctions include 
judicially imposed sanctions and other enforcement actions authorized by 
law, including the death penalty, but do not include sanctions that 
defeat the object and purpose of the Convention Against Torture to 
prohibit torture.
    (4) In order to constitute torture, mental pain or suffering must be 
prolonged mental harm caused by or resulting from:
    (i) The intentional infliction or threatened infliction of severe 
physical pain or suffering;
    (ii) The administration or application, or threatened administration 
or application, of mind altering substances or other procedures 
calculated to disrupt profoundly the senses or the personality;
    (iii) The threat of imminent death; or
    (iv) The threat that another person will imminently be subjected to 
death, severe physical pain or suffering, or the administration or 
application of mind altering substances or other procedures calculated 
to disrupt profoundly the sense or personality.
    (5) In order to constitute torture, an act must be specifically 
intended to inflict severe physical or mental pain or suffering. An act 
that results in unanticipated or unintended severity of pain and 
suffering is not torture.
    (6) In order to constitute torture an act must be directed against a 
person in the offender's custody or physical control.
    (7) Acquiescence of a public official requires that the public 
official, prior to the activity constituting torture, have awareness of 
such activity and thereafter breach his or her legal responsibility to 
intervene to prevent such activity.
    (8) Noncompliance with applicable legal procedural standards does 
not per se constitute torture.
    (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

[[Page 187]]

considered for deferral of removal under Sec. 208.17(a).
    (2) Aliens who were ordered removed, or whose removal orders became 
final, before March 22, 1999. An alien under a final order of 
deportation, exclusion, or removal that became final prior to March 22, 
1999 may move to reopen proceedings for the sole purpose of seeking 
protection under Sec. 208.16(c). Such motions shall be governed by 
Sec. Sec. 3.23 and 3.2 of this chapter, except that the time and 
numerical limitations on motions to reopen shall not apply and the alien 
shall not be required to demonstrate that the evidence sought to be 
offered was unavailable and could not have been discovered or presented 
at the former hearing. The motion to reopen shall not be granted unless:
    (i) The motion is filed within June 21, 1999; and
    (ii) The evidence sought to be offered establishes a prima facie 
case that the applicant's removal must be withheld or deferred under 
Sec. Sec. 208.16(c) or 208.17(a).
    (3) Aliens who, on March 22, 1999, have requests pending with the 
Service for protection under Article 3 of the Convention Against 
Torture. (i) Except as otherwise provided, after March 22, 1999, the 
Service will not:
    (A) Consider, under its pre-regulatory administrative policy to 
ensure compliance with the Convention Against Torture, whether Article 3 
of that Convention prohibits the removal of an alien to a particular 
country, or
    (B) Stay the removal of an alien based on a request filed with the 
Service for protection under Article 3 of that Convention.
    (ii) For each alien who, on or before March 22, 1999, filed a 
request with the Service for protection under Article 3 of the 
Convention Against Torture, and whose request has not been finally 
decided by the Service, the Service shall provide written notice that, 
after March 22, 1999, consideration for protection under Article 3 can 
be obtained only through the provisions of this rule.
    (A) The notice shall inform an alien who is under an order of 
removal issued by EOIR that, in order to seek consideration of a claim 
under Sec. Sec. 208.16(c) or 208.17(a), such an alien must file a 
motion to reopen with the immigration court or the Board of Immigration 
Appeals. This notice shall be accompanied by a stay of removal, 
effective until 30 days after service of the notice on the alien. A 
motion to reopen filed under this paragraph for the limited purpose of 
asserting a claim under Sec. Sec. 208.16(c) or 208.17(a) shall not be 
subject to the requirements for reopening in Sec. Sec. 3.2 and 3.23 of 
this chapter. Such a motion shall be granted if it is accompanied by a 
copy of the notice described in paragraph (b)(3)(ii) or by other 
convincing evidence that the alien had a request pending with the 
Service for protection under Article 3 of the Convention Against Torture 
on March 22, 1999. The filing of such a motion shall extend the stay of 
removal during the pendency of the adjudication of this motion.
    (B) The notice shall inform an alien who is under an administrative 
order of removal issued by the Service under section 238(b) of the Act 
or an exclusion, deportation, or removal order reinstated by the Service 
under section 241(a)(5) of the Act that the alien's claim to withholding 
of removal under Sec. 208.16(c) or deferral of removal under Sec. 
208.17(a) will be considered under Sec. 208.31.
    (C) The notice shall inform an alien who is under an administrative 
order of removal issued by the Service under section 235(c) of the Act 
that the alien's claim to protection under the Convention Against 
Torture will be decided by the Service as provided in Sec. 208.18(d) 
and 235.8(b)(4) and will not be considered under the provisions of this 
part relating to consideration or review by an immigration judge, the 
Board of Immigration Appeals, or an asylum officer.
    (4) Aliens whose claims to protection under the Convention Against 
Torture were finally decided by the Service prior to March 22, 1999. 
Sections 208.16(c) and 208.17 (a) and paragraphs (b)(1) through (b)(3) 
of this section do not apply to cases in which, prior to March 22, 1999, 
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

[[Page 188]]

that an applicant cannot be removed consistent with the Convention 
Against Torture, the alien shall be considered to have been granted 
withholding of removal under Sec. 208.16(c), unless the alien is 
subject to mandatory denial of withholding of removal under Sec. 
208.16(d)(2) or (d)(3), in which case the alien will be considered to 
have been granted deferral of removal under 208.17(a). If, prior to 
March 22, 1999, the Service determined that an alien can be removed 
consistent with the Convention Against Torture, the alien will be 
considered to have been finally denied withholding of removal under 
Sec. 208.16(c) and deferral of removal under Sec. 208.17(a).
    (c) Diplomatic assurances against torture obtained by the Secretary 
of State. (1) The Secretary of State may forward to the Attorney General 
assurances that the Secretary has obtained from the government of a 
specific country that an alien would not be tortured there if the alien 
were removed to that country.
    (2) If the Secretary of State forwards assurances described in 
paragraph (c)(1) of this section to the Attorney General for 
consideration by the Attorney General or her delegates under this 
paragraph, the Attorney General shall determine, in consultation with 
the Secretary of State, whether the assurances are sufficiently reliable 
to allow the alien's removal to that country consistent with Article 3 
of the Convention Against Torture. The Attorney General's authority 
under this paragraph may be exercised by the Deputy Attorney General or 
by the Commissioner, Immigration and Naturalization Service, but may not 
be further delegated.
    (3) Once assurances are provided under paragraph (c)(2) of this 
section, the alien's claim for protection under the Convention Against 
Torture shall not be considered further by an immigration judge, the 
Board of Immigration Appeals, or an asylum officer.
    (d) Cases involving aliens ordered removed under section 235(c) of 
the Act. With respect to an alien terrorist or other alien subject to 
administrative removal under section 235(c) of the Act who requests 
protection under Article 3 of the Convention Against Torture, the 
Service will assess the applicability of Article 3 through the removal 
process to ensure that a removal order will not be executed under 
circumstances that would violate the obligations of the United States 
under Article 3. In such cases, the provisions of Part 208 relating to 
consideration or review by an immigration judge, the Board of 
Immigration Appeals, or an asylum officer shall not apply.
    (e) Judicial review of claims for protection from removal under 
Article 3 of the Convention Against Torture. (1) Pursuant to the 
provisions of section 2242(d) of the Foreign Affairs Reform and 
Restructuring Act of 1998, there shall be no judicial appeal or review 
of any action, decision, or claim raised under the Convention or that 
section, except as part of the review of a final order of removal 
pursuant to section 242 of the Act; provided however, that any appeal or 
petition regarding an action, decision, or claim under the Convention or 
under section 2242 of the Foreign Affairs Reform and Restructuring Act 
of 1998 shall not be deemed to include or authorize the consideration of 
any administrative order or decision, or portion thereof, the appeal or 
review of which is restricted or prohibited by the Act.
    (2) Except as otherwise expressly provided, nothing in this 
paragraph shall be construed to create a private right of action or to 
authorize the consideration or issuance of administrative or judicial 
relief.

[64 FR 8490, Feb. 19, 1999; 64 FR 13881, Mar. 23, 1999]



Sec. 208.19  Decisions.

    The decision of an asylum officer to grant or to deny asylum or to 
refer an asylum application, in accordance with Sec. 208.14(b) or (c), 
shall be communicated in writing to the applicant. Pursuant to Sec. 
208.9(d), an applicant must appear in person to receive and to 
acknowledge receipt of the decision to grant or 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

[[Page 189]]

denial or referral and include an assessment of the applicant's 
credibility.

[65 FR 76136, Dec. 6, 2000]



Sec. 208.20  Determining if an asylum application is frivolous.

    For applications filed on or after April 1, 1997, an applicant is 
subject to the provisions of section 208(d)(6) of the Act only if a 
final order by an immigration judge or the Board of Immigration Appeals 
specifically finds that the alien knowingly filed a frivolous asylum 
application. For purposes of this section, an asylum application is 
frivolous if any of its material elements is deliberately fabricated. 
Such finding shall only be made if the immigration judge or the Board is 
satisfied that the applicant, during the course of the proceedings, has 
had sufficient opportunity to account for any discrepancies or 
implausible aspects of the claim. For purposes of this section, a 
finding that an alien filed a frivolous asylum application shall not 
preclude the alien from seeking withholding of removal.

[64 FR 8492, Feb. 19, 1999. Redesignated at 65 FR 76136, Dec. 6, 2000]



Sec. 208.21  Admission of the asylee's spouse and children.

    (a) Eligibility. In accordance with section 208(b)(3) of the Act, a 
spouse, as defined in section 101(a)(35) of the Act, 8 U.S.C. 
1101(a)(35), or child, as defined in section 101(b)(1) of the Act, also 
may be granted asylum if accompanying, or following to join, the 
principal alien who was granted asylum, unless it is determined that the 
spouse or child is ineligible for asylum under section 208(b)(2)(A)(i), 
(ii), (iii), (iv) or (v) of the Act for applications filed on or after 
April 1, 1997, or under Sec. 208.13(c)(2)(i)(A), (C), (D), (E), or (F) 
for applications filed before April 1, 1997.
    (b) Relationship. The relationship of spouse and child as defined in 
sections 101(a)(35) and 101(b)(1) of the Act must have existed at the 
time the principal alien's asylum application was approved and must 
continue to exist at the time of filing for accompanying or following-
to-join benefits and at the time of the spouse or child's subsequent 
admission to the United States. If the asylee proves that the asylee is 
the parent of a child who was born after asylum was granted, but who was 
in utero on the date of the asylum grant, the child shall be eligible to 
accompany or follow-to-join the asylee. The child's mother, if not the 
principal asylee, shall not be eligible to accompany or follow-to-join 
the principal asylee unless the child's mother was the principal 
asylee's spouse on the date the principal asylee was granted asylum.
    (c) Spouse or child in the United States. When a spouse or child of 
an alien granted asylum is in the United States, but was not included in 
the asylee's 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

[[Page 190]]

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 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

[[Page 191]]

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
    (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

[[Page 192]]

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, 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.

[[Page 193]]

    (5) If the alien is unable to proceed effectively in English, and if 
the asylum officer is unable to proceed competently in a language chosen 
by the alien, the asylum officer shall arrange for the assistance of an 
interpreter in conducting the interview. The interpreter must be at 
least 18 years of age and may not be the applicant's attorney or 
representative of record, a witness testifying on the applicant's 
behalf, a representative or employee of the applicant's country of 
nationality, or, if the applicant is stateless, the applicant's country 
of last habitual residence.
    (6) The asylum officer shall create a summary of the material facts 
as stated by the applicant. At the conclusion of the interview, the 
officer shall review the summary with the alien and provide the alien 
with an opportunity to correct any errors therein.
    (e) Determination. (1) The asylum officer shall create a written 
record of his or her determination, including a summary of the material 
facts as stated by the applicant, any additional facts relied on by the 
officer, and the officer's determination of whether, in light of such 
facts, the alien has established a credible fear of persecution or 
torture.
    (2) An alien will be found to have a credible fear of persecution if 
there is a significant possibility, taking into account the credibility 
of the statements made by the alien in support of the alien's claim and 
such other facts as are known to the officer, the alien can establish 
eligibility for asylum under section 208 of the Act or for withholding 
of removal under section 241(b)(3) of the Act.
    (3) An alien will be found to have a credible fear of torture if the 
alien shows that there is a significant possibility that he or she is 
eligible for withholding of removal or deferral of removal under the 
Convention Against Torture, pursuant to 8 CFR 208.16 or 208.17.
    (4) In determining whether the alien has a credible fear of 
persecution, as defined in section 235(b)(1)(B)(v) of the Act, or a 
credible fear of torture, the asylum officer shall consider whether the 
alien's case presents novel or unique issues that merit consideration in 
a full hearing before an immigration judge.
    (5) Except as provided in paragraph (e)(6) of this section, if an 
alien is able to establish a credible fear of persecution or torture but 
appears to be subject to one or more of the mandatory bars to applying 
for, or being granted, asylum contained in section 208(a)(2) and 
208(b)(2) of the Act, or to withholding of removal contained in section 
241(b)(3)(B) of the Act, the Department of Homeland Security shall 
nonetheless place the alien in proceedings under section 240 of the Act 
for full consideration of the alien's claim, if the alien is not a 
stowaway. If the alien is a stowaway, the Department shall place the 
alien in proceedings for consideration of the alien's claim pursuant to 
8 CFR 208.2(c)(3).
    (6) Prior to any determination concerning whether an alien arriving 
in the United States at a U.S.-Canada land border port-of-entry or in 
transit through the U.S. during removal by Canada has a credible fear of 
persecution or torture, the asylum officer shall conduct a threshold 
screening interview to determine whether such an alien is ineligible to 
apply for asylum pursuant to section 208(a)(2)(A) of the Act and subject 
to removal to Canada by operation of the Agreement Between the 
Government of the United States and the Government of Canada For 
Cooperation in the Examination of Refugee Status Claims from Nationals 
of Third Countries (``Agreement''). In conducting this threshold 
screening interview, the asylum officer shall apply all relevant 
interview procedures outlined in paragraph (d) of this section, 
provided, however, that paragraph (d)(2) of this section shall not apply 
to aliens described in this paragraph. The asylum officer shall advise 
the alien of the Agreement's exceptions and question the alien as to 
applicability of any of these exceptions to the alien's case.
    (i) If the asylum officer, with concurrence from a supervisory 
asylum officer, determines that an alien does not qualify for an 
exception under the Agreement during this threshold screening interview, 
the alien is ineligible to apply for asylum in the United

[[Page 194]]

States. After the asylum officer's documented finding is reviewed by a 
supervisory asylum officer, the alien shall be advised that he or she 
will be removed to Canada in order to pursue his or her claims relating 
to a fear of persecution or torture under Canadian law. Aliens found 
ineligible to apply for asylum under this paragraph shall be removed to 
Canada.
    (ii) If the alien establishes by a preponderance of the evidence 
that he or she qualifies for an exception under the terms of the 
Agreement, the asylum officer shall make a written notation of the basis 
of the exception, and then proceed immediately to a determination 
concerning whether the alien has a credible fear of persecution or 
torture under paragraph (d) of this section.
    (iii) An alien qualifies for an exception to the Agreement if the 
alien is not being removed from Canada in transit through the United 
States and
    (A) Is a citizen of Canada or, not having a country of nationality, 
is a habitual resident of Canada;
    (B) Has in the United States a spouse, son, daughter, parent, legal 
guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or 
nephew who has been granted asylum, refugee, or other lawful status in 
the United States, provided, however, that this exception shall not 
apply to an alien whose relative maintains only nonimmigrant visitor 
status, as defined in section 101(a)(15)(B) of the Act, or whose 
relative maintains only visitor status based on admission to the United 
States pursuant to the Visa Waiver Program;
    (C) Has in the United States a spouse, son, daughter, parent, legal 
guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or 
nephew who is at least 18 years of age and has an asylum application 
pending before U.S. Citizenship and Immigration Services, the Executive 
Office for Immigration Review, or on appeal in federal court in the 
United States;
    (D) Is unmarried, under 18 years of age, and does not have a parent 
or legal guardian in either Canada or the United States;
    (E) Arrived in the United States with a validly issued visa or other 
valid admission document, other than for transit, issued by the United 
States to the alien, or, being required to hold a visa to enter Canada, 
was not required to obtain a visa to enter the United States; or
    (F) The Director of USCIS, or the Director's designee, determines, 
in the exercise of unreviewable discretion, that it is in the public 
interest to allow the alien to pursue a claim for asylum, withholding of 
removal, or protection under the Convention Against Torture, in the 
United States.
    (iv) As used in 8 CFR 208.30(e)(6)(iii)(B), (C) and (D) only, 
``legal guardian'' means a person currently vested with legal custody of 
such an alien or vested with legal authority to act on the alien's 
behalf, provided that such an alien is both unmarried and less than 18 
years of age, and provided further that any dispute with respect to 
whether an individual is a legal guardian will be resolved on the basis 
of U.S. law.
    (7) An asylum officer's determination shall not become final until 
reviewed by a supervisory asylum officer.
    (f) Procedures for a positive credible fear finding. If an alien, 
other than an alien stowaway, is found to have a credible fear of 
persecution or torture, the asylum officer will so inform the alien and 
issue a Form I-862, Notice to Appear, for full consideration of the 
asylum and withholding of removal claim in proceedings under section 240 
of the Act. If an alien stowaway is found to have a credible fear of 
persecution or torture, the asylum officer will so inform the alien and 
issue a Form I-863, Notice of Referral to Immigration Judge, for full 
consideration of the asylum claim, or the withholding of removal claim, 
in proceedings under Sec. 208.2(c). Parole of the alien may be 
considered only in accordance with section 212(d)(5) of the Act and 
Sec. 212.5 of this chapter.
    (g) Procedures for a negative credible fear finding. (1) If an alien 
is found not to have a credible fear of persecution or torture, the 
asylum officer shall provide the alien with a written notice of decision 
and inquire whether the alien wishes to have an immigration judge review 
the negative decision, using

[[Page 195]]

Form I-869, Record of Negative Credible Fear Finding and Request for 
Review by Immigration Judge. The alien shall indicate whether he or she 
desires such review on Form I-869. A refusal by the alien to make such 
indication shall be considered a request for review.
    (i) If the alien requests such review, or refuses to either request 
or decline such review, the asylum officer shall arrange for detention 
of the alien and serve him or her with a Form I-863, Notice of Referral 
to Immigration Judge, for review of the credible fear determination in 
accordance with paragraph (f)(2) of this section.
    (ii) If the alien is not a stowaway and does not request a review by 
an immigration judge, the officer shall order the alien removed and 
issue a Form I-860, Notice and Order of Expedited Removal, after review 
by a supervisory asylum officer.
    (iii) If the alien is a stowaway and the alien does not request a 
review by an immigration judge, the asylum officer shall refer the alien 
to the district director for completion of removal proceedings in 
accordance with section 235(a)(2) of the Act.
    (2) Review by immigration judge of a negative credible fear finding.
    (i) Immigration judges will review negative credible fear findings 
as provided in 8 CFR 1208.30(g)(2).
    (ii) The record of the negative credible fear determination, 
including copies of the Form I-863, the asylum officer's notes, the 
summary of the material facts, and other materials upon which the 
determination was based shall be provided to the immigration judge with 
the negative determination.

[65 FR 76136, Dec. 6, 2000, as amended at 69 FR 69488, Nov. 29, 2004]



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 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,

[[Page 196]]

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.
    (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.

[[Page 197]]



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 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;

[[Page 198]]

    (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 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

[[Page 199]]

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.
    (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

[[Page 200]]

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 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

[[Page 201]]

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.
    (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

[[Page 202]]

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 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

[[Page 203]]

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 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

[[Page 204]]

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 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

[[Page 205]]

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.
    (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;

[[Page 206]]

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 
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

[[Page 207]]

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 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

[[Page 208]]

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]



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

[[Page 209]]

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 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)

[[Page 210]]

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, 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.

[[Page 211]]


    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 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

[[Page 212]]

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 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

[[Page 213]]

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.
    (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

[[Page 214]]

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.
212.0 Definitions.
212.1 Documentary requirements for nonimmigrants.
212.2 Consent to reapply for admission after deportation, removal or 
          departure at Government expense.
212.3 Application for the exercise of discretion under section 212(c).
212.4 Applications for the exercise of discretion under section 
          212(d)(1) and 212(d)(3).
212.5 Parole of aliens into the United States.
212.6 Border crossing identification cards.
212.7 Waiver of certain grounds of inadmissibility.
212.8 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.
212.17 Applications for the exercise of discretion relating to U 
          nonimmigrant status.
212.18 Applications for waivers of inadmissibility in connection with an 
          application for adjustment of status by T nonimmigrant status 
          holders.

    Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 
1187, 1223, 1225, 1226, 1227; 8 U.S.C. 1185 note (section 7209 of Pub. 
L. 108-458).

    Effective Date Note: At 73 FR 18415, Apr. 3, 2008, the authority 
citation to Part 212 was revised, effective June 1, 2009. For the 
convenience of the user, the revised text is set forth as follows:
    Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 
1187, 1223, 1225, 1226, 1227, 1359; 8 U.S.C. 1185 note (section 7209 of 
Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295 and by 
section 723 of Pub. L. 110-53).

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



Sec. 212.0  Definitions.

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

[73 FR 18415, Apr. 3, 2008]

    Effective Date Note: At 73 FR 18415, Apr. 3, 2008, Sec. 212.0 was 
added, effective June 1, 2009.



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

[[Page 215]]

a class described in section 102 of the Act is not required to extend 
beyond the date of his application for admission if so admitted, and 
except as otherwise provided in the Act, this chapter, and for the 
following classes:
    (a) Citizens of Canada or Bermuda, Bahamian nationals or British 
subjects resident in certain islands--(1) Canadian citizens. A visa is 
not required. A passport is not required for Canadian citizens entering 
the United States from within the Western Hemisphere by land or sea, or 
as participants in the NEXUS Air program at a NEXUS Air kiosk pursuant 
to 8 CFR 235.1(e). A passport is otherwise required for Canadian 
citizens arriving in the United States by aircraft.
    (2) Citizens of the British Overseas Territory of Bermuda. A visa is 
not required. A passport is not required for Citizens of the British 
Overseas Territory of Bermuda entering the United States from within the 
Western Hemisphere by land or sea. A passport is required for Citizens 
of the British Overseas Territory of Bermuda arriving in the United 
States by aircraft.
    (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.
    (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 a contiguous territory by land or sea.

[[Page 216]]

    (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 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

[[Page 217]]

    (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 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,

[[Page 218]]

    (D) Issued by a carrier which has entered into an agreement 
described in part (5)(i) of this section, and
    (E) Which the carrier will unconditionally honor when presented for 
return passage; and
    (iv) Transport only an alien in possession of a completed and signed 
Visa Waiver Information Form I-736.
    (f) Direct transits.
    (1)-(2) [Reserved]
    (3) Foreign government officials in transit. If an alien is of the 
class described in section 212(d)(8) of the Act, only a valid unexpired 
visa and a travel document valid for entry into a foreign country for at 
least 30 days from the date of admission to the United States are 
required.
    (g) Unforeseen emergency. A nonimmigrant seeking admission to the 
United States must present an unexpired visa and passport valid for the 
amount of time set forth in section 212(a)(7)(B) of the Act, 8 U.S.C. 
1182(a)(7), or a valid biometric border crossing card, issued by the DOS 
on Form DSP-150, at the time of application for admission, unless the 
nonimmigrant satisfies the requirements described in one or more of the 
paragraphs (a) through (f) or (i), (o), or (p) of this section. Upon a 
nonimmigrant's application on Form I-193, ``Application for Waiver of 
Passport and/or Visa,'' a district director may, in the exercise of his 
or her discretion, on a case-by-case basis, waive the documentary 
requirements, if satisfied that the nonimmigrant cannot present the 
required documents because of an unforeseen emergency. The district 
director may at any time revoke a waiver previously authorized pursuant 
to this paragraph and notify the nonimmigrant in writing to that effect.
    (h) Nonimmigrant spouses, fianc[eacute]es, fianc[eacute]s, and 
children of U.S. citizens. Notwithstanding any of the provisions of this 
part, an alien seeking admission as a spouse, fianc[eacute]e, 
fianc[eacute], or child of a U.S. citizen, or as a child of the spouse, 
fian[eacute], or finac[eacute]e of a U.S. citizen, pursuant to section 
101(a)(15)(K) of the Act shall be in possession of an unexpired 
nonimmigrant visa issued by an American consular officer classifying the 
alien under that section, or be inadmissible under section 212(a)(7)(B) 
of the Act.
    (i) Visa Waiver Pilot Program. A visa is not required of any alien 
who is eligible to apply for admission to the United States as a Visa 
Waiver Pilot Program applicant pursuant to the provisions of section 217 
of the Act and part 217 of this chapter if such alien is a national of a 
country designated under the Visa Waiver Pilot Program, who seeks 
admission to the United States for a period of 90 days or less as a 
visitor for business or pleasure.
    (j) Officers authorized to act upon recommendations of United States 
consular officers for waiver of visa and passport requirements. All 
district directors, the officers in charge are authorized to act upon 
recommendations made by United States consular officers or by officers 
of the Visa Office, Department of State, pursuant to the provisions of 
22 CFR 41.7 for waiver of visa and passport requirements under the 
provisions of section 212(d)(4)(A) of the Act. The District Director at 
Washington, DC, has jurisdiction in such cases recommended to the 
Service at the seat of Government level by the Department of State. 
Neither an application nor fee are required if the concurrence in a 
passport or visa waiver is requested by a U.S. consular officer or by an 
officer of the Visa Office. The district director or the Deputy 
Commissioner, may at any time revoke a waiver previously authorized 
pursuant to this paragraph and notify the nonimmigrant alien in writing 
to that effect.
    (k) Cancellation of nonimmigrant visas by immigration officers. Upon 
receipt of advice from the Department of State that a nonimmigrant visa 
has been revoked or invalidated, and request by that Department for such 
action, immigration officers shall place an appropriate endorsement 
thereon.
    (l) Treaty traders and investors. Notwithstanding any of the 
provisions of this part, an alien seeking admission as a treaty trader 
or investor under the provisions of Chapter 16 of the North American 
Free Trade Agreement (NAFTA) pursuant to section 101(a)(15)(E) of the 
Act, shall be in possession of a nonimmigrant visa issued by an American 
consular officer

[[Page 219]]

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))

    (p) Alien in U-1 through U-5 classification. Individuals seeking U-1 
through U-5 nonimmigrant status may avail themselves of the provisions 
of paragraph (g) of this section, except that the authority to waive 
documentary requirements resides with the director of the USCIS office 
having jurisdiction over the adjudication of Form I-918, ``Petition for 
U Nonimmigrant Status.''

[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.



  212.1, Nt.--Table of Contents




    Effective Date Note: At 73 FR 18416, Apr. 3, 2008, Sec. 212.1 was 
amended by revising paragraphs (a)(1), (a)(2) and (c)(1), effective June 
1, 2009. For the convenience of the user, the revised text is set forth 
as follows:



Sec. 212.1  Documentary requirements for nonimmigrants.

                                * * * * *

    (a) Citizens of Canada or Bermuda, Bahamian nationals or British 
subjects resident in certain islands. (1) Canadian citizens. A visa is 
generally not required for Canadian citizens, except those Canadians 
that fall under nonimmigrant visa categories E, K, S, or V as provided 
in paragraphs (h), (l), and (m) of this section and 22 CFR 41.2. A valid 
unexpired passport is required for Canadian citizens arriving in the 
United States, except when meeting one of the following requirements:
    (i) NEXUS Program. A Canadian citizen who is traveling as a 
participant in the NEXUS program, and who is not otherwise required to 
present a passport and visa as provided in paragraphs (h), (l), and (m) 
of this section and 22 CFR 41.2, may present a valid unexpired NEXUS 
program card when using a NEXUS Air kiosk or when entering the United 
States from contiguous territory or adjacent islands at a land or sea 
port-of-entry. A Canadian citizen who enters the United States by 
pleasure vessel from Canada under the remote inspection system may 
present a valid unexpired NEXUS program card.
    (ii) FAST Program. A Canadian citizen who is traveling as a 
participant in the FAST program, and who is not otherwise required to 
present a passport and visa as provided in paragraphs (h), (l), and (m) 
of this section and 22 CFR 41.2, may present a valid unexpired FAST card 
at a land or sea port-of-entry prior to entering the United States from 
contiguous territory or adjacent islands.
    (iii) SENTRI Program. A Canadian citizen who is traveling as a 
participant in the SENTRI program, and who is not otherwise required to 
present a passport and visa as provided in paragraphs (h), (l), and (m) 
of this section and 22 CFR 41.2, may present a valid unexpired SENTRI 
card at a land or sea port-of-entry prior to entering the United States 
from contiguous territory or adjacent islands.
    (iv) Canadian Indians. If designated by the Secretary of Homeland 
Security, a Canadian citizen holder of a Indian and Northern Affairs 
Canada (``INAC'') card issued by the Canadian Department of Indian 
Affairs and North Development, Director of Land and Trust Services 
(``LTS'') in conformance with security standards agreed upon by the 
Governments of Canada and the United States, and containing a machine 
readable zone and who is arriving from Canada may present the card prior 
to entering the United States at a land port-of-entry.
    (v) Children. A child who is a Canadian citizen arriving from 
contiguous territory may

[[Page 220]]

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

                                * * * * *

    (c) Mexican nationals. (1) A visa and a passport are not required of 
a Mexican national who:
    (i) Is applying for admission as a temporary visitor for business or 
pleasure from Mexico at a land port-of-entry, or arriving by pleasure 
vessel or ferry, if the national is in possession of a Form DSP-150, B-
1/B-2 Visa and Border Crossing Card issued by the Department of State, 
containing a machine-readable biometric identifier; or.
    (ii) Is applying for admission from contiguous territory or adjacent 
islands at a land or sea port-of-entry, if the national is a member of 
the Texas Band of Kickapoo Indians or Kickapoo Tribe of Oklahoma who is 
in possession of a Form I-872 American Indian Card.



Sec. 212.2  Consent to reapply for admission after deportation, removal or 

departure at Government expense.

    (a) Evidence. Any alien who has been deported or removed from the 
United States is inadmissible to the United States unless the alien has 
remained outside of the United States for five consecutive years since 
the date of deportation or removal. If the alien has been convicted of 
an aggravated felony, he or she must remain outside of the United States 
for twenty consecutive years from the deportation date before he or she 
is eligible to re-enter the United States. Any alien who has been 
deported or removed from the United States and is applying for a visa, 
admission to the United States, or adjustment of status, must present 
proof that he or she has remained outside of the United States for the 
time period required for re-entry after deportation or removal. The 
examining consular or immigration officer must be satisfied that since 
the alien's deportation or removal, the alien has remained outside the 
United States for more than five consecutive years, or twenty 
consecutive years in the case of an alien convicted of an aggravated 
felony as defined in section 101(a)(43) of the Act. Any alien who does 
not satisfactorily present proof of absence from the United States for 
more than five consecutive years, or twenty consecutive years in the 
case of an alien convicted

[[Page 221]]

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 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.

[[Page 222]]

    (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]



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/

[[Page 223]]

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.
    (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

[[Page 224]]

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

If the alien desires to make multiple entries and the consular officer 
or other State Department official believes that the circumstances 
justify the issuance of a visa valid for multiple entries rather than 
for a specified number of entries, and recommends that the alien be 
accorded an authorization valid for multiple entries, the information 
required by items (ii) and (iii) shall be furnished only with respect to 
the initial entry. Item (ii) does not apply to a bona fide crewman. The 
consular officer or other State Department official shall be notified of 
the decision on his recommendation. No appeal by the alien shall lie 
from an adverse decision made by a Service officer on the recommendation 
of a consular officer or other State Department official.
    (2) Authority of consular officers to approve section 212(d)(3)(A) 
recommendations pertaining to aliens inadmissible under section 
212(a)(28)(C). In certain categories of visa cases defined by the 
Secretary of State, United States consular officers assigned to visa-
issuing posts abroad may, on behalf of the Attorney General pursuant to 
section 212(d)(3)(A) of the Act, approve a recommendation by another 
consular officer that an alien be admitted temporarily despite visa 
ineligibility solely because the alien is of the class of aliens defined 
at section 212(a)(28)(C) of the Act, as a result of presumed or actual 
membership in, or affiliation with, an organization described in that 
section. Authorizations for temporary admission granted by consular 
officers shall be subject to the terms specified in Sec. 212.4(c) of 
this chapter. Any recommendation which is not clearly approvable shall, 
and any recommendation may, be presented to the appropriate official of 
the Immigration and Naturalization Service for a determination.
    (b) Applications under section 212(d)(3)(B). An application for the 
exercise of discretion under section 212(d)(3)(B) of the Act shall be 
submitted on Form I-192 to the district director in charge of the 
applicant's intended port of entry prior to the applicant's arrival in 
the United States. (For Department of State procedure when a visa is 
required, see 22 CFR 41.95 and paragraph (a) of this section.) If the 
application is made because the applicant may be inadmissible due to 
present or past membership in or affiliation with any Communist or other 
totalitarian party or organization, there shall be attached to the 
application a written statement of the history of the applicant's 
membership or affiliation, including the period of such membership or 
affiliation, whether the applicant held any office in the organization, 
and whether his membership or affiliation was voluntary or involuntary. 
If the applicant alleges that his membership or affiliation was 
involuntary, the statement shall include the 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;

[[Page 225]]

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 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.

[[Page 226]]

    (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)(A)(iii). Pursuant to the 
authority contained in section 212(d)(3) of the Act, the temporary 
admission of a nonimmigrant visitor is authorized notwithstanding 
inadmissibility under section 212(a)(1)(A)(iii)(I) or (II) of the Act 
due to a mental disorder and associated threatening or harmful behavior, 
if such alien is accompanied by a member of his/her family, or a 
guardian who will be responsible for him/her during the period of 
admission authorized.
    (f) Inadmissibility under section 212(a)(1) for aliens inadmissible 
due to HIV--(1) General. Pursuant to the authority in section 
212(d)(3)(A)(i) of the Act, any alien who is inadmissible under section 
212(a)(1)(A)(i) of the Act due to infection with the etiologic agent for 
acquired immune deficiency syndrome (HIV infection) may be issued a B-1 
(business visitor) or B-2 (visitor for pleasure) nonimmigrant visa by a 
consular officer or the Secretary of State, and be authorized for 
temporary admission into the United States for a period not to exceed 30 
days, subject to authorization of an additional period or periods under 
paragraph (f)(5) of this section, provided that the authorization is 
granted in accordance with paragraphs (f)(2) through (f)(7) of this 
section. Application under this paragraph (f) may not be combined with 
any other waiver of inadmissibility.
    (2) Conditions. An alien who is HIV-positive who applies for a 
nonimmigrant visa before a consular officer may be issued a B-1 
(business visitor) or B-2 (visitor for pleasure) nonimmigrant visa and 
admitted to the United States for a period not to exceed 30 days, 
provided that the applicant establishes that:
    (i) The applicant has tested positive for HIV;
    (ii) The applicant is not currently exhibiting symptoms indicative 
of an active, contagious infection associated with acquired immune 
deficiency syndrome;
    (iii) The applicant is aware of, has been counseled on, and 
understands the nature, severity, and the communicability of his or her 
medical condition;
    (iv) The applicant's admission poses a minimal risk of danger to the 
public health in the United States and poses a minimal risk of danger of 
transmission of the infection to any other person in the United States;
    (v) The applicant will have in his or her possession, or will have 
access to, as medically appropriate, an adequate supply of 
antiretroviral drugs for the anticipated stay in the United States and 
possesses sufficient assets, such as insurance that is accepted in the 
United States, to cover any medical care that the applicant may require 
in the event of illness at any time while in the United States;
    (vi) The applicant's admission will not create any cost to the 
United States, or a state or local government, or any agency thereof, 
without the prior written consent of the agency;

[[Page 227]]

    (vii) The applicant is seeking admission solely for activities that 
are consistent with the B-1 (business visitor) or B-2 (visitor for 
pleasure) nonimmigrant classification;
    (viii) The applicant is aware that no single admission to the United 
States will be for a period that exceeds 30 days (subject to paragraph 
(f)(5) of this section);
    (ix) The applicant is otherwise admissible to the United States and 
no other ground of inadmissibility applies;
    (x) The applicant is aware that he or she cannot be admitted under 
section 217 of the Act (Visa Waiver Program);
    (xi) The applicant is aware that any failure to comply with any 
condition of admission set forth under this paragraph (f) will 
thereafter make him or her ineligible for authorization under this 
paragraph; and
    (xii) The applicant, for the purpose of admission pursuant to 
authorization under this paragraph (f), waives any opportunity to apply 
for an extension of nonimmigrant stay (except as provided in paragraph 
(f)(5) of this section), a change of nonimmigrant status, or adjustment 
of status to that of permanent resident.
    (A) Nothing in this paragraph (f) precludes an alien admitted under 
this paragraph (f) from applying for asylum pursuant to section 208 of 
the Act.
    (B) Any alien admitted under this paragraph (f) who applies for 
adjustment of status under section 209 of the Act after being granted 
asylum must establish his or her eligibility to adjust status under all 
applicable provisions of the Act and 8 CFR part 209. Any applicable 
ground of inadmissibility must be waived by approval of an appropriate 
waiver(s) under section 209(c) of the Act and 8 CFR 209.2(b).
    (C) Nothing within this paragraph (f) constitutes a waiver of 
inadmissibility under section 209 of the Act or 8 CFR part 209.
    (3) Nonimmigrant visa. A nonimmigrant visa issued to the applicant 
for purposes of temporary admission under section 212(d)(3)(A)(i) of the 
Act and this paragraph (f) may not be valid for more than 12 months or 
for more than two applications for admission during the 12-month period. 
The authorized period of stay will be for 30 calendar days calculated 
from the initial admission under this visa.
    (4) Application at U.S. port. If otherwise admissible, a holder of 
the nonimmigrant visa issued under section 212(d)(3)(A)(i) of the Act 
and this paragraph (f) is authorized to apply for admission at a United 
States port of entry at any time during the period of validity of the 
visa in only the B-1 (business visitor) or B-2 (visitor for pleasure) 
nonimmigrant categories.
    (5) Admission limited; satisfactory departure. Notwithstanding any 
other provision of this chapter, no single period of admission under 
section 212(d)(3)(A)(i) of the Act and this paragraph (f) may be 
authorized for more than 30 days; if an emergency prevents a 
nonimmigrant alien admitted under this paragraph (f) from departing from 
the United States within his or her period of authorized stay, the 
director (or other appropriate official) having jurisdiction over the 
place of the alien's temporary stay may, in his or her discretion, grant 
an additional period (or periods) of satisfactory departure, each such 
period not to exceed 30 days. If departure is accomplished during that 
period, the alien is to be regarded as having satisfactorily 
accomplished the visit without overstaying the allotted time.
    (6) Failure to comply. No authorization under section 
212(d)(3)(A)(i) of the Act and this paragraph (f) may be provided to any 
alien who has previously failed to comply with any condition of an 
admission authorized under this paragraph.
    (7) Additional limitations. The Secretary of Homeland Security or 
the Secretary of State may require additional evidence or impose 
additional conditions on granting authorization for temporary admissions 
under this paragraph (f) as international (or other relevant) conditions 
may indicate.
    (8) Option for case-by-case determination. If the applicant does not 
meet the criteria under this paragraph (f), or does not wish to agree to 
the conditions for the streamlined 30-day visa under this paragraph (f), 
the applicant may elect to utilize the process described in either 
paragraph (a) or (b) of this section, as applicable.

[[Page 228]]

    (g) Action upon alien's arrival. Upon admitting an alien who has 
been granted the benefits of section 212(d)(3)(A) of the Act, the 
immigration officer shall be guided by the conditions and limitations 
imposed in the authorization and noted by the consular officer in the 
alien's passport. When admitting any alien who has been granted the 
benefits of section 212(d)(3)(B) of the Act, the Immigration officer 
shall note on the arrival-departure record, Form I-94, or crewman's 
landing permit, Form I-95, issued to the alien, the conditions and 
limitations imposed in the authorization.
    (h) Authorizations issued to crewmen without limitation as to period 
of validity. When a crewman who has a valid section 212(d)(3) 
authorization without any time limitation comes to the attention of the 
Service, his travel document shall be endorsed to show that the validity 
of his section 212(d)(3) authorization expires as of a date six months 
thereafter, and any previously-issued Form I-184 shall be lifted and 
Form I-95 shall be issued in its place and similarly endorsed.
    (i) Revocation. The Deputy Commissioner or the district director may 
at any time revoke a waiver previously authorized under section 
212(d)(3) of the Act and shall notify the nonimmigrant in writing to 
that effect.
    (j) Alien witnesses and informants--(1) Waivers under section 
212(d)(1) of the Act. Upon the application of a federal or state law 
enforcement authority (``LEA''), which shall include a state or federal 
court or United States Attorney's Office, pursuant to the filing of Form 
I-854, Inter-Agency Alien Witness and Informant Record, for nonimmigrant 
classification described in section 101(a)(15)(S) of the Act, the 
Commissioner shall determine whether a ground of exclusion exists with 
respect to the alien for whom classification is sought and, if so, 
whether it is in the national interest to exercise the discretion to 
waive the ground of excludability, other than section 212(a)(3)(E) of 
the Act. The Commissioner may at any time revoke a waiver previously 
authorized under section 212(d)(1) of the Act. In the event the 
Commissioner decides to revoke a previously authorized waiver for an S 
nonimmigrant, the Assistant Attorney General, Criminal Division, and the 
relevant LEA shall be notified in writing to that effect. The Assistant 
Attorney General, Criminal Division, shall concur in or object to the 
decision. Unless the Assistant Attorney General, Criminal Division, 
objects within 7 days, he or she shall be deemed to have concurred in 
the decision. In the event of an objection by the Assistant Attorney 
General, Criminal Division, the matter will be expeditiously referred to 
the Deputy Attorney General for a final resolution. In no circumstances 
shall the alien or the relevant LEA have a right of appeal from any 
decision to revoke.
    (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; 73 FR 58030, 
Oct. 6, 2008]

[[Page 229]]



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:
    (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

[[Page 230]]

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 removal order cannot be 
executed within a reasonable time, the alien shall again be released on 
parole unless in the opinion of the official listed in paragraph (a) of 
this section the public interest requires that the alien be continued in 
custody.
    (ii) An alien who is granted parole into the United States after 
enactment of the Immigration Reform and Control Act of 1986 for other 
than the specific purpose of applying for adjustment of status under 
section 245A of the Act shall not be permitted to avail him or herself 
of the privilege of adjustment thereunder. Failure to abide by this 
provision through making such an application will subject the alien to 
termination of parole status and institution of proceedings under 
sections 235 and 236 of the Act without the written notice of 
termination required by Sec. 212.5(e)(2)(i) of this chapter.
    (iii) Any alien granted parole into the United States so that he or 
she may transit through the United States in the course of removal from 
Canada shall have his or her parole status terminated upon notice, as 
specified in 8 CFR 212.5(e)(2)(i), if he or she makes known to an 
immigration officer of the United States a fear of persecution or an 
intention to apply for asylum. Upon termination of parole, any such 
alien shall be regarded as an arriving alien, and processed accordingly 
by the Department of Homeland Security.
    (f) Advance authorization. When parole is authorized for an alien 
who will travel to the United States without a visa, the alien shall be 
issued 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,

[[Page 231]]

as amended, if the individual was paroled into the United States:
    (i) In the custody of a Federal, State or local law enforcement or 
prosecutorial authority, for purposes of criminal prosecution in the 
United States; or
    (ii) Solely to testify as a witness in proceedings before a 
judicial, administrative, or legislative body in the United States.

[47 FR 30045, July 9, 1982, as amended at 47 FR 46494, Oct. 19, 1982; 52 
FR 16194, May 1, 1987; 52 FR 48802, Dec. 28, 1987; 53 FR 17450, May 17, 
1988; 61 FR 36611, July 12, 1996; 62 FR 10348, Mar. 6, 1997; 65 FR 
80294, Dec. 21, 2000; 65 FR 82255, Dec. 28, 2000; 67 FR 39257, June 7, 
2002; 68 FR 35152, June 12, 2003; 69 FR 69489, Nov. 29, 2004]



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.
    (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

[[Page 232]]

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 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

[[Page 233]]

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, 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;

[[Page 234]]

    (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 
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.

[[Page 235]]

    (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 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.

[[Page 236]]

    (7) Evidence of United States citizenship and of status as a lawful 
permanent resident shall be in the form provided in part 204 of this 
chapter. An application based upon exceptional hardship shall be 
supported by a statement, dated and signed by the applicant, giving a 
detailed explanation of the basis for his or her belief that his or her 
compliance with the foreign residence requirement of section 212(e) of 
the Act, as amended, would impose exceptional hardship upon his or her 
spouse or child who is a citizen of the United States or a lawful 
permanent resident thereof. The statement shall include all pertinent 
information concerning the incomes and savings of the applicant and 
spouse. If exceptional hardship is claimed upon medical grounds, the 
applicant shall submit a medical certificate from a qualified physician 
setting forth in terms understandable to a layman the nature and effect 
of the illness and prognosis as to the period of time the spouse or 
child will require care or treatment.
    (8) An application based upon the applicant's belief that he or she 
cannot return to the country of his or her nationality or last residence 
because the applicant would be subject to persecution on account of 
race, religion, or political opinion, must be supported by a statement, 
dated and signed by the applicant, setting forth in detail why the 
applicant believes he or she would be subject to persecution.
    (9) Waivers under Pub. L. 103-416 based on a request by a State 
Department of Public Health (or equivalent). In accordance with section 
220 of Pub. L. 103-416, an alien admitted to the United States as a 
nonimmigrant under section 101(a)(15)(J) of the Act, or who acquired 
status under section 101(a)(15)(J) of the Act after admission to the 
United States, to participate in an exchange program of graduate medical 
education or training (as of January 9, 1977), may apply for a waiver of 
the 2-year home country residence and physical presence requirement (the 
``2-year requirement'') under section 212(e)(iii) of the Act based on a 
request by a State Department of Pubic Health, or its equivalent. To 
initiate the application for a waiver under Pub. L. 103-416, the 
Department of Public Health, or its equivalent, or the State in which 
the foreign medical graduate seeks to practice medicine, must request 
the Director of USIA to recommend a waiver to the Service. The waiver 
may be granted only if the Director of USIA provides the Service with a 
favorable waiver recommendation. Only the Service, however, may grant or 
deny the waiver application. If granted, such a waiver shall be subject 
to the terms and conditions imposed under section 214(l) of the Act (as 
redesignated by section 671(a)(3)(A) of Pub. L. 104-208). Although the 
alien is not required to submit a separate waiver application to the 
Service, the burden rests on the alien to establish eligibility for the 
waiver. If the Service approves a waiver request made under Pub. L. 103-
416, the foreign medical graduate (and accompanying dependents) may 
apply for change of nonimmigrant status, from J-1 to H-1B and, in the 
case of dependents of such a foreign medical graduate, from J-2 to H-4. 
Aliens receiving waivers under section 220 of Pub. L. 103-416 are 
subject, in all cases, to the provisions of section 214(g)(1)(A) of the 
Act.
    (i) Eligiblity criteria. J-1 foreign medical graduates (with 
accompanying J-2 dependents) are eligible to apply for a waiver of the 
2-year requirement under Pub. L. 103-416 based on a request by a State 
Department of Public Health (or its equivalent) if:
    (A) They were admitted to the United States under section 
101(a)(15)(J) of the Act, or acquired J nonimmigrant status before June 
1, 2002, to pursue graduate medical education or training in the United 
States.
    (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

[[Page 237]]

in the waiver application may be operated by:
    (1) An agency of the Government of the United States or of the State 
in which it is located; or
    (2) A charitable, educational, or other not-for-profit organization; 
or
    (3) Private medical practitioners.
    (D) The Department of Public Health, or its equivalent, in the State 
where the health care facility is located has requested the Director, 
USIA, to recommend the waiver, and the Director, USIA, submits a 
favorable waiver recommendation to the Service; and
    (E) Approval of the waiver will not cause the number of waivers 
granted pursuant to Pub. L. 103-416 and this section to foreign medical 
graduates who will practice medicine in the same state to exceed 20 
during the current fiscal year.
    (ii) Decision on waivers under Pub. L. 103-416 and notification to 
the alien--(A) Approval. If the Director of USIA submits a favorable 
waiver recommendation on behalf of a foreign medical graduate pursuant 
to Pub. L. 103-416, and the Service grants the waiver, the alien shall 
be notified of the approval on Form I-797 (or I-797A or I-797B, as 
appropriate). The approval notice shall clearly state the terms and 
conditions imposed on the waiver, and the Service's records shall be 
noted accordingly.
    (B) Denial. If the Director of USIA issues a favorable waiver 
recommendation under Pub. L. 103-416 and the Service denies the waiver, 
the alien shall be notified of the decision and of the right to appeal 
under 8 CFR part 103. However, no appeal shall lie where the basis for 
denial is that the number of waivers granted to the State in which the 
foreign medical graduate will be employed would exceed 20 for that 
fiscal year.
    (iii) Conditions. The foreign medical graduate must agree to 
commence employment for the health care facility specified in the waiver 
application within 90 days of receipt of the waiver under Pub. L. 103-
416. The foreign medical graduate may only fulfill the requisite 3-year 
employment contract as an H-1B nonimmigrant. A foreign medical graduate 
who receives a waiver under Pub. L. 103-416 based on a request by a 
State Department of Public Health (or equivalent), and changes his or 
her nonimmigrant classification from J-1 to H-1B, may not apply for 
permanent residence or for any other change of nonimmigrant 
classification unless he or she has fulfilled the 3-year employment 
contract with the health care facility and in the specified HHS-
designated shortage area named in the waiver application.
    (iv) Failure to fulfill the three-year employment contract due to 
extenuating circumstances. A foreign medical graduate who fails to meet 
the terms and conditions imposed on the waiver under section 214(l) of 
the Act and this paragraph will once again become subject to the 2-year 
requirement under section 212(e) of the Act.
    Under section 214(l)(1)(B) of the Act, however, the Service, in the 
exercise of discretion, may excuse early termination of the foreign 
medical graduate's 3-year period of employment with the health care 
facility named in the waiver application due to extenuating 
circumstances. Extenuating circumstances may include, but are not 
limited to, closure of the health care facility or hardship to the 
alien. In determining whether to excuse such early termination of 
employment, the Service shall base its decision on the specific facts of 
each case. In all cases, the burden of establishing eligibility for a 
favorable exercise of discretion rests with the foreign medical 
graduate. Depending on the circumstances, closure of the health care 
facility named in the waiver application may, but need not, be 
considered an extenuating circumstance excusing early termination 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

[[Page 238]]

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 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.

[[Page 239]]

L. 103-416 should be affirmed. In conducting such a review, the Service 
shall determine whether the foreign medical graduate will continue 
practicing medicine in an HHS-designated shortage area, and whether the 
new H-1B petitioner and the foreign medical graduate have satisfied the 
remaining H-1B eligibility criteria described under section 
101(a)(15)(H) of the Act and Sec. 214.2(h) of this chapter. If these 
criteria have been satisfied, the waiver granted to the foreign medical 
graduate under Pub. L. 103-416 may be affirmed, and the new H1-B 
petition may be approved in the exercise of discretion, thereby 
permitting the foreign medical graduate to serve the balance of the 
requisite 3-year employment period at the health care facility named in 
the new H-1B petition.
    (D) Failure to notify the Service of any material changes in 
employment. Foreign medical graduates who have been granted a waiver of 
the 2-year requirement and who have obtained H-1B status under Pub. L. 
103-416 but fail to: Properly notify the Service of any material change 
in the terms and conditions of their H-1B employment, by having their 
employer file an amended or a new H-1B petition in accordance with this 
section and Sec. 214.2(h) of this chapter; or establish continued 
eligibility for the waiver and H-1B status, shall (together with their 
dependents) again become subject to the 2-year requirement. Such foreign 
medical graduates and their accompanying H-4 dependents also become 
subject to deportation under section 241(a)(1)(C)(i) of the Act.
    (10) The applicant and his or her spouse may be interviewed by an 
immigration officer in connection with the application and consultation 
may be had with the Director, United States Information Agency and the 
sponsor of any exchange program in which the applicant has been a 
participant.
    (11) The applicant shall be notified of the decision, and if the 
application is denied, of the reasons therefor and of the right of 
appeal in accordance with the provisions of part 103 of this chapter. 
However, no appeal shall lie from the denial of an application for lack 
of a favorable recommendation from the Secretary of State. When an 
interested United States Government agency requests a waiver of the two-
year foreign-residence requirement and the Director, United States 
Information Agency had made a favorable recommendation, the interested 
agency shall be notified of the decision on its request and, if the 
request is denied, of the reasons thereof, and of the right of appeal. 
If the foreign country of the alien's nationality or last residence has 
furnished statement in writing that it has no objection to his/her being 
granted a waiver of the foreign residence requirement and the Director, 
United States Information Agency has made a favorable recommendation, 
the Director shall be notified of the decision and, if the foreign 
residence requirement is not waived, of the reasons therefor and of the 
foregoing right of appeal. However, this ``no objection'' provision is 
not applicable to the exchange visitor admitted to the United States on 
or after January 10, 1977 to receive graduate medical education or 
training, or who acquired such status on or after that date for such 
purpose; except that the alien who commenced a program before January 
10, 1977 and who was readmitted to the United States on or after that 
date to continue participation in the same program, is eligible for the 
``no objection'' waiver.
    (d) Criminal grounds of inadmissibility involving violent or 
dangerous crimes. The Attorney General, in general, will not favorably 
exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 
1182(h)(2)) to consent to an application or reapplication for a visa, or 
admission to the United States, or adjustment of status, with respect to 
immigrant aliens who are inadmissible 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,

[[Page 240]]

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 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,

[[Page 241]]

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 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

[[Page 242]]

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

[[Page 243]]

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 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;

[[Page 244]]

    (ii) Specifies the particular operational reasons and basis for the 
request, and agrees to assume responsibility for the alien during the 
period of the alien's temporary stay in the United States, including 
maintaining control and supervision of the alien and the alien's 
whereabouts and activities, and further specifies any other terms and 
conditions specified by the Service during the period for which the 
parole is authorized;
    (iii) Agrees to advise the Service of the alien's failure to report 
quarterly any criminal conduct by the alien, or any other activity or 
behavior on the alien's part that may constitute a ground of 
excludability or deportability;
    (iv) Assumes responsibility for ensuring the alien's departure on 
the date of termination of the authorized parole (unless the alien has 
been admitted in S nonimmigrant classification pursuant to the terms of 
paragraph (a)(2) of this section), provides any and all assistance 
needed by the Service, if necessary, to ensure departure, and verifies 
departure in a manner acceptable to the Service;
    (v) Provide LEA seat-of-government certification that parole of the 
alien is essential to an investigation or prosecution, is in the 
national interest, and is requested pursuant to the terms and authority 
of section 212(d)(5) of the Act;
    (vi) Agrees that no promises may be, have been, or will be made by 
the LEA to the alien that the alien will or may:
    (A) Remain in the United States in parole status or any other 
nonimmigrant classification;
    (B) Adjust status to that of lawful permanent resident; or
    (C) Otherwise attempt to remain beyond the authorized parole. The 
alien (and any family member of the alien who is 18 years of age or 
older) shall sign a statement acknowledging an awareness that parole 
only authorizes a temporary stay in the United States and does not 
convey the benefits of S nonimmigrant classification, any other 
nonimmigrant classification, or any entitlement to further benefits 
under the Act; and
    (vii) Provides, in the case of a request for the release of an alien 
from Service custody, certification that the alien is eligible for 
parole pursuant to Sec. 235.3 of this chapter.
    (2) Authorization. (i) Upon approval of the request for parole, the 
Commissioner shall notify the Assistant Attorney General, Criminal 
Division, of the approval.
    (ii) Upon notification of approval of a request for parole, the LEA 
will advise the Commissioner of the date, time, and place of the arrival 
of the alien. The Commissioner will coordinate the arrival of the alien 
in parole status with the port director prior to the time of arrival.
    (iii) Parole will be authorized for a period of thirty (30) days to 
commence upon the alien's arrival in the United States in order for the 
LEA to submit a completed Form I-854 to the Assistant Attorney General, 
Criminal Division. Upon the submission to the Assistant Attorney General 
of the Form I-854 requesting S classification, the period of parole will 
be automatically extended while the request is being reviewed. The 
Assistant Attorney General, Criminal Division, will notify the 
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 an alien witness 
or informant authorized under the terms of this paragraph, the Assistant 
Attorney General, Criminal Division, and the relevant LEA shall be 
notified in writing to that effect. The Assistant Attorney General, 
Criminal Division, shall concur in or object to that decision. Unless 
the Assistant Attorney General, Criminal Division, objects within 7 
days, he or she shall be deemed to have concurred in the decision. In 
the event of an objection by

[[Page 245]]

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 States for the primary purpose of performing labor as a nurse may 
present a certified statement as provided in paragraph (h) of this 
section.
    (3) A certificate or certified statement described in this section 
does not constitute professional authorization to practice in that 
health care occupation.
    (b) Inapplicability of the ground of inadmissibility. This section 
does not apply to:
    (1) Physicians;
    (2) Aliens seeking admission to the United States to perform 
services in a non-clinical health care occupation. A non-clinical care 
occupation is one in which the alien is not required to perform direct 
or indirect patient care. Occupations which are considered to be non-
clinical include, but are not limited to, medical teachers, medical 
researchers, and managers of health care facilities;
    (3) Aliens coming to the United States to receive training as an H-3 
nonimmigrant, or receiving training as part of an F or J nonimmigrant 
program.
    (4) The spouse and dependent children of any immigrant or 
nonimmigrant alien;
    (5) Any alien applying for adjustment of status to that of a 
permanent resident under any provision of law other than under section 
245 of the Act, or any alien who is seeking adjustment of status under 
section 245 of the Act on the basis of a relative visa petition approved 
under section 203(a) of the Act, or any alien seeking adjustment of 
status under section 245 of the Act on the basis of an employment-based 
petition approved pursuant to section 203(b) of the Act for employment 
that does not fall under one of the covered health care occupations 
listed in paragraph (c) of this section.

[[Page 246]]

    (c) Covered health care occupations. With the exception of the 
aliens described in paragraph (b) of this section, this paragraph (c) 
applies to any alien seeking admission to the United States to perform 
labor in one of the following health care occupations, regardless of 
where he or she received his or her education or training:
    (1) Licensed Practical Nurses, Licensed Vocational Nurses, and 
Registered Nurses.
    (2) Occupational Therapists.
    (3) Physical Therapists.
    (4) Speech Language Pathologists and Audiologists.
    (5) Medical Technologists (Clinical Laboratory Scientists).
    (6) Physician Assistants.
    (7) Medical Technicians (Clinical Laboratory Technicians)
    (d) Presentation of certificate or certified statements--(1) Aliens 
required to obtain visas. Except as provided in paragraph (n) of this 
section, if 8 CFR 212.1 requires an alien who is described in paragraph 
(a) of this section and who is applying for admission as a nonimmigrant 
seeking to perform labor in a health care occupation as described in 
this section to obtain a nonimmigrant visa, the alien must present a 
certificate or certified statement to a consular officer at the time of 
visa issuance and to the Department of Homeland Security (DHS) at the 
time of admission. The certificate or certified statement must be valid 
at the time of visa issuance and admission at a port-of-entry. An alien 
who has previously presented a foreign health care worker certification 
or certified statement for a particular health care occupation will be 
required to present it again at the time of visa issuance or each 
admission to the United States.
    (2) Aliens not requiring a nonimmigrant visa. Except as provided in 
paragraph (n) of this section, an alien described in paragraph (a) of 
this section who, pursuant to 8 CFR 212.1, is not required to obtain a 
nonimmigrant visa to apply for admission to the United States must 
present a certificate or certified statement as provided in this section 
to an immigration officer at the time of initial application for 
admission to the United States to perform labor in a particular health 
care occupation. An alien who has previously presented a foreign health 
care worker certification or certified statement for a particular health 
care occupation will be required to present it again at the time of each 
application for admission.
    (e) Approved credentialing organizations for health care workers. An 
alien may present a certificate from any credentialing organization 
listed in this paragraph (e) with respect to a particular health care 
field. In addition to paragraphs (e)(1) through (e)(3) of this section, 
the DHS will notify the public of additional credentialing organizations 
through the publication of notices in the Federal Register.
    (1) The Commission on Graduates of Foreign Nursing Schools (CGFNS) 
is authorized to issue certificates under section 212(a)(5)(C) of the 
Act for nurses, physical therapists, occupational therapists, speech-
language pathologists and audiologists, medical technologists (also 
known as clinical laboratory scientists), medical technicians (also 
known as clinical laboratory technicians), and physician assistants.
    (2) The National Board for Certification in Occupational Therapy 
(NBCOT) is authorized to issue certificates in the field of occupational 
therapy pending final adjudication of its credentialing status under 
this part.
    (3) The Foreign Credentialing Commission on Physical Therapy (FCCPT) 
is authorized to issue certificates in the field of physical therapy 
pending final adjudication of its credentialing status under this part.
    (f) Requirements for issuance of health care certification. (1) 
Prior to issuing a certification to an alien, the organization must 
verify the following:
    (i) That the alien's education, training, license, and experience 
are comparable with that required for an American health care worker of 
the same type;
    (ii) That the alien's education, training, license, and experience 
are authentic and, in the case of a license, unencumbered;
    (iii) That the alien's education, training, license, and experience 
meet all applicable statutory and regulatory requirements for admission 
into the

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United States. This verification is not binding on the DHS; and
    (iv) Either that the alien has passed a test predicting success on 
the occupation's licensing or certification examination, provided such a 
test is recognized by a majority of states licensing the occupation for 
which the certification is issued, or that the alien has passed the 
occupation's licensing or certification examination.
    (2) A certificate issued under section 212(a)(5)(C) of the Act must 
contain the following:
    (i) The name, address, and telephone number of the credentialing 
organization, and a point of contact to verify the validity of the 
certificate;
    (ii) The date the certificate was issued;
    (iii) The health care occupation for which the certificate was 
issued; and
    (iv) The alien's name, and date and place of birth.
    (g) English language requirements. (1) With the exception of those 
aliens described in paragraph (g)(2) of this section, every alien must 
meet certain English language requirements in order to obtain a 
certificate. The Secretary of HHS has sole authority to set standards 
for these English language requirements, and has determined that an 
alien must have a passing score on one of the three tests listed in 
paragraph (g)(3) of this section before he or she can be granted a 
certificate. HHS will notify The Department of Homeland Security of 
additions or deletions to this list, and The Department of Homeland 
Security will publish such changes in the Federal Register.
    (2) The following aliens are exempt from the English language 
requirements:
    (i) Alien nurses who are presenting a certified statement under 
section 212(r) of the Act; and
    (ii) Aliens who have graduated from a college, university, or 
professional training school located in Australia, Canada (except 
Quebec), Ireland, New Zealand, the United Kingdom, or the United States.
    (3) The following English testing services have been approved by the 
Secretary of HHS:
    (i) Educational Testing Service (ETS).
    (ii) Test of English in International Communication (TOEIC) Service 
International.
    (iii) International English Language Testing System (IELTS).
    (4) Passing English test scores for various occupations.
    (i) Occupational and physical therapists. An alien seeking to 
perform labor in the United States as an occupational or physical 
therapist must obtain the following scores on the English tests 
administered by ETS: Test Of English as a Foreign Language (TOEFL): 
Paper-Based 560, Computer-Based 220; Test of Written English (TWE): 4.5; 
Test of Spoken English (TSE): 50. The certifying organizations shall not 
accept the results of the TOEIC, or the IELTS for the occupation of 
occupational therapy or physical therapy.
    (ii) Registered nurses and other health care workers requiring the 
attainment of a baccalaureate degree. An alien coming to the United 
States to perform labor as a registered nurse (other than a nurse 
presenting a certified statement under section 212(r) of the Act) or to 
perform labor in another health care occupation requiring a 
baccalaureate degree (other than occupational or physical therapy) must 
obtain one of the following combinations of scores to obtain a 
certificate:
    (A) ETS: TOEFL: Paper-Based 540, Computer-Based 207; TWE: 4.0; TSE: 
50;
    (B) TOEIC Service International: TOEIC: 725; plus TWE: 4.0 and TSE: 
50; or
    (C) IELTS: 6.5 overall with a spoken band score of 7.0. This would 
require the Academic module.
    (iii) Occupations requiring less than a baccalaureate degree. An 
alien coming to the United States to perform labor in a health care 
occupation that does not require a baccalaureate degree must obtain one 
of the following combinations of scores to obtain a certificate:
    (A) ETS: TOEFL: Paper-Based 530, Computer-Based 197; TWE: 4.0; TSE: 
50;
    (B) TOEIC Service International: TOEIC: 700; plus TWE 4.0 and TSE: 
50; or
    (C) IELTS: 6.0 overall with a spoken band score of 7.0. This would 
allow either the Academic or the General module.

[[Page 248]]

    (h) Alternative certified statement for certain nurses. (1) CGFNS is 
authorized to issue certified statements under section 212(r) of the Act 
for aliens seeking to enter the United States to perform labor as 
nurses. The DHS will notify the public of new organizations that are 
approved to issue certified statements through notices published in the 
Federal Register.
    (2) An approved credentialing organization may issue a certified 
statement to an alien if each of the following requirements is 
satisfied:
    (i) The alien has a valid and unrestricted license as a nurse in a 
state where the alien intends to be employed and such state verifies 
that the foreign licenses of alien nurses are authentic and 
unencumbered;
    (ii) The alien has passed the National Council Licensure Examination 
for registered nurses (NCLEX-RN);
    (iii) The alien is a graduate of a nursing program in which the 
language of instruction was English;
    (iv) The nursing program was located in Australia, Canada (except 
Quebec), Ireland, New Zealand, South Africa, the United Kingdom, or the 
United States; or in any other country designated by unanimous agreement 
of CGFNS and any equivalent credentialing organizations which have been 
approved for the certification of nurses and which are listed at 
paragraph (e) of this section; and
    (v) The nursing program was in operation on or before November 12, 
1999, or has been approved by unanimous agreement of CGFNS and any 
equivalent credentialing organizations that have been approved for the 
certification of nurses.
    (3) An individual who obtains a certified statement need not comply 
with the certificate requirements of paragraph (f) or the English 
language requirements of paragraph (g) of this section.
    (4) A certified statement issued to a nurse under section 212(r) of 
the Act must contain the following information:
    (i) The name, address, and telephone number of the credentialing 
organization, and a point of contact to verify the validity of the 
certified statement;
    (ii) The date the certified statement was issued; and
    (iii) The alien's name, and date and place of birth.
    (i) Streamlined certification process--(1) Nurses. An alien nurse 
who has graduated from an entry level program accredited by the National 
League for Nursing Accreditation Commission (NLNAC) or the Commission on 
Collegiate Nursing Education (CCNE) is exempt from the educational 
comparability review and English language proficiency testing.
    (2) Occupational Therapists. An alien occupational therapist who has 
graduated from a program accredited by the Accreditation Council for 
Occupational Therapy Education (ACOTE) of the American Occupational 
Therapy Association (AOTA) is exempt from the educational comparability 
review and English language proficiency testing.
    (3) Physical therapists. An alien physical therapist who has 
graduated from a program accredited by the Commission on Accreditation 
in Physical Therapy Education (CAPTE) of the American Physical Therapy 
Association (APTA) is exempt from the educational comparability review 
and English language proficiency testing.
    (4) Speech language pathologists and audiologists. An alien speech 
language pathologists and/or audiologist who has graduated from a 
program accredited by the Council on Academic Accreditation in Audiology 
and Speech Language Pathology (CAA) of the American Speech-Language-
Hearing Association (ASHA) is exempt from the educational comparability 
review and English language proficiency testing.
    (j) Application process for credentialing organizations--(1) 
Organizations other than CGFNS. An organization, other than CGFNS, 
seeking to obtain approval to issue certificates to health care workers, 
or certified statements to nurses 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

[[Page 249]]

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 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.

[[Page 250]]

    (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 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.

[[Page 251]]

    (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.
    (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.

[[Page 252]]

    (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 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

[[Page 253]]

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 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.

[[Page 254]]

    (n) Transition.--(1) One year waiver. (i) Pursuant to section 
212(d)(3) of the Act (and, for cases described in paragraph (d)(1) of 
this section, upon the recommendation of the Secretary of State), the 
Secretary has determined that until July 26, 2004 (or until July 26, 
2005, in the case of a citizen of Canada or Mexico who, before September 
23, 2003, was employed as a TN or TC nonimmigrant health care worker and 
held a valid license from a U.S. jurisdiction), DHS, subject to the 
conditions in paragraph (n)(2) of this section, may in its discretion 
admit, extend the period of authorized stay, or change the nonimmigrant 
status of an alien described in paragraph (d)(1) or paragraph (d)(2) of 
this section, despite the alien's inadmissibility under section 
212(a)(5)(C) of the Act, provided the alien is not otherwise 
inadmissible.
    (ii) After July 26, 2004 (or, after July 26, 2005, in the case of a 
citizen of Canada or Mexico, who, before September 23, 2003, was 
employed as a TN or TC nonimmigrant health care worker and held a valid 
license from a U.S. jurisdiction), such discretion shall be applied on a 
case-by-case basis.
    (2) Conditions. Until July 26, 2004 (or until July 26, 2005, in the 
case of a citizen of Canada or Mexico, who, before September 23, 2003, 
was employed as a TN or TC nonimmigrant health care worker and held a 
valid license from a U.S. jurisdiction), the temporary admission, 
extension of stay, or change of status of an alien described in 8 CFR 
part 212(d)(1) or (d)(2) of this section that is provided for under this 
paragraph (n) is subject to the following conditions:
    (i) The admission, extension of stay, or change of status may not be 
for a period longer than 1 year from the date of the decision, even if 
the relevant provision of 8 CFR 214.2 would ordinarily permit the 
alien's admission for a longer period;
    (ii) The alien must obtain the certification required by paragraph 
(a) of this section within 1 year of the date of decision to admit the 
alien or to extend the alien's stay or change the alien's status; and,
    (iii) Any subsequent petition or application to extend the period of 
the alien's authorized stay or change the alien's nonimmigrant status 
must include proof that the alien has obtained the certification 
required by paragraph (a) of this section, if the extension or stay or 
change of status is sought for the primary purpose of the alien's 
performing labor in a health care occupation listed in paragraph (c) of 
this section.
    (3) Immigrant aliens. An alien described in paragraph (a) of this 
section, who is coming to the United States as an immigrant or is 
applying for adjustment of status pursuant to section 245 of the Act (8 
U.S.C. 1255), to perform labor in a health care occupation described in 
paragraph (c) of this section, must submit the certificate or certified 
statement as provided in this section at the time of visa issuance or 
adjustment of status.
    (4) Expiration of certificate or certified statement. The 
individual's certification or certified statement must be used for any 
admission into the United States, change of status within the United 
States, or adjustment of status within 5 years of the date that it is 
issued.
    (5) Revocation of certificate or certified statement. When a 
credentialing organization notifies the DHS, via the Nebraska Service 
Center, that an individual's certification or certified statement has 
been revoked, the DHS will take appropriate action, including, but not 
limited to, revocation of approval of any related petitions, consistent 
with the Act and DHS regulations at 8 CFR 205.2, 8 CFR 
214.2(h)(11)(iii), and 8 CFR 214.6(d)(5)(iii).

[68 FR 43915, July 25, 2003, as amended at 69 FR 43731, July 22, 2004]



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.

[[Page 255]]

    (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]



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

nonimmigrant status.

    (a) Filing the waiver application. An alien applying for a waiver of 
inadmissibility under section 212(d)(3)(B) or (d)(14) of the Act 
(waivers of inadmissibility), 8 U.S.C. 1182(d)(3)(B) or (d)(14), in 
connection with a petition for U nonimmigrant status being filed 
pursuant to 8 CFR 214.14, must submit Form I-192, ``Application for 
Advance Permission to Enter as Non-Immigrant,'' in accordance with the 
form instructions, along with Form I-918, ``Petition for U Nonimmigrant 
Status,'' or Form I-918, Supplement A, ``Petition for Qualifying Family 
Member of U-1 Recipient.'' An alien in U nonimmigrant status who is 
seeking a waiver of section 212(a)(9)(B) of the Act, 8 U.S.C. 
1182(a)(9)(B) (unlawful presence ground of inadmissibility triggered by 
departure from the United States), must file Form I-192 prior to his or 
her application for re-entry to the United States in accordance with the 
form instructions.
    (b) Treatment of waiver application. (1) USCIS, in its discretion, 
may grant Form I-192 based on section 212(d)(14) of the Act, 8 U.S.C. 
1182(d)(14), if it determines that it is in the public or national 
interest to exercise discretion to waive the applicable ground(s) of 
inadmissibility. USCIS may not waive a ground of inadmissibility based 
upon section 212(a)(3)(E) of the Act, 8 U.S.C. 1182(a)(3)(E). USCIS, in 
its discretion, may grant Form I-192 based on section 212(d)(3) of the 
Act, 8 U.S.C. 1182(d)(3), except where the ground of inadmissibility 
arises under sections 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), 
(3)(C), or (3)(E) of the Act, 8 U.S.C. 1182(a)(3)(A)(i)(I), (3)(A)(ii), 
(3)(A)(iii), (3)(C), or (3)(E).
    (2) In the case of applicants inadmissible on criminal or related 
grounds, in exercising its discretion USCIS will

[[Page 256]]

consider the number and severity of the offenses of which the applicant 
has been convicted. In cases involving violent or dangerous crimes or 
inadmissibility based on the security and related grounds in section 
212(a)(3) of the Act, USCIS will only exercise favorable discretion in 
extraordinary circumstances.
    (3) There is no appeal of a decision to deny a waiver. However, 
nothing in this paragraph is intended to prevent an applicant from re-
filing a request for a waiver of ground of inadmissibility in 
appropriate cases.
    (c) Revocation. The Secretary of Homeland Security, at any time, may 
revoke a waiver previously authorized under section 212(d) of the Act, 8 
U.S.C. 118(d). Under no circumstances will the alien or any party acting 
on his or her behalf have a right to appeal from a decision to revoke a 
waiver.

[72 FR 53035, Sept. 17, 2007]



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

application for adjustment of status by T nonimmigrant status holders.

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

[73 FR 75557, Dec. 12, 2008]

    Effective Date Note: At 73 FR 75557, Dec. 12, 2008, Sec. 212.18 was 
added, effective Jan. 12, 2009.



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




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



Sec. 213.1  Admission under bond or cash deposit.

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

[[Page 257]]

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

[[Page 258]]

income tax return for the most recent tax year, even if such persons do 
not have the same principal residence as the sponsor, plus the number of 
aliens the sponsor has sponsored under any other 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 have the same principal residence as the sponsor. If 
a child, as defined in section 101(b)(1) of the Act, or spouse of the 
principal intending immigrant is an alien who does not currently reside 
in the United States and who either is not seeking to immigrate at the 
same time as, or will not seek to immigrate within six months of the 
principal intending immigrant's immigration, the sponsor may exclude 
that child or spouse in calculating the sponsor's household size.
    (2) If the sponsor chooses to do so, the sponsor may add to the 
number of persons specified in the first part of this definition the 
number of relatives (as defined in this section) of the sponsor who have 
the same principal residence as the sponsor and whose income will be 
relied on to meet the requirements of section 213A of the Act and this 
part.
    Immigration Officer, solely for purposes of this part, includes a 
Consular Officer, as defined by section 101(a)(9) of the Act, as well as 
an Immigration Officer, as defined by Sec. 103.1(j) of this chapter.
    Income means an individual's total income (adjusted gross income for 
those who file IRS Form 1040EZ) for purposes of the individual's U.S. 
Federal income tax liability, including a joint income tax return (e.g., 
line 22 on the 2004 IRS Form 1040, line 15 on the 2004 IRS Form 1040A, 
or line 4 on the 2004 IRS Form 1040EZ or the corresponding line on any 
future revision of these IRS Forms). Only an individual's Federal income 
tax return--that is, neither a state or territorial income tax return 
nor an income tax return filed with a foreign government--shall be filed 
with an affidavit of support, unless the individual had no duty to file 
a Federal income tax return, and claims that his or her state, 
territorial or foreign taxable income is sufficient to establish the 
sufficiency of the affidavit of support.
    Intending immigrant means any beneficiary of an immigrant visa 
petition filed under section 204 of the Act, including any alien who 
will accompany or follow-to-join the principal beneficiary.
    Joint sponsor means any individual who meets the requirements of 
section 213A(f)(1)(A), (B), (C), and (E) of the Act and 8 CFR 
213a.2(c)(1)(i), and who, as permitted by section 213A(f)(5)(A) of the 
Act, is willing to submit a Form I-864 and accept joint and several 
liability with the sponsor or substitute sponsor, in any case in which 
the sponsor's or substitute sponsor's household income is not sufficient 
to satisfy the requirements of section 213A of the Act.
    Means-tested public benefit means either a Federal means-tested 
public benefit, which is any public benefit funded in whole or in part 
by funds provided by the Federal Government that the Federal agency 
administering the Federal funds has determined to be a Federal means-
tested public benefit under the Personal Responsibility and Work 
Opportunity Reconciliation Act of 1996, Public Law 104-193, or a State 
means-tested public benefit, which is any public benefit for which no 
Federal funds are provided that a State, State agency, or political 
subdivision of a State has determined to be a means-tested public 
benefit. No benefit shall be considered to be a means-tested public 
benefit if it is a benefit described in sections 401(b), 411(b), 422(b) 
or 423(d) of Public Law 104-193.
    Program official means the officer or employee of any Federal, 
State, or local government agency or of any private agency that 
administers any means-tested public benefit program who has authority to 
act on the agency's behalf in seeking reimbursement of means-tested 
public benefits.
    Relative means a husband, wife, father, mother, child, adult son, 
adult daughter, brother, or sister.
    Significant ownership interest means an ownership interest of 5 
percent or more in a for-profit entity that filed an immigrant visa 
petition to accord a prospective employee an immigrant status under 
section 203(b) of the Act.

[[Page 259]]

    Sponsor means an individual who is either required to execute or has 
executed a Form I-864 under this part.
    Sponsored immigrant means any alien who was an intending immigrant, 
once that person has been lawfully admitted for permanent residence, so 
that the affidavit of support filed for that person under this part has 
entered into force.
    Substitute sponsor means an individual who meets the requirements of 
section 213A(f)(1)(A), (B), (C), and (E) of the Act and 8 CFR 
213a.2(c)(1)(i), who is related to the principal intending immigrant in 
one of the ways described in section 213A(f)(5)(B) of the Act, and who 
is willing to sign a Form I-864 in place of the now-deceased person who 
filed the Form I-130 or Form I-129F that provides the basis for the 
intending immigrant's ability to seek permanent residence.

[62 FR 54352, Oct. 20, 1997, as amended at 71 FR 35749, June 21, 2006]



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

    (a) General. (1)(i)(A) In any case specified in paragraph (a)(2) of 
this section, an intending immigrant is inadmissible as an alien likely 
to become a public charge, unless the qualified sponsor specified in 
paragraph (b) of this section or a substitute sponsor and, if necessary, 
a joint sponsor, has executed on behalf of the intending immigrant 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. The sponsor may use the Form I-864EZ, EZ 
Affidavit of Support Under Section 213A of the Act, rather than the Form 
I-864, if the sponsor meets the eligibility requirements on the 
instructions for the Form I-864EZ. Each reference in this section to 
Form I-864 is deemed to be a reference to Form I-864EZ for any case in 
which the sponsor is eligible to use the Form I-864EZ.
    (B) If the intending immigrant claims that, under paragraph 
(a)(2)(ii)(A), (C), or (E) of this section, the intending immigrant is 
exempt from the requirement to file a Form I-864, the intending 
immigrant must include with his or her application for an immigrant visa 
or adjustment of status a properly completed Form I-864W, Intending 
Immigrant's I-864 Exemption.
    (ii) An affidavit of support is executed when a sponsor signs a Form 
I-864 and that Form I-864 is submitted, together with the current 
edition of Form I-864P and the initial evidence required by this 
section, in accordance with this paragraph. The current edition Form I-
864P is available on the Internet at http://www.uscis.gov/graphics/
formsfee/forms. Those without Internet access may call (800) 870-3676 to 
obtain the Form I-864P.
    (A) If the intending immigrant is applying for an immigrant visa, 
the intending immigrant must submit the Form I-864 (and any Forms I-
864A) to the Department of State officer with jurisdiction over the 
intending immigrant's application for an immigrant visa, in accordance 
with instructions from the Department of State officer or the National 
Visa Center;
    (B) If the intending immigrant is applying for adjustment of status, 
the intending immigrant must submit the Form I-864 (and any Forms I-
864A) with the application for adjustment of status.
    (iii) There must be a separate Form I-864 (and any Form(s) I-864A), 
with original signatures, for each principal visa petition beneficiary.
    (iv) Each immigrant who will accompany the principal intending 
immigrant must be included on Form I-864 (and any Forms I-864A). See 
paragraph (f) of this section for further information concerning 
immigrants who intend to accompany or follow the principal intending 
immigrant to the United States.
    (v)(A) Except as provided for under paragraph (a)(1)(v)(B) of this 
section, the Department of State officer, immigration officer, or 
immigration judge shall determine the sufficiency of a Form I-864 or I-
864A based on the sponsor's, substitute sponsor's, or joint sponsor's 
reasonably expected household income in the year in which the intending 
immigrant filed the application for an immigrant visa or for adjustment 
of status, and based on the evidence submitted with the Form I-864 or 
Form I-864A and the Poverty Guidelines in effect when the intending 
immigrant filed the application for an immigrant visa or adjustment of 
status.

[[Page 260]]

    (B) If more than one year passes between the filing of the Form I-
864 or Form I-864A and the hearing, interview, or examination of the 
intending immigrant concerning the intending immigrant's application for 
an immigrant visa or adjustment of status, and the Department of State 
officer, immigration officer or immigration judge determines, in the 
exercise of discretion, that the particular facts of the case make the 
submission of additional evidence necessary to the proper adjudication 
of the case, then the Department of State officer, immigration officer 
or immigration judge may direct the intending immigrant to submit 
additional evidence. A Department of State officer or immigration 
officer shall make the request in writing, and provide the intending 
immigrant not less than 30 days to submit the additional evidence. An 
immigration judge may direct the intending immigrant to submit 
additional evidence and also set the deadline for submission of the 
initial evidence in any manner permitted under subpart C of 8 CFR part 
1003 and any local rules of the Immigration Court. If additional 
evidence is required under this paragraph, an intending immigrant must 
submit additional evidence (including copies or transcripts of any 
income tax returns for the most recent tax year) concerning the income 
or employment of the sponsor, substitute sponsor, joint sponsor, or 
household member in the year in which the Department of State officer, 
immigration officer, or immigration judge makes the request for 
additional evidence. In this case, the sufficiency of the Form I-864 and 
any Form I-864A will be determined based on the sponsor's, substitute 
sponsor's, or joint sponsor's reasonably expected household income in 
the year the Department of State officer, immigration officer or 
immigration judge makes the request for additional evidence, and based 
on the evidence submitted in response to the request for additional 
evidence and on the Poverty Guidelines in effect when the request for 
evidence was issued.
    (2)(i) Except for cases specified in paragraph (a)(2)(ii) of this 
section, paragraph (a)(1) of this section applies to any application for 
an immigrant visa or for adjustment of status filed on or after December 
19, 1997, in which an intending immigrant seeks an immigrant visa, 
admission as an immigrant, or adjustment of status as:
    (A) An immediate relative under section 201(b)(2)(A)(i) of the Act, 
including orphans and any alien admitted as a K nonimmigrant when the 
alien seeks adjustment of status;
    (B) A family-based immigrant under section 203(a) of the Act; or
    (C) An employment-based immigrant under section 203(b) of the Act, 
if a relative (as defined in 8 CFR 213a.1) of the intending immigrant is 
a citizen or an alien lawfully admitted for permanent residence who 
either filed the employment-based immigrant petition or has a 
significant ownership interest in the entity that filed the immigrant 
visa petition on behalf of the intending immigrant. An affidavit of 
support under this section is not required, however, if the relative is 
a brother or sister of the intending immigrant, unless the brother or 
sister is a citizen.
    (ii) Paragraph (a)(1) of this section shall not apply if the 
intending immigrant:
    (A) Filed a visa petition on his or her own behalf pursuant to 
section 204(a)(1)(A)(ii), (iii), or (iv) or section 204(a)(1)(B)(ii) or 
(iii) of the Act, or who seeks to accompany or follow-to-join an 
immigrant who filed a visa petition on his or his own behalf pursuant to 
section 204(a)(1)(A)(ii), (iii), or (iv) or section 204(a)(1)(B)(ii) or 
(iii) of the Act;
    (B) Seeks admission as an immigrant on or after December 19, 1997, 
in a category specified in paragraph (a)(2)(i) of this section with an 
immigrant visa issued on the basis of an immigrant visa application 
filed with the Department of State officer before December 19, 1997;
    (C) Establishes, on the basis of the alien's own Social Security 
Administration record or those of his or her spouse or parent(s), that 
he or she has already worked, or under section 213A(a)(3)(B) of the Act, 
can already be credited with, 40 qualifying quarters of coverage as 
defined under title II of the Social Security Act, 42 U.S.C. 401, et 
seq;

[[Page 261]]

    (D) Is a child admitted under section 211(a) of the Act and 8 CFR 
211.1(b)(1); or
    (E) Is the child of a citizen, if the child is not likely to become 
a public charge (other than because of the provision of section 
212(a)(4)(C) of the Act), and the child's lawful admission for permanent 
residence will result automatically in the child's acquisition of 
citizenship under section 320 of the Act, as amended. This exception 
applies to an alien orphan if the citizen parent(s) has (or have) 
legally adopted the alien orphan before the alien orphan's acquisition 
of permanent residence, and if both adoptive parents personally saw and 
observed the alien orphan before or during the foreign adoption 
proceeding. An affidavit of support under this part is still required if 
the citizen parent(s) will adopt the alien orphan in the United States 
only after the alien orphan's acquisition of permanent residence. If the 
citizen parent(s) adopted the alien orphan abroad, but at least one of 
the adoptive parents did not see and observe the alien orphan before or 
during the foreign adoption proceeding, then an affidavit of support 
under this part is still required, unless the citizen parent establishes 
that, under the law of the State of the alien orphan's intended 
residence in the United States, the foreign adoption decree is entitled 
to recognition without the need for a formal administrative or judicial 
proceeding in the State of proposed residence. In the case of a child 
who immigrates as a Convention adoptee, as defined in 8 CFR 204.301, 
this exception applies if the child was adopted by the petitioner in the 
Convention country. An affidavit of support under this part is still 
required in the case of a child who immigrates as a Convention adoptee 
if the petitioner will adopt the child in the United States only after 
the child's acquisition of permanent residence.
    (b) Affidavit of support sponsors. The following individuals must 
execute 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 Form I-130 or Form I-600 immigrant visa petition (or the 
Form I-129F petition, for a K nonimmigrant seeking adjustment), the 
approval of which forms the basis of the intending immigrant's 
eligibility to apply for an immigrant visa or adjustment of status as an 
immediate relative or a family-based immigrant, must execute a Form I-
864 on behalf of the intending immigrant. If the intending immigrant is 
the beneficiary of more than one approved immigrant visa petition, it is 
the person who filed the petition that is actually the basis for the 
intending immigrant's eligibility to apply for an immigrant visa or 
adjustment of status who must file the Form I-864.
    (2) For employment-based immigrants. A relative of an intending 
immigrant seeking an immigrant visa under section 203(b) of the Act must 
file a Form I-864 if the relative either filed the immigrant visa 
petition on behalf of the intending immigrant or owns a significant 
ownership interest in an entity that filed an immigrant visa petition on 
behalf of the intending immigrant, but only if the relative is a citizen 
or an alien lawfully admitted for permanent residence. If the intending 
immigrant is the beneficiary of more than one relative's employment-
based immigrant visa petition, it is the relative who filed the petition 
that is actually the basis for the intending immigrant's eligibility to 
apply for an immigrant visa or adjustment of status who must file the 
Form I-864.
    (c) Sponsorship requirements. (1)(i) General. A sponsor must be:
    (A) At least 18 years of age;
    (B) Domiciled in the United States or any territory or possession of 
the United States; and
    (C)(1) A citizen or an alien lawfully admitted for permanent 
residence in the case described in paragraph (a)(2)(i) of this section; 
or
    (2) A citizen or national or an alien lawfully admitted for 
permanent residence if the individual is a substitute sponsor or joint 
sponsor.
    (ii) Determination of domicile. (A) If the sponsor is residing 
abroad, but only temporarily, the sponsor bears the burden of proving, 
by a preponderance of the evidence, that the sponsor's domicile (as that 
term is defined in 8 CFR 213a.1) remains in the United States,

[[Page 262]]

provided, that a permanent resident who is living abroad temporarily is 
considered to be domiciled in the United States if the permanent 
resident has applied for and obtained the preservation of residence 
benefit under section 316(b) or section 317 of the Act, and provided 
further, that a citizen who is living abroad temporarily is considered 
to be domiciled in the United States if the citizen's employment abroad 
meets the requirements of section 319(b)(1) of the Act.
    (B) If the sponsor is not domiciled in the United States, the 
sponsor can still sign and submit a Form I-864 so long as the sponsor 
satisfies the Department of State officer, immigration officer, or 
immigration judge, by a preponderance of the evidence, that the sponsor 
will establish a domicile in the United States on or before the date of 
the principal intending immigrant's admission or adjustment of status. 
The intending immigrant will be inadmissible under section 212(a)(4) of 
the Act, and the immigration officer or immigration judge must deny the 
intending immigrant's application for admission or adjustment of status, 
if the sponsor has not, in fact, established a domicile in the United 
States on or before the date of the decision on the principal intending 
immigrant's application for admission or adjustment of status. In the 
case of a sponsor who comes to the United States intending to establish 
his or her principal residence in the United States at the same time as 
the principal intending immigrant's arrival and application for 
admission at a port-of-entry, the sponsor shall be deemed to have 
established a domicile in the United States for purposes of this 
paragraph, unless the sponsor is also a permanent resident alien and the 
sponsor's own application for admission is denied and the sponsor leaves 
the United States under a removal order or as a result of the sponsor's 
withdrawal of the application for admission.
    (2) Demonstration of ability to support intending immigrants. In 
order for the intending immigrant to overcome the public charge ground 
of inadmissibility, the sponsor must demonstrate the means to maintain 
the intending immigrant at an annual income of at least 125 percent of 
the Federal poverty line. If the sponsor is on active duty in the Armed 
Forces of the United States (other than active duty for training) and 
the intending immigrant is the sponsor's spouse or child, the sponsor's 
ability to maintain income must equal at least 100 percent of the 
Federal poverty line.
    (i) Proof of income. (A) The sponsor must include with the Form I-
864 either a photocopy or an Internal Revenue Service-issued transcript 
of his or her complete Federal income tax return for the most recent 
taxable year (counting from the date of the signing, rather than the 
filing, of the Form I-864). However, the sponsor may, at his or her 
option, submit tax returns for the three most recent years if the 
sponsor believes that these additional tax returns may help in 
establishing the sponsor's ability to maintain his or her income at the 
applicable threshold set forth in Form I-864P, Poverty Guidelines. Along 
with each transcript or photocopy, the sponsor must also submit as 
initial evidence copies of all schedules filed with each return and (if 
the sponsor submits a photocopy, rather than an IRS transcript of the 
tax return(s)) all Forms W-2 (if the sponsor relies on income from 
employment) and Forms 1099 (if the sponsor relies on income from sources 
documented on Forms 1099) in meeting the income threshold. The sponsor 
may also include as initial evidence: Letter(s) evidencing his or her 
current employment and income, paycheck stub(s) (showing earnings for 
the most recent six months, financial statements, or other evidence of 
the sponsor's anticipated household income for the year in which the 
intending immigrant files the application for an immigrant visa or 
adjustment of status. By executing Form I-864, the sponsor certifies 
under penalty of perjury under United States law that the evidence of 
his or her current household income is true and correct and that each 
transcript or photocopy of each income tax return is a true and correct 
transcript or photocopy of the return that the sponsor filed with the 
Internal Revenue Service for that taxable year.
    (B) If the sponsor had no legal duty to file a Federal income tax 
return for

[[Page 263]]

the most recent tax year, the sponsor must explain why he or she had no 
legal duty to a file a Federal income tax return for that year. If the 
sponsor claims he or she had no legal duty to file for any reason other 
than the level of the sponsor's income for that year, the initial 
evidence submitted with the Form I-864 must also include any evidence of 
the amount and source of the income that the sponsor claims was exempt 
from taxation and a copy of the provisions of any statute, treaty, or 
regulation that supports the claim that he or she had no duty to file an 
income tax return with respect to that income. If the sponsor had no 
legal obligation to file a Federal income tax return, he or she may 
submit other evidence of annual income. The fact that a sponsor had no 
duty to file a Federal income tax return does not relieve the sponsor of 
the duty to file Form I-864.
    (C)(1) The sponsor's ability to meet the income requirement will be 
determined based on the sponsor's household income. In establishing the 
household income, the sponsor may rely entirely on his or her personal 
income, if it is sufficient to meet the income requirement. The sponsor 
may also rely on the income of the sponsor's spouse and of any other 
person included in determining the sponsor's household size, if the 
spouse or other person is at least 18 years old and has completed and 
signed a Form I-864A. A person does not need to be a U.S. citizen, 
national, or alien lawfully admitted for permanent residence in order to 
sign a Form I-864A.
    (2) Each individual who signs Form I-864A agrees, 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 intending immigrants at the annual income level required by 
section 213A(a)(1)(A) of the Act, to be jointly and severally liable for 
any reimbursement obligation that the sponsor may incur, and to submit 
to the personal jurisdiction of any court that has subject matter 
jurisdiction over a civil suit to enforce the contract or the affidavit 
of support. The sponsor, as a party to the contract, may bring suit to 
enforce the contract. The intending immigrants and any Federal, state, 
or local agency or private entity that provides a means-tested public 
benefit to an intending immigrant are third party beneficiaries of the 
contract between the sponsor and the other individual or individuals on 
whose income the sponsor relies and may bring an action to enforce the 
contract in the same manner as third party beneficiaries of other 
contracts.
    (3) If there is no spouse or child immigrating with the intending 
immigrant, then there will be no need for the intending immigrant to 
sign a Form I-864A, even if the sponsor will rely on the continuing 
income of the intending immigrant to meet the income requirement. If, 
however, the sponsor seeks to rely on an intending immigrant's 
continuing income to establish the sponsor's ability to support the 
intending immigrant's spouse or children, then the intending immigrant 
whose income is to be relied on must sign the Form I-864A.
    (4) If the sponsor relies on the income of any individual who has 
signed Form I-864A, the sponsor must also include with the Form I-864 
and Form I-864A, with respect to the person who signed the Form I-864A, 
the initial evidence required under paragraph (c)(2)(i)(A) of this 
section. The household member's tax return(s) must be for the same tax 
year as the sponsor's tax return(s). An individual who signs Form I-864A 
certifies, under penalty of perjury, that the submitted transcript or 
photocopy of the tax return is a true and correct transcript or 
photocopy of the Federal income tax return filed with the Internal 
Revenue Service, and that the information concerning that person's 
employment and income is true and correct.
    (5) If the person who signs the Form I-864A is not an intending 
immigrant, and is any person other than the sponsor's spouse or a 
claimed dependent of the sponsor, the sponsor must also attach proof 
that the person is a relative (as defined in 8 CFR 213a.1) of the 
sponsor and that the Form I-864A signer has the same principal residence 
as the sponsor. If an intending immigrant signs a Form I-864A, the 
sponsor must also provide proof that the sponsored

[[Page 264]]

immigrant has the same principal residence as the sponsor, unless the 
sponsored immigrant is the sponsor's spouse.
    (D) Effect of failure to file income tax returns. If a sponsor, 
substitute sponsor, joint sponsor, or household member did not file a 
Federal income tax return for the year for which a transcript or 
photocopy must be provided, the Form I-864 or Form I-864A will not be 
considered sufficient to satisfy the requirements of section 213A of the 
Act, even if the household income meets the requirements of section 213A 
of the Act, unless the sponsor, substitute sponsor, joint sponsor, or 
household member proves, by a preponderance of the evidence, that he or 
she had no duty to file. If the sponsor, substitute sponsor, joint 
sponsor or household member cannot prove that he or she had no duty to 
file, then the Form I-864 or Form I-864A will not be considered 
sufficient to satisfy the requirements of section 213A of the Act until 
the sponsor, substitute sponsor, joint sponsor, or household member 
proves that he or she has satisfied the obligation to file the tax 
return and provides a transcript or copy of the return.
    (ii) Determining the sufficiency of an affidavit of support. The 
sufficiency of an affidavit of support shall be determined in accordance 
with this paragraph.
    (A) Income. The sponsor must first calculate the total income 
attributable to the sponsor under paragraph (c)(2)(i)(C) of this section 
for the year in which the intending immigrant filed the application for 
an immigrant visa or adjustment of status.
    (B) Number of persons to be supported. The sponsor must then 
determine his or her household size as defined in 8 CFR 213a.1.
    (C) Sufficiency of income. Except as provided in this paragraph, or 
in paragraph (a)(1)(v)(B) of this section, the sponsor's affidavit of 
support shall be considered sufficient to satisfy the requirements of 
section 213A of the Act and this section if the reasonably expected 
household income for the year in which the intending immigrant filed the 
application for an immigrant visa or adjustment of status, calculated 
under paragraph (c)(2)(iii)(A) of this section, would equal at least 125 
percent of the Federal poverty line for the sponsor's household size as 
defined in 8 CFR 213a.1, under the Poverty Guidelines in effect when the 
intending immigrant filed the application for an immigrant visa or for 
adjustment of status, except that the sponsor's income need only equal 
at least 100 percent of the Federal poverty line for the sponsor's 
household size, if the sponsor is on active duty (other than for 
training) in the Armed Forces of the United States and the intending 
immigrant is the sponsor's spouse or child. The sponsor's household 
income for the year in which the intending immigrant filed the 
application for an immigrant visa or adjustment of status shall be given 
the greatest evidentiary weight; any tax return and other information 
relating to the sponsor's financial history will serve as evidence 
tending to show whether the sponsor is likely to be able to maintain his 
or her income in the future. If the projected household income for the 
year in which the intending immigrant filed the application for an 
immigrant visa or adjustment of status meets the applicable income 
threshold, the affidavit of support may be held to be insufficient on 
the basis of the household income but only if, on the basis of specific 
facts, including a material change in employment or income history of 
the sponsor, substitute sponsor, joint sponsor or household member, the 
number of aliens included in Forms I-864 that the sponsor has signed but 
that have not yet entered into force in accordance with paragraph (e) of 
this section, or other relevant facts, it is reasonable to infer that 
the sponsor will not be able to maintain his or her household income at 
a level sufficient to meet his or her support obligations.
    (iii) Inability to meet income requirement. (A) If the sponsor is 
unable to meet the minimum income requirement in paragraph (c)(2)(iii) 
of this section, the intending immigrant is inadmissible under section 
212(a)(4) of the Act unless:
    (1) The sponsor, the intending immigrant or both, can meet the 
significant assets provision of paragraph (c)(2)(iv)(B) of this section; 
or

[[Page 265]]

    (2) A joint sponsor executes a separate Form I-864.
    (B) Significant assets. The sponsor may submit evidence of the 
sponsor's ownership of significant assets, such as savings accounts, 
stocks, bonds, certificates of deposit, real estate, or other assets. An 
intending immigrant may submit evidence of the intending immigrant's 
assets as a part of the affidavit of support, even if the intending 
immigrant is not required to sign a Form I-864A. The assets of any 
person who has signed a Form I-864A may also be considered in 
determining whether the assets are sufficient to meet this requirement. 
To qualify as ``significant assets'' the combined cash value of all the 
assets (the total value of the assets less any offsetting liabilities) 
must exceed:
    (1) If the intending immigrant is the spouse or child of a United 
States citizen (and the child has reached his or her 18th birthday), 
three times the difference between the sponsor's household income and 
the Federal poverty line for the sponsor's household size (including all 
immigrants sponsored in any affidavit of support in force or submitted 
under this section);
    (2) If the intending immigrant is an alien orphan who will be 
adopted in the United States after the alien orphan acquires permanent 
residence (or in whose case the parents will need to seek a formal 
recognition of a foreign adoption under the law of the State of the 
intending immigrant's proposed residence because at least one of the 
parents did not see the child before or during the adoption), and who 
will, as a result of the adoption or formal recognition of the foreign 
adoption, acquire citizenship under section 320 of the Act, the 
difference between the sponsor's household income and the Federal 
poverty line for the sponsor's household size (including all immigrants 
sponsored in any affidavit of support in force or submitted under this 
section);
    (3) In all other cases, five times the difference between the 
sponsor's household income and the Federal poverty line for the 
sponsor's household size (including all immigrants sponsored in any 
affidavit of support in force or submitted under this section).
    (C) Joint sponsor. A joint sponsor must execute a separate Form I-
864 on behalf of the intending immigrant(s) and be willing to accept 
joint and several liability with the sponsor or substitute sponsor. A 
joint sponsor must meet all the eligibility requirements under paragraph 
(c)(1) of this section, except that the joint sponsor does not have to 
have filed a visa petition on behalf of the intending immigrant. The 
joint sponsor must demonstrate his or her ability to support the 
intending immigrant in the manner specified in paragraph (c)(2) of this 
section. A joint sponsor's household income must meet or exceed the 
income requirement in paragraph (c)(2)(iii) of this section unless the 
joint sponsor can demonstrate significant assets as provided in 
paragraph (c)(2)(iv)(A) of this section. The joint sponsor's household 
income must equal at least 125% of the Poverty Guidelines for the joint 
sponsor's household size, unless the joint sponsor is on active duty in 
the Armed Forces and the intending immigrant is the joint sponsor's 
spouse or child, in which case the joint sponsor's household income is 
sufficient if it equals at least 100% of the Poverty Guidelines for the 
joint sponsor's household size. An intending immigrant may not have more 
than one joint sponsor, but, if the joint sponsor's household income is 
not sufficient to meet the income requirement with respect to the 
principal intending immigrant, any spouse and all the children who, 
under section 203(d) of the Act, seek to accompany the principal 
intending immigrant, then the joint sponsor may specify on the Form I-
864 that the Form I-864 is submitted only on behalf of the principal 
intending immigrant and those accompanying family members specifically 
listed on the Form I-864. The remaining accompanying family members will 
then be inadmissible under section 212(a)(4) of the Act unless a second 
joint sponsor submits a Form I-864 on behalf of all the remaining family 
members who seek to accompany the principal intending immigrant and who 
are not included in the first joint sponsor's Form I-864. There may not 
be more than two joint sponsors for the

[[Page 266]]

family group consisting of the principal intending immigrant and the 
accompanying spouse and children who will accompany the principal 
intending immigrant.
    (D) Substitute sponsor. In a family-sponsored case, if the visa 
petitioner dies after approval of the visa petition, but the U.S. 
Citizenship and Immigration Services determines, under 8 CFR 
205.1(a)(3)(i)(C), that for humanitarian reasons it would not be 
appropriate to revoke approval of the visa petition, then a substitute 
sponsor, as defined in 8 CFR 213a.1, may sign the Form I-864. The 
substitute sponsor must meet all the requirements of this section that 
would have applied to the visa petitioner, had the visa petitioner 
survived and been the sponsor. The substitute sponsor's household income 
must equal at least 125% of the Poverty Guidelines for the substitute 
sponsor's household size, unless the intending immigrant is the 
substitute sponsor's spouse or child and the substitute sponsor is on 
active duty in the Armed Forces (other than active duty for training), 
in which case the substitute sponsor's household income is sufficient if 
it equals at least 100% of the Poverty Guidelines for the substitute 
sponsor's household size. If the substitute sponsor's household income 
is not sufficient to meet the requirements of section 213A(a)(f)(1)(E) 
of the Act and paragraph (c)(2) of this section, the alien will be 
inadmissible unless a joint sponsor signs a Form I-864.
    (iv) Remaining inadmissibility on public charge grounds. 
Notwithstanding the filing of a sufficient affidavit of support under 
section 213A of the Act and this section, an alien may be found to be 
inadmissible under section 212(a)(4) of the Act if the alien's case 
includes evidence of specific facts that, when considered in light of 
section 212(a)(4)(B) of the Act, support a reasonable inference that the 
alien is likely at any time to become a public charge.
    (v) Verification of employment, income, and assets. The Federal 
Government may pursue verification of any information provided on or 
with 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. To facilitate this 
verification process, the sponsor, joint sponsor, substitute sponsor, or 
household member must sign and submit any necessary waiver form when 
directed to do so by the immigration officer, immigration judge, or 
Department of State officer who has jurisdiction to adjudicate the case 
to which the Form I-864 or I-864A relates. A sponsor's, substitute 
sponsor's, joint sponsor's, or household member's failure or refusal to 
sign any waiver needed to verify the information when directed to do so 
constitutes a withdrawal of the Form I-864 or I-864A, so that, in 
adjudicating the intending immigrant's application for an immigrant visa 
or adjustment of status, the Form I-864 or Form I-864A will be deemed 
not to have been filed.
    (vi) Effect of fraud or material concealment or misrepresentation. A 
Form I-864 or Form I-864A is insufficient to satisfy the requirements of 
section 213A of the Act and this part, and the affidavit of support 
shall be found insufficient to establish that the intending immigrant is 
not likely to become a public charge, if the Department of State 
officer, immigration officer or immigration judge finds that Form I-864 
or Form I-864A is forged, counterfeited, or otherwise falsely executed, 
or if the Form I-864 or Form I-864A conceals or misrepresents facts 
concerning household size, household income, employment history, or any 
other material fact. Any person who knowingly participated in the 
forgery, counterfeiting, or false production of a Form I-864 or Form I-
864A, or in any concealment or misrepresentation of any material fact, 
may be subject to a civil penalty under section 274C of the Act, to 
criminal prosecution, or to both, to the extent permitted by law. If the 
person is an alien, the person may also be subject to removal from the 
United States.
    (d) Legal effect of affidavit of support. Execution of 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,

[[Page 267]]

State, or local governmental agency or private entity that provides any 
means-tested public benefit to the sponsored immigrant after the 
sponsored immigrant acquires permanent resident status, may seek 
enforcement of the sponsor's obligations through an appropriate civil 
action.
    (e) Commencement and termination of support obligation. (1) With 
respect to any intending immigrant, the support obligation and change of 
address obligation imposed on a sponsor, substitute sponsor, or joint 
sponsor under Form I-864, and any household member's support obligation 
under Form I-864A, all begin when the immigration officer or the 
immigration judge grants the intending immigrant's application for 
admission as an immigrant or for adjustment of status on the basis of an 
application for admission or adjustment that included the Form I-864 or 
Form I-864A. Any person completing and submitting a Form I-864 as a 
joint sponsor or a Form I-864A as a household member is not bound to any 
obligations under section 213A of the Act if, notwithstanding his or her 
signing of a Form I-864 or Form I-864A, the Department of State officer 
(in deciding an application for an immigrant visa) or the immigration 
officer or immigration judge (in deciding an application for admission 
or adjustment of status) includes in the decision a specific finding 
that the sponsor or substitute sponsor's own household income is 
sufficient to meet the income requirements under section 213A of the 
Act.
    (2)(i) The support obligation and the change of address reporting 
requirement imposed on a sponsor, substitute sponsor and joint sponsor 
under Form I-864, and any household member's support obligation under 
Form I-864A, all terminate by operation of law when the sponsored 
immigrant:
    (A) Becomes a citizen of the United States;
    (B) Has worked, or can be credited with, 40 qualifying quarters of 
coverage under title II of the Social Security Act, 42 U.S.C. 401, et 
seq., provided that the sponsored immigrant is not credited with any 
quarter beginning after December 31, 1996, during which the sponsored 
immigrant receives or received any Federal means-tested public benefit;
    (C) Ceases to hold the status of an alien lawfully admitted for 
permanent residence and departs the United States (if the sponsored 
immigrant has not filed USCIS Form I-407, Abandonment of Lawful 
Permanent Resident Status, this provision will apply only if the 
sponsored immigrant is found in a removal proceeding to have abandoned 
that status while abroad);
    (D) Obtains in a removal proceeding a new grant of adjustment of 
status as relief from removal (in this case, if the sponsored immigrant 
is still subject to the affidavit of support requirement under this 
part, then any individual(s) who signed the Form I-864 or I-864A in 
relation to the new adjustment application will be subject to the 
obligations of this part, rather than those who signed a Form I-864 or 
I-864A in relation to an earlier grant of admission as an immigrant or 
of adjustment of status); or
    (E) Dies.
    (ii) The support obligation under Form I-864 also terminates if the 
sponsor, substitute sponsor or joint sponsor dies. A household member's 
obligation under Form I-864A terminates when the household member dies. 
The death of one person who had a support obligation under a Form I-864 
or Form I-864A does not terminate the support obligation of any other 
sponsor, substitute sponsor, joint sponsor, or household member with 
respect to the same sponsored immigrant.
    (3) The termination of the sponsor's, substitute sponsor's, or joint 
sponsor's obligations under Form I-864 or of a household member's 
obligations under Form I-864A does not relieve the sponsor, substitute 
sponsor, joint sponsor, or household member (or their respective 
estates) of any reimbursement obligation under section 213A(b) of the 
Act and this section that accrued before the support obligation 
terminated.
    (f) Withdrawal of Form I-864 or Form I-864A. (1) In an immigrant 
visa case, once the sponsor, substitute sponsor, joint sponsor, 
household member, or intending immigrant has presented a signed Form I-
864 or Form I-864A to a Department of State officer, the sponsor, 
substitute sponsor, joint sponsor,

[[Page 268]]

or household member may disavow his or her agreement to act as sponsor, 
substitute sponsor, joint sponsor, or household member if he or she does 
so in writing and submits the document to the Department of State 
officer before the actual issuance of an immigrant visa to the intending 
immigrant. Once the intending immigrant has obtained an immigrant visa, 
a sponsor, substitute sponsor, joint sponsor, or household member cannot 
disavow his or her agreement to act as a sponsor, joint sponsor, or 
household member unless the person or entity who filed the visa petition 
withdraws the visa petition in writing, as specified in 8 CFR 
205.1(a)(3)(i)(A) or 8 CFR 205.1(a)(3)(iii)(C), and also notifies the 
Department of State officer who issued the visa of the withdrawal of the 
petition.
    (2) In an adjustment of status case, once the sponsor, substitute 
sponsor, joint sponsor, household member, or intending immigrant has 
presented a signed Form I-864 or Form I-864A to an immigration officer 
or immigration judge, the sponsor, substitute sponsor, joint sponsor, or 
household member may disavow his or her agreement to act as sponsor, 
substitute sponsor, joint sponsor, or household member only if he or she 
does so in writing and submits the document to the immigration officer 
or immigration judge before the decision on the adjustment application.
    (g) Aliens who accompany or follow-to-join a principal intending 
immigrant. (1) To avoid inadmissibility under section 212(a)(4) of the 
Act, an alien who applies for an immigrant visa, admission, or 
adjustment of status as an alien who is accompanying, as defined in 22 
CFR 40.1, a principal intending immigrant must submit clear and true 
photocopies of the signed Form(s) I-864 (and any Form(s) I-864A) filed 
on behalf of the principal intending immigrant.
    (2)(i) To avoid inadmissibility under section 212(a)(4) of the Act, 
an alien who applies for an immigrant visa, admission, or adjustment of 
status as an alien who is following-to-join a principal intending 
immigrant must submit new Forms I-864 and I-864A, together with all 
documents or other evidence necessary to prove that the new Forms I-864 
and I-864A comply with the requirements of section 213A of the Act and 8 
CFR part 213a.
    (ii) When paragraph (g)(2)(i) of this section requires the filing of 
a new Form I-864 for an alien who seeks to follow-to-join a principal 
sponsored immigrant, the same sponsor who filed the visa petition and 
Form I-864 for the principal sponsored immigrant must file the new Form 
I-864 on behalf of the alien seeking to follow-to-join. If that person 
has died, then the alien seeking to follow-to-join is inadmissible 
unless a substitute sponsor, as defined by 8 CFR 213a.1, signs a new 
Form I-864 that meets the requirements of this section. Forms I-864A may 
be signed by persons other than the person or persons who signed Forms 
I-864A on behalf of the principal sponsored immigrant.
    (iii) If a joint sponsor is needed in the case of an alien who seeks 
to follow-to-join a principal sponsored immigrant, and the principal 
sponsored immigrant also required a joint sponsor when the principal 
sponsored immigrant immigrated, that same person may, but is not 
required to be, the joint sponsor for the alien who seeks to follow-to-
join the principal sponsored immigrant.

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



Sec. 213a.3  Notice of change of address.

    (a)(1) If the address of a sponsor (including a substitute sponsor 
or 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 U.S. Citizenship and Immigration 
Services (USCIS) no later than 30 days after the change of address 
becomes effective. As evidence that the sponsor, substitute sponsor, or 
joint sponsor has complied with this requirement, USCIS will accept a 
photocopy of the properly completed Form I-865, together with proof of 
the Form's delivery to the proper service center (such as a post-marked 
United States Postal Service Express Mail or certified mail receipt, 
showing that the sponsor mailed the Form I-865 to the proper USCIS 
service center, together

[[Page 269]]

with the corresponding post-marked United States Postal Service return 
receipt card or other proof of delivery provided by the United States 
Postal Service, or, if the sponsor, substitute sponsor, or joint sponsor 
sent the Form I-865 by a commercial delivery service, a photocopy of the 
shipping label and signature proof of delivery).
    (2) If the sponsor is an alien, filing Form I-865 does not relieve 
the sponsor of the requirement under 8 CFR 265.1 also to file a Form AR-
11, Alien's Change of Address Card.
    (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.

[62 FR 54352, Oct. 20, 1997, as amended at 71 FR 35755, June 21, 2006]



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

reports.

    (a) Requests for reimbursement; commencement of civil action. (1) By 
agencies. (i) If an agency that provides a means-tested public benefit 
to a sponsored immigrant wants to seek reimbursement from a sponsor, 
household member, or joint sponsor, the program official must arrange 
for service of a written request for reimbursement upon the sponsor, 
household member, or joint sponsor, by personal service, as defined by 8 
CFR 103.5a(a)(2), except that the person making personal service need 
not be a Federal Government officer or employee.
    (ii) The request for reimbursement must specify the date the 
sponsor, household member, or joint sponsor's support obligation 
commenced (this is the date the sponsored immigrant became a permanent 
resident), the sponsored immigrant's name, alien registration number, 
address, and date of birth, as well as the types of means-tested public 
benefit(s) that the sponsored immigrant received, the dates the 
sponsored immigrant received the means-tested public benefit(s), and the 
total amount of the means-tested public benefit(s) received.
    (iii) It is not necessary to make a separate request for each type 
of means-tested public benefit, nor for each separate payment. The 
agency may instead aggregate in a single request all benefit payments 
the agency has made as of the date of the request. A state or local 
government may make a single reimbursement request on behalf of all of 
the state or local government agencies that have provided means-tested 
public benefits.
    (iv) So that the sponsor, household member, or joint sponsor may 
verify the accuracy of the request, the request for reimbursement must 
include an itemized statement supporting the claim for reimbursement. 
The request for reimbursement must also include a notification to the 
sponsor, household member, or joint sponsor that the sponsor, household 
member, or joint sponsor must, within 45 days of the date of service, 
respond to the request for reimbursement either by paying the 
reimbursement or by arranging to commence payments pursuant to a payment 
schedule that is agreeable to the program official.
    (v) Prior to filing a lawsuit against a sponsor, household member, 
or joint sponsor to enforce the sponsor, household member, or joint 
sponsor's support obligation under section 213A(b)(2) of the Act, a 
Federal, state, or local governmental agency or a private entity must 
wait 45 days from the date it serves a written request for reimbursement 
in accordance with this section.
    (2) By the sponsored immigrant. Section 213A(b) of the Act does not 
require

[[Page 270]]

a sponsored immigrant to request the sponsor or joint sponsor to comply 
with the support obligation, before bringing an action to compel 
compliance.
    (3) Role of USCIS and DHS. Upon the receipt of a duly issued 
subpoena, USCIS may provide a certified copy of a Form I-864 or Form I-
864A that has been filed on behalf of a specific alien for use as 
evidence in a civil action to enforce the Form I-864 or Form I-864A, and 
may also disclose the last known address and social security number of 
the sponsor, substitute sponsor, or joint sponsor. Requesting 
information through the Systematic Alien Verification for Entitlement 
(SAVE) Programis sufficient, and a subpoena is not required, to obtain 
the sponsored immigrant's current immigration or citizenship status or 
the name, social security number and last known address of a sponsor, 
substitute sponsor, or joint sponsor.
    (b) Designation of means-tested public benefits.
     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.'' A sponsor, joint sponsor, or household member 
is not liable to reimburse any agency for any benefit with respect to 
which a public notice of the determination that the benefit is a means-
tested public benefit was not published until after the date the benefit 
was first provided to the immigrant.
    (c) Congressional reports. (1) For purposes of section 213A(i)(3) of 
the Act, USCIS will consider a sponsor or joint sponsor to be in 
compliance with the financial obligations of section 213A of the Act 
unless a party that has obtained a final judgment enforcing the sponsor 
or joint sponsor's obligations under section 213A(a)(1)(A) or 213A(b) of 
the Act has provided a copy of the final judgment to the USCIS by 
mailing a certified copy to the address listed in paragraph (c)(3) of 
this section. 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.
    (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 
address listed in paragraph (c)(3) of this section. The written notice 
should include the reference ``Determinations under 421(e) of the 
Personal Responsibility and Work Opportunity Reconciliation Act of 
1996.''
    (3) The address referred to in paragraphs (c)(1) and (c)(2) of this 
section is: Office of Program and Regulation Development, U.S. 
Citizenship and Immigration Services, 20 Massachusetts Avenue, NW., 
Washington, DC, 20529.

[62 FR 54352, Oct. 20, 1997, as amended at 71 FR 35755, June 21, 2006]



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.

[[Page 271]]



PART 214_NONIMMIGRANT CLASSES--Table of Contents




Sec.
214.1 Requirements for admission, extension, and maintenance of status.
214.2 Special requirements for admission, extension, and maintenance of 
          status.
214.3 Approval of schools for enrollment of F and M nonimmigrants.
214.4 Denial of certification, denial of recertification or withdrawal 
          of SEVP certification.
214.5 Libyan and third country nationals acting on behalf of Libyan 
          entities.
214.6 Citizens of Canada or Mexico seeking temporary entry under NAFTA 
          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 SEVIS for certain F, J, and M nonimmigrants.
214.14 Alien victims of certain qualifying criminal activity.
214.15 Certain spouses and children of lawful permanent residents.

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant to 
E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1186a, 1187, 1221, 
1281, 1282, 1301-1305, 1356, 1372, 1379, 1731-32; section 643, Public 
Law 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.

    Effective Date Note: At 73 FR 76911, Dec. 18, 2008, the authority 
citation for Part 214 was revised, effective Jan. 17, 2009. For the 
convenience of the user, the revised text is set forth as follows:
    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185, 1186a, 1187, 
1221, 1253, 1281, 1282, 1301-1305 and 1372; section 643, Pub. L. 104-
208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; 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
    (ix) Section 101(a)(15)(U)(ii) is divided into (U)(ii), (U)(iii), 
(U)(iv), and (U)(v) for the spouse, child, parent, and siblings, 
respectively, of a nonimmigrant classified under section 
101(a)(15)(U)(i); and
    (2) Classification designations. For the purpose of this chapter the 
following nonimmigrant designations are established. The designation in 
the second

[[Page 272]]

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.
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)(U)(i).........................  U-1.
101(a)(15)(U)(ii)........................  U-2, U-3, U-4, U-5
101(a)(15)(V)............................  V-1, V-2, or V-3
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. (i) Every nonimmigrant alien who applies 
for admission to, or an extension of stay in, the United States, must 
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 must present a valid 
passport and valid visa unless either or both documents have been 
waived. A nonimmigrant alien's admission to the United States is 
conditioned on compliance with any inspection requirement in Sec. 
235.1(d) or of this chapter. The passport of an alien applying for 
admission must 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 must agree to abide by the terms and 
conditions of his or her admission. An alien applying for extension of 
stay must present a passport only if requested to do so by the 
Department of Homeland Security. The passport of an alien applying for 
extension of stay must be valid at the time of application for 
extension, unless otherwise provided in this chapter, and the alien must 
agree to maintain the validity of his or her passport and to abide by 
all the terms and conditions of his extension.
    (ii) At the time of admission or extension of stay, every 
nonimmigrant alien must also agree to depart the United States at the 
expiration of his or her authorized period of admission or extension of 
stay, or upon abandonment of his or her authorized nonimmigrant status, 
and to comply with the departure procedures at section 215.8 of this 
chapter if such procedures apply to the particular alien. The 
nonimmigrant alien's failure to comply with those departure 
requirements, including any requirement that the alien provide biometric 
identifiers, may constitute a failure of the alien to maintain the terms 
of his or her nonimmigrant status.
    (iii) At the time a nonimmigrant alien applies for admission or 
extension of stay, he or she must post a bond on Form I-352 in the sum 
of not less

[[Page 273]]

than $500, to ensure the maintenance of his or her nonimmigrant status 
and departure from the United States, if required to do so by the 
Commissioner of CBP, the Director of U.S. Citizenship and Immigration 
Services, an immigration judge, or the 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:
    (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

[[Page 274]]

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 TN 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;
    (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.

[[Page 275]]

    (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.
    (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. (1) 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 health 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 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).
    (2) A TN nonimmigrant may establish that he or she is eligible for a 
waiver described at 8 CFR 212.15(n) by providing evidence that his or 
her initial admission as a TN (or TC) nonimmigrant health care worker 
occurred before September 23, 2003, and he or she was licensed and 
employed in the United States as a health care worker before September 
23, 2003. Evidence

[[Page 276]]

may include, but is not limited to, copies of TN or TC approval notices, 
copies of Form I-94 Arrival/Departure Records, employment verification 
letters and/or pay-stubs or other employment records, and state health 
care worker licenses.
    (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), the petitioning employer may file a Form I-129 to extend the 
approval period for the alien's classification for the nonimmigrant 
status. If the alien is in the United States and is eligible for an 
extension of stay or change of status, the Form I-129 also serves as an 
application to extend the period of the alien's authorized stay or to 
change the alien's status. Although the Form I-129 petition may be 
approved, as it relates to the employer's request to classify the alien, 
the application for an extension of stay or change of 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 DHS may admit, extend the period of 
authorized 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 (or on or before July 26, 2005, in the case 
of a citizen of Canada or Mexico, who, before September 23, 2003, was 
employed as a TN or TC nonimmigrant health care worker and held a valid 
license from a U.S. jurisdiction), the 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.

    Effective Date Note: At 73 FR 78127, Dec. 19, 2008, Sec. 214.1 was 
amended by adding paragraph (k), effective Jan. 18, 2009. For the 
convenience of the user, the added text is set forth as follows:



Sec. 214.1  Requirements for admission, extension, and maintenance of 
          status.

                                * * * * *

    (k) Denial of petitions under section 214(c) of the Act based on a 
finding by the Department of Labor. Upon debarment by the Department of 
Labor pursuant to 20 CFR 655.31, USCIS may deny any petition filed by 
that petitioner for nonimmigrant status under section 101(a)(15)(H) 
(except for status under sections 101(a)(15)(H)(i)(b1)), (L), (O), and 
(P)(i) of the Act) for a period of at least 1 year but not more than 5 
years. The length of the period shall be based on the severity of the 
violation or violations. The decision to deny petitions, the time period 
for the bar to petitions, and the reasons for the time period will be 
explained in a written notice to the petitioner.



Sec. 214.2  Special requirements for admission, extension, and maintenance of 

status.

    The general requirements in Sec. 214.1 are modified for the 
following nonimmigrant classes:
    (a) Foreign government officials--(1) General. The determination by 
a consular officer prior to admission and the recognition by the 
Secretary of State subsequent to admission is evidence of the proper 
classification of a nonimmigrant under section 101(a)(15)(A) of the Act. 
An alien who has a nonimmigrant status under section 101(a)(15)(A)(i) or 
(ii) of the Act is to be admitted for the duration of the period for 
which the alien continues to be recognized by the Secretary of State as 
being entitled to that status. An alien defined in section 
(101)(a)(15)(A)(iii) of the Act is to be admitted for an initial period 
of not more than three years, and may be granted extensions of temporary 
stay in increments of not more

[[Page 277]]

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 based upon informal de 
facto arrangements upon favorable recommendation by the Department of 
State and

[[Page 278]]

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 279]]

    (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 280]]

    (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 281]]

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 282]]

    (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 283]]

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 284]]

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

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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

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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 287]]

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

[[Page 288]]

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;

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    (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

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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 and grant of employment 
authorization.
    (A) The duration of status, and any employment authorization granted 
under 8 CFR 274a.12(c)(3)(i)(B) and (C), of an F-1 student who is the 
beneficiary of an H-1B petition and request for change of status shall 
be automatically extended until October 1 of the fiscal year for which 
such H-1B visa is being requested where such petition:
    (1) Has been timely filed; and
    (2) States that the employment start date for the F-1 student is 
October 1 of the following fiscal year.
    (B) The automatic extension of an F-1 student's duration of status 
and employment authorization under paragraph (f)(5)(vi)(A) of this 
section shall immediately terminate upon the rejection, denial, or 
revocation of the H-1B petition filed on such F-1 student's behalf.
    (C) In order to obtain the automatic extension of stay and 
employment authorization under paragraph (f)(5)(vi)(A) of this section, 
the F-1 student, according to 8 CFR part 248, must not have violated the 
terms or conditions of his or her nonimmigrant status.
    (D) An automatic extension of an F-1 student's duration of status 
under paragraph (f)(5)(vi)(A) of this section

[[Page 291]]

also applies to the duration of status of any 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 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.

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    (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 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

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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 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

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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 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

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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 
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.

[[Page 296]]

    (iii) Notification. Upon receipt of the student's Form I-20 A-B, the 
DSO must:
    (A) Note ``transfer completed on (date)'' on the student's I-20 ID 
in the space provided for the DSO's remarks, thereby acknowledging the 
student's attendance;
    (B) Return the I-20 ID to the student;
    (C) Submit the I-20 School copy to the Service's Data Processing 
Center within 30 days of receipt from the student; and
    (D) Forward a photocopy of the Form I-20 A-B School Copy to the 
school from which the student transferred.
    (9) Employment--(i) On-campus employment. On-campus employment must 
either be performed on the school's premises, (including on-location 
commercial firms which provide services for students on campus, such as 
the school bookstore or cafeteria), or at an off-campus location which 
is educationally affiliated with the school. Employment with on-site 
commercial firms, such as a construction company building a school 
building, which do not provide direct student services is not deemed on-
campus employment for the purposes of this paragraph. In the case of 
off-campus locations, the educational affiliation must be associated 
with the school's established curriculum or related to contractually 
funded research projects at the post-graduate level. In any event, the 
employment must be an integral part of the student's educational 
program. Employment authorized under this paragraph must not exceed 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

[[Page 297]]

loss of financial aid or on-campus employment without fault on the part 
of the student, substantial fluctuations in the value of currency or 
exchange rate, inordinate increases in tuition and/or living costs, 
unexpected changes in the financial condition of the student's source of 
support, medical bills, or other substantial and unexpected expenses.
    (D) Procedure for off-campus employment authorization 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.

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    (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 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. Consistent with the application and approval process in 
paragraph (f)(11) of this section, a student may apply to USCIS 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. 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

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eligibility for optional practical training. A student must complete all 
practical training within a 14-month period following the completion of 
study, except that a 17-month extension pursuant to paragraph 
(f)(10)(ii)(C) of this section does not need to be completed within such 
14-month period.
    (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) 17-month extension of post-completion OPT for students with a 
science, technology, engineering, or mathematics (STEM) degree. 
Consistent with paragraph (f)(11)(i)(C) of this section, a qualified 
student may apply for an extension of OPT while in a valid period of 
post-completion OPT. The extension will be for an additional 17 months, 
for a maximum of 29 months of OPT, if all of the following requirements 
are met.
    (1) The student has not previously received a 17-month OPT extension 
after earning a STEM degree.
    (2) The degree that was the basis for the student's current period 
of OPT is a bachelor's, master's, or doctoral degree in one of the 
degree programs on the current STEM Designated Degree Program List, 
published on the SEVP Web site at http://www.ice.gov/sevis.
    (3) The student's employer is registered in the E-Verify program, as 
evidenced by either a valid E-Verify company identification number or, 
if the employer is using a designated agent to perform the E-Verify 
queries, a valid E-Verify client company identification number, and the 
employer is a participant in good standing in the E-Verify program, as 
determined by USCIS.
    (4) The employer agrees to report the termination or departure of an 
OPT employee to the DSO at the student's school or through any other 
means or process identified by DHS if the termination or departure is 
prior to end of the authorized period of OPT. Such reporting must be 
made within 48 hours of the event. An employer shall consider a worker 
to have departed when the employer knows the student has left the 
employment or if the student has not reported for work for a period of 5 
consecutive business days without the consent of the employer, whichever 
occurs earlier.
    (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) Periods of unemployment during post-completion OPT. During post-
completion OPT, F-1 status is dependent upon employment. Students may 
not accrue an aggregate of more than 90 days of unemployment during any 
post-completion OPT carried out under the initial post-completion OPT 
authorization. Students granted a 17-month OPT extension may not accrue 
an aggregate of more than 120 days of unemployment during the total OPT 
period comprising any post-completion OPT carried out under the initial 
post-completion OPT authorization and the subsequent 17-month extension 
period.
    (11) OPT application and approval process.
    (i) Student responsibilities. A student must initiate the OPT 
application process by requesting a recommendation for OPT from his or 
her DSO. Upon making the recommendation, the DSO will provide the 
student a signed Form I-20 indicating that recommendation.
    (A) Application for employment authorization. The student must 
properly file a Form I-765, Application for Employment Authorization, 
with USCIS, accompanied by the required fee for the Form I-765, and the 
supporting documents, as described in the form's instructions.
    (B) Filing deadlines for pre-completion OPT and post-completion OPT.

[[Page 300]]

    (1) Students may file a Form I-765 for pre-completion OPT up to 90 
days before being enrolled for one full academic year, provided that the 
period of employment will not start prior to the completion of the full 
academic year.
    (2) For post-completion OPT, the student must properly file his or 
her Form I-765 up to 90 days prior to his or her program end-date and no 
later than 60 days after his or her program end-date. The student must 
also file the Form I-765 with USCIS within 30 days of the date the DSO 
enters the recommendation for OPT into his or her SEVIS record.
    (C) Applications for 17-month OPT extension. A student meeting the 
eligibility requirement in paragraph (f)(10)(ii)(C) of this section may 
file for a 17-month extension of employment authorization by filing Form 
I-765, Application for Employment Authorization, with the appropriate 
fee, prior to the expiration date of the student's current OPT 
employment authorization. If a student timely and properly files an 
application for a 17-month OPT extension, but the Form I-766, Employment 
Authorization Document, currently in the student's possession, expires 
prior to the decision on the student's application for 17-month OPT 
extension, the student's Form I-766 is extended automatically pursuant 
to the terms and conditions specified in 8 CFR 274a.12(b)(6)(iv).
    (D) Start of employment. A student may not begin employment prior to 
the approved starting date on his or her employment authorization except 
as noted in paragraph (f)(11)(i)(C) of this section. A student may not 
request a start date that is more than 60 days after the student's 
program end date. Employment authorization will begin on the date 
requested or the date the employment authorization is adjudicated, 
whichever is later.
    (ii) DSO responsibilities. A student needs a recommendation from his 
or her DSO in order to apply for OPT. When a DSO recommends a student 
for OPT, the school assumes the added responsibility for maintaining the 
SEVIS record of that student for the entire period of authorized OPT, 
consistent with paragraph (f)(12) of this section.
    (A) Prior to making a recommendation, the DSO must ensure that the 
student is eligible for the given type and period of OPT and that the 
student is aware of his or her responsibilities for maintaining status 
while on OPT. Prior to recommending a 17-month OPT extension, the DSO 
must certify that the student's degree, as shown in SEVIS, is a 
bachelor's, master's, or doctorate degree with a degree code that is on 
the current STEM Designated Degree Program List.
    (B) The DSO must update the student's SEVIS record with the DSO's 
recommendation for OPT before the student can apply to USCIS for 
employment authorization. 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.
    (C) The DSO must provide the student with a signed, dated Form I-20 
indicating that OPT has been recommended.
    (iii) Decision on application for OPT employment authorization. 
USCIS will adjudicate the Form I-765 and, if approved, issue an EAD on 
the basis of the DSO's recommendation and other eligibility 
considerations.
    (A) The employment authorization period for post-completion OPT 
begins on the date requested or the date the employment authorization 
application is approved, whichever is later, and ends at the conclusion 
of the remaining time period of post-completion OPT eligibility. The 
employment authorization period for the 17-month OPT extension begins on 
the day after the expiration of the initial post-completion OPT 
employment authorization and ends 17 months thereafter, regardless of 
the date the actual extension is approved.
    (B) USCIS will notify the applicant of the decision and, if the 
application is denied, of the reason or reasons for the denial.
    (C) The applicant may not appeal the decision.
    (12) Reporting while on optional practical training.
    (i) General. An F-1 student who is authorized by USCIS to engage in 
optional practical training (OPT) employment is required to report any

[[Page 301]]

change of name or address, or interruption of such employment to the DSO 
for the duration of the optional practical training. A DSO who 
recommends a student for OPT is responsible for updating the student's 
record to reflect these reported changes for the duration of the time 
that training is authorized.
    (ii) Additional reporting obligations for students with an approved 
17-month OPT. Students with an approved 17-month OPT extension have 
additional reporting obligations. Compliance with these reporting 
requirements is required to maintain F-1 status. The reporting 
obligations are:
    (A) Within 10 days of the change, the student must report to the 
student's DSO a change of legal name, residential or mailing address, 
employer name, employer address, and/or loss of employment.
    (B) The student must make a validation report to the DSO every six 
months starting from the date the extension begins and ending when the 
student's F-1 status ends, the student changes educational levels at the 
same school, or the student transfers to another school or program, or 
the 17-month OPT extension ends, whichever is first. The validation is a 
confirmation that the student's information in SEVIS for the items in 
listed in paragraph (f)(12)(ii)(A) of this section is current and 
accurate. This report is due to the student's DSO within 10 business 
days of each reporting date.
    (13) Temporary absence from the United States of F-1 student granted 
employment authorization. (i) A student returning from a temporary trip 
abroad with an unexpired off-campus employment authorization on his or 
her I-20 ID may resume employment only if the student is readmitted to 
attend the same school which granted the employment authorization.
    (ii) An F-1 student who has an unexpired EAD issued for post-
completion practical training and who is otherwise admissible may return 
to the United States to resume employment after a period of temporary 
absence. The EAD must be used in combination with an I-20 ID endorsed 
for reentry by the DSO within the last six months.
    (14) Effect of strike or other labor dispute. Any employment 
authorization, whether or not part of an academic program, is 
automatically suspended upon certification by the Secretary of Labor or 
the Secretary's designee to the Commissioner of the Immigration and 
Naturalization Service or the Commissioner's designee, that a strike or 
other labor dispute involving a work stoppage of workers is in progress 
in the occupation at the place of employment. As used in this paragraph, 
``place of employment'' means the facility or facilities where a labor 
dispute exists. The employer is prohibited from transferring F-1 
students working at other facilities to the facility where the work 
stoppage is occurring.
    (15) Spouse and children of F-1 student. The F-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

[[Page 302]]

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
    (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.

[[Page 303]]

    (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.
    (19) Remittance of the fee. An alien who applies for F-1 or F-3 
nonimmigrant status in order to enroll in a program of study at a 
Department of Homeland Security (DHS)-approved educational institution 
is required to pay the Student and Exchange Visitor Information System 
(SEVIS) fee to DHS, pursuant to 8 CFR 214.13, except as otherwise 
provided in that section.
    (g) Representatives to international organizations--(1) General. The 
determination by a consular officer prior to admission and the 
recognition by the Secretary of State subsequent to admission is 
evidence of the proper classification of a nonimmigrant under section 
101(a)(15)(G) of the Act. An alien who has a nonimmigrant status under 
section 101(a)(15)(G) (i), (ii), (iii) or (iv) of the Act is to be 
admitted for the duration of the period for which the alien continues to 
be recognized by the Secretary of State as being entitled to that 
status. An alien defined in section (101)(a)(15)(G)(v) of the Act is to 
be admitted for an initial period of not more than three years, and may 
be granted extensions of temporary stay in increments of not more than 
two years. In addition, the application for extension of temporary stay 
must be accompanied by a statement signed by the employing official 
stating that he or she intends to continue to employ the applicant and 
describing the type of work the applicant will perform.
    (2) Definition of G-1, G-3, or G-4 dependent. For purposes of 
employment in the United States, the term dependent of a G-1, G-3, or G-
4 principal alien, as used in Sec. 214.2(g), means any of the following 
immediate members of the family habitually residing in the same 
household as the principal alien who is an officer or employee assigned 
to a mission, to an international organization, or is employed by an 
international organization in the United States:
    (i) Spouse;
    (ii) Unmarried children under the age of 21;
    (iii) Unmarried sons or daughters under the age of 23 who are in 
full-time attendance as students at post-secondary educational 
institutions;
    (iv) Unmarried sons or daughters under the age of 25 who are in 
full-time attendance as students at post-secondary educational 
institutions if a formal bilateral employment agreement permitting their 
employment in the United States was signed prior to November 21, 1988, 
and such bilateral employment agreement does not specify 23 as the 
maximum age for employment of such sons and daughters. The Office of 
Protocol of the Department of State shall maintain a listing of foreign 
states which the United States has such bilateral employment agreements. 
The provisions of this paragraph apply only to G-1 and G-3 dependents 
under certain bilateral agreements and are not applicable to G-4 
dependents; and

[[Page 304]]

    (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-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

[[Page 305]]

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 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

[[Page 306]]

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 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

[[Page 307]]

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, H-2A, H-2B, or H-3, 
temporary employee shall file a petition on Form I-129, Petition for 
Nonimmigrant Worker, only with the USCIS 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 or as specifically designated by USCIS via notice in the 
Federal Register.
    (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

[[Page 308]]

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 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.
    (G) Multiple H-1B petitions. An employer may not file, in the same 
fiscal year, more than one H-1B petition on behalf of the same alien if 
the alien is subject to the numerical limitations of section 
214(g)(1)(A) of the Act or is exempt from those limitations under 
section 214(g)(5)(C) of the Act. If an H-1B petition is denied, on a 
basis other than fraud or misrepresentation, the employer may file a 
subsequent H-1B petition on behalf of the same alien in the same fiscal 
year, provided that the numerical limitation has not been reached or if 
the filing qualifies as exempt from the numerical limitation. Otherwise, 
filing more than one H-1B petition by an employer on behalf of the same 
alien in the same fiscal year will result in the denial or revocation of 
all such petitions. If USCIS believes that related entities (such as a 
parent company, subsidiary, or affiliate) may not have a legitimate 
business need to file more than one H-1B petition on behalf of the same 
alien subject to the numerical limitations of section 214(g)(1)(A) of 
the Act or otherwise eligible for an exemption under section 
214(g)(5)(C) of the Act, USCIS may issue a request for additional 
evidence or notice of intent to deny, or notice of intent to revoke each 
petition. If any of the related entities fail to demonstrate a 
legitimate business need to file an H-1B petition on behalf of the same 
alien, all petitions filed on that alien's behalf by the related 
entities will be denied or revoked.
    (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

[[Page 309]]

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 (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

[[Page 310]]

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, 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

[[Page 311]]

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;
    (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.

[[Page 312]]

    (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 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

[[Page 313]]

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:
    (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

[[Page 314]]

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 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

[[Page 315]]

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
    (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.

[[Page 316]]

    (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 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

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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.
    (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.

[[Page 318]]

    (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 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

[[Page 319]]

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 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.

[[Page 320]]

    (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 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

[[Page 321]]

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
    (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

[[Page 322]]

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 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

[[Page 323]]

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 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

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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 the limits identified in section 
214(g)(1)(A) of the Act.
    (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 nonimmigrants shall not be counted against the numerical limit.
    (B) When calculating the numerical limitations or the number of 
exemptions under section 214(g)(5)(C) of the Act for a given fiscal 
year, USCIS will make numbers available to petitions in the order in 
which the petitions are filed. USCIS will make projections of the number 
of petitions necessary to achieve the numerical limit of approvals, 
taking into account historical data related to approvals, denials, 
revocations, and other relevant factors. USCIS will monitor the number 
of petitions (including the number of beneficiaries requested when 
necessary) received and will notify the public of the date that USCIS 
has received the necessary number of petitions (the ``final receipt 
date''). The day the news is published will not control the final 
receipt date. When necessary to ensure the fair and orderly allocation 
of numbers in a particular classification subject to a numerical 
limitation or the exemption under section 214(g)(5)(C) of the Act, USCIS 
may randomly select from among the petitions received on the final 
receipt date the remaining number of petitions deemed necessary to 
generate the numerical limit of approvals. This random selection will be 
made via computer-generated selection as validated by the Office of 
Immigration Statistics. Petitions subject to a numerical limitation not 
randomly selected or that were received after the final receipt date 
will be rejected. Petitions filed on behalf of aliens otherwise eligible 
for the exemption under section 214(g)(5)(C) of the Act not randomly 
selected or that were received after the final receipt date will be 
rejected if the numerical limitation

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under 214(g)(1) of the Act has been reached for that fiscal year. 
Petitions indicating that they are exempt from the numerical limitation 
but that are determined by USCIS after the final receipt date to be 
subject to the numerical limit will be denied and filing fees will not 
be returned or refunded. If the final receipt date is any of the first 
five business days on which petitions subject to the applicable 
numerical limit may be received (i.e., if the numerical limit is reached 
on any one of the first five business days that filings can be made), 
USCIS will randomly apply all of the numbers among the petitions 
received on any of those five business days, conducting the random 
selection among the petitions subject to the exemption under section 
214(g)(5)(C) of the Act first.
    (C) 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 USCIS will 
take into account the unused number during the appropriate fiscal year.
    (D) 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. Petitions 
received after the total numbers available in a fiscal year are used 
stating that the alien beneficiaries are exempt from the numerical 
limitation will be denied and filing fees will not be returned or 
refunded if USCIS later determines that such beneficiaries are subject 
to the numerical limitation.
    (E) 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

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may be approved in whole or in part. The approval notice shall cover 
only those beneficiaries approved for classification under section 
101(a)(15)(H) of the Act.
    (B) The petition may not be filed or approved earlier than six 
months before the date of actual need for the beneficiary's services or 
training.
    (ii) Recording the validity of petitions. Procedures for recording 
the validity period of petitions are:
    (A) If a new H petition is approved before the date the petitioner 
indicates that the services or training will begin, the approved 
petition and approval notice shall show the actual dates requested by 
the petitioner as the validity period, not to exceed the limits 
specified by paragraph (h)(9)(iii) of this section or other Service 
policy.
    (B) If a new H petition is approved after the date the petitioner 
indicates that the services or training will begin, the approved 
petition and approval notice shall show a validity period commencing 
with the date of approval and ending with the date requested by the 
petitioner, as long as that date does not exceed either the limits 
specified by paragraph (h)(9)(iii) of this section or other Service 
policy.
    (C) If the period of services or training requested by the 
petitioner exceeds the limit specified in paragraph (h)(9)(iii) of this 
section, the petition shall be approved only up to the limit specified 
in that paragraph.
    (iii) Validity. The initial approval period of an H petition shall 
conform to the limits prescribed as follows:
    (A)(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

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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 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 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 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

[[Page 328]]

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 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.

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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 the beneficiary would adversely affect the 
wages and working conditions of U.S. citizens and lawful resident 
workers:

[[Page 330]]

    (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:
    (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

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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 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.

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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 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

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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 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

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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.
    (5) Remittance of the fee. An alien who applies for J-1 nonimmigrant 
status in order to commence participation in a Department of State-
designated exchange visitor program is required to pay the SEVIS fee to 
DHS, pursuant to 8 CFR 214.13, except as otherwise provided in that 
section.
    (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

[[Page 335]]

Act) may be accorded the same nonimmigrant classification as the 
beneficiary if accompanying or following to join him or her.
    (4) Notification. The petitioner shall be notified of the decision 
and, if the petition is denied, of the reasons therefor and of the right 
to appeal in accordance with the provisions of part 103 of this chapter.
    (5) Validity. The approval of a petition under this paragraph shall 
be valid for a period of four months. A petition which has expired due 
to the passage of time may be revalidated by a director or a consular 
officer for a period of four months from the date of revalidation upon a 
finding that the petitioner and 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.

[[Page 336]]

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);
    (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.
    (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 
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

[[Page 337]]

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 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

[[Page 338]]

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 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

[[Page 339]]

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 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.

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    (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-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.

[[Page 341]]

    (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) 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.
    (ii) 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

[[Page 342]]

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 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

[[Page 343]]

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 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;

[[Page 344]]

    (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 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:

[[Page 345]]

    (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.
    (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.

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    (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 
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

[[Page 347]]

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 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

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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 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

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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 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.

[[Page 350]]

    (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 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.

[[Page 351]]

    (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 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

[[Page 352]]

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 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

[[Page 353]]

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.
    (20) Remittance of the fee. An alien who applies for M-1 or M-3 
nonimmigrant status in order to enroll in a program of study at a DHS-
approved vocational educational institution is required to pay the SEVIS 
fee to DHS, pursuant to 8 CFR 214.13, except as otherwise provided in 
that 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) status without restrictions as to 
location or type of employment.
    (o) Aliens of extraordinary ability or achievement--(1) 
Classifications--(i) General. Under section 101(a)(15)(O) of the Act, a 
qualified alien may be authorized to come to the United States to 
perform services relating to an event or events if petitioned for by an 
employer. Under this nonimmigrant category, the alien may be classified 
under section 101(a)(15)(O)(i) of the Act

[[Page 354]]

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 one year 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, 
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

[[Page 355]]

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 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.

[[Page 356]]

    (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 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

[[Page 357]]

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 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;

[[Page 358]]

    (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 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

[[Page 359]]

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.
    (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

[[Page 360]]

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 
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

[[Page 361]]

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.
    (7) 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

[[Page 362]]

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 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

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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 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

[[Page 364]]

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 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

[[Page 365]]

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 one year 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 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.

[[Page 366]]

    (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 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

[[Page 367]]

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 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

[[Page 368]]

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 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

[[Page 369]]

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 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

[[Page 370]]

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 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.

[[Page 371]]

    (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 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

[[Page 372]]

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.
    (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

[[Page 373]]

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) 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
    (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

[[Page 374]]

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 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:

[[Page 375]]

    (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 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.

[[Page 376]]

    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:
    (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,

[[Page 377]]

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 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

[[Page 378]]

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 
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

[[Page 379]]

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 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]

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    (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 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.

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    (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. This paragraph governs classification of an 
alien as a nonimmigrant religious worker (R-1).
    (1) To be approved for temporary admission to the United States, or 
extension and maintenance of status, for the purpose of conducting the 
activities of a religious worker for a period not to exceed five years, 
an alien must:
    (i) Be a member of a religious denomination having a bona fide non-
profit religious organization in the United States for at least two 
years immediately preceding the time of application for admission;
    (ii) Be coming to the United States to work at least in a part time 
position (average of at least 20 hours per week);
    (iii) Be coming solely as a minister or to perform a religious 
vocation or occupation as defined in paragraph (r)(3) of this section 
(in either a professional or nonprofessional capacity);
    (iv) Be coming to or remaining in the United States at the request 
of the petitioner to work for the petitioner; and
    (v) Not work in the United States in any other capacity, except as 
provided in paragraph (r)(2) of this section.
    (2) An alien may work for more than one qualifying employer as long 
as each qualifying employer submits a petition plus all additional 
required documentation as prescribed by USCIS regulations.
    (3) Definitions. As used in this section, the term:

[[Page 382]]

    Bona fide non-profit religious organization in the United States 
means a religious organization exempt from taxation as described in 
section 501(c)(3) of the Internal Revenue Code of 1986, subsequent 
amendment or equivalent sections of prior enactments of the Internal 
Revenue Code, and possessing a currently valid determination letter from 
the Internal Revenue Service (IRS) confirming such exemption.
    Bona fide organization which is affiliated with the religious 
denomination means an organization which is closely associated with the 
religious denomination and which is exempt from taxation as described in 
section 501(c)(3) of the Internal Revenue Code of 1986, or subsequent 
amendment or equivalent sections of prior enactments of the Internal 
Revenue Code, and possessing a currently valid determination letter from 
the IRS confirming such exemption.
    Denominational membership means membership during at least the two-
year period immediately preceding the filing date of the petition, in 
the same type of religious denomination as the United States religious 
organization where the alien will work.
    Minister means an individual who:
    (A) Is fully authorized by a religious denomination, and fully 
trained according to the denomination's standards, to conduct religious 
worship and perform other duties usually performed by authorized members 
of the clergy of that denomination;
    (B) Is not a lay preacher or a person not authorized to perform 
duties usually performed by clergy;
    (C) Performs activities with a rational relationship to the 
religious calling of the minister; and
    (D) Works solely as a minister in the United States which may 
include administrative duties incidental to the duties of a minister.
    Petition means USCIS Form I-129, Petition for a Nonimmigrant Worker, 
a successor form, or any other form as may be prescribed by USCIS, along 
with a supplement containing attestations required by this section, the 
fee specified in 8 CFR 103.7(b)(1), and supporting evidence required by 
this part.
    Religious denomination means a religious group or community of 
believers that is governed or administered under a common type of 
ecclesiastical government and includes one or more of the following:
    (A) A recognized common creed or statement of faith shared among the 
denomination's members;
    (B) A common form of worship;
    (C) A common formal code of doctrine and discipline;
    (D) Common religious services and ceremonies;
    (E) Common established places of religious worship or religious 
congregations; or
    (F) Comparable indicia of a bona fide religious denomination.
    Religious occupation means an occupation that meets all of the 
following requirements:
    (A) The duties must primarily relate to a traditional religious 
function and be recognized as a religious occupation within the 
denomination;
    (B) The duties must be primarily related to, and must clearly 
involve, inculcating or carrying out the religious creed and beliefs of 
the denomination;
    (C) The duties do not include positions which are primarily 
administrative or support such as janitors, maintenance workers, 
clerical employees, fund raisers, persons solely involved in the 
solicitation of donations, or similar positions, although limited 
administrative duties that are only incidental to religious functions 
are permissible; and
    (D) Religious study or training for religious work does not 
constitute a religious occupation, but a religious worker may pursue 
study or training incident to status.
    Religious vocation means a formal lifetime commitment, through vows, 
investitures, ceremonies, or similar indicia, to a religious way of 
life. The religious denomination must have a class of individuals whose 
lives are dedicated to religious practices and functions, as 
distinguished from the secular members of the religion. Examples of 
vocations include nuns, monks, and religious brothers and sisters.
    Religious worker means an individual engaged in and, according to 
the denomination's standards, qualified for a religious occupation or 
vocation, whether or not in a professional capacity, or as a minister.

[[Page 383]]

    Tax-exempt organization means an organization that has received a 
determination letter from the IRS establishing that it, or a group it 
belongs to, is exempt from taxation in accordance with sections 
501(c)(3) of the Internal Revenue Code of 1986, or subsequent amendments 
or equivalent sections of prior enactments of the Internal Revenue Code.
    (4) Requirements for admission/change of status; time limits--(i) 
Principal applicant (R-1 nonimmigrant). If otherwise admissible, an 
alien who meets the requirements of section 101(a)(15)(R) of the Act may 
be admitted as an R-1 alien or changed to R-1 status for an initial 
period of up to 30 months from date of initial admission. If visa-
exempt, the alien must present original documentation of the petition 
approval.
    (ii) Spouse and children (R-2 status). The spouse and unmarried 
children under the age of 21 of an R-1 alien may be accompanying or 
following to join the R-1 alien, subject to the following conditions:
    (A) R-2 status is granted for the same period of time and subject to 
the same limits as the principal, regardless of the time such spouse and 
children may have spent in the United States in R-2 status;
    (B) Neither the spouse nor children may accept employment while in 
the United States in R-2 status; and
    (C) The primary purpose of the spouse or children coming to the 
United States must be to join or accompany the principal R-1 alien.
    (5) Extension of stay or readmission. An R-1 alien who is 
maintaining status or is seeking readmission and who satisfies the 
eligibility requirements of this section may be granted an extension of 
R-1 stay or readmission in R-1 status for the validity period of the 
petition, up to 30 months, provided the total period of time spent in R-
1 status does not exceed a maximum of five years. A Petition for a 
Nonimmigrant Worker to request an extension of R-1 status must be filed 
by the employer with a supplement prescribed by USCIS containing 
attestations required by this section, the fee specified in 8 CFR 
103.7(b)(1), and the supporting evidence, in accordance with the 
applicable form instructions.
    (6) Limitation on total stay. An alien who has spent five years in 
the United States in R-1 status may not be readmitted to or receive an 
extension of stay in the United States under the R visa classification 
unless the alien has resided abroad and has been physically present 
outside the United States for the immediate prior year. The limitations 
in this paragraph shall not apply to R-1 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, transcripts of processed 
income tax returns, and records of employment abroad.
    (7) Jurisdiction and procedures for obtaining R-1 status. An 
employer in the United States seeking to employ a religious worker, by 
initial petition or by change of status, shall file a petition in 
accordance with the applicable form instructions.
    (8) Attestation. An authorized official of the prospective employer 
of an R-1 alien must complete, sign and date an attestation prescribed 
by USCIS and submit it along with the petition. The prospective employer 
must specifically attest to all of the following:
    (i) That the prospective employer is a bona fide non-profit 
religious organization or a bona fide organization which is affiliated 
with the religious denomination and is exempt from taxation;
    (ii) That the alien has been a member of the denomination for at 
least two years and that the alien is otherwise qualified for the 
position offered;
    (iii) The number of members of the prospective employer's 
organization;
    (iv) The number of employees who work at the same location where the 
beneficiary will be employed and a summary of the type of 
responsibilities

[[Page 384]]

of those employees. USCIS may request a list of all employees, their 
titles, and a brief description of their duties at its discretion;
    (v) The number of aliens holding special immigrant or nonimmigrant 
religious worker status currently employed or employed within the past 
five years by the prospective employer's organization;
    (vi) The number of special immigrant religious worker and 
nonimmigrant religious worker petitions and applications filed by or on 
behalf of any aliens for employment by the prospective employer in the 
past five years;
    (vii) The title of the position offered to the alien and a detailed 
description of the alien's proposed daily duties;
    (viii) Whether the alien will receive salaried or non-salaried 
compensation and the details of such compensation;
    (ix) That the alien will be employed at least 20 hours per week;
    (x) The specific location(s) of the proposed employment; and
    (xi) That the alien will not be engaged in secular employment.
    (9) Evidence relating to the petitioning organization. A petition 
shall include the following initial evidence relating to the petitioning 
organization:
    (i) A currently valid determination letter from the IRS showing that 
the organization is a tax-exempt organization; or
    (ii) For a religious organization that is recognized as tax-exempt 
under a group tax-exemption, a currently valid determination letter from 
the IRS establishing that the group is tax-exempt; or
    (iii) For a bona fide organization that is affiliated with the 
religious denomination, if the organization was granted tax-exempt 
status under section 501(c)(3), or subsequent amendment or equivalent 
sections of prior enactments, of the Internal Revenue Code, as something 
other than a religious organization:
    (A) A currently valid determination letter from the IRS establishing 
that the organization is a tax-exempt organization;
    (B) Documentation that establishes the religious nature and purpose 
of the organization, such as a copy of the organizing instrument of the 
organization that specifies the purposes of the organization;
    (C) Organizational literature, such as books, articles, brochures, 
calendars, flyers, and other literature describing the religious purpose 
and nature of the activities of the organization; and
    (D) A religious denomination certification. The religious 
organization must complete, sign and date a statement certifying that 
the petitioning organization is affiliated with the religious 
denomination. The statement must be submitted by the petitioner along 
with the petition.
    (10) Evidence relating to the qualifications of a minister. If the 
alien is a minister, the petitioner must submit the following:
    (i) A copy of the alien's certificate of ordination or similar 
documents reflecting acceptance of the alien's qualifications as a 
minister in the religious denomination; and
    (ii) Documents reflecting acceptance of the alien's qualifications 
as a minister in the religious denomination, as well as evidence that 
the alien has completed any course of prescribed theological education 
at an accredited theological institution normally required or recognized 
by that religious denomination, including transcripts, curriculum, and 
documentation that establishes that the theological education is 
accredited by the denomination, or
    (iii) For denominations that do not require a prescribed theological 
education, evidence of:
    (A) The denomination's requirements for ordination to minister;
    (B) The duties allowed to be performed by virtue of ordination;
    (C) The denomination's levels of ordination, if any; and
    (D) The alien's completion of the denomination's requirements for 
ordination.
    (11) Evidence relating to compensation. Initial evidence must state 
how the petitioner intends to compensate the alien, including specific 
monetary or in-kind compensation, or whether the alien intends to be 
self-supporting. In either case, the petitioner must submit verifiable 
evidence explaining how the petitioner will compensate the alien or

[[Page 385]]

how the alien will be self-supporting. Compensation may include:
    (i) Salaried or non-salaried compensation. Evidence of compensation 
may include past evidence of compensation for similar positions; budgets 
showing monies set aside for salaries, leases, etc.; verifiable 
documentation that room and board will be provided; or other evidence 
acceptable to USCIS. IRS documentation, such as IRS Form W-2 or 
certified tax returns, must be submitted, if available. If IRS 
documentation is unavailable, the petitioner must submit an explanation 
for the absence of IRS documentation, along with comparable, verifiable 
documentation.
    (ii) Self support. (A) If the alien will be self-supporting, the 
petitioner must submit documentation establishing that the position the 
alien will hold is part of an established program for temporary, 
uncompensated missionary work, which is part of a broader international 
program of missionary work sponsored by the denomination.
    (B) An established program for temporary, uncompensated work is 
defined to be a missionary program in which:
    (1) Foreign workers, whether compensated or uncompensated, have 
previously participated in R-1 status;
    (2) Missionary workers are traditionally uncompensated;
    (3) The organization provides formal training for missionaries; and
    (4) Participation in such missionary work is an established element 
of religious development in that denomination.
    (C) The petitioner must submit evidence demonstrating:
    (1) That the organization has an established program for temporary, 
uncompensated missionary work;
    (2) That the denomination maintains missionary programs both in the 
United states and abroad;
    (3) The religious worker's acceptance into the missionary program;
    (4) The religious duties and responsibilities associated with the 
traditionally uncompensated missionary work; and
    (5) Copies of the alien's bank records, budgets documenting the 
sources of self-support (including personal or family savings, room and 
board with host families in the United States, donations from the 
denomination's churches), or other verifiable evidence acceptable to 
USCIS.
    (12) Evidence of previous R-1 employment. Any request for an 
extension of stay as an R-1 must include initial evidence of the 
previous R-1 employment. If the beneficiary:
    (i) Received salaried compensation, the petitioner must submit IRS 
documentation that the alien received a salary, such as an IRS Form W-2 
or certified copies of filed income tax returns, reflecting such work 
and compensation for the preceding two years.
    (ii) Received non-salaried compensation, the petitioner must submit 
IRS documentation of the non-salaried compensation if available. If IRS 
documentation is unavailable, an explanation for the absence of IRS 
documentation must be provided, and the petitioner must provide 
verifiable evidence of all financial support, including stipends, room 
and board, or other support for the beneficiary by submitting a 
description of the location where the beneficiary lived, a lease to 
establish where the beneficiary lived, or other evidence acceptable to 
USCIS.
    (iii) Received no salary but provided for his or her own support, 
and that of any dependents, the petitioner must show how support was 
maintained by submitting with the petition verifiable documents such as 
audited financial statements, financial institution records, brokerage 
account statements, trust documents signed by an attorney, or other 
evidence acceptable to USCIS.
    (13) Change or addition of employers. An R-1 alien may not be 
compensated for work for any religious organization other than the one 
for which a petition has been approved or the alien will be out of 
status. A different or additional employer seeking to employ the alien 
may obtain prior approval of such employment through the filing of a 
separate petition and appropriate supplement, supporting documents, and 
fee prescribed in 8 CFR 103.7(b)(1).
    (14) Employer obligations. When an R-1 alien is working less than 
the required number of hours or has been released from or has otherwise 
terminated employment before the expiration of a period of authorized R-
1 stay,

[[Page 386]]

the R-1 alien's approved employer must notify DHS within 14 days using 
procedures set forth in the instructions to the petition or otherwise 
prescribed by USCIS on the USCIS Internet Web site at www.uscis.gov.
    (15) Nonimmigrant intent. An alien classified under section 
101(a)(15)(R) of the Act shall maintain an intention to depart the 
United States upon the expiration or termination of R-1 or R-2 status. 
However, a nonimmigrant petition, application for initial admission, 
change of status, or extension of stay in R classification may not be 
denied solely on the basis of a filed or an approved request for 
permanent labor certification or a filed or approved immigrant visa 
preference petition.
    (16) Inspections, evaluations, verifications, and compliance 
reviews. The supporting evidence submitted may be verified by USCIS 
through any means determined appropriate by USCIS, up to and including 
an on-site inspection of the petitioning organization. The inspection 
may include a tour of the organization's facilities, an interview with 
the organization's officials, a review of selected organization records 
relating to compliance with immigration laws and regulations, and an 
interview with any other individuals or review of any other records that 
the USCIS considers pertinent to the integrity of the organization. An 
inspection may include the organization headquarters, or satellite 
locations, or the work locations planned for the applicable employee. If 
USCIS decides to conduct a pre-approval inspection, satisfactory 
completion of such inspection will be a condition for approval of any 
petition.
    (17) Denial and appeal of petition. USCIS will provide written 
notification of the reasons for the denial under 8 CFR 103.3(a)(1). The 
petitioner may appeal the denial under 8 CFR 103.3.
    (18) Revocation of approved petitions--(i) Director discretion. 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 ceases to exist 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;
    (2) The statement of facts contained in the petition was not true 
and correct;
    (3) The petitioner violated terms and conditions of the approved 
petition;
    (4) The petitioner violated requirements of section 101(a)(15)(R) of 
the Act or paragraph (r) of this section; or
    (5) The approval of the petition violated paragraph (r) 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.
    (19) Appeal of a revocation of a petition. A petition that has been 
revoked on notice in whole or in part may be appealed under 8 CFR 103.3. 
Automatic revocations may not be appealed.
    (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

[[Page 387]]

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 
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

[[Page 388]]

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 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.

[[Page 389]]

    (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:
    (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

[[Page 390]]

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 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

[[Page 391]]

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 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

[[Page 392]]

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 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

[[Page 393]]

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:
    (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

[[Page 394]]

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.



  214.2, Nt.--Table of Contents




    Effective Date Note 1: At 73 FR 76911, Dec. 18, 2008, Sec. 214.2 
was amended by revising paragraphs (h)(2)(i)(A) through (D); paragraph 
(h)(2)(iii); paragraphs (h)(5)(i)(A) through (C); paragraph 
(h)(5)(v)(B); paragraph (h)(5)(v)(C); paragraph (h)(5)(vi); paragraphs 
(h)(5)(viii)(A) through (C); paragraph (h)(5)(ix); paragraph (h)(5)(x); 
and paragraph (h)(11)(ii). Section 214.2 was also amended by adding a 
new paragraph (h)(5)(i)(F) and (h)(5)(xi) and (xii); and adding a new 
sentence to the end of paragraph (h)(11)(i)(A), and by removing last 
sentence from (h)(5)(ii), effective Jan. 17, 2009. For the convenience 
of the user, the added and revised text is set forth as follows:



Sec. 214.2  Special requirements for admission, extension, and 

maintenance of status.

                                * * * * *

    (h) * * *
    (2) * * *
    (i) * * *
    (A) General. A United States employer seeking to classify an alien 
as an H-1B, H-2A, H-2B, or H-3 temporary employee must file a petition 
on Form I-129, Petition for Nonimmigrant Worker, as provided in the form 
instructions.
    (B) Service or training in more than one location. A petition that 
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 USCIS as provided in 
the form instructions. The address that the petitioner specifies as its 
location on the Form I-129 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 USCIS as provided in the form instructions.
    (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 an 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 
must conform to the limits on the alien's temporary stay that are 
prescribed in paragraph (h)(13) of this section. Except as provided by 8 
CFR 274a.12(b)(21) or section 214(n) of the Act, 8 U.S.C. 1184(n), 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.

                                * * * * *

    (iii) Naming beneficiaries. H-1B, H-1C, and H-3 petitions must 
include the name of each beneficiary. All H-2A and H-2B petitions must 
include the name of each beneficiary who is currently in the United 
States, but not the name of those beneficiaries who are not currently in 
the United States. However, a petitioner filing an H-2B petition on 
behalf of workers who are not present in the United States that is 
supported by a temporary labor certification requiring education, 
training, experience, or special requirements of the beneficiary, must 
name all the requested workers in the petition. Unnamed beneficiaries 
must be shown on the petition by total number. If all of the 
beneficiaries covered by an H-2A or H-2B temporary labor certification 
have not been identified at the time a petition is filed, multiple 
petitions for subsequent beneficiaries may be filed at different times 
but must include a copy of the same temporary labor certification. Each 
petition must reference all previously filed petitions for that 
temporary labor certification. All H-2A petitions on behalf of workers 
who are not from a country that has been designated as a participating 
country in accordance with paragraph (h)(5)(i)(F)(1) of this section 
must individually name all the workers in the petition who fall within 
this category. All H-2A petitions must state the nationality of all 
beneficiaries, whether or not named, even if there are beneficiaries 
from more than one country. H-2A petitions for workers from designated 
participating countries and non-designated countries should be filed 
separately.

                                * * * * *

    (5) * * *
    (i) * * *

[[Page 395]]

    (A) General. An H-2A petition must be filed on Form I-129 with a 
single valid temporary agricultural labor certification. The petition 
may be filed by either the employer listed on the temporary labor 
certification, the employer's agent, or the association of United States 
agricultural producers named as a joint employer on the temporary labor 
certification.
    (B) Multiple beneficiaries. The total number of beneficiaries of a 
petition or series of petitions based on the same temporary labor 
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 temporary labor certification.
    (C) [Reserved]

                                * * * * *

    (F) Eligible Countries. (1)(i) H-2A petitions may only be approved 
for nationals of countries that the Secretary of Homeland Security has 
designated as participating countries, with the concurrence of the 
Secretary of State, in a notice published in the Federal Register, 
taking into account factors, including but not limited to:
    (A) The country's cooperation with respect to issuance of travel 
documents for citizens, subjects, nationals and residents of that 
country who are subject to a final order of removal;
    (B) The number of final and unexecuted orders of removal against 
citizens, subjects, nationals and residents of that country;
    (C) The number of orders of removal executed against citizens, 
subjects, nationals and residents of that country; and
    (D) Such other factors as may serve the U.S. interest.
    (ii) A national from a country not on the list described in 
paragraph (h)(5)(i)(F)(1)(i) of this section may be a beneficiary of an 
approved H-2A petition upon the request of a petitioner or potential H-
2A petitioner, if the Secretary of Homeland Security, in his sole and 
unreviewable discretion, determines that it is in the U.S. interest for 
that alien to be a beneficiary of such petition. Determination of such a 
U.S. interest will take into account factors, including but not limited 
to:
    (A) Evidence from the petitioner demonstrating that a worker with 
the required skills is not available either from among U.S. workers or 
from among foreign workers from a country currently on the list 
described in paragraph (h)(5)(i)(F)(1)(i) of this section;
    (B) Evidence that the beneficiary has been admitted to the United 
States previously in H-2A status;
    (C) The potential for abuse, fraud, or other harm to the integrity 
of the H-2A visa program through the potential admission of a 
beneficiary from a country not currently on the list; and
    (D) Such other factors as may serve the U.S. interest.
    (2) Once published, any designation of participating countries 
pursuant to paragraph (h)(5)(i)(F)(1)(i) of this section shall be 
effective for one year after the date of publication in the Federal 
Register and shall be without effect at the end of that one-year period.

                                * * * * *

    (v) * * *
    (B) Evidence of employment/job training. For petitions with named 
beneficiaries, a petition must be filed with evidence that the 
beneficiary met the certification's minimum employment and job training 
requirements, if any are prescribed, as of the date of the filing of the 
labor certification application. For petitions with unnamed 
beneficiaries, such evidence must be submitted at the time of a visa 
application or, if a visa is not required, at the time the applicant 
seeks admission to the United States. Evidence must be in the form of 
the past employer or employers' detailed statement(s) 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 persons who worked with the 
beneficiary that demonstrate the claimed employment or job training.
    (C) Evidence of education and other training. For petitions with 
named beneficiaries, a petition must be filed with evidence that the 
beneficiary met all of the certification's post-secondary education and 
other formal training requirements, if any are prescribed in the labor 
certification application as of date of the filing of the labor 
certification application. For petitions with unnamed beneficiaries, 
such evidence must be submitted at the time of a visa application or, if 
a visa is not required, at the time the applicant seeks admission to the 
United States. Evidence must be in the form of documents, issued by the 
relevant institution(s) or organization(s), that show periods of 
attendance, majors and degrees or certificates accorded.
    (vi) Petitioner consent and notification requirements--(A) Consent. 
In filing an H-2A petition, a petitioner and each employer consents to 
allow access to the site by DHS officers where the labor is being 
performed for the purpose of determining compliance with H-2A 
requirements.
    (B) Agreements. The petitioner agrees to the following requirements:

[[Page 396]]

    (1) To notify DHS, within 2 workdays, and beginning on a date and in 
a manner specified in a notice published in the Federal Register if:
    (i) An H-2A worker fails to report to work within 5 workdays of the 
employment start date on the H-2A petition or within 5 workdays of the 
start date established by his or her employer, whichever is later;
    (ii) The agricultural labor or services for which H-2A workers were 
hired is completed more than 30 days earlier than the employment end 
date stated on the H-2A petition; or
    (iii) The H-2A worker absconds from the worksite or is terminated 
prior to the completion of agricultural labor or services for which he 
or she was hired.
    (2) To retain evidence of such notification and make it available 
for inspection by DHS officers for a 1-year period beginning on the date 
of the notification. To retain evidence of a different employment start 
date if it is changed from that on the petition by the employer and make 
it available for inspection by DHS officers for the 1-year period 
beginning on the newly-established employment start date.
    (3) To pay $10 in liquidated damages for each instance where the 
employer cannot demonstrate that it has complied with the notification 
requirements, unless, in the case of an untimely notification, the 
employer demonstrates with such notification that good cause existed for 
the untimely notification, and DHS, in its discretion, waives the 
liquidated damages amount.
    (C) Process. If DHS has determined that the petitioner has violated 
the notification requirements in paragraph (h)(5)(vi)(B)(1) of this 
section and has not received the required notification, the petitioner 
will be given written notice and 30 days to reply before being given 
written notice of the assessment of liquidated damages.
    (D) Failure to pay liquidated damages. If liquidated damages are not 
paid within 10 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.
    (E) Abscondment. An H-2A worker has absconded if he or she has not 
reported for work for a period of 5 consecutive workdays without the 
consent of the employer.

                                * * * * *

    (viii) * * *
    (A) Effect of violations of status. An alien may not be accorded H-
2A status who, at any time during the past 5 years, USCIS finds to have 
violated, other than through no fault of his or her own (e.g., due to an 
employer's illegal or inappropriate conduct), any of the terms or 
conditions of admission into the United States as an H-2A nonimmigrant, 
including remaining beyond the specific period of authorized stay or 
engaging in unauthorized employment.
    (B) Period of admission. An alien admissible as an H-2A nonimmigrant 
shall be admitted for the period of the approved petition. Such alien 
will be admitted for an additional period of up to one week before the 
beginning of the approved period for the purpose of travel to the 
worksite, and a 30-day period following the expiration of the H-2A 
petition for the purpose of departure or to seek an extension based on a 
subsequent offer of employment. Unless authorized under 8 CFR 274a.12 or 
section 214(n) of the Act, the beneficiary may not work except during 
the validity period of the petition.
    (C) Limits on an individual's stay. Except as provided in paragraph 
(h)(5)(viii)(B) of this section, an alien's stay as an H-2A nonimmigrant 
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 3 years may not again be granted H-2A status 
until such time as he or she remains outside the United States for an 
uninterrupted period of 3 months. An absence from the United States can 
interrupt the accrual of time spent as an H-2A nonimmigrant against the 
3-year limit. If the accumulated stay is 18 months or less, an absence 
is interruptive if it lasts for at least 45 days. If the accumulated 
stay is greater than 18 months, an absence is interruptive if it lasts 
for at least 2 months. Eligibility under paragraph (h)(5)(viii)(C) of 
this section 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 paragraph (h)(5)(viii)(C) of this section 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 
earlier than the end date stated on the H-2A petition and before the 
completion of work; who fail to report to work within five days of the 
employment start date on the H-2A petition or within five days of the 
start date established by his or her employer, whichever is later; or 
who abscond from the worksite. The petition must be filed with a copy of 
the certification document, a copy of the approval notice covering the 
workers for which replacements are sought, and other evidence required 
by paragraph (h)(5)(i)(D) of this section. It must also be filed with a 
statement giving each terminated or absconded worker's name, date and 
country of birth, termination date, and the reason for termination, and 
the date that USCIS was notified that the alien was terminated or 
absconded, if applicable. A petition

[[Page 397]]

for a replacement will 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 notification required by paragraph 
(h)(5)(vi)(B)(1) of this section.
    (x) Extensions in emergent circumstances. In emergent circumstances, 
as determined by USCIS, a single H-2A petition may be extended for a 
period not to exceed 2 weeks without an additional approved labor 
certification if filed on behalf of one or more beneficiaries who will 
continue to be employed by the same employer that previously obtained an 
approved petition on the beneficiary's behalf, so long as the employee 
continues to perform the same duties and will be employed for no longer 
than 2 weeks after the expiration of previously-approved H-2A petition. 
The previously approved H-2A petition must have been based on an 
approved temporary labor certification, which shall be considered to be 
extended upon the approval of the extension of H-2A status.
    (xi) Treatment of petitions and alien beneficiaries upon a 
determination that fees were collected from alien beneficiaries. (A) 
Denial or revocation of petition. As a condition to approval of an H-2A 
petition, no job placement fee or other compensation (either direct or 
indirect) may be collected at any time, including before or after the 
filing or approval of the petition, from a beneficiary of an H-2A 
petition by a petitioner, agent, facilitator, recruiter, or similar 
employment service as a condition of H-2A employment (other than the 
lesser of the fair market value or actual costs of transportation and 
any government-mandated passport, visa, or inspection fees, to the 
extent that the payment of such costs and fees by the beneficiary is not 
prohibited by statute or Department of Labor regulations, unless the 
employer agent, facilitator, recruiter, or employment service has agreed 
with the alien to pay such costs and fees).
    (1) If USCIS determines that the petitioner has collected, or 
entered into an agreement to collect, such prohibited fee or 
compensation, the H-2A petition will be denied or revoked on notice 
unless the petitioner demonstrates that, prior to the filing of the 
petition, the petitioner has reimbursed the alien in full for such fees 
or compensation, or, where such fee or compensation has not yet been 
paid by the alien worker, that the agreement has been terminated.
    (2) If USCIS determines that the petitioner knew or should have 
known at the time of filing the petition that the beneficiary has paid 
or agreed to pay any facilitator, recruiter, or similar employment 
service such fees or compensation as a condition of obtaining the H-2A 
employment, the H-2A petition will be denied or revoked on notice unless 
the petitioner demonstrates that, prior to the filing of the petition, 
the petitioner or the facilitator, recruiter, or similar employment 
service has reimbursed the alien in full for such fees or compensation 
or, where such fee or compensation has not yet been paid by the alien 
worker, that the agreement has been terminated.
    (3) If USCIS determines that the beneficiary paid the petitioner 
such fees or compensation as a condition of obtaining the H-2A 
employment after the filing of the H-2A petition, the petition will be 
denied or revoked on notice.
    (4) If USCIS determines that the beneficiary paid or agreed to pay 
the agent, facilitator, recruiter, or similar employment service such 
fees or compensation as a condition of obtaining the H-2A employment 
after the filing of the H-2A petition and with the knowledge of the 
petitioner, the petition will be denied or revoked unless the petitioner 
demonstrates that the petitioner or facilitator, recruiter, or similar 
employment service has reimbursed the beneficiary in full or where such 
fee or compensation has not yet been paid by the alien worker, that the 
agreement has been terminated, or notifies DHS within 2 workdays of 
obtaining knowledge in a manner specified in a notice published in the 
Federal Register.
    (B) Effect of petition revocation. Upon revocation of an employer's 
H-2A petition based upon paragraph (h)(5)(xi)(A) of this section, the 
alien beneficiary's stay will be authorized and the alien will not 
accrue any period of unlawful presence under section 212(a)(9) of the 
Act (8 U.S.C. 1182(a)(9)) for a 30-day period following the date of the 
revocation for the purpose of departure or extension of stay based upon 
a subsequent offer of employment.
    (C) Reimbursement as condition to approval of future H-2A petitions. 
(1) Filing subsequent H-2A petitions within 1 year of denial or 
revocation of previous H-2A petition. A petitioner filing an H-2A 
petition within 1 year after the decision denying or revoking on notice 
an H-2A petition filed by the same petitioner on the basis of paragraph 
(h)(5)(xi)(A) of this section must demonstrate to the satisfaction of 
USCIS, as a condition of approval of such petition, that the petitioner 
or agent, facilitator, recruiter, or similar employment service has 
reimbursed the beneficiary in full or that the petitioner has failed to 
locate the beneficiary. If the petitioner demonstrates to the 
satisfaction of USCIS that the beneficiary was reimbursed in full, such 
condition of approval shall be satisfied with respect to any 
subsequently filed H-2A petitions, except as provided in paragraph 
(h)(5)(xi)(C)(2). If the petitioner demonstrates to the satisfaction of 
USCIS that it has made reasonable efforts to locate the beneficiary with 
respect to each H-2A petition filed within 1 year after the decision 
denying or revoking the previous H-2A petition on the basis of paragraph 
(h)(5)(xi)(A) of this

[[Page 398]]

section but has failed to do so, such condition of approval shall be 
deemed satisfied with respect to any H-2A petition filed 1 year or more 
after the denial or revocation. Such reasonable efforts shall include 
contacting any of the beneficiary's known addresses.
    (2) Effect of subsequent denied or revoked petitions. An H-2A 
petition filed by the same petitioner subsequent to a denial under 
paragraph (h)(5)(xi)(A) of this section shall be subject to the 
condition of approval described in paragraph (h)(5)(xi)(C)(1) of this 
section, regardless of prior satisfaction of such condition of approval 
with respect to a previously denied or revoked petition.
    (xii) Treatment of alien beneficiaries upon revocation of labor 
certification. The approval of an employer's H-2A petition is 
immediately and automatically revoked if the Department of Labor revokes 
the labor certification upon which the petition is based. Upon 
revocation of an H-2A petition based upon revocation of labor 
certification, the alien beneficiary's stay will be authorized and the 
alien will not accrue any period of unlawful presence under section 
212(a)(9) of the Act for a 30-day period following the date of the 
revocation for the purpose of departure or extension of stay based upon 
a subsequent offer of employment.

                                * * * * *

    (11) * * *
    (i) * * *
    (A) * * * However, H-2A petitioners must send notification to DHS 
pursuant to paragraph (h)(5)(vi) of this section.

                                * * * * *

    (ii) Immediate and automatic revocation. The approval of any 
petition is immediately and automatically revoked if the petitioner goes 
out of business, files a written withdrawal of the petition, or the 
Department of Labor revokes the labor certification upon which the 
petition is based.

                                * * * * *

    Effective Date Note 2: At 73 FR 78127, Dec. 19, 2008, Sec. 214.2 
was amended by adding a new sentence to the end of paragraph (h)(2)(ii) 
and adding the word ``favorable'' immediately after the phrase ``has 
obtained a'' in paragraph (h)(6)(iii)(C); adding the word ``favorable'' 
immediately after the phrase ``After obtaining a'' in paragraph 
(h)(6)(iii)(E); adding the word ``States'' immediately before ``and'' in 
the first sentence in paragraph (h)(6)(v)(E)(2)(iii); adding new 
paragraph (h)(6)(ix); adding a new sentence to the end of paragraph 
(h)(11)(i)(A); revising paragraph (h)(1)(ii)(D); revising paragraph 
(h)(2)(iii); paragraph (h)(6)(i); paragraph (h)(6)(ii)(B) introductory 
text; revising the word ``amendable'' to read ``amenable'' in the second 
sentence in paragraph (h)(6)(iii)(B); revising paragraphs (h)(6)(iv)(A); 
(h)(6)(iv)(D); (h)(6)(v)(A); (h)(6)(vi)(A); paragraph (h)(6)(vi)(C); 
revising the word ``or'' to read ``to'' in the first sentence in 
paragraph (h)(6)(vii); revising newly designated paragraph (h)(6)(viii); 
revising paragraph (h)(8)(ii)(A); revising (h)(9)(i)(B); revising 
(h)(9)(iii)(B)(1); revising paragraph (h)(10)(ii); revising 
(h)(11)(iii)(A)(2); revising (h)(13)(i)(B); revising paragraph 
(h)(13)(iv) and paragraph (h)(13)(v); removing paragraph (h)(6)(iv)(E); 
removing and reserving paragraphs (h)(6)(v)(C) and (D); removing and 
reserving paragraph (h)(6)(vi)(B); removing the period at the end of 
paragraph (h)(6)(vi)(D), and adding a ``; or'' in its place, 
redesignating paragraph (h)(2)(iv) as paragraph (h)(6)(viii); and by 
reserving paragraph (h)(2)(iv), effective Jan. 18, 2009. For the 
convenience of the user, the added and revised text is set forth as 
follows:



Sec. 214.2  Special requirements for admission, extension, and 

maintenance of status.

                                * * * * *

    (h) * * *
    (1) * * *
    (ii) * * *
    (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 there are not sufficient workers who 
are able, willing, qualified, and available at the time of application 
for a visa and admission to the United States and at the place where the 
alien is to perform such services or labor. 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 described on the approved 
temporary labor certification are subject to review by USCIS. This 
classification requires a temporary labor certification issued by the 
Secretary of Labor or the Governor of Guam prior to the filing of a 
petition with USCIS.

                                * * * * *

    (2) * * *
    (ii) * * * H-2A and H-2B petitions for workers from countries not 
designated in accordance with paragraph (h)(6)(i)(E) of this section 
should be filed separately.
    (iii) Naming beneficiaries. H-1B, H-1C, and H-3 petitions must 
include the name of each beneficiary. Except as provided in this 
paragraph (h), all H-2A and H-2B petitions must include the name of each 
beneficiary who is

[[Page 399]]

currently in the United States, but need not name any beneficiary who is 
not currently in the United States. Unnamed beneficiaries must be shown 
on the petition by total number. USCIS may require the petitioner to 
name H-2B beneficiaries where the name is needed to establish 
eligibility for H-2B nonimmigrant status. If all of the beneficiaries 
covered by an H-2A or H-2B temporary labor certification have not been 
identified at the time a petition is filed, multiple petitions for 
subsequent beneficiaries may be filed at different times but must 
include a copy of the same temporary labor certification. Each petition 
must reference all previously filed petitions associated with that 
temporary labor certification. All H-2A and H-2B petitions on behalf of 
workers who are not from a country that has been designated as a 
participating country in accordance with paragraphs (h)(5)(i)(F)(1) or 
(h)(6)(i)(E)(1) of this section must name all the workers in the 
petition who fall within these categories. All H-2A and H-2B petitions 
must state the nationality of all beneficiaries, whether or not named, 
even if there are beneficiaries from more than one country.
    (iv) [Reserved]

                                * * * * *

    (6) * * *
    (i) Petition. (A) H-2B nonagricultural temporary worker. An H-2B 
nonagricultural temporary worker is an alien who is coming temporarily 
to the United States to perform temporary services or labor without 
displacing qualified United States workers available to perform such 
services or labor and whose employment is not adversely affecting the 
wages and working conditions of United States workers.
    (B) Denial or revocation of petition upon a determination that fees 
were collected from alien beneficiaries. As a condition of approval of 
an H-2B petition, no job placement fee or other compensation (either 
direct or indirect) may be collected at any time, including before or 
after the filing or approval of the petition, from a beneficiary of an 
H-2B petition by a petitioner, agent, facilitator, recruiter, or similar 
employment service as a condition of an offer or condition of H-2B 
employment (other than the lower of the actual cost or fair market value 
of transportation to such employment and any government-mandated 
passport, visa, or inspection fees, to the extent that the passing of 
such costs to the beneficiary is not prohibited by statute, unless the 
employer, agent, facilitator, recruiter, or similar employment service 
has agreed with the beneficiary that it will pay such costs and fees).
    (1) If USCIS determines that the petitioner has collected or entered 
into an agreement to collect such fee or compensation, the H-2B petition 
will be denied or revoked on notice, unless the petitioner demonstrates 
that, prior to the filing of the petition, either the petitioner 
reimbursed the beneficiary in full for such fees or compensation or the 
agreement to collect such fee or compensation was terminated before the 
fee or compensation was paid by the beneficiary.
    (2) If USCIS determines that the petitioner knew or should have 
known at the time of filing the petition that the beneficiary has paid 
or agreed to pay any agent, facilitator, recruiter, or similar 
employment service as a condition of an offer of the H-2B employment, 
the H-2B petition will be denied or revoked on notice unless the 
petitioner demonstrates that, prior to filing the petition, either the 
petitioner or the agent, facilitator, recruiter, or similar employment 
service reimbursed the beneficiary in full for such fees or compensation 
or the agreement to collect such fee or compensation was terminated 
before the fee or compensation was paid by the beneficiary.
    (3) If USCIS determines that the beneficiary paid the petitioner 
such fees or compensation as a condition of an offer of H-2B employment 
after the filing of the H-2B petition, the petition will be denied or 
revoked on notice.
    (4) If USCIS determines that the beneficiary paid or agreed to pay 
the agent, facilitator, recruiter, or similar employment service such 
fees or compensation after the filing of the H-2B petition and that the 
petitioner knew or had reason to know of the payment or agreement to 
pay, the petition will be denied or revoked unless the petitioner 
demonstrates that the petitioner or agent, facilitator, recruiter, or 
similar employment service reimbursed the beneficiary in full, that the 
parties terminated any agreement to pay before the beneficiary paid the 
fees or compensation, or that the petitioner has notified DHS within 2 
work days of obtaining knowledge, in a manner specified in a notice 
published in the Federal Register.
    (C) Effect of petition revocation Upon revocation of an employer's 
H-2B petition based upon paragraph (h)(6)(i)(B) of this section, the 
alien beneficiary's stay will be authorized and the beneficiary will not 
accrue any period of unlawful presence under section 212(a)(9) of the 
Act (8 U.S.C. 1182(a)(9)) for a 30-day period following the date of the 
revocation for the purpose of departure or extension of stay based upon 
a subsequent offer of employment. The employer shall be liable for the 
alien beneficiary's reasonable costs of return transportation to his or 
her last place of foreign residence abroad, unless such alien obtains an 
extension of stay based on an approved H-2B petition filed by a 
different employer.
    (D) Reimbursement as condition to approval of future H-2B petitions. 
(1) Filing subsequent

[[Page 400]]

H-2B petitions within 1 year of denial or revocation of previous H-2B 
petition. A petitioner filing an H-2B petition within 1 year after a 
decision denying or revoking on notice an H-2B petition filed by the 
same petitioner on the basis of paragraph (h)(6)(i)(B) of this section 
must demonstrate to the satisfaction of USCIS, as a condition of the 
approval of the later petition, that the petitioner or agent, 
facilitator, recruiter, or similar employment service reimbursed in full 
each beneficiary of the denied or revoked petition from whom a 
prohibited fee was collected or that the petitioner has failed to locate 
each such beneficiary despite the petitioner's reasonable efforts to 
locate them. If the petitioner demonstrates to the satisfaction of USCIS 
that each such beneficiary was reimbursed in full, such condition of 
approval shall be satisfied with respect to any subsequently filed H-2B 
petitions, except as provided in paragraph (h)(6)(i)(D)(2) of this 
section. If the petitioner demonstrates to the satisfaction of USCIS 
that it has made reasonable efforts to locate but has failed to locate 
each such beneficiary within 1 year after the decision denying or 
revoking the previous H-2B petition on the basis of paragraph 
(h)(6)(i)(B) of this section, such condition of approval shall be deemed 
satisfied with respect to any H-2B petition filed 1 year or more after 
the denial or revocation. Such reasonable efforts shall include 
contacting all of each such beneficiary's known addresses.
    (2) Effect of subsequent denied or revoked petitions. An H-2B 
petition filed by the same petitioner subsequent to a denial under 
paragraph (h)(6)(i)(B) of this section shall be subject to the condition 
of approval described in paragraph (h)(6)(i)(D)(1) of this section, 
regardless of prior satisfaction of such condition of approval with 
respect to a previously denied or revoked petition.
    (E) Eligible countries. (1) H-2B petitions may be approved for 
nationals of countries that the Secretary of Homeland Security has 
designated as participating countries, with the concurrence of the 
Secretary of State, in a notice published in the Federal Register, 
taking into account factors, including but not limited to:
    (i) The country's cooperation with respect to issuance of travel 
documents for citizens, subjects, nationals and residents of that 
country who are subject to a final order of removal;
    (ii) The number of final and unexecuted orders of removal against 
citizens, subjects, nationals, and residents of that country;
    (iii) The number of orders of removal executed against citizens, 
subjects, nationals and residents of that country; and
    (iv) Such other factors as may serve the U.S. interest.
    (2) A national from a country not on the list described in paragraph 
(h)(6)(i)(E)(1) of this section may be a beneficiary of an approved H-2B 
petition upon the request of a petitioner or potential H-2B petitioner, 
if the Secretary of Homeland Security, in his sole and unreviewable 
discretion, determines that it is in the U.S. interest for that alien to 
be a beneficiary of such petition. Determination of such a U.S. interest 
will take into account factors, including but not limited to:
    (i) Evidence from the petitioner demonstrating that a worker with 
the required skills is not available from among foreign workers from a 
country currently on the list described in paragraph (h)(6)(i)(E)(1) of 
this section;
    (ii) Evidence that the beneficiary has been admitted to the United 
States previously in H-2B status;
    (iii) The potential for abuse, fraud, or other harm to the integrity 
of the H-2B visa program through the potential admission of a 
beneficiary from a country not currently on the list; and
    (iv) Such other factors as may serve the U.S. interest.
    (3) Once published, any designation of participating countries 
pursuant to paragraph (h)(6)(i)(E)(1) of this section shall be effective 
for one year after the date of publication in the Federal Register and 
shall be without effect at the end of that one-year period.
    (F) Petitioner agreements and notification requirements. (1) 
Agreements. The petitioner agrees to notify DHS, within 2 work days, and 
beginning on a date and in a manner specified in a notice published in 
the Federal Register if: An H-2B worker fails to report for work within 
5 work days after the employment start date stated on the petition; the 
nonagricultural labor or services for which H-2B workers were hired were 
completed more than 30 days early; or an H-2B worker absconds from the 
worksite or is terminated prior to the completion of the nonagricultural 
labor or services for which he or she was hired. The petitioner also 
agrees to retain evidence of such notification and make it available for 
inspection by DHS officers for a one-year period beginning on the date 
of the notification.
    (2) Abscondment. An H-2B worker has absconded if he or she has not 
reported for work for a period of 5 consecutive work days without the 
consent of the employer.
    (ii) * * *
    (B) Nature of petitioner's need. Employment is of a temporary nature 
when the employer needs a worker for a limited period of time. The 
employer must establish that the need for the employee will end in the 
near, definable future. Generally, that period of time will be limited 
to one year or less, but in the case of a one-time event could last up 
to 3 years. The petitioner's need for the services or labor shall be a 
one-time occurrence, a

[[Page 401]]

seasonal need, a peak load need, or an intermittent need.

                                * * * * *

    (iv) * * *
    (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 an approved temporary labor 
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 similarly 
employed United States workers.

                                * * * * *

    (D) Employment start date. Beginning with petitions filed for 
workers for fiscal year 2010, an H-2B petition must state an employment 
start date that is the same as the date of need stated on the approved 
temporary labor certification. A petitioner filing an amended H-2B 
petition due to the unavailability of originally requested workers may 
state an employment start date later than the date of need stated on the 
previously approved temporary labor certification accompanying the 
amended H-2B petition.
    (v) * * *
    (A) Governor of Guam's determination. An H-2B petition for temporary 
employment on Guam shall be accompanied by an approved temporary labor 
certification issued by 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.
    (C) [Reserved]
    (D) [Reserved]

                                * * * * *

    (vi) * * *
    (A) Labor certification. An approved temporary labor certification 
issued by the Secretary of Labor or the Governor of Guam, as 
appropriate;
    (B) [Reserved]
    (C) Alien's qualifications. In petitions where the temporary labor 
certification application requires certain education, training, 
experience, or special requirements of the beneficiary who is present in 
the United States, documentation that the alien qualifies for the job 
offer as specified in the application for such temporary labor 
certification. This requirement also applies to the named beneficiary 
who is abroad on the basis of special provisions stated in paragraph 
(h)(2)(iii) of this section;

                                * * * * *

    (viii) Substitution of beneficiaries. Beneficiaries of H-2B 
petitions that are approved for named or unnamed beneficiaries who have 
not been admitted may be substituted only if the employer can 
demonstrate that the total number of beneficiaries will not exceed the 
number of beneficiaries certified in the original temporary labor 
certification. Beneficiaries who were admitted to the United States may 
not be substituted without a new petition accompanied by a newly 
approved temporary labor certification.
    (A) To substitute beneficiaries who were previously approved for 
consular processing but have not been admitted with aliens who are 
outside of the United States, the petitioner shall, by letter and a copy 
of the petition 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. The petitioner shall also submit evidence of the 
qualifications of beneficiaries to the consular office or port of entry 
prior to issuance of a visa or admission, if applicable.
    (B) To substitute beneficiaries who were previously approved for 
consular processing but have not been admitted with aliens who are 
currently in the United States, the petitioner shall file an amended 
petition with fees at the USCIS Service Center where the original 
petition was filed, with a copy of the original petition approval 
notice, a statement explaining why the substitution is necessary, 
evidence of the qualifications of beneficiaries, if applicable, evidence 
of the beneficiaries' current status in the United States, and evidence 
that the number of beneficiaries will not exceed the number allocated on 
the approved temporary labor certification, such as employment records 
or other documentary evidence to establish that the number of visas 
sought in the amended petition were not already issued. The amended 
petition must retain a period of employment within the same half of the 
same fiscal year as the original petition. Otherwise, a new temporary 
labor certification issued by DOL or the Governor of Guam and subsequent 
H-2B petition are required.
    (ix) Enforcement. The Secretary of Labor may investigate employers 
to enforce compliance with the conditions of a petition and Department 
of Labor-approved temporary labor certification to admit or otherwise 
provide status to an H-2B worker.

                                * * * * *

    (8) * * *
    (ii) * * *

[[Page 402]]

    (A) Each alien issued a visa or otherwise provided nonimmigrant 
status under sections 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 any 
applicable numerical limit, unless otherwise exempt from such 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 H aliens are classified as H-4 nonimmigrants 
and shall not be counted against numerical limits applicable to 
principals..

                                * * * * *

    (9) * * *
    (i) * * *
    (B) The petition may not be filed or approved earlier than 6 months 
before the date of actual need for the beneficiary's services or 
training, except that an H-2B petition for a temporary nonagricultural 
worker may not be filed or approved more than 120 days before the date 
of the actual need for the beneficiary's temporary nonagricultural 
services that is identified on the temporary labor certification.
    (iii) * * *
    (B) H-2B petition. (1) The approval of the petition to accord an 
alien a classification under section 101(a)(15)(H)(ii)(b) of the Act 
shall be valid for the period of the approved temporary labor 
certification.

                                * * * * *

    (10) * * *
    (ii) Notice of denial. The petitioner shall be notified of the 
reasons for the denial and of the right to appeal the denial of the 
petition under 8 CFR part 103. The petition will be denied if it is 
determined that the statements on the petition were inaccurate, 
fraudulent, or misrepresented a material fact. There is no appeal from a 
decision to deny an extension of stay to the alien.
    (11) * * *
    (i) * * *
    (A) * * * However, H-2A and H-2B petitioners must send notification 
to DHS pursuant to paragraphs (h)(5)(vi) and (h)(6)(i)(F) of this 
section respectively.

                                * * * * *

    (iii) * * *
    (A) * * *
    (2) The statement of facts contained in the petition or on the 
application for a temporary labor certification was not true and 
correct, inaccurate, fraudulent, or misrepresented a material fact: or

                                * * * * *

    (13) * * *
    (i) * * *
    (B) When an alien in an H classification has spent the maximum 
allowable period of stay in the United States, a new petition under 
sections 101(a)(15)(H) or (L) of the Act may not be approved unless that 
alien has resided and been physically present outside the United States, 
except for brief trips for business or pleasure, for the time limit 
imposed on the particular H classification. Brief trips to the United 
States for business or pleasure during the required time abroad are not 
interruptive, but do not count towards fulfillment of the required time 
abroad. A certain period of absence from the United States of H-2A and 
H-2B aliens can interrupt the accrual of time spent in such status 
against the 3-year limit set forth in 8 CFR 214.2(h)(13)(iv). 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 reside abroad.

                                * * * * *

    (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 may not seek extension, change status, or be readmitted 
to the United States under sections 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 immediately preceding 3 months. An H-3 alien 
participant in a special education program who has spent 18 months in 
the United States under sections 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 sections 101(a)(15)(H) and/or (L) of the Act may not seek 
extension, change status, or be readmitted to the United States under 
sections 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 paragraphs (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 6 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. An absence from the 
United States can interrupt the accrual of time spent as an H-2B 
nonimmigrant against the 3-year limit. If the accumulated stay is 18 
months or less, an absence is interruptive if it lasts for at least 45 
days. If the accumulated stay is greater than 18 months, an absence is 
interruptive if it

[[Page 403]]

lasts for at least two months. 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.

                                * * * * *



Sec. 214.3  Approval of schools for enrollment of F and M nonimmigrants.

    (a) Filing petition--
    (1) General. A school or school system seeking initial or continued 
authorization for attendance by nonimmigrant students under sections 
101(a)(15)(F)(i) or 101(a)(15)(M)(i) of the Act, or both, must file a 
petition for certification or recertification with SEVP, using the 
Student and Exchange Visitor Information System (SEVIS), in accordance 
with the procedures at paragraph (h) of this section. The petition must 
state whether the school or school system is seeking certification or 
recertification for attendance of nonimmigrant students under section 
101(a)(15)(F)(i) or 101(a)(15)(M)(i) of the Act or both. The petition 
must identify by name and address each location of the school that is 
included in the petition for certification or recertification, 
specifically including any physical location in which a nonimmigrant can 
attend classes through the school (i.e., campus, extension campuses, 
satellite campuses, etc.).
    (i) School systems. A school system, as used in this section, means 
public school (grades 9-12) or private school (grades kindergarten-12). 
A petition by a school system must include a list of the names and 
addresses of those schools included in the petition with the supporting 
documents.
    (ii) Submission requirements. Certification and recertification 
petitions require that a complete Form I-17, Petition for Approval of 
School for Attendance by Nonimmigrant Student, including supplements A 
and B and bearing original signatures, be included with the school's 
submission of supporting documentation. In submitting the Form I-17, a 
school certifies that the designated school officials (DSOs) signing the 
form have read and understand DHS regulations relating to: Nonimmigrant 
students at 8 CFR 214.1, 214.2(f), and/or 214.2(m); change of 
nonimmigrant classification for students at 8 CFR 248; school 
certification and recertification under this section; withdrawal of 
school certification under this section and 8 CFR 214.4; that both the 
school and its DSOs intend to comply with these regulations at all 
times; and that, to the best of its knowledge, the school is eligible 
for SEVP certification. Willful misstatements may constitute perjury (18 
U.S.C. 1621).
    (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

[[Page 404]]

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.
    (3) Eligibility. (i) The petitioner, to be eligible for 
certification, must establish at the time of filing that it:
    (A) Is a bona fide school;
    (B) Is an established institution of learning or other recognized 
place of study;
    (C) Possesses the necessary facilities, personnel, and finances to 
conduct instruction in recognized courses; and
    (D) Is, in fact, engaged in instruction in those courses.
    (ii) The petitioner, to be eligible for recertification, must 
establish at the time of filing that it:
    (A) Remains eligible for certification in accordance with paragraph 
(a)(3)(i) of this section;
    (B) Has complied during its previous period of certification or 
recertification with recordkeeping, retention, and reporting 
requirements and all other requirements of paragraphs (g), (j), (k), and 
(l) of this section.
    (b) Supporting documents. Institutions petitioning for certification 
or recertification must submit certain supporting documents as follows, 
pursuant to sections 101(a)(15)(F) and (M) of the Act. 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

[[Page 405]]

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. If the petitioner is a vocational, business, or 
language school, or American institution of research recognized as such 
by the Secretary of Homeland Security, 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 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. The petitioner or an authorized 
representative of the petitioner may be required to appear in person 
before or be interviewed by telephone by a DHS representative prior to 
the adjudication of a petition for certification or recertification. The 
interview will be conducted under oath.
    (e) Notices to schools related to certification or recertification 
petitions or to out-of-cycle review--(1) General. All notices from SEVP 
to schools or school systems related to school certification, 
recertification, or out-of-cycle review (including, but not limited to, 
notices related to the collection of evidence, testimony, and appearance 
pertaining to petitions for recertification encompassing compliance with 
the recordkeeping, retention and reporting, and other requirements of 
paragraphs (f), (g), (j), (k), and (l) of this section, as well as to 
eligibility) will be served in accordance with the procedures at 8 CFR 
103.2(b)(1), (4)-(16), (18) and (19), with the exception that all 
procedures will be conducted by SEVP, the SEVP Director, and the 
Assistant Secretary, ICE, as appropriate, and except as provided in this 
section. All such notices will be served (i.e., generated and 
transmitted) through SEVIS and/or by e-mail. The date of service is the 
date of transmission of the e-mail notice. DSOs must maintain current 
contact information, including current e-mail addresses, at all times. 
Failure of a school to receive SEVP notices due to inaccurate DSO e-mail 
addresses in SEVIS or blockages of the school's e-mail system caused by 
spam filters is not grounds for appeal of a denial or withdrawal. The 
term ``in writing'' means either a paper copy bearing original 
signatures or an electronic copy bearing electronic signatures.
    (2) SEVP approval notification and SEVIS updating by certified 
schools. SEVP will notify the petitioner by updating SEVIS to reflect 
approval of the petition and by e-mail upon approval of a certification 
or recertification petition. The certification or recertification is 
valid only for the type of program and nonimmigrant classification 
specified in the certification or recertification approval notice. The 
certification must be recertified every two years and may be subject to 
out-of-

[[Page 406]]

cycle review at any time. Approval may be withdrawn in accordance with 8 
CFR 214.4.
    (3) Modifications to Form I-17 while a school is SEVP-certified. Any 
modification made by an SEVP-certified school on the Form I-17 at any 
time after certification and for the duration of a school's 
authorization to enroll F and/or M students must be reported to SEVP and 
will be processed by SEVP in accordance with the provisions of 
paragraphs (f)(1), (g)(2) and (h)(3)(i) of this section.
    (4) Notice of Intent to Withdraw (NOIW) SEVP certification--(i) 
Automatic withdrawal. SEVP will serve the school with an NOIW 30 days 
prior to a school's SEVP certification expiration date if the school has 
not submitted to SEVP a completed recertification petition, in 
accordance with paragraph (h)(2) of this section. The school will be 
automatically withdrawn immediately, in accordance with 8 CFR 
214.4(a)(3), if it has not submitted a completed recertification 
petition by the school's certification expiration date.
    (ii) Withdrawal on notice. SEVP will serve a Withdrawal on Notice, 
in accordance with 8 CFR 214.4(b), if SEVP determines that a school 
reviewed out-of-cycle has failed to sustain eligibility or has failed to 
comply with the recordkeeping, retention, reporting and other 
requirements of paragraphs (f), (g), (j), (k), and (l) of this section. 
When a school fails to file an answer to an NOIW within the 30-day 
period, SEVP will withdraw the school's certification and notify the 
DSOs of the decision, in accordance with 8 CFR 214.4(d). Such withdrawal 
of certification may not be appealed.
    (5) Notice of Denial. A Notice of Denial will be served to a school 
when SEVP denies a petition for initial certification or 
recertification. The notice will address appeals options. Schools denied 
recertification must comply with 8 CFR 214.4(i).
    (6) Notice of Automatic Withdrawal. Schools that relinquish SEVP 
certification for any of the reasons cited in 8 CFR 214.4(a)(3) will be 
served a Notice of Automatic Withdrawal.
    (7) Notice of Withdrawal. A school found to be ineligible for 
continued SEVP certification as a result of an out-of-cycle review will 
receive a Notice of Withdrawal. Schools withdrawn must comply with 8 CFR 
214.4(i).
    (8) Notice of SEVIS Access Termination Date. The Notice of SEVIS 
Access Termination Date gives the official date for the school's denial 
or withdrawal to be final and SEVIS access to be terminated. In most 
situations, SEVP will not determine a SEVIS access termination date for 
that school until the appeals process has concluded and the initial 
denial or withdrawal has been upheld, in accordance with 8 CFR 
214.4(i)(3). The school will no longer be able to access SEVIS and SEVP 
will automatically terminate any remaining Active SEVIS records for that 
school on that date.
    (f) Adjudication of a petition for SEVP certification or 
recertification--(1) Approval. The school is required to immediately 
report through SEVIS any change to its school information upon approval 
of a petition for SEVP certification or recertification. Modification to 
school information listed in paragraph (h)(3) of this section will 
require a determination of continued eligibility for certification. The 
certification or recertification is valid only for the type of program 
and student specified in the approval notice. The certification may be 
withdrawn in accordance with the provisions of 8 CFR 214.4, is subject 
to review at any time, and will be reviewed every two years.
    (2) Denial. The petitioner will be notified of the reasons for the 
denial and appeal rights, in accordance with the provisions of 8 CFR 
part 103 and 8 CFR 214.4, if SEVP denies a petition for certification or 
recertification.
    (g) Recordkeeping and reporting requirements--
    (1) Student records. An SEVP-certified 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-20, while the student 
is attending the school and until the school notifies SEVP, in 
accordance with the requirements of paragraphs (g)(1) and (2) of this 
section, that the student is not pursuing a full course of study. 
Student information not required for entry in SEVIS may be kept in the 
school's student system of records, but must be

[[Page 407]]

accessible to DSOs. The school must keep a record of having complied 
with the reporting requirements for at least three years after the 
student is no longer pursuing a full course of study. The school must 
maintain records on the student in accordance with paragraphs (g)(1) and 
(2) of this section if a school recommends reinstatement for a student 
who is out of status. The school must maintain records on the student 
for three years from the date of the denial if the reinstatement is 
denied. The DSO must make the information and documents required by this 
paragraph available, including academic transcripts, and must furnish 
them to DHS representatives upon request. Schools must maintain and be 
able to provide an academic transcript or other routinely maintained 
student records that reflect the total, unabridged academic history of 
the student at the institution, in accordance with paragraph (g)(1)(iv) 
of this section. All courses must be recorded in the academic period in 
which the course was taken and graded. The information and documents 
that the school must keep on each student are as follows:
    (i) Identification of the school, to include name and full address.
    (ii) Identification of the student, to include name while in 
attendance (record any legal name change), date and place of birth, 
country of citizenship, and school's student identification number.
    (iii) Current address where the student and his or her dependents 
physically reside. In the event the student or his or her dependents 
cannot receive mail at such physical residence, the school must provide 
a mailing address in SEVIS. If the mailing address and the physical 
address are not the same, the school must maintain a record of both 
mailing and physical addresses and provide the physical location of 
residence of the student and his or her dependents to DHS upon request.
    (iv) Record of coursework. Identify the student's degree program and 
field of study. For each course, give the periods of enrollment, course 
identification code and course title; the number of credits or contact 
hours, and the grade; the number of credits or clock hours, and for 
credit hour courses the credit unit; the term unit (semester hour, 
quarter hour, etc.). Include the date of withdrawal if the student 
withdrew from a course. Show the grade point average for each session or 
term. Show the cumulative credits or clock hours and cumulative grade 
point average. Narrative evaluation will be accepted in lieu of grades 
when the school uses no other type of grading.
    (v) Record of transfer credit or clock hours accepted. Type of 
hours, course identification, grades.
    (vi) Academic status. Include the effective date or period if 
suspended, dismissed, placed on probation, or withdrawn.
    (vii) Whether the student has been certified for practical training, 
and the beginning and end dates of certification.
    (viii) Statement of graduation (if applicable). Title of degree or 
credential received, date conferred, program of study or major.
    (ix) Termination date and reason.
    (x) The documents referred to in paragraph (k) of this section.
    Note to paragraph (g)(1): A DHS officer may request any or all of 
the data in paragraphs (g)(1)(i) through (x) of this section 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. The school will respond orally on the 
same day the request for information is made if DHS requests information 
on a student who is being held in custody, and DHS will provide a 
written notification that the request was made after the fact, if the 
school so desires. DHS will first attempt to gain information concerning 
a class of students from DHS record systems.
    (2) Reporting changes in student and school information. (i) Schools 
must update SEVIS with the current information within 21 days of a 
change in any of the information contained in paragraphs (f)(1) and 
(h)(3) of this section.
    (ii) Schools are also required to report within 21 days any change 
of the information contained in paragraph (g)(1) or the occurrence of 
the following events:

[[Page 408]]

    (2) Reporting changes in student and school information. (i) Schools 
must update SEVIS with the current information within 21 days of a 
change in any of the information contained in paragraphs (f)(1) and 
(h)(3) of this section.
    (ii) Schools are also required to report within 21 days any change 
of the information contained in paragraph (g)(1) or the occurrence of 
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 not covered by paragraph (g)(1) 
of this section made by DHS with respect to the current status of the 
student.
    (F) For F-1 students authorized by USCIS to engage in a 17-month 
extension of OPT,
    (1) Any change that the student reports to the school concerning 
legal name, residential or mailing address, employer name, or employer 
address; and
    (2) The end date of the student's employment reported by a former 
employer in accordance with Sec. 214.2(f)(10)(ii)(C)(4).
    (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. For initial students, the start date is the 
``program start date'' or ``report date.'' (These terms are used 
interchangeably.) 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 when determining the report date on 
the Form I-20. Such required activities may include, but are not limited 
to, research projects and orientation sessions. The DSO may not, 
however, indicate a report date more than 30 days prior to the start of 
classes. The next session start date is the start of classes for 
continuing students.
    (D) Adjustment to the program completion date. Any factors that 
influence the student's progress toward program completion (e.g., 
deferred attendance, authorized drop below, program extension) must be 
reflected by making an adjustment updating the program completion date.
    (3) 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) SEVP certification, recertification, out-of-cycle review, and 
oversight of schools.
    (1) Certification. A school seeking SEVP certification for 
attendance by nonimmigrants under section 101(a)(15)(F)(i) or 
101(a)(15)(m)(i) of the Act must use SEVIS to file an electronic 
petition (which compiles the data for the Form I-17) and must submit the 
nonrefundable certification petition fee on-line.
    (i) Filing a petition. The school must access the SEVP Web site at 
http://www.ice.gov/sevis to file a certification petition in SEVIS. The 
school will be issued a temporary ID and password in order to access 
SEVIS to complete and submit an electronic Form I-17. The school must 
submit the proper nonrefundable certification petition fee as provided 
in 8 CFR 103.7(b)(1).
    (ii) Site visit, petition adjudication and school notification. SEVP 
will conduct a site visit for each petitioning school and its additional 
schools or campuses. SEVP will contact the school to arrange the site 
visit. The school must comply with and complete the visit within 30 days 
after the date SEVP contacts the school to arrange the visit, or the 
petition for certification will be denied as abandoned. DSOs and

[[Page 409]]

school officials that have signed the school's Form I-17 petition must 
be able to demonstrate to DHS representatives how they obtain access to 
the regulations cited in the certification as part of the site visit. 
Paper or electronic access is acceptable. DSOs must be able to extract 
pertinent citations within the regulations related to their requirements 
and responsibilities. SEVP will serve a notice of approval and SEVIS 
will be updated to reflect the school's certification if SEVP approves 
the school's certification petition.
    (iii) Certification denial. SEVP will serve a notice of denial in 
accordance with paragraph (f)(2) of this section if a school's petition 
for certification is denied.
    (2) Recertification. Schools are required to file a completed 
petition for SEVP recertification before the school's certification 
expiration date, which is two years from the date of their previous SEVP 
certification or recertification expiration date, except for the first 
recertification cycle after publication of the recertification rule. 
There is no recertification petition fee. SEVP will review a petitioning 
school's compliance with the recordkeeping, retention and reporting, and 
other requirements of paragraphs (f), (g), (j), (k), and (l) of this 
section, as well as continued eligibility for certification, pursuant to 
paragraph (a)(3) of this section.
    (i) Filing of petition for recertification. Schools must submit a 
completed Form I-17 (including supplements A and B) using SEVIS, and 
submit a paper copy of the Form I-17 bearing original signatures of all 
officials. SEVP will notify all DSOs of a previously certified school 
180 days prior to the school's certification expiration date that the 
school may submit a petition for recertification. A school may file its 
recertification petition at any time after receipt of this notification. 
A school must submit a complete recertification petition package, as 
outlined in the submission guidelines, by its certification expiration 
date. SEVP will send a notice of confirmation of complete filing or 
rejection to the school upon receipt of any filing of a petition for 
recertification.
    (A) Notice of confirmation assures a school of uninterrupted access 
to SEVIS while SEVP adjudicates the school's petition for 
recertification. A school that has complied with the petition submission 
requirements will continue to have SEVIS access after its certification 
expiration date while the adjudication for recertification is pending. 
The school is required to comply with all regulatory recordkeeping, 
retention and reporting, and other requirements of paragraphs (f), (g), 
(j), (k), and (l) of this section during the period the petition is 
pending.
    (B) Notice of rejection informs a school that it must take prompt 
corrective action in regard to its recertification petition prior to its 
certification expiration date to ensure that its SEVIS access will not 
be terminated and its petition for recertification will be accepted for 
adjudication.
    (ii) Consequence of failure to petition. SEVP will serve an NOIW to 
the school 30 days prior to a school's certification expiration date. 
SEVP will no longer accept a petition for recertification from the 
school and will immediately withdraw the school's certification if the 
school does not petition for recertification, abandons its petition, or 
does not submit a complete recertification petition package by the 
certification expiration date, in accordance with the automatic 
withdrawal criteria in 8 CFR 214.4(a)(3). The school must comply with 8 
CFR 214.4(i) upon withdrawal.
    (iii) School recertification process-- (A) General. School 
recertification reaffirms the petitioning school's eligibility for SEVP 
certification and the school's compliance with recordkeeping, retention, 
reporting and other requirements of paragraphs (f), (g), (j), (k), and 
(l) of this section since its previous certification.
    (B) Compliance. Assessment by SEVP of a school petitioning for 
recertification will focus primarily on overall school compliance, but 
may also include examination of individual DSO compliance as data and 
circumstances warrant. Past performance of these individuals, whether or 
not they continue to serve as principal designated school officials 
(PDSOs) or DSOs, will

[[Page 410]]

be considered in any petition for recertification of the school.
    (C) On-site review for recertification. All schools are subject to 
on-site review, at the discretion of SEVP, in conjunction with 
recertification. The school must comply with and complete an on-site 
review within 30 days of the notification by a DHS representative of a 
school that it has been selected for an on-site review for 
recertification, or the petition for recertification will be denied as 
abandoned, resulting in the school's withdrawal from SEVIS.
    (iv) Recertification approval. SEVP will serve a notice of approval 
if a school's petition for recertification is approved. The date of the 
subsequent recertification review will be two years after the school's 
certification expiration date from this petition cycle.
    (v) Recertification denial. SEVP will serve a notice of denial if a 
school's petition for recertification is denied, in accordance with 8 
CFR 103.3(a)(1)(i).
    (vi) Adjustment of certification expiration date. Schools eligible 
for recertification before March 25, 2009 will, at a minimum, have their 
certification expiration date extended to March 25, 2009. SEVP may 
extend the certification expiration date beyond this date during the 
first cycle of recertification.
    (3) Out-of-cycle review and oversight of SEVP-certified schools. (i) 
SEVP will determine if out-of-cycle review is required upon receipt in 
SEVIS of any changes from an SEVP-certified school to its Form I-17 
information. The Form I-17 information that requires out-of-cycle review 
when changed includes:
    (A) Approval for attendance of students (F/M/both);
    (B) Name of school system; name of main campus;
    (C) Mailing address of the school;
    (D) Location of the school;
    (E) School type;
    (F) Public/private school indicator;
    (G) Private school owner name;
    (H) The school is engaged in;
    (I) The school operates under the following Federal, State, Local or 
other authorization;
    (J) The school has been approved by the following national, 
regional, or state accrediting association or agency;
    (K) Areas of study;
    (L) Degrees available from the school;
    (M) If the school is engaged in elementary or secondary education;
    (N) If the school is engaged in higher education;
    (O) If the school is engaged in vocational or technical education;
    (P) If the school is engaged in English language training;
    (Q) Adding or deleting campuses;
    (R) Campus name;
    (S) Campus mailing address; and
    (T) Campus location address.
    (ii) SEVP may request a school to electronically update all Form I-
17 fields in SEVIS and provide SEVP with documentation supporting the 
update. The school must complete such updates in SEVIS and submit the 
supporting documentation to SEVP within 10 business days of the request 
from SEVP.
    (iii) SEVP may review a school's certification at any time to verify 
the school's compliance with the recordkeeping, retention, reporting and 
other requirements of paragraphs (f), (g), (j), (k), and (l) of this 
section to verify the school's continued eligibility for SEVP 
certification pursuant to paragraph (a)(3) of this section. SEVP may 
initiate remedial action with the school, as appropriate, and may 
initiate withdrawal proceedings against the school pursuant to 8 CFR 
214.4(b) if noncompliance or ineligibility of a school is identified.
    (iv) On-site review. SEVP-certified schools are subject to on-site 
review at any time. SEVP will initiate withdrawal proceedings against a 
certified school, pursuant to 8 CFR 214.4(b), if the certified school 
selected for on-site review prior to its certification expiration date 
fails to comply with and complete the review within 30 days of the date 
SEVP contacted the school to arrange the review.
    (v) Notice of Continued Eligibility. SEVP will serve the school a 
notice of continued eligibility if, upon completion of an out-of-cycle 
review, SEVP determines that the school remains eligible for 
certification. Such notice will not change the school's previously-
determined certification expiration date unless specifically notified by 
SEVP.
    (vi) Withdrawal of certification. SEVP will institute withdrawal 
proceedings

[[Page 411]]

in accordance with 8 CFR 214.4(b) if, upon completion of an out-of-cycle 
review, SEVP determines that a school or its programs are no longer 
eligible for certification.
    (vii) Voluntary withdrawal. A school can voluntarily withdraw from 
SEVP certification at any time or in lieu of complying with an out-of-
cycle review or request. Failure of a school to comply with an out-of-
cycle review or request by SEVP will be treated as a voluntary 
withdrawal. A school must initiate voluntary withdrawal by sending a 
request for withdrawal on official school letterhead to SEVP.
    (i) Administration of student regulations. DHS officials may conduct 
out-of-cycle, on-site reviews on the campuses of SEVP-certified schools 
to determine whether nonimmigrant students on those campuses are 
complying with DHS regulations pertaining to them, including the 
requirement that each maintains a valid passport. DHS officers will take 
appropriate action regarding violations of the regulations by 
nonimmigrant students.
    (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 DSO of an SEVP-
certified school must sign any completed Form I-20 issued for either a 
prospective or continuing student or a dependent. A Form I-20 issued by 
a certified school system must state which school within the system the 
student will attend. Only a DSO of an SEVP-certified school may issue a 
Form I-20 to a prospective student and his or her dependents, and only 
after the following conditions are met:
    (1) The prospective student has made a written application to the 
school.
    (2) The written application, the student's transcripts or other 
records of courses taken, proof of financial responsibility for the 
student, and other supporting documents have been received, reviewed, 
and evaluated at the school's location in the United States.
    (3) The appropriate school authority has determined that the 
prospective student's qualifications meet all standards for admission.
    (4) The official responsible for admission at the school has 
accepted the prospective student for enrollment in a full course of 
study.
    (l) Designated Official.(1) Meaning of term Designated Official. As 
used in 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 any DSO on his or 
her associated campus. SEVP will 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. SEVP may also designate 
certain functions in SEVIS for use by the PDSO only. The PDSO of the 
main campus is the only DSO authorized to submit a Form I-17 for 
recertification. The PDSO and DSO will share the same responsibilities 
in all other respects.
    (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

[[Page 412]]

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 SEVP 
certification, review and recertification must include the names, 
titles, and sample signatures of designated officials. An SEVP-certified 
school must update SEVIS upon any changes to the persons who are 
principal or designated officials, and furnish the name, title and e-
mail address of any new official within 21 days of the change. Any 
changes to the PDSO or DSO must be made by the PDSO within 21 days of 
the change. DHS may, at its discretion, 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  Denial of certification, denial of recertification or withdrawal 

of SEVP certification.

    (a) General--
    (1) Denial of certification. The petitioning school will be notified 
of the reasons and appeal rights if a petition for certification is 
denied, in accordance with the provisions of 8 CFR 103.3(a)(1)(iii). No 
fee is required with appeals related to SEVP certification. A 
petitioning school denied certification may file a new petition for 
certification at any time.
    (2) Denial of recertification or withdrawal on notice. The school 
must wait at least one calendar year from the date of denial of 
recertification or withdrawal on notice before being eligible to 
petition again for SEVP certification if a school's petition for 
recertification is denied by SEVP pursuant to 8 CFR 214.3(h)(3)(v), or 
its certification is withdrawn on notice pursuant to paragraph (b) of 
this section. Eligibility to re-petition will be at the discretion of 
the Director of SEVP. SEVP certification of a school or school system 
for the attendance of nonimmigrant students, pursuant to sections 
101(a)(15)(F)(i) and/or 101(a)(15)(M)(i) of the Immigration and 
Nationality Act, will be withdrawn on notice subsequent to out-of-cycle 
review, or recertification denied, if the school or school system is 
determined to no longer be entitled to certification for any valid and 
substantive reason including, but not limited to, the following:
    (i) Failure to comply with 8 CFR 214.3(g)(1) without a subpoena.
    (ii) Failure to comply with 8 CFR 214.3(g)(2).
    (iii) Failure of a DSO to notify SEVP of the attendance of an F-1 
transfer student as required by 8 CFR 214.2(f)(8)(ii).
    (iv) Failure of a DSO to identify on the Form I-20 which school 
within the system the student must attend, in compliance with 8 CFR 
214.3(k).
    (v) Willful issuance by a DSO of a false statement, including 
wrongful certification of a statement by signature, in connection with a 
student's school transfer or application for employment or practical 
training.
    (vi) Conduct on the part of a DSO that does not comply with the 
regulations.
    (vii) The designation as a DSO of an individual who does not meet 
the requirements of 8 CFR 214.3(l)(1).
    (viii) Failure to provide SEVP paper copies of the school's Form I-
17 bearing the names, titles, and signatures of DSOs as required by 8 
CFR 214.3(l)(2).
    (ix) Failure to submit statements of DSOs as required by 8 CFR 
214.3(l)(3).
    (x) Issuance of Forms I-20 to students without receipt of proof that 
the students have met scholastic, language, or

[[Page 413]]

financial requirements as required by 8 CFR 214.3(k)(2).
    (xi) Issuance of Forms I-20 to aliens who will not be enrolled in or 
carry full courses of study, as defined in 8 CFR 214.2(f)(6) or 
214.2(m)(9).
    (xii) Failure to operate as a bona fide institution of learning.
    (xiii) Failure to employ adequate qualified professional personnel.
    (xiv) Failure to limit advertising in the manner prescribed in 8 CFR 
214.3(j).
    (xv) Failure to maintain proper facilities for instruction.
    (xvi) Failure to maintain accreditation or licensing necessary to 
qualify graduates as represented in the school's Form I-17.
    (xvii) Failure to maintain the physical plant, curriculum, and 
teaching staff in the manner represented in the Form I-17.
    (xviii) Failure to comply with the procedures for issuance of Forms 
I-20 as set forth in 8 CFR 214.3(k).
    (xix) Failure of a DSO to notify SEVP of material changes, such as 
changes to the school's name, address, or curricular changes that 
represent material change to the scope of institution offerings (e.g., 
addition of a program, class or course for which the school is issuing 
Forms I-20, but which does not have Form I-17 approval), as required by 
8 CFR 214.3(f)(1).
    (3) Automatic withdrawal. A school that is automatically withdrawn 
and subsequently wishes to enroll nonimmigrant students in the future 
may file a new petition for SEVP certification at any time. The school 
must use the certification petition procedures described in 8 CFR 
214.3(h)(1) to gain access to SEVIS for submitting its petition. Past 
compliance with the recordkeeping, retention, reporting and other 
requirements of 8 CFR 214.3(f), (g), (j), (k), and (l), and with the 
requirements for transition of students under paragraph (i) of this 
section will be considered in the evaluation of a school's subsequent 
petition for certification. SEVP certification will be automatically 
withdrawn:
    (i) As of the date of termination of operations, if an SEVP-
certified school terminates its operations.
    (ii) As of a school's certification expiration date, if an SEVP-
certified school does not submit a completed recertification petition in 
the manner required by 8 CFR 214.3(h)(2).
    (iii) Sixty days after the change of ownership if an SEVP-certified 
school changes ownership, unless the school files a new petition for 
SEVP certification, in accordance with the procedures at 8 CFR 
214.3(h)(1), within 60 days of the change of ownership. SEVP will review 
the petition if the school properly files such petition to determine 
whether the school still meets the eligibility requirements of 8 CFR 
214.3(a)(3) and is still in compliance with the recordkeeping, 
retention, reporting and other requirements of 8 CFR 214.3(f), (g), (j), 
(k), and (l). SEVP will institute withdrawal proceedings in accordance 
with paragraph (b) of this section if, upon completion of the review, 
SEVP finds that the school is no longer eligible for certification, or 
is not in compliance with the recordkeeping, retention, reporting and 
other requirements of 8 CFR 214.3(f), (g), (j), (k), and (l).
    (iv) If an SEVP-certified school voluntarily withdraws from its 
certification.
    (4) 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) Withdrawal on notice. SEVP will initiate an out-of-cycle review 
and serve the school with an NOIW if SEVP has information that a school 
or school

[[Page 414]]

system may no longer be entitled to SEVP certification prior to the 
school being due for its two-year recertification. The NOIW will inform 
the school of:
    (1) The grounds for withdrawing SEVP certification.
    (2) The 30-day deadline from the date of the service of the NOIW for 
the school to submit sworn statements, and documentary or other 
evidence, to rebut the grounds for withdrawal of certification in the 
NOIW. An NOIW is not a means for the school to submit evidence that it 
should have previously submitted as a part of its established reporting 
requirements.
    (3) The school's right to submit a written request (including e-
mail) within 30 days of the date of service of the NOIW for a telephonic 
interview in support of its response to the NOIW.
    (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 SEVP will be in accordance with 8 CFR 
103.3(a)(1).
    (h) Appeals. Notices of denial or withdrawal of SEVP certification 
will include appeal alternatives and filing instructions. Any appeal 
must be taken within 15 days after the service of the decision by 
stating the reasons for the appeal in the notice of appeal provided with 
the instructions, and supported by a statement or brief specifically 
setting forth the grounds for contesting the withdrawal of the approval. 
No fee is required with appeals related to denial of SEVP 
recertification or withdrawal of SEVP certification.
    (i) Operations at a school when SEVP certification is relinquished 
or withdrawn, or whose recertification is denied and on the SEVIS access 
termination date.
    (1) General. A school whose certification is relinquished or 
withdrawn, or whose recertification is denied may, at SEVP discretion, 
no longer be able to create Initial student records or issue new Forms 
I-20, Certificate of Eligibility for Nonimmigrant Student, for initial 
attendance. Schools must comply with the instructions given in the 
notice of withdrawal or denial with regard to management of status for 
their Initial and continuing F and/or M students. All other SEVIS 
functionality, including event reporting for students, will remain 
unchanged until the school's SEVIS access termination date. The school 
must continue to comply with the recordkeeping, retention, reporting and 
other requirements of 8 CFR 214.3(f), (g), (j), (k), and (l) until its 
SEVIS access termination date.
    (2) SEVIS access termination. In determining the SEVIS access 
termination date, SEVP will consider the impact that such date will have 
upon SEVP, the school, and the school's nonimmigrant students in 
determining the SEVIS access termination date. In most situations, SEVP 
will not determine a SEVIS access termination date for that school until 
the appeals process has concluded and the initial denial or withdrawal 
has been upheld unless a

[[Page 415]]

school whose certification is withdrawn or whose recertification is 
denied is suspected of criminal activity or poses a potential national 
security threat. The school will no longer be able to access SEVIS, and 
SEVP will automatically terminate any remaining Active SEVIS records for 
that school on the SEVIS access termination date.
    (3) Legal obligations and ramifications for a school and its DSOs 
when a school is having SEVP certification denied or withdrawn. Schools 
are obligated to their students to provide the programs of study to 
which they have committed themselves in the students' application for 
enrollment and acceptance process. Schools are obligated to the U.S. 
government to comply with the recordkeeping, retention, reporting and 
other requirements contained in 8 CFR 214.3. With any new petition for 
SEVP certification, SEVP will consider the extent to which a school has 
fulfilled these obligations to students and the U.S. government during 
any previous period of SEVP certification.

[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; 73 FR 55702, Sept. 26, 2008]



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]



Sec. 214.6  Citizens of Canada or Mexico seeking temporary entry under NAFTA 

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

[[Page 416]]

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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \2\ The terms ``state/provincial license'' and ``state/provincial/
federal license'' mean any document issued by a state, provincial, or 
federal government, as the case may be, or under its authority, but not 
by a local government, that permits a person to engage in a regulated 
activity or profession.
---------------------------------------------------------------------------

--Computer Systems Analyst--Baccalaureate or Licenciatura Degree; or 
          Post-Secondary Diploma \3\ or Post Secondary Certificate \4\ 
          and three years' experience.
---------------------------------------------------------------------------

    \3\ ``Post Secondary Diploma'' means a credential issued, on 
completion of two or more years of post secondary education, by an 
accredited academic institution in Canada or the United States.
    \4\ ``Post Secondary Certificate'' means a certificate issued, on 
completion of two or more years of post secondary education at an 
academic institution, by the federal government of Mexico or a state 
government in Mexico, an academic institution recognized by the federal 
government or a state government, or an academic institution created by 
federal or state law.
---------------------------------------------------------------------------

--Disaster relief insurance claims adjuster (claims adjuster employed by 
          an insurance company located in the territory of a Party, or 
          an independent claims adjuster)--Baccalaureate or Licenciatura 
          Degree and successful completion of training in the 
          appropriate areas of insurance adjustment pertaining to 
          disaster relief claims; or three years experience in claims 
          adjustment and successful completion of training in the 
          appropriate areas of insurance adjustment pertaining to 
          disaster relief claims.
--Economist--Baccalaureate or Licenciatura Degree.
--Engineer--Baccalaureate or Licenciatura Degree; or state/provincial 
          license.
--Forester--Baccalaureate or Licenciatura Degree; or state/provincial 
          license.
--Graphic Designer--Baccalaureate or Licenciatura Degree; or Post-
          Secondary Diploma or Post-Secondary Certificate and three 
          years experience.
--Hotel Manager--Baccalaureate or Licenciatura Degree in hotel/
          restaurant management; or Post-Secondary Diploma or Post 
          Secondary Certificate in hotel/restaurant management and three 
          years experience in hotel/restaurant management.
--Industrial Designer--Baccalaureate or Licenciatura Degree; or Post-
          Secondary Diploma or Post Secondary Certificate, and three 
          years experience.
--Interior Designer--Baccalaureate or Licenciatura Degree or Post-
          Secondary Diploma or Post-Secondary Certificate, and three 
          years experience.
--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. \5\
---------------------------------------------------------------------------

    \5\ The term ``Mathematician'' includes the profession of Actuary. 
An Actuary must satisfy the necessary requirements to be recognized as 
an actuary by a professional actuarial association or society. A 
professional actuarial association or society means a professional 
actuarial association or society operating in the territory of at least 
one of the Parties.
---------------------------------------------------------------------------

--Range Manager/Range Conservationist--Baccalaureate or Licenciatura 
          Degree.
--Research Assistant (working in a post-secondary educational 
          institution)--Baccalaureate or Licenciatura Degree.

[[Page 417]]

--Scientific Technician/Technologist \6\--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.
---------------------------------------------------------------------------

    \6\ 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) \7\--Baccalaureate or Licenciatura 
          Degree; or Post-Secondary Diploma or Post-Secondary 
          Certificate, and three years experience.
---------------------------------------------------------------------------

    \7\ A business person in this category must be seeking temporary 
entry to perform in a laboratory chemical, biological, hematological, 
immunologic, microscopic or bacteriological tests and analyses for 
diagnosis, treatment, or prevention of diseases.
---------------------------------------------------------------------------

--Nutritionist--Baccalaureate or Licenciatura Degree.
--Occupational Therapist--Baccalaureate or Licenciatura Degree; or 
          state/provincial license.
--Pharmacist--Baccalaureate or Licenciatura Degree; or state/provincial 
          license.
--Physician (teaching or research only)--M.D. Doctor en Medicina; or 
          state/provincial license.
--Physiotherapist/Physical Therapist--Baccalaureate or Licenciatura 
          Degree; or state/provincial license.
--Psychologist--state/provincial license; or Licenciatura Degree.
--Recreational Therapist-Baccalaureate or Licenciatura Degree.
--Registered nurse--state/provincial license or Licenciatura Degree.
--Veterinarian--D.V.M., D.M.V., or Doctor en Veterinaria; or state/
          provincial license.

--SCIENTIST

--Agriculturist (including Agronomist)--Baccalaureate or Licenciatura 
          Degree.
--Animal Breeder--Baccalaureate or Licenciatura Degree.
--Animal Scientist--Baccalaureate or Licenciatura Degree.
--Apiculturist--Baccalaureate or Licenciatura Degree.
--Astronomer--Baccalaureate or Licenciatura Degree.
--Biochemist--Baccalaureate or Licenciatura Degree.
--Biologist--Baccalaureate or Licenciatura Degree. \8\
---------------------------------------------------------------------------

    \8\ The term ``Biologist'' includes the profession of Plant 
Pathologist.
---------------------------------------------------------------------------

--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.


[[Page 418]]


    (d) Classification of citizens of Canada or Mexico as TN 
professionals under the NAFTA--(1) Citizens of Mexico. A citizen of 
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 NAFTA upon presentation of a valid 
passport and valid TN nonimmigrant visa 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.
    (2) Citizens of Canada. A citizen of Canada seeking temporary entry 
as a business person to engage in business activities at a professional 
level shall make application for admission with a Department officer at 
the 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.
    (3) Documentation. Upon application for a visa at a United States 
consular office, or, in the case of a citizen of Canada making 
application for admission at a port-of-entry, an applicant under this 
section shall present the following:
    (i) Proof of citizenship. A Mexican citizen applying for admission 
as a TN nonimmigrant must establish such citizenship by presenting a 
valid passport. Canadian citizens, while not required to present a valid 
passport for admission unless traveling from outside the Western 
hemisphere, 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 
consular officer (in the case of a Mexican citizen) or the Department 
officer (in the case of a Canadian citizen) that the applicant is 
seeking entry to the United States to engage in business activities for 
a United States employer(s) or entity(ies) at a professional level, and 
that the applicant meets the criteria to perform at such a professional 
level. This documentation may be in the form of a letter from the 
prospective employer(s) in the United States or from the foreign 
employer, and must be supported by diplomas, degrees or membership in a 
professional organization. Degrees 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, in 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 or Mexican citizen has professional level 
status; and
    (E) The arrangements for remuneration for services to be rendered.
    (e) Procedures for admission. A citizen of Canada or Mexico who 
qualifies for admission under this section shall be provided confirming 
documentation and shall be admitted under the classification symbol TN 
for a period not to exceed three years. The conforming document provided 
shall bear the legend ``multiple entry.'' The fee prescribed under 8 CFR 
103.7(b)(1) shall be remitted by Canadian Citizens upon admission to the 
United States pursuant to the terms and conditions of the NAFTA. Upon 
remittance of the prescribed fee, the TN applicant for admission shall 
be provided a DHS-issued receipt on the appropriate form.
    (f) [Reserved]
    (g) Readmission. (1) With a Form I-94. An alien may be readmitted to 
the United States in TN classification for the remainder of the 
authorized period of TN admission on Form I-94, without presentation of 
the letter or supporting documentation described in paragraph (d)(3) of 
this section, and without the prescribed fee set forth in 8 CFR 
103.7(b)(1), provided that the original intended professional activities 
and employer(s) have not changed, and the Form I-94 has not expired.
    (2) Without a valid I-94. If the alien seeking readmission to the 
United States in TN classification is no longer

[[Page 419]]

in possession of a valid, unexpired Form I-94, and the period of initial 
admission in TN classification has not lapsed, then a new Form I-94 may 
be issued for the period of validity that remains on the TN 
nonimmigrant's original Form I-94 with the legend ``multiple entry'' and 
the alien can then be readmitted in TN status if the alien presents 
alternate evidence as follows:
    (i) For Canadian citizens, alternate evidence may include, but is 
not limited to, a 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).
    (ii) For Mexican citizens seeking readmission as TN nonimmigrants, 
alternate evidence shall consist of presentation of a valid unexpired TN 
visa and evidence of a previous admission.
    (h) Extension of stay. (1) Filing. A United States employer of a 
citizen of Canada or Mexico who is currently maintaining valid TN 
nonimmigrant status, or a United States entity (in the case of a citizen 
of Canada or Mexico who is currently maintaining valid TN nonimmigrant 
status and is employed by a foreign employer), may request an extension 
of stay, subject to the following conditions:
    (i) An extension of stay must be requested by filing the appropriate 
form with the fee provided at 8 CFR 103.7(b)(1), in accordance with the 
form instructions with USCIS.
    (ii) The beneficiary must be physically present in the United States 
at the time of the filing of the appropriate form requesting an 
extension of stay as a TN nonimmigrant. If the alien is required to 
leave the United States for any reason while the petition is pending, 
the petitioner may request that USCIS notify the consular office where 
the beneficiary is required to apply for a visa or, if visa exempt, a 
DHS-designated port-of-entry where the beneficiary will apply for 
admission to the United States, of the approval.
    (iii) An extension of stay in TN status may be approved by USCIS for 
a maximum period of three years.
    (iv) There is no specific limit on the total period of time an alien 
may be in TN status provided the alien continues to be engaged in TN 
business activities for a U.S. employer or entity at a professional 
level, and otherwise continues to properly maintain TN nonimmigrant 
status.
    (2) Readmission at the border. Nothing in paragraph (h)(1) of this 
section shall preclude a citizen of Canada or Mexico who has previously 
been admitted to the United States in TN status, and who has not 
violated such status while in the United States, from applying at a DHS-
designated port-of-entry, prior to the expiration date of the previous 
period of admission, for a new three-year period of admission. The 
application for a new period of admission must be supported by a new 
letter from the United States employer or the foreign employer, in the 
case of a citizen of Canada who is providing prearranged services to a 
United States entity, which meets the requirements of paragraph (d) of 
this section, together with the appropriate filing fee as noted in 8 CFR 
103.7(b)(1). Citizens of Mexico must present a valid passport and a 
valid, unexpired TN nonimmigrant visa when applying for readmission, as 
outlined in paragraph (d)(1) of this section.
    (i) Request for change or addition of United States employers--(1) 
Filing at the service center. A citizen of Canada or Mexico admitted 
into the United States as a TN nonimmigrant who seeks to change or add a 
United States employer during the period of admission must have the new 
employer file a Form I-129 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 of 
remuneration for services. Employment with a different or with an 
additional employer is not authorized prior to Department approval of 
the request.
    (2) Readmission at the border. Nothing in paragraph (i)(1) of those 
section precludes a citizen of Canada or Mexico 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 (d) of this section. The fee prescribed under 8 CFR 
103.7(b)(1) shall be remitted by Canadian citizens upon

[[Page 420]]

admission to the United States pursuant to the terms and conditions of 
the NAFTA. Citizens of Mexico may present documentation from a different 
or additional United States or foreign employer to a consular officer as 
evidence in support of a new nonimmigrant TN visa application.
    (3) No action shall be required on the part of a citizen of Canada 
or Mexico in TN status who is transferred to another location by the 
same United States employer to perform the same services. Such an 
acceptable transfer would be to a branch or office of the employer. In a 
case of a transfer to a separately incorporated subsidiary or affiliate, 
the requirements of paragraphs (i)(1) and (i)(2) of this section will 
apply.
    (j) Spouse and unmarried minor children accompanying or following to 
join. (1) The spouse or unmarried minor children of a citizen of Canada 
or Mexico admitted in TN nonimmigrant status, if otherwise admissible, 
may be admitted initially, readmitted, or granted a change of 
nonimmigrant status or an extension of his or her period of stay for the 
same period of time granted to the TN nonimmigrant. Such spouse or 
unmarried minor children shall, upon approval of an application for 
admission, readmission, change of status or extension of stay be 
classified as TD nonimmigrants. A request for a change of status to TD 
or an extension of stay of a TD nonimmigrant may be made on the 
appropriate form together with appropriate filing fees and evidence of 
the principal alien's current TN status.
    (2) The spouse or unmarried minor children of a citizen of Canada or 
Mexico admitted in TN nonimmigrant status shall be required to present a 
valid, unexpired TD nonimmigrant visa unless otherwise exempt under 8 
CFR 212.1.
    (3) The spouse and unmarried minor children of a citizen of Canada 
or Mexico admitted in TN nonimmigrant status shall be issued confirming 
documentation bearing the legend ``multiple entry.'' There shall be no 
fee required for admission of the spouse and unmarried minor children.
    (4) The spouse and unmarried minor children of a citizen of Canada 
or Mexico admitted in TN nonimmigrant status shall not accept employment 
in the United States unless otherwise authorized under the Act.
    (k) Effect of a strike. (1) If the Secretary of Labor certifies or 
otherwise informs the Director of USCIS 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 adversely affect the settlement of any labor dispute or the 
employment of any person who is involved in such dispute, the United 
States may refuse to issue an immigration document authorizing the entry 
or employment of such an alien.
    (2) 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 USCIS 
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 removal, 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 removal.
    (3) 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,

[[Page 421]]

or USCIS has not otherwise been informed by the Secretary that such a 
strike or labor dispute is in progress, Director of USCIS shall not deny 
a petition or deny entry to an applicant for TN status based upon such 
strike or other labor dispute.

[58 FR 69212, Dec. 30, 1993, as amended at 63 FR 1335, Jan. 9, 1998; 69 
FR 11289, Mar. 10, 2004; 69 FR 60941, Oct. 13, 2004; 73 FR 61334, Oct. 
16, 2008]



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 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

[[Page 422]]

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
    (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. 214.8-214.10  [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,

[[Page 423]]

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 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.

[[Page 424]]

    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 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.

[[Page 425]]

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 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

[[Page 426]]

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 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.

[[Page 427]]

    (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, 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

[[Page 428]]

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 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

[[Page 429]]

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;
    (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

[[Page 430]]

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 is not the case under other grounds of inadmissibility.
    (2) Determination by USCIS. An application for T-1 status under this 
section will not be treated as a bona fide application until USCIS has 
provided the notice described in paragraph (k)(3) of this section. In 
the event that an application is incomplete or if the application is 
complete but does not present sufficient evidence to establish prima 
facie eligibility for each required element of T nonimmigrant status, 
USCIS will follow the procedures provided in 8 CFR 103.2(b) for 
requesting additional evidence, issuing a notice of intent to deny, or 
adjudicating the case on the merits.
    (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.

[[Page 431]]

    (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 
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]

[[Page 432]]

    (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 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

[[Page 433]]

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 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.

[[Page 434]]

    (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 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

[[Page 435]]

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, as amended at 72 FR 19107, Apr. 17, 2007]

    Effective Date Note: At 73 FR 75558, Dec. 12, 2008, Sec. 214.11 was 
amended by revising paragraphs (p)(1) and (2), effective Jan. 12, 2009. 
For the convenience of the user, the revised text is set forth as 
follows:



Sec. 214.11  Alien victims of severe forms of trafficking in persons.

                                * * * * *

    (p) Duration of T nonimmigrant status.
    (1) In general. An approved T nonimmigrant status shall expire after 
4 years from the date of approval. The status may be extended if a 
Federal, State, or local law enforcement official, prosecutor, judge, or 
other authority investigating or prosecuting activity relating to human 
trafficking certifies that the presence of the alien in the United 
States is necessary to assist in the investigation or prosecution of 
such activity. At the time an alien is approved for T nonimmigrant 
status or receives an extension, USCIS shall notify the alien when his 
or her nonimmigrant status will expire. The applicant shall immediately 
notify USCIS 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. USCIS will 
notify an alien granted T nonimmigrant status of the requirement to 
timely apply for adjustment of status, and that the failure to apply for 
adjustment of status in accordance with 8 CFR 245.23 will result in 
termination of the alien's T nonimmigrant status at the end of the 4-
year period unless that status is extended in accordance with paragraph 
(p)(1) of this section. Aliens who properly apply for adjustment of 
status to that of a person admitted to permanent residence in accordance 
with 8 CFR 245.23 shall remain eligible for adjustment of status.

                                * * * * *



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

[[Page 436]]

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://
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. 214.13  SEVIS fee for certain F, J, and M nonimmigrants.

    (a) Applicability. The following aliens are required to submit a 
payment in the amount indicated for their status to the Student and 
Exchange Visitor Program (SEVP) in advance of obtaining nonimmigrant 
status as an F or M student or J exchange visitor, in addition to any 
other applicable fees, except as otherwise provided for in this section:

[[Page 437]]

    (1) An alien who applies for F-1 or F-3 status in order to enroll in 
a program of study at an SEVP-certified institution of higher education, 
as defined in section 101(a) of the Higher Education Act of 1965, as 
amended, or in a program of study at any other SEVP-certified academic 
or language-training institution including private elementary and 
secondary schools and public secondary schools, the amount of $200;
    (2) An alien who applies for J-1 status in order to commence 
participation in an exchange visitor program designated by the 
Department of State (DoS), the amount of $180, with a reduced fee for 
certain exchange visitor categories as provided in paragraphs (b)(1) and 
(c) of this section; and
    (3) An alien who applies for M-1 or M-3 status in order to enroll in 
a program of study at an SEVP-certified vocational educational 
institution, including a flight school, in the amount of $200.
    (b) Aliens not subject to a fee. No SEVIS fee is required with 
respect to:
    (1) A J-1 exchange visitor who is coming to the United States as a 
participant in an exchange visitor program sponsored by the Federal 
government, identified by a program identifier designation prefix of G-
1, G-2, G-3, or G-7;
    (2) Dependents of F, M, or J nonimmigrants. The principal alien must 
pay the fee, when required under this section, in order for his/her 
qualifying dependents to obtain F-2, J-2, or M-2 status. However, an F-
2, J-2, or M-2 dependent is not required to pay a separate fee under 
this section in order to obtain that status or during the time he/she 
remains in that status.
    (3) A nonimmigrant described in paragraph (a) of this section whose 
Form I-20 or Form DS-2019 for initial attendance was issued on or before 
August 31, 2004.
    (c) Special Fee for Certain J-1 Nonimmigrants. A J-1 exchange 
visitor coming to the United States as an au pair, camp counselor, or 
participant in a summer work/travel program is subject to a fee of $35.
    (d) Time for payment of SEVIS fee. An alien who is subject to 
payment of the SEVIS fee must remit the fee directly to DHS as follows:
    (1) An alien seeking an F-1, F-3, J-1, M-1, or M-3 visa from a 
consular officer abroad for initial attendance at a DHS-approved school 
or to commence participation in a Department of State-designated 
exchange visitor program, must pay the fee to DHS before issuance of the 
visa.
    (2) An alien who is exempt from the visa requirement described in 
section 212(d)(4) of the Act must pay the fee to DHS before the alien 
applies for admission at a U.S. port-of-entry to begin initial 
attendance at a DHS-approved school or initial participation in a 
Department of State-designated exchange visitor program.
    (3) A nonimmigrant alien in the United States seeking a change of 
status to F-1, F-3, J-1, M-1, or M-3 must pay the fee to DHS before the 
alien is granted the change of nonimmigrant status, except as provided 
in paragraph (e)(4) of this section.
    (4) A J-1 nonimmigrant who is applying for a change of program 
category within the United Status, in accordance with 22 CFR 62.42, must 
pay the fee associated with that new category, if any, prior to being 
granted such a change.
    (5) A J-1 nonimmigrant initially granted J-1 status to participate 
in a program sponsored by the Federal government, as defined in 
paragraph (b)(1) of this section, and transferring in accordance with 22 
CFR 62.42 to a program that is not similarly sponsored, must pay the fee 
associated with the new program prior to completing the transfer.
    (6) A J-1 nonimmigrant who is applying for reinstatement after a 
substantive violation of status, or who has been out of program status 
for longer than 120 days but less than 270 days during the course of 
his/her program must pay a new fee to DHS, if applicable, prior to being 
granted a reinstatement to valid J-1 status.
    (7) An F or M student who is applying for reinstatement of student 
status because of a violation of status, and who has been out of status 
for a period of time that exceeds the presumptive ineligibility deadline 
set forth in 8 CFR 214.2(f)(16)(i)(A) or (m)(16)(i)(A), must pay a new 
fee to DHS prior to being granted a return to valid status.

[[Page 438]]

    (8) An F-1, F-3, M-1, or M-3 nonimmigrant who has been absent from 
the United States for a period that exceeds 5 months in duration, and 
wishes to reenter the United States to engage in further study in the 
same course of study, with the exception of students who have been 
working toward completion of a U.S. course of study in authorized 
overseas study, must pay a new fee to DHS prior to being granted student 
status.
    (e) Circumstances where no new fee is required. (1) Extension of 
stay, transfer, or optional practical training for students. An F-1, F-
3, M-1, or M-3 nonimmigrant is not required to pay a new fee in 
connection with:
    (i) An application for an extension of stay, as provided in 8 CFR 
214.2(f)(7) or (m)(10);
    (ii) An application for transfer, as provided in 8 CFR 214.2(f)(8) 
or (m)(11);
    (iii) A change in educational level, as provided in 8 CFR 
214.2(f)(5)(ii); or
    (iv) An application for post-completion practical training, as 
provided in 8 CFR 214.2(f)(10)(ii) or (m)(14).
    (2) Extension of program or transfer for exchange visitors. A J-1 
nonimmigrant is not required to pay a new fee in connection with:
    (i) An application for an extension of program, as provided in 22 
CFR 62.43; or
    (ii) An application for transfer of program, as provided in 22 CFR 
62.42.
    (3) Visa issuance for a continuation of study. An F-1, F-3, J-1, M-
1, or M-3 nonimmigrant who has previously paid the fee is not required 
to pay a new fee in order to be granted a visa to return to the United 
States as a continuing student or exchange visitor in a single course of 
study, so long as the nonimmigrant is not otherwise required to pay a 
new fee in accordance with the other provisions in this section.
    (4) Certain changes in student classification.
    (i) No fee is required for changes between the F-1 and F-3 
classifications, and no fee is required for changes between the M-1 and 
M-3 classifications.
    (ii) Institutional reclassification. DHS retains the discretionary 
authority to waive the additional fee requirement when a nonimmigrant 
changes classification between F and M, if the change of status is due 
solely to institutional reclassification by the Student and Exchange 
Visitor Program during that nonimmigrant's course of study.
    (5) Re-application following denial of application by consular 
officer. An alien who fully paid a SEVIS fee in connection with an 
initial application for an F-1, F-3, M-1, or M-3 visa, or a J-1 visa in 
a particular program category, whose initial application was denied, and 
who is reapplying for the same status, or the same J-1 exchange visitor 
category, within 12 months following the initial notice of denial is not 
required to repay the SEVIS fee.
    (6) Re-application following denial of an application for a change 
of status. A nonimmigrant who fully paid a SEVIS fee in connection with 
an initial application for a change of status within in the United 
States to F-1, F-3, M-1, or M-3 classification, or for a change of 
status to a particular J-1 exchange visitor category, whose initial 
application was denied, and who is granted a motion to reopen the denied 
case is not required to repay the SEVIS fee if the motion to reopen is 
granted within 12 months of receipt of initial notice of denial.
    (f) [Reserved]
    (g) Procedures for payment of the SEVIS fee. (1) Options for 
payment. An alien subject to payment of a fee under this section may pay 
the fee by any procedure approved by DHS, including:
    (i) Submission of Form I-901, to DHS by mail, along with the proper 
fee paid by check, money order, or foreign draft drawn on a financial 
institution in the United States and payable in United States currency, 
as provided by 8 CFR 103.7(a)(1);
    (ii) Electronic submission of Form I-901 to DHS using a credit card 
or other electronic means of payment accepted by DHS; or,
    (iii) A designated payment service and receipt mechanism approved 
and set forth in future guidance by DHS.
    (2) Receipts. DHS will provide a receipt for each fee payment under 
paragraph (g)(1) of this section until such time as DHS issues a notice 
in the Federal Register that paper receipts will no longer be necessary. 
Further receipt provisions include:

[[Page 439]]

    (i) DHS will provide for an expedited delivery of the receipt, upon 
request and receipt of an additional fee;
    (ii) If payment was made electronically, both DHS and the Department 
of State will accept a properly completed receipt that is printed-out 
electronically, in lieu of the receipt generated by DHS;
    (iii) If payment was made through an approved payment service, DHS 
and the Department of State will accept a properly completed receipt 
issued by the payment service, in lieu of the receipt generated by DHS.
    (3) Electronic record of fee payment. DHS will maintain an 
electronic record of payment for the alien as verification of receipt of 
the required fee under this section. If DHS records indicate that the 
fee has been paid, an alien who has lost or did not receive a receipt 
for a fee payment under this section will not be denied an immigration 
benefit, including visa issuance or admission to the United States, 
solely because of a failure to present a paper receipt of fee payment.
    (4) Third-party payments. DHS will accept payment of the required 
fee for an alien from an approved school or a designated exchange 
visitor program sponsor, or from another source, in accordance with 
procedures approved by DHS.
    (h) Failure to pay the fee. The failure to pay the required fee is 
grounds for denial of F, M, or J nonimmigrant status or status-related 
benefits. Payment of the fee does not preserve the lawful status of any 
F, J, or M nonimmigrant that has violated his or her status in some 
other manner.
    (1) For purposes of reinstatement to F or M status, failure to pay 
the required fee will be considered a ``willful violation'' under 8 CFR 
214.2(f)(16) or (m)(16), unless DHS determines that there are sufficient 
extenuating circumstances (as determined at the discretion of the 
Student and Exchange Visitor Program).
    (2) For purposes of reinstatement to valid J program status, failure 
to pay the required fee will not be considered a ``minor or technical 
infraction'' under 22 CFR 62.45.

[69 FR 39825, July 1, 2004; 69 FR 41388, July 9, 2004, as amended at 73 
FR55704, Sept. 26, 2008]



Sec. 214.14  Alien victims of certain qualifying criminal activity.

    (a) Definitions. As used in this section, the term:
    (1) BIWPA means Battered Immigrant Women Protection Act of 2000 of 
the Victims of Trafficking and Violence Protection Act of 2000, div. B, 
Violence Against Women Act of 2000, tit. V, Pub. L. 106-386, 114 Stat. 
1464, (2000), amended by Violence Against Women and Department of 
Justice Reauthorization Act of 2005, tit. VIII, Pub. L. 109-162, 119 
Stat. 2960 (2006), amended by Violence Against Women and Department of 
Justice Reauthorization Act--Technical Corrections, Pub. L. 109-271, 120 
Stat. 750 (2006).
    (2) Certifying agency means a Federal, State, or local law 
enforcement agency, prosecutor, judge, or other authority, that has 
responsibility for the investigation or prosecution of a qualifying 
crime or criminal activity. This definition includes agencies that have 
criminal investigative jurisdiction in their respective areas of 
expertise, including, but not limited to, child protective services, the 
Equal Employment Opportunity Commission, and the Department of Labor.
    (3) Certifying official means:
    (i) The head of the certifying agency, or any person(s) in a 
supervisory role who has been specifically designated by the head of the 
certifying agency to issue U nonimmigrant status certifications on 
behalf of that agency; or
    (ii) A Federal, State, or local judge.
    (4) Indian Country is defined as:
    (i) All land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running through the 
reservation;
    (ii) All dependent Indian communities within the borders of the 
United States whether within the original or subsequently acquired 
territory thereof, and whether within or without the limits of a state; 
and
    (iii) All Indian allotments, the Indian titles to which have not 
been extinguished, including rights-of-way running through such 
allotments.
    (5) Investigation or prosecution refers to the detection or 
investigation of a qualifying crime or criminal activity,

[[Page 440]]

as well as to the prosecution, conviction, or sentencing of the 
perpetrator of the qualifying crime or criminal activity.
    (6) Military Installation means any facility, base, camp, post, 
encampment, station, yard, center, port, aircraft, vehicle, or vessel 
under the jurisdiction of the Department of Defense, including any 
leased facility, or any other location under military control.
    (7) Next friend means a person who appears in a lawsuit to act for 
the benefit of an alien under the age of 16 or incapacitated or 
incompetent, who has suffered substantial physical or mental abuse as a 
result of being a victim of qualifying criminal activity. The next 
friend is not a party to the legal proceeding and is not appointed as a 
guardian.
    (8) Physical or mental abuse means injury or harm to the victim's 
physical person, or harm to or impairment of the emotional or 
psychological soundness of the victim.
    (9) Qualifying crime or qualifying criminal activity includes one or 
more of the following or any similar activities in violation of Federal, 
State or local criminal law of the United States: Rape; torture; 
trafficking; incest; domestic violence; sexual assault; abusive sexual 
contact; prostitution; sexual exploitation; female genital mutilation; 
being held hostage; peonage; involuntary servitude; slave trade; 
kidnapping; abduction; unlawful criminal restraint; false imprisonment; 
blackmail; extortion; manslaughter; murder; felonious assault; witness 
tampering; obstruction of justice; perjury; or attempt, conspiracy, or 
solicitation to commit any of the above mentioned crimes. The term ``any 
similar activity'' refers to criminal offenses in which the nature and 
elements of the offenses are substantially similar to the statutorily 
enumerated list of criminal activities.
    (10) Qualifying family member means, in the case of an alien victim 
21 years of age or older who is eligible for U nonimmigrant status as 
described in section 101(a)(15)(U) of the Act, 8 U.S.C. 1101(a)(15)(U), 
the spouse or child(ren) of such alien; and, in the case of an alien 
victim under the age of 21 who is eligible for U nonimmigrant status as 
described in section 101(a)(15)(U) of the Act, qualifying family member 
means the spouse, child(ren), parents, or unmarried siblings under the 
age of 18 of such an alien.
    (11) Territories and Possessions of the United States means American 
Samoa, Swains Island, Bajo Nuevo (the Petrel Islands), Baker Island, 
Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway 
Atoll, Navassa Island, Northern Mariana Islands, Palmyra Atoll, 
Serranilla Bank, and Wake Atoll.
    (12) U nonimmigrant status certification means Form I-918, 
Supplement B, ``U Nonimmigrant Status Certification,'' which confirms 
that the petitioner has been helpful, is being helpful, or is likely to 
be helpful in the investigation or prosecution of the qualifying 
criminal activity of which he or she is a victim.
    (13) U interim relief refers to the interim benefits that were 
provided by USCIS to petitioners for U nonimmigrant status, who 
requested such benefits and who were deemed prima facie eligible for U 
nonimmigrant status prior to the publication of the implementing 
regulations.
    (14) Victim of qualifying criminal activity generally means an alien 
who has suffered direct and proximate harm as a result of the commission 
of qualifying criminal activity.
    (i) The alien spouse, children under 21 years of age and, if the 
direct victim is under 21 years of age, parents and unmarried siblings 
under 18 years of age, will be considered victims of qualifying criminal 
activity where the direct victim is deceased due to murder or 
manslaughter, or is incompetent or incapacitated, and therefore unable 
to provide information concerning the criminal activity or be helpful in 
the investigation or prosecution of the criminal activity. For purposes 
of determining eligibility under this definition, USCIS will consider 
the age of the victim at the time the qualifying criminal activity 
occurred.
    (ii) A petitioner may be considered a victim of witness tampering, 
obstruction of justice, or perjury, including any attempt, solicitation, 
or conspiracy to commit one or more of those offenses, if:

[[Page 441]]

    (A) The petitioner has been directly and proximately harmed by the 
perpetrator of the witness tampering, obstruction of justice, or 
perjury; and
    (B) There are reasonable grounds to conclude that the perpetrator 
committed the witness tampering, obstruction of justice, or perjury 
offense, at least in principal part, as a means:
    (1) To avoid or frustrate efforts to investigate, arrest, prosecute, 
or otherwise bring to justice the perpetrator for other criminal 
activity; or
    (2) To further the perpetrator's abuse or exploitation of or undue 
control over the petitioner through manipulation of the legal system.
    (iii) A person who is culpable for the qualifying criminal activity 
being investigated or prosecuted is excluded from being recognized as a 
victim of qualifying criminal activity.
    (b) Eligibility. An alien is eligible for U-1 nonimmigrant status if 
he or she demonstrates all of the following in accordance with paragraph 
(c) of this section:
    (1) The alien has suffered substantial physical or mental abuse as a 
result of having been a victim of qualifying criminal activity. Whether 
abuse is substantial is based on a number of factors, including but not 
limited to: The nature of the injury inflicted or suffered; the severity 
of the perpetrator's conduct; the severity of the harm suffered; the 
duration of the infliction of the harm; and the extent to which there is 
permanent or serious harm to the appearance, health, or physical or 
mental soundness of the victim, including aggravation of pre-existing 
conditions. No single factor is a prerequisite to establish that the 
abuse suffered was substantial. Also, the existence of one or more of 
the factors automatically does not create a presumption that the abuse 
suffered was substantial. A series of acts taken together may be 
considered to constitute substantial physical or mental abuse even where 
no single act alone rises to that level;
    (2) The alien possesses credible and reliable information 
establishing that he or she has knowledge of the details concerning the 
qualifying criminal activity upon which his or her petition is based. 
The alien must possess specific facts regarding the criminal activity 
leading a certifying official to determine that the petitioner has, is, 
or is likely to provide assistance to the investigation or prosecution 
of the qualifying criminal activity. In the event that the alien has not 
yet reached 16 years of age on the date on which an act constituting an 
element of the qualifying criminal activity first occurred, a parent, 
guardian or next friend of the alien may possess the information 
regarding a qualifying crime. In addition, if the alien is incapacitated 
or incompetent, a parent, guardian, or next friend may possess the 
information regarding the qualifying crime;
    (3) The alien has been helpful, is being helpful, or is likely to be 
helpful to a certifying agency in the investigation or prosecution of 
the qualifying criminal activity upon which his or her petition is 
based, and since the initiation of cooperation, has not refused or 
failed to provide information and assistance reasonably requested. In 
the event that the alien has not yet reached 16 years of age on the date 
on which an act constituting an element of the qualifying criminal 
activity first occurred, a parent, guardian or next friend of the alien 
may provide the required assistance. In addition, if the petitioner is 
incapacitated or incompetent and, therefore, unable to be helpful in the 
investigation or prosecution of the qualifying criminal activity, a 
parent, guardian, or next friend may provide the required assistance; 
and
    (4) The qualifying criminal activity occurred in the United States 
(including Indian country and U.S. military installations) or in the 
territories or possessions of the United States, or violated a U.S. 
federal law that provides for extraterritorial jurisdiction to prosecute 
the offense in a U.S. federal court.
    (c) Application procedures for U nonimmigrant status--(1) Filing a 
petition. USCIS has sole jurisdiction over all petitions for U 
nonimmigrant status. An alien seeking U-1 nonimmigrant status must 
submit, by mail, Form I-918, ``Petition for U Nonimmigrant Status,'' 
applicable biometric fee (or request for a fee waiver as provided in 8 
CFR 103.7(c)), and initial evidence to

[[Page 442]]

USCIS in accordance with this paragraph and the instructions to Form I-
918. A petitioner who received interim relief is not required to submit 
initial evidence with Form I-918 if he or she wishes to rely on the law 
enforcement certification and other evidence that was submitted with the 
request for interim relief.
    (i) Petitioners in pending immigration proceedings. An alien who is 
in removal proceedings under section 240 of the Act, 8 U.S.C. 1229a, or 
in exclusion or deportation proceedings initiated under former sections 
236 or 242 of the Act, 8 U.S.C. 1226 and 1252 (as in effect prior to 
April 1, 1997), and who would like to apply for U nonimmigrant status 
must file a Form I-918 directly with USCIS. U.S. Immigration and Customs 
Enforcement (ICE) counsel may agree, as a matter of discretion, to file, 
at the request of the alien petitioner, a joint motion to terminate 
proceedings without prejudice with the immigration judge or Board of 
Immigration Appeals, whichever is appropriate, while a petition for U 
nonimmigrant status is being adjudicated by USCIS.
    (ii) Petitioners with final orders of removal, deportation, or 
exclusion. An alien who is the subject of a final order of removal, 
deportation, or exclusion is not precluded from filing a petition for U-
1 nonimmigrant status directly with USCIS. The filing of a petition for 
U-1 nonimmigrant status has no effect on ICE's authority to execute a 
final order, although the alien may file a request for a stay of removal 
pursuant to 8 CFR 241.6(a) and 8 CFR 1241.6(a). If the alien is in 
detention pending execution of the final order, the time during which a 
stay is in effect will extend the period of detention (under the 
standards of 8 CFR 241.4) reasonably necessary to bring about the 
petitioner's removal.
    (2) Initial evidence. Form I-918 must include the following initial 
evidence:
    (i) Form I-918, Supplement B, ``U Nonimmigrant Status 
Certification,'' signed by a certifying official within the six months 
immediately preceding the filing of Form I-918. The certification must 
state that: the person signing the certificate is the head of the 
certifying agency, or any person(s) in a supervisory role who has been 
specifically designated by the head of the certifying agency to issue U 
nonimmigrant status certifications on behalf of that agency, or is a 
Federal, State, or local judge; the agency is a Federal, State, or local 
law enforcement agency, or prosecutor, judge or other authority, that 
has responsibility for the detection, investigation, prosecution, 
conviction, or sentencing of qualifying criminal activity; the applicant 
has been a victim of qualifying criminal activity that the certifying 
official's agency is investigating or prosecuting; the petitioner 
possesses information concerning the qualifying criminal activity of 
which he or she has been a victim; the petitioner has been, is being, or 
is likely to be helpful to an investigation or prosecution of that 
qualifying criminal activity; and the qualifying criminal activity 
violated U.S. law, or occurred in the United States, its territories, 
its possessions, Indian country, or at military installations abroad.
    (ii) Any additional evidence that the petitioner wants USCIS to 
consider to establish that: the petitioner is a victim of qualifying 
criminal activity; the petitioner has suffered substantial physical or 
mental abuse as a result of being a victim of qualifying criminal 
activity; the petitioner (or, in the case of a child under the age of 16 
or petitioner who is incompetent or incapacitated, a parent, guardian or 
next friend of the petitioner) possesses information establishing that 
he or she has knowledge of the details concerning the qualifying 
criminal activity of which he or she was a victim and upon which his or 
her application is based; the petitioner (or, in the case of a child 
under the age of 16 or petitioner who is incompetent or incapacitated, a 
parent, guardian or next friend of the petitioner) has been helpful, is 
being helpful, or is likely to be helpful to a Federal, State, or local 
law enforcement agency, prosecutor, or authority, or Federal or State 
judge, investigating or prosecuting the criminal activity of which the 
petitioner is a victim; or the criminal activity is qualifying and 
occurred in the United States (including

[[Page 443]]

Indian country and U.S. military installations) or in the territories or 
possessions of the United States, or violates a U.S. federal law that 
provides for extraterritorial jurisdiction to prosecute the offense in a 
U.S. federal court;
    (iii) A signed statement by the petitioner describing the facts of 
the victimization. The statement also may include information supporting 
any of the eligibility requirements set out in paragraph (b) of this 
section. When the petitioner is under the age of 16, incapacitated, or 
incompetent, a parent, guardian, or next friend may submit a statement 
on behalf of the petitioner; and
    (iv) If the petitioner is inadmissible, Form I-192, ``Application 
for Advance Permission to Enter as Non-Immigrant,'' in accordance with 8 
CFR 212.17.
    (3) Biometric capture. All petitioners for U-1 nonimmigrant status 
must submit to biometric capture and pay a biometric capture fee. USCIS 
will notify the petitioner of the proper time and location to appear for 
biometric capture after the petitioner files Form I-918.
    (4) Evidentiary standards and burden of proof. The burden shall be 
on the petitioner to demonstrate eligibility for U-1 nonimmigrant 
status. The petitioner may submit any credible evidence relating to his 
or her Form I-918 for consideration by USCIS. USCIS shall conduct a de 
novo review of all evidence submitted in connection with Form I-918 and 
may investigate any aspect of the petition. Evidence previously 
submitted for this or other immigration benefit or relief may be used by 
USCIS in evaluating the eligibility of a petitioner for U-1 nonimmigrant 
status. However, USCIS will not be bound by its previous factual 
determinations. USCIS will determine, in its sole discretion, the 
evidentiary value of previously or concurrently submitted evidence, 
including Form I-918, Supplement B, ``U Nonimmigrant Status 
Certification.''
    (5) Decision. After completing its de novo review of the petition 
and evidence, USCIS will issue a written decision approving or denying 
Form I-918 and notify the petitioner of this decision. USCIS will 
include in a decision approving Form I-918 a list of nongovernmental 
organizations to which the petitioner can refer regarding his or her 
options while in the United States and available resources.
    (i) Approval of Form I-918, generally. If USCIS determines that the 
petitioner has met the requirements for U-1 nonimmigrant status, USCIS 
will approve Form I-918. For a petitioner who is within the United 
States, USCIS also will concurrently grant U-1 nonimmigrant status, 
subject to the annual limitation as provided in paragraph (d) of this 
section. For a petitioner who is subject to an order of exclusion, 
deportation, or removal issued by the Secretary, the order will be 
deemed canceled by operation of law as of the date of USCIS' approval of 
Form I-918. A petitioner who is subject to an order of exclusion, 
deportation, or removal issued by an immigration judge or the Board may 
seek cancellation of such order by filing, with the immigration judge or 
the Board, a motion to reopen and terminate removal proceedings. ICE 
counsel may agree, as a matter of discretion, to join such a motion to 
overcome any applicable time and numerical limitations of 8 CFR 1003.2 
and 1003.23.
    (A) Notice of Approval of Form I-918 for U-1 petitioners within the 
United States. After USCIS approves Form I-918 for an alien who filed 
his or her petition from within the United States, USCIS will notify the 
alien of such approval on Form I-797, ``Notice of Action,'' and include 
Form I-94, ``Arrival-Departure Record,'' indicating U-1 nonimmigrant 
status.
    (B) Notice of Approval of Form I-918 for U-1 petitioners outside the 
United States. After USCIS approves Form I-918 for an alien who filed 
his or her petition from outside the United States, USCIS will notify 
the alien of such approval on Form I-797, ``Notice of Action,'' and will 
forward notice to the Department of State for delivery to the U.S. 
Embassy or Consulate having jurisdiction over the area in which the 
alien is located, or, for a visa exempt alien, to the appropriate port 
of entry.
    (ii) Denial of Form I-918. USCIS will provide written notification 
to the petitioner of the reasons for the denial.

[[Page 444]]

The petitioner may appeal a denial of Form I-918 to the Administrative 
Appeals Office (AAO) in accordance with the provisions of 8 CFR 103.3. 
For petitioners who appeal a denial of their Form I-918 to the AAO, the 
denial will not be deemed administratively final until the AAO issues a 
decision affirming the denial. Upon USCIS' final denial of a petition 
for a petitioner who was in removal proceedings that were terminated 
pursuant to 8 CFR 214.14(c)(1)(i), DHS may file a new Notice to Appear 
(see section 239 of the Act, 8 U.S.C. 1229) to place the individual in 
proceedings again. For petitioners who are subject to an order of 
removal, deportation, or exclusion and whose order has been stayed, 
USCIS' denial of the petition will result in the stay being lifted 
automatically as of the date the denial becomes administratively final.
    (6) Petitioners granted U interim relief. Petitioners who were 
granted U interim relief as defined in paragraph (a)(13) of this section 
and whose Form I-918 is approved will be accorded U-1 nonimmigrant 
status as of the date that a request for U interim relief was initially 
approved.
    (7) Employment authorization. An alien granted U-1 nonimmigrant 
status is employment authorized incident to status. USCIS automatically 
will issue an initial Employment Authorization Document (EAD) to such 
aliens who are in the United States. For principal aliens who applied 
from outside the United States, the initial EAD will not be issued until 
the petitioner has been admitted to the United States in U nonimmigrant 
status. After admission, the alien may receive an initial EAD, upon 
request and submission of a copy of his or her Form I-94, ``Arrival-
Departure Record,'' to the USCIS office having jurisdiction over the 
adjudication of petitions for U nonimmigrant status. No additional fee 
is required. An alien granted U-1 nonimmigrant status seeking to renew 
his or her expiring EAD or replace an EAD that was lost, stolen, or 
destroyed, must file Form I-765 in accordance with the instructions to 
the form.
    (d) Annual cap on U-1 nonimmigrant status--(1) General. In 
accordance with section 214(p)(2) of the Act, 8 U.S.C. 1184(p)(2), the 
total number of aliens who may be issued a U-1 nonimmigrant visa or 
granted U-1 nonimmigrant status may not exceed 10,000 in any fiscal 
year.
    (2) Waiting list. All eligible petitioners who, due solely to the 
cap, are not granted U-1 nonimmigrant status must be placed on a waiting 
list and receive written notice of such placement. Priority on the 
waiting list will be determined by the date the petition was filed with 
the oldest petitions receiving the highest priority. In the next fiscal 
year, USCIS will issue a number to each petition on the waiting list, in 
the order of highest priority, providing the petitioner remains 
admissible and eligible for U nonimmigrant status. After U-1 
nonimmigrant status has been issued to qualifying petitioners on the 
waiting list, any remaining U-1 nonimmigrant numbers for that fiscal 
year will be issued to new qualifying petitioners in the order that the 
petitions were properly filed. USCIS will grant deferred action or 
parole to U-1 petitioners and qualifying family members while the U-1 
petitioners are on the waiting list. USCIS, in its discretion, may 
authorize employment for such petitioners and qualifying family members.
    (3) Unlawful presence. During the time a petitioner for U 
nonimmigrant status who was granted deferred action or parole is on the 
waiting list, no accrual of unlawful presence under section 212(a)(9)(B) 
of the INA, 8 U.S.C. 1182(a)(9)(B), will result. However, a petitioner 
may be removed from the waiting list, and the deferred action or parole 
may be terminated at the discretion of USCIS.
    (e) Restrictions on use and disclosure of information relating to 
petitioners for U nonimmigrant classification--(1) General. The use or 
disclosure (other than to a sworn officer or employee of DHS, the 
Department of Justice, the Department of State, or a bureau or agency of 
any of those departments, for legitimate department, bureau, or agency 
purposes) of any information relating to the beneficiary of a pending or 
approved petition for U nonimmigrant status is prohibited unless the 
disclosure is made:

[[Page 445]]

    (i) By the Secretary of Homeland Security, at his discretion, in the 
same manner and circumstances as census information may be disclosed by 
the Secretary of Commerce under 13 U.S.C. 8;
    (ii) By the Secretary of Homeland Security, at his discretion, to 
law enforcement officials to be used solely for a legitimate law 
enforcement purpose;
    (iii) In conjunction with judicial review of a determination in a 
manner that protects the confidentiality of such information;
    (iv) After adult petitioners for U nonimmigrant status or U 
nonimmigrant status holders have provided written consent to waive the 
restrictions prohibiting the release of information;
    (v) To Federal, State, and local public and private agencies 
providing benefits, to be used solely in making determinations of 
eligibility for benefits pursuant to 8 U.S.C. 1641(c);
    (vi) After a petition for U nonimmigrant status has been denied in a 
final decision;
    (vii) To the chairmen and ranking members of the Committee on the 
Judiciary of the Senate or the Committee on the Judiciary of the House 
of Representatives, for the exercise of congressional oversight 
authority, provided the disclosure relates to information about a closed 
case and is made in a manner that protects the confidentiality of the 
information and omits personally identifying information (including 
locational information about individuals);
    (viii) With prior written consent from the petitioner or derivative 
family members, to nonprofit, nongovernmental victims' service providers 
for the sole purpose of assisting the victim in obtaining victim 
services from programs with expertise working with immigrant victims; or
    (ix) To federal prosecutors to comply with constitutional 
obligations to provide statements by witnesses and certain other 
documents to defendants in pending federal criminal proceedings.
    (2) Agencies receiving information under this section, whether 
governmental or non-governmental, are bound by the confidentiality 
provisions and other restrictions set out in 8 U.S.C. 1367.
    (3) Officials of the Department of Homeland Security are prohibited 
from making adverse determinations of admissibility or deportability 
based on information obtained solely from the perpetrator of substantial 
physical or mental abuse and the criminal activity.
    (f) Admission of qualifying family members--(1) Eligibility. An 
alien who has petitioned for or has been granted U-1 nonimmigrant status 
(i.e., principal alien) may petition for the admission of a qualifying 
family member in a U-2 (spouse), U-3 (child), U-4 (parent of a U-1 alien 
who is a child under 21 years of age), or U-5 (unmarried sibling under 
the age of 18) derivative status, if accompanying or following to join 
such principal alien. A qualifying family member who committed the 
qualifying criminal activity in a family violence or trafficking context 
which established the principal alien's eligibility for U nonimmigrant 
status shall not be granted U-2, U-3, U-4, or U-5 nonimmigrant status. 
To be eligible for U-2, U-3, U-4, or U-5 nonimmigrant status, it must be 
demonstrated that:
    (i) The alien for whom U-2, U-3, U-4, or U-5 status is being sought 
is a qualifying family member, as defined in paragraph (a)(10) of this 
section; and
    (ii) The qualifying family member is admissible to the United 
States.
    (2) Filing procedures. A petitioner for U-1 nonimmigrant status may 
apply for derivative U nonimmigrant status on behalf of qualifying 
family members by submitting a Form I-918, Supplement A, ``Petition for 
Qualifying Family Member of U-1 Recipient,'' for each family member 
either at the same time the petition for U-1 nonimmigrant status is 
filed, or at a later date. An alien who has been granted U-1 
nonimmigrant status may apply for derivative U nonimmigrant status on 
behalf of qualifying family members by submitting Form I-918, Supplement 
A for each family member. All Forms I-918, Supplement A must be 
accompanied by initial evidence and the required fees specified in the 
instructions to the form. Forms I-918, Supplement A that are not filed 
at the same time as Form I-918 but are filed at a later date must be 
accompanied by a copy of the Form

[[Page 446]]

I-918 that was filed by the principal petitioner or a copy of his or her 
Form I-94 demonstrating proof of U-1 nonimmigrant status, as applicable.
    (i) Qualifying family members in pending immigration proceedings. 
The principal alien of a qualifying family member who is in removal 
proceedings under section 240 of the Act, 8 U.S.C. 1229a, or in 
exclusion or deportation proceedings initiated under former sections 236 
or 242 of the Act, 8 U.S.C. 1226 and 1252 (as in effect prior to April 
1, 1997), and who is seeking U nonimmigrant status, must file a Form I-
918, Supplement A directly with USCIS. ICE counsel may agree to file, at 
the request of the qualifying family member, a joint motion to terminate 
proceedings without prejudice with the immigration judge or Board of 
Immigration Appeals, whichever is appropriate, while the petition for U 
nonimmigrant status is being adjudicated by USCIS.
    (ii) Qualifying family members with final orders of removal, 
deportation, or exclusion. An alien who is the subject of a final order 
of removal, deportation, or exclusion is not precluded from filing a 
petition for U-2, U-3, U-4, or U-5 nonimmigrant status directly with 
USCIS. The filing of a petition for U-2, U-3, U-4, or U-5 nonimmigrant 
status has no effect on ICE's authority to execute a final order, 
although the alien may file a request for a stay of removal pursuant to 
8 CFR 241.6(a) and 8 CFR 1241.6(a). If the alien is in detention pending 
execution of the final order, the time during which a stay is in effect 
will extend the period of detention (under the standards of 8 CFR 241.4) 
reasonably necessary to bring about the alien's removal.
    (3) Initial evidence. Form I-918, Supplement A, must include the 
following initial evidence:
    (i) Evidence demonstrating the relationship of a qualifying family 
member, as provided in paragraph (f)(4) of this section;
    (ii) If the qualifying family member is inadmissible, Form I-192, 
``Application for Advance Permission to Enter as a Non-Immigrant,'' in 
accordance with 8 CFR 212.17.
    (4) Relationship. Except as set forth in paragraphs (f)(4)(i) and 
(ii) of this section, the relationship between the U-1 principal alien 
and the qualifying family member must exist at the time Form I-918 was 
filed, and the relationship must continue to exist at the time Form I-
918, Supplement A is adjudicated, and at the time of the qualifying 
family member's subsequent admission to the United States.
    (i) If the U-1 principal alien proves that he or she has become the 
parent of a child after Form I-918 was filed, the child shall be 
eligible to accompany or follow to join the U-1 principal alien.
    (ii) If the principal alien was under 21 years of age at the time he 
or she filed Form I-918, and filed Form I-918, Supplement A for an 
unmarried sibling under the age of 18, USCIS will continue to consider 
such sibling as a qualifying family member for purposes of U 
nonimmigrant status even if the principal alien is no longer under 21 
years of age at the time of adjudication, and even if the sibling is no 
longer under 18 years of age at the time of adjudication.
    (5) Biometric capture and evidentiary standards. The provisions for 
biometric capture and evidentiary standards in paragraphs (c)(3) and 
(c)(4) of this section also are applicable to petitions for qualifying 
family members.
    (6) Decision. USCIS will issue a written decision approving or 
denying Form I-918, Supplement A and send notice of this decision to the 
U-1 principal petitioner. USCIS will include in a decision approving 
Form I-918 a list of nongovernmental organizations to which the 
qualifying family member can refer regarding his or her options while in 
the United States and available resources. For a qualifying family 
member who is subject to an order of exclusion, deportation, or removal 
issued by the Secretary, the order will be deemed canceled by operation 
of law as of the date of USCIS' approval of Form I-918, Supplement A. A 
qualifying family member who is subject to an order of exclusion, 
deportation, or removal issued by an immigration judge or the Board may 
seek cancellation of such order by filing, with the immigration judge or 
the Board, a motion to reopen and terminate removal proceedings. ICE 
counsel may agree, as a matter of discretion, to join such a

[[Page 447]]

motion to overcome any applicable time and numerical limitations of 8 
CFR 1003.2 and 1003.23.
    (i) Approvals for qualifying family members within the United 
States. When USCIS approves a Form I-918, Supplement A for a qualifying 
family member who is within the United States, it will concurrently 
grant that alien U-2, U-3, U-4, or U-5 nonimmigrant status. USCIS will 
notify the principal of such approval on Form I-797, ``Notice of 
Action,'' with Form I-94, ``Arrival-Departure Record,'' indicating U-2, 
U-3, U-4, or U-5 nonimmigrant status. Aliens who were previously granted 
U interim relief as defined in paragraph (a)(13) of this section will be 
accorded U nonimmigrant status as of the date that the request for U 
interim relief was approved. Aliens who are granted U-2, U-3, U-4, or U-
5 nonimmigrant status are not subject to an annual numerical limit. 
USCIS may not approve Form I-918, Supplement A unless it has approved 
the principal alien's Form I-918.
    (ii) Approvals for qualifying family members outside the United 
States. When USCIS approves Form I-918, Supplement A for a qualifying 
family member who is outside the United States, USCIS will notify the 
principal alien of such approval on Form I-797. USCIS will forward the 
approved Form I-918, Supplement A to the Department of State for 
delivery to the U.S. Embassy or Consulate having jurisdiction over the 
area in which the qualifying family member is located, or, for a visa 
exempt alien, to the appropriate port of entry.
    (iii) Denial of the Form I-918, Supplement A. In accordance with 8 
CFR 103.3(a)(1), USCIS will provide written notification of the reasons 
for the denial. The principal alien may appeal the denial of Form I-918, 
Supplement A to the Administrative Appeals Office in accordance with the 
provisions of 8 CFR 103.3. Upon USCIS' final denial of Form I-918, 
Supplement A for a qualifying family member who was in removal 
proceedings that were terminated pursuant to 8 CFR 214.14(f)(2)(i), DHS 
may file a new Notice to Appear (see section 239 of the INA, 8 U.S.C. 
1229) to place the individual in proceedings again. For qualifying 
family members who are subject to an order of removal, deportation, or 
exclusion and whose order has been stayed, USCIS' denial of the petition 
will result in the stay being lifted automatically as of the date the 
denial becomes administratively final.
    (7) Employment authorization. An alien granted U-2, U-3, U-4, or U-5 
nonimmigrant status is employment authorized incident to status. To 
obtain an Employment Authorization Document (EAD), such alien must file 
Form I-765, ``Application for Employment Authorization,'' with the 
appropriate fee or a request for a fee waiver, in accordance with the 
instructions to the form. For qualifying family members within the 
United States, the Form I-765 may be filed concurrently with Form I-918, 
Supplement A, or at any time thereafter. For qualifying family members 
who are outside the United States, Form I-765 only may be filed after 
admission to the United States in U nonimmigrant status.
    (g) Duration of U nonimmigrant status--(1) In general. U 
nonimmigrant status may be approved for a period not to exceed 4 years 
in the aggregate. A qualifying family member granted U-2, U-3, U-4, and 
U-5 nonimmigrant status will be approved for an initial period that does 
not exceed the expiration date of the initial period approved for the 
principal alien.
    (2) Extension of status. (i) Where a U nonimmigrant's approved 
period of stay on Form I-94 is less than 4 years, he or she may file 
Form I-539, ``Application to Extend/Change Nonimmigrant Status,'' to 
request an extension of U nonimmigrant status for an aggregate period 
not to exceed 4 years. USCIS may approve an extension of status for a 
qualifying family member beyond the date when the U-1 nonimmigrant's 
status expires when the qualifying family member is unable to enter the 
United States timely due to delays in consular processing, and an 
extension of status is necessary to ensure that the qualifying family 
member is able to attain at least 3 years in nonimmigrant status for 
purposes of adjusting status under section 245(m) of the Act, 8 U.S.C. 
1255.
    (ii) Extensions of U nonimmigrant status beyond the 4-year period 
are

[[Page 448]]

available upon attestation by the certifying official that the alien's 
presence in the United States continues to be necessary to assist in the 
investigation or prosecution of qualifying criminal activity. In order 
to obtain an extension of U nonimmigrant status based upon such an 
attestation, the alien must file Form I-539 and a newly executed Form I-
918, Supplement B in accordance with the instructions to Form I-539.
    (h) Revocation of approved petitions for U nonimmigrant status--(1) 
Automatic revocation. An approved petition for U-1 nonimmigrant status 
will be revoked automatically if, pursuant to 8 CFR 214.14(d)(1), the 
beneficiary of the approved petition notifies the USCIS office that 
approved the petition that he or she will not apply for admission to the 
United States and, therefore, the petition will not be used.
    (2) Revocation on notice. (i) USCIS may revoke an approved petition 
for U nonimmigrant status following a notice of intent to revoke. USCIS 
may revoke an approved petition for U nonimmigrant status based on one 
or more of the following reasons:
    (A) The certifying official withdraws the U nonimmigrant status 
certification referred to in 8 CFR 214.14(c)(2)(i) or disavows the 
contents in writing;
    (B) Approval of the petition was in error;
    (C) Where there was fraud in the petition;
    (D) In the case of a U-2, U-3, U-4, or U-5 nonimmigrant, the 
relationship to the principal petitioner has terminated; or
    (E) In the case of a U-2, U-3, U-4, or U-5 nonimmigrant, the 
principal U-1's nonimmigrant status is revoked.
    (ii) The notice of intent to revoke must be in writing and contain a 
statement of the grounds for the revocation and the time period allowed 
for the U nonimmigrant's rebuttal. The alien may submit evidence in 
rebuttal within 30 days of the date of the notice. USCIS shall consider 
all relevant evidence presented in deciding whether to revoke the 
approved petition for U nonimmigrant status. The determination of what 
is relevant evidence and the weight to be given to that evidence will be 
within the sole discretion of USCIS. If USCIS revokes approval of a 
petition and thereby terminates U nonimmigrant status, USCIS will 
provide the alien with a written notice of revocation that explains the 
specific reasons for the revocation.
    (3) Appeal of a revocation of approval. A revocation on notice may 
be appealed to the Administrative Appeals Office in accordance with 8 
CFR 103.3 within 30 days after the date of the notice of revocation. 
Automatic revocations may not be appealed.
    (4) Effects of revocation of approval. Revocation of a principal 
alien's approved Form I-918 will result in termination of status for the 
principal alien, as well as in the denial of any pending Form I-918, 
Supplement A filed for qualifying family members seeking U-2, U-3, U-4, 
or U-5 nonimmigrant status. Revocation of a qualifying family member's 
approved Form I-918, Supplement A will result in termination of status 
for the qualifying family member. Revocation of an approved Form I-918 
or Form I-918, Supplement A also revokes any waiver of inadmissibility 
granted in conjunction with such petition.
    (i) Removal proceedings. Nothing in this section prohibits USCIS 
from instituting removal proceedings under section 240 of the Act, 8 
U.S.C. 1229(a), for conduct committed after admission, for conduct or a 
condition that was not disclosed to USCIS prior to the granting of U 
nonimmigrant status, for misrepresentations of material facts in Form I-
918 or Form I-918, Supplement A and supporting documentation, or after 
revocation of U nonimmigrant status.

[72 FR 53036, Sept. 17, 2007, as amended at 72 FR 54813, Sept. 27, 2007]



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

[[Page 449]]

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 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 petition.'' 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 USCIS under 
section 204 of the Act on or before December 21, 2000, and has not been 
adjudicated. In addition, the petition must have been properly filed 
according to 8 CFR 103.2(a), and if, subsequent to filing, USCIS returns 
the petition to the applicant for any reason or makes a request for 
evidence or issues a notice of intent to deny under 8 CFR 103.2(b), the 
petitioner must comply with the request within the time period set by 
USCIS. If USCIS denies a petition but the petitioner appeals that 
decision, the petition will be considered pending until the 
administrative appeal is decided by USCIS. A petition rejected by USCIS 
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

[[Page 450]]

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 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

[[Page 451]]

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 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

[[Page 452]]

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, as amended at 72 FR 19107, Apr. 17, 2007]



PART 215_CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES--Table of 

Contents




Sec.
215.1 Definitions.
215.2 Authority of departure-control officer to prevent alien's 
          departure from the United States.
215.3 Alien whose departure is deemed prejudicial to the interests of 
          the United States.
215.4 Procedure in case of alien prevented from departing from the 
          United States.
215.5 Hearing procedure before special inquiry officer.
215.6 Departure from the Canal Zone, the Trust Territory of the Pacific 
          Islands, or outlying possessions of the United States.
215.7 Instructions from the Administrator required in certain cases.
215.8 Requirements for biometric identifiers from aliens on departure 
          from the United States.
215.9 Temporary Worker Visa Exit Program.

    Authority: 8 U.S.C. 1104; 1184; 1185 (pursuant to Executive Order 
13323, published January 2, 2004), 1365a note, 1379, 1731-32.

    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.

[[Page 453]]

    (j) The term port of departure means a port in the continental 
United States, Alaska, Guam, Hawaii, Puerto Rico or the Virgin Islands, 
designated as a port of entry by the Attorney General or by the 
Commissioner, or in exceptional circumstances such other place as the 
departure-control officer may, in his discretion, designate in an 
individual case, or a port in American Samoa, Swains Island, the Canal 
Zone, or the Trust Territory of the Pacific Islands, designated as a 
port of entry by the chief executive officer thereof.
    (k) The term special inquiry officer shall have the meaning ascribed 
thereto in section 101(b)(4) of the Immigration and Nationality Act.



Sec. 215.2  Authority of departure-control officer to prevent alien's 

departure from the United States.

    (a) No alien shall depart, or attempt to depart, from the United 
States if his departure would be prejudicial to the interests of the 
United States under the provisions of Sec. 215.3. Any departure-control 
officer who knows or has reason to believe that the case of an alien in 
the United States comes within the provisions of Sec. 215.3 shall 
temporarily prevent the departure of such alien from the United States 
and shall serve him with a written temporary order directing him not to 
depart, or attempt to depart, from the United States until notified of 
the revocation of the order.
    (b) The written order temporarily preventing an alien, other than an 
enemy alien, from departing from the United States shall become final 15 
days after the date of service thereof upon the alien, unless prior 
thereto the alien requests a hearing as hereinafter provided. At such 
time as the alien is served with an order temporarily preventing his 
departure from the United States, he shall be notified in writing 
concerning the provisions of this paragraph, and shall be advised of his 
right to request a hearing if entitled thereto under Sec. 215.4. In the 
case of an enemy alien, the written order preventing departure shall 
become final on the date of its service upon the alien.
    (c) Any alien who seeks to depart from the United States may be 
required, in the discretion of the departure-control officer, to be 
examined under oath and to submit for official inspection all documents, 
articles, and other property in his possession which are being removed 
from the United States upon, or in connection with, the alien's 
departure. The departure-control officer may permit certain other 
persons, including officials of the Department of State and 
interpreters, to participate in such examination or inspection and may 
exclude from presence at such examination or inspection any person whose 
presence would not further the objectives of such examination or 
inspection. The departure-control officer shall temporarily prevent the 
departure of any alien who refuses to submit to such examination or 
inspection, and may, if necessary to the enforcement of this 
requirement, take possession of the alien's passport or other travel 
document.



Sec. 215.3  Alien whose departure is deemed prejudicial to the interests of 

the United States.

    The departure from the United States of any alien within one or more 
of the following categories shall be deemed prejudicial to the interests 
of the United States.
    (a) Any alien who is in possession of, and who is believed likely to 
disclose to unauthorized persons, information concerning the plans, 
preparation, equipment, or establishments for the national defense and 
security of the United States.
    (b) Any alien who seeks to depart from the United States to engage 
in, or who is likely to engage in, activities of any kind designed to 
obstruct, impede, retard, delay or counteract the effectiveness of the 
national defense of the United States or the measures adopted by the 
United States or the United Nations for the defense of any other 
country.
    (c) Any alien who seeks to depart from the United States to engage 
in, or who is likely to engage in, activities which would obstruct, 
impede, retard, delay, or counteract the effectiveness of any plans made 
or action taken by any country cooperating with the United States in 
measures adopted to promote the peace, defense, or safety of the United 
States or such other country.

[[Page 454]]

    (d) Any alien who seeks to depart from the United States for the 
purpose of organizing, directing, or participating in any rebellion, 
insurrection, or violent uprising in or against the United States or a 
country allied with the United States, or of waging war against the 
United States or its allies, or of destroying, or depriving the United 
States of sources of supplies or materials vital to the national defense 
of the United States, or to the effectiveness of the measures adopted by 
the United States for its defense, or for the defense of any other 
country allied with the United States.
    (e) Any alien who is subject to registration for training and 
service in the Armed Forces of the United States and who fails to 
present a Registration Certificate (SSS Form No. 2) showing that he has 
complied with his obligation to register under the Universal Military 
Training and Service Act, as amended.
    (f) Any alien who is a fugitive from justice on account of an 
offense punishable in the United States.
    (g) Any alien who is needed in the United States as a witness in, or 
as a party to, any criminal case under investigation or pending in a 
court in the United States: Provided, That any alien who is a witness 
in, or a party to, any criminal case pending in any criminal court 
proceeding may be permitted to depart from the United States with the 
consent of the appropriate prosecuting authority, unless such alien is 
otherwise prohibited from departing under the provisions of this part.
    (h) Any alien who is needed in the United States in connection with 
any investigation or proceeding being, or soon to be, conducted by any 
official executive, legislative, or judicial agency in the United States 
or by any governmental committee, board, bureau, commission, or body in 
the United States, whether national, state, or local.
    (i) Any alien whose technical or scientific training and knowledge 
might be utilized by an enemy or a potential enemy of the United States 
to undermine and defeat the military and defensive operations of the 
United States or of any nation cooperating with the United States in the 
interests of collective security.
    (j) Any alien, where doubt exists whether such alien is departing or 
seeking to depart from the United States voluntarily except an alien who 
is departing or seeking to depart subject to an order issued in 
extradition, exclusion, or deportation proceedings.
    (k) Any alien whose case does not fall within any of the categories 
described in paragraphs (a) to (j), inclusive, of this section, but 
which involves circumstances of a similar character rendering the 
alien's departure prejudicial to the interests of the United States.



Sec. 215.4  Procedure in case of alien prevented from departing from the 

United States.

    (a) Any alien, other than an enemy alien, whose departure has been 
temporarily prevented under the provisions of Sec. 215.2, may, within 
15 days of the service upon him of the written order temporarily 
preventing his departure, request a hearing before a special inquiry 
officer. The alien's request for a hearing shall be made in writing and 
shall be addressed to the district director having administrative 
jurisdiction over the alien's place of residence. If the alien's request 
for a hearing is timely made, the district director shall schedule a 
hearing before a special inquiry officer, and notice of such hearing 
shall be given to the alien. The notice of hearing shall, as 
specifically as security considerations permit, inform the alien of the 
nature of the case against him, shall fix the time and place of the 
hearing, and shall inform the alien of his right to be represented, at 
no expense to the Government, by counsel of his own choosing.
    (b) Every alien for whom a hearing has been scheduled under 
paragraph (a) of this section shall be entitled: (1) To appear in person 
before the special inquiry officer, (2) to be represented by counsel of 
his own choice, (3) to have the opportunity to be heard and to present 
evidence, (4) to cross-examine the witnesses who appear at the hearing, 
except that if, in the course of the examination, it appears that 
further examination may divulge information of a confidential or 
security nature, the special inquiry officer may, in his discretion, 
preclude further examination of the witness with respect to such

[[Page 455]]

matters, (5) to examine any evidence in possession of the Government 
which is to be considered in the disposition of the case, provided that 
such evidence is not of a confidential or security nature the disclosure 
of which would be prejudicial to the interests of the United States, (6) 
to have the time and opportunity to produce evidence and witnesses on 
his own behalf, and (7) to reasonable continuances, upon request, for 
good cause shown.
    (c) Any special inquiry officer who is assigned to conduct the 
hearing provided for in this section shall have the authority to: (1) 
Administer oaths and affirmations, (2) present and receive evidence, (3) 
interrogate, examine, and cross examine under oath or affirmation both 
the alien and witnesses, (4) rule upon all objections to the 
introduction of evidence or motions made during the course of the 
hearing, (5) take or cause depositions to be taken, (6) issue subpoenas, 
and (7) take any further action consistent with applicable provisions of 
law, Executive orders, proclamations, and regulations.



Sec. 215.5  Hearing procedure before special inquiry officer.

    (a) The hearing before the special inquiry officer shall be 
conducted in accordance with the following procedure:
    (1) The special inquiry officer shall advise the alien of the rights 
and privileges accorded him under the provisions of Sec. 215.4.
    (2) The special inquiry officer shall enter of record: (i) A copy of 
the order served upon the alien temporarily preventing his departure 
from the United States, and (ii) a copy of the notice of hearing 
furnished the alien.
    (3) The alien shall be interrogated by the special inquiry officer 
as to the matters considered pertinent to the proceeding, with 
opportunity reserved to the alien to testify thereafter in his own 
behalf, if he so chooses.
    (4) The special inquiry officer shall present on behalf of the 
Government such evidence, including the testimony of witnesses and the 
certificates or written statements of Government officials or other 
persons, as may be necessary and available. In the event such 
certificates or statements are received in evidence, the alien may 
request and, in the discretion of the special inquiry officer, be given 
an opportunity to interrogate such officials or persons, by deposition 
or otherwise, at a time and place and in a manner fixed by the special 
inquiry officer: Provided, That when in the judgment of the special 
inquiry officer any evidence relative to the disposition of the case is 
of a confidential or security nature the disclosure of which would be 
prejudicial to the interests of the United States, such evidence shall 
not be presented at the hearing but shall be taken into consideration in 
arriving at a decision in the case.
    (5) The alien may present such additional evidence, including the 
testimony of witnesses, as is pertinent and available.
    (b) A complete verbatim transcript of the hearing, except statements 
made off the record shall be recorded. The alien shall be entitled, upon 
request, to the loan of a copy of the transcript, without cost, subject 
to reasonable conditions governing its use.
    (c) Following the completion of the hearing, the special inquiry 
officer shall make and render a recommended decision in the case, which 
shall be governed by and based upon the evidence presented at the 
hearing and any evidence of a confidential or security nature which the 
Government may have in its possession. The decision of the special 
inquiry officer shall recommend: (1) That the temporary order preventing 
the departure of the alien from the United States be made final, or (2) 
that the temporary order preventing the departure of the alien from the 
United States be revoked. This recommended decision of the special 
inquiry officer shall be made in writing and shall set forth the 
officer's reasons for such decision. The alien concerned shall at his 
request be furnished a copy of the recommended decision of the special 
inquiry officer, and shall be allowed a reasonable time, not to exceed 
10 days, in which to submit representations with respect thereto in 
writing.
    (d) As soon as practicable after the completion of the hearing and 
the rendering of a decision by the special inquiry officer, the district 
director shall forward the entire record of the case, including the 
recommended decision of

[[Page 456]]

the special inquiry officer and any written representations submitted by 
the alien, to the regional commissioner having jurisdiction over his 
district. After reviewing the record, the regional commissioner shall 
render a decision in the case, which shall be based upon the evidence in 
the record and on any evidence or information of a confidential or 
security nature which he deems pertinent. Whenever any decision is based 
in whole or in part on confidential or security information not included 
in the record, the decision shall state that such information was 
considered. A copy of the regional commissioner's decision shall be 
furnished the alien, or his attorney or representative. No 
administrative appeal shall lie from the regional commissioner's 
decision.
    (e) Notwithstanding any other provision of this part, the 
Administrator of the Bureau of Security and Consular Affairs referred to 
in section 104(b) of the Immigration and Nationality Act, or such other 
officers of the Department of State as he may designate, after 
consultation with the Commissioner, or such other officers of the 
Immigration and Naturalization Service as he may designate, may at any 
time permit the departure of an individual alien or of a group of aliens 
from the United States if he determines that such action would be in the 
national interest. If the Administrator specifically requests the 
Commissioner to prevent the departure of a particular alien or of a 
group of aliens, the Commissioner shall not permit the departure of such 
alien or aliens until he has consulted with the Administrator.
    (f) In any case arising under 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

[[Page 457]]

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.



Sec. 215.8  Requirements for biometric identifiers from aliens on departure 

from the United States.

    (a)(1) The Secretary of Homeland Security may establish pilot 
programs at land border ports-of-entry, and at up to fifteen air or sea 
ports-of-entry, designated through notice in the Federal Register, 
through which the Secretary or his delegate may require an alien 
admitted pursuant to a nonimmigrant visa, a Form DSP-150, B-1/B-2 Visa 
and Border Crossing Card, or section 217 of the Act, who departs the 
United States from a designated port-of-entry, to provide fingerprints, 
photograph(s) or other specified biometric identifiers, documentation of 
his or her immigration status in the United States, and such other 
evidence as may be requested to determine the alien's identity and 
whether he or she has properly maintained his or her status while in the 
United States.
    (2) The requirements of paragraph (a)(1) shall not apply to:
    (i) Aliens younger than 14 or older than 79 on date of departure;
    (ii) Aliens admitted on A-1, A-2, C-3 (except for attendants, 
servants, or personal employees of accredited officials), G-1, G-2, G-3, 
G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 visas, and 
certain Taiwan officials who hold E-1 visas and members of their 
immediate families who hold E-1 visas who are maintaining such status at 
time of departure, unless the Secretary of State and the Secretary of 
Homeland Security jointly determine that a class of such aliens should 
be subject to the requirements of paragraph (a)(1);
    (iii) Classes of aliens to whom the Secretary of Homeland Security 
and the Secretary of State jointly determine it shall not apply; or
    (iv) An individual alien to whom the Secretary of Homeland Security, 
the Secretary of State, or the Director of Central Intelligence 
determines it shall not apply.
    (b) An alien who is required to provide biometric identifiers at 
departure pursuant to paragraph (a)(1) and who fails to comply with the 
departure requirements may be found in violation of the terms of his or 
her admission, parole, or other immigration status. In addition, failure 
of a covered alien to comply with the departure requirements could be a 
factor in support of a determination that the alien is ineligible to 
receive a future visa or other immigration status documentation, or to 
be admitted to the United States. In making this determination, the 
officer will consider the totality of the circumstances, including, but 
not limited to, all positive and negative factors related to the alien's 
ability to comply with the departure procedures.
    (c) A covered alien who leaves the United States without complying 
with the departure requirements in this section may be found to have 
overstayed the period of his or her last admission where the available 
evidence clearly indicates that the alien did not depart the United 
States within the time period authorized at his or her last admission or 
extension of stay. A determination that the alien previously overstayed 
the terms of his admission may result in a finding of inadmissibility 
for accruing prior unlawful presence in the United States under section 
212(a)(9) of the Immigration and Nationality Act or that the alien is 
otherwise ineligible for a visa or other authorization to reenter the 
United States, provided that all other requirements of section 212(a)(9) 
have been met. A determination that an alien who was admitted on the 
basis of a nonimmigrant visa has remained in the United States beyond 
his or her authorized period of stay may result in such visa being 
deemed void pursuant to section 222(g) of the Act (8 U.S.C.

[[Page 458]]

1202(g)) where all other requirements of that section are also met.

[69 FR 480, Jan. 5, 2004, as amended at 69 FR 53333, Aug. 31, 2004; 69 
FR 58037, Sept. 29, 2004]

    Effective Date Note: At 73 FR 77491, Dec. 19, 2008, Sec. 215.8 was 
amended by revising paragraph (a)(1), effective Jan. 18, 2009. For the 
convenience of the user, the revised text is set forth as follows:



Sec. 215.8  Requirements for biometric identifiers from aliens on 

departure from the United States.

    (a)(1) The Secretary of Homeland Security, or his designee, may 
establish pilot programs at land border ports of entry, and at up to 
fifteen air or sea ports of entry, designated through notice in the 
Federal Register, through which the Secretary or his delegate may 
require an alien admitted to or paroled into the United States, other 
than aliens exempted under paragraph (a)(2) of this section or Canadian 
citizens under section 101(a)(15)(B) of the Act who were not otherwise 
required to present a visa or have been issued Form I-94 or Form I-95 
upon arrival at the United States, who departs the United States from a 
designated port of entry, to provide fingerprints, photograph(s) or 
other specified biometric identifiers, documentation of his or her 
immigration status in the United States, and such other evidence as may 
be requested to determine the alien's identity and whether he or she has 
properly maintained his or her status while in the United States.

                                * * * * *



Sec. 215.9  Temporary Worker Visa Exit Program.

    An alien admitted on an H-2A visa at a port of entry participating 
in the Temporary Worker Visa Exit Program must also depart at the end of 
his or her authorized period of stay through a port of entry 
participating in the program and present designated biographic and/or 
biometric information upon departure. U.S. Customs and Border Protection 
will establish a pilot program by publishing a Notice in the Federal 
Register designating which H-2A workers must participate in the 
Temporary Worker Visa Exit Program, which ports of entry are 
participating in the program, which biographical and/or biometric 
information would be required, and the format for submission of that 
information by the departing designated temporary workers.

[73 FR 76914, Dec. 18, 2008]

    Effective Date Note: At 73 FR 76914, Dec. 18, 2008, Sec. 215.9 was 
added, effective Jan. 17, 2009.

    Effective Date Note: At 73 FR 78130, Dec. 19, 2008, Sec. 215.9 was 
revised, effective Jan. 18, 2009. For the convenience of the user, the 
revised text is set forth as follows:



Sec. 215.9  Temporary Worker Visa Exit Program.

    An alien admitted on certain temporary worker visas at a port of 
entry participating in the Temporary Worker Visa Exit Program must also 
depart at the end of his or her authorized period of stay through a port 
of entry participating in the program and must present designated 
biographic and/or biometric information upon departure. U.S. Customs and 
Border Protection will publish a Notice in the Federal Register 
designating which temporary workers must participate in the Temporary 
Worker Visa Exit Program, which ports of entry are participating in the 
program, which biographical and/or biometric information would be 
required, and the format for submission of that information by the 
departing designated temporary workers.



PART 216_CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS--Table of 

Contents




Sec.
216.1 Definition of conditional permanent resident.
216.2 Notification requirements.
216.3 Termination of conditional resident status.
216.4 Joint petition to remove conditional basis of lawful permanent 
          resident status for alien spouse.
216.5 Waiver of requirement to file joint petition to remove conditions 
          by alien spouse.
216.6 Petition by entrepreneur to remove conditional basis of lawful 
          permanent resident status.

    Authority: 8 U.S.C. 1101, 1103, 1154, 1184, 1186a, 1186b, and 8 CFR 
part 2.

    Source: 53 FR 30018, Aug. 10, 1988, unless otherwise noted.



Sec. 216.1  Definition of conditional permanent resident.

    A conditional permanent resident is an alien who has been lawfully 
admitted for permanent residence within the meaning of section 
101(a)(20) of the Act, except that a conditional permanent resident is 
also subject to the conditions and responsibilities set forth in

[[Page 459]]

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 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

[[Page 460]]

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 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

[[Page 461]]

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, 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.

[[Page 462]]

    (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 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]

[[Page 463]]



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
    (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

[[Page 464]]

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 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]

[[Page 465]]



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.
    (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

[[Page 466]]

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 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

[[Page 467]]

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.
    (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

[[Page 468]]

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 Electronic System for Travel Authorization.
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, Czech Republic, Denmark, Estonia, Finland, France, Germany, 
Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, 
Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, 
Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovak 
Republic, 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 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

[[Page 469]]

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; 73 FR 67712, Nov. 17, 2008; 73 FR 79597, Dec. 30, 2008]



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 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

[[Page 470]]

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  Electronic System for Travel Authorization.

    (a) Travel authorization required. Each nonimmigrant alien intending 
to travel by air or sea to the United States under the Visa Waiver 
Program (VWP) must, within the time specified in paragraph (b) of this 
section, receive a travel authorization, which is a positive 
determination of eligibility to travel to the United States under the 
VWP via the Electronic System for Travel Authorization (ESTA), from CBP. 
In order to receive a travel authorization, each nonimmigrant alien 
intending to travel to the United States by air or sea under the VWP 
must provide the data elements set forth in paragraph (c) of this 
section to CBP, in English, in the manner specified herein.
    (b) Time. Each alien falling within the provisions of paragraph (a) 
of this section must receive a travel authorization prior to embarking 
on a carrier for travel to the United States.
    (c) Required elements. ESTA will collect such information as the 
Secretary deems necessary to issue a travel authorization, as reflected 
by the I-94W Nonimmigrant Alien Arrival/Departure Form (I-94W).
    (d) Duration. (1) General Rule. A travel authorization issued under 
ESTA will be valid for a period of two years from the date of issuance, 
unless the passport of the authorized alien will expire in less than two 
years, in which case the authorization will be valid until the date of 
expiration of the passport.
    (2) Exception. For travelers from countries which have not entered 
into agreements with the United States whereby their passports are 
recognized as valid for the return of the bearer to the country of the 
foreign-issuing authority for a period of six months beyond the 
expiration date specified in the passport, a travel authorization issued 
under ESTA is not valid beyond the six months prior to the expiration 
date of the passport. Travelers from these countries whose passports 
will expire in six months or less will not receive a travel 
authorization.
    (e) New travel authorization required. A new travel authorization is 
required if any of the following occur:
    (1) The alien is issued a new passport;
    (2) The alien changes his or her name;
    (3) The alien changes his or her gender;
    (4) The alien's country of citizenship changes; or
    (5) The circumstances underlying the alien's previous responses to 
any of the ESTA application questions requiring a

[[Page 471]]

``yes'' or ``no'' response (eligibility questions) have changed.
    (f) Limitations. (1) Current authorization period. An authorization 
under ESTA is a positive determination that an alien is eligible, and 
grants the alien permission, to travel to the United States under the 
VWP and to apply for admission under the VWP during the period of time 
the travel authorization is valid. An authorization under ESTA is not a 
determination that the alien is admissible to the United States. A 
determination of admissibility is made only after an applicant for 
admission is inspected by a CBP Officer at a U.S. port of entry.
    (2) Not a determination of visa eligibility. A determination under 
ESTA that an alien is not eligible to travel to the United States under 
the VWP is not a determination that the alien is ineligible for a visa 
to travel to the United States and does not preclude the alien from 
applying for a visa before a United States consular officer.
    (3) Judicial review. Notwithstanding any other provision of law, a 
determination under ESTA is not subject to judicial review pursuant to 8 
U.S.C. 217(h)(3)(C)(iv).
    (4) Revocation. A determination under ESTA that an alien is eligible 
to travel to the United States to apply for admission under the VWP may 
be revoked at the discretion of the Secretary.
    (g) Compliance date. Once ESTA is implemented as a mandatory 
program, 60 days following publication by the Secretary of a notice in 
the Federal Register, citizens and eligible nationals of countries that 
participate in the VWP planning to travel to the United States under the 
VWP must comply with the requirements of this section. As new countries 
are added to the VWP, citizens and eligible nationals of those countries 
will be required to obtain a travel authorization via ESTA prior to 
traveling to the United States under the VWP.

[73 FR 32452, June 9, 2008]



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) An alien who applies for admission under the provisions of 
section 217 of the Act after arriving via sea or air at a port of entry 
will not be admitted under the Visa Waiver Program unless an appropriate 
official of the carrier transporting the alien electronically 
transmitted to Customs and Border Protection (CBP) passenger arrival 
manifest data relative to that alien passenger in accordance with 19 CFR 
4.7b or 19 CFR 122.49a. Upon departure from the United States by sea or 
air of an alien admitted under the Visa Waiver Program, an appropriate 
official of the transporting carrier must electronically transmit to CBP 
departure manifest data relative to that alien passenger in accordance 
with 19 CFR 4.64 and 19 CFR 122.75a.
    (b) If a carrier fails to submit the required electronic arrival or 
departure manifests specified in paragraph (a) of this section, CBP will 
evaluate the carrier's compliance with immigration requirements as a 
whole. CBP will inform the carrier of any noncompliance and then may 
revoke any contract agreements between CBP and the carrier. The carrier 
may also be subject to fines for failure to comply with manifest 
requirements or other statutory provisions. CBP will also review each 
Visa Waiver Program applicant who applies for admission and, on a case-
by-case

[[Page 472]]

basis, may authorize a waiver under current CBP policy and guidelines or 
deny the applicant admission into the United States.

[70 FR 17848, Apr. 7, 2005]



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 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

[[Page 473]]

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
    (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.

[[Page 474]]

    (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]



PART 231_ARRIVAL AND DEPARTURE MANIFESTS--Table of Contents




Sec.
231.1 Electronic manifest and I-94 requirement for passengers and crew 
          onboard arriving vessels and aircraft.
231.2 Electronic manifest and I-94 requirement for passengers and crew 
          onboard departing vessels and aircraft.
231.3 Exemptions for private vessels and aircraft.

    Authority: 8 U.S.C. 1101, 1103, 1182, 1221, 1228, 1229; 8 CFR part 
2.



Sec. 231.1  Electronic manifest and I-94 requirement for passengers and crew 

onboard arriving vessels and aircraft.

    (a) Electronic submission of manifests. Provisions setting forth 
requirements applicable to commercial carriers regarding the electronic 
transmission of arrival manifests covering passengers and crew members 
under section 231 of the Act are set forth in 19 CFR 4.7b (passengers 
and crew members onboard vessels) and in 19 CFR 122.49a (passengers 
onboard aircraft) and 122.49b (crew members onboard aircraft).
    (b) Submission of Form I-94--(1) General requirement. In addition to 
the electronic manifest transmission requirement specified in paragraph 
(a) of this section, and subject to the exception of paragraph (2) of 
this paragraph (b), the master or commanding officer, or authorized 
agent, owner or consignee, of each commercial vessel or aircraft 
arriving in the United States from any place outside the United States 
must present to a Customs and Border Protection (CBP) officer at the 
port of entry a properly completed Arrival/Departure Record, Form I-94, 
for each arriving passenger.
    (2) Exceptions. The Form I-94 requirement of paragraph (1) of this 
paragraph (b) does not apply to United States citizens, lawful permanent 
residents of the United States, immigrants to the United States, or 
passengers in transit through the United States; nor does it apply to 
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.

[[Page 475]]

    (c) Progressive clearance. Inspection of arriving passengers may be 
deferred at the request of the carrier to an onward port of debarkation. 
However, verification of transmission of the electronic manifest 
referred to in paragraph (a) of this section must occur at the first 
port of arrival. Authorization for this progressive clearance may be 
granted by the Director, Field Operations, at the first port of arrival. 
When progressive clearance is requested, the carrier must present the 
Form I-92 referred to in paragraph (d) of this section 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 will be noted and returned 
to the carrier for presentation at the onward port of debarkation.
    (d) Aircraft/Vessel Report. A properly completed Aircraft/Vessel 
Report, Form I-92, must be completed for each arriving aircraft and 
vessel that is transporting passengers. Submission of the Form I-92 to 
the CBP officer must be accomplished on the day of arrival.

[70 FR 17849, Apr. 7, 2005]



Sec. 231.2  Electronic manifest and I-94 requirement for passengers and crew 

onboard departing vessels and aircraft.

    (a) Electronic submission of manifests. Provisions setting forth 
requirements applicable to commercial carriers regarding the electronic 
transmission of departure manifests covering passengers and crew members 
under section 231 of the Act are set forth in 19 CFR 4.64 (passengers 
and crew members onboard vessels) and in 19 CFR 122.75a (passengers 
onboard aircraft) and 122.75b (crew members onboard aircraft).
    (b) Submission of Form I-94--(1) General requirement. In addition to 
the electronic manifest transmission requirement specified in paragraph 
(a) of this section, and subject to the exception of paragraph (2) of 
this paragraph (b), the master or commanding officer, or authorized 
agent, owner, or consignee, of each commercial vessel or aircraft 
departing from the United States to any place outside the United States 
must present a properly completed departure portion of an Arrival/
Departure Record, Form I-94, to the Customs and Border Protection (CBP) 
officer at the port of departure for each person on board. Whenever 
possible, the departure Form I-94 presented must be the same form given 
to the alien at the time of arrival in the United States. The carrier 
must endorse the I-94 with the departure information on the reverse of 
the form. Submission of the I-94 to the CBP officer must be accomplished 
within 48 hours of the departure, exclusive of Saturdays, Sundays, and 
legal holidays. Failure to submit the departure I-94 within this period 
may be regarded as a failure to comply with section 231(g) of the Act, 
unless prior authorization for delayed delivery is obtained from CBP. A 
non-immigrant alien departing on an aircraft proceeding directly to 
Canada on a flight terminating in that country must surrender any Form 
I-94 in his/her possession to the airline agent at the port of 
departure.
    (2) Exceptions. The form I-94 requirement of paragraph (1) of this 
paragraph (b) does not apply to United States citizens, lawful permanent 
residents of the United States, or passengers in transit through the 
United States; nor does it apply to a vessel or aircraft departing on a 
trip directly for and terminating in Canada or departing from the United 
States Virgin Islands directly to the British Virgin Islands on a trip 
terminating there.
    (c) Aircraft/Vessel Report. A properly completed Aircraft/Vessel 
Report, Form I-92, must be completed for each departing aircraft and 
vessel that is transporting passengers. Submission of the Form I-92 to 
the CBP officer must be accomplished on the day of departure.

[70 FR 17849, Apr. 7, 2005]



Sec. 231.3  Exemptions for private vessels and aircraft.

    The provision of this part relating to the presentation of arrival 
and departure manifests shall not apply to a private vessel or private 
aircraft. Private aircraft as defined in 19 CFR 122.1(h) are subject to 
the arrival and departure manifest presentation requirements set forth 
in 19 CFR 122.22.

[73 FR 68309, Nov. 18, 2008]

[[Page 476]]



PART 232_DETENTION OF ALIENS FOR PHYSICAL AND MENTAL EXAMINATION--Table of 

Contents




Sec.
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 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

[[Page 477]]

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 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]

[[Page 478]]



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 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

[[Page 479]]

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]



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

[[Page 480]]

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, 1185 (pursuant to 
E.O. 13323, published January 2, 2004), 1201, 1224, 1225, 1226, 1228, 
1365a note, 1379, 1731-32; 8 U.S.C. 1185 note (section 7209 of Pub. L. 
108-458).

    Effective Date Note: At 73 FR 18416, Apr. 3, 2008, the authority 
citation to Part 235 was revised, effective June 1, 2009. For the 
convenience of the user, the revised text is set forth as follows:
    Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to 
E.O. 13323, published January 2, 2004), 1201, 1224, 1225, 1226, 1228, 
1365a note, 1379, 1731-32; 8 U.S.C. 1185 note (section 7209 of Pub. L. 
108-458, as amended by section 546 of Pub. L. 109-295 and by section 723 
of Pub. L. 110-53).



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) U.S. Merchant Mariners. United States citizens who are holders 
of a Merchant Mariner Document (MMD or Z-card) issued by the U.S. Coast 
Guard may present, in lieu of a passport, an unexpired MMD used in 
conjunction with maritime business when entering the United States.
    (e) NEXUS Air Program Participants. United States citizens, Canadian 
citizens, and permanent residents of Canada who are traveling as 
participants in the NEXUS Air program, may present, in lieu of a 
passport, a valid NEXUS Air membership card when using a NEXUS Air kiosk 
prior to entering the United States.
    (f) Alien applicants for admission. (1) Each alien seeking admission 
at a United States port-of-entry must present whatever documents are 
required and must establish to the satisfaction of the inspecting 
officer that

[[Page 481]]

the alien 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 and this 
chapter, to enter the United States.
    (i) A person claiming to have been lawfully admitted for permanent 
residence must establish that fact to the satisfaction of the inspecting 
officer and must present proper documents in accordance with Sec. 211.1 
of this chapter.
    (ii) The Secretary of Homeland Security or his delegate may require 
nonimmigrant aliens seeking admission to the United States pursuant to a 
nonimmigrant visa, a Form DSP-150, B-1/B-2 Visa and Border Crossing 
Card, or section 217 of the Act, at a port-of-entry designated by notice 
in the Federal Register to provide fingerprints, photograph(s) or other 
specified biometric identifiers during the inspection process. The 
failure of an applicant for admission to comply with any requirement to 
provide biometric identifiers may result in a determination that the 
alien is inadmissible under section 212(a)(7) of the Act, or other 
relevant grounds in section 212 of the Act.
    (iii) Aliens who are required under paragraph (d)(1)(ii) to provide 
biometric identifier(s) at inspection may also be subject to the 
departure requirements for biometrics contained in Sec. 215.8 of this 
chapter, unless otherwise exempted.
    (iv) The requirements of paragraph (d)(1)(ii) shall not apply to:
    (A) Aliens younger than 14 or older than 79 on date of admission;
    (B) Aliens admitted on A-1, A-2, C-3 (except for attendants, 
servants, or personal employees of accredited officials), G-1, G-2, G-3, 
G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 visas, and 
certain Taiwan officials who hold E-1 visas and members of their 
immediate families who hold E-1 visas unless the Secretary of State and 
the Secretary of Homeland Security jointly determine that a class of 
such aliens should be subject to the requirements of paragraph 
(d)(1)(ii);
    (C) Classes of aliens to whom the Secretary of Homeland Security and 
the Secretary of State jointly determine it shall not apply; or
    (D) An individual alien to whom the Secretary of Homeland Security, 
the Secretary of State, or the Director of Central Intelligence 
determines it shall not apply.
    (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.
    (g) 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

[[Page 482]]

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 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.

[[Page 483]]

    (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 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

[[Page 484]]

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.
    (h) Form I-94, Arrival-Departure Record. (1) Unless otherwise 
exempted, each arriving nonimmigrant who is admitted to the United 
States will be issued a Form I-94 as evidence of the terms of admission. 
For land border admission, a Form I-94 will be issued only upon payment 
of a fee, and will 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 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 admitted as a nonimmigrant visitor who is:
    (A) Exempt from a visa and passport pursuant to Sec. 212.1(c)(1)(i) 
of this chapter and is admitted for a period not to exceed 30 days to 
visit within 25 miles of the border; or
    (B) In possession of a valid visa and passport or exempt from a visa 
and passport pursuant to Sec. 212.1(c)(1)(ii) of this chapter; and is 
admitted 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 admitted as a nonimmigrant visitor who is:
    (A) Exempt from a visa and passport pursuant to Sec. 212.1(c)(1)(i) 
of this chapter and is admitted at the Mexican border POEs in the State 
of Arizona at Sasabe, Nogales, Mariposa, Naco or Douglas to visit within 
the State of Arizona within 75 miles of the border for a period not to 
exceed 30 days; or
    (B) In possession of a valid visa and passport or exempt from a visa 
and passport pursuant to Sec. 212.1(c)(1)(ii) of this chapter; and is 
admitted at the Mexican border POEs in the State of Arizona at Sasabe, 
Nogales, Mariposa, Naco or Douglas to visit within the State of Arizona 
within 75 miles of the border for a period not to exceed 72 hours.
    (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; 69 FR 
480, Jan. 5, 2004; 69 FR 50053, Aug. 13, 2004; 69 FR 53333, Aug. 31, 
2004; 69 FR 58037, Sept. 29, 2004; 71 FR 68429, Nov. 24, 2006]

[[Page 485]]



  235.1, Nt.--Table of Contents




    Effective Date Note: At 73 FR 18416, Apr. 3, 2008, Sec. 235.1 was 
amended by revising paragraphs (b), (d) and (e), effective June 1, 2009. 
For the convenience of the user, the revised text is set forth as 
follows:



Sec. 235.1  Scope of examination.

                                * * * * *

    (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 or alternative documentation as required by 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. A U.S. citizen must present a valid 
unexpired U.S. passport book upon entering the United States, unless he 
or she presents one of the following documents:
    (1) Passport Card. A U.S. citizen who possesses a valid unexpired 
United States passport card, as defined in 22 CFR 53.1, may present the 
passport card when entering the United States from contiguous territory 
or adjacent islands at land or sea ports-of-entry.
    (2) Merchant Mariner Document. A U.S. citizen who holds a valid 
Merchant Mariner Document (MMD) issued by the U.S. Coast Guard may 
present an unexpired MMD used in conjunction with official maritime 
business when entering the United States.
    (3) Military Identification. Any U.S. citizen member of the U.S. 
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, may present a military identification card and the 
official orders when entering the United States.
    (4) Trusted Traveler Programs. A U.S. citizen who travels as a 
participant in the NEXUS, FAST, or SENTRI programs may present a valid 
NEXUS program card when using a NEXUS Air kiosk or a valid NEXUS, FAST, 
or SENTRI card at a land or sea port-of-entry prior to entering the 
United States from contiguous territory or adjacent islands. A U.S. 
citizen who enters the United States by pleasure vessel from Canada 
using the remote inspection system may present a NEXUS program card.
    (5) Certain Cruise Ship Passengers. A U.S. citizen traveling 
entirely within the Western Hemisphere is permitted to present a 
government-issued photo identification document in combination with 
either an original or a copy of his or her birth certificate, a Consular 
Report of Birth Abroad issued by the Department of State, or a 
Certificate of Naturalization issued by U.S. Citizenship and Immigration 
Services for entering the United States when the United States citizen:
    (i) Boards a cruise ship at a port or place within the United 
States; and,
    (ii) Returns on the return voyage of the same cruise ship to the 
same United States port or place from where he or she originally 
departed.


On such cruises, U.S. Citizens under the age of 16 may present an 
original or a copy of a birth certificate, a Consular Report of Birth 
Abroad, or a Certificate of Naturalization issued by U.S. Citizenship 
and Immigration Services.

    (6) Native American Holders of an American Indian Card. A Native 
American holder of a Form I-872 American Indian Card arriving from 
contiguous territory or adjacent islands may present the Form I-872 card 
prior to entering the United States at a land or sea port-of-entry.
    (7) Native American Holders of Tribal Documents. A U.S. citizen 
holder of a tribal document issued by a United States qualifying tribal 
entity or group of United States qualifying tribal entities, as provided 
in paragraph (e) of this section, who is arriving from contiguous 
territory or adjacent islands may present the tribal document prior to 
entering the United States at a land or sea port-of-entry.
    (8) Children. A child who is a United States citizen entering the 
United States from contiguous territory at a sea or land ports-of-entry 
may present certain other documents, if the arrival falls under 
subsection (i) or (ii).
    (i) Children Under Age 16. A U.S. citizen who is under the age of 16 
is permitted to present either an original or a copy of his or her birth 
certificate, a Consular Report of Birth Abroad issued by the Department 
of State, or a Certificate of Naturalization issued by U.S. Citizenship 
and Immigration Services when entering the United States from contiguous 
territory at land or sea ports-of-entry.
    (ii) Groups of Children Under Age 19. A U.S. citizen, who is under 
age 19 and is traveling with a public or private school group, religious 
group, social or cultural organization, or team associated with a youth 
sport organization is permitted to present either an original or a copy 
of his or her birth certificate, a Consular Report of Birth Abroad 
issued by the Department of State, or a Certificate of Naturalization 
issued by U.S. Citizenship and Immigration Services when arriving from 
contiguous territory at land or sea ports-of-entry, when the group, 
organization, or team is under the supervision of an adult affiliated 
with the group, organization, or team and when the child has parental or

[[Page 486]]

legal guardian consent to travel. For purposes of this paragraph, an 
adult is considered to be a person age 19 or older. The following 
requirements will apply:
    (A) The group or organization must provide to CBP upon crossing the 
border, on organizational letterhead:
    (1) The name of the group, organization or team, and the name of the 
supervising adult;
    (2) A list of the children on the trip;
    (3) For each child, the primary address, primary phone number, date 
of birth, place of birth, and name of a parent or legal guardian.
    (B) The adult leading the group, organization, or team must 
demonstrate parental or legal guardian consent by certifying in the 
writing submitted in paragraph (b)(8)(ii)(A) of this section that he or 
she has obtained for each child the consent of at least one parent or 
legal guardian.
    (C) The inspection procedure described in this paragraph is limited 
to members of the group, organization, or team who are under age 19. 
Other members of the group, organization, or team must comply with other 
applicable document and/or inspection requirements found in this part.

                                * * * * *

    (d) Enhanced Driver's License Projects; alternative requirements. 
Upon the designation by the Secretary of Homeland Security of an 
enhanced driver's license as an acceptable document to denote identity 
and citizenship for purposes of entering the United States, U.S. and 
Canadian citizens may be permitted to present these documents in lieu of 
a passport upon entering or seeking admission to the United States 
according to the terms of the agreements entered between the Secretary 
of Homeland Security and the entity. The Secretary of Homeland Security 
will announce, by publication of a notice in the Federal Register, 
documents designated under this paragraph. A list of the documents 
designated under this paragraph will also be made available to the 
public.
    (e) Native American Tribal Cards; alternative requirements. Upon the 
designation by the Secretary of Homeland Security of a United States 
qualifying tribal entity document as an acceptable document to denote 
identity and citizenship for purposes of entering the United States, 
Native Americans may be permitted to present tribal cards upon entering 
or seeking admission to the United States according to the terms of the 
voluntary agreement entered between the Secretary of Homeland Security 
and the tribe. The Secretary of Homeland Security will announce, by 
publication of a notice in the Federal Register, documents designated 
under this paragraph. A list of the documents designated under this 
paragraph will also be made available to the public.

    Effective Date Note: At 73 FR 77491, Dec. 19, 2008, Sec. 235.1 was 
amended by revising paragraph (f)(1)(ii), effective Jan. 18, 2009. For 
the convenience of the user, the revised text is set forth as follows:



Sec. 235.1  Scope of examination.

                                * * * * *

    (f) * * *
    (1) * * *
    (ii) The Secretary of Homeland Security or his designee may require 
any alien seeking admission to or parole into the United States, other 
than aliens exempted under paragraph (f)(1)(iv) of this section or 
Canadian citizens under section 101(a)(15)(B) of the Act who are not 
otherwise required to present a visa or be issued Form I-94 or Form I-95 
for admission or parole into the United States, to provide fingerprints, 
photograph(s) or other specified biometric identifiers, documentation of 
his or her immigration status in the United States, and such other 
evidence as may be requested to determine the alien's identity and 
whether he or she has properly maintained his or her status while in the 
United States. The failure of an applicant for admission to comply with 
any requirement to provide biometric identifiers may result in a 
determination that the alien is inadmissible under section 212(a) of the 
Immigration and Nationality Act or any other law.

                                * * * * *



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

[[Page 487]]

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]



Sec. 235.3  Inadmissible aliens and expedited removal.

    (a) Detention prior to inspection. All persons arriving at a port-
of-entry in the United States by vessel or aircraft shall be detained 
aboard the vessel or at the airport of arrival by the owner, agent, 
master, commanding officer, person in charge, purser, or consignee of 
such vessel or aircraft until admitted or otherwise permitted to land by 
an officer of the Service. Notice or order to detain shall not be 
required. The owner, agent, master, commanding officer, person in 
charge, purser, or consignee of such vessel or aircraft shall deliver 
every alien requiring examination to an immigration officer for 
inspection or to a medical officer for examination. The Service will not 
be liable for any expenses related to such detention or presentation or 
for any expenses of a passenger who has not been presented for 
inspection and for whom a determination has not been made concerning 
admissibility by a Service officer.
    (b) Expedited removal--(1) Applicability. The expedited removal 
provisions shall apply to the following classes of aliens who are 
determined to be inadmissible under section 212(a)(6)(C) or (7) of the 
Act:
    (i) Arriving aliens, as defined in Sec. 1.1(q) of this chapter, 
except for citizens of Cuba arriving at a United States port-of-entry by 
aircraft;
    (ii) As specifically designated by the Commissioner, aliens who 
arrive in, attempt to enter, or have entered the United States without 
having been admitted or paroled following inspection by an immigration 
officer at a designated port-of-entry, and who have not established to 
the satisfaction of the immigration officer that they have been 
physically present in the United States continuously for the 2-year 
period immediately prior to the date of determination of 
inadmissibility. The Commissioner shall have the sole discretion to 
apply the provisions of section 235(b)(1) of the Act, at any time, to 
any class of aliens described in this section. The Commissioner's 
designation shall become effective upon publication of a notice in the 
Federal Register. However, if the Commissioner determines, in the 
exercise of discretion, that the delay caused by publication would 
adversely affect the interests of the United States or the effective 
enforcement of the immigration laws, the Commissioner's designation 
shall become effective immediately upon issuance, and shall be published 
in the Federal Register as soon as practicable thereafter. When these 
provisions are in effect for aliens who enter without inspection, the 
burden of proof rests with the alien to affirmatively show that he or 
she has the required continuous physical presence in the United States. 
Any absence from the United States shall serve to break the period of 
continuous physical presence. An alien who was not inspected

[[Page 488]]

and admitted or paroled into the United States but who establishes that 
he or she has been continuously physically present in the United States 
for the 2-year period immediately prior to the date of determination of 
inadmissibility shall be detained in accordance with section 235(b)(2) 
of the Act for a proceeding under section 240 of the Act.
    (2) Determination of inadmissibility--(i) Record of proceeding. An 
alien who is arriving in the United States, or other alien as designated 
pursuant to paragraph (b)(1)(ii) of this section, who is determined to 
be inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act 
(except an alien for whom documentary requirements are waived under 
Sec. 211.1(b)(3) or Sec. 212.1 of this chapter), shall be ordered 
removed from the United States in accordance with section 235(b)(1) of 
the Act. In every case in which the expedited removal provisions will be 
applied and before removing an alien from the United States pursuant to 
this section, the examining immigration officer shall create a record of 
the facts of the case and statements made by the alien. This shall be 
accomplished by means of a sworn statement using Form I-867AB, Record of 
Sworn Statement in Proceedings under Section 235(b)(1) of the Act. The 
examining immigration officer shall read (or have read) to the alien all 
information contained on Form I-867A. Following questioning and 
recording of the alien's statement regarding identity, alienage, and 
inadmissibility, the examining immigration officer shall record the 
alien's response to the questions contained on Form I-867B, and have the 
alien read (or have read to him or her) the statement, and the alien 
shall sign and initial each page of the statement and each correction. 
The examining immigration officer shall advise the alien of the charges 
against him or her on Form I-860, Notice and Order of Expedited Removal, 
and the alien shall be given an opportunity to respond to those charges 
in the sworn statement. After obtaining supervisory concurrence in 
accordance with paragraph (b)(7) of this section, the examining 
immigration official shall serve the alien with Form I-860 and the alien 
shall sign the reverse of the form acknowledging receipt. Interpretative 
assistance shall be used if necessary to communicate with the alien.
    (ii) No entitlement to hearings and appeals. Except as otherwise 
provided in this section, such alien is not entitled to a hearing before 
an immigration judge in proceedings conducted pursuant to section 240 of 
the Act, or to an appeal of the expedited removal order to the Board of 
Immigration Appeals.
    (iii) Detention and parole of alien in expedited removal. An alien 
whose inadmissibility is being considered under this section or who has 
been ordered removed pursuant to this section shall be detained pending 
determination and removal, except that parole of such alien, in 
accordance with section 212(d)(5) of the Act, 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.
    (3) Additional charges of inadmissibility. In the expedited removal 
process, the Service may not charge an alien with any additional grounds 
of inadmissibility other than section 212(a)(6)(C) or 212(a)(7) of the 
Act. If an alien appears to be inadmissible under other grounds 
contained in section 212(a) of the Act, and if the Service wishes to 
pursue such additional grounds of inadmissibility, the alien shall be 
detained and referred for a removal hearing before an immigration judge 
pursuant to sections 235(b)(2) and 240 of the Act for inquiry into all 
charges. Once the alien is in removal proceedings under section 240 of 
the Act, the Service is not precluded from lodging additional charges 
against the alien. Nothing in this paragraph shall preclude the Service 
from pursuing such additional grounds of inadmissibility against the 
alien in any subsequent attempt to reenter the United States, provided 
the additional grounds of inadmissibility still exist.
    (4) Claim of asylum or fear of persecution or torture. If an alien 
subject to the expedited removal provisions indicates an intention to 
apply for asylum, or expresses a fear of persecution or torture, or a 
fear of return to his or her country, the inspecting officer shall not 
proceed further with removal of the

[[Page 489]]

alien until the alien has been referred for an interview by an asylum 
officer in accordance with 8 CFR 208.30. The examining immigration 
officer shall record sufficient information in the sworn statement to 
establish and record that the alien has indicated such intention, fear, 
or concern, and to establish the alien's inadmissibility.
    (i) Referral. The referring officer shall provide the alien with a 
written disclosure on Form M-444, Information About Credible Fear 
Interview, describing:
    (A) The purpose of the referral and description of the credible fear 
interview process;
    (B) The right to consult with other persons prior to the interview 
and any review thereof at no expense to the United States Government;
    (C) The right to request a review by an immigration judge of the 
asylum officer's credible fear determination; and
    (D) The consequences of failure to establish a credible fear of 
persecution or torture.
    (ii) Detention pending credible fear interview. Pending the credible 
fear determination by an asylum officer and any review of that 
determination by an immigration judge, the alien shall be detained. 
Parole of such alien in accordance with section 212(d)(5) of the Act 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. Prior to the 
interview, the alien shall be given time to contact and consult with any 
person or persons of his or her choosing. Such consultation shall be 
made available in accordance with the policies and procedures of the 
detention facility where the alien is detained, shall be at no expense 
to the government, and shall not unreasonably delay the process.
    (5) Claim to lawful permanent resident, refugee, or asylee status or 
U.S. citizenship--(i) Verification of status. If an applicant for 
admission who is subject to expedited removal pursuant to section 
235(b)(1) of the Act claims to have been lawfully admitted for permanent 
residence, admitted as a refugee under section 207 of the Act, granted 
asylum under section 208 of the Act, or claims to be a U.S. citizen, the 
immigration officer shall attempt to verify the alien's claim. Such 
verification shall include a check of all available Service data systems 
and any other means available to the officer. An alien whose claim to 
lawful permanent resident, refugee, asylee status, or U.S. citizen 
status cannot be verified will be advised of the penalties for perjury, 
and will be placed under oath or allowed to make a declaration as 
permitted under 28 U.S.C. 1746, concerning his or her lawful admission 
for permanent residence, admission as a refugee under section 207 of the 
Act, grant of asylum status under section 208 of the Act, or claim to 
U.S. citizenship. A written statement shall be taken from the alien in 
the alien's own language and handwriting, stating that he or she 
declares, certifies, verifies, or states that the claim is true and 
correct. The immigration officer shall issue an expedited order of 
removal under section 235(b)(1)(A)(i) of the Act and refer the alien to 
the immigration judge for review of the order in accordance with 
paragraph (b)(5)(iv) of this section and Sec. 235.6(a)(2)(ii). The 
person shall be detained pending review of the expedited removal order 
under this section. Parole of such person, in accordance with section 
212(d)(5) of the Act, 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.
    (ii) Verified lawful permanent residents. If the claim to lawful 
permanent resident status is verified, and such status has not been 
terminated in exclusion, deportation, or removal proceedings, the 
examining immigration officer shall not order the alien removed pursuant 
to section 235(b)(1) of the Act. The examining immigration officer will 
determine in accordance with section 101(a)(13)(C) of the Act whether 
the alien is considered to be making an application for admission. If 
the alien is determined to be seeking admission and the alien is 
otherwise admissible, except that he or she is not in possession of the 
required documentation, a discretionary waiver of documentary

[[Page 490]]

requirements may be considered in accordance with section 211(b) of the 
Act and Sec. 211.1(b)(3) of this chapter or the alien's inspection may 
be deferred to an onward office for presentation of the required 
documents. If the alien appears to be inadmissible, the immigration 
officer may initiate removal proceedings against the alien under section 
240 of the Act.
    (iii) Verified refugees and asylees. If a check of Service records 
or other means indicates that the alien has been granted refugee status 
or asylee status, and such status has not been terminated in 
deportation, exclusion, or removal proceedings, the immigration officer 
shall not order the alien removed pursuant to section 235(b)(1) of the 
Act. If the alien is not in possession of a valid, unexpired refugee 
travel document, the examining immigration officer may accept an 
application for a refugee travel document in accordance with Sec. 
223.2(b)(2)(ii) of this chapter. If accepted, the immigration officer 
shall readmit the refugee or asylee in accordance with Sec. 
223.3(d)(2)(i) of this chapter. If the alien is determined not to be 
eligible to file an application for a refugee travel document the 
immigration officer may initiate removal proceedings against the alien 
under section 240 of the Act.
    (iv) Review of order for claimed lawful permanent residents, 
refugees, asylees, or U.S. citizens. A person whose claim to U.S. 
citizenship has been verified may not be ordered removed. When an alien 
whose status has not been verified but who is claiming under oath or 
under penalty of perjury to be a lawful permanent resident, refugee, 
asylee, or U.S. citizen is ordered removed pursuant to section 235(b)(1) 
of the Act, the case will be referred to an immigration judge for review 
of the expedited removal order under section 235(b)(1)(C) of the Act and 
Sec. 235.6(a)(2)(ii). If the immigration judge determines that the 
alien has never been admitted as a lawful permanent resident or as a 
refugee, granted asylum status, or is not a U.S. citizen, the order 
issued by the immigration officer will be affirmed and the Service will 
remove the alien. There is no appeal from the decision of the 
immigration judge. If the immigration judge determines that the alien 
was once so admitted as a lawful permanent resident or as a refugee, or 
was granted asylum status, or is a U.S. citizen, and such status has not 
been terminated by final administrative action, the immigration judge 
will terminate proceedings and vacate the expedited removal order. The 
Service may initiate removal proceedings against such an alien, but not 
against a person determined to be a U.S. citizen, in proceedings under 
section 240 of the Act. During removal proceedings, the immigration 
judge may consider any waivers, exceptions, or requests for relief for 
which the alien is eligible.
    (6) Opportunity for alien to establish that he or she was admitted 
or paroled into the United States. If the Commissioner determines that 
the expedited removal provisions of section 235(b)(1) of the Act shall 
apply to any or all aliens described in paragraph (b)(2)(ii) of this 
section, such alien will be given a reasonable opportunity to establish 
to the satisfaction of the examining immigration officer that he or she 
was admitted or paroled into the United States following inspection at a 
port-of-entry. The alien will be allowed to present evidence or provide 
sufficient information to support the claim. Such evidence may consist 
of documentation in the possession of the alien, the Service, or a third 
party. The examining immigration officer will consider all such evidence 
and information, make further inquiry if necessary, and will attempt to 
verify the alien's status through a check of all available Service data 
systems. The burden rests with the alien to satisfy the examining 
immigration officer of the claim of lawful admission or parole. If the 
alien establishes that he or she was lawfully admitted or paroled, the 
case will be examined to determine if grounds of deportability under 
section 237(a) of the Act are applicable, or if paroled, whether such 
parole has been, or should be, terminated, and whether the alien is 
inadmissible under section 212(a) of the Act. An alien who cannot 
satisfy the examining officer that he or she was lawfully admitted or 
paroled will be ordered removed pursuant to section 235(b)(1) of the 
Act.

[[Page 491]]

    (7) Review of expedited removal orders. Any removal order entered by 
an examining immigration officer pursuant to section 235(b)(1) of the 
Act must be reviewed and approved by the appropriate supervisor before 
the order is considered final. Such supervisory review shall not be 
delegated below the level of the second line supervisor, or a person 
acting in that capacity. The supervisory review shall include a review 
of the sworn statement and any answers and statements made by the alien 
regarding a fear of removal or return. The supervisory review and 
approval of an expedited removal order for an alien described in section 
235(b)(1)(A)(iii) of the Act must include a review of any claim of 
lawful admission or parole and any evidence or information presented to 
support such a claim, prior to approval of the order. In such cases, the 
supervisor may request additional information from any source and may 
require further interview of the alien.
    (8) Removal procedures relating to expedited removal. An alien 
ordered removed pursuant to section 235(b)(1) of the Act shall be 
removed from the United States in accordance with section 241(c) of the 
Act and 8 CFR part 241.
    (9) Waivers of documentary requirements. Nothing in this section 
limits the discretionary authority of the Attorney General, including 
authority under sections 211(b) or 212(d) of the Act, to waive the 
documentary requirements for arriving aliens.
    (10) Applicant for admission under section 217 of the Act. The 
provisions of Sec. 235.3(b) do not apply to an applicant for admission 
under section 217 of the Act.
    (c) Arriving aliens placed in proceedings under section 240 of the 
Act. Except as otherwise provided in this chapter, any arriving alien 
who appears to the inspecting officer to be inadmissible, and who is 
placed in removal proceedings pursuant to section 240 of the Act shall 
be detained in accordance with section 235(b) of the Act. Parole of such 
alien shall only be considered in accordance with Sec. 212.5(b) of this 
chapter. This paragraph shall also apply to any alien who arrived before 
April 1, 1997, and who was placed in exclusion proceedings.
    (d) Service custody. The Service will assume custody of any alien 
subject to detention under paragraph (b) or (c) of this section. In its 
discretion, the Service may require any alien who appears inadmissible 
and who arrives at a land border port-of-entry from Canada or Mexico, to 
remain in that country while awaiting a removal hearing. Such alien 
shall be considered detained for a proceeding within the meaning of 
section 235(b) of the Act and may be ordered removed in absentia by an 
immigration judge if the alien fails to appear for the hearing.
    (e) Detention in non-Service facility. Whenever an alien is taken 
into Service custody and detained at a facility other than at a Service 
Processing Center, the public or private entities contracted to perform 
such service shall have been approved for such use by the Service's Jail 
Inspection Program or shall be performing such service under contract in 
compliance with the Standard Statement of Work for Contract Detention 
Facilities. Both programs are administered by the Detention and 
Deportation section having jurisdiction over the alien's place of 
detention. Under no circumstances shall an alien be detained in 
facilities not meeting the four mandatory criteria for usage. These are:
    (1) 24-Hour supervision,
    (2) Conformance with safety and emergency codes,
    (3) Food service, and
    (4) Availability of emergency medical care.
    (f) Privilege of communication. The mandatory notification 
requirements of consular and diplomatic officers pursuant to Sec. 
236.1(e) of this chapter apply when an inadmissible alien is detained 
for removal proceedings, including for purpose of conducting the 
credible fear determination.

[62 FR 10355, Mar. 6, 1997, as amended at 64 FR 8494, Feb. 19, 1999; 65 
FR 82256, Dec. 28, 2000; 69 FR 69490, Nov. 29, 2004]



Sec. 235.4  Withdrawal of application for admission.

    The Attorney General may, in his or her discretion, permit any alien 
applicant for admission to withdraw his or her application for admission 
in lieu of removal proceedings under section 240

[[Page 492]]

of the Act or expedited removal under section 235(b)(1) of the Act. The 
alien's decision to withdraw his or her application for admission must 
be made voluntarily, but nothing in this section shall be construed as 
to give an alien the right to withdraw his or her application for 
admission. Permission to withdraw an application for admission should 
not normally be granted unless the alien intends and is able to depart 
the United States immediately. An alien permitted to withdraw his or her 
application for admission shall normally remain in carrier or Service 
custody pending departure, unless the district director determines that 
parole of the alien is warranted in accordance with Sec. 212.5(b) of 
this chapter.

[62 FR 10358, Mar. 6, 1997; 62 FR 15363, Apr. 1, 1997; 65 FR 82256, Dec. 
28, 2000]



Sec. 235.5  Preinspection.

    (a) In United States territories and possessions. In the case of any 
aircraft proceeding from Guam, Puerto Rico, or the United States Virgin 
Islands destined directly and without touching at a foreign port or 
place, to any other of such places, or to one of the States of the 
United States or the District of Columbia, the examination of the 
passengers and crew required by the Act may be made prior to the 
departure of the aircraft, and in such event, final determination of 
admissibility shall be made immediately prior to such departure. The 
examination shall be conducted in accordance with sections 232, 235, and 
240 of the Act and 8 CFR parts 235 and 240. If it appears to the 
examining immigration officer that any person in the United States being 
examined under this section is prima facie removable from the United 
States, further action with respect to his or her examination shall be 
deferred and further proceedings regarding removability conducted as 
provided in section 240 of the Act and 8 CFR part 240. When the 
foregoing inspection procedure is applied to any aircraft, persons 
examined and found admissible shall be placed aboard the aircraft, or 
kept at the airport separate and apart from the general public until 
they are permitted to board the aircraft. No other person shall be 
permitted to depart on such aircraft until and unless he or she is found 
to be admissible as provided in this section.
    (b) In foreign territory. In the case of any aircraft, vessel, or 
train proceeding directly, without stopping, from a port or place in 
foreign territory to a port-of-entry in the United States, the 
examination and inspection of passengers and crew required by the Act 
and final determination of admissibility may be made immediately prior 
to such departure at the port or place in the foreign territory and 
shall have the same effect under the Act as though made at the destined 
port-of-entry in the United States.

[62 FR 10358, Mar. 6, 1997]



Sec. 235.6  Referral to immigration judge.

    (a) Notice--(1) Referral by Form I-862, Notice to Appear. An 
immigration officer or asylum officer will sign and deliver a Form I-862 
to an alien in the following cases:
    (i) If, in accordance with the provisions of section 235(b)(2)(A) of 
the Act, the examining immigration officer detains an alien for a 
proceeding before an immigration judge under section 240 of the Act; or
    (ii) If an asylum officer determines that an alien in expedited 
removal proceedings has a credible fear of persecution or torture and 
refers the case to the immigration judge for consideration of the 
application for asylum.
    (iii) If the immigration judge determines that an alien in expedited 
removal proceedings has a credible fear of persecution or torture and 
vacates the expedited removal order issued by the asylum officer.
    (iv) If an immigration officer verifies that an alien subject to 
expedited removal under section 235(b)(1) of the Act has been admitted 
as a lawful permanent resident refugee, or asylee, or upon review 
pursuant to Sec. 235.3(b)(5)(iv) an immigration judge determines that 
the alien was once so admitted, provided that such status has not been 
terminated by final administrative action, and the Service initiates 
removal proceedings against the alien under section 240 of the Act.
    (2) Referral by Form I-863, Notice of Referral to Immigration Judge. 
An immigration officer will sign and deliver a

[[Page 493]]

Form I-863 to an alien in the following cases:
    (i) If an asylum officer determines that an alien does not have a 
credible fear of persecution or torture, and the alien requests a review 
of that determination by an immigration judge; or
    (ii) If, in accordance with section 235(b)(1)(C) of the Act, an 
immigration officer refers an expedited removal order entered on an 
alien claiming to be a lawful permanent resident, refugee, asylee, or 
U.S. citizen for whom the officer could not verify such status to an 
immigration judge for review of the order.
    (iii) If an immigration officer refers an applicant described in 
Sec. 208.2(b)(1) of this chapter to an immigration judge for an asylum 
hearing under Sec. 208.2(b)(2) of this chapter.
    (b) Certification for mental condition; medical appeal. An alien 
certified under sections 212(a)(1) and 232(b) of the Act shall be 
advised by the examining immigration officer that he or she may appeal 
to a board of medical examiners of the United States Public Health 
Service pursuant to section 232 of the Act. If such appeal is taken, the 
district director shall arrange for the convening of the medical board.

[62 FR 10358, Mar. 6, 1997, as amended at 64 FR 8494, Feb. 19, 1999]



Sec. 235.7  Automated inspection services.

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

[[Page 494]]

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

[[Page 495]]

use of the vehicle in the PORTPASS program throughout the PORTPASS 
registration period.
    (ix) An applicant, whether an occupant or driver, may apply to use 
more than one vehicle in the DCL. The first vehicle listed on the Form 
I-823 will be designated as the applicant's primary vehicle. The second 
vehicle, if not designated by another applicant as his or her primary 
vehicle, is subject to the additional vehicle charge as prescribed by 
the Service.
    (x) An application may be denied in the discretion of the district 
director having jurisdiction over the POE where the applicant requests 
access. Notice of such denial shall be given to the applicant. There is 
no appeal from the denial, but denial is without prejudice to reapplying 
for this or any other Service benefit. Re-applications, or applications 
following revocation of permission to use the lane, will not be 
considered by the Service until 90 days have passed following the date 
of denial or revocation. Criteria which will be considered in the 
decision to approve or deny the application include the following: 
admissibility to the United States and documentation so evidencing, 
criminal history and/or evidence of criminality, purpose of travel, 
employment, residency, prior immigration history, possession of current 
driver's license, vehicle insurance and registration, and vehicle 
inspection.
    (xi) Applications approved by the Service will entitle the applicant 
to seek entry via a designated PORTPASS Program POE for a period of 2 
years from the date of approval of the application unless approval is 
otherwise withdrawn. An application for a replacement card will not 
extend the initial period of approval.
    (5) By applying for and participating in the PORTPASS program, each 
approved participant acknowledges and agrees to all of the following:
    (i) The installation and/or use of, in the vehicle approved for use 
in the PORTPASS program, any and all decals, devices, technology or 
other methodology deemed necessary by the Service to ensure inspection 
of the person(s) seeking entry through a DCL, in addition to any fee 
and/or monetary deposit assessed by the Service pending return of any 
and all such decals, devices, technology, and other methodology in 
undamaged condition.
    (ii) That all devices, decals, or other equipment, methodology, or 
technology used to identify or inspect persons or vehicles seeking entry 
via any PORTPASS program remains the property of the United States 
Government at all times, and must be surrendered upon request by the 
Service. Each participant agrees to abide by the terms set forth by the 
Service for use of any device, decal, or other equipment, method or 
technology.
    (iii) The payment of a system costs fee as determined by the Service 
to be necessary to cover the costs of implementing, maintaining, and 
operating the PORTPASS program.
    (iv) That each occupant of a vehicle applying for entry through 
PORTPASS must have current approval from the Service to apply for entry 
through the PORTPASS program in that vehicle.
    (v) That a participant must be in possession of any authorization 
document(s) issued for PORTPASS access and any other entry document(s) 
as required by the Act or by regulation at the time of each entry to the 
United States.
    (vi) That a participant must positively identify himself or herself 
in the manner prescribed by the Service at the time of each application 
for entry via the PORTPASS.
    (vii) That each use of PORTPASS constitutes a separate application 
for entry to the United States by the alien participant.
    (viii) That each participant agrees to be responsible for all 
contents of the vehicle that he or she occupies when using PORTPASS.
    (ix) That a participant may not import merchandise or transport 
controlled or restricted items using PORTPASS. The entry of any 
merchandise or goods must be in accordance with the laws and regulations 
of all other Federal inspection agencies.
    (x) That a participant must abide by all Federal, state and local 
laws regarding the importation of alcohol or agricultural products or 
the importation or possession of controlled substances as defined in 
section 101 of the

[[Page 496]]

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

[61 FR 53831, Oct. 16, 1996. Redesignated at 62 FR 10358, Mar. 6, 1997; 
68 FR 10145, Mar. 4, 2003]



Sec. 235.8  Inadmissibility on security and related grounds.

    (a) Report. When an immigration officer or an immigration judge 
suspects that an arriving alien appears to be inadmissible under section 
212(a)(3)(A) (other than clause (ii)), (B), or (C) of the Act, the 
immigration officer or immigration judge shall order the alien removed 
and report the action promptly to the district director who has 
administrative jurisdiction over the place where the alien has arrived 
or where the hearing is being held. The immigration officer shall, if 
possible, take a brief sworn question-and-answer statement from the 
alien, and the alien shall be notified by personal service of Form I-
147, Notice of Temporary Inadmissibility, of the action taken and the 
right to submit a written statement and additional information for 
consideration by the Attorney General. The district director shall 
forward the report to the regional director for further action as 
provided in paragraph (b) of this section.
    (b) Action by regional director. (1) In accordance with section 
235(c)(2)(B) of the Act, the regional director may deny any further 
inquiry or hearing by an immigration judge and order the alien removed 
by personal service of Form I-148, Notice of Permanent Inadmissibility, 
or issue any other order disposing of the case that the regional 
director considers appropriate.
    (2) If the regional director concludes that the case does not meet 
the criteria contained in section 235(c)(2)(B) of the Act, the regional 
director may direct that:
    (i) An immigration officer shall conduct a further examination of 
the alien, concerning the alien's admissibility; or,

[[Page 497]]

    (ii) The alien's case be referred to an immigration judge for a 
hearing, or for the continuation of any prior hearing.
    (3) The regional director's decision shall be in writing and shall 
be signed by the regional director. Unless the written decision contains 
confidential information, the disclosure of which would be prejudicial 
to the public interest, safety, or security of the United States, the 
written decision shall be served on the alien. If the written decision 
contains such confidential information, the alien shall be served with a 
separate written order showing the disposition of the case, but with the 
confidential information deleted.
    (4) The Service shall not execute a removal order under this section 
under circumstances that violate section 241(b)(3) of the Act or Article 
3 of the Convention Against Torture. The provisions of part 208 of this 
chapter relating to consideration or review by an immigration judge, the 
Board of Immigration Appeals, or an asylum officer shall not apply.
    (c) Finality of decision. The regional director's decision under 
this section is final when it is served upon the alien in accordance 
with paragraph (b)(3) of this section. There is no administrative appeal 
from the regional director's decision.
    (d) Hearing by immigration judge. If the regional director directs 
that an alien subject to removal under this section be given a hearing 
or further hearing before an immigration judge, the hearing and all 
further proceedings in the matter shall be conducted in accordance with 
the provisions of section 240 of the Act and other applicable sections 
of the Act to the same extent as though the alien had been referred to 
an immigration judge by the examining immigration officer. In a case 
where the immigration judge ordered the alien removed pursuant to 
paragraph (a) of this section, the Service shall refer the case back to 
the immigration judge and proceedings shall be automatically reopened 
upon receipt of the notice of referral. If confidential information, not 
previously considered in the matter, is presented supporting the 
inadmissibility of the alien under section 212(a)(3)(A) (other than 
clause (ii)), (B) or (C) of the Act, the disclosure of which, in the 
discretion of the immigration judge, may be prejudicial to the public 
interest, safety, or security, the immigration judge may again order the 
alien removed under the authority of section 235(c) of the Act and 
further action shall be taken as provided in this section.
    (e) Nonapplicability. The provisions of this section shall apply 
only to arriving aliens, as defined in Sec. 1.1(q) of this chapter. 
Aliens present in the United States who have not been admitted or 
paroled may be subject to proceedings under Title V of the Act.

[62 FR 10358, Mar. 6, 1997, as amended at 64 FR 8494, Feb. 19, 1999]



Sec. 235.9  Northern Marianas identification card.

    During the two-year period that ended July 1, 1990, the Service 
issued Northern Marianas Identification Cards to aliens who acquired 
United States citizenship when the Covenant to Establish a Commonwealth 
of the Northern Mariana Islands in Political Union with the United 
States entered into force on November 3, 1986. These cards remain valid 
as evidence of United States citizenship. Although the Service no longer 
issues these cards, a United States citizen to whom a card was issued 
may file Form I-777, Application for Issuance or Replacement of Northern 
Marianas Card, to obtain replacement of a lost, stolen, or mutilated 
Northern Marianas Identification Card.

[62 FR 10359, Mar. 6, 1997]



Sec. 235.10  U.S. Citizen Identification Card.

    (a) General. Form I-197, U.S. Citizen Identification Card, is no 
longer issued by the Service but valid existing cards will continue to 
be acceptable documentation of U.S. citizenship. Possession of the 
identification card is not mandatory for any purpose. A U.S. Citizen 
Identification Card remains the property of the United States. Because 
the identification card is no longer issued, there are no provisions for 
replacement cards.
    (b) Surrender and voidance--(1) Institution of proceeding under 
section 240 or 342 of the Act. A U.S. Citizen Identification

[[Page 498]]

Card must be surrendered provisionally to a Service office upon 
notification by the district director that a proceeding under section 
240 or 342 of the Act is being instituted against the person to whom the 
card was issued. The card shall be returned to the person if the final 
order in the proceeding does not result in voiding the card under this 
paragraph. A U.S. Citizen Identification Card is automatically void if 
the person to whom it was issued is determined to be an alien in a 
proceeding conducted under section 240 of the Act, or if a certificate, 
document, or record relating to that person is canceled under section 
342 of the Act.
    (2) Investigation of validity of identification card. A U.S. Citizen 
Identification Card must be surrendered provisionally upon notification 
by a district director that the validity of the card is being 
investigated. The card shall be returned to the person who surrendered 
it if the investigation does not result in a determination adverse to 
his or her claim to be a United States citizen. When an investigation 
results in a tentative determination adverse to the applicant's claim to 
be a United States citizen, the applicant shall be notified by certified 
mail directed to his or her last known address. The notification shall 
inform the applicant of the basis for the determination and of the 
intention of the district director to declare the card void unless 
within 30 days the applicant objects and demands an opportunity to see 
and rebut the adverse evidence. Any rebuttal, explanation, or evidence 
presented by the applicant must be included in the record of proceeding. 
The determination whether the applicant is a United States citizen must 
be based on the entire record and the applicant shall be notified of the 
determination. If it is determined that the applicant is not a United 
States citizen, the applicant shall be notified of the reasons, and the 
card deemed void. There is no appeal from the district director's 
decision.
    (3) Admission of alienage. A U.S. Citizen Identification Card is 
void if the person to whom it was issued admits in a statement signed 
before an immigration officer that he or she is an alien and consents to 
the voidance of the card. Upon signing the statement the card must be 
surrendered to the immigration officer.
    (4) Surrender of void card. A void U.S. Citizen Identification Card 
which has not been returned to the Service must be surrendered without 
delay to an immigration officer or to the issuing office of the Service.
    (c) U.S. Citizen Identification Card previously issued on Form I-
179. A valid Form I-179, U.S. Citizen Identification Card, continues to 
be valid subject to the provisions of this section.

[62 FR 10359, Mar. 6, 1997]



Sec. 235.11  Admission of conditional permanent residents.

    (a) General--(1) Conditional residence based on family relationship. 
An alien seeking admission to the United States with an immigrant visa 
as the spouse or son or daughter of a United States citizen or lawful 
permanent resident shall be examined to determine whether the conditions 
of section 216 of the Act apply. If so, the alien shall be admitted 
conditionally for a period of 2 years. At the time of admission, the 
alien shall be notified that the alien and his or her petitioning spouse 
must file a Form I-751, Petition to Remove the Conditions on Residence, 
within the 90-day period immediately preceding the second anniversary of 
the alien's admission for permanent residence.
    (2) Conditional residence based on entrepreneurship. An alien 
seeking admission to the United States with an immigrant visa as an 
alien entrepreneur (as defined in section 216A(f)(1) of the Act) or the 
spouse or unmarried minor child of an alien entrepreneur shall be 
admitted conditionally for a period of 2 years. At the time of 
admission, the alien shall be notified that the principal alien 
(entrepreneur) must file a Form I-829, Petition by Entrepreneur to 
Remove Conditions, within the 90-day period immediately preceding the 
second anniversary of the alien's admission for permanent residence.
    (b) Correction of endorsement on immigrant visa. If the alien is 
subject to the provisions of section 216 of the Act, but the 
classification endorsed on the immigrant visa does not so indicate, the 
endorsement shall be corrected and the

[[Page 499]]

alien shall be admitted as a lawful permanent resident on a conditional 
basis, if otherwise admissible. Conversely, if the alien is not subject 
to the provisions of section 216 of the Act, but the visa classification 
endorsed on the immigrant visa indicates that the alien is subject 
thereto (e.g., if the second anniversary of the marriage upon which the 
immigrant visa is based occurred after the issuance of the visa and 
prior to the alien's application for admission) the endorsement on the 
visa shall be corrected and the alien shall be admitted as a lawful 
permanent resident without conditions, if otherwise admissible.
    (c) Expired conditional permanent resident status. The lawful 
permanent resident alien status of a conditional resident automatically 
terminates if the conditional basis of such status is not removed by the 
Service through approval of a Form I-751, Petition to Remove the 
Conditions on Residence or, in the case of an alien entrepreneur (as 
defined in section 216A(f)(1) of the Act), Form I-829, Petition by 
Entrepreneur to Remove Conditions. Therefore, an alien who is seeking 
admission as a returning resident subsequent to the second anniversary 
of the date on which conditional residence was obtained (except as 
provided in Sec. 211.1(b)(1) of this chapter) and whose conditional 
basis of such residence has not been removed pursuant to section 216(c) 
or 216A(c) of the Act, whichever is applicable, shall be placed under 
removal proceedings. However, in a case where conditional residence was 
based on a marriage, removal proceedings may be terminated and the alien 
may be admitted as a returning resident if the required Form I-751 is 
filed jointly, or by the alien alone (if appropriate), and approved by 
the Service. In the case of an alien entrepreneur, removal proceedings 
may be terminated and the alien admitted as a returning resident if the 
required Form I-829 is filed by the alien entrepreneur and approved by 
the Service.

[62 FR 10360, Mar. 6, 1997]



PART 236_APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE ALIENS; 

REMOVAL OF ALIENS ORDERED REMOVED--Table of Contents




         Subpart A_Detention of Aliens Prior to Order of Removal

Sec.
236.1 Apprehension, custody, and detention.
236.2 Confined aliens, incompetents, and minors.
236.3 Detention and release of juveniles.
236.4 Removal of S-5, S-6, and S-7 nonimmigrants.
236.5 Fingerprints and photographs.
236.6 Information regarding detainees.
236.7-236.9 [Reserved]

                     Subpart B_Family Unity Program

236.10 Description of program.
236.11 Definitions.
236.12 Eligibility.
236.13 Ineligible aliens.
236.14 Filing.
236.15 Voluntary departure and eligibility for employment.
236.16 Travel outside the United States.
236.17 Eligibility for Federal financial assistance programs.
236.18 Termination of Family Unity Program benefits.

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1224, 1225, 
1226, 1227, 1231, 1362; 18 U.S.C. 4002, 4013(c)(4); 8 CFR part 2.

    Source: 62 FR 10360, Mar. 6, 1997, unless otherwise noted.



         Subpart A_Detention of Aliens Prior to Order of Removal



Sec. 236.1  Apprehension, custody, and detention.

    (a) Detainers. The issuance of a detainer under this section shall 
be governed by the provisions of Sec. 287.7 of this chapter.
    (b) Warrant of arrest--(1) In general. At the time of issuance of 
the notice to appear, or at any time thereafter and up to the time 
removal proceedings are completed, the respondent may be arrested and 
taken into custody under the authority of Form I-200, Warrant of Arrest. 
A warrant of arrest may be issued only by those immigration officers 
listed in Sec. 287.5(e)(2) of this chapter

[[Page 500]]

and may be served only by those immigration officers listed in Sec. 
287.5(e)(3) of this chapter.
    (2) If, after the issuance of a warrant of arrest, a determination 
is made not to serve it, any officer authorized to issue such warrant 
may authorize its cancellation.
    (c) Custody issues and release procedures--(1) In general. (i) After 
the expiration of the Transition Period Custody Rules (TPCR) set forth 
in section 303(b)(3) of Div. C of Pub. L. 104-208, no alien described in 
section 236(c)(1) of the Act may be released from custody during removal 
proceedings except pursuant to section 236(c)(2) of the Act.
    (ii) Paragraph (c)(2) through (c)(8) of this section shall govern 
custody determinations for aliens subject to the TPCR while they remain 
in effect. For purposes of this section, an alien ``subject to the 
TPCR'' is an alien described in section 303(b)(3)(A) of Div. C of Pub. 
L. 104-208 who is in deportation proceedings, subject to a final order 
of deportation, or in removal proceedings. The TPCR do not apply to 
aliens in exclusion proceedings under former section 236 of the Act, 
aliens in expedited removal proceedings under section 235(b)(1) of the 
Act, or aliens subject to a final order of removal.
    (2) Aliens not lawfully admitted. Subject to paragraph (c)(6)(i) of 
this section, but notwithstanding any other provision within this 
section, an alien subject to the TPCR who is not lawfully admitted is 
not eligible to be considered for release from custody.
    (i) An alien who remains in status as an alien lawfully admitted for 
permanent residence, conditionally admitted for permanent residence, or 
lawfully admitted for temporary residence is ``lawfully admitted'' for 
purposes of this section.
    (ii) An alien in removal proceedings, in deportation proceedings, or 
subject to a final order of deportation, and not described in paragraph 
(c)(2)(i) of this section, is not ``lawfully admitted'' for purposes of 
this section unless the alien last entered the United States lawfully 
and is not presently an applicant for admission to the United States.
    (3) Criminal aliens eligible to be considered for release. Except as 
provided in this section, or otherwise provided by law, an alien subject 
to the TPCR may be considered for release from custody if lawfully 
admitted. Such an alien must first demonstrate, by clear and convincing 
evidence, that release would not pose a danger to the safety of other 
persons or of property. If an alien meets this burden, the alien must 
further demonstrate, by clear and convincing evidence, that the alien is 
likely to appear for any scheduled proceeding (including any appearance 
required by the Service or EOIR) in order to be considered for release 
in the exercise of discretion.
    (4) Criminal aliens ineligible to be considered for release except 
in certain special circumstances. An alien, other than an alien lawfully 
admitted for permanent residence, subject to section 303(b)(3)(A) (ii) 
or (iii) of Div. C. of Pub. L. 104-208 is ineligible to be considered 
for release if the alien:
    (i) Is described in section 241(a)(2)(C) of the Act (as in effect 
prior to April 1, 1997), or has been convicted of a crime described in 
section 101(a)(43)(B), (E)(ii) or (F) of the Act (as in effect on April 
1, 1997);
    (ii) Has been convicted of a crime described in section 
101(a)(43)(G) of the Act (as in effect on April 1, 1997) or a crime or 
crimes involving moral turpitude related to property, and sentenced 
therefor (including in the aggregate) to at least 3 years' imprisonment;
    (iii) Has failed to appear for an immigration proceeding without 
reasonable cause or has been subject to a bench warrant or similar legal 
process (unless quashed, withdrawn, or cancelled as improvidently 
issued);
    (iv) Has been convicted of a crime described in section 
101(a)(43)(Q) or (T) of the Act (as in effect on April 1, 1997);
    (v) Has been convicted in a criminal proceeding of a violation of 
section 273, 274, 274C, 276, or 277 of the Act, or has admitted the 
factual elements of such a violation;
    (vi) Has overstayed a period granted for voluntary departure;
    (vii) Has failed to surrender or report for removal pursuant to an 
order of exclusion, deportation, or removal;
    (viii) Does not wish to pursue, or is statutorily ineligible for, 
any form of relief from exclusion, deportation, or

[[Page 501]]

removal under this chapter or the Act; or
    (ix) Is described in paragraphs (c)(5)(i)(A), (B), or (C) of this 
section but has not been sentenced, including in the aggregate but not 
including any portions suspended, to at least 2 years' imprisonment, 
unless the alien was lawfully admitted and has not, since the 
commencement of proceedings and within the 10 years prior thereto, been 
convicted of a crime, failed to comply with an order to surrender or a 
period of voluntary departure, or been subject to a bench warrant or 
similar legal process (unless quashed, withdrawn, or cancelled as 
improvidently issued). An alien eligible to be considered for release 
under this paragraph must meet the burdens described in paragraph (c)(3) 
of this section in order to be released from custody in the exercise of 
discretion.
    (5) Criminal aliens ineligible to be considered for release. (i) A 
criminal alien subject to section 303(b)(3)(A)(ii) or (iii) of Div. C of 
Pub. L. 104-208 is ineligible to be considered for release if the alien 
has been sentenced, including in the aggregate but not including any 
portions suspended, to at least 2 years' imprisonment, and the alien
    (A) Is described in section 237(a)(2)(D)(i) or (ii) of the Act (as 
in effect on April 1, 1997), or has been convicted of a crime described 
in section 101(a)(43)(A), (C), (E)(i), (H), (I), (K)(iii), or (L) of the 
Act (as in effect on April 1, 1997);
    (B) Is described in section 237(a)(2)(A)(iv) of the Act; or
    (C) Has escaped or attempted to escape from the lawful custody of a 
local, State, or Federal prison, agency, or officer within the United 
States.
    (ii) Notwithstanding paragraph (c)(5)(i) of this section, a 
permanent resident alien who has not, since the commencement of 
proceedings and within the 15 years prior thereto, been convicted of a 
crime, failed to comply with an order to surrender or a period of 
voluntary departure, or been subject to a bench warrant or similar legal 
process (unless quashed, withdrawn, or cancelled as improvidently 
issued), may be considered for release under paragraph (c)(3) of this 
section.
    (6) Unremovable aliens and certain long-term detainees. (i) If the 
district director determines that an alien subject to section 
303(b)(3)(A)(ii) or (iii) of Div. C of Pub. L. 104-208 cannot be removed 
from the United States because the designated country of removal or 
deportation will not accept the alien's return, the district director 
may, in the exercise of discretion, consider release of the alien from 
custody upon such terms and conditions as the district director may 
prescribe, without regard to paragraphs (c)(2), (c)(4), and (c)(5) of 
this section.
    (ii) The district director may also, notwithstanding paragraph 
(c)(5) of this section, consider release from custody, upon such terms 
and conditions as the district director may prescribe, of any alien 
described in paragraph (c)(2)(ii) of this section who has been in the 
Service's custody for six months pursuant to a final order of 
deportation terminating the alien's status as a lawful permanent 
resident.
    (iii) The district director may release an alien from custody under 
this paragraph only in accordance with the standards set forth in 
paragraph (c)(3) of this section and any other applicable provisions of 
law.
    (iv) The district director's custody decision under this paragraph 
shall not be subject to redetermination by an immigration judge, but, in 
the case of a custody decision under paragraph (c)(6)(ii) of this 
section, may be appealed to the Board of Immigration Appeals pursuant to 
paragraph (d)(3)(iii) of this section.
    (7) Construction. A reference in this section to a provision in 
section 241 of the Act as in effect prior to April 1, 1997, shall be 
deemed to include a reference to the corresponding provision in section 
237 of the Act as in effect on April 1, 1997. A reference in this 
section to a ``crime'' shall be considered to include a reference to a 
conspiracy or attempt to commit such a crime. In calculating the 10-year 
period specified in paragraph (c)(4) of this section and the 15-year 
period specified in paragraph (c)(5) of this section, no period during 
which the alien was detained or incarcerated shall count toward the 
total. References in paragraph (c)(6)(i) of this section to the 
``district director'' shall

[[Page 502]]

be deemed to include a reference to any official designated by the 
Commissioner to exercise custody authority over aliens covered by that 
paragraph. Nothing in this part shall be construed as prohibiting an 
alien from seeking reconsideration of the Service's determination that 
the alien is within a category barred from release under this part.
    (8) Any officer authorized to issue a warrant of arrest may, in the 
officer's discretion, release an alien not described in section 
236(c)(1) of the Act, under the conditions at section 236(a)(2) and (3) 
of the Act; provided that the alien must demonstrate to the satisfaction 
of the officer that such release would not pose a danger to property or 
persons, and that the alien is likely to appear for any future 
proceeding. Such an officer may also, in the exercise of discretion, 
release an alien in deportation proceedings pursuant to the authority in 
section 242 of the Act (as designated prior to April 1, 1997), except as 
otherwise provided by law.
    (9) When an alien who, having been arrested and taken into custody, 
has been released, such release may be revoked at any time in the 
discretion of the district director, acting district director, deputy 
district director, assistant district director for investigations, 
assistant district director for detention and deportation, or officer in 
charge (except foreign), in which event the alien may be taken into 
physical custody and detained. If detained, unless a breach has 
occurred, any outstanding bond shall be revoked and canceled.
    (10) The provisions of Sec. 103.6 of this chapter shall apply to 
any bonds authorized. Subject to the provisions of this section, the 
provisions of Sec. 3.19 of this chapter shall govern availability to 
the respondent of recourse to other administrative authority for release 
from custody.
    (11) An immigration judge may not exercise the authority provided in 
this section, and the review process described in paragraph (d) of this 
section shall not apply, with respect to any alien beyond the custody 
jurisdiction of the immigration judge as provided in Sec. 3.19(h) of 
this chapter.
    (d) Appeals from custody decisions--(1) Application to immigration 
judge. After an initial custody determination by the district director, 
including the setting of a bond, the respondent may, at any time before 
an order under 8 CFR part 240 becomes final, request amelioration of the 
conditions under which he or she may be released. Prior to such final 
order, and except as otherwise provided in this chapter, the immigration 
judge is authorized to exercise the authority in section 236 of the Act 
(or section 242(a)(1) of the Act as designated prior to April 1, 1997 in 
the case of an alien in deportation proceedings) to detain the alien in 
custody, release the alien, and determine the amount of bond, if any, 
under which the respondent may be released, as provided in Sec. 3.19 of 
this chapter. If the alien has been released from custody, an 
application for amelioration of the terms of release must be filed 
within 7 days of release.
    (2) Application to the district director. After expiration of the 7-
day period in paragraph (d)(1) of this section, the respondent may 
request review by the district director of the conditions of his or her 
release.
    (3) Appeal to the Board of Immigration Appeals. An appeal relating 
to bond and custody determinations may be filed to the Board of 
Immigration Appeals in the following circumstances:
    (i) In accordance with Sec. 3.38 of this chapter, the alien or the 
Service may appeal the decision of an immigration judge pursuant to 
paragraph (d)(1) of this section.
    (ii) The alien, within 10 days, may appeal from the district 
director's decision under paragraph (d)(2)(i) of this section.
    (4) Effect of filing an appeal. The filing of an appeal from a 
determination of an immigration judge or district director under this 
paragraph shall not operate to delay compliance with the order (except 
as provided in Sec. 3.19(i)), nor stay the administrative proceedings 
or removal.
    (e) Privilege of communication. Every detained alien shall be 
notified that he or she may communicate with the consular or diplomatic 
officers of the country of his or her nationality in the United States. 
Existing treaties with

[[Page 503]]

the following countries require immediate communication with appropriate 
consular or diplomatic officers whenever nationals of the following 
countries are detained in removal proceedings, whether or not requested 
by the alien and even if the alien requests that no communication be 
undertaken in his or her behalf. When notifying consular or diplomatic 
officials, Service officers shall not reveal the fact that any detained 
alien has applied for asylum or withholding of removal.

Algeria \1\
---------------------------------------------------------------------------

    \1\ Arrangements with the countries listed in 8 CFR 236.1(e) provide 
that U.S. authorities shall notify responsible representatives within 72 
hours of the arrest or detention of one of their nationals.
---------------------------------------------------------------------------

Antigua and Barbuda
Armenia
Azerbaijan
Bahamas, The
Barbados
Belarus
Belize
Brunei
Bulgaria
China (People's Republic of) \2\
---------------------------------------------------------------------------

    \2\ Notification is not mandatory in the case of any person who 
carries a ``Republic of China'' passport issued by Taiwan. Such persons 
should be informed without delay that the nearest office of the Taipei 
Economic and Cultural Representative Office (``TECRO''), the unofficial 
entity representing Taiwan's interests in the United States, can be 
notified at their request.
---------------------------------------------------------------------------

Costa Rica
Cyprus
Czech Republic
Dominica
Fiji
Gambia, The
Georgia
Ghana
Grenada
Guyana
Hong Kong \3\
---------------------------------------------------------------------------

    \3\ Hong Kong reverted to Chinese sovereignty on July 1, 1997, and 
is now officially referred to as the Hong Kong Special Administrative 
Region, or ``S.A.R.'' Under paragraph 3(f)(2) of the March 25, 1997, 
U.S.-China Agreement on the Maintenance of the U.S. Consulate General in 
the Hong Kong Special Administrative Region, U.S. officials are required 
to notify Chinese officials of the arrest or detention of the bearers of 
Hong Kong passports in the same manner as is required for bearers of 
Chinese passports--i.e., immediately, and in any event, within four days 
of the arrest or detention.
---------------------------------------------------------------------------

Hungary
Jamaica
Kazakhstan
Kiribati
Kuwait
Kyrgyzstan
Malaysia
Malta
Mauritius
Moldova
Mongolia
Nigeria
Philippines
Poland \4\
---------------------------------------------------------------------------

    \4\ Consular communication is not mandatory for any Polish national 
who has been admitted for permanent residence in the United States. Such 
notification should only be provided upon request by a Polish national 
with permanent residency in the United States.
---------------------------------------------------------------------------

Romania
Russian Federation
St. Kitts and Nevis
St. Lucia
St. Vincent/Grenadines
Seychelles
Sierra Leone
Singapore
Slovak Republic
Tajikistan
Tanzania
Tonga
Trinidad and Tobago
Tunisia
Turkmenistan
Tuvalu
Ukraine
United Kingdom \5\
---------------------------------------------------------------------------

    \5\ United Kingdom includes England, Scotland, Wales, Northern 
Ireland and Islands and the British dependencies of Anguilla, British 
Virgin Islands, Bermuda, Montserrat, and the Turks and Caicos Islands. 
Their residents carry British passports.
---------------------------------------------------------------------------

U.S.S.R. \6\
---------------------------------------------------------------------------

    \6\ All U.S.S.R. successor states are covered by this agreement. 
They are: Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, 
Moldova, Russian Federation, Tajikistan, Turkmenistan, Ukraine, and 
Uzbekistan. Although the U.S.S.R. no longer exists, the U.S.S.R is 
listed here, because some nationals of its successor states may still be 
traveling on a U.S.S.R. passport. Mandatory consular notification 
applies to any national of such a state, including one traveling on a 
U.S.S.R. passport.
---------------------------------------------------------------------------

Uzbekistan
Zambia
Zimbabwe

    (f) Notification to Executive Office for Immigration Review of 
change in custody status. The Service shall notify the Immigration Court 
having administrative

[[Page 504]]

control over the Record of Proceeding of any change in custody location 
or of release from, or subsequent taking into, Service custody of a 
respondent/applicant pursuant to Sec. 3.19(g) of this chapter.
    (g) Notice of custody determination--(1) In general. At the time of 
issuance of the notice to appear, or at any time thereafter and up to 
the time removal proceedings are completed, an immigration official may 
issue a Form I-286, Notice of Custody Determination. A notice of custody 
determination may be issued by those immigration officials listed in 8 
CFR 287.5(e)(2) and may be served by those immigration officials listed 
in 8 CFR 287.5(e)(3), or other officers or employees of the Department 
or the United States who are delegated the authority to do so pursuant 
to 8 CFR 2.1.
    (2) Cancellation. If after the issuance of a notice of custody 
determination, a determination is made not to serve it, any official 
authorized to issue such notice may authorize its cancellation.

[62 FR 10360, Mar. 6, 1997; 62 FR 15363, Apr. 1, 1997, as amended at 63 
FR 27449, May 19, 1998; 65 FR 80294, Dec. 21, 2000; 70 FR 67088, Nov. 4, 
2005; 72 FR 1924, Jan. 17, 2007]



Sec. 236.2  Confined aliens, incompetents, and minors.

    (a) Service. If the respondent is confined, or if he or she is an 
incompetent, or a minor under the age of 14, the notice to appear, and 
the warrant of arrest, if issued, shall be served in the manner 
prescribed in Sec. 239.1 of this chapter upon the person or persons 
specified by Sec. 103.5a(c) of this chapter.
    (b) Service custody and cost of maintenance. An alien confined 
because of physical or mental disability in an institution or hospital 
shall not be accepted into physical custody by the Service until an 
order of removal has been entered and the Service is ready to remove the 
alien. When such an alien is an inmate of a public or private 
institution at the time of the commencement of the removal proceedings, 
expenses for the maintenance of the alien shall not be incurred by the 
Government until he or she is taken into physical custody by the 
Service.



Sec. 236.3  Detention and release of juveniles.

    (a) Juveniles. A juvenile is defined as an alien under the age of 18 
years.
    (b) Release. Juveniles for whom bond has been posted, for whom 
parole has been authorized, or who have been ordered released on 
recognizance, shall be released pursuant to the following guidelines:
    (1) Juveniles shall be released, in order of preference, to:
    (i) A parent;
    (ii) Legal guardian; or
    (iii) An adult relative (brother, sister, aunt, uncle, grandparent) 
who is not presently in Service detention, unless a determination is 
made that the detention of such juvenile is required to secure his or 
her timely appearance before the Service or the Immigration Court or to 
ensure the juvenile's safety or that of others. In cases where the 
parent, legal guardian, or adult relative resides at a location distant 
from where the juvenile is detained, he or she may secure release at a 
Service office located near the parent, legal guardian, or adult 
relative.
    (2) If an individual specified in paragraphs (b)(1)(i) through (iii) 
of this section cannot be located to accept custody of a juvenile, and 
the juvenile has identified a parent, legal guardian, or adult relative 
in Service detention, simultaneous release of the juvenile and the 
parent, legal guardian, or adult relative shall be evaluated on a 
discretionary case-by-case basis.
    (3) In cases where the parent or legal guardian is in Service 
detention or outside the United States, the juvenile may be released to 
such person as is designated by the parent or legal guardian in a sworn 
affidavit, executed before an immigration officer or consular officer, 
as capable and willing to care for the juvenile's well-being. Such 
person must execute an agreement to care for the juvenile and to ensure 
the juvenile's presence at all future proceedings before the Service or 
an immigration judge.
    (4) In unusual and compelling circumstances and in the discretion of 
the Director of the Office of Juvenile Affairs, a juvenile may be 
released to an adult, other than those identified in paragraphs 
(b)(1)(i) through (b)(1)(iii) of

[[Page 505]]

this section, who executes an agreement to care for the juvenile's well-
being and to ensure the juvenile's presence at all future proceedings 
before the Service or an immigration judge.
    (c) Juvenile coordinator. The case of a juvenile for whom detention 
is determined to be necessary should be referred to the ``Juvenile 
Coordinator,'' whose responsibilities should include, but not be limited 
to, finding suitable placement of the juvenile in a facility designated 
for the occupancy of juveniles. These may include juvenile facilities 
contracted by the Service, state or local juvenile facilities, or other 
appropriate agencies authorized to accommodate juveniles by the laws of 
the state or locality.
    (d) Detention. In the case of a juvenile for whom detention is 
determined to be necessary, for such interim period of time as is 
required to locate suitable placement for the juvenile, whether such 
placement is under paragraph (b) or (c) of this section, the juvenile 
may be temporarily held by Service authorities or placed in any Service 
detention facility having separate accommodations for juveniles.
    (e) Refusal of release. If a parent of a juvenile detained by the 
Service can be located, and is otherwise suitable to receive custody of 
the juvenile, and the juvenile indicates a refusal to be released to his 
or her parent, the parent(s) shall be notified of the juvenile's refusal 
to be released to the parent(s), and they shall be afforded the 
opportunity to present their views to the district director, chief 
patrol agent, Director of the Office of Juvenile Affairs or immigration 
judge before a custody determination is made.
    (f) Notice to parent of application for relief. If a juvenile seeks 
release from detention, voluntary departure, parole, or any form of 
relief from removal, where it appears that the grant of such relief may 
effectively terminate some interest inherent in the parent-child 
relationship and/or the juvenile's rights and interests are adverse with 
those of the parent, and the parent is presently residing in the United 
States, the parent shall be given notice of the juvenile's application 
for relief, and shall be afforded an opportunity to present his or her 
views and assert his or her interest to the district director, Director 
of the Office of Juvenile Affairs or immigration judge before a 
determination is made as to the merits of the request for relief.
    (g) Voluntary departure. Each juvenile, apprehended in the immediate 
vicinity of the border, who resides permanently in Mexico or Canada, 
shall be informed, prior to presentation of the voluntary departure form 
or being allowed to withdraw his or her application for admission, that 
he or she may make a telephone call to a parent, close relative, a 
friend, or to an organization found on the free legal services list. A 
juvenile who does not reside in Mexico or Canada who is apprehended 
shall be provided access to a telephone and must in fact communicate 
either with a parent, adult relative, friend, or with an organization 
found on the free legal services list prior to presentation of the 
voluntary departure form. If such juvenile, of his or her own volition, 
asks to contact a consular officer, and does in fact make such contact, 
the requirements of this section are satisfied.
    (h) Notice and request for disposition. When a juvenile alien is 
apprehended, he or she must be given a Form I-770, Notice of Rights and 
Disposition. If the juvenile is less than 14 years of age or unable to 
understand the notice, the notice shall be read and explained to the 
juvenile in a language he or she understands. In the event a juvenile 
who has requested a hearing pursuant to the notice subsequently decides 
to accept voluntary departure or is allowed to withdraw his or her 
application for admission, a new Form I-770 shall be given to, and 
signed by the juvenile.

[62 FR 10360, Mar. 6, 1997, as amended at 67 FR 39258, June 7, 2002]



Sec. 236.4  Removal of S-5, S-6, and S-7 nonimmigrants.

    (a) Condition of classification. As a condition of classification 
and continued stay in classification pursuant to section 101(a)(15)(S) 
of the Act, nonimmigrants in S classification must have executed Form I-
854, Part B, Inter-agency Alien Witness and Informant Record, certifying 
that they have knowingly waived their right to a removal hearing and 
right to contest,

[[Page 506]]

other than on the basis of an application for withholding of deportation 
or removal, any removal action, including detention pending deportation 
or removal, instituted before lawful permanent resident status is 
obtained.
    (b) Determination of deportability. (1) A determination to remove a 
deportable alien classified pursuant to section 101(a)(15)(S) of the Act 
shall be made by the district director having jurisdiction over the 
place where the alien is located.
    (2) A determination to remove such a deportable alien shall be based 
on one or more of the grounds of deportability listed in section 237 of 
the Act based on conduct committed after, or conduct or a condition not 
disclosed to the Service prior to, the alien's classification as an S 
nonimmigrant under section 101(a)(15)(S) of the Act, or for a violation 
of, or failure to adhere to, the particular terms and conditions of 
status in S nonimmigrant classification.
    (c) Removal procedures. (1) A district director who determines to 
remove an alien witness or informant in S nonimmigrant classification 
shall notify the Commissioner, the Assistant Attorney General, Criminal 
Division, and the relevant law enforcement agency 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 law 
enforcement agency have a right of appeal from any decision to remove.
    (2) A district director who has provided notice as set forth in 
paragraph (c)(1) of this section and who has been advised by the 
Commissioner that the Assistant Attorney General, Criminal Division, has 
not objected shall issue a Warrant of Removal. The alien shall 
immediately be arrested and taken into custody by the district director 
initiating the removal. An alien classified under the provisions of 
section 101(a)(15)(S) of the Act who is determined, pursuant to a 
warrant issued by a district director, to be deportable from the United 
States shall be removed from the United States to his or her country of 
nationality or last residence. The agency that requested the alien's 
presence in the United States shall ensure departure from the United 
States and so inform the district director in whose jurisdiction the 
alien has last resided. The district director, if necessary, shall 
oversee the alien's departure from the United States and, in any event, 
shall notify the Commissioner of the alien's departure.
    (d) Withholding of removal. An alien classified pursuant to section 
101(a)(15)(S) of the Act who applies for withholding of removal shall 
have 10 days from the date the Warrant of Removal is served upon the 
alien to file an application for such relief with the district director 
initiating the removal order. The procedures contained in Sec. Sec. 
208.2 and 208.16 of this chapter shall apply to such an alien who 
applies for withholding of removal.
    (e) Inadmissibility. An alien who applies for admission under the 
provisions of section 101(a)(15)(S) of the Act who is determined by an 
immigration officer not to be eligible for admission under that section 
or to be inadmissible to the United States under one or more of the 
grounds of inadmissibility listed in section 212 of the Act and which 
have not been previously waived by the Commissioner will be taken into 
custody. The district director having jurisdiction over the port-of-
entry shall follow the notification procedures specified in paragraph 
(c)(1) of this section. A district director who has provided such notice 
and who has been advised by the Commissioner that the Assistant Attorney 
General, Criminal Division, has not objected shall remove the alien 
without further hearing. An alien may not contest such removal, other 
than by applying for withholding of removal.



Sec. 236.5  Fingerprints and photographs.

    Every alien 14 years of age or older against whom proceedings based 
on deportability under section 237 of the Act are commenced under this 
part by service of a notice to appear shall be

[[Page 507]]

fingerprinted and photographed. Such fingerprints and photographs shall 
be made available to Federal, State, and local law enforcement agencies 
upon request to the district director or chief patrol agent having 
jurisdiction over the alien's record. Any such alien, regardless of his 
or her age, shall be photographed and/or fingerprinted if required by 
any immigration officer authorized to issue a notice to appear. Every 
alien 14 years of age or older who is found to be inadmissible to the 
United States and ordered removed by an immigration judge shall be 
fingerprinted, unless during the preceding year he or she has been 
fingerprinted at an American consular office.



Sec. 236.6  Information regarding detainees.

    No person, including any state or local government entity or any 
privately operated detention facility, that houses, maintains, provides 
services to, or otherwise holds any detainee on behalf of the Service 
(whether by contract or otherwise), and no other person who by virtue of 
any official or contractual relationship with such person obtains 
information relating to any detainee, shall disclose or otherwise permit 
to be made public the name of, or other information relating to, such 
detainee. Such information shall be under the control of the Service and 
shall be subject to public disclosure only pursuant to the provisions of 
applicable federal laws, regulations and executive orders. Insofar as 
any documents or other records contain such information, such documents 
shall not be public records. This section applies to all persons and 
information identified or described in it, regardless of when such 
persons obtained such information, and applies to all requests for 
public disclosure of such information, including requests that are the 
subject of proceedings pending as of April 17, 2002.

[67 FR 19511, Apr. 22, 2002]



Sec. Sec. 236.7-236.9  [Reserved]



                     Subpart B_Family Unity Program



Sec. 236.10  Description of program.

    The family unity program implements the provisions of section 301 of 
the Immigration Act of 1990, Public Law 101-649. This Act is referred to 
in this subpart as ``IMMACT 90''.



Sec. 236.11  Definitions.

    In this subpart, the term:
    Eligible immigrant means a qualified immigrant who is the spouse or 
unmarried child of a legalized alien.
    For purposes of Sec. Sec. 236.10 to 236.18 only, Legalized alien 
means an alien who:
    (1) Is a temporary or permanent resident under section 210 or 245A 
of the Act;
    (2) Is a permanent resident under section 202 of the Immigration 
Reform and Control Act of 1986 (Cuban/Haitian Adjustment); or
    (3) Is a naturalized U.S. citizen who was a permanent resident under 
section 210 or 245A of the Act or section 202 of the Immigrant Reform 
and Control Act of 1986 (IRCA) (Cuban/Haitian Adjustment), and 
maintained such a status until his or her naturalization.

[62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43679, July 14, 2000]



Sec. 236.12  Eligibility.

    (a) General. An alien who is not a lawful permanent resident is 
eligible to apply for benefits under the Family Unity Program if he or 
she establishes:
    (1) That he or she entered the United States before May 5, 1988 (in 
the case of a relationship to a legalized alien described in subsection 
(b)(2)(B) or (b)(2)(C) of section 301 of IMMACT 90), or as of December 
1, 1988 (in the case of a relationship to a legalized alien described in 
subsection (b)(2)(A) of section 301 of IMMACT 90), and has been 
continuously residing in the United States since that date; and
    (2) That as of May 5, 1988, (in the case of a relationship to a 
legalized alien described in subsection (b)(2)(B) or (b)(2) (C) of 
section 301 of IMMACT 90) or as of December 1, 1988, (in the case of a 
relationship to a legalized alien described in subsection (b)(2) (A) of 
section 301 of

[[Page 508]]

IMMACT 90), he or she was the spouse or unmarried child of a legalized 
alien, and that he or she has been eligible continuously since that time 
for family-sponsored immigrant status under section 203(a) (1), (2), or 
(3) or as an immediate relative under section 201 (b)(2) of the Act 
based on the same relationship.
    (b) Legalization application pending as of May 5, 1988 or December 
1, 1988. An alien whose legalization application was filed on or before 
May 5, 1988 (in the case of a relationship to a legalized alien 
described in subsection (b)(2)(B) or (b)(2)(C) of section 301 of IMMACT 
90), or as of December 1, 1988 (in the case of a relationship to a 
legalized alien described in subsection (b)(2)(A) of section 301 of 
IMMACT 90), but not approved until after that date will be treated as 
having been a legalized alien as of May 5, 1988 (in the case of a 
relationship to a legalized alien described in subsection (b)(2)(B) or 
(b)(2)(C) of section 301 of IMMACT 90), or as of December 1, 1988 (in 
the case of a relationship to a legalized alien described in subsection 
(b)(2)(A) of section 301 of IMMACT 90), for purposes of the Family Unity 
Program.

[62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43679, July 14, 2000]



Sec. 236.13  Ineligible aliens.

    The following categories of aliens are ineligible for benefits under 
the Family Unity Program:
    (a) An alien who is deportable under any paragraph in section 237(a) 
of the Act, except paragraphs (1)(A), (1)(B), (1)(C), and (3)(A); 
provided that an alien who is deportable under section 237(a)(1)(A) of 
such Act is also ineligible for benefits under the Family Unity Program 
if deportability is based upon a ground of inadmissibility described in 
section 212(a)(2) or (3) of the Act;
    (b) An alien who has been convicted of a felony or three or more 
misdemeanors in the United States;
    (c) An alien described in section 241(b)(3)(B) of the Act; or
    (d) An alien who has committed an act of juvenile delinquency (as 
defined in 18 U.S.C. 5031) which if committed by an adult would be 
classified as:
    (1) A felony crime of violence that has an element the use or 
attempted use of physical force against another individual; or
    (2) A felony offense that by its nature involves a substantial risk 
that physical force against another individual may be used in the course 
of committing the offense.

[62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43680, July 14, 2000]



Sec. 236.14  Filing.

    (a) General. An application for benefits under the Family Unity 
Program must be filed at the service center having jurisdiction over the 
alien's place of residence. A Form I-817, Application for Family Unity 
Benefits, must be filed with the correct fee required in Sec. 
103.7(b)(1) of this chapter and the required supporting documentation. A 
separate application with appropriate fee and documentation must be 
filed for each person claiming eligibility.
    (b) Decision. The service center director has sole jurisdiction to 
adjudicate an application for benefits under the Family Unity Program. 
The director will provide the applicant with specific reasons for any 
decision to deny an application. Denial of an application may not be 
appealed. An applicant who believes that the grounds for denial have 
been overcome may submit another application with the appropriate fee 
and documentation.
    (c) Referral of denied cases for consideration of issuance of notice 
to appear. If an application is denied, the case will be referred to the 
district director with jurisdiction over the alien's place of residence 
for consideration of whether to issue a notice to appear. After an 
initial denial, an applicant's case will not be referred for issuance of 
a notice to appear until 90 days from the date of the initial denial, to 
allow the alien the opportunity to file a new Form I-817 application in 
order to attempt to overcome the basis of the denial. However, if the 
applicant is found not to be eligible for benefits under Sec. 
236.13(b), the Service reserves the right to issue a notice to appear at 
any time after the initial denial.

[62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43680, July 14, 2000; 66 
FR 29672, June 1, 2001]

[[Page 509]]



Sec. 236.15  Voluntary departure and eligibility for employment.

    (a) Authority. Voluntary departure under this section implements the 
provisions of section 301 of IMMACT 90, and authority to grant voluntary 
departure under the family unity program derives solely from that 
section. Voluntary departure under the family unity program shall be 
governed solely by this section, notwithstanding the provisions of 
section 240B of the Act and 8 CFR part 240.
    (b) Children of legalized aliens. Children of legalized aliens 
residing in the United States, who were born during an authorized 
absence from the United States of mothers who are currently residing in 
the United States under voluntary departure pursuant to the Family Unity 
Program, may be granted voluntary departure under section 301 of IMMACT 
90 for a period of 2 years.
    (c) Duration of voluntary departure. An alien whose application for 
benefits under the Family Unity Program is approved will receive 
voluntary departure for 2 years, commencing with the date of approval of 
the application. Voluntary departure under this section shall be 
considered effective from the date on which the application was properly 
filed.
    (d) Employment authorization. An alien granted benefits under the 
Family Unity Program is authorized to be employed in the United States 
and will receive an employment authorization document. The validity 
period of the employment authorization document will coincide with the 
period of voluntary departure.
    (e) Extension of voluntary departure. An application for an 
extension of voluntary departure under the Family Unity Program must be 
filed by the alien on Form I-817 along with the correct fee required in 
Sec. 103.7(b)(1) of this chapter and the required supporting 
documentation. The submission of a copy of the previous approval notice 
will assist in shortening the processing time. An extension may be 
granted if the alien continues to be eligible for benefits under the 
Family Unity Program. However, an extension may not be approved if the 
legalized alien is a lawful permanent resident, or a naturalized U.S. 
citizen who was a lawful permanent resident under section 210 or 245A of 
the Act or section 202 of the Immigration Reform and Control Act of 1986 
(IRCA), Pub. L. 66-903, and maintained such status until his or her 
naturalization, and a petition for family-sponsored immigrant status has 
not been filed on behalf of the applicant. In such case, the Service 
will notify the alien of the reason for the denial and afford him or her 
the opportunity to file another Form I-817 once the petition, Form I-
130, has been filed on his or her behalf. No charging document will be 
issued for a period of 90 days from the date of the denial.
    (f) Supporting documentation for extension application. Supporting 
documentation need not include documentation provided with the previous 
application(s). The extension application shoud only include changes to 
previous applications and evidence of continuing eligibility since the 
date of prior approval.

[62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43680, July 14, 2000]



Sec. 236.16  Travel outside the United States.

    An alien granted Family Unity Program benefits who intends to travel 
outside the United States temporarily must apply for advance 
authorization using Form I-131, Application for Travel Document. The 
authority to grant an application for advance authorization for an alien 
granted Family Unity Program benefits rests solely with the district 
director. An alien who is granted advance authorization and returns to 
the United States in accordance with such authorization, and who is 
found not to be inadmissible under section 212(a)(2) or (3) of the Act, 
shall be inspected and admitted in the same immigration status as the 
alien had at the time of departure, and shall be provided the remainder 
of the voluntary departure period previously granted under the Family 
Unity Program.



Sec. 236.17  Eligibility for Federal financial assistance programs.

    An alien granted Family Unity Program benefits based on a 
relationship to a legalized alien as defined in Sec. 236.11

[[Page 510]]

is ineligible for public welfare assistance in the same manner and for 
the same period as the legalized alien who is ineligible for such 
assistance under section 245A(h) or 210(f) of the Act, respectively.



Sec. 236.18  Termination of Family Unity Program benefits.

    (a) Grounds for termination. The Service may terminate benefits 
under the Family Unity Program whenever the necessity for the 
termination comes to the attention of the Service. Such grounds will 
exist in situations including, but not limited to, those in which:
    (1) A determination is made that Family Unity Program benefits were 
acquired as the result of fraud or willful misrepresentation of a 
material fact;
    (2) The beneficiary commits an act or acts which render him or her 
inadmissible as an immigrant ineligible for benefits under the Family 
Unity Program;
    (3) The legalized alien upon whose status benefits under the Family 
Unity Program were based loses his or her legalized status;
    (4) The beneficiary is the subject of a final order of exclusion, 
deportation, or removal issued subsequent to the grant of Family Unity 
benefits unless such final order is based on entry without inspection; 
violation of status; or failure to comply with section 265 of the Act; 
or inadmissibility at the time of entry other than inadmissibility 
pursuant to section 212(a)(2) or 212(a)(3) of the Act, regardless of 
whether the facts giving rise to such ground occurred before or after 
the benefits were granted; or
    (5) A qualifying relationship to a legalized alien no longer exists.
    (b) Notice procedure. Notice of intent to terminate and of the 
grounds thereof shall be served pursuant to the provisions of Sec. 
103.5a of this chapter. The alien shall be given 30 days to respond to 
the notice and may submit to the Service additional evidence in 
rebuttal. Any final decision of termination shall also be served 
pursuant to the provisions of Sec. 103.5a of this chapter. Nothing in 
this section shall preclude the Service from commencing exclusion or 
deportation proceedings prior to termination of Family Unity Program 
benefits.
    (c) Effect of termination. Termination of benefits under the Family 
Unity Program, other than as a result of a final order of removal, shall 
render the alien amenable to removal proceedings under section 240 of 
the Act. If benefits are terminated, the period of voluntary departure 
under this section is also terminated.

[62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43680, July 14, 2000]

                           PART 237 [RESERVED]



PART 238_EXPEDITED REMOVAL OF AGGRAVATED FELONS--Table of Contents




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



Sec. 238.1  Proceedings under section 238(b) of the Act.

    (a) Definitions. As used in this part the term:
    Deciding Service officer means a district director, chief patrol 
agent, or another immigration officer designated by a district director, 
chief patrol agent, the Deputy Executive Associate Commissioner for 
Detention and Removal, or the Director of the Office of Juvenile 
Affairs, so long as that person is not the same person as the Issuing 
Service Officer.
    Issuing Service officer means any Service officer listed in Sec. 
239.1 of this chapter as authorized to issue notices to appear.
    (b) Preliminary consideration and Notice of Intent to Issue a Final 
Administrative Deportation Order; commencement of proceedings--(1) Basis 
of Service charge. An issuing Service officer shall cause to be served 
upon an alien a Form I-851, Notice of Intent to Issue a Final 
Administrative Deportation Order (Notice of Intent), if the officer is 
satisfied that there is sufficient evidence, based upon questioning of 
the alien by an immigration officer and upon any other evidence 
obtained, to support a finding that the individual:
    (i) Is an alien;
    (ii) Has not been lawfully admitted for permanent residence, or has 
conditional permanent resident status under section 216 of the Act;

[[Page 511]]

    (iii) Has been convicted (as defined in section 101(a)(48) of the 
Act and as demonstrated by any of the documents or records listed in 
Sec. 3.41 of this chapter) of an aggravated felony and such conviction 
has become final; and
    (iv) Is deportable under section 237(a)(2)(A)(iii) of the Act, 
including an alien who has neither been admitted nor paroled, but who is 
conclusively presumed deportable under section 237(a)(2)(A)(iii) by 
operation of section 238(c) of the Act (``Presumption of 
Deportability'').
    (2) Notice. (i) Removal proceedings under section 238(b) of the Act 
shall commence upon personal service of the Notice of Intent upon the 
alien, as prescribed by Sec. Sec. 103.5a(a)(2) and 103.5a(c)(2) of this 
chapter. The Notice of Intent shall set forth the preliminary 
determinations and inform the alien of the Service's intent to issue a 
Form I-851A, Final Administrative Removal Order, without a hearing 
before an immigration judge. The Notice of Intent shall constitute the 
charging document. The Notice of Intent shall include allegations of 
fact and conclusions of law. It shall advise that the alien: has the 
privilege of being represented, at no expense to the government, by 
counsel of the alien's choosing, as long as counsel is authorized to 
practice in removal proceedings; may request withholding of removal to a 
particular country if he or she fears persecution or torture in that 
country; may inspect the evidence supporting the Notice of Intent; may 
rebut the charges within 10 calendar days after service of such Notice 
(or 13 calendar days if service of the Notice was by mail).
    (ii) The Notice of Intent also shall advise the alien that he or she 
may designate in writing, within the rebuttal period, the country to 
which he or she chooses to be deported in accordance with section 241 of 
the Act, in the event that a Final Administrative Removal Order is 
issued, and that the Service will honor such designation only to the 
extent permitted under the terms, limitations, and conditions of section 
241 of the Act.
    (iii) The Service must determine that the person served with the 
Notice of Intent is the person named on the notice.
    (iv) The Service shall provide the alien with a list of available 
free legal services programs qualified under 8 CFR part 3 and 
organizations recognized pursuant to 8 CFR part 292, located within the 
district or sector where the Notice of Intent is issued.
    (v) The Service must either provide the alien with a written 
translation of the Notice of Intent or explain the contents of the 
Notice of Intent to the alien in the alien's native language or in a 
language that the alien understands.
    (c) Alien's response--(1) Time for response. The alien will have 10 
calendar days from service of the Notice of Intent or 13 calendar days 
if service is by mail, to file a response to the Notice of Intent. In 
the response, the alien may: designate his or her choice of country for 
removal; submit a written response rebutting the allegations supporting 
the charge and/or requesting the opportunity to review the Government's 
evidence; and/or submit a statement indicating an intention to request 
withholding of removal under 8 CFR 208.16 of this chapter, and/or 
request in writing an extension of time for response, stating the 
specific reasons why such an extension is necessary.
    (2) Nature of rebuttal or request to review evidence. (i) If an 
alien chooses to rebut the allegations contained in the Notice of 
Intent, the alien's written response must indicate which finding(s) are 
being challenged and should be accompanied by affidavit(s), documentary 
information, or other specific evidence supporting the challenge.
    (ii) If an alien's written response requests the opportunity to 
review the Government's evidence, the Service shall serve the alien with 
a copy of the evidence in the record of proceeding upon which the 
Service is relying to support the charge. The alien may, within 10 
calendar days following service of the Government's evidence (13 
calendar days if service is by mail), furnish a final response in 
accordance with paragraph (c)(1) of this section. If the alien's final 
response is a rebuttal of the allegations, such a final response should 
be accompanied by affidavit(s), documentary information, or other 
specific evidence supporting the challenge.

[[Page 512]]

    (d) Determination by deciding Service officer--(1) No response 
submitted or concession of deportability. If the deciding Service 
officer does not receive a timely response and the evidence in the 
record of proceeding establishes deportability by clear, convincing, and 
unequivocal evidence, or if the alien concedes deportability, then the 
deciding Service officer shall issue and cause to be served upon the 
alien a Final Administrative Removal Order that states the reasons for 
the deportation decision. The alien may, in writing, waive the 14-day 
waiting period before execution of the final order of removal provided 
in a paragraph (f) of this section.
    (2) Response submitted--(i) Insufficient rebuttal; no genuine issue 
of material fact. If the alien timely submits a rebuttal to the 
allegations, but the deciding Service officer finds that deportability 
is established by clear, convincing, and unequivocal evidence in the 
record of proceeding, the deciding Service officer shall issue and cause 
to be served upon the alien a Final Administrative Removal Order that 
states the reasons for the decision of deportability.
    (ii) Additional evidence required. (A) If the deciding Service 
officer finds that the record of proceeding, including the alien's 
timely rebuttal, raises a genuine issue of material fact regarding the 
preliminary findings, the deciding Service officer may either obtain 
additional evidence from any source, including the alien, or cause to be 
issued a notice to appear to initiate removal proceedings under section 
240 of the Act. The deciding Service officer may also obtain additional 
evidence from any source, including the alien, if the deciding Service 
officer deems that such additional evidence may aid the officer in the 
rendering of a decision.
    (B) If the deciding Service officer considers additional evidence 
from a source other than the alien, that evidence shall be made a part 
of the record of proceeding, and shall be provided to the alien. If the 
alien elects to submit a response to such additional evidence, such 
response must be filed with the Service within 10 calendar days of 
service of the additional evidence (or 13 calendar days if service is by 
mail). If the deciding Service officer finds, after considering all 
additional evidence, that deportability is established by clear, 
convincing, and unequivocal evidence in the record of proceeding, the 
deciding Service officer shall issue and cause to be served upon the 
alien a Final Administrative Removal Order that states the reasons for 
the decision of deportability.
    (iii) Conversion to proceedings under section 240 of the Act. If the 
deciding Service officer finds that the alien is not amenable to removal 
under section 238 of the Act, the deciding Service officer shall 
terminate the expedited proceedings under section 238 of the Act and 
shall, where appropriate, cause to be issued a notice to appear for the 
purpose of initiating removal proceedings before an immigration judge 
under section 240 of the Act.
    (3) Termination of proceedings by deciding Service officer. Only the 
deciding Service officer may terminate proceedings under section 238 of 
the Act, in accordance with this section.
    (e) Proceedings commenced under section 240 of the Act. In any 
proceeding commenced under section 240 of the Act which is based on 
deportability under section 237 of the Act, if it appears that the 
respondent alien is subject to removal pursuant to section 238 of the 
Act, the immigration judge may, upon the Service's request, terminate 
the case and, upon such termination, the Service may commence 
administrative proceedings under section 238 of the Act. However, in the 
absence of any such request, the immigration judge shall complete the 
proceeding commenced under section 240 of the Act.
    (f) Executing final removal order of deciding Service officer--(1) 
Time of execution. Upon the issuance of a Final Administrative Removal 
Order, the Service shall issue a Warrant of Removal in accordance with 
Sec. 241.2 of this chapter; such warrant shall be executed no sooner 
than 14 calendar days after the date the Final Administrative Removal 
Order is issued, unless the alien knowingly, voluntarily, and in writing 
waives the 14-day period.
    (2) Country to which alien is to be removed. The deciding Service 
officer shall designate the country of removal

[[Page 513]]

in the manner prescribed by section 241 of the Act.
    (3) Withholding of removal. If the alien has requested withholding 
of removal under Sec. 208.16 of this chapter, the deciding officer 
shall, upon issuance of a Final Administrative Removal Order, 
immediately refer the alien's case to an asylum officer to conduct a 
reasonable fear determination in accordance with Sec. 208.31 of this 
chapter.
    (g) Arrest and detention. At the time of issuance of a Notice of 
Intent or at any time thereafter and up to the time the alien becomes 
the subject of a Warrant of Removal, the alien may be arrested and taken 
into custody under the authority of a Warrant of Arrest issued by an 
officer listed in Sec. 287.5(e)(2) of this chapter. The decision of the 
Service concerning custody or bond shall not be administratively 
appealable during proceedings initiated under section 238 of the Act and 
this part.
    (h) Record of proceeding. The Service shall maintain a record of 
proceeding for judicial review of the Final Administrative Removal Order 
sought by any petition for review. The record of proceeding shall 
include, but not necessarily be limited to: the charging document 
(Notice of Intent); the Final Administrative Removal Order (including 
any supplemental memorandum of decision); the alien's response, if any; 
all evidence in support of the charge; and any admissible evidence, 
briefs, or documents submitted by either party respecting deportability. 
The executed duplicate of the Notice of Intent in the record of 
proceedings shall be retained as evidence that the individual upon whom 
the notice for the proceeding was served was, in fact, the alien named 
in the notice.

[62 FR 10365, Mar. 6, 1997, as amended at 64 FR 8494, Feb. 19, 1999; 67 
FR 39258, June 7, 2002]



PART 239_INITIATION OF REMOVAL PROCEEDINGS--Table of Contents




Sec.
239.1 Notice to appear.
239.2 Cancellation of notice to appear.
239.3 Effect of filing notice to appear.

    Authority: 8 U.S.C. 1103, 1221, 1229; Homeland Security Act of 2002, 
Public Law 107-296; 8 CFR part 2.

    Source: 62 FR 10366, Mar. 6, 1997, unless otherwise noted.



Sec. 239.1  Notice to appear.

    (a) Issuance of notice to appear. Any immigration officer, or 
supervisor thereof, performing an inspection of an arriving alien at a 
port-of-entry may issue a notice to appear to such alien. In addition, 
the following officers, or officers acting in such capacity, may issue a 
notice to appear:
    (1) District directors (except foreign);
    (2) Deputy district directors (except foreign);
    (3) Chief patrol agents;
    (4) Deputy chief patrol agents;
    (5) Assistant chief patrol agents;
    (6) Patrol agents in charge;
    (7) Assistant patrol agents in charge;
    (8) Field operations supervisors;
    (9) Special operations supervisors;
    (10) Supervisory border patrol agents;
    (11) Service center directors;
    (12) Deputy service center directors;
    (13) Assistant service center directors for examinations;
    (14) Supervisory district adjudications officers;
    (15) Supervisory asylum officers;
    (16) Officers in charge (except foreign);
    (17) Assistant officers in charge (except foreign);
    (18) Special agents in charge;
    (19) Deputy special agents in charge;
    (20) Associate special agents in charge;
    (21) Assistant special agents in charge;
    (22) Resident agents in charge;
    (23) Supervisory special agents;
    (24) Directors of investigations;
    (25) District directors for interior enforcement;
    (26) Deputy or assistant district directors for interior 
enforcement;
    (27) Director of detention and removal;
    (28) Field office directors;
    (29) Deputy field office directors;
    (30) Supervisory deportation officers;
    (31) Supervisory detention and deportation officers;
    (32) Directors or officers in charge of detention facilities;
    (33) Directors of field operations;
    (34) Deputy or assistant directors of field operations;
    (35) District field officers;

[[Page 514]]

    (36) Port directors;
    (37) Deputy port directors;
    (38) Supervisory service center adjudications officers;
    (39) Unit Chief, Law Enforcement Support Center;
    (40) Section Chief, Law Enforcement Support Center; or
    (41) Other officers or employees of the Department or of the United 
States who are delegated the authority as provided by 8 CFR 2.1 to issue 
notices to appear.
    (b) Service of notice to appear. Service of the notice to appear 
shall be in accordance with section 239 of the Act.

[68 FR 35275, June 13, 2003, as amended at 70 FR 67089, Nov. 4, 2005]



Sec. 239.2  Cancellation of notice to appear.

    (a) Any officer authorized by Sec. 239.1(a) to issue a notice to 
appear may cancel such notice prior to jurisdiction vesting with the 
immigration judge pursuant to Sec. 3.14 of this chapter provided the 
officer is satisfied that:
    (1) The respondent is a national of the United States;
    (2) The respondent is not deportable or inadmissible under 
immigration laws;
    (3) The respondent is deceased;
    (4) The respondent is not in the United States;
    (5) The notice was issued for the respondent's failure to file a 
timely petition as required by section 216(c) of the Act, but his or her 
failure to file a timely petition was excused in accordance with section 
216(d)(2)(B) of the Act;
    (6) The notice to appear was improvidently issued, or
    (7) Circumstances of the case have changed after the notice to 
appear was issued to such an extent that continuation is no longer in 
the best interest of the government.
    (b) A notice to appear issued pursuant to section 235(b)(3) of the 
Act may be canceled under provisions in paragraphs (a)(2) and (a)(6) of 
this section only by the issuing officer, unless it is impracticable for 
the issuing officer to cancel the notice.
    (c) Motion to dismiss. After commencement of proceedings pursuant to 
8 CFR 1003.14, ICE counsel, or any officer enumerated in paragraph (a) 
of this section, may move for dismissal of the matter on the grounds set 
out under paragraph (a) of this section.
    (d) Motion for remand. After commencement of the hearing, ICE 
counsel, or any officer enumerated in paragraph (a) of this section may 
move for remand of the matter to district jurisdiction on the ground 
that the foreign relations of the United States are involved and require 
further consideration.
    (e) Warrant of arrest. When a notice to appear is canceled or 
proceedings are terminated under this section any outstanding warrant of 
arrest is canceled.

[62 FR 10366, Mar. 6, 1997, as amended at 68 FR 35276, June 13, 2003]



Sec. 239.3  Effect of filing notice to appear.

    The filing of a notice to appear shall have no effect in determining 
periods of unlawful presence as defined in section 212(a)(9)(B) of the 
Act.



PART 240_PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED 

STATES--Table of Contents




Subpart A--Removal Proceedings [Reserved]

                    Subpart B_Cancellation of Removal

Sec.
240.21 Suspension of deportation and adjustment of status under section 
          244(a) of the Act (as in effect before April 1, 1997) and 
          cancellation of removal and adjustment of status under section 
          240A(b) of the Act for certain nonpermanent residents.

                      Subpart C_Voluntary Departure

240.25 Voluntary departure--authority of the Service.

Subpart D--Exclusion of Aliens (for Proceedings Commenced Prior to April 1, 
1997) [Reserved]

Subpart E--Proceedings to Determine Deportability of Aliens in the United 
States: Hearing and Appeal (for Proceedings Commenced Prior to April 1, 
1997) [Reserved]

Subpart F--Suspension of Deportation and Voluntary Departure (for 
Proceedings

[[Page 515]]

Commenced Prior to April 1, 1997) [Reserved]

Subpart G--Civil Penalties for Failure to Depart [Reserved]

  Subpart H_Applications for Suspension of Deportation or Special Rule 
      Cancellation of Removal Under Section 203 of Pub. L. 105	100

240.60 Definitions.
240.61 Aplicability.
240.62 Jurisdiction.
240.63 Application process.
240.64 Eligibility--general.
240.65 Eligibility for suspension of deportation.
240.66 Eligibility for special rule cancellation of removal.
240.67 Procedure for interview before an asylum officer.
240.68 Failure to appear at an interview before an asylum officer or 
          failure to follow requirements for fingerprinting.
240.69 Reliance on information compiled by other sources.
240.70 Decision by the Service.

    Authority: 8 U.S.C. 1103; 1182, 1186a, 1224, 1225, 1226, 1227, 1251, 
1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-100 (111 
Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat. 2681); 8 CFR 
part 2.

    Source: 62 FR 10367, Mar. 6, 1997, unless otherwise noted.

Subpart A--Removal Proceedings [Reserved]



                    Subpart B_Cancellation of Removal



Sec. 240.21  Suspension of deportation and adjustment of status under section 

244(a) of the Act (as in effect before April 1, 1997) and cancellation of 

removal and adjustment of status under section 240A(b) of the Act for 

certain nonpermanent residents.

    (a) Applicability of annual cap on suspension of deportation or 
cancellation of removal. (1) As used in this section, the term cap means 
the numerical limitation of 4,000 grants of suspension of deportation or 
cancellation of removal in any fiscal year (except fiscal year 1998, 
which has a limitation of 8,000 grants) pursuant to section 240A(e) of 
the Act.
    (2) The provisions of this section apply to grants of suspension of 
deportation pursuant to section 244(a) of the Act (as in effect before 
April 1, 1997) or cancellation of removal pursuant to section 240A(b) of 
the Act that are subject to a numerical limitation in section 240A(e) of 
the Act for any fiscal year. This section does not apply to grants of 
suspension of deportation or cancellation of removal to aliens described 
in section 309(c)(5)(C)(i) of the Illegal Immigration Reform and 
Immigrant Responsibility Act (IIRIRA), as amended by section 203(a)(1) 
of the Nicaraguan Adjustment and Central American Relief Act (NACARA), 
or aliens in deportation proceedings prior to April 1, 1997, who apply 
for suspension of deportation pursuant to section 244(a)(3) of the Act 
(as in effect prior to April 1, 1997). The Immigration Court and the 
Board shall no longer issue conditional grants of suspension of 
deportation or cancellation of removal as provided in 8 CFR 240.21 (as 
in effect prior to September 30, 1998).
    (b) Conditional grants of suspension of deportation or cancellation 
of removal in fiscal year 1998 cases--(1) Conversion to grants. Except 
with respect to cases described in paragraphs (b)(2) and (b)(3) of this 
section, EOIR shall grant suspension of deportation or cancellation of 
removal without condition prior to October 1, 1998, to the first 8,000 
aliens given conditional grants of suspension of deportation or 
cancellation of removal (as determined by the date of the immigration 
judge's order or, if the order was appealed to the Board, the date such 
order was entered by the Board.)
    (2) Treatment of certain nationals of Nicaragua and Cuba who 
received conditional grants of suspension of deportation or cancellation 
of removal on or before September 30, 1998--(i) NACARA adjustment 
request. An application for suspension of deportation or cancellation of 
removal filed by a national of Nicaragua or Cuba that was granted on a 
conditional basis on or before September 30, 1998, shall be deemed to be 
a request for adjustment of status pursuant to section 202 of NACARA 
(``NACARA adjustment'') for the period starting September 30, 1998 and 
ending December 31, 1998. The Service shall provide the applicant with 
notice of the date, time, and place at which the applicant must appear 
before a Service officer to perfect the request for

[[Page 516]]

NACARA adjustment. Such notice shall include an attestation form, 
Attestation of Alien and Memorandum of Creation of Record of Lawful 
Permanent Residence, Form I-895, regarding the applicant's eligibility 
for NACARA adjustment.
    (ii) Submission of documentation. To perfect the request for NACARA 
adjustment, the applicant must appear before a Service officer on the 
date scheduled with the following documentation:
    (A) The order granting suspension of deportation or cancellation of 
removal on a conditional basis issued on or before September 30, 1998;
    (B) A completed, but unsigned Form I-895, which the applicant shall 
be required to sign and to attest to the veracity of the information 
contained therein in the presence of a Service officer;
    (C) Any applicable applications for waiver of inadmissibility; and
    (D) Two ``ADIT-style'' photographs; meeting the specifications in 
the instructions attached to Form I-895.
    (iii) Waiver of documentation and fees. The provisions of Sec. 
245.13(e) and (f) of this chapter relating to documentary requirements 
for NACARA adjustment are waived with respect to an alien seeking to 
perfect a request for adjustment of status pursuant to paragraph (b)(2) 
of this section. In addition, the fees for the NACARA adjustment and for 
any applications for waivers of inadmissibility submitted in conjunction 
with perfecting a request for NACARA adjustment shall be waived.
    (iv) NACARA adjustment determination. In determining an applicant's 
eligibility for NACARA adjustment under the provisions of paragraph 
(b)(2) of this section, unless the Service officer before whom the 
applicant appears is not satisfied that the applicant is admissible to 
the United States in accordance with section 202(a)(1)(B) of NACARA, and 
has continuously resided in the United States from December 1, 1995, 
through the date of appearance before the Service officer (not counting 
an absence or absences from the United States totaling 180 days or less 
or any absences that occurred pursuant to advance authorization for 
parole (Form I-512 issued by the Service)), the Service officer shall 
accept an alien's attestation of admissibility and/or continuous 
physical presence as sufficient evidence that the applicant has met the 
admissibility and/or continuous physical presence requirement for NACARA 
adjustment. If the Service officer grants NACARA adjustment, then the 
Service officer shall create a record of lawful permanent residence and 
the prior order granting suspension of deportation or cancellation of 
removal on a conditional basis shall be automatically vacated and the 
deportation or removal proceedings shall be automatically terminated. 
The Service officer (whose decision in this regard is not subject to 
appeal) shall not adjust the applicant to lawful permanent resident 
status pursuant to section 202 of NACARA if:
    (A) The Service officer is not satisfied that the applicant is 
eligible for NACARA adjustment and so indicates on the attestation form; 
or
    (B) The applicant indicates on the attestation form that he or she 
does not wish to receive NACARA adjustment.
    (v) Automatic conversion. If the Service officer does not adjust the 
applicant to lawful permanent resident status pursuant to section 202 of 
NACARA, the applicant's conditional grant of suspension of deportation 
or cancellation of removal shall be automatically converted to a grant 
of suspension of deportation or cancellation of removal. Upon such a 
conversion, the Service shall create a record of lawful permanent 
residence based upon the grant of suspension of deportation or 
cancellation of removal.
    (vi) Failure to appear. An alien who fails to appear to perfect his 
or her request for NACARA adjustment shall have his or her conditional 
grant of suspension of deportation or cancellation of removal 
automatically converted by the Immigration Court or the Board to a grant 
of suspension of deportation or cancellation of removal effective 
December 31, 1998.
    (3) Conditional grants not converted in fiscal year 1998. The 
provisions of paragraphs (b)(1) and (b)(2) of this section for granting 
relief shall not apply with respect to:
    (i) Any case in which a conditional grant of suspension of 
deportation or

[[Page 517]]

cancellation of removal is pending on appeal before the Board as of 
September 30, 1998 or, if the right to appeal to the Board has not been 
waived, the time for an appeal has not expired. After the Board issues 
its decision or the time for appeal has expired, the conditional grant 
shall be converted to a grant when a grant is available.
    (ii) Any other conditional grant not described in paragraphs (b)(1), 
(b)(2) or (b)(3)(i) of this section, which was not converted to a grant 
in fiscal year 1998. Such a conditional grant shall be converted to a 
grant when a grant is available.
    (4) Motion to reopen. The Service may file a motion to reopen within 
90 days after the alien is issued a grant of suspension of deportation 
or cancellation of removal pursuant to paragraphs (b)(1), (b)(2), or 
(b)(3) of this section, if after the issuance of a conditional grant by 
the Immigration Court or the Board the applicant committed an act that 
would have rendered him or her ineligible for suspension of deportation 
or cancellation or removal at the time of the conversion.
    (5) Travel for aliens conditionally granted suspension of 
deportation or cancellation of removal. If the Immigration Court or the 
Board granted suspension of deportation or cancellation of removal on a 
conditional basis or, if the conditional grant by the Immigration Court 
was appealed to the Board and the Board issued such a conditional grant, 
the alien shall retain the conditional grant of suspension of 
deportation or cancellation of removal upon return to the United States 
following a temporary absence abroad and be permitted to resume 
completion of his or her case, provided that:
    (i) The alien departed on or before September 30, 1998 with or 
without a grant of advance parole from the District Director; or
    (ii) The alien, prior to his or her departure from the United States 
after September 30, 1998, obtained a grant of advance parole from the 
District Director in accordance with section 212(d)(5) of the Act and 
Sec. 212.5 of this chapter and complied with the terms and conditions 
of the advance parole.
    (c) Grants of suspension of deportation or cancellation of removal 
in fiscal years subsequent to fiscal year 1998. On and after October 1, 
1998, the Immigration Court and the Board may grant applications for 
suspension of deportation and adjustment of status under section 244(a) 
of the Act (as in effect prior to April 1, 1997) or cancellation of 
removal and adjustment of status under section 240A(b) of the Act that 
meet the statutory requirements for such relief and warrant a favorable 
exercise of discretion until the annual numerical limitation has been 
reached in that fiscal year. The awarding of such relief shall be 
determined according to the date the order granting such relief becomes 
final as defined in Sec. Sec. 3.1(d)(3) and 3.39 of this chapter.
    (1) Applicability of the annual cap. When grants are no longer 
available in a fiscal year, further decisions to grant or deny such 
relief shall be reserved until such time as a grant becomes available 
under the annual limitation in a subsequent fiscal year. Immigration 
judges and the Board may deny without reserving decision or may 
pretermit those suspension of deportation or cancellation of removal 
applications in which the applicant has failed to establish statutory 
eligibility for relief. The basis of such denial or pretermission may 
not be based on an unfavorable exercise of discretion, a finding of no 
good moral character on a ground not specifically noted in section 
101(f) of the Act, a failure to establish exceptional or extremely 
unusual hardship to a qualifying relative in cancellation cases, or a 
failure to establish extreme hardship to the applicant and/or qualifying 
relative in suspension cases.
    (2) Aliens applying for additional forms of relief. Whether or not 
the cap has been reached, the Immigration Court or the Board shall 
adjudicate concurrently all other forms of relief for which the alien 
has applied. Applications for suspension of deportation or cancellation 
of removal shall be denied in the exercise of discretion if the alien is 
granted asylum or adjustment of status, including pursuant to section 
202 of NACARA, while the suspension of deportation or cancellation of 
removal application is pending. Where an appeal of a decision granting 
asylum or adjustment is sustained by the Board,

[[Page 518]]

a decision to deny as a matter of discretion an application for 
suspension of deportation or cancellation of removal on this basis shall 
be reconsidered.

[63 FR 52138, Sept. 30, 1998, as amended at 66 FR 6446, Jan. 22, 2001]



                      Subpart C_Voluntary Departure



Sec. 240.25  Voluntary departure--authority of the Service.

    (a) Authorized officers. The authority contained in section 240B(a) 
of the Act to permit aliens to depart voluntarily from the United States 
may be exercised in lieu of being subject to proceedings under section 
240 of the Act by district directors, assistant district directors for 
investigations, assistant district directors for examinations, officers 
in charge, chief patrol agents, the Deputy Executive Associate 
Commissioner for Detention and Removal, the Director of the Office of 
Juvenile Affairs, service center directors, and assistant service center 
directors for examinations.
    (b) Conditions. The Service may attach to the granting of voluntary 
departure any conditions it deems necessary to ensure the alien's timely 
departure from the United States, including the posting of a bond, 
continued detention pending departure, and removal under safeguards. The 
alien shall be required to present to the Service, for inspection and 
photocopying, his or her passport or other travel documentation 
sufficient to assure lawful entry into the country to which the alien is 
departing. The Service may hold the passport or documentation for 
sufficient time to investigate its authenticity. A voluntary departure 
order permitting an alien to depart voluntarily shall inform the alien 
of the penalties under section 240B(d) of the Act.
    (c) Decision. The authorized officer, in his or her discretion, 
shall specify the period of time permitted for voluntary departure, and 
may grant extensions thereof, except that the total period allowed, 
including any extensions, shall not exceed 120 days. Every decision 
regarding voluntary departure shall be communicated in writing on Form 
I-210, Notice of Action--Voluntary Departure. Voluntary departure may 
not be granted unless the alien requests such voluntary departure and 
agrees to its terms and conditions.
    (d) Application. Any alien who believes himself or herself to be 
eligible for voluntary departure under this section may apply therefor 
at any office of the Service. After the commencement of removal 
proceedings, the application may be communicated through the Service 
counsel. If the Service agrees to voluntary departure after proceedings 
have commenced, it may either:
    (1) Join in a motion to terminate the proceedings, and if the 
proceedings are terminated, grant voluntary departure; or
    (2) Join in a motion asking the immigration judge to permit 
voluntary departure in accordance with Sec. 240.26.
    (e) Appeals. An appeal shall not lie from a denial of an application 
for voluntary departure under this section, but the denial shall be 
without prejudice to the alien's right to apply to the immigration judge 
for voluntary departure in accordance with Sec. 240.26 or for relief 
from removal under any provision of law.
    (f) Revocation. If, subsequent to the granting of an application for 
voluntary departure under this section, it is ascertained that the 
application should not have been granted, that grant may be revoked 
without advance notice by any officer authorized to grant voluntary 
departure under Sec. 240.25(a). Such revocation shall be communicated 
in writing, citing the statutory basis for revocation. No appeal shall 
lie from revocation.

[62 FR 10367, Mar. 6, 1997, as amended at 67 FR 39258, June 7, 2002]

Subpart D--Exclusion of Aliens (for Proceedings Commenced Prior to April 1, 
1997) [Reserved]

Subpart E--Proceedings to Determine Deportability of Aliens in the United 
States: Hearing and Appeal (for Proceedings Commenced Prior to April 1, 
1997) [Reserved]

[[Page 519]]

Subpart F--Suspension of Deportation and Voluntary Departure (for 
Proceedings Commenced Prior to April 1, 1997) [Reserved]

Subpart G--Civil Penalties for Failure to Depart [Reserved]



  Subpart H_Applications for Suspension of Deportation or Special Rule 

      Cancellation of Removal Under Section 203 of Pub. L. 105	100

    Source: 64 FR 27876, May 21, 1999, unless otherwise noted.



Sec. 240.60  Definitions.

    As used in this subpart the term:
    ABC means American Baptist Churches v. Thornburgh, 760 F. Supp. 796 
(N.D. Cal. 1991).
    ABC class member refers to:
    (1) Any Guatemalan national who first entered the United States on 
or before October 1, 1990; and
    (2) Any Salvadoran national who first entered the United States on 
or before September 19, 1990.
    Asylum application pending adjudication by the Service means any 
asylum application for which the Service has not served the applicant 
with a final decision or which has not been referred to the Immigration 
Court.
    Filed an application for asylum means the proper filing of a 
principal asylum application or filing a derivative asylum application 
by being properly included as a dependent spouse or child in an asylum 
application pursuant to the regulations and procedures in effect at the 
time of filing the principal or derivative asylum application.
    IIRIRA means the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996, enacted as Pub. L. 104-208 (110 Stat. 3009-
625).
    NACARA means the Nicaraguan Adjustment and Central American Relief 
Act (NACARA), enacted as title II of Pub. L. 105-100 (111 Stat. 2160, 
2193), as amended by the Technical Corrections to the Nicaraguan 
Adjustment and Central American Relief Act, Pub. L. 105-139 (111 Stat. 
2644).
    Registered ABC class member means an ABC class member who:
    (1) In the case of an ABC class member who is a national of El 
Salvador, properly submitted an ABC registration form to the Service on 
or before October 31, 1991, or applied for temporary protected status on 
or before October 31, 1991; or
    (2) In the case of an ABC class member who is a national of 
Guatemala, properly submitted an ABC registration form to the Service on 
or before December 31, 1991.



Sec. 240.61  Applicability.

    (a) Except as provided in paragraph (b) of this section, this 
subpart H applies to the following aliens:
    (1) A registered ABC class member who has not been apprehended at 
the time of entry after December 19, 1990;
    (2) A Guatemalan or Salvadoran national who filed an application for 
asylum with the Service on or before April 1, 1990, either by filing an 
application with the Service or filing the application with the 
Immigration Court and serving a copy of that application on the Service.
    (3) An alien who entered the United States on or before December 31, 
1990, filed an application for asylum on or before December 31, 1991, 
and, at the time of filing the application, was a national of the Soviet 
Union, Russia, any republic of the former Soviet Union, Latvia, Estonia, 
Lithuania, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, Albania, 
East Germany, Yugoslavia, or any state of the former Yugoslavia;
    (4) An alien who is the spouse or child of an individual described 
in paragraph (a)(1), (a)(2), or (a)(3) of this section at the time a 
decision is made to suspend the deportation, or cancel the removal, of 
the individual described in paragraph (a)(1), (a)(2), or (a)(3) of this 
section;
    (5) An alien who is:
    (i) The unmarried son or unmarried daughter of an individual 
described in paragraph (a)(1), (a)(2), or (a)(3) of this section and is 
21 years of age or older

[[Page 520]]

at the time a decision is made to suspend the deportation, or cancel the 
removal, of the parent described in paragraph (a)(1), (a)(2), or (a)(3) 
of this section; and
    (ii) Entered the United States on or before October 1, 1990.
    (b) This subpart H does not apply to any alien who has been 
convicted at any time of an aggravated felony, as defined in section 
101(a)(43) of the Act.



Sec. 240.62  Jurisdiction.

    (a) Office of International Affairs. Except as provided in paragraph 
(b) of this section, the Office of International Affairs shall have 
initial jurisdiction to grant or refer to the Immigration Court or Board 
an application for suspension of deportation or special rule 
cancellation of removal filed by an alien described in Sec. 240.61, 
provided:
    (1) In the case of a national of El Salvador described in Sec. 
240.61(a)(1), the alien filed a complete asylum application on or before 
January 31, 1996 (with an administrative grace period extending to 
February 16, 1996), or otherwise met the asylum application filing 
deadline pursuant to the ABC settlement agreement, and the application 
is still pending adjudication by the Service;
    (2) In the case of a national of Guatemala described in Sec. 
240.61(a)(1), the alien filed a complete asylum application on or before 
January 3, 1995, or otherwise met the asylum application filing deadline 
pursuant to the ABC settlement agreement, and the application is still 
pending adjudication by the Service;
    (3) In the case of an individual described in Sec. 240.61(a)(2) or 
(3), the individual's asylum application is pending adjudication by the 
Service;
    (4) In the case of an individual described in Sec. 240.61(a)(4) or 
(5), the individual's parent or spouse has an application pending with 
the Service under this subpart H or has been granted relief by the 
Service under this subpart.
    (b) Immigration Court. The Immigration Court shall have exclusive 
jurisdiction over an application for suspension of deportation or 
special rule cancellation of removal filed pursuant to section 
309(f)(1)(A) or (B) of IIRIRA, as amended by NACARA, by an alien who has 
been served Form I-221, Order to Show Cause, or Form I-862, Notice to 
Appear, after a copy of the charging document has been filed with the 
Immigration Court, unless the alien is covered by one of the following 
exceptions:
    (1) Certain ABC class members. (i) The alien is a registered ABC 
class member for whom proceedings before the Immigration Court or the 
Board have been administratively closed or continued (including those 
aliens who had final orders of deportation or removal who have filed and 
been granted a motion to reopen as required under 8 CFR 3.43);
    (ii) The alien is eligible for benefits of the ABC settlement 
agreement and has not had a de novo asylum adjudication pursuant to the 
settlement agreement; and
    (iii) The alien has not moved for and been granted a motion to 
recalendar proceedings before the Immigration Court or the Board to 
request suspension of deportation.
    (2) Spouses, children, unmarried sons, and unmarried daughters. (i) 
The alien is described in Sec. 240.61(a) (4) or (5);
    (ii) The alien's spouse or parent is described in Sec. 
240.61(a)(1), (a)(2), or (a)(3) and has a Form I-881 pending with the 
Service; and
    (iii) The alien's proceedings before the Immigration Court have been 
administratively closed, or the alien's proceedings before the Board 
have been continued, to permit the alien to file an application for 
suspension of deportation or special rule cancellation of removal with 
the Service.



Sec. 240.63  Application process.

    (a) Form and fees. Except as provided in paragraph (b) of this 
section, the application must be made on a Form I-881, Application for 
Suspension of Deportation or Special Rule Cancellation of Removal 
(pursuant to section 203 of Public Law 105-100 (NACARA)), and filed in 
accordance with the instructions for that form. An applicant who 
submitted to EOIR a completed Form EOIR-40, Application for Suspension 
of Deportation, before the effective date of the Form I-881 may apply 
with the Service by submitting the completed Form EOIR-40 attached to a 
completed first page of the Form I-881. Each application must be filed 
with the filing

[[Page 521]]

and fingerprint fees as provided in Sec. 103.7(b)(1) of this chapter, 
or a request for fee waiver, as provided in Sec. 103.7(c) of this 
chapter. The fact that an applicant has also applied for asylum does not 
exempt the applicant from the fingerprinting fees associated with the 
Form I-881.
    (b) Applications filed with EOIR. If jurisdiction rests with the 
Immigration Court under Sec. 260.62(b), the application must be made on 
the Form I-881, if filed subsequent to June 21, 1999. The application 
form, along with any supporting documents, must be filed with the 
Immigration Court and served on the Service's district counsel in 
accordance with the instructions on or accompanying the form. 
Applications for suspension of deportation or special rule cancellation 
of removal filed prior to June 21, 1999 shall be filed on Form EOIR-40.
    (c) Applications filed with the Service. If jurisdiction rests with 
the Service under Sec. 240.62(a), the Form I-881 and supporting 
documents must be filed at the appropriate Service Center in accordance 
with the instructions on or accompanying the form.
    (d) Conditions and consequences of filing. Applications filed under 
this section shall be filed under the following conditions and shall 
have the following consequences:
    (1) The 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 application that does not include a response to each of the 
questions contained in the application, is unsigned, or is unaccompanied 
by the required materials specified in the instructions to the 
application is incomplete and shall be returned by mail to the applicant 
within 30 days of receipt of the application by the Service; and
    (4) Knowing placement of false information on the application may 
subject the person supplying that information to criminal penalties 
under title 18 of the United States Code and to civil penalties under 
section 274C of the Act.



Sec. 240.64  Eligibility--general.

    (a) Burden and standard of proof. The burden of proof is on the 
applicant to establish by a preponderance of the evidence that he or she 
is eligible for suspension of deportation or special rule cancellation 
of removal and that discretion should be exercised to grant relief.
    (b) Calculation of continuous physical presence and certain breaks 
in presence. For purposes of calculating continuous physical presence 
under this section, section 309(c)(5)(A) of IIRIRA and section 
240A(d)(1) of the Act shall not apply to persons described in Sec. 
240.61. For purposes of this subpart H, a single absence of 90 days or 
less or absences which in the aggregate total no more than 180 days 
shall be considered brief.
    (1) For applications for suspension of deportation made under former 
section 244 of the Act, as in effect prior to April 1, 1997, the burden 
of proof is on the applicant to establish that any breaks in continuous 
physical presence were brief, casual, and innocent and did not 
meaningfully interrupt the period of continuous physical presence in the 
United States. For purposes of evaluating whether an absence is brief, 
single absences in excess of 90 days, or absences that total more than 
180 days in the aggregate will be evaluated on a case-by-case basis. An 
applicant must establish that any absence from the United States was 
casual and innocent and did not meaningfully interrupt the period of 
continuous physical presence.
    (2) For applications for special rule cancellation of removal made 
under section 309(f)(1) of IIRIRA, as amended by NACARA, the applicant 
shall be considered to have failed to maintain continuous physical 
presence in the United States if he or she has departed from the United 
States for any period in excess of 90 days or for any periods

[[Page 522]]

in the aggregate exceeding 180 days. The applicant must establish that 
any period of absence less than 90 days was casual and innocent and did 
not meaningfully interrupt the period of continuous physical presence in 
the United States.
    (3) For all applications made under this subpart, a period of 
continuous physical presence is terminated whenever an alien is removed 
from the United States under an order issued pursuant to any provision 
of the Act or the alien has voluntarily departed under the threat of 
deportation or when the departure is made for purposes of committing an 
unlawful act.
    (4) The requirements of continuous physical presence in the United 
States under this subpart shall not apply to an alien who:
    (i) Has served for a minimum period of 24 months in an active-duty 
status in the Armed Forces of the United States and, if separated from 
such service, was separated under honorable conditions, and
    (ii) At the time of the alien's enlistment or induction, was in the 
United States.
    (c) Factors relevant to extreme hardship. Except as described in 
paragraph (d) of this section, extreme hardship shall be determined as 
set forth in Sec. 240.58.
    (d) Rebuttable presumption of extreme hardship for certain classes 
of aliens--(1) Presumption of extreme hardship. An applicant described 
in paragraphs (a)(1) or (a)(2) of Sec. 240.61 who has submitted a 
completed Form I-881 or Form EOIR-40 to either the Service or the 
Immigration Court, in accordance with Sec. 240.63, shall be presumed to 
have established that deportation or removal from the United States 
would result in extreme hardship to the applicant or to his or her 
spouse, parent, or child, who is a citizen of the United States or an 
alien lawfully admitted for permanent residence.
    (2) Rebuttal of presumption. A presumption of extreme hardship as 
described in paragraph (d)(1) of this section shall be rebutted if the 
evidence in the record establishes that it is more likely than not that 
neither the applicant nor a qualified relative would suffer extreme 
hardship if the applicant were deported or removed from the United 
States. In making such a determination, the adjudicator shall consider 
relevant factors, including those listed in Sec. 240.58.
    (3) Burden of proof. In those cases where a presumption of extreme 
hardship applies, the burden of proof shall be on the Service to 
establish that it is more likely than not that neither the applicant nor 
a qualified relative would suffer extreme hardship if the applicant were 
deported or removed from the United States.
    (4) Effect of rebuttal. (i) A determination that it is more likely 
than not that neither the applicant nor a qualified relative would 
suffer extreme hardship if the applicant were deported or removed from 
the United States shall be grounds for referral to the Immigration Court 
or dismissal of an application submitted initially to the Service. The 
applicant is entitled to a de novo adjudication and will again be 
considered to have a presumption of extreme hardship before the 
Immigration Court.
    (ii) If the Immigration Court determines that extreme hardship will 
not result from deportation or removal from the United States, the 
application will be denied.

[64 FR 27876, May 21, 1999; 64 FR 33386, June 23, 1999]



Sec. 240.65  Eligibility for suspension of deportation.

    (a) Applicable statutory provisions. To establish eligibility for 
suspension of deportation under this section, the applicant must be an 
individual described in Sec. 240.61; must establish that he or she is 
eligible under former section 244 of the Act, as in effect prior to 
April 1, 1997; must not be subject to any bars to eligibility in former 
section 242B(e) of the Act, as in effect prior to April 1, 1997, or any 
other provisions of law; and must not have been convicted of an 
aggravated felony or be an alien described in former section 
241(a)(4)(D) of the Act, as in effect prior to April 1, 1997 (relating 
to Nazi persecution and genocide).
    (b) General rule. To establish eligibility for suspension of 
deportation under former section 244(a)(1) of the Act, as in effect 
prior to April 1, 1997,

[[Page 523]]

an alien must be deportable under any law of the United States, except 
the provisions specified in paragraph (c) of this section, and must 
establish:
    (1) The alien has been physically present in the United States for a 
continuous period of not less than 7 years immediately preceding the 
date the application was filed;
    (2) During all of such period the alien was and is a person of good 
moral character; and
    (3) The alien's deportation would, in the opinion of the Attorney 
General, result in extreme hardship to the alien or to the alien's 
spouse, parent, or child, who is a citizen of the United States or an 
alien lawfully admitted for permanent residence.
    (c) Aliens deportable on criminal or certain other grounds. To 
establish eligibility for suspension of deportation under former section 
244(a)(2) of the Act, as in effect prior to April 1, 1997, an alien who 
is deportable under former section 241(a) (2), (3), or (4) of the Act, 
as in effect prior to April 1, 1997 (relating to criminal activity, 
document fraud, failure to register, and security threats), must 
establish that:
    (1) The alien has been physically present in the United States for a 
continuous period of not less than 10 years immediately following the 
commission of an act, or the assumption of a status constituting a 
ground for deportation;
    (2) The alien has been and is a person of good moral character 
during all of such period; and
    (3) The alien's deportation would, in the opinion of the Attorney 
General, result in exceptional and extremely unusual hardship to the 
alien, or to the alien's spouse, parent, or child, who is a citizen of 
the United States or an alien lawfully admitted for permanent residence.
    (d) Battered spouses and children. To establish eligibility for 
suspension of deportation under former section 244(a)(3) of the Act, as 
in effect prior to April 1, 1997, an alien must be deportable under any 
law of the United States, except under former section 241(a)(1)(G) of 
the Act, as in effect prior to April 1, 1997 (relating to marriage 
fraud), and except under the provisions specified in paragraph (c) of 
this section, and must establish that:
    (1) The alien has been physically present in the United States for a 
continuous period of not less than 3 years immediately preceding the 
date the application was filed;
    (2) The alien has been battered or subjected to extreme cruelty in 
the United States by a spouse or parent who is a United States citizen 
or lawful permanent resident (or is the parent of a child of a United 
States citizen or lawful permanent resident and the child has been 
battered or subjected to extreme cruelty in the United States by such 
citizen or permanent resident parent); and
    (3) During all of such time in the United States the alien was and 
is a person of good moral character; and
    (4) The alien's deportation would, in the opinion of the Attorney 
General, result in extreme hardship to the alien or the alien's parent 
or child.



Sec. 240.66  Eligibility for special rule cancellation of removal.

    (a) Applicable statutory provisions. To establish eligibility for 
special rule cancellation of removal, the applicant must show he or she 
is eligible under section 309(f)(1) of IIRIRA, as amended by section 203 
of NACARA. The applicant must be described in Sec. 240.61, must be 
inadmissible or deportable, must not be subject to any bars to 
eligibility in sections 240(b)(7), 240A(c), or 240B(d) of the Act, or 
any other provisions of law, and must not have been convicted of an 
aggravated felony or be an alien described in section 241(b)(3)(B)(I) of 
the Act (relating to persecution of others).
    (b) General rule. To establish eligibility for special rule 
cancellation of removal under section 309(f)(1)(A) of IIRIRA, as amended 
by section 203 of NACARA, the alien must establish that:
    (1) The alien is not inadmissible under section 212(a)(2) or (3) or 
deportable under section 237(a)(2), (3) or (4) of the Act (relating to 
criminal activity, document fraud, failure to register, and security 
threats);
    (2) The alien has been physically present in the United States for a 
continuous period of 7 years immediately preceding the date the 
application was filed;

[[Page 524]]

    (3) The alien has been a person of good moral character during the 
required period of continuous physical presence; and
    (4) The alien's removal from the United States would result in 
extreme hardship to the alien, or to the alien's spouse, parent or child 
who is a United States citizen or an alien lawfully admitted for 
permanent residence.
    (c) Aliens inadmissible or deportable on criminal or certain other 
grounds. To establish eligibility for special rule cancellation of 
removal under section 309(f)(1)(B) of IIRIRA, as amended by section 203 
of NACARA, the alien must be described in Sec. 240.61 and establish 
that:
    (1) The alien is inadmissible under section 212(a)(2) of the Act 
(relating to criminal activity), or deportable under paragraphs (a)(2) 
(other than section 237(a)(2)(A)(iii), relating to aggravated felony 
convictions), or (a)(3) of section 237 of the Act (relating to criminal 
activity, document fraud, and failure to register);
    (2) The alien has been physically present in the United States for a 
continuous period of not less than 10 years immediately following the 
commission of an act, or the assumption of a status constituting a 
ground for removal;
    (3) The alien has been a person of good moral character during the 
required period of continuous physical presence; and
    (4) The alien's removal from the United States would result in 
exceptional and extremely unusual hardship to the alien or to the 
alien's spouse, parent, or child, who is a United States citizen or an 
alien lawfully admitted for permanent residence.



Sec. 240.67  Procedure for interview before an asylum officer.

    (a) Fingerprinting requirements. The Service will notify each 
applicant 14 years of age or older to appear for an interview only after 
the applicant has complied with fingerprinting requirements pursuant to 
Sec. 103.2(e) of this subchapter, and the Service has received a 
definitive response from the FBI that a full criminal background check 
has been completed. A definitive response that a full criminal 
background check on an applicant has been completed includes:
    (1) Confirmation from the FBI that an applicant does not have an 
administrative or criminal record;
    (2) Confirmation from the FBI that an applicant has an 
administrative or a criminal record; or
    (3) Confirmation from the FBI that two properly prepared fingerprint 
cards (Form FD-258) have been determined unclassifiable for the purpose 
of conducting a criminal background check and have been rejected.
    (b) Interview. (1) The asylum officer shall conduct the interview in 
a non-adversarial 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 suspension of deportation or special rule 
cancellation of removal. If the applicant has an asylum application 
pending with the Service, the asylum officer may also elicit information 
relating to the application for asylum in accordance with Sec. 208.9 of 
this chapter. At the time of the interview, the applicant must provide 
complete information regarding the applicant's 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.
    (2) The applicant may have counsel or a representative present, may 
present witnesses, and may submit affidavits of witnesses and other 
evidence.
    (3) 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 a language in which the applicant is fluent. 
The interpreter must be at least 18 years of age. The following 
individuals may not serve as the applicant's interpreter: the 
applicant's attorney or representative of record; a witness testifying 
on the applicant's behalf; or, if the applicant also has an asylum 
application pending with the Service, a representative or employee of 
the applicant's country of nationality, or, if stateless, country of 
last habitual residence. Failure without good cause to comply with this

[[Page 525]]

paragraph may be considered a failure to appear for the interview for 
purposes of Sec. 240.68.
    (4) 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.
    (5) 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 the 
officer's discretion, limit the length of such statement or comment and 
may require its submission in writing. Upon completion of the interview, 
and except as otherwise provided by the asylum officer, the applicant 
shall be informed of the requirement to appear in person to receive and 
to acknowledge receipt of the decision and any other accompanying 
material at a time and place designated by the asylum officer.
    (6) The asylum officer shall consider evidence submitted by the 
applicant with the 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.



Sec. 240.68  Failure to appear at an interview before an asylum officer or 

failure to follow requirements for fingerprinting.

    (a) Failure to appear for a scheduled interview without prior 
authorization may result in dismissal of the application or waiver of 
the right to an adjudication by an asylum officer. A written request to 
reschedule will be granted if it is an initial request and is received 
by the Asylum Office at least 2 days before the scheduled interview 
date. All other requests to reschedule the interview, including those 
submitted after the interview date, will be granted only if the 
applicant has a reasonable excuse for not appearing, and the excuse was 
received by the Asylum Office in writing within a reasonable time after 
the scheduled interview date.
    (b) Failure to comply with fingerprint processing requirements 
without reasonable excuse may result in dismissal of the application or 
waiver of the right to an adjudication by an asylum officer.
    (c) 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 Service regulations, unless 
the asylum officer determines that the applicant received reasonable 
notice of the interview or fingerprinting appointment.



Sec. 240.69  Reliance on information compiled by other sources.

    In determining whether an applicant is eligible for suspension of 
deportation or special rule cancellation of removal, the asylum officer 
may rely on material described in Sec. 208.12 of this chapter. Nothing 
in this subpart shall be construed to entitle the applicant to conduct 
discovery directed toward records, officers, agents, or employees of the 
Service, the Department of Justice, or the Department of State.



Sec. 240.70  Decision by the Service.

    (a) Service of decision. Unless the asylum officer has granted the 
application for suspension of deportation or special rule cancellation 
of removal at the time of the interview or as otherwise provided by an 
Asylum Office, the applicant will be required to return to the Asylum 
Office to receive service of the decision on the applicant's 
application. If the applicant does not speak English fluently, the 
applicant shall bring an interpreter when returning to the office to 
receive service of the decision.
    (b) Grant of suspension of deportation. An asylum officer may grant 
suspension of deportation to an applicant eligible to apply for this 
relief with the Service who qualifies for suspension of deportation 
under former section 244(a)(1) of the Act, as in effect prior to

[[Page 526]]

April 1, 1997, who is not an alien described in former section 
241(a)(4)(D) of the Act, as in effect prior to April 1, 1997, and who 
admits deportability under any law of the United States, excluding 
former section 241(a)(2), (3), or (4) of the Act, as in effect prior to 
April 1, 1997. If the Service has made a preliminary decision to grant 
the applicant suspension of deportation under this subpart, the 
applicant shall be notified of that decision and will be asked to sign 
an admission of deportability or inadmissibility. The applicant must 
sign the admission before the Service may grant the relief sought. If 
suspension of deportation is granted, the Service shall adjust the 
status of the alien to lawful permanent resident, effective as of the 
date that suspension of deportation is granted.
    (c) Grant of cancellation of removal. An asylum officer may grant 
cancellation of removal to an applicant who is eligible to apply for 
this relief with the Service, and who qualifies for cancellation of 
removal under section 309(f)(1)(A) of IIRIRA, as amended by section 203 
of NACARA, and who admits deportability under section 237(a), excluding 
paragraphs (2), (3), and (4), of the Act, or inadmissibility under 
section 212(a), excluding paragraphs (2) or (3), of the Act. If the 
Service has made a preliminary decision to grant the applicant 
cancellation of removal under this subpart, the applicant shall be 
notified of that decision and asked to sign an admission of 
deportability or inadmissibility. The applicant must sign the concession 
before the Service may grant the relief sought. If the Service grants 
cancellation of removal, the Service shall adjust the status of the 
alien to lawful permanent resident, effective as of the date that 
cancellation of removal is granted.
    (d) Referral of the application. Except as provided in paragraphs 
(e) and (f) of this section, and unless the applicant is granted asylum 
or is in lawful immigrant or non-immigrant status, an asylum officer 
shall refer the application for suspension of deportation or special 
rule cancellation of removal to the Immigration Court for adjudication 
in deportation or removal proceedings, and will provide the applicant 
with written notice of the statutory or regulatory basis for the 
referral, if:
    (1) The applicant is not clearly eligible for suspension of 
deportation under former section 244(a)(1) of the Act as in effect prior 
to April 1, 1997, or for cancellation of removal under section 
309(f)(1)(A) of IIRIRA, as amended by NACARA;
    (2) The applicant does not appear to merit relief as a matter of 
discretion;
    (3) The applicant appears to be eligible for suspension of 
deportation or special rule cancellation of removal under this subpart, 
but does not admit deportability or inadmissibility; or
    (4) The applicant failed to appear for a scheduled interview with an 
asylum officer or failed to comply with fingerprinting processing 
requirements and such failure was not excused by the Service, unless the 
application is dismissed.
    (e) Dismissal of the application. An asylum officer shall dismiss 
without prejudice an application for suspension of deportation or 
special rule cancellation of removal submitted by an applicant who has 
been granted asylum, or who is in lawful immigrant or non-immigrant 
status. An asylum officer may also dismiss an application for failure to 
appear, pursuant to Sec. 240.68. The asylum officer will provide the 
applicant written notice of the statutory or regulatory basis for the 
dismissal.
    (f) Special provisions for certain ABC class members whose 
proceedings before EOIR were administratively closed or continued. The 
following provisions shall apply with respect to an ABC class member who 
was in proceedings before the Immigration Court or the Board, and those 
proceedings were closed or continued pursuant to the ABC settlement 
agreement:
    (1) Suspension of deportation or asylum granted. If an asylum 
officer grants asylum or suspension of deportation, the previous 
proceedings before the Immigration Court or Board shall be terminated as 
a matter of law on the date relief is granted.
    (2) Asylum denied and application for suspension of deportation not 
approved. If an asylum officer denies asylum and does not grant the 
applicant suspension of deportation, the Service shall move to 
recalendar proceedings before

[[Page 527]]

the Immigration Court or resume proceedings before the Board, whichever 
is appropriate. The Service shall refer to the Immigration Court or the 
Board the application for suspension of deportation. In the case where 
jurisdiction rests with the Board, an application for suspension of 
deportation that is referred to the Board will be remanded to the 
Immigration Court for adjudication.
    (g) Special provisions for dependents whose proceedings before EOIR 
were administratively closed or continued. If an asylum officer grants 
suspension of deportation or special rule cancellation of removal to an 
applicant described in Sec. 240.61(a)(4) or (a)(5), whose proceedings 
before EOIR were administratively closed or continued, those proceedings 
shall terminate as of the date the relief is granted. If suspension of 
deportation or special rule cancellation of removal is not granted, the 
Service shall move to recalendar proceedings before the Immigration 
Court or resume proceedings before the Board, whichever is appropriate. 
The Service shall refer to the Immigration Court or the Board the 
application for suspension of deportation or special rule cancellation 
of removal. In the case where jurisdiction rests with the Board, an 
application for suspension of deportation or special rule cancellation 
of removal that is referred to the Board will be remanded to the 
Immigration Court for adjudication.
    (h) Special provisions for applicants who depart the United States 
and return under a grant of advance parole while in deportation 
proceedings. Notwithstanding paragraphs (f) and (g) of this section, for 
purposes of adjudicating an application for suspension of deportation or 
special rule cancellation of removal under this subpart, if an applicant 
departs and returns to the United States pursuant to a grant of advance 
parole while in deportation proceedings, including deportation 
proceedings administratively closed or continued pursuant to the ABC 
settlement agreement, the deportation proceedings will be considered 
terminated as of the date of applicant's departure from the United 
States. A decision on the NACARA application shall be issued in 
accordance with paragraph (a), and paragraphs (c) through (e) of this 
section.



PART 241_APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED--Table of 

Contents




              Subpart A_Post-hearing Detention and Removal

Sec.
241.1 Final order of removal.
241.2 Warrant of removal.
241.3 Detention of aliens during removal period.
241.4 Continued detention of inadmissible, criminal, and other aliens 
          beyond the removal period.
241.5 Conditions of release after removal period.
241.6 Administrative stay of removal.
241.7 Self-removal.
241.8 Reinstatement of removal orders.
241.9 Notice to transportation line of alien's removal.
241.10 Special care and attention of removable aliens.
241.11 Detention and removal of stowaways.
241.12 Nonapplication of costs of detention and maintenance.
241.13 Determination of whether there is a significant likelihood of 
          removing a detained alien in the reasonably foreseeable 
          future.
241.14 Continued detention of removable aliens on account of special 
          circumstances.
241.15 Countries to which aliens may be removed.
241.16-241.19 [Reserved]

 Subpart B_Deportation of Excluded Aliens (for Hearings Commenced Prior 
                            to April 1, 1997)

241.20 Proceedings commenced prior to April 1, 1997.
241.21 Stay of deportation of excluded alien.
241.22 Notice to surrender for deportation.
241.23 Cost of maintenance not assessed.
241.24 Notice to transportation line of alien's exclusion.
241.25 Deportation.
241.26-241.29 [Reserved]

   Subpart C_Deportation of Aliens in the United States (for Hearings 
                    Commenced Prior to April 1, 1997)

241.30 Proceedings commenced prior to April 1, 1997.
241.31 Final order of deportation.
241.32 Warrant of deportation.
241.33 Expulsion.


[[Page 528]]


    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223, 1224, 
1225, 1226, 1227, 1228, 1231, 1251, 1253, 1255, 1330, 1362; 18 U.S.C. 
4002, 4013(c)(4); Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 101, et 
seq.); 8 CFR part 2.

    Source: 62 FR 10378, Mar. 6, 1997, unless otherwise noted.



              Subpart A_Post-hearing Detention and Removal



Sec. 241.1  Final order of removal.

    An order of removal becomes final in accordance with 8 CFR 1241.1.

[70 FR 673, Jan. 5, 2005]



Sec. 241.2  Warrant of removal.

    (a) Issuance of a warrant of removal--(1) In general. A Form I-205, 
Warrant of Removal, based upon the final administrative removal order in 
the alien's case shall be issued by any of the following immigration 
officials:
    (i) Director, Detention and Removal Operations;
    (ii) Deputy Assistant Director, Field Operations;
    (iii) Field Office Directors;
    (iv) Deputy Field Office Directors;
    (v) Assistant Field Office Directors;
    (vi) Officers in Charge;
    (vii) Special Agents in Charge;
    (viii) Deputy Special Agents in Charge;
    (ix) Associate Special Agents in Charge;
    (x) Assistant Special Agents in Charge;
    (xi) Group Supervisors;
    (xii) Resident Agents in Charge;
    (xiii) District Field Officers;
    (xiv) Chief Patrol Agents;
    (xv) Deputy Chief Patrol Agents;
    (xvi) Assistant Chief Patrol Agents;
    (xvii) Patrol Agents in Charge;
    (xviii) Unit Chief, Law Enforcement Support Center;
    (xix) Section Chief, Law Enforcement Support Center;
    (xx) Port Directors;
    (xxi) Deputy Port Directors;
    (xxii) Assistant Port Directors;
    (xxiii) Director, Field Operations;
    (xxiv) Deputy Director, Field Operations;
    (xxv) Assistant Director, Field Operations; and
    (xxvi) Other officers or employees of the Department or the United 
States who are delegated the authority as provided in 8 CFR 2.1 to issue 
Warrants of Removal.
    (2) Costs and care during removal. The immigration officials listed 
in paragraphs (a)(1)(i) through (xxv) of this section, and other 
officers or employees of the Department or the United States who are 
delegated the authority as provided in 8 CFR 2.1, shall exercise the 
authority contained in section 241 of the Act to determine at whose 
expense the alien shall be removed and whether his or her mental or 
physical condition requires personal care and attention en route to his 
or her destination.
    (b) Execution of the warrant of removal. Any officer authorized by 8 
CFR 287.5(e)(3) to execute administrative warrants of arrest may execute 
a warrant of removal.

[70 FR 67089, Nov. 4, 2005]



Sec. 241.3  Detention of aliens during removal period.

    (a) Assumption of custody. Once the removal period defined in 
section 241(a)(1) of the Act begins, an alien in the United States will 
be taken into custody pursuant to the warrant of removal.
    (b) Cancellation of bond. Any bond previously posted will be 
canceled unless it has been breached or is subject to being breached.
    (c) Judicial stays. The filing of (or intention to file) a petition 
or action in a Federal court seeking review of the issuance or execution 
of an order of removal shall not delay execution of the Warrant of 
Removal except upon an affirmative order of the court.
    (d) Information regarding detainees. Disclosure of information 
relating to detainees shall be governed by the provisions of 8 CFR 
236.3.

[62 FR 10378, Mar. 6, 1997, as amended at 70 FR 673, Jan. 5, 2005]



Sec. 241.4  Continued detention of inadmissible, criminal, and other aliens 

beyond the removal period.

    (a) Scope. The authority to continue an alien in custody or grant 
release or parole under sections 241(a)(6) and 212(d)(5)(A) of the Act 
shall be exercised by the Commissioner or Deputy Commissioner, as 
follows: Except as

[[Page 529]]

otherwise directed by the Commissioner or his or her designee, the 
Executive Associate Commissioner for Field Operations (Executive 
Associate Commissioner), the Deputy Executive Associate Commissioner for 
Detention and Removal, the Director of the Detention and Removal Field 
Office or the district director may continue an alien in custody beyond 
the removal period described in section 241(a)(1) of the Act pursuant to 
the procedures described in this section. Except as provided for in 
paragraph (b)(2) of this section, the provisions of this section apply 
to the custody determinations for the following group of aliens:
    (1) An alien ordered removed who is inadmissible under section 212 
of the Act, including an excludable alien convicted of one or more 
aggravated felony offenses and subject to the provisions of section 
501(b) of the Immigration Act of 1990, Public Law 101-649, 104 Stat. 
4978, 5048 (codified at 8 U.S.C. 1226(e)(1) through (e)(3)(1994));
    (2) An alien ordered removed who is removable under section 
237(a)(1)(C) of the Act;
    (3) An alien ordered removed who is removable under sections 
237(a)(2) or 237(a)(4) of the Act, including deportable criminal aliens 
whose cases are governed by former section 242 of the Act prior to 
amendment by the Illegal Immigration Reform and Immigrant Responsibility 
Act of 1996, Div. C of Public Law 104-208, 110 Stat. 3009-546; and
    (4) An alien ordered removed who the decision-maker determines is 
unlikely to comply with the removal order or is a risk to the community.
    (b) Applicability to particular aliens--(1) Motions to reopen. An 
alien who has filed a motion to reopen immigration proceedings for 
consideration of relief from removal, including withholding or deferral 
of removal pursuant to 8 CFR 208.16 or 208.17, shall remain subject to 
the provisions of this section unless the motion to reopen is granted. 
Section 236 of the Act and 8 CFR 236.1 govern custody determinations for 
aliens who are in pending immigration proceedings before the Executive 
Office for Immigration Review.
    (2) Parole for certain Cuban nationals. The review procedures in 
this section do not apply to any inadmissible Mariel Cuban who is being 
detained by the Service pending an exclusion or removal proceeding, or 
following entry of a final exclusion or pending his or her return to 
Cuba or removal to another country. Instead, the determination whether 
to release on parole, or to revoke such parole, or to detain, shall in 
the case of a Mariel Cuban be governed by the procedures in 8 CFR 
212.12.
    (3) Individuals granted withholding or deferral of removal. Aliens 
granted withholding of removal under section 241(b)(3) of the Act or 
withholding or deferral of removal under the Convention Against Torture 
who are otherwise subject to detention are subject to the provisions of 
this part 241. Individuals subject to a termination of deferral hearing 
under 8 CFR 208.17(d) remain subject to the provisions of this part 241 
throughout the termination process.
    (4) Service determination under 8 CFR 241.13. The custody review 
procedures in this section do not apply after the Service has made a 
determination, pursuant to the procedures provided in 8 CFR 241.13, that 
there is no significant likelihood that an alien under a final order of 
removal can be removed in the reasonably foreseeable future. However, if 
the Service subsequently determines, because of a change of 
circumstances, that there is a significant likelihood that the alien may 
be removed in the reasonably foreseeable future to the country to which 
the alien was ordered removed or to a third country, the alien shall 
again be subject to the custody review procedures under this section.
    (c) Delegation of authority. The Attorney General's statutory 
authority to make custody determinations under sections 241(a)(6) and 
212(d)(5)(A) of the Act when there is a final order of removal is 
delegated as follows:
    (1) District Directors and Directors of Detention and Removal Field 
Offices. The initial custody determination described in paragraph (h) of 
this section and any further custody determination concluded in the 3 
month period immediately following the expiration of the 90-day removal 
period, subject to the provisions of paragraph (c)(2) of this

[[Page 530]]

section, will be made by the district director or the Director of the 
Detention and Removal Field Office having jurisdiction over the alien. 
The district director or the Director of the Detention and Removal Field 
Office shall maintain appropriate files respecting each detained alien 
reviewed for possible release, and shall have authority to determine the 
order in which the cases shall be reviewed, and to coordinate activities 
associated with these reviews in his or her respective jurisdictional 
area.
    (2) Headquarters Post-Order Detention Unit (HQPDU). For any alien 
the district director refers for further review after the removal 
period, or any alien who has not been released or removed by the 
expiration of the three-month period after the review, all further 
custody determinations will be made by the Executive Associate 
Commissioner, acting through the HQPDU.
    (3) The HQPDU review plan. The Executive Associate Commissioner 
shall appoint a Director of the HQPDU. The Director of the HQPDU shall 
have authority to establish and maintain appropriate files respecting 
each detained alien to be reviewed for possible release, to determine 
the order in which the cases shall be reviewed, and to coordinate 
activities associated with these reviews.
    (4) Additional delegation of authority. All references to the 
Executive Associate Commissioner, the Director of the Detention and 
Removal Field Office, and the district director in this section shall be 
deemed to include any person or persons (including a committee) 
designated in writing by the Executive Associate Commissioner, the 
Director of the Detention and Removal Field Office, or the district 
director to exercise powers under this section.
    (d) Custody determinations. A copy of any decision by the district 
director, Director of the Detention and Removal Field Office, or 
Executive Associate Commissioner to release or to detain an alien shall 
be provided to the detained alien. A decision to retain custody shall 
briefly set forth the reasons for the continued detention. A decision to 
release may contain such special conditions as are considered 
appropriate in the opinion of the Service. Notwithstanding any other 
provisions of this section, there is no appeal from the district 
director's or the Executive Associate Commissioner's decision.
    (1) Showing by the alien. The district director, Director of the 
Detention and Removal Field Office, or Executive Associate Commissioner 
may release an alien if the alien demonstrates to the satisfaction of 
the Attorney General or her designee that his or her release will not 
pose a danger to the community or to the safety of other persons or to 
property or a significant risk of flight pending such alien's removal 
from the United States. The district director, Director of the Detention 
and Removal Field Office, or Executive Associate Commissioner may also, 
in accordance with the procedures and consideration of the factors set 
forth in this section, continue in custody any alien described in 
paragraphs (a) and (b)(1) of this section.
    (2) Service of decision and other documents. All notices, decisions, 
or other documents in connection with the custody reviews conducted 
under this section by the district director, Director of the Detention 
and Removal Field Office, or Executive Associate Commissioner shall be 
served on the alien, in accordance with 8 CFR 103.5a, by the Service 
district office having jurisdiction over the alien. Release 
documentation (including employment authorization if appropriate) shall 
be issued by the district office having jurisdiction over the alien in 
accordance with the custody determination made by the district director 
or by the Executive Associate Commissioner. Copies of all such documents 
will be retained in the alien's record and forwarded to the HQPDU.
    (3) Alien's representative. The alien's representative is required 
to complete Form G-28, Notice of Entry of Appearance as Attorney or 
Representative, at the time of the interview or prior to reviewing the 
detainee's records. The Service will forward by regular mail a copy of 
any notice or decision that is being served on the alien only to the 
attorney or representative of record. The alien remains responsible for 
notification to any other individual providing assistance to him or her.

[[Page 531]]

    (e) Criteria for release. Before making any recommendation or 
decision to release a detainee, a majority of the Review Panel members, 
or the Director of the HQPDU in the case of a record review, must 
conclude that:
    (1) Travel documents for the alien are not available or, in the 
opinion of the Service, immediate removal, while proper, is otherwise 
not practicable or not in the public interest;
    (2) The detainee is presently a non-violent person;
    (3) The detainee is likely to remain nonviolent if released;
    (4) The detainee is not likely to pose a threat to the community 
following release;
    (5) The detainee is not likely to violate the conditions of release; 
and
    (6) The detainee does not pose a significant flight risk if 
released.
    (f) Factors for consideration. The following factors should be 
weighed in considering whether to recommend further detention or release 
of a detainee:
    (1) The nature and number of disciplinary infractions or incident 
reports received when incarcerated or while in Service custody;
    (2) The detainee's criminal conduct and criminal convictions, 
including consideration of the nature and severity of the alien's 
convictions, sentences imposed and time actually served, probation and 
criminal parole history, evidence of recidivism, and other criminal 
history;
    (3) Any available psychiatric and psychological reports pertaining 
to the detainee's mental health;
    (4) Evidence of rehabilitation including institutional progress 
relating to participation in work, educational, and vocational programs, 
where available;
    (5) Favorable factors, including ties to the United States such as 
the number of close relatives residing here lawfully;
    (6) Prior immigration violations and history;
    (7) The likelihood that the alien is a significant flight risk or 
may abscond to avoid removal, including history of escapes, failures to 
appear for immigration or other proceedings, absence without leave from 
any halfway house or sponsorship program, and other defaults; and
    (8) Any other information that is probative of whether the alien is 
likely to--
    (i) Adjust to life in a community,
    (ii) Engage in future acts of violence,
    (iii) Engage in future criminal activity,
    (iv) Pose a danger to the safety of himself or herself or to other 
persons or to property, or
    (v) Violate the conditions of his or her release from immigration 
custody pending removal from the United States.
    (g) Travel documents and docket control for aliens continued in 
detention--(1) Removal period. (i) The removal period for an alien 
subject to a final order of removal shall begin on the latest of the 
following dates:
    (A) the date the order becomes administratively final;
    (B) If the removal order is subject to judicial review (including 
review by habeas corpus) and if the court has ordered a stay of the 
alien's removal, the date on which, consistent with the court's order, 
the removal order can be executed and the alien removed; or
    (C) If the alien was detained or confined, except in connection with 
a proceeding under this chapter relating to removability, the date the 
alien is released from the detention or confinement.
    (ii) The removal period shall run for a period of 90 days. However, 
the removal period is extended under section 241(a)(1)(C) of the Act if 
the alien fails or refuses to make timely application in good faith for 
travel or other documents necessary to the alien's departure or 
conspires or acts to prevent the alien's removal subject to an order of 
removal. The Service will provide such an alien with a Notice of Failure 
to Comply, as provided in paragraph (g)(5) of this section, before the 
expiration of the removal period. The removal period shall be extended 
until the alien demonstrates to the Service that he or she has complied 
with the statutory obligations. Once the alien has complied with his or 
her obligations under the law, the Service shall have a reasonable 
period of time in order to effect the alien's removal.

[[Page 532]]

    (2) In general. The district director shall continue to undertake 
appropriate steps to secure travel documents for the alien both before 
and after the expiration of the removal period. If the district director 
is unable to secure travel documents within the removal period, he or 
she shall apply for assistance from Headquarters Detention and 
Deportation, Office of Field Operations. The district director shall 
promptly advise the HQPDU Director when travel documents are obtained 
for an alien whose custody is subject to review by the HQPDU. The 
Service's determination that receipt of a travel document is likely may 
by itself warrant continuation of detention pending the removal of the 
alien from the United States.
    (3) Availability of travel document. In making a custody 
determination, the district director and the Director of the HQPDU shall 
consider the ability to obtain a travel document for the alien. If it is 
established at any stage of a custody review that, in the judgment of 
the Service, travel documents can be obtained, or such document is 
forthcoming, the alien will not be released unless immediate removal is 
not practicable or in the public interest.
    (4) Removal. The Service will not conduct a custody review under 
these procedures when the Service notifies the alien that it is ready to 
execute an order of removal.
    (5) Alien's compliance and cooperation. (i) Release will be denied 
and the alien may remain in detention if the alien fails or refuses to 
make timely application in good faith for travel documents necessary to 
the alien's departure or conspires or acts to prevent the alien's 
removal. The detention provisions of section 241(a)(2) of the Act will 
continue to apply, including provisions that mandate detention of 
certain criminal and terrorist aliens.
    (ii) The Service shall serve the alien with a Notice of Failure to 
Comply, which shall advise the alien of the following: the provisions of 
sections 241(a)(1)(C) (extension of removal period) and 243(a) of the 
Act (criminal penalties related to removal); the circumstances 
demonstrating his or her failure to comply with the requirements of 
section 241(a)(1)(C) of the Act; and an explanation of the necessary 
steps that the alien must take in order to comply with the statutory 
requirements.
    (iii) The Service shall advise the alien that the Notice of Failure 
to Comply shall have the effect of extending the removal period as 
provided by law, if the removal period has not yet expired, and that the 
Service is not obligated to complete its scheduled custody reviews under 
this section until the alien has demonstrated compliance with the 
statutory obligations.
    (iv) The fact that the Service does not provide a Notice of Failure 
to Comply, within the 90-day removal period, to an alien who has failed 
to comply with the requirements of section 241(a)(1)(C) of the Act, 
shall not have the effect of excusing the alien's conduct.
    (h) District director's or Director of the Detention and Removal 
Field Office's custody review procedures. The district director's or 
Director of the Detention and Removal Field Office's custody 
determination will be developed in accordance with the following 
procedures:
    (1) Records review. The district director or Director of the 
Detention and Removal Field Office will conduct the initial custody 
review. For aliens described in paragraphs (a) and (b)(1) of this 
section, the district director or Director of the Detention and Removal 
Field Office will conduct a records review prior to the expiration of 
the removal period. This initial post-order custody review will consist 
of a review of the alien's records and any written information submitted 
in English to the district director by or on behalf of the alien. 
However, the district director or Director of the Detention and Removal 
Field Office may in his or her discretion schedule a personal or 
telephonic interview with the alien as part of this custody 
determination. The district director or Director of the Detention and 
Removal Field Office may also consider any other relevant information 
relating to the alien or his or her circumstances and custody status.
    (2) Notice to alien. The district director or Director of the 
Detention and

[[Page 533]]

Removal Field Office will provide written notice to the detainee 
approximately 30 days in advance of the pending records review so that 
the alien may submit information in writing in support of his or her 
release. The alien may be assisted by a person of his or her choice, 
subject to reasonable security concerns at the institution and panel's 
discretion, in preparing or submitting information in response to the 
district director's notice. Such assistance shall be at no expense to 
the Government. If the alien or his or her representative requests 
additional time to prepare materials beyond the time when the district 
director or Director of the Detention and Removal Field Office expects 
to conduct the records review, such a request will constitute a waiver 
of the requirement that the review occur prior to the expiration of the 
removal period.
    (3) Factors for consideration. The district director's or Director 
of the Detention and Removal Field Office's review will include but is 
not limited to consideration of the factors described in paragraph (f) 
of this section. Before making any decision to release a detainee, the 
district director must be able to reach the conclusions set forth in 
paragraph (e) of this section.
    (4) District director's or Director of the Detention and Removal 
Field Office's decision. The district director or Director of the 
Detention and Removal Field Office will notify the alien in writing that 
he or she is to be released from custody, or that he or she will be 
continued in detention pending removal or further review of his or her 
custody status.
    (5) District office or Detention and Removal Field office staff. The 
district director or the Director of the Detention and Removal Field 
Office may delegate the authority to conduct the custody review, develop 
recommendations, or render the custody or release decisions to those 
persons directly responsible for detention within his or her 
geographical areas of responsibility. This includes the deputy district 
director, the assistant director for detention and deportation, the 
officer-in-charge of a detention center, the assistant director of the 
detention and removal field office, the director of the detention and 
removal resident office, the assistant director of the detention and 
removal resident office, officers in charge of service processing 
centers, or such other persons as the district director or the Director 
of the Detention and Removal Field Office may designate from the 
professional staff of the Service.
    (i) Determinations by the Executive Associate Commissioner. 
Determinations by the Executive Associate Commissioner to release or 
retain custody of aliens shall be developed in accordance with the 
following procedures.
    (1) Review panels. The HQPDU Director shall designate a panel or 
panels to make recommendations to the Executive Associate Commissioner. 
A 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 the two-member 
Review Panel shall be unanimous. If the vote of the two-member Review 
Panel is split, it shall adjourn its deliberations concerning that 
particular detainee until a third Review Panel member is added. The 
third member of any Review Panel shall be the Director of the HQPDU or 
his or her designee. A recommendation by a three-member Review Panel 
shall be by majority vote.
    (2) Records review. Initially, and at the beginning of each 
subsequent review, the HQPDU Director or a Review Panel shall review the 
alien's records. Upon completion of this records review, the HQPDU 
Director or the Review Panel may issue a written recommendation that the 
alien be released and reasons therefore.
    (3) Personal interview. (i) If the HQPDU Director does not accept a 
panel's recommendation to grant release after a records review, or if 
the alien is not recommended for release, a Review Panel shall 
personally interview the detainee. The scheduling of such interviews 
shall be at the discretion of the HQPDU Director. The HQPDU Director 
will provide a translator if he or she determines that such assistance 
is appropriate.
    (ii) The alien may be accompanied during the interview by a person 
of his or her choice, subject to reasonable security concerns at the 
institution's and

[[Page 534]]

panel's discretion, who is able to attend at the time of the scheduled 
interview. Such assistance shall be at no expense to the Government. The 
alien may submit to the Review Panel any information, in English, that 
he or she believes presents a basis for his or her release.
    (4) Alien's participation. Every alien shall respond to questions or 
provide other information when requested to do so by Service officials 
for the purpose of carrying out the provisions of this section.
    (5) Panel recommendation. Following completion of the interview and 
its deliberations, the Review Panel shall issue a written recommendation 
that the alien be released or remain in custody pending removal or 
further review. This written recommendation shall include a brief 
statement of the factors that the Review Panel deems material to its 
recommendation.
    (6) Determination. The Executive Associate Commissioner shall 
consider the recommendation and appropriate custody review materials and 
issue a custody determination, in the exercise of discretion under the 
standards of this section. The Executive Associate Commissioner's review 
will include but is not limited to consideration of the factors 
described in paragraph (f) of this section. Before making any decision 
to release a detainee, the Executive Associate Commissioner must be able 
to reach the conclusions set forth in paragraph (e) of this section. The 
Executive Associate Commissioner is not bound by the panel's 
recommendation.
    (7) No significant likelihood or removal. During the custody review 
process as provided in this paragraph (i), or at the conclusion of that 
review, if the alien submits, or the record contains, information 
providing a substantial reason to believe that the removal of a detained 
alien is not significantly likely in the reasonably foreseeable future, 
the HQPDU shall treat that as a request for review and initiate the 
review procedures under Sec. 241.13. To the extent relevant, the HQPDU 
may consider any information developed during the custody review process 
under this section in connection with the determinations to be made by 
the Service under Sec. 241.13. The Service shall complete the custody 
review under this section unless the HQPDU is able to make a prompt 
determination to release the alien under an order of supervision under 
Sec. 241.13 because there is no significant likelihood that the alien 
will be removed in the reasonably foreseeable future.
    (j) Conditions of release--(1) In general. The district director, 
Director of the Detention and Removal Field Office, or Executive 
Associate Commissioner shall impose such conditions or special 
conditions on release as the Service considers appropriate in an 
individual case or cases, including but not limited to the conditions of 
release noted in 8 CFR 212.5(c) and Sec. 241.5. An alien released under 
this section must abide by the release conditions specified by the 
Service in relation to his or her release or sponsorship.
    (2) Sponsorship. The district director, Director of the Detention 
and Removal Field Office, or Executive Associate Commissioner may, in 
the exercise of discretion, condition release on placement with a close 
relative who agrees to act as a sponsor, such as a parent, spouse, 
child, or sibling who is a lawful permanent resident or a citizen of the 
United States, or may condition release on the alien's placement or 
participation in an approved halfway house, mental health project, or 
community project when, in the opinion of the Service, such condition is 
warranted. No detainee may be released until sponsorship, housing, or 
other placement has been found for the detainee, if ordered, including 
but not limited to, evidence of financial support.
    (3) Employment authorization. The district director, Director of the 
Detention and Removal Field Office, and the Executive Associate 
Commissioner, may, in the exercise of discretion, grant employment 
authorization under the same conditions set forth in Sec. 241.5(c) for 
aliens released under an order of supervision.
    (4) Withdrawal of release approval. The district director, Director 
of the Detention and Removal Field Office, or Executive Associate 
Commissioner may, in the exercise of discretion, withdraw approval for 
release of any detained alien

[[Page 535]]

prior to release when, in the decision-maker's opinion, the conduct of 
the detainee, or any other circumstance, indicates that release would no 
longer be appropriate.
    (k) Timing of reviews. The timing of reviews shall be in accordance 
with the following guidelines:
    (1) District director or Director of the Detention and Removal Field 
Office. (i) Prior to the expiration of the removal period, the district 
director or Director of the Detention and Removal Field Office shall 
conduct a custody review for an alien described in paragraphs (a) and 
(b)(1) of this section where the alien's removal, while proper, cannot 
be accomplished during the period, or is impracticable or contrary to 
the public interest. As provided in paragraph (h)(4) of this section, 
the district director or Director of the Detention and Removal Field 
Office will notify the alien in writing that he or she is to be released 
from custody, or that he or she will be continued in detention pending 
removal or further review of his or her custody status.
    (ii) When release is denied pending the alien's removal, the 
district director or Director of the Detention and Removal Field Office 
in his or her discretion may retain responsibility for custody 
determinations for up to three months after expiration of the removal 
period, during which time the district director or Director of the 
Detention and Removal Field Office may conduct such additional review of 
the case as he or she deems appropriate. The district director may 
release the alien if he or she is not removed within the three-month 
period following the expiration of the removal period, in accordance 
with paragraphs (e), (f), and (j) of this section, or the district 
director or Director of the Detention and Removal Field Office may refer 
the alien to the HQPDU for further custody review.
    (2) HQPDU reviews--(i) District director or Director of the 
Detention and Removal Field Office referral for further review. When the 
district director or Director of the Detention and Removal Field Office 
refers a case to the HQPDU for further review, as provided in paragraph 
(c)(2) of this section, authority over the custody determination 
transfers to the Executive Associate Commissioner, according to 
procedures established by the HQPDU. The Service will provide the alien 
with approximately 30 days notice of this further review, which will 
ordinarily be conducted by the expiration of the removal period or as 
soon thereafter as practicable.
    (ii) District director or Director of the Detention and Removal 
Field Office retains jurisdiction. When the district director or 
Director of the Detention and Removal Field Office has advised the alien 
at the 90-day review as provided in paragraph (h)(4) of this section 
that he or she will remain in custody pending removal or further custody 
review, and the alien is not removed within three months of the district 
director's decision, authority over the custody determination transfers 
from the district director or Director of the Detention and Removal 
Field Office to the Executive Associate Commissioner. The initial HQPDU 
review will ordinarily be conducted at the expiration of the three-month 
period after the 90-day review or as soon thereafter as practicable. The 
Service will provide the alien with approximately 30 days notice of that 
review.
    (iii) Continued detention cases. A subsequent review shall 
ordinarily be commenced for any detainee within approximately one year 
of a decision by the Executive Associate Commissioner declining to grant 
release. Not more than once every three months in the interim between 
annual reviews, the alien may submit a written request to the HQPDU for 
release consideration based on a proper showing of a material change in 
circumstances since the last annual review. The HQPDU shall respond to 
the alien's request in writing within approximately 90 days.
    (iv) Review scheduling. Reviews will be conducted within the time 
periods specified in paragraphs (k)(1)(i), (k)(2)(i), (k)(2)(ii), and 
(k)(2)(iii) of this section or as soon as possible thereafter, allowing 
for any unforeseen circumstances or emergent situation.
    (v) Discretionary reviews. The HQPDU Director, in his or her 
discretion, may schedule a review of a detainee at shorter intervals 
when he or she deems such review to be warranted.
    (3) Postponement of review. In the case of an alien who is in the 
custody of the

[[Page 536]]

Service, the district director or the HQPDU Director may, in his or her 
discretion, suspend or postpone the custody review process if such 
detainee's prompt removal is practicable and proper, or for other good 
cause. The decision and reasons for the delay shall be documented in the 
alien's custody review file or A file, as appropriate. Reasonable care 
will be exercised to ensure that the alien's case is reviewed once the 
reason for delay is remedied or if the alien is not removed from the 
United States as anticipated at the time review was suspended or 
postponed.
    (4) Transition provisions. (i) The provisions of this section apply 
to cases that have already received the 90-day review. If the alien's 
last review under the procedures set out in the Executive Associate 
Commissioner memoranda entitled Detention Procedures for Aliens Whose 
Immediate Repatriation is Not Possible or Practicable, February 3, 1999; 
Supplemental Detention Procedures, April 30, 1999; Interim Changes and 
Instructions for Conduct of Post-order Custody Reviews, August 6, 1999; 
Review of Long-term Detainees, October 22, 1999, was a records review 
and the alien remains in custody, the HQPDU will conduct a custody 
review within six months of that review (Memoranda available at http://
www.ins.usdoj.gov). If the alien's last review included an interview, 
the HQPDU review will be scheduled one year from the last review. These 
reviews will be conducted pursuant to the procedures in paragraph (i) of 
this section, within the time periods specified in this paragraph or as 
soon as possible thereafter, allowing for resource limitations, 
unforeseen circumstances, or an emergent situation.
    (ii) Any case pending before the Board on December 21, 2000 will be 
completed by the Board. If the Board affirms the district director's 
decision to continue the alien in detention, the next scheduled custody 
review will be conducted one year after the Board's decision in 
accordance with the procedures in paragraph (i) of this section.
    (l) Revocation of release--(1) Violation of conditions of release. 
Any alien described in paragraph (a) or (b)(1) of this section who has 
been released under an order of supervision or other conditions of 
release who violates the conditions of release may be returned to 
custody. Any such alien who violates the conditions of an order of 
supervision is subject to the penalties described in section 243(b) of 
the Act. Upon revocation, the alien will be notified of the reasons for 
revocation of his or her release or parole. The alien will be afforded 
an initial informal interview promptly after his or her return to 
Service custody to afford the alien an opportunity to respond to the 
reasons for revocation stated in the notification.
    (2) Determination by the Service. The Executive Associate 
Commissioner shall have authority, in the exercise of discretion, to 
revoke release and return to Service custody an alien previously 
approved for release under the procedures in this section. A district 
director may also revoke release of an alien when, in the district 
director's opinion, revocation is in the public interest and 
circumstances do not reasonably permit referral of the case to the 
Executive Associate Commissioner. Release may be revoked in the exercise 
of discretion when, in the opinion of the revoking official:
    (i) The purposes of release have been served;
    (ii) The alien violates any condition of release;
    (iii) It is appropriate to enforce a removal order or to commence 
removal proceedings against an alien; or
    (iv) The conduct of the alien, or any other circumstance, indicates 
that release would no longer be appropriate.
    (3) Timing of review when release is revoked. If the alien is not 
released from custody following the informal interview provided for in 
paragraph (l)(1) of this section, the HQPDU Director shall schedule the 
review process in the case of an alien whose previous release or parole 
from immigration custody pursuant to a decision of either the district 
director, Director of the Detention and Removal Field Office, or 
Executive Associate Commissioner under the procedures in this section 
has been or is subject to being revoked. The normal review process will 
commence with notification to the alien of a records review and 
scheduling of an interview, which will ordinarily be expected to

[[Page 537]]

occur within approximately three months after release is revoked. That 
custody review will include a final evaluation of any contested facts 
relevant to the revocation and a determination whether the facts as 
determined warrant revocation and further denial of release. Thereafter, 
custody reviews will be conducted annually under the provisions of 
paragraphs (i), (j), and (k) of this section.

[65 FR 80294, Dec. 21, 2000, as amended at 66 FR 56976, 56977, Nov. 14, 
2001; 67 FR 39259, June 7, 2002; 70 FR 673, Jan. 5, 2005]



Sec. 241.5  Conditions of release after removal period.

    (a) Order of supervision. An alien released pursuant to Sec. 241.4 
shall be released pursuant to an order of supervision. The Commissioner, 
Deputy Commissioner, Executive Associate Commissioner Field Operations, 
regional director, district director, acting district director, deputy 
district director, assistant district director for investigations, 
assistant district director for detention and deportation, or officer-
in-charge may issue Form I-220B, Order of Supervision. The order shall 
specify conditions of supervision including, but not limited to, the 
following:
    (1) A requirement that the alien report to a specified officer 
periodically and provide relevant information under oath as directed;
    (2) A requirement that the alien continue efforts to obtain a travel 
document and assist the Service in obtaining a travel document;
    (3) A requirement that the alien report as directed for a mental or 
physical examination or examinations as directed by the Service;
    (4) A requirement that the alien obtain advance approval of travel 
beyond previously specified times and distances; and
    (5) A requirement that the alien provide the Service with written 
notice of any change of address on Form AR-11 within ten days of the 
change.
    (b) Posting of bond. An officer authorized to issue an order of 
supervision may require the posting of a bond in an amount determined by 
the officer to be sufficient to ensure compliance with the conditions of 
the order, including surrender for removal.
    (c) Employment authorization. An officer authorized to issue an 
order of supervision may, in his or her discretion, grant employment 
authorization to an alien released under an order of supervision if the 
officer specifically finds that:
    (1) The alien cannot be removed in a timely manner; or
    (2) The removal of the alien is impracticable or contrary to public 
interest.

[62 FR 10378, Mar. 6, 1997, as amended at 65 FR 80298, Dec. 21, 2000; 70 
FR 673, Jan. 5, 2005]



Sec. 241.6  Administrative stay of removal.

    (a) Any request of an alien under a final order of deportation or 
removal for a stay of deportation or removal shall be filed on Form I-
246, Stay of Removal, with the district director having jurisdiction 
over the place where the alien is at the time of filing. The 
Commissioner, Deputy Commissioner, Executive Associate Commissioner for 
Field Operations, Deputy Executive Associate Commissioner for Detention 
and Removal, the Director of the Office of Juvenile Affairs, regional 
directors, or district director, in his or her discretion and in 
consideration of factors listed in 8 CFR 212.5 and section 241(c) of the 
Act, may grant a stay of removal or deportation for such time and under 
such conditions as he or she may deem appropriate. Neither the request 
nor failure to receive notice of disposition of the request shall delay 
removal or relieve the alien from strict compliance with any outstanding 
notice to surrender for deportation or removal.
    (b) Denial by the Commissioner, Deputy Commissioner, Executive 
Associate Commissioner for Field Operations, Deputy Executive Associate 
Commissioner for Detention and Removal, Director of the Office of 
Juvenile Affairs, regional director, or district director of a request 
for a stay is not appealable, but such denial shall not preclude an 
immigration judge or the Board from granting a stay in connection with a 
previously filed motion to reopen or a motion to reconsider as provided 
in 8 CFR part 3.

[[Page 538]]

    (c) The Service shall take all reasonable steps to comply with a 
stay granted by an immigration judge or the Board. However, such a stay 
shall cease to have effect if granted (or communicated) after the alien 
has been placed aboard an aircraft or other conveyance for removal and 
the normal boarding has been completed.

[65 FR 80298, Dec. 21, 2000, as amended at 67 FR 39259, June 7, 2002]



Sec. 241.7  Self-removal.

    A district director, the Deputy Executive Associate Commissioner for 
Detention and Removal, or the Director of the Office of Juvenile Affairs 
may permit an alien ordered removed (including an alien ordered excluded 
or deported in proceedings prior to April 1, 1997) to depart at his or 
her own expense to a destination of his or her own choice. Any alien who 
has departed from the United States while an order of deportation or 
removal is outstanding shall be considered to have been deported, 
excluded and deported, or removed, except that an alien who departed 
before the expiration of the voluntary departure period granted in 
connection with an alternate order of deportation or removal shall not 
be considered to be so deported or removed.

[67 FR 39260, June 7, 2002]



Sec. 241.8  Reinstatement of removal orders.

    (a) Applicability. An alien who illegally reenters the United States 
after having been removed, or having departed voluntarily, while under 
an order of exclusion, deportation, or removal shall be removed from the 
United States by reinstating the prior order. The alien has no right to 
a hearing before an immigration judge in such circumstances. In 
establishing whether an alien is subject to this section, the 
immigration officer shall determine the following:
    (1) Whether the alien has been subject to a prior order of removal. 
The immigration officer must obtain the prior order of exclusion, 
deportation, or removal relating to the alien.
    (2) The identity of the alien, i.e., whether the alien is in fact an 
alien who was previously removed, or who departed voluntarily while 
under an order of exclusion, deportation, or removal. In disputed cases, 
verification of identity shall be accomplished by a comparison of 
fingerprints between those of the previously excluded, deported, or 
removed alien contained in Service records and those of the subject 
alien. In the absence of fingerprints in a disputed case the alien shall 
not be removed pursuant to this paragraph.
    (3) Whether the alien unlawfully reentered the United States. In 
making this determination, the officer shall consider all relevant 
evidence, including statements made by the alien and any evidence in the 
alien's possession. The immigration officer shall attempt to verify an 
alien's claim, if any, that he or she was lawfully admitted, which shall 
include a check of Service data systems available to the officer.
    (b) Notice. If an officer determines that an alien is subject to 
removal under this section, he or she shall provide the alien with 
written notice of his or her determination. The officer shall advise the 
alien that he or she may make a written or oral statement contesting the 
determination. If the alien wishes to make such a statement, the officer 
shall allow the alien to do so and shall consider whether the alien's 
statement warrants reconsideration of the determination.
    (c) Order. If the requirements of paragraph (a) of this section are 
met, the alien shall be removed under the previous order of exclusion, 
deportation, or removal in accordance with section 241(a)(5) of the Act.
    (d) Exception for applicants for benefits under section 902 of HRIFA 
or sections 202 or 203 of NACARA. If an alien who is otherwise subject 
to this section has applied for adjustment of status under either 
section 902 of Division A of Public Law 105-277, the Haitian Refugee 
Immigrant Fairness Act of 1998 (HRIFA), or section 202 of Pubic Law 105-
100, the Nicaraguan Adjustment and Central American Relief Act (NACARA), 
the provisions of section 241(a)(5) of the Immigration and Nationality 
Act shall not apply. The immigration officer may not reinstate the

[[Page 539]]

prior order in accordance with this section unless and until a final 
decision to deny the application for adjustment has been made. If the 
application for adjustment of status is granted, the prior order shall 
be rendered moot.
    (e) Exception for withholding of removal. If an alien whose prior 
order of removal has been reinstated under this section expresses a fear 
of returning to the country designated in that order, the alien shall be 
immediately referred to an asylum officer for an interview to determine 
whether the alien has a reasonable fear of persecution or torture 
pursuant to Sec. 208.31 of this chapter.
    (f) Execution of reinstated order. Execution of the reinstated order 
of removal and detention of the alien shall be administered in 
accordance with this part.

[62 FR 10378, Mar. 6, 1997, as amended at 64 FR 8495, Feb. 19, 1999; 66 
FR 29451, May 31, 2001]



Sec. 241.9  Notice to transportation line of alien's removal.

    (a) An alien who has been ordered removed shall, immediately or as 
promptly as the circumstances permit, be offered for removal to the 
owner, agent, master, commanding officer, person in charge, purser, or 
consignee of the vessel or aircraft on which the alien is to be removed, 
as determined by the district director, with a written notice specifying 
the cause of inadmissibility or deportability, the class of travel in 
which such alien arrived and is to be removed, and with the return of 
any documentation that will assist in effecting his or her removal. If 
special care and attention are required, the provisions of Sec. 241.10 
shall apply.
    (b) Failure of the carrier to accept for removal an alien who has 
been ordered removed shall result in the carrier being assessed any 
costs incurred by the Service for detention after the carrier's failure 
to accept the alien for removal, including the cost of any 
transportation as required under section 241(e) of the Act. The User Fee 
Account shall not be assessed for expenses incurred because of the 
carrier's violation of the provisions of section 241 of the Act and this 
paragraph. The Service will, at the carrier's option, retain custody of 
the alien for an additional 7 days beyond the date of the removal order. 
If, after the third day of this additional 7-day period, the carrier has 
not made all the necessary transportation arrangements for the alien to 
be returned to his or her point of embarkation by the end of the 
additional 7-day period, the Service will make the arrangements and bill 
the carrier for its costs.



Sec. 241.10  Special care and attention of removable aliens.

    When, in accordance with section 241(c)(3) of the Act, a 
transportation line is responsible for the expenses of an inadmissible 
or deportable alien's removal, and the alien requires special care and 
attention, the alien shall be delivered to the owner, agent, master, 
commanding officer, person in charge, purser, or consignee of the vessel 
or aircraft on which the alien will be removed, who shall be given Forms 
I-287, I-287A, and I-287B. The reverse of Form I-287A shall be signed by 
the officer of the vessel or aircraft to whom the alien has been 
delivered and immediately returned to the immigration officer effecting 
delivery. Form I-287B shall be retained by the receiving officer and 
subsequently filled out by the agents or persons therein designated and 
returned by mail to the district director named on the form. The 
transportation line shall at its own expense forward the alien from the 
foreign port of disembarkation to the final destination specified on 
Form I-287. The special care and attention shall be continued to such 
final destination, except when the foreign public officers decline to 
allow such attendant to proceed and they take charge of the alien, in 
which case this fact shall be recorded by the transportation line on the 
reverse of Form I-287B. If the transportation line fails, refuses, or 
neglects to provide the necessary special care and attention or comply 
with the directions of Form I-287, the district director shall 
thereafter and without notice employ suitable persons, at the expense of 
the transportation line, and effect such removal.

[[Page 540]]



Sec. 241.11  Detention and removal of stowaways.

    (a) Presentation of stowaways. The owner, agent, master, commanding 
officer, charterer, or consignee of a vessel or aircraft (referred to in 
this section as the carrier) bringing any alien stowaway to the United 
States is required to detain the stowaway on board the vessel or 
aircraft, at the expense of the owner of the vessel or aircraft, until 
completion of the inspection of the alien by an immigration officer. If 
detention on board the vessel or aircraft pending inspection is not 
possible, the carrier shall advise the Service of this fact without 
delay, and the Service may authorize that the carrier detain the 
stowaway at another designated location, at the expense of the owner, 
until the immigration officer arrives. No notice to detain the alien 
shall be required. Failure to detain an alien stowaway pending 
inspection shall result in a civil penalty under section 243(c)(1)(A) of 
the Act. The owner, agent, master, commanding officer, charterer, or 
consignee of a vessel or aircraft must present the stowaway for 
inspection, along with any documents or evidence of identity or 
nationality in the possession of the alien or obtained by the carrier 
relating to the alien stowaway, and must provide any available 
information concerning the alien's boarding or apprehension.
    (b) Removal of stowaways from vessel or aircraft for medical 
treatment. The district director may parole an alien stowaway into the 
United States for medical treatment, but the costs of detention and 
treatment of the alien stowaway shall be at the expense of the owner of 
the vessel or aircraft, and such removal of the stowaway from the vessel 
or aircraft does not relieve the carrier of the requirement to remove 
the stowaway from the United States once such medical treatment has been 
completed.
    (c) Repatriation of stowaways--(1) Requirements of carrier. 
Following inspection, an immigration officer may order the owner, agent, 
master, commanding officer, charterer, or consignee of a vessel or 
aircraft bringing any alien stowaway to the United States to remove the 
stowaway on the vessel or aircraft of arrival, unless it is 
impracticable to do so or other factors exist which would preclude 
removal on the same vessel or aircraft. Such factors may include, but 
are not limited to, sanitation, health, and safety concerns for the crew 
and/or stowaway, whether the stowaway is a female or a juvenile, loss of 
insurance coverage on account of the stowaway remaining aboard, need for 
repairs to the vessel, and other similar circumstances. If the owner, 
agent, master, commanding officer, charterer, or consignee requests that 
he or she be allowed to remove the stowaway by other means, the Service 
shall favorably consider any such request, provided the carrier has 
obtained, or will obtain in a timely manner, any necessary travel 
documents and has made or will make all transportation arrangements. The 
owner, agent, master, commanding officer, charterer, or consignee shall 
transport the stowaway or arrange for secure escort of the stowaway to 
the vessel or aircraft of departure to ensure that the stowaway departs 
the United States. All expenses relating to removal shall be borne by 
the owner. Other than requiring compliance with the detention and 
removal requirements contained in section 241(d)(2) of the Act, the 
Service shall not impose additional conditions on the carrier regarding 
security arrangements. Failure to comply with an order to remove an 
alien stowaway shall result in a civil penalty under section 
243(c)(1)(A) of the Act.
    (2) Detention of stowaways ordered removed. If detention of the 
stowaway is required pending removal on other than the vessel or 
aircraft of arrival, or if the stowaway is to be removed on the vessel 
or aircraft of arrival but departure of the vessel or aircraft is not 
imminent and circumstances preclude keeping the stowaway on board the 
vessel or aircraft, the Service shall take the stowaway into Service 
custody. The owner is responsible for all costs of maintaining and 
detaining the stowaway pending removal, including costs for stowaways 
seeking asylum as described in paragraph (d) of this section. Such costs 
will be limited to those normally incurred in the detention of an alien 
by the Service, including, but not limited to, housing, food,

[[Page 541]]

transportation, medical expenses, and other reasonable costs incident to 
the detention of the stowaway. The Service may require the posting of a 
bond or other surety to ensure payment of costs of detention.
    (d) Stowaways claiming asylum--(1) Referral for credible fear 
determination. A stowaway who indicates an intention to apply for asylum 
or a fear of persecution or torture upon return to his or her native 
country or country of last habitual residence (if not a national of any 
country) shall be removed from the vessel or aircraft of arrival in 
accordance with Sec. 208.5(b) of this chapter. The immigration officer 
shall refer the alien to an asylum officer for a determination of 
credible fear in accordance with section 235(b)(1)(B) of the Act and 
Sec. 208.30 of this chapter. The stowaway shall be detained in the 
custody of the Service pending the credible fear determination and any 
review thereof. Parole of such alien, in accordance with section 
212(d)(5) of the Act, 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. A stowaway who has established a credible fear of 
persecution or torture in accordance with Sec. 208.30 of this chapter 
may be detained or paroled pursuant to Sec. 212.5 of this chapter 
during any consideration of the asylum application. In determining 
whether to detain or parole the alien, the Service shall consider the 
likelihood that the alien will abscond or pose a security risk.
    (2) Costs of detention of asylum-seeking stowaways. The owner of the 
vessel or aircraft that brought the stowaway to the United States shall 
reimburse the Service for the costs of maintaining and detaining the 
stowaway pending a determination of credible fear under section 
235(b)(1)(B) of the Act, up to a maximum period of 72 hours. The owner 
is also responsible for the costs of maintaining and detaining the 
stowaway during the period in which the stowaway is pursuing his or her 
asylum application, for a maximum period of 15 working days, excluding 
Saturdays, Sundays, and holidays. The 15-day period shall begin on the 
day following the day in which the alien is determined to have a 
credible fear of persecution by the asylum officer, or by the 
immigration judge if such review was requested by the alien pursuant to 
section 235(b)(1)(B)(iii)(III) of the Act, but not later than 72 hours 
after the stowaway was initially presented to the Service for 
inspection. Following the determination of credible fear, if the 
stowaway's application for asylum is not adjudicated within 15 working 
days, the Service shall pay the costs of detention beyond this time 
period. If the stowaway is determined not to have a credible fear of 
persecution, or if the stowaway's application for asylum is denied, 
including any appeals, the carrier shall be notified and shall arrange 
for repatriation of the stowaway at the expense of the owner of the 
vessel or aircraft on which the stowaway arrived.

[62 FR 10378, Mar. 6, 1997, as amended at 64 FR 8495, Feb. 19, 1999]



Sec. 241.12  Nonapplication of costs of detention and maintenance.

    The owner of a vessel or aircraft bringing an alien to the United 
States who claims to be exempt from payment of the costs of detention 
and maintenance of the alien pursuant to section 241(c)(3)(B) of the Act 
shall establish to the satisfaction of the district director in charge 
of the port of arrival that such costs should not be applied. The 
district director shall afford the owner a reasonable time within which 
to submit affidavits and briefs to support the claim. There is no appeal 
from the decision of the district director.



Sec. 241.13  Determination of whether there is a significant likelihood of 

removing a detained alien in the reasonably foreseeable future.

    (a) Scope. This section establishes special review procedures for 
those aliens who are subject to a final order of removal and are 
detained under the custody review procedures provided at Sec. 241.4 
after the expiration of the removal period, where the alien has provided 
good reason to believe there is no significant likelihood of removal to 
the country to which he or she was ordered removed, or to a third 
country, in the reasonably foreseeable future.

[[Page 542]]

    (b) Applicability to particular aliens--(1) Relationship to Sec. 
241.4. Section 241.4 shall continue to govern the detention of aliens 
under a final order of removal, including aliens who have requested a 
review of the likelihood of their removal under this section, unless the 
Service makes a determination under this section that there is no 
significant likelihood of removal in the reasonably foreseeable future. 
The Service may release an alien under an order of supervision under 
Sec. 241.4 if it determines that the alien would not pose a danger to 
the public or a risk of flight, without regard to the likelihood of the 
alien's removal in the reasonably foreseeable future.
    (2) Continued detention pending determinations. (i) The Service's 
Headquarters Post-order Detention Unit (HQPDU) shall continue in custody 
any alien described in paragraph (a) of this section during the time the 
Service is pursuing the procedures of this section to determine whether 
there is no significant likelihood the alien can be removed in the 
reasonably foreseeable future. The HQPDU shall continue in custody any 
alien described in paragraph (a) of this section for whom it has 
determined that special circumstances exist and custody procedures under 
Sec. 241.14 have been initiated.
    (ii) The HQPDU has no obligation to release an alien under this 
section until the HQPDU has had the opportunity during a six-month 
period, dating from the beginning of the removal period (whenever that 
period begins and unless that period is extended as provided in section 
241(a)(1) of the Act), to make its determination as to whether there is 
a significant likelihood of removal in the reasonably foreseeable 
future.
    (3) Limitations. This section does not apply to:
    (i) Arriving aliens, including those who have not entered the United 
States, those who have been granted immigration parole into the United 
States, and Mariel Cubans whose parole is governed by Sec. 212.12 of 
this chapter;
    (ii) Aliens subject to a final order of removal who are still within 
the removal period, including aliens whose removal period has been 
extended for failure to comply with the requirements of section 
241(a)(1)(C) of the Act; or
    (iii) Aliens who are ordered removed by the Alien Terrorist Removal 
Court pursuant to title 5 of the Act.
    (c) Delegation of authority. The HQPDU shall conduct a review under 
this section, in response to a request from a detained alien, in order 
to determine whether there is no significant likelihood that the alien 
will be removed in the reasonably foreseeable future. If so, the HQPDU 
shall determine whether the alien should be released from custody under 
appropriate conditions of supervision or should be referred for a 
determination under Sec. 241.14 as to whether the alien's continued 
detention may be justified by special circumstances.
    (d) Showing by the alien--(1) Written request. An eligible alien may 
submit a written request for release to the HQPDU asserting the basis 
for the alien's belief that there is no significant likelihood that the 
alien will be removed in the reasonably foreseeable future . The alien 
may submit whatever documentation to the HQPDU he or she wishes in 
support of the assertion that there is no significant likelihood of 
removal in the reasonably foreseeable future.
    (2) Compliance and cooperation with removal efforts. The alien shall 
include with the written request information sufficient to establish his 
or her compliance with the obligation to effect his or her removal and 
to cooperate in the process of obtaining necessary travel documents.
    (3) Timing of request. An eligible alien subject to a final order of 
removal may submit, at any time after the removal order becomes final, a 
written request under this section asserting that his or her removal is 
not significantly likely in the reasonably foreseeable future. However, 
the Service may, in the exercise of its discretion, postpone its 
consideration of such a request until after expiration of the removal 
period.
    (e) Review by HQPDU--(1) Initial response. Within 10 business days 
after the HQPDU receives the request (or, if later, the expiration of 
the removal period), the HQPDU shall respond in writing to the alien, 
with a copy to counsel

[[Page 543]]

of record, by regular mail, acknowledging receipt of the request for a 
review under this section and explaining the procedures that will be 
used to evaluate the request. The notice shall advise the alien that the 
Service may continue to detain the alien until it has made a 
determination under this section whether there is a significant 
likelihood the alien can be removed in the reasonably foreseeable 
future.
    (2) Lack of compliance, failure to cooperate. The HQPDU shall first 
determine if the alien has failed to make reasonable efforts to comply 
with the removal order, has failed to cooperate fully in effecting 
removal, or has obstructed or hampered the removal process. If so, the 
HQPDU shall so advise the alien in writing, with a copy to counsel of 
record by regular mail. The HQPDU shall advise the alien of the efforts 
he or she needs to make in order to assist in securing travel documents 
for return to his or her country of origin or a third country, as well 
as the consequences of failure to make such efforts or to cooperate, 
including the provisions of section 243(a) of the Act. The Service shall 
not be obligated to conduct a further consideration of the alien's 
request for release until the alien has responded to the HQPDU and has 
established his or her compliance with the statutory requirements.
    (3) Referral to the State Department. If the HQPDU believes that the 
alien's request provides grounds for further review, the Service may, in 
the exercise of its discretion, forward a copy of the alien's release 
request to the Department of State for information and assistance. The 
Department of State may provide detailed country conditions information 
or any other information that may be relevant to whether a travel 
document is obtainable from the country at issue. The Department of 
State may also provide an assessment of the accuracy of the alien's 
assertion that he or she cannot be returned to the country at issue or 
to a third country. When the Service bases its decision, in whole or in 
part, on information provided by the Department of State, that 
information shall be made part of the record.
    (4) Response by alien. The Service shall permit the alien an 
opportunity to respond to the evidence on which the Service intends to 
rely, including the Department of State's submission, if any, and other 
evidence of record presented by the Service prior to any HQPDU decision. 
The alien may provide any additional relevant information to the 
Service, including reasons why his or her removal would not be 
significantly likely in the reasonably foreseeable future even though 
the Service has generally been able to accomplish the removal of other 
aliens to the particular country.
    (5) Interview. The HQPDU may grant the alien an interview, whether 
telephonically or in person, if the HQPDU determines that an interview 
would provide assistance in reaching a decision. If an interview is 
scheduled, the HQPDU will provide an interpreter upon its determination 
that such assistance is appropriate.
    (6) Special circumstances. If the Service determines that there are 
special circumstances justifying the alien's continued detention 
nowithstanding the determination that removal is not significantly 
likely in the reasonably foreseeable future, the Service shall initiate 
the review procedures in Sec. 241.14, and provide written notice to the 
alien. In appropriate cases, the Service may initiate review proceedings 
under Sec. 241.14 before completing the HQPDU review under this 
section.
    (f) Factors for consideration. The HQPDU shall consider all the 
facts of the case including, but not limited to, the history of the 
alien's efforts to comply with the order of removal, the history of the 
Service's efforts to remove aliens to the country in question or to 
third countries, including the ongoing nature of the Service's efforts 
to remove this alien and the alien's assistance with those efforts, the 
reasonably foreseeable results of those efforts, and the views of the 
Department of State regarding the prospects for removal of aliens to the 
country or countries in question. Where the Service is continuing its 
efforts to remove the alien, there is no presumptive period of time 
within which the alien's removal must be accomplished, but the prospects 
for the timeliness of removal

[[Page 544]]

must be reasonable under the circumstances.
    (g) Decision. The HQPDU shall issue a written decision based on the 
administrative record, including any documentation provided by the 
alien, regarding the likelihood of removal and whether there is a 
significant likelihood that the alien will be removed in the reasonably 
foreseeable future under the circumstances. The HQPDU shall provide the 
decision to the alien, with a copy to counsel of record, by regular 
mail.
    (1) Finding of no significant likelihood of removal. If the HQPDU 
determines at the conclusion of the review that there is no significant 
likelihood that the alien will be removed in the reasonably foreseeable 
future, despite the Service's and the alien's efforts to effect removal, 
then the HQPDU shall so advise the alien. Unless there are special 
circumstances justifying continued detention, the Service shall promptly 
make arrangements for the release of the alien subject to appropriate 
conditions, as provided in paragraph (h) of this section. The Service 
may require that the alien submit to a medical or psychiatric 
examination prior to establishing appropriate conditions for release or 
determining whether to refer the alien for further proceedings under 
Sec. 214.14 because of special circumstances justifying continued 
detention. The Service is not required to release an alien if the alien 
refuses to submit to a medical or psychiatric examination as ordered.
    (2) Denial. If the HQPDU determines at the conclusion of the review 
that there is a significant likelihood that the alien will be removed in 
the reasonably foreseeable future, the HQPDU shall deny the alien's 
request under this section. The denial shall advise the alien that his 
or her detention will continue to be governed under the established 
standards in Sec. 214.4. There is no administrative appeal from the 
HQPDU decision denying a request from an alien under this section.
    (h) Conditions of release--(1) In general. An alien's release 
pursuant to an HQPDU determination that the alien's removal is not 
significantly likely in the reasonably foreseeable future shall be upon 
appropriate conditions specified in this paragraph and in the order of 
supervision, in order to protect the public safety and to promote the 
ability of the Service to effect the alien's removal as ordered, or 
removal to a third country, should circumstances change in the future. 
The order of supervision shall include all of the conditions provided in 
section 241(a)(3) of the Act, and Sec. 241.5, and shall also include 
the conditions that the alien obey all laws, including any applicable 
prohibitions on the possession or use of firearms (see, e.g., 18 U.S.C. 
922(g)); and that the alien continue to seek to obtain travel documents 
and provide the Service with all correspondence to Embassies/Consulates 
requesting the issuance of travel documents and any reply from the 
Embassy/Consulate. The order of supervision may also include any other 
conditions that the HQPDU considers necessary to ensure public safety 
and guarantee the alien's compliance with the order of removal, 
including, but not limited to, attendance at any rehabilitative/
sponsorship program or submission for medical or psychiatric 
examination, as ordered.
    (2) Advice of consequences for violating conditions of release. The 
order of supervision shall advise an alien released under this section 
that he or she must abide by the conditions of release specified by the 
Service. The order of supervision shall also advise the alien of the 
consequences of violation of the conditions of release, including the 
authority to return the alien to custody and the sanctions provided in 
section 243(b) of the Act.
    (3) Employment authorization. The Service may, in the exercise of 
its discretion, grant employment authorization under the same conditions 
set forth in Sec. 241.5(c) for aliens released under an order of 
supervision.
    (4) Withdrawal of release approval. The Service may, in the exercise 
of its discretion, withdraw approval for release of any alien under this 
section prior to release in order to effect removal in the reasonably 
foreseeable future or where the alien refuses to comply with the 
conditions of release.
    (i) Revocation of release--(1) Violation of conditions of release. 
Any alien who

[[Page 545]]

has been released under an order of supervision under this section who 
violates any of the conditions of release may be returned to custody and 
is subject to the penalties described in section 243(b) of the Act. In 
suitable cases, the HQPDU shall refer the case to the appropriate U.S. 
Attorney for criminal prosecution. The alien may be continued in 
detention for an additional six months in order to effect the alien's 
removal, if possible, and to effect the conditions under which the alien 
had been released.
    (2) Revocation for removal. The Service may revoke an alien's 
release under this section and return the alien to custody if, on 
account of changed circumstances, the Service determines that there is a 
significant likelihood that the alien may be removed in the reasonably 
foreseeable future. Thereafter, if the alien is not released from 
custody following the informal interview provided for in paragraph 
(h)(3) of this section, the provisions of Sec. 241.4 shall govern the 
alien's continued detention pending removal.
    (3) Revocation procedures. Upon revocation, the alien will be 
notified of the reasons for revocation of his or her release. The 
Service will conduct an initial informal interview promptly after his or 
her return to Service custody to afford the alien an opportunity to 
respond to the reasons for revocation stated in the notification. The 
alien may submit any evidence or information that he or she believes 
shows there is no significant likelihood he or she be removed in the 
reasonably foreseeable future, or that he or she has not violated the 
order of supervision. The revocation custody review will include an 
evaluation of any contested facts relevant to the revocation and a 
determination whether the facts as determined warrant revocation and 
further denial of release.
    (j) Subsequent requests for review. If the Service has denied an 
alien's request for release under this section, the alien may submit a 
request for review of his or her detention under this section, six 
months after the Service's last denial of release under this section. 
After applying the procedures in this section, the HQPDU shall consider 
any additional evidence provided by the alien or available to the 
Service as well as the evidence in the prior proceedings but the HQPDC 
shall render a de novo decision on the likelihood of removing the alien 
in the reasonably foreseeable future under the circumstances.

[66 FR 56977, Nov. 14, 2001, as amended at 70 FR 673, Jan. 5, 2005]



Sec. 241.14  Continued detention of removable aliens on account of special 

circumstances.

    (a) Scope. The Service may invoke the procedures of this section in 
order to continue detention of particular removable aliens on account of 
special circumstances even though there is no significant likelihood 
that the alien will be removed in the reasonably foreseeable future.
    (1) Applicability. This section applies to removable aliens as to 
whom the Service has made a determination under Sec. 241.13 that there 
is no significant likelihood of removal in the reasonably foreseeable 
future. This section does not apply to aliens who are not subject to the 
special review provisions under Sec. 241.13.
    (2) Jurisdiction. The immigration judges and the Board have 
jurisdiction with respect to determinations as to whether release of an 
alien would pose a special danger to the public, as provided in 
paragraphs (f) through (k) of this section, but do not have jurisdiction 
with respect to aliens described in paragraphs (b), (c), or (d) of this 
section.
    (b) Aliens with a highly contagious disease that is a threat to 
public safety. If, after a medical examination of the alien, the Service 
determines that a removable alien presents a threat to public safety 
initiate efforts with the Public Health Service or proper State and 
local government officials to secure appropriate arrangements for the 
alien's continued medical care or treatment.
    (1) Recommendation. The Service shall not invoke authority to 
continue detention of an alien under this paragraph except upon the 
express recommendation of the Public Health Service. The Service will 
provide every reasonably available form of treatment while the alien 
remains in the custody of the Service.

[[Page 546]]

    (2) Conditions of release. If the Service, in consultation with the 
Public Health Service and the alien, identifies an appropriate medical 
facility that will treat the alien, then the alien may be released on 
condition that he or she continue with appropriate medical treatment 
until he or she no longer poses a threat to public safety because of a 
highly contagious disease.
    (c) Aliens detained on account of serious adverse foreign policy 
consequences of release--(1) Certification. The Service shall continue 
to detain a removable alien where the Attorney General or Deputy 
Attorney General has certified in writing that:
    (i) Without regard to the grounds upon which the alien has been 
found inadmissible or removable, the alien is a person described in 
section 212(a)(3)(C) or section 237(a)(4)(C) of the Act;
    (ii) The alien's release is likely to have serious adverse foreign 
policy consequences for the United States; and
    (iii) No conditions of release can reasonably be expected to avoid 
those serious adverse foreign policy consequences,
    (2) Foreign policy consequences. A certification by the Attorney 
General or Deputy Attorney General that an alien should not be released 
from custody on account of serious adverse foreign policy consequences 
shall be made only after consultation with the Department of State and 
upon the recommendation of the Secretary of State.
    (3) Ongoing review. The certification is subject to ongoing review 
on a semi-annual basis but is not subject to further administrative 
review.
    (d) Aliens detained on account of security or terrorism concerns--
(1) Standard for continued detention. Subject to the review procedures 
under this paragraph (d), the Service shall continue to detain a 
removable alien based on a determination in writing that:
    (i) The alien is a person described in section 212(a)(3)(A) or (B) 
or section 237(a)(4)(A) of (B) of the Act or the alien has engaged or 
will likely engage in any other activity that endangers the national 
security;
    (ii) The alien's release presents a significant threat to the 
national security or a significant risk of terrorism; and
    (iii) No conditions of release can reasonably be expected to avoid 
the threat to the national security or the risk of terrorism, as the 
case may be.
    (2) Procedure. Prior to the Commissioner's recommendation to the 
Attorney General under paragraph (d)(5) of this section, the alien shall 
be notified of the Service's intention to continue the alien in 
detention and of the alien's right to submit a written statement and 
additional information for consideration by the Commissioner. The 
Service shall continue to detain the alien pending the decision of the 
Attorney General under this paragraph. To the greatest extent consistent 
with protection of the national security and classified information:
    (i) The Service shall provide a description of the factual basis for 
the alien's continued detention; and
    (ii) The alien shall have a reasonable opportunity to examine 
evidence against him or her, and to present information on his or her 
own behalf.
    (3) Aliens ordered removed on grounds other than national security 
or terrorism. If the alien's final order of removal was based on grounds 
of inadmissibility other than any of those stated in section 
212(a)(3)(A)(i), (A)(iii), or (B) of the Act, or on grounds of 
deportability other than any of those stated in section 237(a)(4)(A) or 
(B) of the Act:
    (i) An immigration officer shall, if possible, conduct an interview 
in person and take a sworn question-and-answer statement from the alien, 
and the Service shall provide an interpreter for such interview, if such 
assistance is determined to be appropriate; and
    (ii) The alien may be accompanied at the interview by an attorney or 
other representative of his or her choice in accordance with 8 CFR part 
292, at no expense to the government.
    (4) Factors for consideration. In making a recommendation to the 
Attorney General that an alien should not be released from custody on 
account of security or terrorism concerns, the Commissioner shall take 
into account all relevant information, including but not limited to:

[[Page 547]]

    (i) The recommendations of appropriate enforcement officials of the 
Service, including the director of the Headquarters Post-order Detention 
Unit (HQPDU), and of the Federal Bureau of Investigation or other 
federal law enforcement or national security agencies;
    (ii) The statements and information submitted by the alien, if any;
    (iii) The extent to which the alien's previous conduct (including 
but not limited to the commission of national security or terrorism-
related offenses, engaging in terrorist activity or other activity that 
poses a danger to the national security and any prior convictions in a 
federal, state or foreign court) indicates a likelihood that the alien's 
release would present a significant threat to the national security or a 
significant risk of terrorism; and
    (iv) Other special circumstances of the alien's case indicating that 
release from detention would present a significant threat to the 
national security or a significant risk of terrorism.
    (5) Recommendation to the Attorney General. The Commissioner shall 
submit a written recommendation and make the record available to the 
Attorney General. If the continued detention is based on a significant 
risk of terrorism, the recommendation shall state in as much detail as 
practicable the factual basis for this determination.
    (6) Attorney General certification. Based on the record developed by 
the Service, and upon this recommendation of the Commissioner and the 
Director of the Federal Bureau of Investigation, the Attorney General 
may certify that an alien should continue to be detained on account of 
security or terrorism grounds as provided in this paragraph (d). Before 
making such a certification, the Attorney General shall order any 
further procedures or reviews as may be necessary under the 
circumstances to ensure the development of a complete record, consistent 
with the obligations to protect national security and classified 
information and to comply with the requirements of due process.
    (7) Ongoing review. The detention decision under this paragraph (d) 
is subject to ongoing review on a semi-annual basis as provided in this 
paragraph (d), but is not subject to further administrative review. 
After the initial certification by the Attorney General, further 
certifications under paragraph (d)(6) of this section may be made by the 
Deputy Attorney General.
    (e) [Reserved]
    (f) Detention of aliens determined to be specially dangerous--(1) 
Standard for continued detention. Subject to the review procedures 
provided in this section, the Service shall continue to detain an alien 
if the release of the alien would pose a special danger to the public, 
because:
    (i) The alien has previously committed one or more crimes of 
violence as defined in 18 U.S.C. 16;
    (ii) Due to a mental condition or personality disorder and behavior 
associated with that condition or disorder, the alien is likely to 
engage in acts of violence in the future; and
    (iii) No conditions of release can reasonably be expected to ensure 
the safety of the public.
    (2) Determination by the Commissioner. The Service shall promptly 
initiate review proceedings under paragraph (g) of this section if the 
Commissioner has determined in writing that the alien's release would 
pose a special danger to the public, according to the standards of 
paragraph (f)(1) of this section.
    (3) Medical or mental health examination. Before making such a 
determination, the Commissioner shall arrange for a report by a 
physician employed or designated by the Public Health Service based on a 
full medical and psychiatric examination of the alien. The report shall 
include recommendations pertaining to whether, due to a mental condition 
or personality disorder and behavior associated with that condition or 
disorder, the alien is likely to engage in acts of violence in the 
future.
    (4) Detention pending review. After the Commissioner or Deputy 
Commissioner has made a determination under this paragraph, the Service 
shall continue to detain the alien, unless an immigration judge or the 
Board issues an administratively final decision dismissing the review 
proceedings under this section.
    (g) Referral to Immigration Judge. Jurisdiction for an immigration 
judge to

[[Page 548]]

review a determination by the Service pursuant to paragraph (f) of this 
section that an alien is specially dangerous shall commence with the 
filing by the Service of a Notice of Referral to the Immigration Judge 
(Form I-863) with the Immigration Court having jurisdiction over the 
place of the alien's custody. The Service shall promptly provide to the 
alien by personal service a copy of the Notice of Referral to the 
Immigration Judge and all accompanying documents.
    (1) Factual basis. The Service shall attach a written statement that 
contains a summary of the basis for the Commissioner's determination to 
continue to detain the alien, including a description of the evidence 
relied upon to reach the determination regarding the alien's special 
dangerousness. The Service shall attach copies of all relevant documents 
used to reach its decision to continue to detain the alien.
    (2) Notice of reasonable cause hearing. The Service shall attach a 
written notice advising the alien that the Service is initiating 
proceedings for the continued detention of the alien and informing the 
alien of the procedures governing the reasonable cause hearing, as set 
forth at paragraph (h) of this section.
    (3) Notice of alien's rights. The Service shall also provide written 
notice advising the alien of his or her rights during the reasonable 
cause hearing and the merits hearing before the Immigration Court, as 
follows:
    (i) The alien shall be provided with a list of free legal services 
providers, and may be represented by an attorney or other representative 
of his or her choice in accordance with 8 CFR part 292, at no expense to 
the Government;
    (ii) The Immigration Court shall provide an interpreter for the 
alien, if necessary, for the reasonable cause hearing and the merits 
hearing.
    (iii) The alien shall have a reasonable opportunity to examine 
evidence against the alien, to present evidence in the alien's own 
behalf, and to cross-examine witnesses presented by the Service; and
    (iv) The alien shall have the right, at the merits hearing, to 
cross-examine the author of any medical or mental health reports used as 
a basis for the determination under paragraph (f) of this section that 
the alien is specially dangerous.
    (4) Record. All proceedings before the immigration judge under this 
section shall be recorded. The Immigration Court shall create a record 
of proceeding that shall include all testimony and documents related to 
the proceedings.
    (h) Reasonable cause hearing. The immigration judge shall hold a 
preliminary hearing to determine whether the evidence supporting the 
Service's determination is sufficient to establish reasonable cause to 
go forward with a merits hearing under paragraph (i) of this section. A 
finding of reasonable cause under this section will be sufficient to 
warrant the alien's continued detention pending the completion of the 
review proceedings under this section.
    (1) Scheduling of hearing. The reasonable cause hearing shall be 
commenced not later than 10 business days after the filing of the Form 
I-863. The Immigration Court shall provide prompt notice to the alien 
and to the Service of the time and place of the hearing. The hearing may 
be continued at the request of the alien or his or her representative.
    (2) Evidence. The Service must show that there is reasonable cause 
to conduct a merits hearing under a merits hearing under paragraph (i) 
of this section. The Service may offer any evidence that is material and 
relevant to the proceeding. Testimony of witnesses, if any, shall be 
under oath or affirmation. The alien may, but is not required to, offer 
evidence on his or her own behalf.
    (3) Decision. The immigration judge shall render a decision, which 
should be in summary form, within 5 business days after the close of the 
record, unless that time is extended by agreement of both parties, by a 
determination from the Chief Immigration Judge that exceptional 
circumstances make it impractical to render the decision on a highly 
expedited basis, or because of delay caused by the alien. If the 
immigration judge determines that the Service has met its burden of 
establishing reasonable cause, the immigration judge shall advise the 
alien and

[[Page 549]]

the Service, and shall schedule a merits hearing under paragraph (i) of 
this section to review the Service's determination that the alien is 
specially dangerous. If the immigration judge determines that the 
Service has not met its burden, the immigration judge shall order that 
the review proceedings under this section be dismissed. The order and 
any documents offered shall be included in the record of proceedings, 
and may be relied upon in a subsequent merits hearing.
    (4) Appeal. If the immigration judge dismisses the review 
proceedings, the Service may appeal to the Board of Immigration Appeals 
in accordance with Sec. 3.38 of this chapter, except that the Service 
must file the Notice of Appeal (Form EOIR-26) with the Board within 2 
business days after the immigration judge's order. The Notice of Appeal 
should state clearly and conspicuously that it is an appeal of a 
reasonable cause decision under this section.
    (i) If the Service reserves appeal of a dismissal of the reasonable 
cause hearing, the immigration judge's order shall be stayed until the 
expiration of the time to appeal. Upon the Service's filing of a timely 
Notice of Appeal, the immigration judge's order shall remain in abeyance 
pending a final decision of the appeal. The stay shall expire if the 
Service fails to file a timely Notice of Appeal.
    (ii) The Board will decide the Service's appeal, by single Board 
Member review, based on the record of proceedings before the immigration 
judge. The Board shall expedite its review as far as practicable, as the 
highest priority among the appeals filed by detained aliens, and shall 
determine the issue within 20 business days of the filing of the notice 
of appeal, unless that time is extended by agreement of both parties, by 
a determination from the Chairman of the Board that exceptional 
circumstances make it impractical to render the decision on a highly 
expedited basis, or because of delay caused by the alien.
    (iii) If the Board determines that the Service has met its burden of 
showing reasonable cause under this paragraph (h), the Board shall 
remand the case to the immigration judge for the scheduling of a merits 
hearing under paragraph (i) of this section. If the Board determines 
that the Service has not met its burden, the Board shall dismiss the 
review proceedings under this section.
    (i) Merits hearing. If there is reasonable cause to conduct a merits 
hearing under this section, the immigration judge shall promptly 
schedule the hearing and shall expedite the proceedings as far as 
practicable. The immigration judge shall allow adequate time for the 
parties to prepare for the merits hearing, but, if requested by the 
alien, the hearing shall commence within 30 days. The hearing may be 
continued at the request of the alien or his or her representative, or 
at the request of the Service upon a showing of exceptional 
circumstances by the Service.
    (1) Evidence. The Service shall have the burden of proving, by clear 
and convincing evidence, that the alien should remain in custody because 
the alien's release would pose a special danger to the public, under the 
standards of paragraph (f)(1) of this section. The immigration judge may 
receive into evidence any oral or written statement that is material and 
relevant to this determination. Testimony of witnesses shall be under 
oath or affirmation. The alien may, but is not required to, offer 
evidence on his or her own behalf.
    (2) Factors for consideration. In making any determination in a 
merits hearing under this section, the immigration judge shall consider 
the following non-exclusive list of factors:
    (i) The alien's prior criminal history, particularly the nature and 
seriousness of any prior crimes involving violence or threats of 
violence;
    (ii) The alien's previous history of recidivism, if any, upon 
release from either Service or criminal custody;
    (iii) The substantiality of the Service's evidence regarding the 
alien's current mental condition or personality disorder;
    (iv) The likelihood that the alien will engage in acts of violence 
in the future; and
    (v) The nature and seriousness of the danger to the public posed by 
the alien's release.
    (3) Decision. After the closing of the record, the immigration judge 
shall

[[Page 550]]

render a decision as soon as practicable. The decision may be oral or 
written. The decision shall state whether or not the Service has met its 
burden of establishing that the alien should remain in custody because 
the alien's release would pose a special danger to the public, under the 
standards of paragraph (f)(1) of this section. The decision shall also 
include the reasons for the decision under each of the standards of 
paragraph (f)(1) of this section, although a formal enumeration of 
findings is not required. Notice of the decision shall be served in 
accordance with Sec. 240.13(a) or (b).
    (i) If the immigration judge determines that the Service has met its 
burden, the immigration judge shall enter an order providing for the 
continued detention of the alien.
    (ii) If the immigration judge determines that the Service has failed 
to meet its burden, the immigration judge shall order that the review 
proceedings under this section be dismissed.
    (4) Appeal. Either party may appeal an adverse decision to the Board 
of Immigration Appeals in accordance with Sec. 3.38 of this chapter, 
except that, if the immigration judge orders dismissal of the 
proceedings, the Service shall have only 5 business days to file a 
Notice of Appeal with the Board. The Notice of Appeal should state 
clearly and conspicuously that this is an appeal of a merits decision 
under this section.
    (i) If the Service reserves appeal of a dismissal, the immigration 
judge's order shall be stayed until the expiration of the time to 
appeal. Upon the Service's filing of a timely Notice of Appeal, the 
immigration judge's order shall remain in abeyance pending a final 
decision of the appeal. The stay shall expire if the Service fails to 
file a timely Notice of Appeal.
    (ii) The Board shall conduct its review of the appeal as provided in 
8 CFR part 3, but shall expedite its review as far as practicable, as 
the highest priority among the appeals filed by detained aliens. The 
decision of the Board shall be final as provided in Sec. 3.1(d)(3) of 
this chapter.
    (j) Release of alien upon dismissal of proceedings. If there is an 
administratively final decision by the immigration judge or the Board 
dismissing the review proceedings under this section upon conclusion of 
the reasonable cause hearing or the merits hearing, the Service shall 
promptly release the alien on conditions of supervision, as determined 
by the Service, pursuant to Sec. 241.13. The conditions of supervision 
shall not be subject to review by the immigration judge or the Board.
    (k) Subsequent review for aliens whose release would pose a special 
danger to the public--(1) Periodic review. In any case where the 
immigration judge or the Board has entered an order providing for the 
alien to remain in custody after a merits hearing pursuant to paragraph 
(i) of this section, the Service shall continue to provide an ongoing, 
periodic review of the alien's continued detention, according to Sec. 
241.4 and paragraphs (f)(1)(ii) and (f)(1)(iii) of this section.
    (2) Alien's request for review. The alien may also request a review 
of his or her custody status because of changed circumstances, as 
provided in this paragraph (k). The request shall be in writing and 
directed to the HQPDU.
    (3) Time for review. An alien may only request a review of his or 
her custody status under this paragraph (k) no earlier than six months 
after the last decision of the immigration judge under this section or, 
if the decision was appealed, the decision of the Board.
    (4) Showing of changed circumstances. The alien shall bear the 
initial burden to establish a material change in circumstances such that 
the release of the alien would no longer pose a special danger to the 
public under the standards of paragraph (f)(1) of this section.
    (5) Review by the Service. If the Service determines, upon 
consideration of the evidence submitted by the alien and other relevant 
evidence, that the alien is not likely to commit future acts of violence 
or that the Service will be able to impose adequate conditions of 
release so that the alien will not pose a special danger to the public, 
the Service shall release the alien from custody pursuant to the 
procedures in Sec. 241.13. If the Service determines that continued 
detention is needed in order to protect the public, the Service shall 
provide a written notice to the alien stating the basis for the 
Service's determination, and provide a copy of the

[[Page 551]]

evidence relied upon by the Service. The notice shall also advise the 
alien of the right to move to set aside the prior review proceedings 
under this section.
    (6) Motion to set aside determination in prior review proceedings. 
If the Service denies the alien's request for release from custody, the 
alien may file a motion with the Immigration Court that had jurisdiction 
over the merits hearing to set aside the determination in the prior 
review proceedings under this section. The immigration judge shall 
consider any evidence submitted by the alien or relied upon by the 
Service and shall provide an opportunity for the Service to respond to 
the motion.
    (i) If the immigration judge determines that the alien has provided 
good reason to believe that, because of a material change in 
circumstances, releasing the alien would no longer pose a special danger 
to the public under the standards of paragraph (f)(1) of this section, 
the immigration judge shall set aside the determination in the prior 
review proceedings under this section and schedule a new merits hearing 
as provided in paragraph (i) of this section.
    (ii) Unless the immigration judge determines that the alien has 
satisfied the requirements under paragraph (k)(6)(i) of this section, 
the immigration judge shall deny the motion. Neither the immigration 
judge nor the Board may sua sponte set aside a determination in prior 
review proceedings. Notwithstanding 8 CFR 3.23 or 3.2 (motions to 
reopen), the provisions set forth in this paragraph (k) shall be the 
only vehicle for seeking review based on material changed circumstances.
    (iii) The alien may appeal an adverse decision to the Board in 
accordance with Sec. 3.38 of this chapter. The Notice of Appeal should 
state clearly and conspicuously that this is an appeal of a denial of a 
motion to set aside a prior determination in review proceedings under 
this section.

[66 FR 56979, Nov. 14, 2001]



Sec. 241.15  Countries to which aliens may be removed.

    (a) Country. For the purposes of section 241(b) of the Act (8 U.S.C. 
1231(b)), the Secretary retains discretion to remove an alien to any 
country described in section 241(b) of the Act (8 U.S.C. 1231(b)), 
without regard to the nature or existence of a government.
    (b) Acceptance. For the purposes of section 241(b) of the Act (8 
U.S.C. 1231(b)), the Secretary retains discretion to determine the 
effect, if any, of acceptance or lack thereof, when an acceptance by a 
country is required, and what constitutes sufficient acceptance.
    (c) Absence or lack of response. The absence of or lack of response 
from a de jure or functioning government (whether recognized by the 
United States, or otherwise) or a body acting as a de jure or 
functioning government in the receiving country does not preclude the 
removal of an alien to a receiving country.
    (d) Prior commitment. No commitment of acceptance by the receiving 
country is required prior to designation of the receiving country, 
before travel arrangements are made, or before the alien is transported 
to the receiving country.
    (e) Specific provisions regarding acceptance. Where the Department 
cannot remove an alien under section 241(b)(2)(A)-(D) of the Act, 
acceptance is not required to remove an alien to a receiving country 
pursuant to section 241(b)(2)(E)(i)-(vi) of the Act. Where the 
Department cannot remove an arriving alien under section 241(b)(1)(A) or 
(B) of the Act, acceptance is not required to remove an alien to a 
receiving country pursuant to section 241(b)(1)(C)(i)-(iii) of the Act.
    (f) Interest of the United States controlling. The Secretary or his 
designee may designate a country previously identified in section 
241(b)(2)(A)-(D) of the Act when selecting a removal country under 
section 241(b)(2)(E) of the Act (and may designate a country previously 
identified in section 241(b)(1)(A) or (B) of the Act when selecting an 
alternative removal country under subsection 241(b)(1)(C) of the Act) if 
the Secretary or his designee determines that such designation is in the 
best interests of the United States.
    (g) Limitation on construction. Nothing in this section shall be 
construed to create any substantive or procedural right or benefit that 
is legally enforceable by any party against the United

[[Page 552]]

States or its agencies or officers or any other person.

[70 FR 673, Jan. 5, 2005]



Sec. Sec. 241.16-241.19  [Reserved]



 Subpart B_Deportation of Excluded Aliens (for Hearings Commenced Prior 

                            to April 1, 1997)



Sec. 241.20  Proceedings commenced prior to April 1, 1997.

    Subpart B of 8 CFR part 241 applies to exclusion proceedings 
commenced prior to April 1, 1997. All references to the Act contained in 
this subpart are references to the Act in effect prior to April 1, 1997.



Sec. 241.21  Stay of deportation of excluded alien.

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



Sec. 241.22  Notice to surrender for deportation.

    An alien who has been finally excluded pursuant to 8 CFR part 240, 
subpart D may at any time surrender himself or herself to the custody of 
the Service and shall surrender to such custody upon notice in writing 
of the time and place for his or her surrender. The Service may take the 
alien into custody at any time. An alien taken into custody either upon 
notice to surrender or by arrest shall not be deported less than 72 
hours thereafter without his or her consent thereto filed in writing 
with the district director in charge of the place of his or her 
detention. An alien in foreign contiguous territory shall be informed 
that he or she may remain there in lieu of surrendering to the Service, 
but that he or she will be deemed to have acknowledged the execution of 
the order of exclusion and deportation in his or her case upon his or 
her failure to surrender at the time and place prescribed.



Sec. 241.23  Cost of maintenance not assessed.

    A claim pursuant to section 237(a)(1) of the Act shall be 
established to the satisfaction of the district director in charge of 
the port of arrival, from whose adverse decision no appeal shall lie. 
The district director shall afford the line a reasonable time within 
which to submit affidavits and briefs to support its claim.



Sec. 241.24  Notice to transportation line of alien's exclusion.

    (a) An excluded alien shall, immediately or as promptly as the 
circumstances permit, be offered for deportation to the master, 
commanding officer, purser, person in charge, agent, owner, or consignee 
of the vessel or aircraft on which the alien is to be deported, as 
determined by the district director, with a written notice specifying 
the cause of exclusion, the class of travel in which such alien arrived 
and is to be deported, and with the return of any documentation that 
will assist in effecting his or her deportation. If special care and 
attention are required, the provisions of Sec. 241.10 shall apply.
    (b) Failure of the carrier to accept for removal an alien who has 
been ordered excluded and deported shall result in the carrier being 
assessed any costs incurred by the Service for detention after the 
carrier's failure to accept the alien for removal including the cost of 
any transportation. The User Fee Account shall not be assessed for 
expenses incurred because of the carrier's violation of the provisions 
of section 237 of the Act and this paragraph. The Service will, at the 
carrier's option, retain custody of the excluded alien for an additional 
7 days beyond the date of the deportation/exclusion order. If, after the 
third day of this additional 7-day period, the carrier has not made all 
the necessary transportation arrangements for the excluded alien to be 
returned to his or her point of embarkation by the end of the additional 
7-day period, the Service will make the arrangements and bill the 
carrier for its costs.

[[Page 553]]



Sec. 241.25  Deportation.

    (a) Definitions of terms. For the purposes of this section, the 
following terms mean:
    (1) Adjacent island--as defined in section 101(b)(5) of the Act.
    (2) Foreign contiguous territory--any country sharing a common 
boundary with the United States.
    (3) Residence in foreign contiguous territory or adjacent island--
any physical presence, regardless of intent, in a foreign contiguous 
territory or an adjacent island if the government of such territory or 
island agrees to accept the alien.
    (4) Aircraft or vessel--any conveyance and other mode of travel by 
which arrival is effected.
    (5) Next available flight--the carrier's next regularly scheduled 
departure to the excluded alien's point of embarkation regardless of 
seat availability. If the carrier's next regularly scheduled departure 
to the excluded aliens point of embarkation is full, the carrier has the 
option of arranging for return transportation on other carriers which 
service the excluded aliens point of embarkation.
    (b) Place to which deported. Any alien (other than an alien 
crewmember or an alien who boarded an aircraft or vessel in foreign 
contiguous territory or an adjacent island) who is ordered excluded 
shall be deported to the country where the alien boarded the vessel or 
aircraft on which the alien arrived in the United States. Otherwise, the 
Secretary may, as a matter of discretion, deport the alien to the 
country of which the alien is a subject, citizen, or national; the 
country where the alien was born; the country where the alien has a 
residence; or any other country.
    (c) Contiguous territory and adjacent islands. Any alien ordered 
excluded who boarded an aircraft or vessel in foreign contiguous 
territory or in any adjacent island shall be deported to such foreign 
contiguous territory or adjacent island if the alien is a native, 
citizen, subject, or national of such foreign contiguous territory or 
adjacent island, or if the alien has a residence in such foreign 
contiguous territory or adjacent island. Otherwise, the alien shall be 
deported, in the first instance, to the country in which is located the 
port at which the alien embarked for such foreign contiguous territory 
or adjacent island.
    (d) Land border pedestrian arrivals. Any alien ordered excluded who 
arrived at a land border on foot shall be deported in the same manner as 
if the alien had boarded a vessel or aircraft in foreign contiguous 
territory.

[62 FR 10378, Mar. 6, 1997, as amended at 70 FR 673, Jan. 5, 2005]



Sec. Sec. 241.26-241.29  [Reserved]



   Subpart C_Deportation of Aliens in the United States (for Hearings 

                    Commenced Prior to April 1, 1997)



Sec. 241.30  Proceedings commenced prior to April 1, 1997.

    Subpart C of 8 CFR part 241 applies to deportation proceedings 
commenced prior to April 1, 1997. All references to the Act contained in 
this subpart are references to the Act in effect prior to April 1, 1997.



Sec. 241.31  Final order of deportation.

    An order of deportation becomes final in accordance with 8 CFR 
1241.31.

[70 FR 673, Jan. 5, 2005]



Sec. 241.32  Warrant of deportation.

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



Sec. 241.33  Expulsion.

    (a) Execution of order. Except in the exercise of discretion by the 
district director, and for such reasons as are set forth in Sec. 
212.5(b) of this chapter, once an order of deportation becomes final, an 
alien shall be taken into custody and the order shall be executed. An 
order of deportation becomes final in accordance with 8 CFR 1241.31.

[[Page 554]]

    (b) Service of decision. In the case of an order entered by any of 
the authorities enumerated above, the order shall be executed no sooner 
than 72 hours after service of the decision, regardless of whether the 
alien is in Service custody, provided that such period may be waived on 
the knowing and voluntary request of the alien. Nothing in this 
paragraph shall be construed, however, to preclude assumption of custody 
by the Service at the time of issuance of the final order.

[62 FR 10378, Mar. 6, 1997, as amended at 65 FR 82256, Dec. 28, 2000; 70 
FR 674, Jan. 5, 2005]

                        PARTS 242-243 [RESERVED]



PART 244_TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED STATES--Table 

of Contents




Sec.
244.1 Definitions.
244.2 Eligibility.
244.3 Applicability of grounds of inadmissibility.
244.4 Ineligible aliens.
244.5 Temporary treatment benefits for eligible aliens.
244.6 Application.
244.7 Filing the application.
244.8 Appearance.
244.9 Evidence.
244.10 Decision by the director or Administrative Appeals Unit (AAU).
244.11 Renewal of application; appeal to the Board of Immigration 
          Appeals.
244.12 Employment authorization.
244.13 Termination of temporary treatment benefits.
244.14 Withdrawal of Temporary Protected Status.
244.15 Travel abroad.
244.16 Confidentiality.
244.17 Annual registration.
244.18 Issuance of charging documents; detention.
244.19 Termination of designation.
244.20 Waiver of fees.

    Authority: 8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2.



Sec. 244.1  Definitions.

    As used in this part:
    Brief, casual, and innocent absence means a departure from the 
United States that satisfies the following criteria:
    (1) Each such absence was of short duration and reasonably 
calculated to accomplish the purpose(s) for the absence;
    (2) The absence was not the result of an order of deportation, an 
order of voluntary departure, or an administrative grant of voluntary 
departure without the institution of deportation proceedings; and
    (3) The purposes for the absence from the United States or actions 
while outside of the United States were not contrary to law.
    Charging document means the written instrument which initiates a 
proceeding before an Immigration Judge. For proceedings initiated prior 
to April 1, 1997, these documents include an Order to Show Cause, a 
Notice to Applicant for Admission Detained for Hearing before 
Immigration Judge, and a Notice of Intention to Rescind and Request for 
Hearing by Alien. For proceedings initiated after April 1, 1997, these 
documents include a Notice to Appear, a Notice of Referral to 
Immigration Judge, and a Notice of Intention to Rescind and Request for 
Hearing by Alien.
    Continuously physically present means actual physical presence in 
the United States for the entire period specified in the regulations. An 
alien shall not be considered to have failed to maintain continuous 
physical presence in the United States by virtue of brief, casual, and 
innocent absences as defined within this section.
    Continuously resided means residing in the United States for the 
entire period specified in the regulations. An alien shall not be 
considered to have failed to maintain continuous residence in the United 
States by reason of a brief, casual and innocent absence as defined 
within this section or due merely to a brief temporary trip abroad 
required by emergency or extenuating circumstances outside the control 
of the alien.
    Felony means a crime committed in the United States, punishable by 
imprisonment for a term of more than one year, regardless of the term 
such alien actually served, if any, except: When the offense is defined 
by the State as a misdemeanor and the sentence actually imposed is one 
year or less regardless of the term such alien actually served. Under 
this exception

[[Page 555]]

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

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991. 
Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 
63595, Nov. 16, 1998; 64 FR 4781, Feb. 1, 1999]



Sec. 244.2  Eligibility.

    Except as provided in Sec. Sec. 244.3 and 244.4, an alien may in 
the discretion of the director be granted Temporary Protected Status if 
the alien establishes that he or she:
    (a) Is a national, as defined in section 101(a)(21) of the Act, of a 
foreign state designated under section 244(b) of the Act;
    (b) Has been continuously physically present in the United States 
since the effective date of the most recent designation of that foreign 
state;
    (c) Has continuously resided in the United States since such date as 
the Attorney General may designate;
    (d) Is admissible as an immigrant except as provided under Sec. 
244.3;
    (e) Is not ineligible under Sec. 244.4; and
    (f)(1) Registers for Temporary Protected Status during the initial 
registration period announced by public notice in the Federal Register, 
or
    (2) During any subsequent extension of such designation if at the 
time of the initial registration period:
    (i) The applicant is a nonimmigrant or has been granted voluntary 
departure status or any relief from removal;
    (ii) The applicant has an application for change of status, 
adjustment of status, asylum, voluntary departure, or any relief from 
removal which is pending or subject to further review or appeal;
    (iii) The applicant is a parolee or has a pending request for 
reparole; or
    (iv) The applicant is a spouse or child of an alien currently 
eligible to be a TPS registrant.
    (3) Eligibility for late initial registration in a currently 
designated foreign state shall also continue until January 15, 1999, for 
any applicant who would have been eligible to apply previously if 
paragraph (f)(2) of this section as revised had been in effect before 
November 16, 1998.
    (g) Has filed an application for late registration with the 
appropriate Service director within a 60-day period immediately 
following the expiration or termination of conditions described in 
paragraph (f)(2) of this section.

[63 FR 63595, Nov. 16, 1998]



Sec. 244.3  Applicability of grounds of inadmissibility.

    (a) Grounds of inadmissibility not to be applied. Paragraphs (4), 
(5) (A) and (B), and (7)(A)(i) of section 212(a) of the Act shall not 
render an alien ineligible for Temporary Protected Status.
    (b) Waiver of grounds of inadmissibility. Except as provided in 
paragraph (c) of this section, the Service may waive any other provision 
of section 212(a) of the Act in the case of individual aliens for 
humanitarian purposes, to assure family unity, or when the granting of 
such a waiver is in the public interest. If an alien is inadmissible on 
grounds which may be waived as set forth in this paragraph, he or she 
shall be advised of the procedures for applying for a waiver of grounds 
of inadmissibility on Form I-601 (Application for waiver of grounds of 
excludability).

[[Page 556]]

    (c) Grounds of inadmissibility that may not be waived. The Service 
may not waive the following provisions of section 212(a) of the Act:
    (1) Paragraphs (2)(A)(i), (2)(B), and (2)(C) (relating to criminals 
and drug offenses);
    (2) Paragraphs (3)(A), (3)(B), (3)(C), and (3)(D) (relating to 
national security); or
    (3) Paragraph (3)(E) (relating to those who assisted in the Nazi 
persecution).

[56 FR 619, Jan. 7, 1991, as amended at 58 FR 58937, Nov. 5, 1993. 
Redesignated at 62 FR 10367, 10382, Mar. 6, 1997]



Sec. 244.4  Ineligible aliens.

    An alien is ineligible for Temporary Protected Status if the alien:
    (a) Has been convicted of any felony or two or more misdemeanors, as 
defined in Sec. 244.1, committed in the United States, or
    (b) Is an alien described in section 243(h)(2) of the Act.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991. 
Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 
63596, Nov. 16, 1998]



Sec. 244.5  Temporary treatment benefits for eligible aliens.

    (a) Prior to the registration period. Prior to the registration 
period established by the Attorney General, a national of a foreign 
state designated by the Attorney General shall be afforded temporary 
treatment benefits upon the filing, after the effective date of such 
designation, of a completed application for Temporary Protected Status 
which establishes the alien's prima facie eligibility for benefits under 
section 244 of the Act. This application may be filed without fee. 
Temporary treatment benefits, if granted, shall terminate unless the 
registration fee is paid or a waiver is sought within the first thirty 
days of the registration period designated by the Attorney General. If 
the registration fee is paid or a waiver is sought within such thirty 
day period, temporary treatment benefits shall continue until terminated 
under Sec. 244.13. The denial of temporary treatment benefits prior to 
the registration period designated by the Attorney General shall be 
without prejudice to the filing of an application for Temporary 
Protected Status during such registration period.
    (b) During the registration period. Upon the filing of an 
application for Temporary Protected Status, the alien shall be afforded 
temporary treatment benefits, if the application establishes the alien's 
prima facie eligibility for Temporary Protected Status. Such temporary 
treatment benefits shall continue until terminated under Sec. 244.13.
    (c) Denied benefits. There shall be no appeal from the denial of 
temporary treatment benefits.

[56 FR 619, May 22, 1991, as amended at 56 FR 23497, May 22, 1991. 
Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 
63596, Nov. 16, 1998]



Sec. 244.6  Application.

    An application for Temporary Protected Status must be made in 
accordance with Sec. 103.2 of this chapter except as provided in this 
section. Each application must be filed with the fee, as provided in 
Sec. 103.7 of this chapter by each individual seeking temporary 
protected status, except that the filing fee for the Form I-765 will be 
charged only for those applicants between the ages of 14 and 65 
(inclusive) who are requesting employment authorization. Each 
application must include a completed Form I-821, Application for 
Temporary Protected Status, Form I-765, Application for Employment 
Authorization, two identification photographs (1\1/2\x1\1/
2\), and supporting evidence as provided in Sec. 244.9. 
Every applicant who is 14 years of age or older must be fingerprinted on 
Form FD-258, Applicant Card, as prescribed in Sec. 103.2(e) of this 
chapter.

[64 FR 4781, Feb. 1, 1999]



Sec. 244.7  Filing the application.

    (a) An application for Temporary Protected Status shall be filed 
with the director having jurisdiction over the applicant's place of 
residence.
    (b) An application for Temporary Protected Status must be filed 
during the registration period established by the Attorney General, 
except in the case of an alien described in Sec. 244.2(f)(2).

[[Page 557]]

    (c) Each applicant must pay a fee, as determined at the time of the 
designation of the foreign state, except as provided in Sec. 244.5(a).
    (d) If the alien has a pending deportation or exclusion proceeding 
before the immigration judge or Board of Immigration Appeals at the time 
a foreign state is designated under section 244(b) of the Act, the alien 
shall be given written notice concerning Temporary Protected Status. 
Such alien shall have the opportunity to submit an application for 
Temporary Protected Status to the director under paragraph (a) of this 
section during the published registration period unless the basis of the 
charging document, if established, would render the alien ineligible for 
Temporary Protected Status under Sec. 244.3(c) or Sec. 244.4. 
Eligibility for Temporary Protected Status in the latter instance shall 
be decided by the Executive Office for Immigration Review during such 
proceedings.

[63 FR 63596, Nov. 16, 1998]



Sec. 244.8  Appearance.

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

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991. 
Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 
63596, Nov. 16, 1998]



Sec. 244.9  Evidence.

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

[[Page 558]]

dates during which the applicant received service;
    (iii) School records (letters, report cards, etc.) from the schools 
that the applicant or his or her children have attended in the United 
States showing name of school and period(s) of school attendance;
    (iv) Hospital or medical records showing medical treatment or 
hospitalization of the applicant or his or her children, showing the 
name of the medical facility or physician as well as the date(s) of the 
treatment or hospitalization;
    (v) Attestations by churches, unions, or other organizations of the 
applicant's residence by letter which:
    (A) Identifies applicant by name;
    (B) Is signed by an official whose title is also shown;
    (C) Shows inclusive dates of membership;
    (D) States the address where applicant resided during the membership 
period;
    (E) Includes the seal of the organization impressed on the letter or 
is on the letterhead of the organization, if the organization has 
letterhead stationery;
    (F) Establishes how the attestor knows the applicant; and
    (G) Establishes the origin of the information being attested to.
    (vi) Additional documents to support the applicant's claim, which 
may include:
    (A) Money order receipts for money sent in or out of the country;
    (B) Passport entries;
    (C) Birth certificates of children born in the United States;
    (D) Bank books with dated transactions;
    (E) Correspondence between the applicant and other persons or 
organizations;
    (F) Social Security card;
    (G) Selective Service card;
    (H) Automobile license receipts, title, vehicle registration, etc;
    (I) Deeds, mortgages, contracts to which applicant has been a party;
    (J) Tax receipts;
    (K) Insurance policies, receipts, or letters; and/or
    (L) Any other relevant document.
    (3) Evidence of eligibility under section 244(c)(2) of the Act. An 
applicant has the burden of showing that he or she is eligible for 
benefits under this part.
    (4) Evidence of valid immigrant or nonimmigrant status. In the case 
of an alien described in Sec. 244.2(f)(2), Form I-551 or Form I-94 must 
be submitted by the applicant.
    (b) Sufficiency of evidence. The sufficiency of all evidence will be 
judged according to its relevancy, consistency, credibility, and 
probative value. To meet his or her burden of proof the applicant must 
provide supporting documentary evidence of eligibility apart from his or 
her own statements.
    (c) Failure to timely respond. Failure to timely respond to a 
request for information, or to appear for a scheduled interview, without 
good cause, will be deemed an abandonment of the application and will 
result in a denial of the application for lack of prosecution. Such 
failure shall be excused if the request for information, or the notice 
of the interview was not mailed to the applicant's most recent address 
provided to the Service.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991; 58 FR 
58937, Nov. 5, 1993. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, 
as amended at 63 FR 63596, Nov. 16. 1998]



Sec. 244.10  Decision by the director or Administrative Appeals Unit (AAU).

    (a) Temporary treatment benefits. The director shall grant temporary 
treatment benefits to the applicant if the applicant establishes prima 
facie eligibility for Temporary Protected Status in accordance with 
Sec. 244.5.
    (b) Temporary Protected Status. Upon review of the evidence 
presented, the director may approve or deny the application for 
Temporary Protected Status in the exercise of discretion, consistent 
with the standards for eligibility in Sec. Sec. 244.2, 244.3, and 
244.4.
    (c) Denial by director. The decision of the director to deny 
Temporary Protected Status, a waiver of grounds of inadmissibility, or 
temporary treatment benefits shall be in writing served in person or by 
mail to the alien's most recent address provided to the Service and 
shall state the reason(s) for the denial. Except as otherwise provided 
in this section, the alien shall be given

[[Page 559]]

written notice of his or her right to appeal a decision denying 
Temporary Protected Status. To exercise such right, the alien shall file 
a notice of appeal, Form I-290B, with the director who issued the 
denial. If an appeal is filed, the administrative record shall be 
forwarded to the AAU for review and decision, pursuant to authority 
delegated in Sec. 103.1(f)(2), except as otherwise provided in this 
section.
    (1) If the basis for the denial of the Temporary Protected Status 
constitutes a ground for deportability or excludability which renders 
the alien ineligible for Temporary Protected Status under Sec. 244.4 or 
inadmissible under Sec. 244.3(c), the decision shall include a charging 
document which sets forth such ground(s).
    (2) If such a charging document is issued, the alien shall not have 
the right to appeal the director's decision denying Temporary Protected 
Status as provided in this subsection. The decision shall also apprise 
the alien of his or her right to a de novo determination of his or her 
eligibility for Temporary Protected Status in deportation or exclusion 
proceedings pursuant to Sec. Sec. 240.11 and 244.18.
    (d) Decision by AAU. The decision of the AAU shall be in writing 
served in person, or by mail to the alien's most recent address provided 
to the Service, and, if the appeal is dismissed, the decision shall 
state the reason(s) for the denial.
    (1) If the appeal is dismissed by the AAU under Sec. 240.18(b), the 
decision shall also apprise the alien of his or her right to a de novo 
determination of eligibility for Temporary Protected Status in 
deportation or exclusion proceedings.
    (2) If the appeal is dismissed by the AAU, the director may issue a 
charging document if no charging document is presently filed with the 
Immigration Court.
    (3) If a charging document has previously been filed or is pending 
before the Immigration Court, either party may move to recalendar the 
case after the decision by the AAU.
    (e) Grant of temporary treatment benefits. (1) Temporary treatment 
benefits shall be evidenced by the issuance of an employment 
authorization document. The alien shall be given, in English and in the 
language of the designated foreign state or a language that the alien 
understands, a notice of the registration requirements for Temporary 
Protected Status and a notice of the following benefits:
    (i) Temporary stay of deportation; and
    (ii) Temporary employment authorization.
    (2) Unless terminated under Sec. 244.13, temporary treatment 
benefits shall remain in effect until a final decision has been made on 
the application for Temporary Protected Status.
    (f) Grant of temporary protected status. (1) The decision to grant 
Temporary Protected Status shall be evidenced by the issuance of an 
alien registration document. For those aliens requesting employment 
authorization, the employment authorization document will act as alien 
registration.
    (2) The alien shall be provided with a notice, in English and in the 
language of the designated foreign state or a language that the alien 
understands, of the following benefits:
    (i) The alien shall not be deported while maintaining Temporary 
Protected Status;
    (ii) Employment authorization;
    (iii) The privilege to travel abroad with the prior consent of the 
director as provided in Sec. 244.15;
    (iv) For the purposes of adjustment of status under section 245 of 
the Act and change of status under section 248 of the Act, the alien is 
considered as being in, and maintaining, lawful status as a nonimmigrant 
while the alien maintains Temporary Protected Status.
    (v) An alien eligible to apply for Temporary Protected Status under 
Sec. 244.2(f)(2), who was prevented from filing a late application for 
registration because the regulations failed to provide him or her with 
this opportunity, will be considered to have been maintaining lawful 
status as a nonimmigrant until the benefit is granted.
    (3) The benefits contained in the notice are the only benefits the 
alien is entitled to under Temporary Protected Status.
    (4) Such notice shall also advise the alien of the following:

[[Page 560]]

    (i) The alien must remain eligible for Temporary Protected Status;
    (ii) The alien must register annually with the district office or 
service center having jurisdiction over the alien's place of residence; 
and
    (iii) The alien's failure to comply with paragraphs (f)(4) (i) or 
(ii) of this section will result in the withdrawal of Temporary 
Protected Status, including work authorization granted under this 
Program, and may result in the alien's deportation from the United 
States.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991; 58 FR 
58937, Nov. 5, 1993; 60 FR 34090, June 30, 1995. Redesignated at 62 FR 
10367, 10382, Mar. 6, 1997, as amended at 63 FR 63596, Nov. 16, 1998; 64 
FR 4782, Feb. 1, 1999]



Sec. 244.11  Renewal of application; appeal to the Board of Immigration 

Appeals.

    If a charging document is served on the alien with a notice of 
denial or withdrawal of Temporary Protected Status, an alien may renew 
the application for Temporary Protected Status in deportation or 
exclusion proceedings. The decision of the immigration judge as to 
eligibility for Temporary Protected Status may be appealed to the Board 
of Immigration Appeals pursuant to Sec. 3.3 of this chapter. The 
provisions of this section do not extend the benefits of Temporary 
Protected Status beyond the termination of a foreign state's designation 
pursuant to Sec. 244.19.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991. 
Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 
63596, Nov. 16, 1998]



Sec. 244.12  Employment authorization.

    (a) Upon approval of an application for Temporary Protected Status, 
the INS shall grant an employment authorization document valid during 
the initial period of the foreign state's designation (and any 
extensions of such period).
    (b) If the alien's Temporary Protected Status is withdrawn under 
Sec. 244.14, employment authorization expires upon notice of withdrawal 
or on the date stated on the employment authorization document, 
whichever occurs later.
    (c) If Temporary Protected Status is denied by the INS, employment 
authorization shall terminate upon notice of denial or at the expiration 
of the employment authorization document, whichever occurs later.
    (d) If the application is renewed or appealed in deportation or 
exclusion proceedings, or appealed to the Administrative Appeals Unit 
pursuant to Sec. 244.18(b), employment authorization will be extended 
during the pendency of the renewal and/or appeal.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991; 60 FR 
21975, May 4, 1995. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as 
amended at 63 FR 63596, Nov. 16, 1998; 64 FR 4782, Feb. 1, 1999]



Sec. 244.13  Termination of temporary treatment benefits.

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

[56 FR 619, Jan. 7, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 
1997, as amended at 63 FR 63596, Nov. 16, 1998]



Sec. 244.14  Withdrawal of Temporary Protected Status.

    (a) Authority of director. The director may withdraw the status of 
an alien granted Temporary Protected Status under section 244 of the Act 
at any time upon the occurrence of any of the following:
    (1) The alien was not in fact eligible at the time such status was 
granted, or at any time thereafter becomes ineligible for such status;
    (2) The alien has not remained continuously physically present in 
the United States from the date the alien was first granted Temporary 
Protected Status under this part. For the purpose of this provision, an 
alien granted Temporary Protected Status under this part shall be deemed 
not to have failed to maintain continuous physical presence in the 
United States if the alien departs the United States after first

[[Page 561]]

obtaining permission from the district director to travel pursuant to 
Sec. 244.15;
    (3) The alien fails without good cause to register with the Attorney 
General annually within thirty (30) days before the end of each 12-month 
period after the granting of Temporary Protected Status.
    (b) Decision by director. (1) Withdrawal of an alien's status under 
paragraph (a) of this section shall be in writing and served by personal 
service pursuant to Sec. 103.5(a) of this chapter. If the ground for 
withdrawal is Sec. 240.14(a)(3), the notice shall provide that the 
alien has thirty (30) days within which to provide evidence of good 
cause for failure to register. If the alien fails to respond within 
thirty (30) days, Temporary Protected Status shall be withdrawn without 
further notice.
    (2) Withdrawal of the alien's Temporary Protected Status under 
paragraph (b)(1) of this section may subject the applicant to exclusion 
or deportation proceedings under sections 235, 236, 237, 238, 240, or 
241 of the Act as appropriate.
    (3) If the basis for the withdrawal of Temporary Protected Status 
constitutes a ground of deportability or excludability which renders an 
alien ineligible for Temporary Protected Status under Sec. 244.4 or 
inadmissible under Sec. 244.3(c), the decision shall include a charging 
document which sets forth such ground(s) with notice of the right of a 
de novo determination of eligibility for Temporary Protected Status in 
deportation or exclusion proceedings. If the basis for withdrawal does 
not constitute such a ground, the alien shall be given written notice of 
his or her right to appeal to the AAU. Upon receipt of an appeal, the 
administrative record will be forwarded to the AAU for review and 
decision pursuant to the authority delegated under Sec. 103.1(f)(2). 
Temporary Protected Status benefits will be extended during the pendency 
of an appeal.
    (c) Decision by AAU. If a decision to withdraw Temporary Protected 
Status is entered by the AAU, the AAU shall notify the alien of the 
decision and the right to a de novo determination of eligibility for 
Temporary Protected Status in deportation or exclusion proceedings, if 
the alien is then deportable or excludable, as provided by Sec. 
244.10(d).

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991. 
Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 
63596, 63597, Nov. 16, 1998]



Sec. 244.15  Travel abroad.

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

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991. 
Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 
63597, Nov. 16, 1998; 64 FR 4782, Feb. 1, 1999]



Sec. 244.16  Confidentiality.

    The information contained in the application and supporting 
documents submitted by an alien shall not be released in any form 
whatsoever to a third party requester without a court order, or the 
written consent of the alien. For the purpose of this provision, a third 
party requester means any requester other than the alien, his or her 
authorized representative, an officer of the Department of Justice, or 
any federal or State law enforcement agency. Any information provided 
under this part may be used for purposes of enforcement of the Act or in 
any criminal proceeding.

[56 FR 619, Jan. 7, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 
1997]



Sec. 244.17  Annual registration.

    (a) Aliens granted Temporary Protected Status must register annually 
with the INS designated office having jurisdiction over their place of 
residence. Such registration will apply to

[[Page 562]]

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

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991; 60 FR 
21975, May 4, 1995. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as 
amended at 63 FR 63597, Nov. 16, 1998]



Sec. 244.18  Issuance of charging documents; detention.

    (a) A charging document may be issued against an alien granted 
Temporary Protected Status on grounds of deportability or excludability 
which would have rendered the alien statutorily ineligible for such 
status pursuant to Sec. Sec. 244.3(c) and 244.4. Aliens shall not be 
deported for a particular offense for which the Service has expressly 
granted a waiver. If the alien is deportable on a waivable ground, and 
no such waiver for the charged offense has been previously granted, then 
the alien may seek such a waiver in deportation or exclusion 
proceedings. The charging document shall constitute notice to the alien 
that his or her status in the United States is subject to withdrawal. A 
final order of deportation or exclusion against an alien granted 
Temporary Protected Status shall constitute a withdrawal of such status.
    (b) The filing of the charging document by the Service with the 
Immigration Court renders inapplicable any other administrative, 
adjudication or review of eligibility for Temporary Protected Status. 
The alien shall have the right to a de novo determination of his or her 
eligibility for Temporary Protected Status in the deportation or 
exclusion proceedings. Review by the Board of Immigration Appeals shall 
be the exclusive administrative appellate review procedure. If an appeal 
is already pending before the Administrative Appeals Unit, the director 
shall notify the Administrative Appeals Unit of the filing of the 
charging document, in which case the pending appeal shall be dismissed 
and the record of proceeding returned to the jurisdiction where the 
charging document was filed.
    (c) Upon denial of Temporary Protected Status by the Administrative 
Appeals Unit, the Administrative Appeals Unit shall immediately forward 
the record of proceeding to the director having jurisdiction over the 
alien's place of residence. The director shall, as soon as practicable, 
file a charging document with the Immigration Court if the alien is then 
deportable or excludable under section 241(a) or section 212(a) of the 
Act, respectively.
    (d) An alien who is determined by the Service to be deportable or 
excludable upon grounds which would have rendered the alien ineligible 
for such status as provided in Sec. Sec. 240.3(c) and 240.4 may be 
detained under the provisions of this chapter pending deportation or 
exclusion proceedings. Such alien may be removed from the United States

[[Page 563]]

upon entry of a final order of deportation or exclusion.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991; 60 FR 
34090, June 30, 1995. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, 
as amended at 63 FR 63597, Nov. 16, 1998; 64 FR 4782, Feb. 1, 1999]



Sec. 244.19  Termination of designation.

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

[56 FR 619, Jan. 7, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 
1997, as amended at 63 FR 63597, Nov. 16, 1998]



Sec. 244.20  Waiver of fees.

    (a) Any of the fees prescribed in 8 CFR 103.7(b) which relate to 
applications to the district director or service center director for 
Temporary Protected Status may be waived if the applicant establishes 
that he or she is unable to pay the prescribed fee. The applicant will 
have established his or her inability to pay when the adjudicating 
officer concludes, on the basis of the requisite affidavit and of any 
other information submitted, that it is more probable than not that:
    (1) The applicant's gross income from all sources for the three-
month period prior to the filing of the fee waiver request, including 
income received or earned by any dependent in the United States, was 
equaled or exceeded by essential expenditures for such three-month 
period; and
    (2) The applicant does not own, possess, or control assets 
sufficient to pay the fee without substantial hardship.
    (b) For purposes of this section, essential expenditures are limited 
to reasonable expenditures for rent, utilities, food, transportation to 
and from employment, and any essential extraordinary expenditures, such 
as essential medical expenses, or expenses for clothing, laundry, and 
child care, to the extent that the applicant can show that those 
expenditures made during the three-month period prior to the filing of 
the fee waiver request were reasonable and essential to his or her 
physical well-being or to earning a livelihood.
    (c) For purposes of this section, the TPS registration fee 
(including the fee for employment authorization, if applicable) shall be 
considered an essential expenditure. A fee waiver will be granted if the 
sum of the fees for TPS registration and employment authorization equals 
or exceeds income and assets that remain after deducting other essential 
expenditures.
    (d) If an adjudicating officer is satisfied that an applicant has 
established inability to pay, he or she shall not deny a fee waiver due 
to the cost of administering the TPS program.
    (e) For purposes of this section, the following documentation shall 
be required:
    (1) The applicant seeking a fee waiver must submit an affidavit, 
under penalty of perjury, setting forth information to establish that he 
or she satisfies the requirements of this section. The affidavit shall 
individually list:
    (i) The applicant's monthly gross income from each source for each 
of the three months prior to the filing of the fee waiver request;
    (ii) All assets owned, possessed, or controlled by the applicant or 
by his or her dependents;
    (iii) The applicant's essential monthly expenditures, itemized for 
each of the three months prior to the filing of the fee waiver request, 
including essential extraordinary expenditures; and
    (iv) The applicant's dependents in the United States, his or her 
relationship to those dependents, the dependents' ages, any income 
earned or received by those dependents, and the street address of each 
dependent's place of residence.
    (2) The applicant may also submit other documentation tending to 
substantiate his or her inability to pay.
    (f) If the adjudicating officer concludes based upon the totality of 
their circumstances that the information presented in the affidavit and 
in any

[[Page 564]]

other additional documentation is inaccurate or insufficient, the 
adjudicating officer may require that the applicant submit the following 
additional documents prior to the adjudication of a fee waiver:
    (1) The applicant's employment records, pay stubs, W-2 forms, 
letter(s) from employer(s), and proof of filing of a local, state, or 
federal income tax return. The same documents may also be required from 
the applicant's dependents in the United States.
    (2) The applicant's rent receipts, bills for essential utilities 
(for example, gas, electricity, telephone, water), food, medical 
expenses, and receipts for other essential expenditures.
    (3) Documentation to show all assets owned, possessed, or controlled 
by the applicant or by dependents of the applicant.
    (4) Evidence of the applicant's living arrangements in the United 
States (living with relative, living in his or her own house or 
apartment, etc.), and evidence of whether his or her spouse, children, 
or other dependents are residing in his or her household in the United 
States.
    (5) Evidence of the applicant's essential extraordinary expenditures 
or those of his or her dependents residing in the United States.
    (g) The adjudicating officer must consider the totality of the 
information submitted in each case before requiring additional 
information or rendering a final decision.
    (h) All documents submitted by the applicant or required by the 
adjudicating officer in support of a fee waiver request are subject to 
verification by the Service.
    (i) In requiring additional information, the adjudicating officer 
should consider that some applicants may have little or no documentation 
to substantiate their claims. An adjudicating officer may accept other 
evidence, such as an affidavit from a member of the community of good 
moral character, but only if the applicant provides an affidavit stating 
that more direct documentary evidence in unavailable.

[57 FR 34507, Aug. 5, 1992. Redesignated at 62 FR 10367, 10382, Mar. 6, 
1997]



PART 245_ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT 

RESIDENCE--Table of Contents




Sec.
245.1 Eligibility.
245.2 Application.
245.3 Adjustment of status under section 13 of the Act of September 11, 
          1957, as amended.
245.4 Documentary requirements.
245.5 Medical examination.
245.6 Interview.
245.7 Adjustment of status of certain Soviet and Indochinese parolees 
          under the Foreign Operations Appropriations Act for Fiscal 
          Year 1990 (Pub. L. 101-167).
245.8 Adjustment of status as a special immigrant under section 
          101(a)(27)(K) of the Act.
245.9 Adjustment of status of certain nationals of the People's Republic 
          of China under Public Law 102-404.
245.10 Adjustment of status upon payment of additional sum under Public 
          Law 103-317.
245.11 Adjustment of aliens in S nonimmigrant classification.
245.12 What are the procedures for certain Polish and Hungarian parolees 
          who are adjusting status to that of permanent resident under 
          the Illegal Immigration Reform and Immigrant Responsibility 
          Act of 1996?
245.13 Adjustment of status of certain nationals of Nicaragua and Cuba 
          under Public Law 105-100.
245.14 [Reserved]
245.15 Adjustment of status of certain Haitian nationals under the 
          Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA).
245.18 How can physicians (with approved Forms I-140) that are serving 
          in medically underserved areas or at a Veterans Affairs 
          facility adjust status?
245.20 Adjustment of status of Syrian asylees under Public Law 106-378.
245.21 Adjustment of status of certain nationals of Vietnam, Cambodia, 
          and Laos (section 586 of Public Law 106-429).
245.22 Evidence to demonstrate an alien's physical presence in the 
          United States on a specific date.
245.23 Adjustment of aliens in T nonimmigrant classification.
245.24 Adjustment of aliens in U nonimmigrant status.

    Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L. 105-
100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 2681; 8 
CFR part 2.

[[Page 565]]



Sec. 245.1  Eligibility.

    (a) General. Any alien who is physically present in the United 
States, except for an alien who is ineligible to apply for adjustment of 
status under paragraph (b) or (c) of this section, may apply for 
adjustment of status to that of a lawful permanent resident of the 
United States if the applicant is eligible to receive an immigrant visa 
and an immigrant visa is immediately available at the time of filing of 
the application. A special immigrant described under section 
101(a)(27)(J) of the Act shall be deemed, for the purpose of applying 
the adjustment to status provisions of section 245(a) of the Act, to 
have been paroled into the United States, regardless of the actual 
method of entry into the United States.
    (b) Restricted aliens. The following categories of aliens are 
ineligible to apply for adjustment of status to that of a lawful 
permanent resident alien under section 245 of the Act, unless the alien 
establishes eligibility under the provisions of section 245(i) of the 
Act and Sec. 245.10, is not included in the categories of aliens 
prohibited from applying for adjustment of status listed in Sec. 
245.1(c), is eligible to receive an immigrant visa, and has an immigrant 
visa immediately available at the time of filing the application for 
adjustment of status:
    (1) Any alien who entered the United States in transit without a 
visa;
    (2) Any alien who, on arrival in the United States, was serving in 
any capacity on board a vessel or aircraft or was destined to join a 
vessel or aircraft in the United States to serve in any capacity 
thereon;
    (3) Any alien who was not admitted or paroled following inspection 
by an immigration officer;
    (4) Any alien who, on or after January 1, 1977, was employed in the 
United States without authorization prior to filing an application for 
adjustment of status. This restriction shall not apply to an alien who 
is:
    (i) An immediate relative as defined in section 201(b) of the Act;
    (ii) A special immigrant as defined in section 101(a)(27)(H) or (J) 
of the Act;
    (iii) Eligible for the benefits of Public Law 101-238 (the 
Immigration Nursing Relief Act of 1989) and files an application for 
adjustment of status on or before October 17, 1991; or
    (iv) Eligible for the benefits of Public Law 101-238 (the 
Immigration Nursing Relief Act of 1989), and has not entered into or 
continued in unauthorized employment on or after November 29, 1990.
    (5) Any alien who on or after November 6, 1986 is not in lawful 
immigration status on the date of filing his or her application for 
adjustment of status, except an applicant who is an immediate relative 
as defined in section 201(b) or a special immigrant as defined in 
section 101(a)(27) (H), (I), or (J).
    (6) Any alien who files an application for adjustment of status on 
or after November 6, 1986, who has failed (other than through no fault 
of his or her own or for technical reasons) to maintain continuously a 
lawful status since entry into the United States, except an applicant 
who is an immediate relative as defined in section 201(b) of the Act or 
a special immigrant as defined in section 101(a)(27) (H), (I), or (J) of 
the Act;
    (7) Any alien admitted as a visitor under the visa waiver provisions 
of Sec. 212.1(e) of this chapter;
    (8) Any alien admitted as a Visa Waiver Pilot Program visitor under 
the provisions of section 217 of the Act and part 217 of this chapter 
other than an immediate relative as defined in section 201(b) of the 
Act;
    (9) Any alien who seeks adjustment of status pursuant to an 
employment-based immigrant visa petition under section 203(b) of the Act 
and who is not maintaining a lawful nonimmigrant status at the time he 
or she files an application for adjustment of status; and
    (10) Any alien who was ever employed in the United States without 
the authorization of the Service or who has otherwise at any time 
violated the terms of his or her admission to the United States as a 
nonimmigrant, except an alien who is an immediate relative as defined in 
section 201(b) of the Act or a special immigrant as defined in section 
101(a)(27)(H), (I), (J), or (K) of the Act. For purposes of this 
paragraph, an alien who meets the requirements of Sec. 274a.12(c)(9) of 
this chapter shall not be deemed to have engaged in unauthorized 
employment during the

[[Page 566]]

pendency of his or her adjustment application.
    (c) Ineligible aliens. The following categories of aliens are 
ineligible to apply for adjustment of status to that of a lawful 
permanent resident alien under section 245 of the Act:
    (1) Any nonpreference alien who is seeking or engaging in gainful 
employment in the United States who is not the beneficiary of a valid 
individual or blanket labor certification issued by the Secretary of 
Labor or who is not exempt from certification requirements under Sec. 
212.8(b) of this chapter;
    (2) Except for an alien who is applying for residence under the 
provisions of section 133 of the Immigration Act of 1990, any alien who 
has or had the status of an exchange visitor under section 101(a)(15)(J) 
of the Act and who is subject to the foreign residence requirement of 
section 212(e) of the Act, unless the alien has complied with the 
foreign residence requirement or has been granted a waiver of that 
requirement, under that section. An alien who has been granted a waiver 
under section 212(e)(iii) of the Act based on a request by a State 
Department of Health (or its equivalent) under Pub. L. 103-416 shall be 
ineligible to apply for adjustment of status under section 245 of the 
Act if the terms and conditions specified in section 214(k) of the Act 
and Sec. 212.7(c)(9) of this chapter have not been met;
    (3) Any alien who has nonimmigrant status under paragraph (15)(A), 
(15)(E), or (15)(G) of section 101(a) of the Act, or has an occupational 
status which would, if the alien were seeking admission to the United 
States, entitle the alien to nonimmigrant status under those paragraphs, 
unless the alien first executes and submits the written waiver required 
by section 247(b) of the Act and part 247 of this chapter;
    (4) Any alien who claims immediate relative status under section 
201(b) or preference status under sections 203(a) or 203(b) of the Act, 
unless the applicant is the beneficiary of a valid unexpired visa 
petition filed in accordance with part 204 of this chapter;
    (5) Any alien who is already an alien lawfully admitted to the 
United States for permanent residence on a conditional basis pursuant to 
section 216 or 216A of the Act, regardless of any other quota or non-
quota immigrant visa classification for which the alien may otherwise be 
eligible;
    (6) Any alien admitted to the United States as a nonimmigrant 
defined in section 101(a)(15)(K) of the Act, unless:
    (i) In the case of a K-1 fiance[eacute](e) under section 
101(a)(15)(K)(i) of the Act or the K-2 child of a fiance[eacute](e) 
under section 101(a)(15)(K)(iii) of the Act, the alien is applying for 
adjustment of status based upon the marriage of the K-1 
fiance[eacute](e) which was contracted within 90 days of entry with the 
United States citizen who filed a petition on behalf of the K-1 
fiance[eacute](e) pursuant to Sec. 214.2(k) of this chapter;
    (ii) In the case of a K-3 spouse under section 101(a)(15)(K)(ii) of 
the Act or the K-4 child of a spouse under section 101(a)(15)(K)(iii) of 
the Act, the alien is applying for adjustment of status based upon the 
marriage of the K-3 spouse to the United States citizen who filed a 
petition on behalf of the K-3 spouse pursuant to Sec. 214.2(k) of this 
chapter;
    (7) A nonimmigrant classified pursuant to section 101(a)(15)(S) of 
the Act, unless the nonimmigrant is applying for adjustment of status 
pursuant to the request of a law enforcement authority, the provisions 
of section 101(a)(15)(S) of the Act, and 8 CFR 245.11;
    (8) Any alien who seeks to adjust status based upon a marriage which 
occurred on or after November 10, 1986, and while the alien was in 
exclusion, deportation, or removal proceedings, or judicial proceedings 
relating thereto.
    (i) Commencement of proceedings. The period during which the alien 
is in deportation, exclusion, or removal proceedings or judicial 
proceedings relating thereto, commences:
    (A) With the issuance of the Form I-221, Order to Show Cause and 
Notice of Hearing prior to June 20, 1991;
    (B) With the filing of a Form I-221, Order to Show Cause and Notice 
of Hearing, issued on or after June 20, 1991, with the Immigration 
Court;
    (C) With the issuance of Form I-122, Notice to Applicant for 
Admission Detained for Hearing Before Immigration Judge, prior to April 
1, 1997,

[[Page 567]]

    (D) With the filing of a Form I-862, Notice to Appear, with the 
Immigration Court, or
    (E) With the issuance and service of Form I-860, Notice and Order of 
Expedited Removal.
    (ii) Termination of proceedings. The period during which the alien 
is in exclusion, deportation, or removal proceedings, or judicial 
proceedings relating thereto, terminates:
    (A) When the alien departs from the United States while an order of 
exclusion, deportation, or removal is outstanding or before the 
expiration of the voluntary departure time granted in connection with an 
alternate order of deportation or removal;
    (B) When the alien is found not to be inadmissible or deportable 
from the United States;
    (C) When the Form I-122, I-221, I-860, or I-862 is canceled;
    (D) When proceedings are terminated by the immigration judge or the 
Board of Immigration Appeals; or
    (E) When a petition for review or an action for habeas corpus is 
granted by a Federal court on judicial review.
    (iii) Exemptions. This prohibition shall no longer apply if:
    (A) The alien is found not to be inadmissible or deportable from the 
United States;
    (B) Form I-122, I-221, I-860, or I-862, is canceled;
    (C) Proceedings are terminated by the immigration judge or the Board 
of Immigration Appeals;
    (D) A petition for review or an action for habeas corpus is granted 
by a Federal court on judicial review;
    (E) The alien has resided outside the United States for 2 or more 
years following the marriage; or
    (F) The alien establishes the marriage is bona fide by providing 
clear and convincing evidence that the marriage was entered into in good 
faith and in accordance with the laws of the place where the marriage 
took place, was not entered into for the purpose of procuring the 
alien's entry as an immigrant, and no fee or other consideration was 
given (other than to an attorney for assistance in preparation of a 
lawful petition) for the filing of a petition.
    (iv) Request for exemption. No application or fee is required to 
request the exemption under section 245(e) of the Act. The request must 
be made in writing and submitted with the Form I-485. Application for 
Permanent Residence. The request must state the basis for requesting 
consideration for the exemption and must be supported by documentary 
evidence establishing eligibility for the exemption.
    (v) Evidence to establish eligibility for the bona fide marriage 
exemption. Section 204(g) of the Act provides that certain visa 
petitions based upon marriages entered into during deportation, 
exclusion or related judicial proceedings may be approved only if the 
petitioner provides clear and convincing evidence that the marriage is 
bona fide. Evidence that a visa petition based upon the same marriage 
was approved under the bona fide marriage exemption to section 204(g) of 
the Act will be considered primary evidence of eligibility for the bona 
fide marriage exemption provided in this part. The applicant will not be 
required to submit additional evidence to qualify for the bona fide 
marriage exemption provided in this part, unless the district director 
determines that such additional evidence is needed. In cases where the 
district director notifies the applicant that additional evidence is 
required, the applicant must submit documentary evidence which clearly 
and convincingly establishes that the marriage was entered into in good 
faith and not entered into for the purpose of procuring the alien's 
entry as an immigrant. Such evidence may include:
    (A) Documentation showing joint ownership of property;
    (B) Lease showing joint tenancy of a common residence;
    (C) Documentation showing commingling of financial resources;
    (D) Birth certificates of children born to the applicant and his or 
her spouse;
    (E) Affidavits of third parties having knowledge of the bona fides 
of the marital relationship, or
    (F) Other documentation establishing that the marriage was not 
entered into in order to evade the immigration laws of the United 
States.

[[Page 568]]

    (vi) Decision. An application for adjustment of status filed during 
the prohibited period shall be denied, unless the applicant establishes 
eligibility for an exemption from the general prohibition.
    (vii) Denials. The denial of an application for adjustment of status 
because the marriage took place during the prohibited period shall be 
without prejudice to the consideration of a new application or a motion 
to reopen a previously denied application, if deportation or exclusion 
proceedings are terminated while the alien is in the United States. The 
denial shall also be without prejudice to the consideration of a new 
application or motion to reopen the adjustment of status application, if 
the applicant presents clear and convincing evidence establishing 
eligibility for the bona fide marriage exemption contained in this part.
    (viii) Appeals. An application for adjustment of status to lawful 
permanent resident which is denied by the district director solely 
because the applicant failed to establish eligibility for the bona fide 
marriage exemption contained in this part may be appealed to the 
Associate Commissioner, Examinations, in accordance with 8 CFR part 103. 
The appeal to the Associate Commissioner, Examinations, shall be the 
single level of appellate review established by statute.
    (d) Definitions--(1) Lawful immigration status. For purposes of 
section 245(c)(2) of the Act, the term ``lawful immigration status'' 
will only describe the immigration status of an individual who is:
    (i) In lawful permanent resident status;
    (ii) An alien admitted to the United States in nonimmigrant status 
as defined in section 101(a)(15) of the Act, whose initial period of 
admission has not expired or whose nonimmigrant status has been extended 
in accordance with part 214 of this chapter;
    (iii) In refugee status under section 207 of the Act, such status 
not having been revoked;
    (iv) In asylee status under section 208 of the Act, such status not 
having been revoked;
    (v) In parole status which has not expired, been revoked or 
terminated; or
    (vi) Eligible for the benefits of Public Law 101-238 (the 
Immigration Nursing Relief Act of 1989) and files an application for 
adjustment of status on or before October 17, 1991.
    (2) No fault of the applicant or for technical reasons. The 
parenthetical phrase other than through no fault of his or her own or 
for technical reasons shall be limited to:
    (i) Inaction of another individual or organization designated by 
regulation to act on behalf of an individual and over whose actions the 
individual has no control, if the inaction is acknowledged by that 
individual or organization (as, for example, where a designated school 
official certified under Sec. 214.2(f) of this chapter or an exchange 
propram sponsor under Sec. 214.2(j) of this chapter did not provide 
required notification to the Service of continuation of status, or did 
not forward a request for continuation of status to the Service); or
    (ii) A technical violation resulting from inaction of the Service 
(as for example, where an applicant establishes that he or she properly 
filed a timely request to maintain status and the Service has not yet 
acted on that request). An individual whose refugee or asylum status has 
expired through passage of time, but whose status has not been revoked, 
will be considered to have gone out of status for a technical reason.
    (iii) A technical violation caused by the physical inability of the 
applicant to request an extension of nonimmigrant stay from the Service 
either in person or by mail (as, for example, an individual who is 
hospitalized with an illness at the time nonimmigrant stay expires). The 
explanation of such a technical violation shall be accompanied by a 
letter explaining the circumstances from the hospital or attending 
physician.
    (iv) A technical violation resulting from the Service's application 
of the maximum five/six year period of stay for certain H-1 nurses only 
if the applicant was subsequently reinstated to H-1 status in accordance 
with the terms of Public Law 101-656 (Immigration Amendments of 1988).

[[Page 569]]

    (3) Effect of departure. The departure and subsequent reentry of an 
individual who was employed without authorization in the United States 
after January 1, 1977 does not erase the bar to adjustment of status in 
section 245(c)(2) of the Act. Similarly, the departure and subsequent 
reentry of an individual who has not maintained a lawful immigration 
status on any previous entry into the United States does not erase the 
bar to adjustment of status in section 245(c)(2) of the Act for any 
application filed on or after November 6, 1986.
    (e) Special categories--(1) Alien medical graduates. Any alien who 
is a medical graduate qualified for special immigrant classification 
under section 101(a)(27)(H) of the Act and is the beneficiary of an 
approved petition as required under section 204(a)(1)(E)(i) of the Act 
is eligible for adjustment of status. An accompanying spouse and 
children also may apply for adjustment of status under this section. 
Temporary absences from the United States for 30 days or less, during 
which the applicant was practicing or studying medicine, do not 
interrupt the continuous presence requirement. Temporary absences 
authorized under the Service's advance parole procedures will not be 
considered interruptive of continuous presence when the alien applies 
for adjustment of status.
    (2) Adjustment of certain nurses who were in H-1 nonimmigrant status 
on September 1, 1989 (Pub. L. 101-238)--(i) Eligibility. An alien is 
eligible to apply for adjustment of status without regard to the 
numerical limitations of sections 201 and 202 of the Act if:
    (A) The applicant was admitted to the United States in, or had been 
granted a change of status to, nonimmigrant status under section 
101(a)(15)(H)(i) of the Act on or before September 1, 1989, to perform 
services as a registered nurse (regardless of the date upon which the 
applicant's authorization to remain in the United States expired or will 
expire), and the applicant had not thereafter been granted a change to 
status to any other nonimmigrant classification prior to September 1, 
1989,
    (B) The applicant has been employed in the United States as a 
registered nurse for an aggregate of three years prior to the date of 
application for adjustment of status,
    (C) The applicant's continued employment as a registered nurse meets 
the standards established for certification described in section 
212(a)(5)(A)(i) of the Act,
    (D) The applicant is the beneficiary of:
    (1) A valid, unexpired visa petition filed prior to October 1, 1991, 
which has been approved to grant the applicant preference status under 
section 202(a) (3) or (6) of the Act (as in effect prior to October 1, 
1991), and is deemed by operation of the automatic conversion provisions 
of section 4 of Public Law 102-110 (the Armed Forces Immigration 
Adjustment Act of 1991), to be effective to grant the applicant 
preference status under section 203(b) (2) or (3) of the Act (as in 
effect on and after October 1, 1991) because of his or here occupation 
as a registered nurse, provided the application for adjustment of status 
is approved no later than October 1, 1993, or
    (2) A valid, unexpired visa petition filed on or after October 1, 
1991, which has been approved to grant the applicant preference, status 
under section 203(b) (1), (2), or (3) of this Act (as in effect on and 
after October 1, 1991) because of his or her occupation as a registered 
nurse, and
    (E) The applicant properly files an application for adjustment of 
status under the provisions of section 245 of the Act.
    (ii) Application period. To benefit from the provisions of Public 
Law 101-238, an alien must properly file an application for adjustments 
of status under section 245 of the Act on or before March 20, 1995.
    (iii) Application. An applicant for the benefits of Public Law 101-
238 must file an application for adjustment of status on Form I-485, 
accompanied by the fee and supporting documents described in Sec. 245.2 
of this part. Beneficiaries of Public Law 101-238 must also submit:
    (A) Evidence that the applicant is the beneficiary of:
    (1) A valid, unexpired visa petition filed prior to October 1, 1991, 
which has been approved to grant the applicant preference status under 
section 203(a)

[[Page 570]]

(3) or (6) of the Act (as in effect prior to October 1, 1991) and is 
deemed by operation of the automatic conversion provisions of section 4 
of Public Law 101-110 to be effective to grant the applicant preference 
status under section 203(b) (2) or (3) of the Act (as in effect on and 
after October 1, 1991) because of his or her occupation as a registered 
nurse, provided the application for adjustment of status is approved no 
later than October 1, 1993, or
    (2) A valid, unexpired visa petition filed on or after October 1, 
1991, which has been approved to grant the applicant preference status 
under section 203(b) (1), (2), or (3) of the Act (as in effect on and 
after October 1, 1991) because of his or her occupation as a registered 
nurse, and
    (B) A request, made on Form ETA 750 submitted in duplicate, for a 
determination by the district director that the alien is qualified for 
and will engage in the occupation of registered nurse, as currently 
listed on Schedule A (20 CFR part 656),
    (C) Evidence showing that the applicant has been employed in the 
United States as a registered nurse for an aggregate of three years 
prior to the date the application for adjustment of status is filed, in 
the form of:
    (1) Letters from employers stating the beginning and ending dates of 
employment as a registered nurse, or
    (2) Other evidence of employment as a registered nurse, such as pay 
receipts supported by affidavits of co-workers, which is accompanied by 
evidence that the nurse has made reasonable efforts to obtain employment 
letter(s), but has been unable to do so because the current or former 
employer refuses to issue the letter or has gone out of business,
    (D) Evidence that the applicant was licensed, either temporarily or 
permanently, as a registered nurse during all periods of qualifying 
employment, and
    (E) Evidence which establishes that the applicant was in the United 
States in H-1 nonimmigrant status for the purpose of performing services 
as a registered nurse on September 1, 1989.
    (iv) Effect of section 245(c)(2). An applicant for the benefits of 
the adjustment of status provisions of Public Law 101-238 must establish 
eligibility for adjustment of status under all provisions of section 245 
unless those provisions have specifically been waived.
    (A) Application for adjustment of status filed on or before October 
17, 1991. An applicant who qualifies for the benefits of Public Law 101-
238, who properly files an application for adjustment of status on or 
before October 17, 1991, may be granted adjustment of status even though 
the alien has engaged or is engaging in unauthorized employment. For 
purposes of adjustment of status, the applicant will be considered to 
have continuously maintained a lawful nonimmigrant status throughout his 
or her stay in the United States as a nonimmigrant and to be in lawful 
nonimmigrant status at the time the application is filed.
    (B) Application for adjustment of status filed after October 17, 
1991. An alien who files an application for adjustment of status after 
October 17, 1991, will not automatically be considered as having 
maintained lawful nonimmigrant status. An alien who files for adjustment 
after this date will be subject to the statutory bar of section 
245(c)(2) of the Act and will be ineligible to apply for adjustment of 
status if he or she has failed to continuously maintain lawful 
nonimmigrant status (other than through no fault of his or her own or 
for technical reasons); if he or she was not in lawful nonimmigrant 
status at the time the application was filed; or if he or she was 
employed without authorization on or after November 29, 1990. 
Unauthorized employment which has been waived as a basis for 
ineligibility for adjustment of status may not be used as the basis of a 
determination that the applicant is ineligible for adjustment of status 
due to failure to continuously maintain lawful nonimmigrant status.
    (C) Motions to reopen. Public Law 101-649 (the Immigration Act of 
1990), which became law on November 29, 1990, retroactively amended 
Public Law 101-238 (the Immigration Nursing Relief Act of 1989). An 
alien whose application for adjustment of status under the provisions of 
Public Law 101-238

[[Page 571]]

was denied by the district director before November 29, 1990, because of 
unauthorized employment, failure to continuously maintain a lawful 
nonimmigrant status, or not being in lawful immigration status at the 
time of filing, may file a motion to reopen the adjustment application. 
The motion to reopen must be made in accordance with the provisions of 8 
CFR 103.5. The district director will reopen the application for 
adjustment of status and enter a new decision based upon the provisions 
of Public Law 101-238, as amended by Public Law 101-649. Any other alien 
whose application for adjustment of status was denied may file a motion 
to reopen or reconsider in accordance with normal statutory and 
regulatory provisions.
    (v) Description of qualifying employment. Qualifying employment as a 
registered nurse may have taken place at any time before the alien files 
the application for adjustment of status. It may have occurred before, 
on, or after the enactment of Public Law 101-238. All qualifying 
employment must have occurred in the United States. The qualifying 
employment as a registered nurse may have occurred while the alien was 
in any immigration status, provided that the alien had been admitted in 
or changed to H-1 status for the purpose of performing services as a 
registered nurse on or before September 1, 1989, and had not thereafter 
changed from H-1 status to any other status before September 1, 1989. 
The employment need not have been continuous, provided the applicant can 
establish that he or she engaged in qualifying employment for a total of 
three or more years. Qualifying employment may include periods when the 
applicant possessed a provisional, temporary, interim, or other permit 
or license authorizing the applicant to perform services as a registered 
nurse; provided the license or permit was issued or recognized by the 
State Board of Nursing of the state in which the employment was 
performed. Qualifying employment may not include periods when the 
applicant performed duties as a registered nurse in violation of any 
state law regulating the employment of registered nurses in that state.
    (vi) Effect of enactment on spouse or child--(A) Spouse or child 
accompanying principal alien. The accompanying spouse or child of an 
applicant for adjustment of status who benefits from Public Law 101-238, 
may also apply for adjustment of status. All benefits and limitations of 
this section, including those resulting from the implementation of the 
adjustment of status provisions of section 162(f) of Public Law 101-649, 
apply equally to the principal applicant and his or her accompanying 
spouse or child.
    (B) Spouse or child residing outside the United States or ineligible 
for adjustment of status. A spouse or child who is ineligible to apply 
for adjustment of status as an accompanying spouse or child is not 
immediately eligible for issuance of an immigrant visa under the 
provisions of Public Law 101-238. However, the spouse or child may be 
eligible for visa issuance under other provisions of the Act.
    (1) Existing relationship. A spouse or child acquired by the 
principal alien prior to the approval of the principal's adjustment of 
status application may be accorded the derivative priority date and 
preference category of the principal alien. The spouse or child may use 
the priority date and category when it becomes current, in accordance 
with existing limitations outlined in sections 201 and 202 of the Act. 
The priority date is not considered immediately available for these 
family members under Public Law 101-238.
    (2) Relationship entered into after adjustment of status is 
approved. An alien who acquires lawful permanent residence under the 
provisions of Public Law 101-238 may file a petition under section 204 
of the Act for an alien spouse, unmarried son or unmarried daughter in 
accordance with existing laws and regulations. The priority date is not 
considered immediately available for these family members under Public 
Law 101-238.
    (3) Special immigrant juveniles. Any alien qualified for special 
immigrant classification under section 101(a)(27)(J) of the Act shall be 
deemed, for the purpose of section 245(a) of the Act, to have been 
paroled into the United States, regardless of the alien's actual method 
of entry into the United

[[Page 572]]

States. Neither the provisions of section 245(c)(2) nor the exclusion 
provisions of sections 212(a)(4), (5)(A), or (7)(A) of the Act shall 
apply to a qualified special immigrant under section 101(a)(27)(J) of 
the Act. The exclusion provisions of sections 212(a)(2)(A), (2)(B), 
(2)(C) (except for so much of such paragraph as related to a single 
offense of simple possession of 30 grams or less of marijuana), (3)(A), 
(3)(B), (3)(C), or (3)(E) of the Act may not be waived. Any other 
exclusion provision may be waived on an individual basis for 
humanitarian purposes, family unity, or when it is otherwise in the 
public interest; however, the relationship between the alien and the 
alien's natural parents or prior adoptive parents shall not be 
considered a factor in a discretionary waiver determination.
    (f) Concurrent applications to overcome grounds of inadmissibility. 
Except as provided in 8 CFR parts 235 and 249, an application under this 
part shall be the sole method of requesting the exercise of discretion 
under sections 212(g), (h), (i), and (k) of the Act, as they relate to 
the inadmissibility of an alien in the United States. No fee is required 
for filing an application to overcome the grounds of inadmissibility of 
the Act if filed concurrently with an application for adjustment of 
status under the provisions of the Act of October 28, 1977, and of this 
part.
    (g) Availability of immigrant visas under section 245 and priority 
dates--(1) Availability of immigrant visas under section 245. An alien 
is ineligible for the benefits of section 245 of the Act unless an 
immigrant visa is immediately available to him or her at the time the 
application is filed. If the applicant is a preference alien, the 
current Department of State Bureau of Consular Affairs Visa Bulletin 
will be consulted to determine whether an immigrant visa is immediately 
available. An immigrant visa is considered available for accepting and 
processing the application Form I-485 is the preference category 
applicant has a priority date on the waiting list which is earlier than 
the date shown in the Bulletin (or the Bulletin shows that numbers for 
visa applicants in his or her category are current). An immigrant visa 
is also considered immediately available if the applicant establishes 
eligibility for the benefits of Public Law 101-238. Information 
concerning the immediate availability of an immigrant visa may be 
obtained at any Service office.
    (2) Priority dates. The priority date of an applicant who is seeking 
the allotment of an immigrant visa number under one of the preference 
classes specified in section 203(a) or 203(b) of the Act by virtue of a 
valid visa petition approved in his or her behalf shall be fixed by the 
date on which such approved petition was filed.
    (h) Conditional basis of status. Whenever an alien spouse (as 
defined in section 216(g)(1) of the Act), an alien son or daughter (as 
defined in section 216(g)(2) of the Act), an alien entrepreneur (as 
defined in section 216A(f)(1) of the Act), or an alien spouse or child 
(as defined in section 216A(f)(2) of the Act) is granted adjustment of 
status to that of lawful permanent residence, the alien shall be 
considered to have obtained such status on a conditional basis subject 
to the provisions of section 216 or 216A of the Act, as appropriate.
    (i) Adjustment of status from K-3/K-4 status. An alien admitted to 
the United States as a K-3 under section 101(a)(15)(K)(ii) of the Act 
may apply for adjustment of status to that of a permanent resident 
pursuant to section 245 of the Act at any time following the approval of 
the Form I-130 petition filed on the alien's behalf, by the same citizen 
who petitioned for the alien's K-3 status. An alien admitted to the 
United States as a K-4 under section 101(a)(15)(K)(iii) of the Act may 
apply for adjustment of status to that of permanent residence pursuant 
to section 245 of the Act at any time following the approval of the Form 
I-130 petition filed on the alien's behalf, by the same citizen who 
petitioned for the alien's parent's K-3 status. Upon approval of the 
application, the director shall record his or her lawful admission for 
permanent residence in accordance with that section and subject to the 
conditions prescribed in section 216 of the Act. An alien admitted to 
the U.S. as a K-3/K-4 alien may not adjust to that of permanent resident 
status in any way other than as a spouse or child of the U.S. citizen 
who originally filed

[[Page 573]]

the petition for that alien's K-3/K-4 status.

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

[30 FR 14778, Nov. 30, 1965]

    Editorial Note: For Federal Register citations affecting Sec. 
245.1, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 245.2  Application.

    (a) General--(1) Jurisdiction. USCIS has jurisdiction to adjudicate 
an application for adjustment of status filed by any alien, unless the 
immigration judge has jurisdiction to adjudicate the application under 8 
CFR 1245.2(a)(1).
    (2) Proper filing of application--(i) Under section 245. (A) An 
immigrant visa must be immediately available in order for an alien to 
properly file an adjustment application under section 245 of the Act See 
Sec. 245.1(g)(1) to determine whether an immigrant visa is immediately 
available.
    (B) If, at the time of filing, approval of a visa petition filed for 
classification under section 201(b)(2)(A)(i), section 203(a) or section 
203(b)(1), (2) or (3) of the Act would make a visa immediately available 
to the alien beneficiary, the alien beneficiary's adjustment application 
will be considered properly filed whether submitted concurrently with or 
subsequent to the visa petition, provided that it meets the filing 
requirements contained in parts 103 and 245. For any other 
classification, the alien beneficiary may file the adjustment 
application only after the Service has approved the visa petition.
    (C) A visa petition and an adjustment application are concurrently 
filed only if:
    (1) The visa petitioner and adjustment applicant each file their 
respective form at the same time, bundled together within a single 
mailer or delivery packet, with the proper filing fees on the same day 
and at the same Service office, or;
    (2) the visa petitioner filed the visa petition, for which a visa 
number has become immediately available, on, before or after July 31, 
2002, and the adjustment applicant files the adjustment application, 
together with the proper filing fee and a copy of the Form I-797, Notice 
of Action, establishing the receipt and acceptance by the Service of the 
underlying Form I-140 visa petition, at the same Service office at which 
the visa petitioner filed the visa petition, or;
    (3) The visa petitioner filed the visa petition, for which a visa 
number has become immediately available, on, before, or after July 31, 
2002, and the adjustment applicant files the adjustment application, 
together with proof of payment of the filing fee with the Service and a 
copy of the Form I-797 Notice of Action establishing the receipt and 
acceptance by the Service of the underlying Form I-140 visa petition, 
with the Immigration Court or the Board of Immigration Appeals when 
jurisdiction lies under paragraph (a)(1) of this section.
    (ii) Under the Act of November 2, 1966. An application for the 
benefits of section 1 of the Act of November 2, 1966 is not properly 
filed unless the applicant was inspected and admitted or paroled into 
the United States subsequent to January 1, 1959. An applicant is 
ineligible for the benefits of the Act of November 2, 1966 unless he or 
she has been physically present in the United States for one year 
(amended from two years by the Refugee Act of 1980).
    (3) Submission of documents--(i) General. A separate application 
shall be filed by each applicant for benefits under section 245, or the 
Act of November 2, 1966. Each application shall be accompanied by an 
executed Form G-325A, if the applicant has reached his or her 14th 
birthday. Form G-325A shall be considered part of the application. An 
application under this part shall be accompanied by the document 
specified in the instructions which are attached to the application.
    (ii) Under section 245. An application for adjustment of status is 
submitted on Form I-485, Application for Permanent Residence. The 
application must be accompanied by the appropriate fee as explained in 
the instructions to the application.
    (iii) Under section 245(i). An alien who seeks adjustment of status 
under the

[[Page 574]]

provisions of section 245(i) of the Act must file Form I-485, with the 
required fee. The alien must also file Supplement A to Form I-485, with 
any required additional sum.
    (iv) Under the Act of November 2, 1966. An application for 
adjustment of status is made on Form I-485A. The application must be 
accompanied by Form I-643, Health and Human Services Statistical Data 
Sheet. The application must include a clearance from the local police 
jurisdiction for any area in the United States when the applicant has 
lived for six months or more since his or her 14th birthday.
    (4) Effect of departure--(i) General. The effect of a departure from 
the United States is dependent upon the law under which the applicant is 
applying for adjustment.
    (ii) Under section 245 of the Act. (A) The departure from the United 
States of an applicant who is under exclusion, deportation, or removal 
proceedings shall be deemed an abandonment of the application 
constituting grounds for termination of the proceeding by reason of the 
departure. Except as provided in paragraph (a)(4)(ii)(B) and (C) of this 
section, the departure of an applicant who is not under exclusion, 
deportation, or removal proceedings shall be deemed an abandonment of 
the application constituting grounds for termination of any pending 
application for adjustment of status, unless the applicant was 
previously granted advance parole by the Service for such absences, and 
was inspected upon returning to the United States. If the adjustment 
application of an individual granted advance parole is subsequently 
denied the individual will be treated as an applicant for admission, and 
subject to the provisions of section 212 and 235 of the Act.
    (B) The travel outside of the United States by an applicant for 
adjustment who is not under exclusion, deportation, or removal 
proceedings shall not be deemed an abandonment of the application if he 
or she was previously granted advance parole by the Service for such 
absences, and was inspected and paroled upon returning to the United 
States. If the adjustment of status application of such individual is 
subsequently denied, he or she will be treated as an applicant for 
admission, and subject to the provisions of section 212 and 235 of the 
Act.
    (C) The travel outside of the United States by an applicant for 
adjustment of status who is not under exclusion, deportation, or removal 
proceeding and who is in lawful H-1 or L-1 status shall not be deemed an 
abandonment of the application if, upon returning to this country, the 
alien remains eligible for H or L status, is coming to resume employment 
with the same employer for whom he or she had previously been authorized 
to work as an H-1 or L-1 nonimmigrant, and, is in possession of a valid 
H or L visa (if required). The travel outside of the United States by an 
applicant for adjustment of status who is not under exclusion, 
deportation, or removal proceeding and who is in lawful H-4 or L-2 
status shall not be deemed an abandonment of the application if the 
spouse or parent of such alien through whom the H-4 or L-2 status was 
obtained is maintaining H-1 or L-1 status and the alien remains 
otherwise eligible for H-4 or L-2 status, and, the alien is in 
possession of a valid H-4 or L-2 visa (if required). The travel outside 
of the United States by an applicant for adjustment of status, who is 
not under exclusion, deportation, or removal proceeding and who is in 
lawful K-3 or K-4 status shall not be deemed an abandonment of the 
application if, upon returning to this country, the alien is in 
possession of a valid K-3 or K-4 visa and remains eligible for K-3 or K-
4 status.
    (D) The travel outside of the United States by an applicant for 
adjustment of status who is not under exclusion, deportation, or removal 
proceeding and who is in lawful V status shall not be deemed an 
abandonment of the application if, upon returning to this country, the 
alien is admissible as a V nonimmigrant.
    (iii) Under the Act of November 2, 1966. If an applicant who was 
admitted or paroled subsequent to January 1, 1959, later departs from 
the United States temporarily with no intention of abandoning his or her 
residence, and is readmitted or paroled upon return, the temporary 
absence shall be disregarded for purposes of the applicant's ``last 
arrival'' into the United States in regard

[[Page 575]]

to cases filed under section 1 of the Act of November 2, 1966.
    (5) Decision--(i) General. The applicant shall be notified of the 
decision of the director and, if the application is denied, the reasons 
for the denial.
    (ii) Under section 245 of the Act. If the application is approved, 
the applicant's permanent residence shall be recorded as of the date of 
the order approving the adjustment of status. An application for 
adjustment of status, as a preference alien, shall not be approved until 
an immigrant visa number has been allocated by the Department of State, 
except when the applicant has established eligibility for the benefits 
of Public Law 101-238. No appeal lies from the denial of an application 
by the director, but the applicant, if not an arriving alien, retains 
the right to renew his or her application in proceedings under 8 CFR 
part 240. Also, an applicant who is a parolee and meets the two 
conditions described in Sec. 245.2(a)(1) may renew a denied application 
in proceedings under 8 CFR part 240 to determine admissibility. At the 
time of renewal of the application, an applicant does not need to meet 
the statutory requirement of section 245(c) of the Act, or Sec. 
245.1(g), if, in fact, those requirements were met at the time the 
renewed application was initially filed with the director. Nothing in 
this section shall entitle an alien to proceedings under section 240 of 
the Act who is not otherwise so entitled.
    (iii) Under the Act of November 2, 1966. If the application is 
approved, the applicant's permanent residence shall be recorded in 
accordance with the provisions of section 1. No appeal lies from the 
denial of an application by the director, but the applicant, if not an 
arriving alien, retains the right to renew his or her application in 
proceedings under 8 CFR part 240. Also, an applicant who is a parolee 
and meets the two conditions described in Sec. 245.2(a)(1) may renew a 
denied application in proceedings under 8 CFR part 240 to determine 
admissibility.
    (b) Application under section 2 of the Act of November 2, 1966. An 
application by a native or citizen of Cuba or by his spouse or child 
residing in the United States with him, who was lawfully admitted to the 
United States for permanent residence prior to November 2, 1966, and who 
desires such admission to be recorded as of an earlier date pursuant to 
section 2 of the Act of November 2, 1966, shall be made on Form I-485A. 
The application shall be accompanied by the Permanent Resident Card, 
Form I-151 or I-551, issued to the applicant in connection with his 
lawful admission for permanent residence, and shall be submitted to the 
director having jurisdiction over the applicant's place of residence in 
the United States. The decision on the application shall be made by the 
director. No appeal shall lie from his decision. If the application is 
approved, the applicant will be furnished with a replacement of his Form 
I-151 or I-551 bearing the new date as of which the lawful admission for 
permanent residence has been recorded.
    (c) Application under section 214(d) of the Act. An application for 
permanent resident status pursuant to section 214(d) of the Act shall be 
filed on Form I-485 with the director having jurisdiction over the 
applicant's place of residence. A separate application shall be filed by 
each applicant. If the application is approved, the director shall 
record the lawful admission of the applicant as of the date of approval. 
The applicant shall be notified of the decision and, if the application 
is denied, of the reasons therefor. No appeal shall lie from the denial 
of an application by the director but such denial shall be without 
prejudice to the alien's right to renew his or her application in 
proceedings under 8 CFR part 240.

[30 FR 14778, Nov. 30, 1965]

    Editorial Note: For Federal Register citations affecting Sec. 
245.2, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



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

1957, as amended.

    Any application for benefits under section 13 of the Act of 
September 11, 1957, as amended, must be filed on Form I-485 with the 
director having jurisdiction over the applicant's place of residence. 
The benefits under section 13 are limited to aliens who were admitted 
into the United States under section 101, paragraphs (a)(15)(A)(i),

[[Page 576]]

(a)(15)(A)(ii), (a)(15)(G)(i), or (a)(15)(G)(ii) of the Immigration and 
Nationality Act who performed diplomatic or semi-diplomatic duties and 
to their immediate families, and who establish that there are compelling 
reasons why the applicant or the member of the applicant's immediate 
family is unable to return to the country represented by the government 
which accredited the applicant and that adjustment of the applicant's 
status to that of an alien lawfully admitted for permanent residence 
would be in the national interest. Aliens whose duties were of a 
custodial, clerical, or menial nature, and members of their immediate 
families, are not eligible for benefits under section 13. In view of the 
annual limitation of 50 on the number of aliens whose status may be 
adjusted under section 13, any alien who is prima facie eligible for 
adjustment of status to that of a lawful permanent resident under 
another provision of law shall be advised to apply for adjustment 
pursuant to such other provision of law. An applicant for the benefits 
of section 13 shall not be subject to the labor certification 
requirement of section 212(a)(14) of the Immigration and Nationality 
Act. The applicant shall be notified of the decision and, if the 
application is denied, of the reasons for the denial and of the right to 
appeal under the provisions of part 103 of this chapter. Any 
applications pending with the Service before December 29, 1981 must be 
resubmitted to comply with the requirements of this section.

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

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



Sec. 245.4  Documentary requirements.

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

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

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



Sec. 245.5  Medical examination.

    Pursuant to section 232(b) of the Act, an applicant for adjustment 
of status shall be required to have a medical examination by a 
designated civil surgeon, whose report setting forth the findings of the 
mental and physical condition of the applicant, including compliance 
with section 212(a)(1)(A)(ii) of the Act, shall be incorporated into the 
record. A medical examination shall not be required of an applicant for 
adjustment of status who entered the United States as a nonimmigrant 
spouse, fiance[eacute], or fiancee[eacute] of a United States citizen or 
the child of such an alien as defined in section 101(a)(15)(K) of the 
Act and Sec. 214.2(k) of this chapter if the applicant was medically 
examined prior to, and as a condition of, the issuance of the 
nonimmigrant visa; provided that the medical examination must have 
occurred not more than 1 year prior the date of application for 
adjustment of status. Any applicant certified under paragraphs 
(1)(A)(ii) or (1)(A)(iii) of section 212(a) of the Act may appeal to a 
Board of Medical Officers of the U.S. Public Health Service as provided 
in section 234 of the Act and part 235 of this chapter.

[56 FR 49841, Oct. 2, 1991, as amended at 62 FR 10384, Mar. 6, 1997; 66 
FR 42595, Aug. 14, 2001]



Sec. 245.6  Interview.

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

[57 FR 49375, Nov. 2, 1992]

[[Page 577]]



Sec. 245.7  Adjustment of status of certain Soviet and Indochinese parolees 

under the Foreign Operations Appropriations Act for Fiscal Year 1990 (Pub. L. 

101-167).

    (a) Application. Each person applying for benefits under section 
599E of Public Law 101-167 (103 Stat. 1195, 1263) must file Form I-485, 
Application to Register Permanent Residence or Adjust Status, with the 
director having jurisdiction over the applicant's place of residence and 
must pay the appropriate filing and fingerprinting fee, as prescribed in 
Sec. 103.7 of this chapter. Each application shall be accompanied by 
Form I-643, Health and Human Services Statistical Data for Refugee/
Asylee Adjusting Status, and the results of a medical examination given 
in accordance with Sec. 245.8. In addition, if the applicant has 
reached his or her 14th birthday but is not over 79 years of age, the 
application shall be accompanied by a completed Form G-325A, Biographic 
Information, and the applicant shall be fingerprinted on Form FD-258, 
Applicant Card, as prescribed in Sec. 103.2(e) of this chapter.
    (b) Aliens eligible to apply for adjustment. The benefits of this 
section shall only apply to an alien who:
    (1) Was a national of the Soviet Union, Vietnam, Laos, or Cambodia, 
and
    (2) Was inspected and granted parole into the United States during 
the period beginning on August 15, 1988, and ending on September 30, 
1990, after being denied refugee status.
    (c) Eligibility. Benefits under Section 599E of Public Law 101-167 
are limited to any alien described in paragraph (b) of this section who:
    (1) Applies for such adjustment,
    (2) Has been physically present in the United States for at least 
one year and is physically present in the United States on the date the 
application for such adjustment is filed,
    (3) Is admissible to the United States as an immigrant, except as 
provided in paragraph (d) of this section, and
    (4) Pays a fee for the processing of such application.
    (d) Waiver of certain grounds for inadmissibility. The provisions of 
paragraphs (14), (15), (20), (21), (25), (28) (other than subparagraph 
(F), and (32) of section 212(a) of the Act shall not apply to adjustment 
under this section. The Attorney General may waive any other provision 
of section 212(a) (other than paragraph (23)(B), (27), (29), or (33)) 
with respect to such an adjustment for humanitarian purposes, to assure 
family unity, or when it is otherwise in the public interest.
    (e) Date of approval. Upon approval of such an application for 
adjustment of status, the Attorney General shall create a record of the 
alien's admission as a lawful permanent resident as of the date of the 
alien's inspection and parole described in paragraph (b)(2) of this 
section.
    (f) No offset in number of visas available. When an alien is granted 
the status of having been lawfully admitted for permanent residence 
under this section, the Secretary of State shall not be required to 
reduce the number of immigrant visas authorized to be issued under the 
Immigration and Nationality Act.

[55 FR 24860, July 19, 1990. Redesingated at 56 FR 49841, Oct. 2, 1991, 
as amended at 59 FR 33905, July 1, 1994; 63 FR 12987, Mar. 17, 1998]



Sec. 245.8  Adjustment of status as a special immigrant under section 

101(a)(27)(K) of the Act.

    (a) Application. Each person applying for adjustment of status as a 
special immigrant under section 101(a)(27)(K) of the Act must file a 
Form I-485, Application to Register Permanent Residence or Adjust 
Status, with the director having jurisdiction over the applicant's place 
of residence. Benefits under this section are limited to aliens who have 
served honorably (or are enlisted to serve) in the Armed Forces of the 
United States for at least 12 years, and their spouses and children. For 
purposes of this section, special immigrants described in section 
101(a)(27)(K) of the Act and his or her spouse and children shall be 
deemed to have been paroled into the United States pursuant to section 
245(g) of the Act. Each applicant must file a separate application with 
the appropriate fee.
    (b) Eligibility. The benefits of this section shall apply only to an 
alien described in section 101(a)(27)(K) of the Act who applies for such 
adjustment. The accompanying spouse or child of

[[Page 578]]

an applicant for adjustment of status who benefits from Public Law 102-
110 may also apply for adjustment of status. The provisions of section 
245(c) of the Act do not apply to the principal Armed Forces special 
immigrant or to his or her spouse or child.
    (c) Interview of the applicant. Upon completion of the adjustment of 
status interview for a special immigrant under section 101(a)(27)(K) of 
the Act, the director shall make a prima facie determination regarding 
eligibility for naturalization benefits if the applicant is to be 
granted status as an alien lawfully admitted for permanent residence. If 
the director determines that the applicant is immediately eligible for 
naturalization under section 328 or 329 of the Act, the director shall 
advise the applicant that he or she is eligible to apply for 
naturalization on Form N-400, Application to File Petition for 
Naturalization. If the applicant wishes to apply for naturalization, the 
director shall instruct the applicant concerning the requirements for 
naturalization and provide him or her with the necessary forms.
    (d) Spouse or child outside the United States. When a spouse or 
child of an alien granted special immigrant status under section 
101(a)(27)(K) of the Act is outside the United States, the principal 
alien may file Form I-824, Application for Action on an Approved 
Application or Petition, with the office which approved the original 
application.
    (e) Removal provisions of section 237 of the Act. If the Service is 
made aware by notification from the appropriate executive department or 
by any other means that a section 101(a)(27)(K) special immigrant who 
has already been granted permanent residence fails to complete his or 
her total active duty service obligation for reasons other than an 
honorable discharge, the alien may become subject to the removal 
provisions of section 237 of the Act, provided the alien is in one or 
more of the classes of deportable aliens specified in section 237 of the 
Act. The Service shall obtain a current Form DD-214, Certificate of 
Release or Discharge from Active Duty, from the appropriate executive 
department for verification of the alien's failure to maintain 
eligibility.
    (f) Rescission proceedings under section 246 of the Act. If the 
Service determines that a military special immigrant under section 
101(a)(27)(K) of the Act was not in fact eligible for adjustment of 
status, the Service may pursue rescission proceedings under section 246 
of the Act.

[57 FR 33862, July 31, 1992, as amended at 58 FR 50836, Sept. 29, 1993; 
62 FR 10384, Mar. 6, 1997]



Sec. 245.9  Adjustment of status of certain nationals of the People's Republic 

of China under Public Law 102-404.

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

[[Page 579]]

    (7) Properly files an application for adjustment of status under 
section 245 of the Act.
    (c) Qualified family member who is not a national of the People's 
Republic of China. A qualified family member within the meaning of this 
section includes the spouse, child, son, or daughter of a national of 
the People's Republic of China who is eligible for benefits under the 
provisions of paragraph (b) of this section, provided that:
    (1) He or she qualified as the spouse or child (as defined in 
section 101(b)(1) of the Act) of an eligible national of the People's 
Republic of China as of April 11, 1990; and
    (2) The qualifying relationship continues to exist, or the family 
member is a son or daughter of an eligible national of the People's 
Republic of China and the family member was unmarried and under the age 
of 21 on April 11, 1990.
    (d) Waivers of inadmissibility under section 212(a) of the Act. An 
applicant for the benefits of the adjustment of status provisions of 
Pub. L. 102-404 is automatically exempted from compliance with the 
requirements of sections 212(a)(5) and 212(a)(7)(A) of the Act. A Pub. 
L. 102-404 applicant may also apply for one or more waivers of 
inadmissibility under section 212(a) of the Act, except for 
inadmissibility under section 212(a)(2)(C), 212(a)(3)(A), 212(a)(3)(B), 
212(a)(3)(C) or 212(a)(3)(E) of the Act.
    (e) Waiver of the two-year foreign residence requirement of section 
212(e). An applicant for the benefits of the adjustment of status 
provisions of Public Law 102-404 is automatically exempted from 
compliance with the two-year foreign residence requirement of section 
212(e) of the Act.
    (f) Waiver of section 245(c) of the Act. Public Law 102-404 provides 
that the provisions of section 245(c) of the Act shall not apply to 
persons applying for the adjustment of status benefits of Public Law 
102-404.
    (g) Application. Each applicant must file an application for 
adjustment of status on Form I-485, Application to Register Permanent 
Residence or Adjust Status, accompanied by the prescribed fee, and the 
supporting documents specified on the instructions to Form I-485 and 
described in Sec. 245.2. Secondary evidence may be submitted if the 
applicant is unable to obtain the required primary evidence. Applicants 
who are nationals of the People's Republic of China should complete Part 
2 of Form I-485 by checking box ``h--other'' and writing ``CSPA--
Principal'' next to that block. Applicants who are not nationals of the 
People's Republic of China should complete Part 2 of Form I-485 by 
checking box ``h--other'' and writing ``CSPA--Qualified Family Member'' 
next to that block. Each applicant for the benefits of Public Law 102-
404 must also submit evidence of eligibility for the adjustment of 
status benefits of Public Law 102-404:
    (1) A photocopy of all pages of the applicant's most recent passport 
or an explanation of why the applicant does not have a passport;
    (2) An attachment on a plain piece of paper showing:
    (i) The date of the applicant's last arrival in the United States 
before or on April 11, 1990;
    (ii) The date of each departure the applicant made from the United 
States since that arrival (if the applicant did not depart the United 
States after the initial date of arrival, the applicant should write ``I 
was in the United States on April 11, 1990, and I have not departed the 
United States since April 11, 1990'');
    (iii) The reason for each departure; and
    (iv) The date of each return to the United States.
    (3) An attachment on a plain piece of paper showing:
    (i) The date the applicant arrived in the People's Republic of 
China; and
    (ii) The date the applicant left the People's Republic of China for 
each trip the applicant made to the People's Republic of China between 
April 11, 1990, and October 9, 1992 (if the applicant did not travel to 
the People's Republic of China, the applicant should write ``I was not 
in the People's Republic of China between April 11, 1990, and October 9, 
1992'');
    (4) A copy of evidence showing that the applicant was found eligible 
for benefits under E.O. 12711, such as deferred enforced departure 
(DED), employment authorization, and/or waiver

[[Page 580]]

of the two-year foreign residence requirement, if the applicant 
previously applied for benefits under E.O. 12711; and
    (5) Primary or secondary evidence of a qualifying family 
relationship to an eligible national of the People's Republic of China, 
such as a birth or marriage certificate, if the applicant is a qualified 
family member who is not a national of the People's Republic of China.
    (h) Secondary evidence. If any required primary evidence is 
unavailable, church or school records, or other secondary evidence 
pertinent to the facts in issue, may be submitted. If such documents are 
unavailable, affidavits may be submitted. The applicant may submit as 
many types of secondary evidence as necessary to establish the birth, 
marriage, or other event. Documentary evidence establishing that primary 
evidence is unavailable need not accompany secondary evidence of birth 
or marriage in the People's Republic of China.
    (i) Filing. The application period begins on July 1, 1993. To 
benefit from the provisions of Public Law 102-404 (the Chinese Student 
Protection Act of 1992), an alien must properly file an application for 
adjustment of status under section 245 of the Act on or before June 30, 
1994. All applications for the benefits of Public Law 102-404 must be 
submitted by mail to the Service Center having jurisdiction over the 
applicant's place of residence in the United States. Pursuant to the 
deactivation clause of Public Law 102-404, if the President of the 
United States determines and certifies to Congress before July 1, 1993, 
that conditions in the People's Republic of China permit persons covered 
by Public Law 102-404 to safely return to the People's Republic of 
China, no applications for lawful permanent resident status under Public 
Law 102-404 will be processed or granted.
    (j) Immigrant classification and assignment of priority date. Public 
Law 102-404 provides eligible applicants with automatic classifications 
as immigrants under section 203(b)(3)(A)(i) of the Act. No immigrant 
visa petition is required and applicants need not meet the usual 
requirements for classification as skilled workers. The applicant's 
priority date shall be the date his or her application for adjustment of 
status under Public Law 102-404 is properly filed with the Service.
    (k) Effect of immigrant visa number limitations. Eligible Public Law 
102-404 applicants are exempt from the per-country immigrant visa number 
limitations of section 202(a)(2) of the Act. Eligible Public Law 102-404 
applicants may file an application for adjustment of status under Public 
Law 102-404 without regard to immigrant visa number limitations of 
sections 202(a)(2) and 203(b)(3)(A)(i) of the Act. However, the 
adjustment of status application may not be approved and adjustment of 
status to that of a lawful permanent resident of the United States may 
not be granted until a visa number becomes available for the applicant 
under the worldwide allocation of immigrant visa numbers for employment-
based aliens under section 203(b)(3)(A)(i) of the Act. The applicant may 
request initial or continued employment authorization during this period 
by filing Form I-765, Application for Employment Authorization. If the 
applicant needs to travel outside the United States during this period, 
he or she may file a request for advance parole on Form I-131, 
Application for Travel Document.
    (l) Decision. In the case of an application for adjustment of status 
filed pursuant to the provisions of Public Law 102-404, the authority 
conferred upon district directors in 8 CFR part 245 to accept and 
adjudicate an application for adjustment of status under section 245 of 
the Act is delegated exclusively to the service center director having 
jurisdiction over the applicant's place of residence in the United 
States. If the service center director transfers the application to the 
district director, authority to adjudicate an application for adjustment 
of status filed pursuant to the provisions of Public Law 102-404 lies 
with the district director having jurisdiction over the applicant's 
place of residence.
    (m) Effect of enactment on family members other than qualified 
family members. The adjustment of status benefits and waivers provided 
by Public Law 102-404 do not apply to a spouse or child who is

[[Page 581]]

not a qualified family member as defined in paragraph (c) of this 
section. However, a spouse or child whose relationship to the principal 
alien was established prior to the approval of the principal's 
adjustment-of-status application may be accorded the derivative priority 
date and preference category of the principal alien, in accordance with 
the provisions of section 203(d) of the Act. The spouse or child may use 
the priority date and category when it becomes current, in accordance 
with the limitations set forth in sections 201 and 202 of the Act.

[58 FR 35838, July 1, 1993, as amended at 62 FR 10384, Mar. 6, 1997; 62 
FR 63254, Nov. 28, 1997]



Sec. 245.10  Adjustment of status upon payment of additional sum under section 

245(i).

    (a) Definitions. As used in this section the term:
    (1)(i) Grandfathered alien means an alien who is the beneficiary 
(including a spouse or child of the alien beneficiary if eligible to 
receive a visa under section 203(d) of the Act) of:
    (A) A petition for classification under section 204 of the Act which 
was properly filed with the Attorney General on or before April 30, 
2001, and which was approvable when filed; or
    (B) An application for labor certification under section 
212(a)(5)(A) of the Act that was properly filed pursuant to the 
regulations of the Secretary of Labor on or before April 30, 2001, and 
which was approvable when filed.
    (ii) If the qualifying visa petition or application for labor 
certification was filed after January 14, 1998, the alien must have been 
physically present in the United States on December 21, 2000. This 
requirement does not apply with respect to a spouse or child 
accompanying or following to join a principal alien who is a 
grandfathered alien as described in this section.
    (2) Properly filed means:
    (i) With respect to a qualifying immigrant visa petition, that the 
application was physically received by the Service on or before April 
30, 2001, or if mailed, was postmarked on or before April 30, 2001, and 
accepted for filing as provided in Sec. 103.2(a)(1) and (a)(2) of this 
chapter; and
    (ii) With respect to a qualifying application for labor 
certification, that the application was properly filed and accepted 
pursuant to the regulations of the Secretary of Labor, 20 CFR 656.21.
    (3) Approvable when filed means that, as of the date of the filing 
of the qualifying immigrant visa petition under section 204 of the Act 
or qualifying application for labor certification, the qualifying 
petition or application was properly filed, meritorious in fact, and 
non-frivolous (``frivolous'' being defined herein as patently without 
substance). This determination will be made based on the circumstances 
that existed at the time the qualifying petition or application was 
filed. A visa petition that was properly filed on or before April 30, 
2001, and was approvable when filed, but was later withdrawn, denied, or 
revoked due to circumstances that have arisen after the time of filing, 
will preserve the alien beneficiary's grandfathered status if the alien 
is otherwise eligible to file an application for adjustment of status 
under section 245(i) of the Act.
    (4) Circumstances that have arisen after the time of filing means 
circumstances similar to those outlined in Sec. 205.1(a)(3)(i) or 
(a)(3)(ii) of this chapter.
    (b) Eligibility.An alien who is included in the categories of 
restricted aliens under Sec. 245.1(b) and meets the definition of a 
``grandfathered alien'' may apply for adjustment of status under section 
245 of the Act if the alien meets the requirements of paragraphs (b)(1) 
through (b)(7) of this section:
    (1) Is physically present in the United States;
    (2) Is eligible for immigrant classification and has an immigrant 
visa number immediately available at the time of filing for adjustment 
of status;
    (3) Is not inadmissible from the United States under any provision 
of section 212 of the Act, or all grounds for inadmissibility have been 
waived;
    (4) Properly files Form I-485, Application to Register Permanent 
Residence or Adjust Status on or after October 1, 1994, with the 
required fee for that application;
    (5) Properly files Supplement A to Form I-485 on or after October 1, 
1994;

[[Page 582]]

    (6) Pays an additional sum of $1,000, unless payment of the 
additional sum is not required under section 245(i) of the Act; and
    (7) Will adjust status under section 245 of the Act to that of 
lawful permanent resident of the United States on or after October 1, 
1994.
    (c) Payment of additional sum. An adjustment applicant filing under 
the provisions of section 245(i) of the Act must pay the standard 
adjustment application filing fee as specified in Sec. 103.7(b)(1) of 
this chapter. Each application submitted under the provisions of section 
245(i) of the Act must be submitted with an additional sum of $1,000. An 
applicant must submit the additional sum of $1,000 only once per 
application for adjustment of status submitted under the provisions of 
section 245(i) of the Act. However, an applicant filing under the 
provisions of section 245(i) of the Act is not required to pay the 
additional sum if, at the time the application for adjustment of status 
is filed, the alien is:
    (1) Unmarried and less than 17 years of age;
    (2) The spouse of a legalized alien, qualifies for and has properly 
filed Form I-817, Application for Voluntary Departure under the Family 
Unity Program, and submits a copy of his or her receipt or approval 
notice for filing Form I-817; or
    (3) The child of a legalized alien, is unmarried and less than 21 
years of age, qualifies for and has filed Form I-817, and submits a copy 
of his or her receipt or approval notice for filing Form I-817. Such an 
alien must pay the additional sum if he or she has reached the age of 21 
years at the time of filing for adjustment of status. Such an alien must 
meet all other conditions for adjustment of status contained in the Act 
and in this chapter.
    (d) Pending adjustment application with the Service or Executive 
Office for Immigration Review filed without Supplement A to Form I-485 
and additional sum. An alien who filed an adjustment of status 
application with the Service in accordance with Sec. 103.2 of this 
chapter will be allowed the opportunity to amend such an application to 
request consideration under the provisions of section 245(i) of the Act, 
if it appears that the alien is not otherwise ineligible for adjustment 
of status. The Service shall notify the applicant in writing of the 
Service's intent to deny the adjustment of status application, and any 
other requests for benefits that derive from the adjustment application, 
unless Supplement A to Form I-485 and any required additional sum is 
filed within 30 days of the date of the notice. If the application for 
adjustment of status is pending before the Executive Office for 
Immigration Review (EOIR), EOIR will allow the respondent an opportunity 
to amend an adjustment of status application filed in accordance with 
Sec. 103.2 of this chapter (to include Supplement A to Form I-485 and 
proof of remittance to the INS of the required additional sum) in order 
to request consideration under the provisions of section 245(i) of the 
Act.
    (e) Applications for Adjustment of Status filed before October 1, 
1994. The provisions of section 245(i) of the Act shall not apply to an 
application for adjustment of status that was filed before October 1, 
1994. The provisions of section 245(i) of the Act also shall not apply 
to a motion to reopen or reconsider an application for adjustment of 
status if the application for adjustment of status was filed before 
October 1, 1994. An applicant whose pre-October 1, 1994, application for 
adjustment of status has been denied may file a new application for 
adjustment of status pursuant to section 245(i) of the Act on or after 
October 1, 1994, provided that such new application is accompanied by: 
the required fee; Supplement A to Form I-485; the additional sum 
required by section 245(i) of the Act; and all other required initial 
and additional evidence.
    (f) Effect of section 245(i) on completed adjustment applications 
before the Service. (1) Any motion to reopen or reconsider before the 
Service alleging availability of section 245(i) of the Act must be filed 
in accordance with Sec. 103.5 of this chapter. If said motion to reopen 
with the Service is granted, the alien must remit to the Service 
Supplement A to Form I-485 and the additional sum required by section 
245(i) of the Act. If the alien had previously remitted Supplement A to 
Form I-485 and the additional sum with the application which

[[Page 583]]

is the subject of the motion to reopen, then no additional sum need be 
remitted upon such reopening.
    (2) An alien whose adjustment application was adjudicated and denied 
by the Service because of ineligibility under section 245(a) or (c) of 
the Act and now alleges eligibility due to the availability of section 
245(i) of the Act may file a new application for adjustment of status 
pursuant to section 245(i) of the Act, provided that such new 
application is accompanied by the required fee for the application, 
Supplement A to Form I-485, additional sum required by section 245(i) of 
the Act and all other required and additional evidence.
    (g) Aliens deportable under section 237(a)(4)(B) of the Act are 
ineligible to adjust status. Section 237(a)(4)(B) of the Act renders any 
alien who has engaged, is engaged, or at any time after admission 
engages in any terrorist activity, as defined in section 
212(a)(3)(B)(iii) of the Act, deportable. Under section 245(c)(6) of the 
Act, persons who are deportable under section 237(a)(4)(B) of the Act 
are ineligible to adjust status under section 245(a) of the Act. Any 
person who is deportable under section 237(a)(4)(B) of the Act is also 
ineligible to adjust status under section 245(i) of the Act.
    (h) Asylum or diversity immigrant visa applications. An asylum 
application, diversity visa lottery application, or diversity visa 
lottery-winning letter does not serve to grandfather the alien for 
purposes of section 245(i) of the Act. However, an otherwise 
grandfathered alien may use winning a diversity visa as a basis for 
adjustment.
    (i) Denial, withdrawal, or revocation of the approval of a visa 
petition or application for labor certification. The denial, withdrawal, 
or revocation of the approval of a qualifying immigrant visa petition, 
or application for labor certification, that was properly filed on or 
before April 30, 2001, and that was approvable when filed, will not 
preclude its grandfathered alien (including the grandfathered alien's 
family members) from seeking adjustment of status under section 245(i) 
of the Act on the basis of another approved visa petition, a diversity 
visa, or any other ground for adjustment of status under the Act, as 
appropriate.
    (j) Substitution of a beneficiary on an application for a labor 
certification. Only the alien who was the beneficiary of the application 
for the labor certification on or before April 30, 2001, will be 
considered to have been grandfathered for purposes of filing an 
application for adjustment of status under section 245(i) of the Act. An 
alien who was previously the beneficiary of the application for the 
labor certification but was subsequently replaced by another alien on or 
before April 30, 2001, will not be considered to be a grandfathered 
alien. An alien who was substituted for the previous beneficiary of the 
application for the labor certification after April 30, 2001, will not 
be considered to be a grandfathered alien.
    (k) Changes in employment. An applicant for adjustment under section 
245(i) of the Act who is adjusting status through an employment-based 
category is not required to work for the petitioner who filed the 
petition that grandfathered the alien, unless he or she is seeking 
adjustment based on employment for that same petitioner.
    (l) Effects of grandfathering on an alien's nonimmigrant status . An 
alien's nonimmigrant status is not affected by the fact that he or she 
is a grandfathered alien. Lawful immigration status for a nonimmigrant 
is defined in Sec. 245.1(d)(1)(ii).
    (m) Effect of grandfathering on unlawful presence under section 
212(a)(9)(B) and (c) of the Act. If the alien is not in a period of stay 
authorized by the Attorney General, the fact that he or she is a 
grandfathered alien does not prevent the alien from accruing unlawful 
presence under section 212(a)(9)(B) and (C) of the Act.
    (n) Evidentiary requirement to demonstrate physical presence on 
December 21, 2000. (1) Unless the qualifying immigrant visa petition or 
application for labor certification was filed on or before January 14, 
1998, a principal grandfathered alien must establish that he or she was 
physically present in the United States on December 21, 2000, to be 
eligible to apply to adjust status under section 245(i) of the Act. If 
no one document establishes the alien's physical presence on December 
21, 2000,

[[Page 584]]

he or she may submit several documents establishing his or her physical 
presence in the United States prior to, and after December 21, 2000.
    (2) To demonstrate physical presence on December 21, 2000, the alien 
may submit Service documentation. Examples of acceptable Service 
documentation include, but are not limited to:
    (i) A photocopy of the Form I-94, Arrival-Departure Record, issued 
upon the alien's arrival in the United States;
    (ii) A photocopy of the Form I-862, Notice to Appear;
    (iii) A photocopy of the Form I-122, Notice to Applicant for 
Admission Detained for Hearing before Immigration Judge, issued by the 
Service on or prior to December 21, 2000, placing the applicant in 
exclusion proceedings under section 236 of the Act (as in effect prior 
to April 1, 1997);
    (iv) A photocopy of the Form I-221, Order to Show Cause, issued by 
the Service on or prior to December 21, 2000, placing the applicant in 
deportation proceedings under section 242 or 242A of the Act (as in 
effect prior to April 1, 1997);
    (v) A photocopy of any application or petition for a benefit under 
the Act filed by or on behalf of the applicant on or prior to December 
21, 2000, which establishes his or her presence in the United States, or 
a fee receipt issued by the Service for such application or petition.
    (3) To demonstrate physical presence on December 21, 2000, the alien 
may submit other government documentation. Other government 
documentation issued by a Federal, state, or local authority must bear 
the signature, seal, or other authenticating instrument of such 
authority (if the document normally bears such instrument), be dated at 
the time of issuance, and bear a date of issuance not later than 
December 21, 2000. For this purpose, the term Federal, state, or local 
authority includes any governmental, educational, or administrative 
function operated by Federal, state, county, or municipal officials. 
Examples of such other documentation include, but are not limited to:
    (i) A state driver's license;
    (ii) A state identification card;
    (iii) A county or municipal hospital record;
    (iv) A public college or public school transcript;
    (v) Income tax records;
    (vi) A certified copy of a Federal, state, or local governmental 
record which was created on or prior to December 21, 2000, shows that 
the applicant was present in the United States at the time, and 
establishes that the applicant sought on his or her own behalf, or some 
other party sought on the applicant's behalf, a benefit from the 
Federal, state, or local governmental agency keeping such record;
    (vii) A certified copy of a Federal, state, or local governmental 
record which was created on or prior to December 21, 2000, that shows 
that the applicant was present in the United States at the time, and 
establishes that the applicant submitted an income tax return, property 
tax payment, or similar submission or payment to the Federal, state, or 
local governmental agency keeping such record;
    (viii) A transcript from a private or religious school that is 
registered with, or approved or licensed by, appropriate State or local 
authorities, accredited by the State or regional accrediting body, or by 
the appropriate private school association, or maintains enrollment 
records in accordance with State or local requirements or standards.
    (4) To demonstrate physical presence on December 21, 2000, the alien 
may submit non-government documentation. Examples of documentation 
establishing physical presence on December 21, 2000, may include, but 
are not limited to:
    (i) School records;
    (ii) Rental receipts;
    (iii) Utility bill receipts;
    (iv) Any other dated receipts;
    (v) Personal checks written by the applicant bearing a bank 
cancellation stamp;
    (vi) Employment records, including pay stubs;
    (vii) Credit card statements showing the dates of purchase, payment, 
or other transaction;
    (viii) Certified copies of records maintained by organizations 
chartered by the Federal or State government,

[[Page 585]]

such as public utilities, accredited private and religious schools, and 
banks;
    (ix) If the applicant established that a family unit was in 
existence and cohabiting in the United States, documents evidencing the 
presence of another member of the same family unit; and
    (x) For applicants who have ongoing correspondence or other 
interaction with the Service, a list of the types and dates of such 
correspondence or other contact that the applicant knows to be contained 
or reflected in Service records.
    (5)(i) The adjudicator will evaluate all evidence on a case-by-case 
basis and will not accept a personal affidavit attesting to physical 
presence on December 21, 2000, without requiring an interview or 
additional evidence to validate the affidavit.
    (ii) In all cases, any doubts as to the existence, authenticity, 
veracity, or accuracy of the documentation shall be resolved by the 
official government record, with records of the Service and the 
Executive Office for Immigration Review (EOIR) having precedence over 
the records of other agencies. Furthermore, determinations as to the 
weight to be given any particular document or item of evidence shall be 
solely within the discretion of the adjudicating authority (i.e., the 
Service or EOIR). It shall be the responsibility of the applicant to 
obtain and submit copies of the records of any other government agency 
that the applicant desires to be considered in support of his or her 
application.

[59 FR 51095, Oct. 7, 1994; 59 FR 53020, Oct. 20, 1994, as amended at 62 
FR 10384, Mar. 6, 1997; 62 FR 39424, July 23, 1997; 62 FR 55153, Oct. 
23, 1997; 66 FR 16388, Mar. 26, 2001]



Sec. 245.11  Adjustment of aliens in S nonimmigrant classification.

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

[[Page 586]]

    (4) Decision on request to allow adjustment of S nonimmigrant. The 
Commissioner shall make the final decision on a request to allow an S 
nonimmigrant to apply for adjustment of status to lawful permanent 
resident.
    (i) In the event the Commissioner decides to deny an application on 
Form I-854 to allow an S nonimmigrant to apply for adjustment of status, 
the Assistant Attorney General, Criminal Division, and the relevant LEA 
shall be notified in writing to that effect. The Assistant Attorney 
General, Criminal Division, shall concur in or object to that decision. 
Unless the Assistant Attorney General, Criminal Division, objects within 
7 days, he or she shall be deemed to have concurred in the decision. In 
the event of an objection by the Assistant Attorney General, Criminal 
Division, the matter will be expeditiously referred to the Deputy 
Attorney General for a final resolution. In no circumstances shall the 
alien or the relevant LEA have a right of appeal from any decision to 
deny.
    (ii) Upon approval of the request on Form I-854, the Commissioner 
shall forward a copy of the approved form to the Assistant Attorney 
General and the S nonimmigrant, notifying them that the S nonimmigrant 
may proceed to file Form I-485 and request adjustment of status to that 
of lawful permanent resident, and that, to be eligible for adjustment of 
status, the nonimmigrant must otherwise:
    (A) Meet the requirements of paragraph (b) of this section, if 
requesting adjustment as a qualified family member of the certified 
principal S nonimmigrant witness or informant;
    (B) Be admissible to the United States as an immigrant, unless the 
ground of inadmissibility has been waived;
    (C) Establish eligibility for adjustment of status under all 
provisions of section 245 of the Act, unless the basis for ineligibility 
has been waived; and
    (D) Properly file with his or her Form I-485, Application to 
Register Permanent Residence or Adjust Status, the approved Form I-854.
    (b) Family members--(1) Qualified family members. A qualified family 
member of an S nonimmigrant includes the spouse, married or unmarried 
son or daughter, or parent of a principal S nonimmigrant who meets the 
requirements of paragraph (a) of this section, provided that:
    (i) The family member qualified as the spouse, married or unmarried 
son or daughter, or parent (as defined in section 101(b) of the Act) of 
the principal S nonimmigrant when the family member was admitted as or 
granted a change of status to that of a nonimmigrant under section 
101(a)(15)(S) of the Act;
    (ii) The family member was admitted in S nonimmigrant classification 
to accompany, or follow to join, the principal S-5 or S-6 alien pursuant 
to the LEA's request;
    (iii) The family member is not inadmissible from the United States 
as a participant in Nazi persecution or genocide as described in section 
212(a)(3)(E) of the Act;
    (iv) The qualifying relationship continues to exist; and
    (v) The principal alien has adjusted status, has a pending 
application for adjustment of status or is concurrently filing an 
application for adjustment of status under section 101(a)(15)(S) of the 
Act.
    (vi) Paragraphs (b)(1)(iv) and (v) of this section do not apply if 
the alien witness or informant has died and, in the opinion of the 
Attorney General, was in compliance with the terms of his or her S 
classification under section 245(i) (1) and (2) of the Act.
    (2) Other family member. The adjustment provisions in this section 
do not apply to a family member who has not been classified as an S 
nonimmigrant pursuant to a request on Form I-854 or who does not 
otherwise meet the requirements of paragraph (b) of this section. 
However, a spouse or an unmarried child who is less than 21 years old, 
and whose relationship to the principal S nonimmigrant or qualified 
family member was established prior to the approval of the principal S 
nonimmigrant's adjustment of status application, may be accorded the 
priority date and preference category of the principal S nonimmigrant or 
qualified family member, in accordance with the provisions of section 
203(d) of the Act. Such a spouse or child:

[[Page 587]]

    (i) May use the principal S nonimmigrant or qualified member's 
priority date and category when it becomes current, in accordance with 
the limitations set forth in sections 201 and 202 of the Act;
    (ii) May seek immigrant visa issuance abroad or adjustment of status 
to that of a lawful permanent resident of the United States when the 
priority date becomes current for the spouse's or child's country of 
chargeability under the fourth employment-based preference 
classification;
    (iii) Must meet all the requirements for immigrant visa issuance or 
adjustment of status, unless those requirements have been waived;
    (iv) Is not applying for adjustment of status under 101(a)(15)(S) of 
the Act, is not required to file Form I-854, and is not required to 
obtain LEA certification; and
    (v) Will lose eligibility for benefits if the child marries or has 
his or her twenty-first birthday before being admitted with an immigrant 
visa or granted adjustment of status.
    (c) Waivers of inadmissibility. An alien seeking to adjust status 
pursuant to the provisions of section 101(a)(15)(S) of the Act may not 
be denied adjustment of status for conduct or a condition that:
    (1) Was disclosed to the Attorney General prior to admission; and
    (2) Was specifically waived pursuant to the waiver provisions set 
forth at section 212(d)(1) and 212(d)(3) of the Act.
    (d) Application. Each S nonimmigrant requesting adjustment of status 
under section 101(a)(15)(S) of the Act must:
    (1) File Form I-485, with the prescribed fee, accompanied by the 
approved Form I-854, and the supporting documents specified in the 
instructions to Form I-485 and described in 8 CFR 245.2. Secondary 
evidence may be submitted if the nonimmigrant is unable to obtain the 
required primary evidence as provided in 8 CFR 103.2(b)(2). The S 
nonimmigrant applying to adjust must complete Part 2 of Form I-485 by 
checking box ``h-other'' and writing ``S'' or ``S-Qualified Family 
Member.'' Qualified family members must submit documentary evidence of 
the relationship to the principal S nonimmigrant witness or informant.
    (2) Submit detailed and inclusive evidence of eligibility for the 
adjustment of status benefits of S classification, which shall include:
    (i) A photocopy of all pages of the alien's most recent passport or 
an explanation of why the alien does not have a passport; or
    (ii) An attachment on a plain piece of paper showing the dates of 
all arrivals and departures from the United States in S nonimmigrant 
classification and the reason for each departure; and
    (iii) Primary evidence of a qualifying relationship to the principal 
S nonimmigrant, such as birth or marriage certificate. If any required 
primary evidence is unavailable, church or school records, or other 
secondary evidence may be submitted. If such documents are unavailable, 
affidavits may be submitted as provided in 8 CFR 103.2(b)(2).
    (e) Priority date. The S nonimmigrant's priority date shall be the 
date his or her application for adjustment of status as an S 
nonimmigrant is properly filed with the Service.
    (f) Visa number limitation. An adjustment of status application 
under section 101(a)(15)(S) of the Act may be filed regardless of the 
availability of immigrant visa numbers. The adjustment of status 
application may not, however, be approved and the alien's adjustment of 
status to that of lawful permanent resident of the United States may not 
be granted until a visa number becomes available for the alien under the 
worldwide allocation for employment-based immigrants under section 
201(d) and section 203(b)(4) of the Act. The alien may request initial 
or continued employment authorization while the adjustment application 
is pending by filing Form I-765, Application for Employment 
Authorization. If the alien needs to travel outside the United States 
during this period, he or she may file a request for advance parole on 
Form I-131, Application for Travel Document.
    (g) Filing and decision. An application for adjustment of status 
filed by an S nonimmigrant under section 101(a)(15)(S) of the Act shall 
be filed

[[Page 588]]

with the district director having jurisdiction over the alien's place of 
residence. Upon approval of adjustment of status under this section, the 
district director shall record the alien's lawful admission for 
permanent residence as of the date of such approval. The district 
director shall notify the Commissioner and the Assistant Attorney 
General, Criminal Division, of the adjustment.
    (h) Removal under section 237 of the Act. Nothing in this section 
shall prevent an alien adjusted pursuant to the terms of these 
provisions from being removed for conviction of a crime of moral 
turpitude committed within 10 years after being provided lawful 
permanent residence under this section or for any other ground under 
section 237 of the Act.
    (i) Denial of application. In the event the district director 
decides to deny an application on Form I-485 and an approved Form I-854 
to allow an S nonimmigrant to adjust status, the Assistant Attorney 
General, Criminal Division, and the relevant LEA shall be notified in 
writing to that effect. The Assistant Attorney General, Criminal 
Division, shall concur in or object to that decision. Unless the 
Assistant Attorney General, Criminal Division, objects within 7 days, he 
or she shall be deemed to have concurred in the decision. In the event 
of an objection by the Assistant Attorney General, Criminal Division, 
the matter will be expeditiously referred to the Deputy Attorney General 
for a final resolution. In no circumstances shall the alien or the 
relevant LEA have a right of appeal from any decision to deny. A denial 
of an adjustment application under this paragraph may not be renewed in 
subsequent removal proceedings.

[60 FR 44269, Aug. 25, 1995; 60 FR 52248, Oct. 5, 1995, as amended at 62 
FR 10384, Mar. 6, 1997]



Sec. 245.12  What are the procedures for certain Polish and Hungarian parolees 

who are adjusting status to that of permanent resident under the Illegal 

Immigration Reform and Immigrant Responsibility Act of 1996?

    (a) How do I apply for adjustment of status under this section? (1) 
Each person applying for adjustment of status, under section 646(b) of 
Public Law 104-208, must file a completed Form I-485, Application to 
Register Permanent Residence or Adjust Status, with the correct filing 
fee, with the Service director having jurisdiction over the applicant's 
place of residence.
    (2) The application must include Form G-325A, Biographic Information 
and the results of the medical examination made according to Sec. 232.1 
of this chapter and Sec. 245.5.
    (3) The application must include evidence to show the applicant was 
a national of Poland or Hungary who, after being denied refugee status, 
was inspected and granted parole into the United States between November 
1, 1989, and December 31, 1991.
    (4) The applicant must have been physically present in the United 
States for at least 1 year before filing a Form I-485.
    (5) After receiving the Form I-485, the adjudicating Service office 
will notify each applicant who is 14 years old or older of the time and 
location for the required fingerprinting.
    (b) How is my application for adjustment of status affected if I 
leave the United States while my application is still pending? The 
departure from the United States by an applicant for adjustment of 
status must be considered an abandonment of the application, as provided 
in Sec. 245.2(a)(4)(ii), unless the applicant was previously granted 
advance parole for such absence, and was reinspected on returning to the 
United States.
    (c) Which grounds for inadmissibility do not apply or can be waived? 
The provisions of section 212(a) (4), (5), and (7)(A) of the Act will 
not apply to adjustment of status under Sec. 245.12. In addition, the 
director may waive any other ground of inadmissibility except section 
212(a)(2)(C) or 212(a)(3)(A), (B), (C), or (E) of the Act, for 
humanitarian purposes, to ensure family unity, or when it is otherwise 
in the public interest.
    (d) If my application for adjustment of status is approved under 
Sec. 245.12, what date will be recorded as my admission to permanent 
residence? On approval of the application for adjustment of status, the 
date of the applicant's admission to permanent resident status will be 
the date of the applicant's inspection and

[[Page 589]]

parole, as described in paragraph (a) of this section.

[65 FR 20070, Apr. 14, 2000]



Sec. 245.13  Adjustment of status of certain nationals of Nicaragua and Cuba 

under Public Law 105-100.

    (a) Aliens eligible to apply for adjustment. An alien is eligible to 
apply for adjustment of status under the provisions of section 202 of 
Pub. L. 105-100 as amended and without regard to section 241(a)(5) of 
the Act, if the alien:
    (1) Is a national of Nicaragua or Cuba;
    (2) Except as provided in paragraph (o) of this section, has been 
physically present in the United States for a continuous period 
beginning not later than December 1, 1995, and ending not earlier that 
the date the application for adjustment is granted, excluding:
    (i) Any periods of absence from the United States not exceeding 180 
days in the aggregate; and
    (ii) Any periods of absence for which the applicant received an 
Advance Authorization for Parole (Form I-512) prior to his or her 
departure from the United States, provided the applicant returned to the 
United States in accordance with the conditions of such Advance 
Authorization for Parole;
    (3) Is not inadmissible to the United States for permanent residence 
under any provisions of section 212(a) of the Act, with the exception of 
paragraphs (4), (5), (6)(A), (7)(A) and (9)(B). If available, an 
applicant may apply for an individual waiver as provided in paragraph 
(c) of this section;
    (4) Is physically present in the United States at the time the 
application is filed; and
    (5) Properly files an application for adjustment of status in 
accordance with this section.
    (b) Qualified family members--(1) Existence of relationship at time 
of adjustment. The spouse, child, or unmarried son or daughter of an 
alien eligible for adjustment of status under the provisions of Pub. L. 
105-100 is eligible to apply for benefits as a dependent provided the 
qualifying relationship existed when the principal beneficiary was 
granted adjustment of status and the dependent meets all applicable 
requirements of sections 202(a) and (d) of Pub. L. 105-100.
    (2) Spouse and minor children. If physically present in the United 
States, the spouse or minor child of an alien who is eligible for 
permanent residence under the provisions of Pub. L. 105-100 may also 
apply for and receive adjustment of status under this section, provided 
such spouse or child meets the criteria established in paragraph (a) of 
this section, except for the requirement of continuous physical presence 
in the United States since December 1, 1995. Such application may be 
filed concurrently with or subsequent to the filing of the principal's 
application but may not be approved prior to approval of the principal's 
application.
    (3) Unmarried adult sons and daughters. An unmarried son or daughter 
of an alien who is eligible for permanent residence under the provisions 
of Pub. L. 105-100 may apply for and receive adjustment under this 
section, provided such son or daughter meets the criteria established in 
paragraph (a) of this section.
    (c) Applicability of inadmissibility grounds contained in section 
212(a)--(1) General. An applicant for the benefits of the adjustment of 
status provisions of section 202 of Pub. L. 105-100 need not establish 
admissibility under paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of 
section 212(a) of the Act in order to be able to adjust his or her 
status to that of permanent resident. An applicant under section 202 of 
Pub. L. 105-100 may also apply for one or more of the immigrant waivers 
of inadmissibility under section 212 of the Act, if applicable, in 
accordance with Sec. 212.7 of this chapter.
    (2) Special rule for waiver of inadmissibility grounds for NACARA 
applicants under section 212(a)(9)(A) and 212(a)(9)(C) of the Act. An 
applicant for adjustment of status under section 202 of Public Law 105-
100 who is inadmissible under section 212(a)(9)(A) or 212(a)(9)(C) of 
the Act, may apply for a waiver of these grounds of inadmissibility 
while present in the United States. Such an alien must file a Form I-
601, Application for Waiver of Grounds of Excludability, with the 
director of the Texas Service Center if

[[Page 590]]

the application for adjustment is pending at that office, with the 
district director having jurisdiction over the application if the 
application for adjustment is pending at a district office, with the 
Immigration Judge having jurisdiction if the application for adjustment 
is pending before the Immigration Court, or with the Board of 
Immigration Appeals if the appeal is pending before the Board.
    (d) General--(1) Proceedings pending before an Immigration Court. 
Except as provided in paragraph (d)(3) of this section, while an alien 
is in exclusion, deportation, or removal proceedings pending before an 
immigration judge, or has a pending motion to reopen or motion to 
reconsider filed with an immigration judge on or before May 21, 1998, 
sole jurisdiction over an application for adjustment of status under 
section 202 of Public Law 105-100 shall lie with the immigration judge. 
If an alien who has a pending motion to reopen or motion to reconsider 
filed with an immigration judge on or before May 21, 1998 files an 
application for adjustment of status under section 202 of Pub. L. 105-
100, the immigration judge shall reopen the alien's proceedings for 
consideration of the adjustment application, unless the alien is clearly 
ineligible for adjustment of status under section 202 of Pub. L. 105-
100. All applications for adjustment of status under section 202 of Pub. 
L. 105-100 filed with an Immigration Court shall be subject to the 
requirements of Sec. Sec. 3.11 and 3.31 of this chapter.
    (2) Proceedings pending before the Board of Immigration Appeals. 
Except as provided in paragraph (d)(3) of this section, in cases where a 
motion to reopen or motion to reconsider filed with the Board on or 
before May 21, 1998, or an appeal, is pending, the Board shall remand, 
or reopen and remand, the proceedings to the Immigration Court for the 
sole purpose of adjudicating an application for adjustment of status 
under section 202 of Public Law 105-100, unless the alien is clearly 
ineligible for adjustment of status under section 202 of Public Law 105-
100. If the immigration judge denies, or the alien fails to file, the 
application for adjustment of status under section 202 of Public Law 
105-100, the immigration judge shall certify the decision to the Board 
for consideration in conjunction with the previously pending appeal or 
motion.
    (3) Administrative closure of pending exclusion, deportation, or 
removal proceedings. (i) In the case of an alien who is in exclusion, 
deportation, or removal proceedings, or has a pending motion to reopen 
or a motion to reconsider such proceedings filed on or before May 21, 
1998, and who appears to be eligible to file an application for 
adjustment of status under section 202 of Pub. L. 105-100, the 
Immigration Court having jurisdiction over such proceedings or motion, 
or if the matter is before the Board on appeal or by motion, the Board, 
shall, upon request of the alien and with the concurrence of the 
Service, administratively close the proceedings, or continue 
indefinitely the motion, to allow the alien to file such application 
with the Service as prescribed in paragraph (g) of this section.
    (ii) In any case not administratively closed in accordance with 
paragraph (d)(3)(i) of this section, the immigration judge having 
jurisdiction over the exclusion, deportation, or removal proceedings 
shall have jurisdiction to accept and adjudicate any application for 
adjustment of status under section 202 of Pub. L. 105-100 during the 
course of such proceedings.
    (4)(i) Aliens with final orders of exclusion, deportation, or 
removal. An alien who is subject to a final order of exclusion, 
deportation, or removal, and who has not been denied adjustment of 
status under section 202 of Public Law 105-100 by the immigration judge 
or the Board of Immigration Appeals, may apply to the Service for 
adjustment of status under section 202 of Pub. L. 105-100.
    (ii) An alien may file a motion to reopen with the Immigration Court 
or the Board of Immigration Appeals, whichever had jurisdiction last, if 
the alien is present in the United States and subject to a final order 
of exclusion, deportation, or removal and has been denied adjustment of 
status under section 202 of NACARA by an Immigration Court or the Board 
or who never applied for adjustment of status on or before March 31, 
2000, with either the Service, the Immigration Court or the

[[Page 591]]

Board, and who is now eligible for adjustment as a result of section 
1505(a)(1) of the Legal Immigration Family Equity Act of 2000 (LIFE) and 
the LIFE amendments, Public Law 106-553 and Public Law 106-554, 
respectively. As provided by Sec. 1505(a)(2) of the LIFE Act and its 
amendments, such a motion to reopen must be filed on or before June 19, 
2001.
    (5) Stay of final order of exclusion, deportation, or removal--(i) 
With the Service. The filing of an application for adjustment under 
section 202 of Public Law 105-100 with the Service shall not stay the 
execution of such final order unless the applicant has filed, and the 
Service has approved an Application for Stay of Removal (Form I-246) in 
accordance with section 241(c)(2) of the Act and Sec. 241.6 of this 
chapter. Absent evidence of the applicant's statutory ineligibility for 
adjustment of status under section 202 of Public Law 105-100 or 
significant negative discretionary factors, a Form I-246 filed by a bona 
fide applicant for adjustment under section 202 of Public Law 105-100 
shall be approved, and the removal of the applicant shall be stayed 
until such time as the application for adjustment has been adjudicated 
in accordance with this section.
    (ii) With EOIR. When the Service refers a decision to an immigration 
judge on a Notice of Certification (Form I-290C) in accordance with 
paragraph (m)(3) of this section, the referral shall not stay the 
execution of the final order. Execution of such final order shall 
proceed unless a stay of execution is specifically granted by the 
immigration judge, the Board, or an authorized Service officer.
    (6) Effect on applications for adjustment under other provisions of 
the law. Nothing in this section shall be deemed to allow any alien who 
is in either exclusion proceedings that commenced prior to April 1, 
1997, or removal proceedings as an inadmissible arriving alien that 
commenced on or after April 1, 1997, and who has not been paroled into 
the United States, to apply for adjustment of status under any provision 
of law other than section 202 of Pub. L. 105-100.
    (e) Application and supporting documents. Each applicant for 
adjustment of status must file a Form I-485, Application to Register 
Permanent Residence or Adjust Status. An applicant should complete Part 
2 of Form I-485 by checking box ``h--other'' and writing ``NACARA--
Principal'' or ``NACARA--Dependent'' next to that block. Each 
application must be accompanied by:
    (1) The fee prescribed in Sec. 103.7(b)(1) of this chapter;
    (2) If the applicant is 14 years of age or older, the fee for 
fingerprinting prescribed in Sec. 103.7(b)(1) of this chapter;
    (3) Evidence of commencement of physical presence in the United 
States at any time on or before December 1, 1995. Such evidence may 
relate to any time at or after entry and may consist of either:
    (i) Documentation evidencing one or more of the activities specified 
in section 202(b)(2)(A) of Public Law 105-100;
    (ii) A copy of the Form I-94, Record of Arrival and Departure, 
issued to the applicant at the time of his or her inspection and 
admission or parole;
    (iii) Other documentation issued by a Federal, State, or local 
authority provided such other documentation bears the signature, seal, 
or other authenticating instrument of such authority (if the document 
normally bears such instrument), was dated at the time of issuance, and 
bears a date of issuance not later than December 1, 1995. Examples of 
such other documentation include, but are not limited to:
    (A) A State driver's license;
    (B) A State identification card issued in lieu of a driver's license 
to a nondriver;
    (C) A county or municipal hospital record;
    (D) A public college or public school transcript; and
    (E) Income tax records;
    (iv) A copy of a petition on behalf of the applicant that was 
submitted to the Service on or before December 1, 1995, and that lists 
the applicant as being physically present in the United States;
    (v) A certified copy of a Federal, State, or local governmental 
record that was created on or prior to December 1, 1995, shows that the 
applicant was present in the United States at the time, and establishes 
that the applicant sought on his or her own behalf,

[[Page 592]]

or some other party sought on the applicant's behalf, a benefit from the 
Federal, State, or local governmental agency keeping such record;
    (vi) A certified copy of a Federal, State, or local governmental 
record that was created on or prior to December 1, 1995, shows that the 
applicant was present in the United States at the time, and establishes 
that the applicant submitted an income tax return, property tax payment, 
or similar submission or payment to the Federal, State, or local 
governmental agency keeping such record; or
    (vii) In the case of an applicant who, while under the age of 21, 
attended a private or religious school in the United States on or prior 
to December 1, 1995, a transcript from such private or religious school, 
provided that the school:
    (A) Is registered with, approved by, or licensed by, appropriate 
State or local authorities;
    (B) Is accredited by the State or regional accrediting body, or by 
the appropriate private school association; or
    (C) Maintains enrollment records in accordance with State or local 
requirements or standards;
    (4) Evidence of continuity of physical presence in the United States 
since the last date on or prior to December 1, 1995, on which the 
applicant established commencement of physical presence in the United 
States. Such documentation may have been issued by any governmental or 
nongovernmental authority, provided such evidence bears the name of the 
applicant, was dated at the time it was issued, and bears the signature, 
seal, or other authenticating instrument of the issuing authority or its 
authorized representative, if the document would normally contain such 
authenticating instrument. Such documentation may include, but is not 
limited to:
    (i) School records;
    (ii) Rental receipts;
    (iii) Utility bill receipts;
    (iv) Any other dated receipts;
    (v) Personal checks written by the applicant bearing a dated bank 
cancellation stamp;
    (vi) Employment records, including pay stubs;
    (vii) Credit card statements showing the dates of purchase, payment, 
or other transaction;
    (viii) Certified copies of records maintained by organizations 
chartered by the government, such as public utilities, accredited 
private and parochial schools, and banks;
    (ix) If the applicant establishes that a family unit was in 
existence and cohabiting in the United States, documents evidencing the 
physical presence in the United States of another member of that same 
family unit; and
    (x) If the applicant has had correspondence or other interaction 
with the Service, a list of the types and dates of such correspondence 
or other contact that the applicant knows to be contained or reflected 
in Service records;
    (5) A copy of the applicant's birth certificate;
    (6) If the applicant is between 14 and 79 years of age, a completed 
Biographic Information Sheet (Form G-325A);
    (7) A report of medical examination, as specified in Sec. 245.5;
    (8) Two photographs, as described in the instructions to Form I-485;
    (9) If the applicant is 14 years of age or older, a police clearance 
from each municipality where the alien has resided for 6 months or 
longer since arriving in the United States. If there are multiple local 
law enforcement agencies (e.g., city police and county sheriff) with 
jurisdiction over the alien's residence, the applicant may obtain a 
clearance from either agency. If the applicant resides or resided in a 
State where the State Police maintain a compilation of all local arrests 
and convictions, a statewide clearance is sufficient. If the applicant 
presents a letter from the local police agencies involved, or other 
evidence, to the effect that the applicant attempted to obtain such 
clearance but was unable to do so because of local or State policy, the 
director or immigration judge having jurisdiction over the application 
may waive the local police clearance. Furthermore, if such local police 
agency has provided the Service or the Immigration Court with a blanket 
statement that issuance of such police clearance is against local or 
state policy, the director or immigration judge

[[Page 593]]

having jurisdiction over the case may waive the local police clearance 
requirement regardless of whether the applicant individually submits a 
letter from that local police agency;
    (10) If the applicant is applying as the spouse of another Public 
Law 105-100 beneficiary, a copy of their certificate of marriage and 
copies of documents showing the legal termination of all other marriages 
by the applicant or the other beneficiary;
    (11) If the applicant is applying as the child, unmarried son, or 
unmarried daughter of another (principal) beneficiary under section 202 
of Public Law 105-100 who is not the applicant's biological mother, 
copies of evidence (such as the applicant's parent's marriage 
certificate and documents showing the legal termination of all other 
marriages, an adoption decree, or other relevant evidence) to 
demonstrate the relationship between the applicant and the other 
beneficiary;
    (12) A copy of the Form I-94, Arrival-Departure Record, issued at 
the time of the applicant's arrival in the United States, if the alien 
was inspected and admitted or paroled; and
    (13) If the applicant has departed from and returned to the United 
States since December 1, 1995, an attachment on a plain piece of paper 
showing:
    (i) The date of the applicant's last arrival in the United States 
before or on December 1, 1995;
    (ii) The date of each departure from the United States since that 
arrival;
    (iii) The reason for each departure; and
    (iv) The date, manner, and place of each return to the United 
States.
    (f) Secondary evidence. If the primary evidence required in 
paragraph (e)(4), (e)(9) or (e)(10 of this section is unavailable, 
church or school records, or other secondary evidence pertinent to the 
facts in issue, may be submitted. If such documents are unavailable, 
affidavits may be submitted. The applicant may submit as many types of 
secondary evidence as necessary to establish the birth, marriage, or 
other event. Documentary evidence establishing that primary evidence is 
unavailable must accompany secondary evidence of birth or marriage in 
the home country. In adjudicating the application for adjustment of 
status under section 202 of Public Law 105-100, the Service or 
immigration judge shall determine the weight to be given such secondary 
evidence. Secondary evidence may not be submitted in lieu of the 
documentation specified in paragraphs (e)(2) and (e)(3) of this section. 
However, subject to verification by the Service, if the documentation 
specified in paragraphs (e)(2) and (e)(3) is already contained in the 
Service's file relating to the applicant, the applicant may submit an 
affidavit to that effect in lieu of the actual documentation.
    (g) Filing. The application period begins on June 22, 1998. To 
benefit from the provisions of section 202 of Public Law 105-100, an 
alien must properly file an application for adjustment of status before 
April 1, 2000. Except as provided in paragraph (d) of this section, all 
applications for the benefits of section 202 of Pub. L. 105-100 must be 
submitted by mail to: USINS Texas Service Center, P.O. Box 851804, 
Mesquite, TX 75185-1804. All applications must be accompanied by either 
the correct fee as specified in Sec. 103.7(b)(1) of this chapter; or a 
request for a fee waiver in accordance with Sec. 103.7(c) of this 
chapter. An application received by the Service or Immigration Court 
before April 1, 2000, that has been properly signed and executed and for 
which a waiver of the filing fee has been requested shall be regarded as 
having been filed before the statutory deadline regardless of whether 
the fee waiver request is denied provided that the applicant submits the 
required fee within 30 days of the date of any notice that the fee 
waiver request has been denied. In a case over which the Board has 
jurisdiction, an application received by the Board before April 1, 2000, 
that has been properly signed and executed shall be considered filed 
before the statutory deadline without payment of the fee or submission 
of a fee waiver request. Upon demand by the Board, the payment of the 
fee or a request for a fee waiver shall be made upon submission of the 
application to the Immigration Court in accordance with 8 CFR 240.11(f). 
If a request for a fee waiver is denied, the applicaion shall be 
considered as having been properly filed with the Immigration Court 
before the statutory

[[Page 594]]

deadline provided that the applicant submits the required fee within 30 
days of the date of any notice that the fee waiver request has been 
denied. After proper filing of the application, the Service will notify 
the applicant to appear for fingerprinting as prescribed in Sec. 
103.2(e) of this chapter.
    (h) Jurisdiction. Except as provide din paragraphs (d) and (i) of 
this section, the director of the Texas Service Center shall have 
jurisdiction over all applications for adjustment of status under 
section 202 of Public Law 105-100.
    (i) Interview. (1) Except as provided in paragraphs (d), (i)(2), and 
(i)(3) of this section, all applicants for adjustment of status under 
section 202 of Pub. L. 105-100 must be personally interviewed by an 
immigration officer at a local office of the Service. In any case in 
which the director of the Texas Service Center determines that an 
interview of the applicant is necessary, that director shall forward the 
case to the appropriate local Service office for interview and 
adjudication.
    (2) In the case of an applicant who has submitted evidence of 
commencement of physical presence in the United States consisting of one 
or more of the documents specified in section 202(b)(2)(A)(i) through 
(v) or section 202(b)(2)(A)(vii) of Pub. L. 105-100 and upon examination 
of the application, including all other evidence submitted in support of 
the application, all relevant Service records and all other relevant law 
enforcement indices, if the director of the Texas Service Center 
determines that the alien is clearly eligible for adjustment of status 
under Pub. L. 105-100 and that an interview of the applicant is not 
necessary, the director may approve the application.
    (3) Upon examination of the application, all supporting 
documentation, all relevant Service records, and all other relevant law 
enforcement indices, if the director of the Texas Service Center 
determines that the alien is clearly ineligible for adjustment of status 
under Pub. L. 105-100 and that an interview of the applicant is not 
necessary, the director may deny the application.
    (j) Authorization to be employed in the United States while the 
application is pending--(1) Application. An applicant for adjustment of 
status under section 202 of Pub. L. 105-100 who wishes to obtain initial 
or continued employment authorization during the pendency of the 
adjustment application must file an Application for Employment 
authorization (Form I-765), with fee as set forth in Sec. 103.7(b)(1) 
of this chapter. The applicant may submit Form I-765 concurrently with, 
or subsequent to, the filing of the Form I-485.
    (2) Adjudication and issuance. In general, employment authorization 
may not be issued to an applicant for adjustment of status under section 
202 of Pub. L. 105-100 until the adjustment application has been pending 
for 180 days. However, if Service records contain one or more of the 
documents specified in section 202(b)(2)(A)(i) through (v) and (vii) of 
Pub. L. 105-100, evidence of the applicant's Nicaraguan or Cuban 
nationality, and no indication that the applicant is clearly ineligible 
for adjustment of status under section 202 of Pub. L. 105-100, the 
application for employment authorization may be approved, and the 
resulting document issued immediately upon verification that the Service 
record contains such information. If the Service fails to adjudicate the 
application for employment authorization upon expiration of the 180-day 
waiting period or within 90 days of the filing of application for 
employment authorization, whichever comes later, the alien shall be 
eligible for interim employment authorization in accordance with Sec. 
274a.13(d) of this chapter. Nothing in this section shall preclude an 
applicant for adjustment of status under Pub. L. 105-100 from being 
granted an initial employment authorization or an extension of 
employment authorization under any other provision of law or regulation 
for which the alien may be eligible.
    (k) Parole authorization for purposes of travel--(1) Travel from and 
return to the United States while the application for adjustment of 
status is pending. If an applicant for benefits under section 202 of 
Pub. L. 105-100 desires to travel outside, and return to, the United 
States while the application for adjustment of status is pending, he or 
she must file a request for advance parole authorization on an 
Application for Travel Document (Form I-131), with fee as set forth

[[Page 595]]

in Sec. 103.7(b)(1) of this chapter and in accordance with the 
instructions on the form. If the alien is either in deportation or 
removal proceedings, or subject to a final order of deportation or 
removal, the Form I-131 must be submitted to the Assistant Commissioner 
for International Affairs; otherwise the Form I-131 must be submitted to 
the director of the Texas Service Center, who shall have jurisdiction 
over such applications. Unless the applicant files an advance parole 
request prior to departing from the United States, and the Service 
approves such request, his or her application for adjustment of status 
under section 202 of Public Law 105-100 is deemed to be abandoned as of 
the moment of his or her departure. Parole may only be authorized 
pursuant to the authority contained in, and the standards prescribed in, 
section 212(d)(5) of the Act.
    (2) Parole authorization for the purpose of filing an application 
for adjustment of status under section 202 of Pub. L. 105-100. An 
otherwise eligible applicant who is outside the United States and wishes 
to come to the United States in order to apply for benefits under 
section 202 of Pub. L. 105-100 may request parole authorization for such 
purpose by filing an Application for Travel Document (Form I-131) with 
the Texas Service Center, at P.O. Box 851804, Mesquite, TX 75185-1804. 
Such application must be supported by a photocopy of the Form I-485 that 
the alien will file once he or she has been paroled into the United 
States. The applicant must include photocopies of all the supporting 
documentation listed in paragraph (e) of this section, except the filing 
fee, the medical report, the fingerprint card, and the local police 
clearances. If the director of the Texas Service Center is satisfied 
that the alien will be eligible for adjustment of status once the alien 
has been paroled into the United States and files the application, he or 
she may issue an Authorization for Parole of an Alien into the United 
States (Form I-512) to allow the alien to travel to, and be paroled 
into, the United States for a period of 60 days. The applicant shall 
have 60 days from the date of parole to file the application for 
adjustment of status. If the alien files the application for adjustment 
of status within that 60-day period, the Service may re-parole the alien 
for such time as is necessary for adjudication of the application. 
Failure to file such application for adjustment of status within 60 days 
shall result in the alien being returned to the custody of the Service 
and being examined as an arriving alien applying for admission. Such 
examination will be conducted in accordance with the provisions of 
section 235(b)(1) of the Act if the alien is inadmissible under section 
212(a)(6)(C) or 212(a)(7) of the Act, or section 240 of the Act if the 
alien is inadmissible under any other grounds. Parole may only be 
authorized pursuant to the authority contained in, and the standards 
prescribed in, section 212(d)(5) of the Act.
    (3) Effect of departure on an outstanding warrant of exclusion, 
deportation, or removal. If an alien who is the subject of an 
outstanding final order of exclusion, deportation, or removal departs 
from the United States, with or without an advance parole authorization, 
such final order shall be executed by the alien's departure. The 
execution of such final order shall not preclude the applicant from 
filing an Application for Permission to Reapply for Admission Into the 
United States After Deportation or Removal (Form I-212) in accordance 
with Sec. 212.2 of this chapter.
    (l) Approval. If the director approves the application for 
adjustment of status under the provisions of section 202 of Pub. L. 105-
100, the director shall record the alien's lawful admission for 
permanent resident as of the date of such approval and notify the 
applicant accordingly. The director shall also advise the alien 
regarding the delivery of his or her Permanent Resident Card and of the 
process for obtaining temporary evidence of alien registration. If the 
alien had previously been issued a final order of exclusion, 
deportation, or removal, such order shall be deemed canceled as of the 
date of the director's approval of the application for adjustment of 
status. If the alien had been in exclusion, deportation, or removal 
proceedings that were administratively closed, such proceedings shall be

[[Page 596]]

deemed terminated as of the date of approval of the application for 
adjustment of status by the director. If an immigration judge grants or 
if the Board, upon appeal, grants an application for adjustment under 
the provisions of section 202 of Pub. L. 105-100, the alien's lawful 
admission for permanent residence shall be as of the date of such grant.
    (m) Denial and review of decision. (1) If the director denies the 
application for adjustment of status under the provisions of section 202 
of Public Law 105-100, the director shall notify the applicant of the 
decision. The director shall also:
    (i) In the case of an alien who is not maintaining valid 
nonimmigrant status and who had not previously been placed in exclusion, 
deportation or removal proceedings, initiate removal proceedings in 
accordance with Sec. 239.1 of this chapter during which the alien may 
renew his or her application for adjustment of status under section 202 
of Public Law 105-100; or
    (ii) In the case of an alien whose previously initiated exclusion, 
deportation, or removal proceedings had been administratively closed or 
continued indefinitely under paragraph (d)(3) of this section, advise 
the Immigration Court that had administratively closed the proceedings, 
or the Board, as appropriate, of the denial of the application. Upon a 
motion to recalendar filed by the Service, the Immigration Court or the 
Board will then recalendar or reinstate the prior exclusion, deportation 
or removal proceedings, during which the alien may renew his or her 
application for adjustment under section 202 of Public Law 105-100; or
    (iii) In the case of an alien who is the subject of an outstanding 
final order of exclusion, deportation, or removal, refer the decision to 
deny the application by filing a Form I-290C, Notice of Certification, 
with the Immigration Court that issued the final order for consideration 
in accordance with paragraph (n) of this section.
    (2) Aliens who were denied adjustment of status by the director, but 
who are now eligible for such adjustment of status pursuant to section 
1505(a)(1) of the LIFE Act and amendments, and have not been referred to 
immigration proceedings as specified in paragraph (m)(1) of this section 
may file a motion to reopen with the Service. If an alien has been 
referred to the Immigration Court or has filed an appeal with the Board 
after an Immigration Court has denied the application for adjustment 
under NACARA section 202, and proceedings are pending, then the 
application for adjustment of status will be adjudicated in accordance 
with section 1505(a) of the LIFE Act and its amendments. An alien 
present in the United States subject to a final order of removal after 
his or her application was denied by an Immigration Court or the Board, 
but who was made eligible for adjustment pursuant to section 1505(a) of 
the LIFE Act and its amendments may file a motion to reopen with the 
Immigration Court or the Board, whichever had jurisdiction last. 
Pursuant to section 1505(a)(2) of the LIFE Act and its amendments, 
motions to reopen proceedings before the Immigration Court or the Board 
must be filed on or before June 19, 2001.
    (n) Action of immigration judge upon referral of decision by a 
Notice of Certification (Form I-290C)--(1) General. Upon the referral by 
a Notice of Certification (Form I-290C) of a decision to deny the 
application, in accordance with paragraph (m)(3) of this section, and 
under the authority contained in Sec. 3.10 of this chapter, the 
immigration judge shall conduct a hearing to determine whether the alien 
is eligible for adjustment of status under section 202 of Public Law 
105-100. Such hearing shall be conducted under the same rules of 
procedure as proceedings conducted under part 240 of this chapter, 
except the scope of review shall be limited to a determination on the 
alien's eligibility for adjustment of status under section 202 of Public 
Law 105-100. During such proceedings all parties are prohibited from 
raising or considering any other issues, including but not limited to 
issues of admissibility, deportability, removability, and eligibility 
for any form of relief other than adjustment of status under section 202 
of Public Law 105-100. Should the alien fail to appear for such hearing, 
the immigration judge shall deny the application for adjustment under 
section 202 of Public Law 105-100.

[[Page 597]]

    (2) Appeal of immigration judge decision. Once the immigration judge 
issues his or her decision on the application, either the alien or the 
Service may appeal the decision to the Board. Such appeal must be filed 
pursuant to the requirements for appeals to the Board from an 
immigration judge decision set forth in Sec. Sec. 3.3 and 3.8 of this 
chapter.
    (3) Rescission of the decision of an immigration judge. The decision 
of an immigration judge under paragraph (n)(1) of this section denying 
an application for adjustment under section 202 of Public Law 105-100 
for failure to appear may be rescinded only:
    (i) Upon a motion to reopen filed within 180 days after the date of 
the denial if the alien demonstrates that the failure to appear was 
because of exceptional circumstances as defined in section 240(e)(1) of 
the Act;
    (ii) Upon a motion to reopen filed at any time if the alien 
demonstrates that the alien did not receive notice of the hearing in 
person (or, if personal service was not practicable, through service by 
mail to the alien or to the alien's counsel of record, if any) or the 
alien demonstrates that the alien was in Federal or State custody and 
the failure to appear was through no fault of the alien; or
    (iii) Upon a motion to reopen filed not later than June 19, 2001, by 
an alien present in the United States who became eligible for adjustment 
of status under section 202 of Public Law 105-100, as amended by section 
1505, Public Law 106-554.
    (o) Transition period provisions for tolling the physical presence 
in the United States provision for certain individuals--(1) Departure 
without advance authorization for parole. In the case of an otherwise 
eligible applicant who departed the United States on or before December 
31, 1997, the physical presence in the United States provision of 
section 202(b)(1) of Pub. L. 105-100 is tolled as of November 19, 1997, 
and until July 20, 1998.
    (2) Departure with advance authorization for parole. In the case of 
an alien who departed the United States after having been issued an 
Authorization for parole of an Alien into the United States (Form I-
512), and who returns to the United States in accordance with the 
conditions of that document, the physical presence in the United States 
requirement of section 202(b)(1) of Pub. L. 105-100 is tolled while the 
alien is outside the United States pursuant to the issuance of the Form 
I-512.
    (3) Request for parole authorization from outside the United States. 
In the case of an alien who is outside the United States and submits an 
application for parole authorization in accordance with paragraph (k)(2) 
of this section, and such application for parole authorization is 
granted by the Service, the physical presence in the United States 
provisions of section 202(b)(1) of Pub. L. 105-100 is tilled from the 
date the application is received at the Texas Service Center until the 
alien is paroled into the United States pursuant to the issuance of the 
Form I-512.

(Approved by the Office of Management and Budget under Control Number 
1115-0221)

[63 FR 27829, May 21, 1998, as amended at 65 FR 15854, Mar. 24, 2000; 66 
FR 29451, May 31, 2001]



Sec. 245.14  [Reserved]



Sec. 245.15  Adjustment of status of certain Haitian nationals under the 

Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA).

    (a) Definitions. As used in this section, the terms:
    Abandoned and abandonment mean that both parents have, or the sole 
or surviving parent has, or in the case of a child who has been placed 
into a guardianship, the child's guardian or guardians have, willfully 
forsaken all parental or guardianship rights, obligations, and claims to 
the child, as well as all control over and possession of the child, 
without intending to transfer these rights to any specific person(s).
    Guardian means a person lawfully invested (by order of a competent 
Federal, State, or local authority) with the power, and charged with the 
duty, of taking care of, including managing the property, rights, and 
affairs of, a child.
    Orphan and orphaned refer to the involuntary detachment or severance 
of a child from his or her parents due to any of the following:
    (1) The death or disappearance of, desertion by, or separation or 
loss from

[[Page 598]]

both parents, as those terms are defined in Sec. 204.3(b) of this 
chapter;
    (2) The irrevocable and written release of all parental rights by 
the sole parent, as that term is defined in Sec. 204.3(b) of this 
chapter, based upon the inability of that parent to provide proper care 
(within the meaning of that phrase in Sec. 204.3(b) of this chapter) 
for the child, provided that at the time of such irrevocable release 
such parent is legally obligated to provide such care; or
    (3) The death or disappearance, as that term is defined in Sec. 
204.3(b) of this chapter, of one parent and the irrevocable and written 
release of all parental rights by the sole remaining parent based upon 
the inability of that parent to provide proper care (within the meaning 
of that phrase in Sec. 204.3(b) of this chapter) for the child, 
provided that at the time of such irrevocable release such parent is 
legally obligated to provide such care.
    Parent, father, or mother means a parent, father, or mother only 
where the relationship exists by reason of any of the circumstances set 
forth in paragraphs (A) through (E) of section 101(b)(1) of the Act.
    Sole remaining parent means a person who is the child's only parent 
because:
    (1) The child's other parent has died; or
    (2) The child's other parent has been certified by competent Haitian 
authorities to be presumed dead as a result of his or her disappearance, 
within the meaning of that term as set forth in Sec. 204.3(b) of this 
chapter.
    (b) Applicability of provisions of section 902 of HRIFA in general. 
Section 902 of Division A of Pub. L. 105-277, the Haitian Refugee 
Immigrant Fairness Act of 1998 (HRIFA), provides special rules for 
adjustment of status for certain nationals of Haiti, and without regard 
to section 241(a)(5) of the Act, if they meet the other requirements of 
HRIFA.
    (1) Principal applicants. Section 902(b)(1) of HRIFA defines five 
categories of principal applicants who may apply for adjustment of 
status, if the alien was physically present in the United States on 
December 31, 1995:
    (i) An alien who filed for asylum before December 31, 1995;
    (ii) An alien who was paroled into the United States prior to 
December 31, 1995, after having been identified as having a credible 
fear of persecution, or paroled for emergent reasons or reasons deemed 
strictly in the public interest; or
    (iii) An alien who at the time of arrival in the United States and 
on December 31, 1995, was unmarried and under 21 years of age and who:
    (A) Arrived in the United States without parents in the United 
States and has remained, without parents, in the United States since his 
or her arrival;
    (B) Became orphaned subsequent to arrival in the United States; or
    (C) Was abandoned by parents or guardians prior to April 1, 1998, 
and has remained abandoned since such abandonment.
    (2) Dependents. Section 902(d) of HRIFA provides for certain Haitian 
nationals to apply for adjustment of status as the spouse, child, or 
unmarried son or daughter of a principal HRIFA beneficiary, even if the 
individual would not otherwise be eligible for adjustment under section 
902. The eligibility requirements for dependents are described further 
in paragraph (d) of this section.
    (c) Eligibility of principal HRIFA applicants. A Haitian national 
who is described in paragraph (b)(1) of this section is eligible to 
apply for adjustment of status under the provisions of section 902 of 
HRIFA if the alien meets the following requirements:
    (1) Physical presence. The alien is physically present in the United 
States at the time the application is filed;
    (2) Proper application. The alien properly files an application for 
adjustment of status in accordance with this section, including the 
evidence described in paragraphs (h), (i), (j), and (k) of this section. 
For purposes of Sec. 245.15 of this chapter only, an Application to 
Register Permanent Residence or Adjust Status (Form I-485) submitted by 
a principal applicant for benefits under HRIFA may be considered to have 
been properly filed if it:
    (i) Is received not later than March 31, 2000, at the Nebraska 
Service Center, the Board, or the Immigration Court having jurisdiction;

[[Page 599]]

    (ii) Has been properly completed and signed by the applicant;
    (iii) Identifies the provision of HRIFA under which the applicant is 
seeking adjustment of status; and
    (iv) Is accompanied by either:
    (A) The correct fee as specified in Sec. 103.7(b)(1) of this 
chapter; or
    (B) A request for a fee waiver in accordance with Sec. 103.7(c) of 
this chapter, provided such fee waiver request is subsequently granted; 
however, if such a fee waiver request is subsequently denied and the 
applicant submits the require fee within 30 days of the date of any 
notice that the fee waiver request had been denied, the application 
shall be regarded as having been filed before the statutory deadline. In 
addition, in a case over which the Board has jurisdiction, an 
application received by the Board before April 1, 2000, that has been 
properly signed and executed shall be considered filed before the 
statutory deadline without payment of the fee or submission of a fee 
waiver request. Upon remand by the Board, the payment of the fee or a 
request for a fee waiver shall be made upon submission of the 
application to the Immigration Court in accordance with 8 CFR 240.11(f). 
If a request for a fee waiver is denied, the application shall be 
considered as having been properly filed with the Immigration Court 
before the statutory deadline provided that the applicant submits the 
required fee within 30 days of the date of any notice that the fee 
waiver request has been denied.
    (3) Admissibility. The alien is not inadmissible to the United 
States for permanent residence under any provisions of section 212(a) of 
the Act, except as provided in paragraph (e) of this section; and
    (4) Continuous physical presence. The alien has been physically 
present in the United States for a continuous period beginning on 
December 31, 1995, and ending on the date the application for adjustment 
is granted, except for the following periods of time:
    (i) Any period or periods of absence from the United States not 
exceeding 180 days in the aggregate; and
    (ii) Any periods of absence for which the applicant received an 
Advance Authorization for Parole (Form I-512) prior to his or her 
departure from the United States, provided the applicant returned to the 
United States in accordance with the conditions of such Advance 
Authorization for Parole.
    (iii) Any periods of absence from the United States occurring after 
October 21, 1998, and before July 12, 1999, provided the applicant 
departed the United States prior to December 31, 1998.
    (d) Eligibility of dependents of a principal HRIFA beneficiary. A 
Haitian national who is the spouse, child, or unmarried son or daughter 
of a principal beneficiary eligible for adjustment of status under the 
provisions of HRIFA is eligible to apply for benefits as a dependent, if 
the dependent alien meets the following requirements:
    (1) Physical presence. The alien is physically present in the United 
States at the time the application is filed;
    (2) Proper application. The alien properly files an application for 
adjustment of status as a dependent in accordance with this section, 
including the evidence described in paragraphs (h) and (l) of this 
section;
    (3) Admissibility. The alien is not inadmissible to the United 
States for permanent residence under any provisions of section 212(a) of 
the Act, except as provided in paragraph (e) of this section;
    (4) Relationship. The qualifying relationship to the principal alien 
must have existed at the time the principal was granted adjustment of 
status and must continue to exist at the time the dependent alien is 
granted adjustment of status. To establish the qualifying relationship 
to the principal alien, evidence must be submitted in accordance with 
Sec. 204.2 of this chapter. Such evidence should 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;
    (5) Continuous physical presence. If the alien is applying as the 
unmarried son or unmarried daughter of a principal HRIFA beneficiary, he 
or she must have been physically present in the United States for a 
continuous period beginning not later than December 31, 1995, and ending 
on the date the application for adjustment is granted, as provided in 
paragraphs (c)(4) and (j) of this section.

[[Page 600]]

    (e) Applicability of grounds of inadmissibility contained in section 
212(a)--(1) Certain grounds of inadmissibility inapplicable to HRIFA 
applicants. Paragraphs (4), (5), (6)(A), (7)(A) and (9)(B) of section 
212(a) of the Act are inapplicable to HRIFA principal applicants and 
their dependents. Accordingly, an applicant for adjustment of status 
under section 902 of HRIFA need not establish admissibility under those 
provisions in order to be able to adjust his or her status to that of 
permanent resident.
    (2) Availability of individual waivers. If a HRIFA applicant is 
inadmissible under any of the other provisions of section 212(a) of the 
Act for which an immigrant waiver is available, the applicant may apply 
for one or more of the immigrant waivers of inadmissibility under 
section 212 of the Act, in accordance with Sec. 212.7 of this chapter. 
In considering an application for waiver under section 212(g) of the Act 
by an otherwise statutorily eligible applicant for adjustment of status 
under HRIFA who was paroled into the United States from the U.S. Naval 
Base at Guantanamo Bay, for the purpose of receiving treatment of an HIV 
or AIDS condition, the fact that his or her arrival in the United States 
was the direct result of a government decision to provide such treatment 
should be viewed as a significant positive factor when weighing 
discretionary factors. In considering an application for waiver under 
section 212(i) of the Act by an otherwise statutorily eligible applicant 
for adjustment of status under HRIFA who used counterfeit documents to 
travel from Haiti to the United States, the adjudicator shall, when 
weighing discretionary factors, take into consideration the general 
lawlessness and corruption which was widespread in Haiti at the time of 
the alien's departure, the difficulties in obtaining legitimate 
departure documents at that time, and other factors unique to Haiti at 
that time which may have induced the alien to commit fraud or make 
willful misrepresentations.
    (3) Special rule for waiver of inadmissibility grounds for HRIFA 
applicants under section 212(a)(9)(A) and 212(a)(9)(C) of the Act. An 
applicant for adjustment of status under HRIFA who is inadmissible under 
section 212(a)(9)(A) or 212(a)(9)(C) of the Act, may apply for a waiver 
of these grounds of inadmissibility while present in the United States. 
Such an alien must file Form I-601, Application for Waiver of Grounds of 
Excludability. If the application for adjustment is pending at the 
Nebraska Service Center, Form I-601 must be filed with the director of 
that office. If the application for adjustment is pending at a district 
office, Form I-601 must be filed with the district director having 
jurisdiction over the application. If the application for adjustment is 
pending before the immigration court, Form I-601 must be filed with the 
immigration judge having jurisdiction, or with the Board of Immigration 
Appeals if the appeal is pending before the Board.
    (f) Time for filing of applications--(1) Applications for HRIFA 
benefits by a principal HRIFA applicant. The application period begins 
on June 11, 1999. To benefit from the provisions of section 902 of 
HRIFA, an alien who is applying for adjustment as a principal applicant 
must properly file an application for adjustment of status before April 
1, 2000.
    (2) Applications by dependent aliens. The spouse, minor child, or 
unmarried son or daughter of an alien who is eligible for adjustment of 
status as a principal beneficiary under HRIFA may file an application 
for adjustment of status under this section concurrently with or 
subsequent to the filing of the application of the principal HRIFA 
beneficiary. An application filed by a dependent may not be approved 
prior to approval of the principal's application.
    (g) Jurisdiction for filing of applications--(1) Filing of 
applications with the Service. The Service has jurisdiction over all 
applications for the benefits of section 902 of HRIFA as a principal 
applicant or as a dependent under this section, except for applications 
filed by aliens who are in pending immigration proceedings as provided 
in paragraph (g)(2) of this section. All applications filed with the 
Service for the benefits of section 902 of HRIFA must be submitted by 
mail to: USINS Nebraska Service Center, PO Box 87245, Lincoln, NE 68501-
7245. After proper filing of the application, the Service will instruct

[[Page 601]]

the applicant to appear for fingerprinting as prescribed in Sec. 
103.2(e) of this chapter. The Director of the Nebraska Service Center 
shall have jurisdiction over all applications filed with the Service for 
adjustment of status under section 902 of HRIFA, unless the Director 
refers the applicant for a personal interview at a local Service office 
as provided in paragraph (o)(1) of this section.
    (2) Filing of applications by aliens in pending exclusion, 
deportation, or removal proceedings. An alien who is in exclusion, 
deportation, or removal proceedings pending before the Immigration Court 
or the Board, or who has a pending motion to reopen or motion to 
reconsider filed with the Immigration Court or the Board on or before 
May 12, 1999, must apply for HRIFA benefits to the Immigration Court or 
the Board, as provided in paragraph (p)(1) of this section, rather than 
to the Service. However, an alien whose proceeding has been 
administratively closed (see paragraph (p)(4) of this section) may only 
apply for HRIFA benefits with the Service as provided in paragraph 
(g)(1) of this section.
    (3)(i) Filing of applications with the Service by aliens who are 
subject to a final order of exclusion, deportation, or removal. An alien 
who is subject to a final order of exclusion, deportation, or removal, 
and who has not been denied adjustment of status under section 902 of 
HRIFA by the Immigration Court or the Board, may only apply for HRIFA 
benefits with the Service as provided in paragraph (g)(1) of this 
section. This includes applications for HRIFA benefits filed by aliens 
who have filed a motion to reopen or motion to reconsider a final order 
after May 12, 1999.
    (ii) An alien present in the United States who is subject to a final 
order of exclusion, deportation, or removal and has been denied 
adjustment of status under section 902 of HRIFA by the Immigration Court 
or the Board, or who never applied for adjustment of status with the 
Service, an Immigration Court, or the Board on or before March 31, 2000, 
and who was made eligible for HRIFA benefits under the Legal Immigration 
Family Equity Act of 2000 (LIFE Act) and LIFE amendments, Public Law 
106-553 and Public Law 106-554, respectively, may file a motion to 
reopen with either the Immigration Court or the Board, whichever had 
jurisdiction last. As provided by the LIFE Act, motions to reopen must 
be filed on or before June 19, 2001.
    (iii) Stay of final order of exclusion, deportation, or removal. The 
filing of an application for adjustment under section 902 of HRIFA with 
the Service shall not stay the execution of such final order unless the 
applicant has requested and been granted a stay in connection with the 
HRIFA application. An alien who has filed a HRIFA application with the 
Service may file an Application for Stay of Removal (Form I-246) in 
accordance with section 241(c)(2) of the Act and Sec. 241.6 of this 
chapter.
    (iv) Grant of stay. Absent evidence of the applicant's statutory 
ineligibility for adjustment of status under section 902 of HRIFA or 
significant negative discretionary factors, a Form I-246 filed by a bona 
fide applicant for adjustment under section 902 of HRIFA shall be 
approved and the removal of the applicant shall be stayed until such 
time as the Service has adjudicated the application for adjustment in 
accordance with this section.
    (h) Application and supporting documents. Each applicant for 
adjustment of status must file an Application to Register Permanent 
Residence or Adjust Status (Form I-485). An applicant should complete 
Part 2 of Form I-485 by checking box ``h--other'' and writing ``HRIFA--
Principal'' or ``HRIFA--Dependent'' next to that block. Each application 
must be accompanied by:
    (1) Application fee. The fee for Form I-485 prescribed in Sec. 
103.7(b)(1) of this chapter;
    (2) Fingerprinting fee. If the applicant is 14 years of age or 
older, the fee for fingerprinting prescribed in Sec. 103.7(b)(1) of 
this chapter;
    (3) Identifying information. (i) A copy of the applicant's birth 
certificate or other record of birth as provided in paragraph (m) of 
this section;
    (ii) A completed Biographic Information Sheet (Form G-325A), if the 
applicant is between 14 and 79 years of age;
    (iii) A report of medical examination, as specified in Sec. 245.5 
of this chapter; and

[[Page 602]]

    (iv) Two photographs, as described in the instructions to Form I-
485;
    (4) Arrival-Departure Record. A copy of the Form I-94, Arrival-
Departure Record, issued at the time of the applicant's arrival in the 
United States, if the alien was inspected and admitted or paroled;
    (5) Police clearances. If the applicant is 14 years old or older, a 
police clearance from each municipality where the alien has resided for 
6 months or longer since arriving in the United States. If there are 
multiple local law enforcement agencies (e.g., city police and county 
sheriff) with jurisdiction over the alien's residence, the applicant may 
obtain a clearance from either agency. If the applicant resides or 
resided in a State where the State police maintain a compilation of all 
local arrests and convictions, a statewide clearance is sufficient. If 
the applicant presents a letter from the local police agencies involved, 
or other evidence, to the effect that the applicant attempted to obtain 
such clearance but was unable to do so because of local or State policy, 
the director or immigration judge having jurisdiction over the 
application may waive the local police clearance. Furthermore, if such 
local police agency has provided the Service or the Immigration Court 
with a blanket statement that issuance of such police clearance is 
against local or State policy, the director or immigration judge having 
jurisdiction over the case may waive the local police clearance 
requirement regardless of whether the applicant individually submits a 
letter from that local police agency;
    (6) Proof of Haitian nationality. If the applicant acquired Haitian 
nationality other than through birth in Haiti, a copy of the certificate 
of naturalization or certificate of citizenship issued by the Haitian 
government; and
    (7) Additional supporting evidence. Additional supporting evidence 
pertaining to the applicant as provided in paragraphs (i) through (l) of 
this section.
    (i) Evidence of presence in the United States on December 31, 1995. 
An alien seeking HRIFA benefits as a principal applicant must provide 
with the application evidence establishing the alien's presence in the 
United States on December 31, 1995. Such evidence may consist of the 
evidence listed in Sec. 245.22.
    (j) Evidence of continuity of presence in the United States since 
December 31, 1995. An alien seeking HRIFA benefits as a principal 
applicant, or as the unmarried son or daughter of a principal applicant, 
must provide with the application evidence establishing continuity of 
the alien's physical presence in the United States since December 31, 
1995. (This requirement does not apply to a dependent seeking HRIFA 
benefits as the spouse or minor child of a principal applicant.)
    (1) Evidence establishing presence. Evidence establishing the 
continuity of the alien's physical presence in the United States since 
December 31, 1995, may consist of any documentation issued by any 
governmental or nongovernmental authority, provided such evidence bears 
the name of the applicant, was dated at the time it was issued, and 
bears the signature, seal, or other authenticating instrument of the 
authorized representative of the issuing authority, if the document 
would normally contain such authenticating instrument.
    (2) Examples. Documentation establishing continuity of physical 
presence may include, but is not limited to:
    (i) School records;
    (ii) Rental receipts;
    (iii) Utility bill receipts;
    (iv) Any other dated receipts;
    (v) Personal checks written by the applicant bearing a dated bank 
cancellation stamp;
    (vi) Employment records, including pay stubs;
    (vii) Credit card statements showing the dates of purchase, payment, 
or other transaction;
    (viii) Certified copies of records maintained by organizations 
chartered by the Federal or State government, such as public utilities, 
accredited private and religious schools, and banks;
    (ix) If the applicant establishes that a family unit was in 
existence and cohabiting in the United States, documents evidencing 
presence of another member of that same family unit; and
    (x) For applicants who have had ongoing correspondence or other 
interaction with the Service, a list of the types and dates of such 
correspondence

[[Page 603]]

or other contact that the applicant knows to be contained or reflected 
in Service records.
    (3) Evidence relating to absences from the United States since 
December 31, 1995. If the alien is applying as a principal applicant, or 
as the unmarried son or daughter of a principal applicant, and has 
departed from and returned to the United States since December 31, 1995, 
the alien must provide with the application an attachment on a plain 
piece of paper showing:
    (i) The date of the applicant's last arrival in the United States 
before December 31, 1995;
    (ii) The date of each departure (if any) from the United States 
since that arrival;
    (iii) The reason for each departure; and
    (iv) The date, manner, and place of each return to the United 
States.
    (k) Evidence establishing the alien's eligibility under section 
902(b) of HRIFA. An alien seeking HRIFA benefits as a principal 
applicant must provide with the application evidence establishing that 
the alien satisfies one of the eligibility standards described in 
paragraph (b)(1) of this section.
    (1) Applicant for asylum. If the alien is a principal applicant who 
filed for asylum before December 31, 1995, the applicant must provide 
with the application either:
    (i) A photocopy of the first page of the Application for Asylum and 
Withholding of Removal (Form I-589); or
    (ii) If the alien is not in possession of a photocopy of the first 
page of the Form I-589, a statement to that effect giving the date of 
filing and the location of the Service office or Immigration Court at 
which it was filed;
    (2) Parolee. If the alien is a principal applicant who was paroled 
into the United States prior to December 31, 1995, after having been 
identified as having a credible fear of persecution, or paroled for 
emergent reasons or reasons deemed strictly in the public interest, the 
applicant must provide with the application either:
    (i) A photocopy of the Arrival-Departure Record (Form I-94) issued 
when he or she was granted parole; or
    (ii) If the alien is not in possession of the original Form I-94, a 
statement to that effect giving the date of parole and the location of 
the Service port-of-entry at which parole was authorized.
    (3) Child without parents. If the alien is a principal applicant who 
arrived in the United States as a child without parents in the United 
States, the applicant must provide with the application:
    (i) Evidence, showing the date, location, and manner of his or her 
arrival in the United States, such as:
    (A) A photocopy of the Form I-94 issued at the time of the alien's 
arrival in the United States;
    (B) A copy of the airline or vessel records showing transportation 
to the United States;
    (C) Other similar documentation; or
    (D) If none of the documents in paragraphs (k)(3)(i)(A)-(C) of this 
section are available, a statement from the applicant, accompanied by 
whatever evidence the applicant is able to submit in support of that 
statement; and
    (ii) Evidence establishing the absence of the child's parents, which 
may include either:
    (A) Evidence showing the deaths of, or disappearance or desertion 
by, the applicant's parents; or
    (B) Evidence showing that the applicant's parents did not live in 
the United States with the applicant. Such evidence may include, but is 
not limited to, documentation or affidavits showing that the applicant's 
parents have been continuously employed outside the United States, are 
deceased, disappeared, or abandoned the applicant prior to the 
applicant's arrival, or were otherwise engaged in activities showing 
that they were not in the United States, or (if they have been in the 
United States) that the applicant and his or her parents did not reside 
together.
    (4) Orphaned child. If the alien is a principal applicant who is or 
was a child who became orphaned subsequent to arrival in the United 
States, the applicant must provide with the application:
    (i) Evidence, showing the date, location, and manner of his or her 
arrival in the United States, such as:
    (A) A photocopy of the Form I-94 issued at the time of the alien's 
arrival in the United States;

[[Page 604]]

    (B) A copy of the airline or vessel records showing transportation 
to the United States;
    (C) Other similar documentation; or
    (D) If none of the documents in paragraphs (k)(4)(i)(A)-(C) of this 
section are available, a statement from the applicant, accompanied by 
whatever evidence the applicant is able to submit in support of that 
statement; and
    (ii) Either:
    (A) The death certificates of both parents (or in the case of a 
child having only one parent, the death certificate of the sole parent) 
showing that the death or deaths occurred after the date of the 
applicant's arrival in the United States;
    (B) Evidence from a State, local, or other court or governmental 
authority having jurisdiction and authority to make decisions in matters 
of child welfare establishing the disappearance of, the separation or 
loss from, or desertion by, both parents (or, in the case of a child 
born out of wedlock who has not been legitimated, the sole parent); or
    (C) Evidence of:
    (1) Either:
    (i) The child having only a sole parent, as that term is defined in 
Sec. 204.3(b) of this chapter;
    (ii) The death of one parent; or
    (iii) Certification by competent Haitian authorities that one parent 
is presumed dead as a result of his or her disappearance, within the 
meaning of that term as set forth in Sec. 204.3(b) of this chapter; and
    (2) A copy of a written statement executed by the sole parent, or 
the sole remaining parent, irrevocably releasing all parental rights 
based upon the inability of that parent to provide proper care for the 
child.
    (5) Abandoned child. If the alien is a principal applicant who was 
abandoned by parents or guardians prior to April 1, 1998, and has 
remained abandoned since such abandonment, the applicant must provide 
with the application:
    (i) Evidence, showing the date, location, and manner of his or her 
arrival in the United States, such as:
    (A) A photocopy of the Form I-94 issued at the time of the alien's 
arrival in the United States;
    (B) A copy of the airline or vessel records showing transportation 
to the United States;
    (C) Other similar documentation; or
    (D) If none of the documents in paragraphs (k)(5)(i)(A)-(C) of this 
section are available, a statement from the applicant, accompanied by 
whatever evidence the applicant is able to submit in support of that 
statement; and
    (ii) Either:
    (A) Evidence from a State, local, or other court or governmental 
authority having jurisdiction and authority to make decisions in matters 
of child welfare establishing such abandonment; or
    (B) Evidence to establish that the applicant would have been 
considered to be abandoned according to the laws of the State where he 
or she resides, or where he or she resided at the time of the 
abandonment, had the issue been presented to the proper authorities.
    (l) Evidence relating to applications by dependents under section 
902(d) of HRIFA--(1) Evidence of spousal relationship. If the alien is 
applying as the spouse of a principal HRIFA beneficiary, the applicant 
must provide with the application a copy of their certificate of 
marriage and copies of documents showing the legal termination of all 
other marriages by the applicant or the other beneficiary.
    (2) Evidence of parent-child relationship. If the applicant is 
applying as the child, unmarried son, or unmarried daughter of a 
principal HRIFA beneficiary, and the principal beneficiary is not the 
applicant's biological mother, the applicant must provide with the 
application evidence to demonstrate the parent-child relationship 
between the principal beneficiary and the applicant. Such evidence may 
include copies of the applicant's parent's marriage certificate and 
documents showing the legal termination of all other marriages, an 
adoption decree, or other relevant evidence.
    (m) Secondary evidence. Except as otherwise provided in this 
paragraph, if the primary evidence required in this section is 
unavailable, church or school records, or other secondary evidence 
pertinent to the facts in issue, may be submitted. If such documents are 
unavailable, affidavits may be submitted. The applicant may submit as 
many

[[Page 605]]

types of secondary evidence as necessary to establish birth, marriage, 
or other relevant events. Documentary evidence establishing that primary 
evidence is unavailable must accompany secondary evidence of birth or 
marriage in the home country. The unavailability of such documents may 
be shown by submission of a copy of the written request for a copy of 
such documents which was sent to the official keeper of the records. In 
adjudicating the application for adjustment of status under section 902 
of HRIFA, the Service or immigration judge shall determine the weight to 
be given such secondary evidence. Secondary evidence may not be 
submitted in lieu of the documentation specified in paragraphs (i) or 
(j) of this section. However, subject to verification by the Service, if 
the documentation specified in this paragraph or in paragraphs 
(h)(3)(i), (i), (j), (l)(1), and (l)(2) of this section is already 
contained in the Service's file relating to the applicant, the applicant 
may submit an affidavit to that effect in lieu of the actual 
documentation.
    (n) Authorization to be employed in the United States while the 
application is pending--(1) Application for employment authorization. An 
applicant for adjustment of status under section 902 of HRIFA who wishes 
to obtain initial or continued employment authorization during the 
pendency of the adjustment application must file an Application for 
Employment Authorization (Form I-765) with the Service, including the 
fee as set forth in Sec. 103.7(b)(1) of this chapter. The applicant may 
submit Form I-765 either concurrently with or subsequent to the filing 
of the application for HRIFA benefits on Form I-485.
    (2) Adjudication and issuance. Employment authorization may not be 
issued to an applicant for adjustment of status under section 902 of 
HRIFA until the adjustment application has been pending for 180 days, 
unless the Director of the Nebraska Service Center verifies that Service 
records contain evidence that the applicant meets the criteria set forth 
in section 902(b) or 902(d) of HRIFA, and determines that there is no 
indication that the applicant is clearly ineligible for adjustment of 
status under section 902 of HRIFA, in which case the Director may 
approve the application for employment authorization, and issue the 
resulting document, immediately upon such verification. If the Service 
fails to adjudicate the application for employment authorization upon 
expiration of the 180-day waiting period, or within 90 days of the 
filing of application for employment authorization, whichever comes 
later, the alien shall be eligible for interim employment authorization 
in accordance with Sec. 274a.13(d) of this chapter. Nothing in this 
section shall preclude an applicant for adjustment of status under HRIFA 
from being granted an initial employment authorization or an extension 
of employment authorization under any other provision of law or 
regulation for which the alien may be eligible.
    (o) Adjudication of HRIFA applications filed with the Service--(1) 
Referral for interview. Except as provided in paragraphs (o)(2) and 
(o)(3) of this section, all aliens filing applications for adjustment of 
status with the Service under this section must be personally 
interviewed by an immigration officer at a local office of the Service. 
If the Director of the Nebraska Service Center determines that an 
interview of the applicant is necessary, the Director shall forward the 
case to the appropriate local Service office for interview and 
adjudication.
    (2) Approval without interview. Upon examination of the application, 
including all other evidence submitted in support of the application, 
all relevant Service records and all other relevant law enforcement 
indices, the Director may approve the application without an interview 
if the Director determines that:
    (i) The alien's claim to eligibility for adjustment of status under 
section 902 of HRIFA is verified through existing Service records; and
    (ii) The alien is clearly eligible for adjustment of status.
    (3) Denial without interview. If, upon examination of the 
application, all supporting documentation, all relevant Service records, 
and all other relevant law enforcement indices, the Director determines 
that the alien is clearly ineligible for adjustment of status under

[[Page 606]]

HRIFA and that an interview of the applicant is not necessary, the 
Director may deny the application.
    (p) Adjudication of HRIFA applications filed in pending exclusion, 
deportation, or removal proceedings--(1) Proceedings pending before an 
Immigration Court. Except as provided in paragraph (p)(4) of this 
section, the Immigration Court shall have sole jurisdiction over an 
application for adjustment of status under this section filed by an 
alien who is in exclusion, deportation, or removal proceedings pending 
before an immigration judge or the Board, or who has a pending motion to 
reopen or motion to reconsider filed with an immigration judge or the 
Board on or before May 12, 1999. The immigration judge having 
jurisdiction over the exclusion, deportation, or removal proceedings 
shall have jurisdiction to accept and adjudicate any application for 
adjustment of status under section 902 of HRIFA during the course of 
such proceedings. All applications for adjustment of status under 
section 902 of HRIFA filed with an Immigration Court shall be subject to 
the requirements of Sec. Sec. 3.11 and 3.31 of this chapter.
    (2) Motion to reopen or motion to reconsider. If an alien who has a 
pending motion to reopen or motion to reconsider timely filed with an 
immigration judge on or before May 12, 1999, files an application for 
adjustment of status under section 902 of HRIFA, the immigration judge 
shall reopen the alien's proceedings for consideration of the adjustment 
application, unless the alien is clearly ineligible for adjustment of 
status under section 902 of HRIFA.
    (3) Proceedings pending before the Board. Except as provided in 
paragraph (d)(4) of this section, in the case of an alien who either has 
a pending appeal with the Board or has a pending motion to reopen or 
motion to reconsider timely filed with the Board on or before May 12, 
1999, the Board shall remand, or reopen and remand, the proceedings to 
the Immigration Court for the sole purpose of adjudicating an 
application for adjustment of status under section 902 of HRIFA, unless 
the alien is clearly ineligible for adjustment of status under section 
902 of HRIFA. If the immigration judge denies, or the alien fails to 
file, the application for adjustment of status under section 902 of 
HRIFA, the immigration judge shall certify the decision to the Board for 
consideration in conjunction with the applicant's previously pending 
appeal or motion.
    (4) Administrative closure of exclusion, deportation, or removal 
proceedings. (i) An alien who is in exclusion, deportation, or removal 
proceedings, or who has a pending motion to reopen or a motion to 
reconsider such proceedings filed on or before May 12, 1999, may request 
that the proceedings be administratively closed, or that the motion be 
indefinitely continued, in order to allow the alien to file such 
application with the Service as prescribed in paragraph (g) of this 
section. If the alien appears to be eligible to file an application for 
adjustment of status under this section, the Immigration Court or the 
Board (whichever has jurisdiction) shall, with the concurrence of the 
Service, administratively close the proceedings or continue indefinitely 
the motion.
    (ii) In the case of an otherwise-eligible alien whose exclusion, 
deportation, or removal proceedings have been administratively closed 
for reasons not specified in this section, the alien may only apply 
before the Service for adjustment of status under this section.
    (q) Approval of HRIFA applications--(1) Applications approved by the 
Service. If the Service approves the application for adjustment of 
status under the provisions of section 902 of HRIFA, the director shall 
record the alien's lawful admission for permanent residence as of the 
date of such approval and notify the applicant accordingly. The director 
shall also advise the alien regarding the delivery of his or her 
Permanent Resident Card and of the process for obtaining temporary 
evidence of alien registration. If the alien had previously been issued 
a final order of exclusion, deportation, or removal, such order shall be 
deemed canceled as of the date of the director's approval of the 
application for adjustment of status. If the alien had been in 
exclusion, deportation, or removal proceedings that were 
administratively closed, such proceedings shall be deemed terminated as

[[Page 607]]

of the date of approval of the application for adjustment of status by 
the director.
    (2) Applications approved by an immigration judge or the Board. If 
an immigration judge or (upon appeal) the Board grants an application 
for adjustment under the provisions of section 902 of HRIFA, the date of 
the alien's lawful admission for permanent residence shall be the date 
of such grant.
    (r) Review of decisions by the Service denying HRIFA applications--
(1)(i) Denial notification. If the Service denies the application for 
adjustment of status under the provisions of section 902 of HRIFA, the 
director shall notify the applicant of the decision and of any right to 
renew the application in proceedings before the Immigration Court.
    (ii) An alien made eligible for adjustment of status under HRIFA by 
the LIFE Act amendments and whose case has not been referred to EOIR 
under paragraphs (r)(2) or (r)(3) of this section, may file a motion to 
reopen with the Service.
    (2) Renewal of application for HRIFA benefits in removal, 
deportation, or exclusion proceedings. An alien who is not the subject 
of a final order of removal, deportation, or exclusion may renew his or 
her application for adjustment under section 902 of HRIFA during the 
course of such removal, deportation, or exclusion proceedings.
    (i) Initiation of removal proceedings. In the case of an alien who 
is not maintaining valid nonimmigrant status and who had not previously 
been placed in exclusion, deportation, or removal proceedings, the 
director shall initiate removal proceedings in accordance with Sec. 
239.1 of this chapter.
    (ii) Recalendaring or reinstatement of prior proceedings. In the 
case of an alien whose previously initiated exclusion, deportation, or 
removal proceeding had been administratively closed or continued 
indefinitely under paragraph (p)(4) of this section, the director shall 
make a request for recalendaring or reinstatement to the Immigration 
Court that had administratively closed the proceeding, or the Board, as 
appropriate, when the application has been denied. The Immigration Court 
or the Board will then recalendar or reinstate the prior exclusion, 
deportation, or removal proceeding.
    (iii) Filing of renewed application. A principal alien may file a 
renewed application for HRIFA benefits with the Immigration Court either 
before or after March 31, 2000, if he or she had filed his or her 
initial application for such benefits with the Service on or before 
March 31, 2000. A dependent of a principal applicant may file such 
renewed application with the Immigration Court either before or after 
March 31, 2000, regardless of when he or she filed his or her initial 
application for HRIFA benefits with the Service.
    (3) Aliens with final orders. In the case of an alien who is the 
subject of an outstanding final order of exclusion, deportation, or 
removal, the Service shall refer the decision to deny the application by 
filing a Notice of Certification (Form I-290C) with the Immigration 
Court that issued the final order for consideration in accordance with 
paragraph (s) of this section.
    (4)(i) An alien whose case has been referred to the Immigration 
Court under paragraphs (r)(2) or (r)(3) of this section, or who filed an 
appeal with the Board after his or her application for adjustment of 
status under section 902 of HRIFA was denied, and whose proceedings are 
pending, and who is now eligible for adjustment of status under HRIFA as 
amended by section 1505(b) of the LIFE Act and its amendments, may renew 
the application for adjustment of status with either the Immigration 
Court or the Board, whichever has jurisdiction. The application will be 
adjudicated in accordance with section 1505(b) of the LIFE Act and its 
amendments.
    (ii) An alien present in the United States who is subject to a final 
order of exclusion, deportation or removal after his or her HRIFA 
adjustment application was denied by an Immigration Court or the Board, 
but who was made eligible for HRIFA adjustment as a result of section 
1505(b) of the LIFE Act and its amendments, may file a motion to reopen 
with either the Immigration Court or the Board, whichever had 
jurisdiction last. Such motion to reopen must be filed on or before June 
19, 2001.

[[Page 608]]

    (s) Action on decisions referred to the Immigration Court by a 
Notice of Certification (Form I-290C)--(1) General. Upon the referral by 
a Notice of Certification (Form I-290C) of a decision to deny the 
application, in accordance with paragraph (r)(3) of this section, the 
immigration judge shall conduct a hearing, under the authority contained 
in Sec. 3.10 of this chapter, to determine whether the alien is 
eligible for adjustment of status under section 902 of HRIFA. Such 
hearing shall be conducted under the same rules of procedure as 
proceedings conducted under part 240 of this chapter, except the scope 
of review shall be limited to a determination of the alien's eligibility 
for adjustment of status under section 902 of HRIFA. During such 
proceedings, all parties are prohibited from raising or considering any 
unrelated issues, including, but not limited to, issues of 
admissibility, deportability, removability, and eligibility for any 
remedy other than adjustment of status under section 902 of HRIFA. 
Should the alien fail to appear for such hearing, the immigration judge 
shall deny the application for adjustment under section 902 of HRIFA.
    (2) Stay pending review. When the Service refers a decision to the 
Immigration Court on a Notice of Certification (Form I-290C) in 
accordance with paragraph (r)(3) of this section, the referral shall not 
stay the execution of the final order. Execution of such final order 
shall proceed unless a stay of execution is specifically granted by the 
immigration judge, the Board, or an authorized Service officer.
    (3) Appeal of Immigration Court decision. Once the immigration judge 
issues his or her decision on the application, either the alien or the 
Service may appeal the decision to the Board. Such appeal must be filed 
pursuant to the requirements for appeals to the Board from an 
Immigration Court decision set forth in Sec. Sec. 3.3 and 3.8 of this 
chapter.
    (4) Rescission or reopening of the decision of an Immigration Court. 
The decision of an Immigration Court under paragraph (s)(1) of this 
section denying an application for adjustment under section 902 of HRIFA 
for failure to appear may be rescinded or reopened only:
    (i) Upon a motion to reopen filed within 180 days after the date of 
the denial if the alien demonstrates that the failure to appear was 
because of exceptional circumstances as defined in section 240(e)(1) of 
the Act;
    (ii) Upon a motion to reopen filed at any time if the alien 
demonstrates that he or she did not receive notice of the hearing in 
person (or, if personal service was not practicable, through service by 
mail to the alien or to the alien's counsel of record, if any) or the 
alien demonstrates that he or she was in Federal or State custody and 
the failure to appear was through no fault of the alien; or
    (iii) Upon a motion to reopen filed not later than June 19, 2001, by 
an alien present in the United States who became eligible for adjustment 
of status under HRIFA, as amended by section 1505, of Public Law 106-
554.
    (t) Parole authorization for purposes of travel--(1) Travel from and 
return to the United States while the application for adjustment of 
status is pending. If an applicant for benefits under section 902 of 
HRIFA desires to travel outside, and return to, the United States while 
the application for adjustment of status is pending, he or she must file 
a request for advance parole authorization on an Application for Travel 
Document (Form I-131), with fee as set forth in Sec. 103.7(b)(1) of 
this chapter and in accordance with the instructions on the form. If the 
alien is either in deportation or removal proceedings, or subject to a 
final order of deportation or removal, the Form I-131 must be submitted 
to the Director, Office of International Affairs; otherwise the Form I-
131 must be submitted to the Director of the Nebraska Service Center, 
who shall have jurisdiction over such applications. Unless the applicant 
files an advance parole request prior to departing from the United 
States, and the Service approves such request, his or her application 
for adjustment of status under section 902 of HRIFA is deemed to be 
abandoned as of the moment of his or her departure. Parole may only be 
authorized pursuant to the authority contained in, and the standards 
prescribed in, section 212(d)(5) of the Act.

[[Page 609]]

    (2) Parole authorization for the purpose of filing an application 
for adjustment of status under section 902 of HRIFA. (i) An otherwise 
eligible applicant who is outside the United States and wishes to come 
to the United States in order to apply for benefits under section 902 of 
HRIFA may request parole authorization for such purpose by filing an 
Application for Travel Document (Form I-131) with the Nebraska Service 
Center, at P.O. Box 87245, Lincoln, NE 68501-7245. Such application must 
be supported by a photocopy of the Form I-485 that the alien will file 
once he or she has been paroled into the United States. The applicant 
must include photocopies of all the supporting documentation listed in 
paragraph (h) of this section, except the filing fee, the medical 
report, the fingerprint card, and the local police clearances.
    (ii) If the Director of the Nebraska Service Center is satisfied 
that the alien will be eligible for adjustment of status once the alien 
has been paroled into the United States and files the application, he or 
she may issue an Authorization for Parole of an Alien into the United 
States (Form I-512) to allow the alien to travel to, and be paroled 
into, the United States for a period of 60 days.
    (iii) The applicant shall have 60 days from the date of parole to 
file the application for adjustment of status. If the alien files the 
application for adjustment of status within that 60-day period, the 
Service may re-parole the alien for such time as is necessary for 
adjudication of the application. Failure to file such application for 
adjustment of status within 60 days shall result in the alien being 
returned to the custody of the Service and being examined as an arriving 
alien applying for admission. Such examination will be conducted in 
accordance with the provisions of section 235(b)(1) of the Act if the 
alien is inadmissible under section 212(a)(6)(C) or 212(a)(7) of the 
Act, or section 240 of the Act if the alien is inadmissible under any 
other grounds.
    (iv) Parole may only be authorized pursuant to the authority 
contained in, and the standards prescribed in, section 212(d)(5) of the 
Act. The authority of the Director of the Nebraska Service Center to 
authorize parole from outside the United States under this provision 
shall expire on March 31, 2000.
    (3) Effect of departure on an outstanding warrant of exclusion, 
deportation, or removal. If an alien who is the subject of an 
outstanding final order of exclusion, deportation, or removal departs 
from the United States, with or without an advance parole authorization, 
such final order shall be executed by the alien's departure. The 
execution of such final order shall not preclude the applicant from 
filing an Application for Permission to Reapply for Admission Into the 
United States After Deportation or Removal (Form I-212) in accordance 
with Sec. 212.2 of this chapter.
    (u) Tolling the physical presence in the United States provision for 
certain individuals--(1) Departure with advance authorization for 
parole. In the case of an alien who departed the United States after 
having been issued an Authorization for Parole of an Alien into the 
United States (Form I-512), and who returns to the United States in 
accordance with the conditions of that document, the physical presence 
in the United States requirement of section 902(b)(1) of HRIFA is tolled 
while the alien is outside the United States pursuant to the issuance of 
the Form I-512.
    (2) Request for parole authorization from outside the United States. 
In the case of an alien who is outside the United States and submits an 
application for parole authorization in accordance with paragraph (t)(2) 
of this section, and such application for parole authorization is 
granted by the Service, the physical presence requirement contained in 
section 902(b)(1) of HRIFA is tolled from the date the application is 
received at the Nebraska Service Center until the alien is paroled into 
the United States pursuant to the issuance of the Form I-512.
    (3) Departure without advance authorization for parole. In the case 
of an otherwise-eligible applicant who departed the United States on or 
before December 31, 1998, the physical presence in the United States 
provision of section 902(b)(1) of HRIFA is tolled as of October 21, 
1998, and until July 12, 1999.
    (v) Judicial review of HRIFA adjustment of status determinations. 
Pursuant to the provisions of section 902(f) of

[[Page 610]]

HRIFA, there shall be no judicial appeal or review of any administrative 
determination as to whether the status of an alien should be adjusted 
under the provisions of section 902 of HRIFA.

[64 FR 25767, May 12, 1999, as amended at 65 FR 15844, Mar. 24, 2000; 66 
FR 29452, May 1, 2001; 67 FR 78673, Dec. 26, 2002]



Sec. 245.18  How can physicians (with approved Forms I-140) that are serving 

in medically underserved areas or at a Veterans Affairs facility adjust 

status?

    (a) Which physicians are eligible for this benefit? Any alien 
physician who has been granted a national interest waiver under Sec. 
204.12 of this chapter may submit Form I-485 during the 6-year period 
following Service approval of a second preference employment-based 
immigrant visa petition.
    (b) Do alien physicians have special time-related requirements for 
adjustment? (1) Alien physicians who have been granted a national 
interest waiver under Sec. 204.12 of this chapter must meet all the 
adjustment of status requirements of this part.
    (2) The Service shall not approve an adjustment application filed by 
an alien physician who obtained a waiver under section 203(b)(2)(B)(ii) 
of the Act until the alien physician has completed the period of 
required service established in Sec. 204.12 of this chapter.
    (c) Are the filing procedures and documentary requirements different 
for these particular alien physicians? Alien physicians submitting 
adjustment applications upon approval of an immigrant petition are 
required to follow the procedures outlined within this part with the 
following modifications.
    (1) Delayed fingerprinting. Fingerprinting, as noted in the Form I-
485 instructions, will not be scheduled at the time of filing. 
Fingerprinting will be scheduled upon the physician's completion of the 
required years of service.
    (2) Delayed medical examination. The required medical examination, 
as specified in Sec. 245.5, shall not be submitted with Form I-485. The 
medical examination report shall be submitted with the documentary 
evidence noting the physician's completion of the required years of 
service.
    (d) Are alien physicians eligible for Form I-766, Employment 
Authorization Document? (1) Once the Service has approved an alien 
physician's Form I-140 with a national interest waiver based upon full-
time clinical practice in an underserved area or at a Veterans Affairs 
facility, the alien physician should apply for adjustment of status to 
that of lawful permanent resident on Form I-485, accompanied by an 
application for an Employment Authorization Document (EAD), Form I-765, 
as specified in Sec. 274a.12(c)(9) of this chapter.
    (2) Since section 203(b)(2)(B)(ii) of the Act requires the alien 
physician to complete the required employment before the Service can 
approve the alien physician's adjustment application, an alien physician 
who was in lawful nonimmigrant status when he or she filed the 
adjustment application is not required to maintain a nonimmigrant status 
while the adjustment application remains pending. Even if the alien 
physician's nonimmigrant status expires, the alien physician shall not 
be considered to be unlawfully present, so long as the alien physician 
is practicing medicine in accordance with Sec. 204.5(k)(4)(iii) of this 
chapter.
    (e) When does the Service begin counting the physician's 5-year or 
3-year medical practice requirement? Except as provided in this 
paragraph, the 6-year period during which a physician must provide the 
required 5 years of service begins on the date of the notice approving 
the Form I-140 and the national interest waiver. Alien physicians who 
have a 3-year medical practice requirement must complete their service 
within the 4-year period beginning on that date.
    (1) If the physician does not already have employment authorization 
and so must obtain employment authorization before the physician can 
begin working, then the period begins on the date the Service issues the 
employment authorization document.
    (2) If the physician formerly held status as a J-1 nonimmigrant, but 
obtained a waiver of the foreign residence requirement and a change of 
status to that of an H-1B nonimmigrant, pursuant to section 214(1) of 
the Act, as amended by section 220 of Public Law 103-416, and Sec. 
212.7(c)(9) of this chapter,

[[Page 611]]

the period begins on the date of the alien's change from J-1 to H-1B 
status. The Service will include the alien's compliance with the 3-year 
period of service required under section 214(l) in calculating the 
alien's compliance with the period of service required under section 
203(b)(2)(B)(ii)(II) of the Act and this section.
    (3) An alien may not include any time employed as a J-1 nonimmigrant 
physician in calculating the alien's compliance with the 5 or 3-year 
medical practice requirement. If an alien is still in J-1 nonimmigrant 
status when the Service approves a Form I-140 petition with a national 
interest job offer waiver, the aggregate period during which the medical 
practice requirement period must be completed will begin on the date the 
Service issues an employment authorization document.
    (f) Will the Service provide information to the physician about 
evidence and supplemental filings? The Service shall provide the 
physician with the information and the projected timetables for 
completing the adjustment process, as described in this paragraph. If 
the physician either files the Form I-485 concurrently with or waits to 
subsequently file the Form I-485 while the previously filed Form I-140 
is still pending, then the Service will given this information upon 
approval of the Form I-140. If the physician does not file the 
adjustment application until after approval of the Form I-140 visa 
petition, the Service shall provide this information upon receipt of the 
Form I-485 adjustment application.
    (1) The Service shall note the date that the medical service begins 
(provided the physician already had work authorization at the time the 
Form I-140 was filed) or the date that an employment authorization 
document was issued.
    (2) A list of the evidence necessary to satisfy the requirements of 
paragraphs (g) and (h) of this section.
    (3) A projected timeline noting the dates that the physician will 
need to submit preliminary evidence two years and 120 days into his or 
her medical service in an underserved area or VA facility, and a 
projected date six years and 120 days in the future on which the 
physician's final evidence of completed medical service will be due.
    (g) Will physicians be required to file evidence prior to the end of 
the 5 or 3-year period? (1) For physicians with a 5-year service 
requirement, no later than 120 days after the second anniversary of the 
approval of Petition for Immigrant Worker, Form I-140, the alien 
physician must submit to the Service Center having jurisdiction over his 
or her place of employment documentary evidence that proves the 
physician has in fact fulfilled at least 12 months of qualifying 
employment. This may be accomplished by submitting the following.
    (i) Evidence noted in paragraph (h) of this section that is 
available at the second anniversary of the I-140 approval.
    (ii) Documentation from the employer attesting to the fill-time 
medical practice and the date on which the physician began his or her 
medical service.
    (2) Physicians with a 3-year service requirement are not required to 
make a supplemental filing, and must only comply with the requirements 
of paragraph (h) of this section.
    (h) What evidence is needed to prove final compliance with the 
service requirement? No later than 120 days after completion of the 
service requirement established under Sec. 204.12(a) of this section, 
an alien physician must submit to the Service Center having jurisdiction 
over his or her place of employment documentary evidence that proves the 
physician has in fact satisfied the service requirement. Such evidence 
must include, but is not limited to:
    (1) Individual Federal income tax returns, including copies of the 
alien'sW-2 forms, for the entire 3-year period or the balance years of 
the 5-year period that follow the submission of the evidence required in 
paragraph (e) of this section;
    (2) Documentation from the employer attesting to the full-time 
medical service rendered during the required aggregate period. The 
documentation shall address instances of breaks in employment, other 
than routine breaks such as paid vacations;
    (3) If the physician established his or her own practice, documents 
noting

[[Page 612]]

the actual establishment of the practice, including incorporation of the 
medical practice (if incorporated), the business license, and the 
business tax returns and tax withholding documents submitted for the 
entire 3 year period, or the balance years of the 5-year period that 
follow the submission of the evidence required in paragraph (e) of this 
section.
    (i) What if the physician does not comply with the requirements of 
paragraphs (f) and (g) of this section? If an alien physician does not 
submit (in accordance with paragraphs (f) and (g) of this section) proof 
that he or she has completed the service required under 8 CFR 204.12(a), 
USCIS shall serve the alien physician with a written notice of intent to 
deny the alien physician's application for adjustment of status and, 
after the denial is finalized, to revoke approval of the Form I-140 and 
national interest waiver. The written notice shall require the alien 
physician to provide the evidence required by paragraph (f) or (g) of 
this section. If the alien physician fails to submit the evidence within 
the allotted time, USCIS shall deny the alien physician's application 
for adjustment of status and shall revoke approval of the Form I-140 and 
of the national interest waiver.
    (j) Will a Service officer interview the physician? (1) Upon 
submission of the evidence noted in paragraph (h) of this section, the 
Service shall match the documentary evidence with the pending form I-485 
and schedule the alien physician for fingerprinting at an Application 
Support Center.
    (2) The local Service office shall schedule the alien for an 
adjustment interview with a Service officer, unless the Service waives 
the interview as provided in Sec. 245.6. The local Service office shall 
also notify the alien if supplemental documentation should either be 
mailed to the office, or brought to the adjustment interview.
    (k) Are alien physicians allowed to travel outside the United States 
during the mandatory 3 or 5-year service period? An alien physician who 
has been granted a national interest waiver under Sec. 204.12 of this 
chapter and has a pending application for adjustment of status may 
travel outside of the United States during the required 3 or 5-year 
service period by obtaining advanced parole prior to traveling. Alien 
physicians may apply for advanced parole by submitting form I-131, 
Application for Travel Document, to the Service office having 
jurisdiction over the alien physician's place of business.
    (l) What if the Service denies the adjustment application? If the 
Service denies the adjustment application, the alien physician may renew 
the application in removal proceedings.

[65 FR 53895, Sept. 6, 2000; 65 FR 57861, Sept. 26, 2000; 65 FR 57944, 
Sept. 27, 2000; 67 FR 49563, July 31, 2002; 72 FR 19107, Apr. 17, 2007]



Sec. 245.20  Adjustment of status of Syrian asylees under Public Law 106-378.

    (a) Eligibility. An alien is eligible to apply to adjust status 
under Public Law 106-378 if the alien is:
    (1) A Jewish national of Syria;
    (2) Arrived in the United States after December 31, 1991, after 
being permitted by the Syrian Government to depart from Syria;
    (3) Is physically present in the United States at the time of filing 
the application to adjust status;
    (4) Applies for adjustment of status no later than October 26, 2001, 
or has a pending application for adjustment of status under the Act that 
was filed with the Service before October 27, 2000;
    (5) Has been physically present in the United States for at least 1 
year after being granted asylum;
    (6) Has not firmly resettled in any foreign country; and
    (7) Is admissible as an immigrant under the Act at the time of 
examination for adjustment.
    (b) Qualified family members. The spouse, child, or unmarried son or 
daughter of an alien eligible for adjustment under Public Law 106-378 is 
eligible to apply for adjustment of status under this section if the 
alien meets the criteria set forth in paragraphs (a)(4) through (a)(7) 
of this section.
    (c) Grounds not to be applied and waivers. The grounds of 
inadmissibility found at section 212(a)(4) of the Act, relating to 
public charge, and at section 212(a)(7)(A) of the Act, relating to 
documentation, do not apply to applicants for adjustment of status under 
Public

[[Page 613]]

Law 106-378. Applicants may also request the waivers found at sections 
212(h), (i), and (k) of the Act, to the extent they are eligible.
    (d) Application.--(1) New applications. An applicant must submit 
From I-485, Application to Register Permanent Residence or Adjust 
Status, along with the appropriate application fee as stated in Sec. 
103.7(b)(1) of this chapter, to the Nebraska Service Center. The 
application must physically be received by the Nebraska Service Center 
no later than close of business on October 26, 2001. Applicants 14 years 
of age or older must also submit the fingerprinting service fee provided 
for in Sec. 103.7(b)(1) of this chapter. Each application filed must be 
accompanied by two photographs as described in the Form I-485 
instructions; a completed Biographic Information Sheet (Form G-325A) if 
the applicant is between 14 and 79 years of age; and a report of medical 
examination (Form I-693 and vaccination supplement) as specified in 8 
CFR 245.5. On Form I-485, Part 2, question ``h'', applicants must write 
``SYRIAN ASYLEE--P.L. 106-378'' to indicate that they are applying based 
on this provision.
    (2) Filing of requests to change the basis of a pending Form I-485--
(i) Request. An eligible Syrian national with a Form I-485 that is 
currently pending with the Service may request that the basis of his or 
her Form I-485 be changed to Public Law 106-378. The alien must submit 
this request in writing to the Nebraska Service Center. The request may 
only be granted if the 2,000 adjustment limit specified in paragraph (i) 
of this section has not yet been reached. The 2,000 adjustment limit 
includes both new and pending Form I-485 petitions. The applicant should 
clearly annotate ``SYRIAN ASYLEE P.L. 106-378'' on the envelope to 
identify the correspondence.
    (ii) Time limit. If the Form I-485 was filed before October 27, 
2000, there is no time limit for requesting a change of basis for 
adjustment of status. However, if the Form I-485 was filed on or after 
October 27, 2001, then the Service must receive the request for change 
of basis no later than October 27, 2001.
    (e) Evidence. Applicants must submit evidence that demonstrates they 
are eligible for adjustment of status under Public Law 106-378. Required 
evidence includes the following:
    (1) A copy of the alien's passport;
    (2) A copy of the applicant's Arrival-Departure Record (Form I-94) 
or other evidence of inspection and admission or parole into the United 
States after December 31, 1991;
    (3) Documentation including, but not limited to, those listed at 
Sec. 245.15(j)(2) to establish physical presence in the United States 
for at least 1 year after being granted asylum;
    (4) If the applicant is the spouse of a principal alien applying for 
adjustment, he or she must submit a marriage certificate, if available, 
or other evidence to demonstrate the marriage; and
    (5) If the applicant is the child of a principal alien applying for 
adjustment of status, he or she must submit a birth certificate, if 
available, or other evidence to demonstrate the relationship.
    (f) Employment authorization. Applicants who want to obtain 
employment authorization based on a pending application for adjustment 
of status under Public Law 106-378 may submit Form I-765, Application 
for Employment Authorization, along with the application fee listed in 
Sec. 103.7(b)(1) of this chapter. If the Service approves the 
application for employment authorization, the applicant will be issued 
an employment authorization document.
    (g) Travel while an application to adjust status is pending. 
Applicants who wish to travel abroad and re-enter the United States 
while an application for adjustment of status is pending without being 
considered to have abandoned that application must obtain advance parole 
prior to departing the United States. To obtain advance parole, 
applicants must file Form I-131, Application for a Travel Document, 
along with the application fee listed in Sec. 103.7(b)(1) of this 
chapter. If the Service approves Form I-131, the alien will be issued 
Form I-512, Authorization for the Parole of an Alien into the United 
States.
    (h) Approval and date of admission as a lawful permanent resident. 
When the Service approves an application to adjust status to that of 
lawful permanent resident based on Public Law 106-378,

[[Page 614]]

the applicant will be notified in writing of the Service's decision. In 
addition, the record of the alien's admission as a lawful permanent 
resident will be recorded as of the date 1 year before the approval of 
the application.
    (i) Number of adjustments under Public Law 106-378. No more than 
2,000 aliens may have their status adjusted to that of lawful permanent 
resident under Public Law 106-378.
    (j) Notice of Denial--(1) General. When the Service denies an 
application to adjust status to that of lawful permanent resident based 
on Public Law 106-378, the applicant will be notified of the decision 
and the reason for the denial in writing.
    (2) Cases involving requests to change the basis of a pending Form 
I-485. If an applicant who requested that a pending Form I-485, be 
considered under Public Law 106-378, is found to be ineligible under 
Public Law 106-378, but he or she appears eligible for adjustment under 
the original section of the Act under which the Form I-485 was filed, 
the Service will provide the applicant with notice of this fact. 
Processing the Form I-485 under the original provision of law will 
resume as appropriate.
    (k) Administrative review. An alien whose application for adjustment 
of status under Public Law 106-378 is denied by the Service may not 
appeal the decision. However, the denial will be without prejudice to 
the alien's right to renew the application in proceedings under 8 CFR 
part 240 provided that the 2,000 statutory limit on such adjustments has 
not yet been reached.

[66 FR 27448, May 17, 2001]



Sec. 245.21  Adjustment of status of certain nationals of Vietnam, Cambodia, 

and Laos (section 586 of Public Law 106-429).

    (a) Eligibility. The Service may adjust the status to that of a 
lawful permanent resident, a native or citizen of Vietnam, Cambodia, or 
Laos who:
    (1) Was inspected and paroled into the United States before October 
1, 1997;
    (2) Was paroled into the United States from Vietnam under the 
auspices of the Orderly Departure Program (ODP), a refugee camp in East 
Asia, or a displaced person camp administered by the United Nations High 
Commissioner for Refugees (UNHCR) in Thailand;
    (3) Was physically present in the United States prior to and on 
October 1, 1997;
    (4) Files an application for adjustment of status in accordance with 
paragraph (b) of this section during the 3-year application period; and
    (5) Is otherwise eligible to receive an immigrant visa and is 
otherwise admissible as an immigrant to the United States except as 
provided in paragraphs (e) and (f) of this section.
    (b) Applying for benefits under section 586 of Public Law 106-429--
(1) Application period. The application period lasts from January 27, 
2003 until January 25, 2006. The Service will accept applications 
received after the end of the application period, but only if the 5,000 
limit on adjustments has not been reached prior to the end of the three-
year application period, and the application bears an official postmark 
dated on or before the final day of the application period. Postmarks 
will be evaluated in the following manner:
    (i) If the postmark is illegible or missing, the Service will 
consider the application to be timely filed if it is received on or 
before 3 business days after the end of the application period.
    (ii) In all instances, the burden of proof is on the applicant to 
establish timely filing of an application.
    (2) Application. An alien must be physically present in the United 
States to apply for adjustment of status under section 586 of Public Law 
106-429. An applicant must submit Form I-485, Application to Register 
Permanent Residence or Adjust Status, along with the appropriate 
application fee contained in Sec. 103.7(b)(1) of this chapter. 
Applicants who are 14 through 79 years of age must also submit the 
fingerprinting service fee provided for in Sec. 103.7(b)(1) of this 
chapter. Each application filed must be accompanied by evidence 
establishing eligibility as provided in paragraph (g) of this section; 
two photographs as described in the Form I-485 instructions; a completed 
Biographic Information Sheet (Form G-325A) if the applicant is between 
14 and 79 years of age; a report of medical

[[Page 615]]

examination (Form I-693 and vaccination supplement) specified in Sec. 
245.5; and, if needed, an application for waiver of inadmissibility. 
Under Part 2, question h of Form I-485, applicants must write 
``INDOCHINESE PAROLEE P.L. 106-429''. Applications must be sent to: INS 
Nebraska Service Center, P.O. Box 87485, Lincoln NE 68501-7485.
    (c) Applications from aliens in immigration proceedings. An alien in 
pending immigration proceedings who believes he or she is eligible for 
adjustment of status under section 586 of Public Law 106-429 must apply 
directly to the Service in accordance with paragraph (b) of this 
section. An immigration judge or the Board of Immigration Appeals may 
not adjudicate applications for adjustment of status under this section. 
An alien who is currently in immigration proceedings who alleges 
eligibility for adjustment of status under section 586 of Public Law 
106-429 may contact Service counsel after filing an application to 
request the consent of the Service to the filing of a joint motion for 
administrative closure. Unless the Service consents to such a motion, 
the immigration judge or the Board may not defer or dismiss the 
proceeding in connection with section 586 of Public Law 106-429.
    (d) Applications from aliens with final orders of removal, 
deportation, or exclusion. An alien with a final order of removal, 
deportation, or exclusion who believes he or she is eligible for 
adjustment of status under section 586 of Public Law 106-429 must apply 
directly to the Service in accordance with paragraph (b) of this 
section.
    (1) An application under this section does not automatically stay 
the order of removal, deportation, or exclusion. An alien who is 
eligible for adjustment of status under section 586 of Public Law 106-
429 may request that the district director with jurisdiction over the 
alien grant a stay of removal during the pendency of the application. 
The regulations governing such a request are found at 8 CFR 241.6.
    (2) The Service in general will exercise its discretion not to grant 
a stay of removal, deportation, or exclusion with respect to an alien 
who is inadmissible on any of the grounds specified in paragraph (m)(3) 
of this section, unless there is substantial reason to believe that the 
Service will grant the necessary waivers of inadmissibility.
    (3) An immigration judge or the Board may not grant a motion to re-
open or stay in connection with an application under this section.
    (4) If the Service approves the application, the approval will 
constitute the automatic re-opening of the alien's immigration 
proceedings, vacating of the final order of removal, deportation, or 
exclusion, and termination of the reopened proceedings.
    (e) Grounds of inadmissibility that do not apply. In making a 
determination of whether an applicant is otherwise eligible for 
admission to the United States for lawful permanent residence under the 
provisions of section 586 of Public Law 106-429, the grounds of 
inadmissibility under sections 212(a)(4), (a)(5), (a)(7)(A), and (a)(9) 
of the Act shall not apply.
    (f) Waiver of grounds of inadmissibility. In connection with an 
application for adjustment of status under this section, the alien may 
apply for a waiver of the grounds of inadmissibility under sections 
212(a)(1), (a)(6)(B), (a)(6)(C), (a)(6)(F), (a)(8)(A), (a)(10)(B), and 
(a)(10)(D) of the Act as provided in section 586(c) of Public Law 106-
429, if the alien demonstrates that a waiver is necessary to prevent 
extreme hardship to the alien, or to the alien's spouse, parent, son or 
daughter who is a U.S. citizen or an alien lawfully admitted for 
permanent residence. In addition, the alien may apply for any other 
waiver of inadmissibility under section 212 of the Act, if eligible. In 
order to obtain a waiver for any of these grounds, an applicant must 
submit Form I-601, Application for Waiver of Grounds of Excludability, 
with the application for adjustment.
    (g) Evidence. Applicants must submit evidence that demonstrates they 
are eligible for adjustment of status under section 586 of Public Law 
106-429. Such evidence shall include the following:
    (1) A birth certificate or other record of birth;
    (2) Documentation to establish that the applicant was physically 
present in the United States on October 1, 1997, under the standards set 
forth in Sec. 245.22 of this chapter.

[[Page 616]]

    (3) A copy of the applicant's Arrival-Departure Record (Form I-94) 
or other evidence that the alien was inspected or paroled into the 
United States prior to October 1, 1997, from one of the three programs 
listed in paragraph (a)(2) of this section. Subject to verification, 
documentation pertaining to paragraph (a)(2) of this section is already 
contained in Service files and the applicant may submit an affidavit to 
that effect in lieu of actual documentation.
    (h) Employment authorization. Applicants who want to obtain 
employment authorization based on a pending application for adjustment 
of status under this section may submit Form I-765, Application for 
Employment Authorization, along with the application fee listed in 8 CFR 
103.7(b)(1). If the Service approves the application for employment 
authorization, the applicant will be issued an employment authorization 
document.
    (i) Travel while an application to adjust status is pending. An 
alien may travel abroad while an application to adjust status is 
pending. Applicants must obtain advance parole in order to avoid the 
abandonment of their application to adjust status. An applicant may 
obtain advance parole by filing Form I-131, Application for a Travel 
Document, along with the application fee listed in 8 CFR 103.7(b)(1). If 
the Service approves Form I-131, the alien will be issued Form I-512, 
Authorization for the Parole of an Alien into the United States. Aliens 
granted advance parole will still be subject to inspection at a port-of-
entry.
    (j) Approval and date of admission as a lawful permanent resident. 
When the Service approves an application to adjust status to that of 
lawful permanent resident based on section 586 of Public Law 106-429, 
the applicant will be notified in writing of the Service's decision. In 
addition, the record of the alien's admission as a lawful permanent 
resident will be recorded as of the date of the alien's inspection and 
parole into the United States, as described in paragraph (a)(1) of this 
section.
    (k) Notice of denial. When the Service denies an application to 
adjust status to that of lawful permanent resident based on section 586 
of Public Law 106-429, the applicant will be notified of the decision in 
writing.
    (l) Administrative review. An alien whose application for adjustment 
of status under section 586 of Public Law 106-429 is denied by the 
Service may appeal the decision to the Administrative Appeals Office in 
accordance with 8 CFR 103.3(a)(2).
    (m) Number of adjustments permitted under this section--(1) Limit. 
No more than 5,000 aliens may have their status adjusted to that of a 
lawful permanent resident under section 586 of Public Law 106-429.
    (2) Counting procedures. Each alien granted adjustment of status 
under this section will count towards the 5,000 limit. The Service will 
assign a tracking number, ascending chronologically by filing date, to 
all applications properly filed in accordance with paragraphs (b) and 
(g) of this section. Except as described in paragraph (m)(3) of this 
section, the Service will adjudicate applications in that order until it 
reaches 5,000 approvals under this part. Applications initially denied 
but pending on administrative appeal will retain their place in the 
queue by virtue of their tracking number, pending the Service's 
adjudication of the appeal.
    (3) Applications submitted with a request for the waiver of a ground 
of inadmissibility. In the discretion of the Service, applications that 
do not require adjudication of a waiver of inadmissibility under section 
212(a)(2), (a)(6)(B), (a)(6)(F), (a)(8)(A), or (a)(10)(D) of the Act may 
be approved and assigned numbers within the 5,000 limit before those 
applications that do require a waiver of inadmissibility under any of 
those provisions. Applications requiring a waiver of any of those 
provisions will be assigned a tracking number chronologically by the 
date of approval of the necessary waivers rather than the date of filing 
of the application.
    (4) Procedures when the 5,000 limit is reached. The Service will 
track the total number of adjustments and stop processing applications 
after the 5,000 limit has been reached. When the limit is reached, the 
Service will return any additional applications to applicants

[[Page 617]]

with a dated notice encouraging applicants to retain their application 
package and the notice in the event the 5,000 limit is expanded or 
eliminated and the alien wishes to apply again. The Service will keep an 
identifying chronological record of the application for purposes of 
processing applications under this section if the 5,000 limit 
subsequently is expanded or eliminated. If at the time the 5,000 limit 
is reached, it appears that Congress is about to pass legislation to 
expand or eliminate the cap, the Service retains the discretion to 
retain such applications and the related fees.

[67 FR 78673, Dec. 26, 2002]



Sec. 245.22  Evidence to demonstrate an alien's physical presence in the 

United States on a specific date.

    (a) Evidence. Generally, an alien who is required to demonstrate his 
or her physical presence in the United States on a specific date in 
connection with an application to adjust status to that of an alien 
lawfully admitted for permanent residence should submit evidence 
according to this section. In cases where a more specific regulation 
relating to a particular adjustment of status provision has been issued 
in the 8 CFR, such regulation is controlling to the extent that it 
conflicts with this section.
    (b) The number of documents. If no one document establishes the 
alien's physical presence on the required date, he or she may submit 
several documents establishing his or her physical presence in the 
United States prior to and after that date.
    (c) Service-issued documentation. To demonstrate physical presence 
on a specific date, the alien may submit Service-issued documentation. 
Examples of acceptable Service documentation include, but are not 
limited to, photocopies of:
    (1) Form I-94, Arrival-Departure Record, issued upon the alien's 
arrival in the United States;
    (2) Form I-862, Notice to Appear, issued by the Service on or before 
the required date;
    (3) Form I-122, Notice to Applicant for Admission Detained for 
Hearing before Immigration Judge, issued by the Service on or prior to 
the required date, placing the applicant in exclusion proceedings under 
section 236 of the Act (as in effect prior to April 1, 1997);
    (4) Form I-221, Order to Show Cause, issued by the Service on or 
prior to the required date, placing the applicant in deportation 
proceedings under section 242 or 242A (redesignated as section 238) of 
the Act (as in effect prior to April 1, 1997); or
    (5) Any application or petition for a benefit under the Act filed by 
or on behalf of the applicant on or prior to the required date that 
establishes his or her presence in the United States, or a fee receipt 
issued by the Service for such application or petition.
    (d) Government-issued documentation. To demonstrate physical 
presence on the required date, the alien may submit other government 
documentation. Other government documentation issued by a Federal, 
State, or local authority must bear the signature, seal, or other 
authenticating instrument of such authority (if the document normally 
bears such instrument), be dated at the time of issuance, and bear a 
date of issuance not later than the required date. For this purpose, the 
term Federal, State, or local authority includes any governmental, 
educational, or administrative function operated by Federal, State, 
county, or municipal officials. Examples of such other documentation 
include, but are not limited to:
    (1) A state driver's license;
    (2) A state identification card;
    (3) A county or municipal hospital record;
    (4) A public college or public school transcript;
    (5) Income tax records;
    (6) A certified copy of a Federal, State, or local governmental 
record that was created on or prior to the required date, shows that the 
applicant was present in the United States at the time, and establishes 
that the applicant sought in his or her own behalf, or some other party 
sought in the applicant's behalf, a benefit from the Federal, State, or 
local governmental agency keeping such record;
    (7) A certified copy of a Federal, State, or local governmental 
record

[[Page 618]]

that was created on or prior to the required date, that shows that the 
applicant was present in the United States at the time, and establishes 
that the applicant submitted an income tax return, property tax payment, 
or similar submission or payment to the Federal, State, or local 
governmental agency keeping such record; or
    (8) A transcript from a private or religious school that is 
registered with, or approved or licensed by, appropriate State or local 
authorities, accredited by the State or regional accrediting body, or by 
the appropriate private school association, or maintains enrollment 
records in accordance with State or local requirements or standards. 
Such evidence will only be accepted to document the physical presence of 
an alien who was in attendance and under the age of 21 on the specific 
date that physical presence in the United States is required.
    (e) Copies of records. It shall be the responsibility of the 
applicant to obtain and submit copies of the records of any other 
government agency that the applicant desires to be considered in support 
of his or her application. If the alien is not in possession of such a 
document or documents, but believes that a copy is already contained in 
the Service file relating to him or her, he or she may submit a 
statement as to the name and location of the issuing Federal, State, or 
local government agency, the type of document and the date on which it 
was issued.
    (f) Other relevant document(s) and evaluation of evidence. The 
adjudicator will consider any other relevant document(s) as well as 
evaluate all evidence submitted, on a case-by-case basis. The Service 
may require an interview when necessary.
    (g) Accuracy of documentation. In all cases, any doubts as to the 
existence, authenticity, veracity, or accuracy of the documentation 
shall be resolved by the official government record, with records of the 
Service having precedence over the records of other agencies. 
Furthermore, determinations as to the weight to be given any particular 
document or item of evidence shall be solely within the discretion of 
the adjudicating authority.

[67 FR 78674, Dec. 26, 2002]



Sec. 245.23  Adjustment of aliens in T nonimmigrant classification.

    (a) Eligibility of principal T-1 applicants. Except as described in 
paragraph (c) of this section, an alien may be granted adjustment of 
status to that of an alien lawfully admitted for permanent residence, 
provided the alien:
    (1) Applies for such adjustment;
    (2)(i) Was lawfully admitted to the United States as a T-1 
nonimmigrant, as defined in 8 CFR 214.11(a)(2); and
    (ii) Continues to hold such status at the time of application, or 
accrued 4 years in T-1 nonimmigrant status and files a complete 
application before April 13, 2009;
    (3) Has been physically present in the United States for a 
continuous period of at least 3 years since the first date of lawful 
admission as a T-1 nonimmigrant or has been physically present in the 
United States for a continuous period during the investigation or 
prosecution of acts of trafficking and the Attorney General has 
determined that the investigation or prosecution is complete, whichever 
period of time is less; provided that if the applicant has departed from 
the United States for any single period in excess of 90 days or for any 
periods in the aggregate exceeding 180 days, the applicant shall be 
considered to have failed to maintain continuous physical presence in 
the United States for purposes of section 245(l)(1)(A) of the Act;
    (4) Is admissible to the United States under the Act, or otherwise 
has been granted a waiver by USCIS of any applicable ground of 
inadmissibility, at the time of examination for adjustment;
    (5) Has been a person of good moral character since first being 
lawfully admitted as a T-1 nonimmigrant and until USCIS completes the 
adjudication of the application for adjustment of status; and
    (6)(i) Has, since first being lawfully admitted as a T-1 
nonimmigrant and until the conclusion of adjudication of the 
application, complied with any reasonable request for assistance in the 
investigation or prosecution of acts of trafficking, as defined in 8 CFR 
214.11(a), or
    (ii) Would suffer extreme hardship involving unusual and severe harm 
upon

[[Page 619]]

removal from the United States, as provided in 8 CFR 214.11(i).
    (b) Eligibility of derivative family members. A derivative family 
member of a T-1 nonimmigrant status holder may be granted adjustment of 
status to that of an alien lawfully admitted for permanent residence, 
provided:
    (1) The T-1 principal nonimmigrant has applied for adjustment of 
status under this section and meets the eligibility requirements 
described under subsection (a);
    (2) The derivative family member was lawfully admitted to the United 
States in T-2, T-3, T-4, or T-5 nonimmigrant status as the spouse, 
parent, sibling, or child of a T-1 nonimmigrant, and continues to hold 
such status at the time of application;
    (3) The derivative family member has applied for such adjustment; 
and
    (4) The derivative family member is admissible to the United States 
under the Act, or otherwise has been granted a waiver by USCIS of any 
applicable ground of inadmissibility, at the time of examination for 
adjustment.
    (c) Exceptions. An alien is not eligible for adjustment of status 
under paragraphs (a) or (b) of this section if:
    (1) The alien's T nonimmigrant status has been revoked pursuant to 8 
CFR 214.11(s);
    (2) The alien is described in sections 212(a)(3), 212(a)(10)(C), or 
212(a)(10)(E) of the Act; or
    (3) The alien is inadmissible under any other provisions of section 
212(a) of the Act and has not obtained a waiver of inadmissibility in 
accordance with 8 CFR 212.18 or 214.11(j). Where the applicant 
establishes that the victimization was a central reason for the 
applicant's unlawful presence in the United States, section 
212(a)(9)(B)(iii) of the Act is not applicable, and the applicant need 
not obtain a waiver of that ground of inadmissibility. The applicant, 
however, must submit with the Form I-485 evidence sufficient to 
demonstrate that the victimization suffered was a central reason for the 
unlawful presence in the United States. To qualify for this exception, 
the victimization need not be the sole reason for the unlawful presence 
but the nexus between the victimization and the unlawful presence must 
be more than tangential, incidental, or superficial.
    (d) Jurisdiction. USCIS shall determine whether a T-1 applicant for 
adjustment of status under this section was lawfully admitted as a T-1 
nonimmigrant and continues to hold such status, has been physically 
present in the United States during the requisite period, is admissible 
to the United States or has otherwise been granted a waiver of any 
applicable ground of inadmissibility, and has been a person of good 
moral character during the requisite period. The Attorney General shall 
determine whether the applicant received a reasonable request for 
assistance in the investigation or prosecution of acts of trafficking as 
defined in 8 CFR 214.11(a), and, if so, whether the applicant complied 
in such request. If the Attorney General determines that the applicant 
failed to comply with any reasonable request for assistance, USCIS shall 
deny the application for adjustment of status unless USCIS finds that 
the applicant would suffer extreme hardship involving unusual and severe 
harm upon removal from the United States.
    (e) Application.
    (1) General. Each T-1 principal applicant and each derivative family 
member who is applying for adjustment of status must file Form I-485, 
Application to Register Permanent Residence or Adjust Status, and
    (i) Accompanying documents, in accordance with the form 
instructions;
    (ii) The fee prescribed in 8 CFR 103.7(b)(1) or an application for a 
fee waiver;
    (iii) The biometric services fee prescribed by 8 CFR 103.7(b)(1) or 
an application for a fee waiver;
    (iv) A photocopy of the alien's Form I-797, Notice of Action, 
granting T nonimmigrant status;
    (v) A photocopy of all pages of the alien's most recent passport or 
an explanation of why the alien does not have a passport;
    (vi) A copy of the alien's Form I-94, Arrival-Departure Record; and
    (vii) Evidence that the applicant was lawfully admitted in T 
nonimmigrant status and continues to hold such status at the time of 
application. For T nonimmigrants who traveled outside

[[Page 620]]

the United States and re-entered using an advance parole document issued 
under 8 CFR 245.2(a)(4)(ii)(B), the date that the alien was first 
admitted in lawful T status will be the date of admission for purposes 
of this section, regardless of how the applicant's Form I-94 ``Arrival-
Departure Record'' is annotated.
    (2) T-1 principal applicants. In addition to the items in paragraph 
(e)(1) of this section, T-1 principal applicants must submit:
    (i) Evidence, including an affidavit from the applicant and a 
photocopy of all pages of all of the applicant's passports valid during 
the required period (or equivalent travel document or a valid 
explanation of why the applicant does not have a passport), that he or 
she has been continuously physically present in the United States for 
the requisite period as described in paragraph (a)(2) of this section. 
Applicants should submit evidence described in 8 CFR 245.22. A signed 
statement from the applicant attesting to the applicant's continuous 
physical presence alone will not be sufficient to establish this 
eligibility requirement. If additional documentation is not available, 
the applicant must explain why in an affidavit and provide additional 
affidavits from others with first-hand knowledge who can attest to the 
applicant's continuous physical presence by specific facts.
    (A) If the applicant has departed from and returned to the United 
States while in T-1 nonimmigrant status, the applicant must submit 
supporting evidence showing the dates of each departure from the United 
States and the date, manner and place of each return to the United 
States.
    (B) Applicants applying for adjustment of status under this section 
who have less than 3 years of continuous physical presence while in T-1 
nonimmigrant status must submit a document signed by the Attorney 
General or his designee, attesting that the investigation or prosecution 
is complete.
    (ii) Evidence of good moral character in accordance with paragraph 
(g) of this section; and
    (iii)(A) Evidence that the alien has complied with any reasonable 
request for assistance in the investigation or prosecution of the 
trafficking as described in paragraph (f)(1) of this section since 
having first been lawfully admitted in T-1 nonimmigrant status and until 
the adjudication of the application; or
    (B) Evidence that the alien would suffer extreme hardship involving 
unusual and severe harm if removed from the United States as described 
in paragraph (f)(2) of this section.
    (3) Evidence relating to discretion. Each T applicant bears the 
burden of showing that discretion should be exercised in his or her 
favor. Where adverse factors are present, an applicant may offset these 
by submitting supporting documentation establishing mitigating equities 
that the applicant wants USCIS to consider. Depending on the nature of 
adverse factors, the applicant may be required to clearly demonstrate 
that the denial of adjustment of status would result in exceptional and 
extremely unusual hardship. Moreover, depending on the gravity of the 
adverse factors, such a showing might still be insufficient. For 
example, only the most compelling positive factors would justify a 
favorable exercise of discretion in cases where the applicant has 
committed or been convicted of a serious violent crime, a crime 
involving sexual abuse committed upon a child, or multiple drug-related 
crimes, or where there are security- or terrorism-related concerns.
    (f) Assistance in the investigation or prosecution or a showing of 
extreme hardship. Each T-1 principal applicant must establish, to the 
satisfaction of the Attorney General, that since having been lawfully 
admitted as a T-1 nonimmigrant and up until the adjudication of the 
application, he or she complied with any reasonable request for 
assistance in the investigation or prosecution of the acts of 
trafficking, as defined in 8 CFR 214.11(a), or establish, to the 
satisfaction of USCIS, that he or she would suffer extreme hardship 
involving unusual and severe harm upon removal from the United States.
    (1) Each T-1 applicant for adjustment of status under section 245(l) 
of the Act must submit a document issued by the Attorney General or his 
designee certifying that the applicant has complied

[[Page 621]]

with any reasonable requests for assistance in the investigation or 
prosecution of the human trafficking offenses during the requisite 
period; or
    (2) In lieu of showing continued compliance with requests for 
assistance, an applicant may establish, to the satisfaction of USCIS, 
that he or she would suffer extreme hardship involving unusual and 
severe harm upon removal from the United States. The hardship 
determination will be evaluated on a case-by-case basis, in accordance 
with the factors described in 8 CFR 214.11(i). Where the basis for the 
hardship claim represents a continuation of the hardship claimed in the 
application for T nonimmigrant status, the applicant need not re-
document the entire claim, but rather may submit evidence to establish 
that the previously established hardship is ongoing. However, in 
reaching its decision regarding hardship under this section, USCIS is 
not bound by its previous hardship determination made under 8 CFR 
214.11(i).
    (g) Good moral character. A T-1 nonimmigrant applicant for 
adjustment of status under this section must demonstrate that he or she 
has been a person of good moral character since first being lawfully 
admitted as a T-1 nonimmigrant and until USCIS completes the 
adjudication of their applications for adjustment of status. Claims of 
good moral character will be evaluated on a case-by-case basis, taking 
into account section 101(f) of the Act and the standards of the 
community. The applicant must submit evidence of good moral character as 
follows:
    (1) An affidavit from the applicant attesting to his or her good 
moral character, 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 applicant has resided for 6 or more months 
during the requisite period in continued presence or T-1 nonimmigrant 
status.
    (2) If police clearances, criminal background checks, or similar 
reports are not available for some or all locations, the applicant may 
include an explanation and submit other evidence with his or her 
affidavit.
    (3) USCIS will consider other credible evidence of good moral 
character, such as affidavits from responsible persons who can 
knowledgeably attest to the applicant's good moral character.
    (4) An applicant who is under 14 years of age is generally presumed 
to be a person of good moral character and is not required to submit 
evidence of good moral character. However, if there is reason to believe 
that an applicant who is under 14 years of age may lack good moral 
character, USCIS may require evidence of good moral character.
    (h) Filing and decision. An application for adjustment of status 
from a T nonimmigrant under section 245(l) of the Act shall be filed 
with the USCIS office identified in the instructions to Form I-485. Upon 
approval of adjustment of status under this section, USCIS will record 
the alien's lawful admission for permanent residence as of the date of 
such approval and will notify the applicant in writing. Derivative 
family members' applications may not be approved before the principal 
applicant's application is approved.
    (i) Denial. If the application for adjustment of status or the 
application for a waiver of inadmissibility is denied, USCIS will notify 
the applicant in writing of the reasons for the denial and of the right 
to appeal the decision to the Administrative Appeals Office (AAO) 
pursuant to the AAO appeal procedures found at 8 CFR 103.3. Denial of 
the T-1 principal applicant's application will result in the automatic 
denial of a derivative family member's application.
    (j) Effect of Departure. If an applicant for adjustment of status 
under this section departs the United States, he or she shall be deemed 
to have abandoned the application, and it will be denied. If, however, 
the applicant is not under exclusion, deportation, or removal 
proceedings, and he or she filed a Form I-131, Application for Travel 
Document, in accordance with the instructions on the form, or any other 
appropriate form, and was granted advance parole by USCIS for such 
absences, and was inspected and paroled upon returning to the United 
States, he or she will not be deemed to have abandoned the application. 
If the adjustment of status application of such an individual is 
subsequently denied, he or she will be treated as an applicant for 
admission

[[Page 622]]

subject to sections 212 and 235 of the Act. If an applicant for 
adjustment of status under this section is under exclusion, deportation, 
or removal proceedings, USCIS will deem the application for adjustment 
of status abandoned as of the moment of the applicant's departure from 
the United States.
    (k) Inapplicability of 8 CFR 245.1 and 245.2. Sections 245.1 and 
245.2 of this chapter do not apply to aliens seeking adjustment of 
status under this section.
    (l) Annual cap of T-1 principal applicant adjustments. (1) General. 
The total number of T-1 principal applicants whose status is adjusted to 
that of lawful permanent residents under this section may not exceed the 
statutory cap in any fiscal year.
    (2) Waiting list. All eligible applicants who, due solely to the 
limit imposed in section 245(l)(4) of the Act and paragraph (m)(1) of 
this section, are not granted adjustment of status will be placed on a 
waiting list. USCIS will send the applicant written notice of such 
placement. Priority on the waiting list will be determined by the date 
the application was properly filed, with the oldest applications 
receiving the highest priority. In the following fiscal year, USCIS will 
proceed with granting adjustment of status to applicants on the waiting 
list who remain admissible and eligible for adjustment of status in 
order of highest priority until the available numbers are exhausted for 
the given fiscal year. After the status of qualifying applicants on the 
waiting list has been adjusted, any remaining numbers for that fiscal 
year will be issued to new qualifying applicants in the order that the 
applications were properly filed.

[73 FR 75558, Dec. 12, 2008]

    Effective Date Note: At 73 FR 75558, Dec. 12, 2008, Sec. 245.23 was 
added, effective Jan. 12, 2009.



Sec. 245.24  Adjustment of aliens in U nonimmigrant status.

    (a) Definitions. As used in this section, the term:
    (1) Continuous Physical Presence means the period of time that the 
alien has been physically present in the United States and must be a 
continuous period of at least 3 years since the date of admission as a U 
nonimmigrant continuing through the date of the conclusion of 
adjudication of the application for adjustment of status. If the alien 
has departed from the United States for any single period in excess of 
90 days or for any periods in the aggregate exceeding 180 days, the 
applicant must include a certification from the agency that signed the 
Form I-918, Supplement B, in support of the alien's U nonimmigrant 
status that the absences were necessary to assist in the criminal 
investigation or prosecution or were otherwise justified.
    (2) Qualifying Family Member means a U-1 principal applicant's 
spouse, child, or, in the case of an alien child, a parent who has never 
been admitted to the United States as a nonimmigrant under sections 
101(a)(15)(U) and 214(p) of the Act.
    (3) U Interim Relief means deferred action and work authorization 
benefits provided by USCIS or the Immigration and Naturalization Service 
to applicants for U nonimmigrant status deemed prima facie eligible for 
U nonimmigrant status prior to publication of the U nonimmigrant status 
regulations.
    (4) U Nonimmigrant means an alien who is in lawful U-1, U-2, U-3, U-
4, or U-5 status.
    (5) Refusal to Provide Assistance in a Criminal Investigation or 
Prosecution is the refusal by the alien to provide assistance to a law 
enforcement agency or official that had responsibility for the 
investigation or prosecution of persons in connection with the 
qualifying criminal activity after the alien was granted U nonimmigrant 
status. The Attorney General will determine whether the alien's refusal 
was unreasonable under the totality of the circumstances based on all 
available affirmative evidence. The Attorney General may take into 
account such factors as general law enforcement, prosecutorial, and 
judicial practices; the kinds of assistance asked of other victims of 
crimes involving an element of force, coercion, or fraud; the nature of 
the request to the alien for assistance;

[[Page 623]]

the nature of the victimization; the applicable guidelines for victim 
and witness assistance; and the specific circumstances of the applicant, 
including fear, severe traumatization (both mental and physical), and 
the age and maturity of the applicant.
    (b) Eligibility of U Nonimmigrants. Except as described in paragraph 
(c) of this section, an alien may be granted adjustment of status to 
that of an alien lawfully admitted for permanent residence, provided the 
alien:
    (1) Applies for such adjustment;
    (2)(i) Was lawfully admitted to the United States as either a U-1, 
U-2, U-3, U-4 or U-5 nonimmigrant, as defined in 8 CFR 214.1(a)(2), and
    (ii) Continues to hold such status at the time of application; or 
accrued at least 4 years in U interim relief status and files a complete 
adjustment application within 120 days of the date of approval of the 
Form I-918, Petition for U Nonimmigrant Status;
    (3) Has continuous physical presence for 3 years as defined in 
paragraph (a)(1) of this section;
    (4) Is not inadmissible under section 212(a)(3)(E) of the Act;
    (5) Has not unreasonably refused to provide assistance to an 
official or law enforcement agency that had responsibility in an 
investigation or prosecution of persons in connection with the 
qualifying criminal activity after the alien was granted U nonimmigrant 
status, as determined by the Attorney General, based on affirmative 
evidence; and
    (6) Establishes to the satisfaction of the Secretary that the 
alien's presence in the United States is justified on humanitarian 
grounds, to ensure family unity, or is in the public interest.
    (c) Exception. An alien is not eligible for adjustment of status 
under paragraph (b) of this section if the alien's U nonimmigrant status 
has been revoked pursuant to 8 CFR 214.14(h).
    (d) Application Procedures for U nonimmigrants. Each U nonimmigrant 
who is requesting adjustment of status must submit:
    (1) Form I-485, Application to Register Permanent Residence or 
Adjust Status, in accordance with the form instructions;
    (2) The fee prescribed in 8 CFR 103.7(b)(1) or an application for a 
fee waiver;
    (3) The biometric services fee as prescribed in 8 CFR 103.7(b)(1) or 
an application for a fee waiver;
    (4) A photocopy of the alien's Form I-797, Notice of Action, 
granting U nonimmigrant status;
    (5) A photocopy of all pages of all of the applicant's passports 
valid during the required period (or equivalent travel document or a 
valid explanation of why the applicant does not have a passport) and 
documentation showing the following:
    (i) The date of any departure from the United States during the 
period that the applicant was in U nonimmigrant status;
    (ii) The date, manner, and place of each return to the United States 
during the period that the applicant was in U nonimmigrant status; and
    (iii) If the applicant has been absent from the United States for 
any period in excess of 90 days or for any periods in the aggregate of 
180 days or more, a certification from the investigating or prosecuting 
agency that the absences were necessary to assist in the investigation 
or prosecution of the criminal activity or were otherwise justified;
    (6) A copy of the alien's Form I-94, Arrival-Departure Record;
    (7) Evidence that the applicant was lawfully admitted in U 
nonimmigrant status and continues to hold such status at the time of 
application;
    (8) Evidence pertaining to any request made to the alien by an 
official or law enforcement agency for assistance in an investigation or 
prosecution of persons in connection with the qualifying criminal 
activity, and the alien's response to such request;
    (9) Evidence, including an affidavit from the applicant, that he or 
she has continuous physical presence for at least 3 years as defined in 
paragraph (a)(1) of this section. Applicants should submit evidence 
described in 8 CFR 245.22. A signed statement from the applicant 
attesting to continuous physical presence alone will not be sufficient 
to establish this eligibility requirement. If additional documentation 
is not available, the applicant must explain why in an affidavit and

[[Page 624]]

provide additional affidavits from others with first-hand knowledge who 
can attest to the applicant's continuous physical presence by specific:
    (10) Evidence establishing that approval is warranted. Any other 
information required by the instructions to Form I-485, including 
whether adjustment of status is warranted as a matter of discretion on 
humanitarian grounds, to ensure family unity, or is otherwise in the 
public interest.
    (11) Evidence relating to discretion. An applicant has the burden of 
showing that discretion should be exercised in his or her favor. 
Although U adjustment applicants are not required to establish that they 
are admissible, USCIS may take into account all factors, including acts 
that would otherwise render the applicant inadmissible, in making its 
discretionary decision on the application. Where adverse factors are 
present, an applicant may offset these by submitting supporting 
documentation establishing mitigating equities that the applicant wants 
USCIS to consider when determining whether or not a favorable exercise 
of discretion is appropriate. Depending on the nature of the adverse 
factors, the applicant may be required to clearly demonstrate that the 
denial of adjustment of status would result in exceptional and extremely 
unusual hardship. Moreover, depending on the gravity of the adverse 
factors, such a showing might still be insufficient. For example, USCIS 
will generally not exercise its discretion favorably in cases where the 
applicant has committed or been convicted of a serious violent crime, a 
crime involving sexual abuse committed upon a child, or multiple drug-
related crimes, or where there are security- or terrorism-related 
concerns.
    (e) Continued assistance in the investigation or prosecution. Each 
applicant for adjustment of status under section 245(m) of the Act must 
provide evidence of whether or not any request was made to the alien to 
provide assistance, after having been lawfully admitted as a U 
nonimmigrant, in an investigation or prosecution of persons in 
connection with the qualifying criminal activity, and his or her 
response to any such requests.
    (1) An applicant for adjustment of status under section 245(m) of 
the Act may submit a document signed by an official or law enforcement 
agency that had responsibility for the investigation or prosecution of 
persons in connection with the qualifying criminal activity, affirming 
that the applicant complied with (or did not unreasonably refuse to 
comply with) reasonable requests for assistance in the investigation or 
prosecution during the requisite period. To meet this evidentiary 
requirement, applicants may submit a newly executed Form I-918, 
Supplement B, ``U Nonimmigrant Status Certification.''
    (2) If the applicant does not submit a document described in 
paragraph (e)(1) of this section, the applicant may submit an affidavit 
describing the applicant's efforts, if any, to obtain a newly executed 
Form I-918, Supplement B, or other evidence describing whether or not 
the alien received any request to provide assistance in a criminal 
investigation or prosecution, and the alien's response to any such 
request.
    (i) The applicant should also include, when possible, identifying 
information about the law enforcement personnel involved in the case and 
any information, of which the applicant is aware, about the status of 
the criminal investigation or prosecution, including any charges filed 
and the outcome of any criminal proceedings, or whether the 
investigation or prosecution was dropped and the reasons.
    (ii) If applicable, an applicant may also provide a more detailed 
description of situations where the applicant refused to comply with 
requests for assistance because the applicant believed that the requests 
for assistance were unreasonable.
    (3) In determining whether the applicant has satisfied the continued 
assistance requirement, USCIS or the Department of Justice may at its 
discretion contact the certifying agency that executed the applicant's 
original Form I-918, Supplement B, ``U Nonimmigrant Status 
Certification'' or any other law enforcement agency.
    (4) In accordance with procedures determined by the Department of 
Justice and the Department of Homeland Security, USCIS will refer 
certain applications for adjustment of status to the

[[Page 625]]

Department of Justice for determination of whether the applicant 
unreasonably refused to provide assistance in a criminal investigation 
or prosecution. If the applicant submits a document described in 
paragraph (e)(1) of this section, USCIS will not refer the application 
for consideration by the Department of Justice absent extraordinary 
circumstances. In other cases, USCIS will only refer an application to 
the Department of Justice if an official or law enforcement agency has 
provided evidence that the alien has refused to comply with requests to 
provide assistance in an investigation or prosecution of persons in 
connection with the qualifying criminal activity or if there are other 
affirmative evidence in the record suggesting that the applicant may 
have unreasonably refused to provide such assistance. In these 
instances, USCIS will request that the Department of Justice determine, 
based on all available affirmative evidence, whether the applicant 
unreasonably refused to provide assistance in a criminal investigation 
or prosecution. The Department of Justice will have 90 days to provide a 
written determination to USCIS, or where appropriate, request an 
extension of time to provide such a determination. After such time, 
USCIS may adjudicate the application whether or not the Department of 
Justice has provided a response.
    (f) Decision. The decision to approve or deny a Form I-485 filed 
under section 245(m) of the Act is a discretionary determination that 
lies solely within USCIS's jurisdiction. After completing its review of 
the application and evidence, USCIS will issue a written decision 
approving or denying Form I-485 and notify the applicant of this 
decision.
    (1) Approvals. If USCIS determines that the applicant has met the 
requirements for adjustment of status and merits a favorable exercise of 
discretion, USCIS will approve the Form I-485. Upon approval of 
adjustment of status under this section, USCIS will record the alien's 
lawful admission for permanent residence as of the date of such 
approval.
    (2) Denials. Upon the denial of an application for adjustment of 
status under section 245(m) of the Act, the applicant will be notified 
in writing of the decision and the reason for the denial in accordance 
with 8 CFR part 103. If an applicant chooses to appeal the denial to the 
Administrative Appeals Office pursuant to the provisions of 8 CFR 103.3, 
the denial will not become final until the appeal is adjudicated.
    (g) Filing petitions for qualifying family members. A principal U-1 
applicant may file an immigrant petition under section 245(m)(3) of the 
Act on behalf of a qualifying family member as defined in paragraph 
(a)(2) of this section, provided that:
    (1) The qualifying family member has never held U nonimmigrant 
status;
    (2) The qualifying family relationship, as defined in paragraph 
(a)(2) of this section, exists at the time of the U-1 principal's 
adjustment and continues to exist through the adjudication of the 
adjustment or issuance of the immigrant visa for the qualifying family 
member;
    (3) The qualifying family member or the principal U-1 alien, would 
suffer extreme hardship as described in 8 CFR 245.24(g) (to the extent 
the factors listed are applicable) if the qualifying family member is 
not allowed to remain in or enter the United States; and
    (4) The principal U-1 alien has adjusted status to that of a lawful 
permanent resident, has a pending application for adjustment of status, 
or is concurrently filing an application for adjustment of status.
    (h) Procedures for filing petitions for qualifying family members.
    (1) Required documents. For each qualifying family member who plans 
to seek an immigrant visa or adjustment of status under section 
245(m)(3) of the Act, the U-1 principal applicant must submit, either 
concurrently with, or after he or she has filed, his or her Form I-485:
    (i) Form I-929 in accordance with the form instructions;
    (ii) The fee prescribed in 8 CFR 103.7(b)(1) or an application for a 
fee waiver;
    (iii) Evidence of the relationship listed in paragraph (a)(2) of 
this section, such as a birth or marriage certificate. If primary 
evidence is unavailable, secondary evidence or affidavits may be

[[Page 626]]

submitted in accordance with 8 CFR 103.2(b)(2);
    (iv) Evidence establishing that either the qualifying family member 
or the U-1 principal alien would suffer extreme hardship if the 
qualifying family member is not allowed to remain in or join the 
principal in the United States. Extreme hardship is evaluated on a case-
by-case basis, taking into account the particular facts and 
circumstances of each case. Applicants are encouraged to document all 
applicable factors in their applications, as the presence or absence of 
any one factor may not be determinative in evaluating extreme hardship. 
To establish extreme hardship to a qualifying family member who is 
physically present in the United States, an applicant must demonstrate 
that removal of the qualifying family member would result in a degree of 
hardship beyond that typically associated with removal. Factors that may 
be considered in evaluating whether removal would result in extreme 
hardship to the alien or to the alien's qualifying family member 
include, but are not limited to:
    (A) The nature and extent of the physical or mental abuse suffered 
as a result of having been a victim of criminal activity;
    (B) The impact of loss of access to the United States courts and 
criminal justice system, including but not limited to, participation in 
the criminal investigation or prosecution of the criminal activity of 
which the alien was a victim, and any civil proceedings related to 
family law, child custody, or other court proceeding stemming from the 
criminal activity;
    (C) The likelihood that the perpetrator's family, friends, or others 
acting on behalf of the perpetrator in the home country would harm the 
applicant or the applicant's children;
    (D) The applicant's needs for social, medical, mental health, or 
other supportive services for victims of crime that are unavailable or 
not reasonably accessible in the home country;
    (E) Where the criminal activity involved arose in a domestic 
violence context, the existence of laws and social practices in the home 
country that punish the applicant or the applicant's child(ren) because 
they have been victims of domestic violence or have taken steps to leave 
an abusive household;
    (F) The perpetrator's ability to travel to the home country and the 
ability and willingness of authorities in the home country to protect 
the applicant or the applicant's children; and
    (G) The age of the applicant, both at the time of entry to the 
United States and at the time of application for adjustment of status; 
and
    (v) Evidence, including a signed statement from the qualifying 
family member and other supporting documentation, to establish that 
discretion should be exercised in his or her favor. Although qualifying 
family members are not required to establish that they are admissible on 
any of the grounds set forth in section 212(a) of the Act other than on 
section 212(a)(3)(E) of the Act, USCIS may take into account all 
factors, including acts that would otherwise render the applicant 
inadmissible, in making its discretionary decision on the application. 
Where adverse factors are present, an applicant may offset these by 
submitting supporting documentation establishing mitigating equities 
that the applicant wants USCIS to consider when determining whether or 
not a favorable exercise of discretion is appropriate. Depending on the 
nature of the adverse factors, the applicant may be required to clearly 
demonstrate that the denial of adjustment of status would result in 
exceptional and extremely unusual hardship. Moreover, depending on the 
gravity of the adverse factors, such a showing might still be 
insufficient. For example, USCIS will generally not exercise its 
discretion favorably in cases where the applicant has committed or been 
convicted of a serious violent crime, a crime involving sexual abuse 
committed upon a child, or multiple drug-related crimes, or where there 
are security- or terrorism-related concerns.
    (2) Decision. The decision to approve or deny a Form I-929 is a 
discretionary determination that lies solely within USCIS's 
jurisdiction. The Form I-929 for a qualifying family member may not be 
approved, however, until such time as the principal U-1 applicant's 
application for adjustment of status

[[Page 627]]

has been approved. After completing its review of the application and 
evidence, USCIS will issue a written decision and notify the applicant 
of that decision in writing.
    (i) Approvals. (A) For qualifying family members who are outside of 
the United States, if the Form I-929 is approved, USCIS will forward 
notice of the approval either to the Department of State's National Visa 
Center so the applicant can apply to the consular post for an immigrant 
visa, or to the appropriate port of entry for a visa exempt alien.
    (B) For qualifying family members who are physically present in the 
United States, if the Form I-929 is approved, USCIS will forward notice 
of the approval to the U-1 principal applicant.
    (ii) Denials. If the Form I-929 is denied, the applicant will be 
notified in writing of the reason(s) for the denial in accordance with 8 
CFR part 103. If an applicant chooses to appeal the denial to the 
Administrative Appeals Office pursuant to 8 CFR 103.3, the denial will 
not become final until the appeal is adjudicated. Denial of the U-1 
principal applicant's application will result in the automatic denial of 
a qualifying family member's Form I-929. There shall be no appeal of 
such an automatic denial.
    (i) Application procedures for qualifying family members who are 
physically present in the United States to request adjustment of status. 
(1) Required documents. Qualifying family members in the United States 
may request adjustment of status by submitting:
    (i) Form I-485, Application to Register Permanent Residence or 
Adjust Status, in accordance with the form instructions;
    (ii) An approved Form I-929, Petition for Qualifying Family Member 
of a U-1 Nonimmigrant;
    (iii) The fee prescribed in 8 CFR 103.7(b)(1) or an application for 
a fee waiver; and
    (iv) The biometric services fee as prescribed in 8 CFR 103.7(b)(1) 
or an application for a fee waiver.
    (2) Decision. The decision to approve or deny Form I-485 is a 
discretionary determination that lies solely within USCIS's 
jurisdiction. After completing its review of the application and 
evidence, USCIS will issue a written decision approving or denying Form 
I-485 and notify the applicant of this decision in writing.
    (i) Approvals. Upon approval of a Form I-485 under this section, 
USCIS shall record the alien's lawful admission for permanent residence 
as of the date of such approval.
    (ii) Denial. Upon the denial of any application for adjustment of 
status, the applicant will be notified in writing of the decision and 
the reason for the denial in accordance with 8 CFR part 103. If an 
applicant chooses to appeal the denial to the Administrative Appeals 
Office pursuant to the provisions of 8 CFR 103.3, the denial will not 
become final until the appeal is adjudicated. During the appeal period, 
the applicant may not obtain or renew employment authorization under 8 
CFR 274a.12(c)(9). Denial of the U-1 principal applicant's application 
will result in the automatic denial of a qualifying family member's Form 
I-485; such an automatic denial is not appealable.
    (j) Effect of departure. If an applicant for adjustment of status 
under this section departs the United States, he or she shall be deemed 
to have abandoned the application, and it will be denied. If, however, 
the applicant is not under exclusion, deportation, or removal 
proceedings, and he or she filed a Form I-131, Application for Travel 
Document, in accordance with the instructions on the form, or any other 
appropriate form, and was granted advance parole by USCIS for such 
absences, and was inspected and paroled upon returning to the United 
States, he or she will not be deemed to have abandoned the application. 
If the adjustment of status application of such an individual is 
subsequently denied, he or she will be treated as an applicant for 
admission subject to sections 212 and 235 of the Act. If an applicant 
for adjustment of status under this section is under exclusion, 
deportation, or removal proceedings, USCIS will deem the application for 
adjustment of status abandoned as of the moment of the applicant's 
departure from the United States.

[[Page 628]]

    (k) Exclusive jurisdiction. USCIS shall have exclusive jurisdiction 
over adjustment applications filed under section 245(m) of the Act.
    (l) Inapplicability of 8 CFR 245.1 and 245.2. The provisions of 8 
CFR 245.1 and 245.2 do not apply to aliens seeking adjustment of status 
under section 245(m) of the Act.

[73 FR 75560, Dec. 12, 2008]

    Effective Date Note: At 73 FR 75560, Dec. 12, 2008, Sec. 245.24 was 
added, effective Jan. 12, 2009.



     PART 245a_ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR LAWFUL 

TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF THE IMMIGRATION 

AND NATIONALITY ACT--Table of Contents




Subpart A_Immigration Reform and Control Act of 1986 (RICA) Legalization 
                               Provisions

Sec.
245a.1 Definitions.
245a.2 Application for temporary residence.
245a.3 Application for adjustment from temporary to permanent resident 
          status.
245a.4 Adjustment to lawful resident status of certain nationals of 
          countries for which extended voluntary departure has been made 
          available.
245a.5 Temporary disqualification of certain newly legalized aliens from 
          receiving benefits from programs of financial assistance 
          furnished under federal law.
245a.6 Treatment of denied application under part 245a, Subpart B.

   Subpart B_Legal Immigration Family Equity (LIFE) Act Legalization 
                               Provisions

245a.10 Definitions.
245a.11 Eligibility to adjust to LPR status.
245a.12 Filing and applications.
245a.13 During pendency of application.
245a.14 Application for class membership in the CSS, LULAC, or Zambrano 
          lawsuit.
245a.15 Continuous residence in an unlawful status since prior to 
          January 1, 1982, through May 4, 1988.
245a.16 Continuous physical presence from November 6, 1986, through May 
          4, 1988.
245a.17 Citizenship skills.
245a.18 Ineligibility and applicability of grounds of inadmissibility.
245a.19 Interviews.
245a.20 Decisions, appeals, motions, and certifications.
245a.21 Confidentiality.
245a.22 Rescission.
245a.23-245a.29 [Reserved]

          Subpart C_LIFE Act Amendments Family Unity Provisions

245a.30 Description of program.
245a.31 Eligibility.
245a.32 Ineligible aliens.
245a.33 Filing.
245a.34 Protection from removal, eligibility for employment, and period 
          of authorized stay.
245a.35 Travel outside the United States.
245a.36 [Reserved]
245a.37 Termination of Family Unity Program benefits.

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

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



Subpart A_Immigration Reform and Control Act of 1986 (IRCA) Legalization 
                               Provisions



Sec. 245a.1  Definitions.

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

An alien who after appearing for a scheduled interview to obtain an 
immigrant visa at a Consulate or Embassy in Canada or Mexico but who 
subsequently is not issued an immigrant visa and who is paroled back 
into the United States, pursuant to the stateside criteria program, 
shall be regarded as having been granted advance parole by the Service.
    (i) No single absence from the United States has exceeded forty-five 
(45) days, and the aggregate of all absences has not exceeded one 
hundred and eighty (180) days between January 1, 1982 through the date 
the application for temporary resident status is filed, unless the alien 
can establish that due

[[Page 629]]

to emergent reasons, his or her return to the United States could not be 
accomplished within the time period allowed;
    (ii) The alien was maintaining residence in the United States; and
    (iii) The alien's departure from the United States was not based on 
an order of deportation.

An alien who has been absent from the United States in accordance with 
the Service's advance parole procedures shall not be considered as 
having interrupted his or her continuous residence as required at the 
time of filing an application.
    (2) Continuous residence, as used in section 245A(b)(1)(B) of the 
Act, means that the alien shall be regarded as having resided 
continuously in the United States if, at the time of applying for 
adjustment from temporary residence to permanent resident status: No 
single absence from the United States has exceeded thirty (30) days, and 
the aggregate of all absences has not exceeded ninety (90) days between 
the date of granting of lawful temporary resident status and of applying 
for permanent resident status, unless the alien can establish that due 
to emergent reasons the return to the United States could not be 
accomplished within the time period(s) allowed.
    (d) In the term alien's unlawful status was known to the government, 
the term government means the Immigration and Naturalization Service. An 
alien's unlawful status was known to the government only if:
    (1) The Service received factual information constituting a 
violation of the alien's nonimmigrant status from any agency, bureau or 
department, or subdivision thereof, of the Federal government, and such 
information was stored or otherwise recorded in the official Service 
alien file, whether or not the Service took follow-up action on the 
information received. In order to meet the standard of information 
constituting a violation of the alien's nonimmigrant status, the alien 
must have made a clear statement or declaration to the other federal 
agency, bureau or department that he or she was in violation of 
nonimmigrant status; or
    (2) An affirmative determination was made by the Service prior to 
January 1, 1982 that the alien was subject to deportation proceedings. 
Evidence that may be presented by an alien to support an assertion that 
such a determination was made may include, but is not limited to, 
official Service documents issued prior to January 1, 1982, i.e., Forms 
I-94, Arrival-Departure Records granting a period of time in which to 
depart the United States without imposition of proceedings; Forms I-210, 
Voluntary Departure Notice letter; and Forms I-221, Order to Show Cause 
and Notice of Hearing. Evidence from Service records that may be used to 
support a finding that such a determination was made may include, but is 
not limited to, record copies of the aforementioned forms and other 
documents contained in alien files, i.e., Forms I-213, Record of 
Deportable Alien;
    Unexecuted Forms I-205, Warrant of Deportation; Forms I-265, 
Application for Order to Show Cause and Processing Sheet; Forms I-541, 
Order of Denial of Application for Extension of Stay granting a period 
of time in which to depart the United States without imposition of 
proceedings, or any other Service record reflecting that the alien's 
nonimmigrant status was considered by the Service to have terminated or 
the alien was otherwise determined to be subject to deportation 
proceedings prior to January 1, 1982, whether or not deportation 
proceedings were instituted; or
    (3) A copy of a response by the Service to any other agency which 
advised that agency that a particular alien had no legal status in the 
United States or for whom no record could be found.
    (4) The applicant produces documentation from a school approved to 
enroll foreign students under Sec. 214.3 which establishes that the 
said school forwarded to the Service a report that clearly indicated the 
applicant had violated his or her nonimmigrant student status prior to 
January 1, 1982. A school may submit an affirmation that the school did 
forward to the Service the aforementioned report and that the school no 
longer has available copies of the actual documentation sent. In order 
to be eligible under this part, the

[[Page 630]]

applicant must not have been reinstated to nonimmigrant student status.
    (e) The term to make a determination as used in Sec. 245a.2(t)(3) 
of this part means obtaining and reviewing all information required to 
adjudicate an application for the benefit sought and making a decision 
thereon. If fraud, willful misrepresentation or concealment of a 
material fact, knowingly providing a false writing or document, 
knowingly making a false statement or representation, or any other 
activity prohibited by section 245A(c)(6) of the Act is established 
during the process of making the determination on the application, the 
Service shall refer to the United States Attorney for prosecution of the 
alien or of any person who created or supplied a false writing or 
document for use in an application for adjustment of status under this 
part.
    (f) The term continuous physical presence as used in section 
245A(a)(3)(A) of the Act means actual continuous presence in the United 
States since November 6, 1986 until filing of any application for 
adjustment of status. Aliens who were outside of the United States on 
the date of enactment or departed the United States after enactment may 
apply for legalization if they reentered prior to May 1, 1987, provided 
they meet the continuous residence requirements, and are otherwise 
eligible for legalization.
    (g) Brief, casual, and innocent means a departure authorized by the 
Service (advance parole) subsequent to May 1, 1987 of not more than 
thirty (30) days for legitimate emergency or humanitarian purposes 
unless a further period of authorized departure has been granted in the 
discretion of the district director or a departure was beyond the 
alien's control.
    (h) The term brief and casual absences as used in section 
245a(b)(3)(A) of the Act permits temporary trips abroad as long as the 
alien establishes a continuing intention to adjust to lawful permanent 
resident status. However, such absences must comply with Sec. 
245a.3(b)(2) of this chapter in order for the alien to maintain 
continuous residence as specified in the Act.
    (i) Public cash assistance means income or needs-based monetary 
assistance to include, but not limited to, supplemental security income 
received by the alien through federal, state, or local programs designed 
to meet subsistence levels. It does not include assistance in kind, such 
as food stamps, public housing, or other non-cash benefits, nor does it 
include work-related compensation or certain types of medical assistance 
(Medicare, Medicaid, emergency treatment, services to pregnant women or 
children under 18 years of age, or treatment in the interest of public 
health).
    (j) Legalization Office means local offices of the Immigration and 
Naturalization Service which accept and process applications for 
Legalization or Special Agricultural Worker status, under the authority 
of the INS district directors in whose districts such offices are 
located.
    (k) Regional Processing Facility means Service offices established 
in each of the four Service regions to adjudicate, under the authority 
of the INS Directors of the Regional Processing Facilities, applications 
for adjustment of status under section 210, 245A(a) or 245A(b)(1) of the 
Act.
    (l) Designated entity means any state, local, church, community, 
farm labor organization, voluntary organization, association of 
agricultural employers or individual determined by the Service to be 
qualified to assist aliens in the preparation of applications for 
Legalization status.
    (m) The term family unity as used in section 245(d)(2)(B)(i) of the 
Act means maintaining the family group without deviation or change. The 
family group shall include the spouse, unmarried minor children under 18 
years of age who are not members of some other household, and parents 
who reside regularly in the household of the family group.
    (n) The term prima facie as used in section 245(e)(1) and (2) of the 
Act means eligibility is established if the applicant presents a 
completed I-687 and specific factual information which in the absence of 
rebuttal will establish a claim of eligibility under this part.
    (o) Misdemeanor means a crime committed in the United States, either 
(1) punishable by imprisonment for a term of one year or less, 
regardless of the

[[Page 631]]

term such alien actually served, if any, or (2) a crime treated as a 
misdemeanor under 8 CFR 245a.1(p). For purposes of this definition, any 
crime punishable by imprisonment for a maximum term of five days or less 
shall not be considered a misdemeanor.
    (p) Felony means a crime committed in the United States, punishable 
by imprisonment for a term of more than one year, regardless of the term 
such alien actually served, if any, except: When the offense is defined 
by the State as a misdemeanor and the sentence actually imposed is one 
year or less regardless of the term such alien actually served. Under 
this exception, for purposes of 8 CFR part 245a, the crime shall be 
treated as a misdemeanor.
    (q) Subject of an Order to Show Cause means actual service of the 
Order to Show Cause upon the alien through the mail or by personal 
service.
    (r) A qualified designated entity in good-standing with the Service 
means those designated entities whose cooperative agreements were not 
suspended or terminated by the Service or those whose agreements were 
not allowed to lapse by the Service prior to January 30, 1989 (the 
expiration date of the INS cooperative agreements for all designated 
entities), or those whose agreements were not terminated for cause by 
the Service subsequent to January 30, 1989.
    Subsequent to January 30, 1989, and throughout the period ending on 
November 6, 1990, a QDE in good-standing may: (1) Serve as an authorized 
course provider under Sec. 245a.3(b)(5)(i)(C) of this chapter; (2) 
Administer the IRCA Test for Permanent Residency (proficiency test), 
provided an agreement has been entered into with and authorization has 
been given by INS under Sec. 245a.1(s)(5) of this chapter; and, (3) 
Certify as true and complete copies of original documents submitted in 
support of Form I-698 in the format prescribed in Sec. 245a.3(d)(2) of 
this chapter.
    (s) Satisfactorily pursuing, as used in section 245A(b)(1)(D)(i)(II) 
of the Act, means:
    (1) An applicant for permanent resident status has attended a 
recognized program for at least 40 hours of a minimum 60-hour course as 
appropriate for his or her ability level, and is demonstrating progress 
according to the performance standards of the English/citizenship course 
prescribed by the recognized program in which he or she is enrolled (as 
long as enrollment occurred on or after May 1, 1987, course standards 
include attainment of particular functional skills related to 
communicative ability, subject matter knowledge, and English language 
competency, and attainment of these skills is measured either by 
successful completion of learning objectives appropriate to the 
applicant's ability level, or attainment of a determined score on a test 
or tests, or both of these); or
    (2) An applicant presents a high school diploma or general 
educational development diploma (GED) from a school in the United 
States. A GED gained in a language other than English is acceptable only 
if a GED English proficiency test has been passed. (The curriculum for 
both the high school diploma and the GED must have included at least 40 
hours of instruction in English and U.S. history and government); or
    (3) An applicant has attended for a period of one academic year (or 
the equivalent thereof according to the standards of the learning 
institution), a state recognized, accredited learning institution in the 
United States and that institution certifies such attendance (as long as 
the curriculum included at least 40 hours of instruction in English and 
U.S. history and government); or
    (4) An applicant has attended courses conducted by employers, 
social, community, or private groups certified (retroactively, if 
necessary, as long as enrollment occurred on or after May 1, 1987, and 
the curriculum included at least 40 hours of instruction in English and 
U.S. history and government) by the district director or the Director of 
the Outreach Program under Sec. 245a.3(b)(5)(i)(D) of this chapter; or
    (5) An applicant attests to having completed at least 40 hours of 
individual study in English and U.S. history and government and passes 
the proficiency test for legalization, called the IRCA Test for 
Permanent Residency, indicating that the applicant is able to read and 
understand minimal

[[Page 632]]

functional English within the context of the history and government of 
the United States. Such test may be given by INS, as well as, State 
Departments of Education (SDEs) (and their accredited educational 
agencies) and Qualified Designated Entities in good-standing (QDEs) upon 
agreement with and authorization by INS. Those SDEs and QDEs wishing to 
participate in this effort should write to the Director of the INS 
Outreach Program at 425 ``I'' Street, NW., Washington, DC 20536, for 
further information.
    (t) Minimal understanding of ordinary English as used in section 
245A(b)(1)(D)(i) of the Act means an applicant can satisfy basic 
survival needs and routine social demands. The person can handle jobs 
that involve following simple oral and very basic written communication.
    (u) Curriculum means a defined course for an instructional program. 
Minimally, the curriculum prescribes what is to be taught, how the 
course is to be taught, with what materials, and when and where. The 
curriculum must:
    (1) Teach words and phrases in ordinary, everyday usage;
    (2) Include the content of the Federal Citizenship Text series as 
the basis for curriculum development (other texts with similar content 
may be used in addition to, but not in lieu of, the Federal Citizenship 
Text series);
    (3) Be designed to provide at least 60 hours of instruction per 
class level;
    (4) Be relevant and educationally appropriate for the program focus 
and the intended audience; and
    (5) Be available for examination and review by INS as requested.
    (v) The term developmentally disabled means the same as the term 
developmental disability defined in section 102(5) of the Developmental 
Disabilities Assistance and Bill of Rights Act of 1987, Public Law 100-
146. As a convenience to the public, that definition is printed here in 
its entirety:

    The term developmental disability means a severe, chronic disability 
of a person which:
    (1) Is attributable to a mental or physical impairment or 
combination of mental and physical impairments;
    (2) Is manifested before the person attains age twenty-two;
    (3) Is likely to continue indefinitely;
    (4) Results in substantial functional limitations in three or more 
of the following areas of major life activity: (i) Self-care, (ii) 
receptive and expressive language, (iii) learning, (iv) mobility, (v) 
self direction, (vi) capacity for independent living, and (vii) economic 
self-sufficiency; and
    (5) Reflects the person's need for a combination and sequence of 
special, interdisciplinary, or generic care, treatment, or other 
services which are of lifelong or extended duration and are individually 
planned and coordinated.

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



Sec. 245a.2  Application for temporary residence.

    (a) Application period for temporary residence. (1) An alien who has 
resided unlawfully in the United States since January 1, 1982, who 
believes that he or she meets the eligibility requirements of section 
245A of the Act must make application within the twelve month period 
beginning on May 5, 1987 and ending on May 4, 1988, except as provided 
in the following paragraphs.
    (2)(i) [Reserved]
    (ii) An alien who is the subject of an Order to Show Cause issued 
under section 242 of the Act during the period beginning on May 5, 1987 
and ending on April 4, 1988 must file an application for adjustment of 
status to that of a temporary resident prior to the thirty-first day 
after the issuance of the Order to Show Cause.
    (iii) An alien who is the subject of an Order to Show Cause issued 
under section 242 of the Act during the period beginning on April 5, 
1988 and ending on May 4, 1988 must file an application for adjustment 
of status to that of a temporary resident not later than May 4, 1988.
    (iv) An alien, described in paragraphs (a)(2)(i) through (iii) of 
this section, who fails to file an application for adjustment of status 
to that of a temporary resident under section 245A(a) of the Act during 
the respective time period(s), will be statutorily ineligible for such 
adjustment of status.
    (b) Eligibility. The following categories of aliens, who are 
otherwise eligible to apply for legalization, may file

[[Page 633]]

for adjustment to temporary residence status:
    (1) An alien (other than an alien who entered as a nonimmigrant) who 
establishes that he or she entered the United States prior to January 1, 
1982, and who has thereafter resided continuously in the United States 
in an unlawful status, and who has been physically present in the United 
States from November 6, 1986, until the date of filing the application.
    (2) An alien who establishes that he or she entered the United 
States as a nonimmigrant prior to January 1, 1982, and whose period of 
authorized admission expired through the passage of time prior to 
January 1, 1982, and who has thereafter resided continuously in the 
United States in an unlawful status, and who has been physically present 
in the United States from November 6, 1986, until the date of filing the 
application.
    (3) An alien who establishes that he or she entered the United 
States as a nonimmigrant prior to January 1, 1982, and whose unlawful 
status was known to the Government as of January 1, 1982, and who has 
thereafter resided continuously in the United States in an unlawful 
status, and who has been physically present in the United States from 
November 6, 1986, until the date of filing the application.
    (4) An alien described in paragraphs (b) (1) through (3) of this 
section who was at any time a nonimmigrant exchange visitor (as defined 
in section 101(a)(15)(J) of the Act), must establish that he or she was 
not subject to the two-year foreign residence requirements of section 
212(e) or has fulfilled that requirement or has received a waiver of 
such requirements and has resided continuously in the United States in 
unlawful status since January 1, 1982.
    (5) An alien who establishes that he or she was granted voluntary 
departure, voluntary return, extended voluntary departure or placed in 
deferred action category by the Service prior to January 1, 1982 and who 
has thereafter resided continuously in such status in the United States 
and who has been physically present in the United States from November 
6, 1986 until the date of filing the application.
    (6) An alien who establishes that he or she was paroled into the 
United States prior to January 1, 1982, and whose parole status 
terminated prior to January 1, 1982, and who has thereafter resided 
continuously in such status in the United States, and who has been 
physically present in the United States from November 6, 1986, until the 
date of filing the application.
    (7) An alien who establishes that he or she is a Cuban or Haitian 
Entrant who was physically present in the United States prior to January 
1, 1982, and who has thereafter resided continuously in the United 
States, and who has been physically present in the United States from 
November 6, 1986, until the date of filing the application, without 
regard to whether such alien has applied for adjustment of status 
pursuant to section 202 of the Act.
    (8) An alien's eligibility under the categories described in section 
245(a)(2)(b) (1) through (7) and (9) through (15) shall not be affected 
by entries to the United States subsequent to January 1, 1982 that were 
not documented on Service Form I-94, Arrival-Departure Record.
    (9) An alien who would be otherwise eligible for legalization and 
who was present in the United States in an unlawful status prior to 
January 1, 1982, and reentered the United States as a nonimmigrant, such 
entry being documented on Service Form I-94, Arrival-Departure Record, 
in order to return to an unrelinquished unlawful residence.
    (10) An alien described in paragraph (b)(9) of this section must 
receive a waiver of the excludable charge 212(a)(19) as an alien who 
entered the United States by fraud.
    (11) A nonimmigrant who entered the United States for duration of 
status (``D/S'') is one of the following classes, A, A-1, A-2, G, G-1, 
G-2, G-3 or G-4, whose qualifying employment terminated or who ceased to 
be recognized by the Department of State as being entitled to such 
classification prior to January 1, 1982, and who has thereafter 
continued to reside in the United States in an unlawful status. An alien 
who was a dependent family member and who may be otherwise eligible for 
legalization may be considered a member of this class of eligible aliens 
if the

[[Page 634]]

dependent family member was also in A and G status when the principal A 
or G alien's status terminated or ceased to be recognized by the 
Department of State.
    (12) A nomimmigrant who entered the United States for duration of 
status (``D/S'') in one of the following classes, F, F-1, or F-2, who 
completed a full course of study, including practical training and whose 
time period if any to depart the United States after completion of study 
expired prior to January 1, 1982 and who has remained in the United 
States in an unlawful status since that time. A dependent F-2 alien 
otherwise eligible who was admitted into the United States with a 
specific time period, as opposed to duration of status, documented on 
Service Form I-94, Arrival-Departure Record that extended beyond January 
1, 1982 is considered eligible if the principal F-1 alien is found 
eligible.
    (13) An alien who establishes that he or she is a member of the 
class in the Silva-Levi lawsuit (No. 76-C-4268 (N.D. ILL. March 22, 
1977)); that is, an alien from an independent country of the Western 
Hemisphere who was present in the United States prior to March 11, 1977, 
and was known by the Immigration and Naturalization Service (INS) to 
have a priority date for the issuance of an immigrant visa between July 
1, 1968 and December 31, 1976, inclusive, and who was clearly eligible 
for an immigrant visa.
    (14) An alien who filed an asylum application prior to January 1, 
1982 and whose application was subsequently denied or whose application 
has not yet been decided is considered an alien in an unlawful status 
known to the government.
    (15) An alien, otherwise eligible who departed the United States and 
was paroled into the United States on or before May 1, 1987 in order to 
return to an unrelinquished unlawful residence.
    (c) Ineligible aliens. (1) An alien who has been convicted of a 
felony, or three or more misdemeanors.
    (2) An alien who has assisted in the persecution of any person or 
persons on account of race, religion, nationality, membership in a 
particular social group or political opinion.
    (3) An alien excludable under the provisions of section 212(a) of 
the Act whose grounds of excludability may not be waived, pursuant to 
section 245A(d)(2)(B)(ii) of this Act.
    (4) An alien who at any time was a nonimmigrant exchange visitor who 
is subject to the two-year foreign residence requirement unless the 
requirement has been satisfied or waived pursuant to the provisions of 
section 212(e) of the Act who has resided continuously in the United 
States in an unlawful status since January 1, 1982.
    (5) [Reserved]
    (6) An alien who is the subject of an Order to Show Cause issued 
under section 242 of the Act during the period beginning on May 5, 1987 
and ending on April 4, 1988 who does not file an application for 
adjustment of status to that of temporary resident under section 245A(a) 
of the Act prior to the thirty-first day after issuance of the order.
    (7) An alien who is the subject of an Order to Show Cause issued 
under section 242 of the Act during the period beginning on April 5, 
1988 and ending on May 4, 1988 who does not file an application for 
adjustment of status to that of a temporary resident under section 
245A(a) of the Act prior to May 5, 1988.
    (8) An alien who was paroled into the United States prior to January 
1, 1982 and whose parole status terminated or expired subsequent to 
January 1, 1982, except an alien who was granted advance parole.
    (d) Documentation. Evidence to support an alien's eligibility for 
the legalization program shall include documents establishing proof of 
identity, proof of residence, and proof of financial responsibility, as 
well as photographs, a completed fingerprint card (Form FD-258), and a 
completed medical report of examination (Form I-693). All documentation 
submitted will be subject to Service verification. Applications 
submitted with unverifiable documentation may be denied. Failure by an 
applicant to authorize release to INS of information protected by the 
Privacy Act and/or related laws in order for INS to adjudicate a claim 
may result in denial of the benefit

[[Page 635]]

sought. Acceptable supporting documents for these three categories are 
discussed below.
    (1) Proof of identity. Evidence to establish identity is listed 
below in descending order of preference:
    (i) Passport;
    (ii) Birth certificate;
    (iii) Any national identity document from the alien's country of 
origin bearing photo and fingerprint (e.g., a ``cedula'' or 
``cartilla'');
    (iv) Driver's license or similar document issued by a state if it 
contains a photo;
    (v) Baptismal Record/Marriage Certificate; or
    (vi) Affidavits.
    (2) Assumed names--(i) General. In cases where an applicant claims 
to have met any of the eligibility criteria under an assumed name, the 
applicant has the burden of proving that the applicant was in fact the 
person who used that name. The applicant's true identity is established 
pursuant to the requirements of paragraph (d)(1) of this section. The 
assumed name must appear in the documentation provided by the applicant 
to establish eligibility. To meet the requirements of this paragraph 
documentation must be submitted to prove the common identity, i.e., that 
the assumed name was in fact used by the applicant.
    (ii) Proof of common identity. The most persuasive evidence is a 
document issued in the assumed name which identifies the applicant by 
photograph, fingerprint or detailed physical description. Other evidence 
which will be considered are affidavit(s) by a person or persons other 
than the applicant, made under oath, which identify the affiant by name 
and address, state the affiant's relationship to the applicant and the 
basis of the affiant's knowledge of the applicant's use of the assumed 
name. Affidavits accompanied by a photograph which has been identified 
by the affiant as the individual known to affiant under the assumed name 
in question will carry greater weight.
    (3) Proof of residence. Evidence to establish proof of continuous 
residence in the United States during the requisite period of time may 
consist of any combination of the following:
    (i) Past employment records, which may consist of pay stubs, W-2 
Forms, certification of the filing of Federal income tax returns on IRS 
Form 6166, state verification of the filing of state income tax returns, 
letters from employer(s) or, if the applicant has been in business for 
himself or herself, letters from banks and other firms with whom he or 
she has done business. In all of the above, the name of the alien and 
the name of the employer or other interested organization must appear on 
the form or letter, as well as relevant dates. Letters from employers 
should be on employer letterhead stationery, if the employer has such 
stationery, and must include:
    (A) Alien's address at the time of employment;
    (B) Exact period of employment;
    (C) Periods of layoff;
    (D) Duties with the company;
    (E) Whether or not the information was taken from official company 
records; and
    (F) Where records are located and whether the Service may have 
access to the records.

If the records are unavailable, an affidavit form-letter stating that 
the alien's employment records are unavailable and why such records are 
unavailable may be accepted in lieu of (3)(i)(E) and (3)(i)(F) of this 
paragraph. This affidavit form-letter shall be signed, attested to by 
the employer under penalty of perjury, and shall state the employer's 
willingness to come forward and give testimony if requested.
    (ii) Utility bills (gas, electric, phone, etc.), receipts, or 
letters from companies showing the dates during which the applicant 
received service are acceptable documentation.
    (iii) School records (letters, report cards, etc.) from the schools 
that the applicant or their children have attended in the United States 
must show name of school and periods of school attendance.
    (iv) Hospital or medical records showing treatment or 
hospitalization of the applicant or his or her children must show the 
name of the medical facility or physician and the date(s) of the 
treatment or hospitalization.

[[Page 636]]

    (v) Attestations by churches, unions, or other organizations to the 
applicant's residence by letter which:
    (A) Identifies applicant by name;
    (B) Is signed by an official (whose title is shown);
    (C) Shows inclusive dates of membership;
    (D) States the address where applicant resided during membership 
period;
    (E) Includes the seal of the organization impressed on the letter or 
the letterhead of the organization, if the organization has letterhead 
stationery;
    (F) Establishes how the author knows the applicant; and
    (G) Establishes the origin of the information being attested to.
    (vi) Additional documents to support the applicant's claim may 
include:
    (A) Money order receipts for money sent in or out of the country;
    (B) Passport entries;
    (C) Birth certificates of children born in the United States;
    (D) Bank books with dated transactions;
    (E) Letters or correspondence between applicant and another person 
or organization;
    (F) Social Security card;
    (G) Selective Service card;
    (H) Automobile license receipts, title, vehicle registration, etc.;
    (I) Deeds, mortgages, contracts to which applicant has been a party;
    (J) Tax receipts;
    (K) Insurance policies, receipts, or letters; and
    (L) Any other relevant document.
    (4) Proof of financial responsibility. An applicant for adjustment 
of status under this part is subject to the provisions of section 
212(a)(15) of the Act relating to excludability of aliens likely to 
become public charges. Generally, the evidence of employment submitted 
under paragraph (d)(3)(i) of this section will serve to demonstrate the 
alien's financial responsibility during the documented period(s) of 
employment. If the alien's period(s) of residence in the United States 
include significant gaps in employment or if there is reason to believe 
that the alien may have received public assistance while employed, the 
alien may be required to provide proof that he or she has not received 
public cash assistance. An applicant for residence who is determined 
likely to become a public charge and is unable to overcome this 
determination after application of the special rule will be denied 
adjustment. The burden of proof to demonstrate the inapplicability of 
this provision of law lies with the applicant who may provide:
    (i) Evidence of a history of employment (i.e., employment letter, W-
2 Forms, income tax returns, etc.);
    (ii) Evidence that he/she is self-supporting (i.e., bank statements, 
stocks, other assets, etc.); or
    (iii) Form I-134, Affidavit of Support, completed by a spouse in 
behalf of the applicant and/or children of the applicant or a parent in 
behalf of children which guarantees complete or partial financial 
support. Acceptance of the affidavit of support shall be extended to 
other family members where family circumstances warrant.
    (5) Burden of proof. An alien applying for adjustment of status 
under this part has the burden of proving by a preponderance of the 
evidence that he or she has resided in the United States for the 
requisite periods, is admissible to the United States under the 
provisions of section 245a of the Act, and is otherwise eligible for 
adjustment of status under this section. The inference to be drawn from 
the documentation provided shall depend on the extent of the 
documentation, its credibility and amenability to verification as set 
forth in paragraph (d) of this section.
    (6) Evidence. The sufficiency of all evidence produced by the 
applicant will be judged according to its probative value and 
credibility. To meet his or her burden of proof, an applicant must 
provide evidence of eligibility apart from his or her own testimony. In 
judging the probative value and credibility of the evidence submitted, 
greater weight will be given to the submission of original 
documentation.
    (e) Filing of application. (1) The application must be filed on Form 
I-687 at an office of a designated entity or at a Service Legalization 
Office within the jurisdiction of the District wherein the applicant 
resides. If the application is filed with a designated entity, the alien 
must have consented to having the designated entity forward the 
application

[[Page 637]]

to the legalization office. In the case of applications filed at a 
legalization office, the district director may, at his or her 
discretion:
    (i) Require the applicant to file the application in person; or
    (ii) Require the applicant to file the application by mail; or
    (iii) Permit the filing of applications either by mail or in person.

    The applicant must appear for a personal interview at the 
legalization office as scheduled. If the applicant is 14 years of age or 
older, the application must be accompanied by a completed Form FD-258 
(Applicant Card).
    (2) At the time of the interview, wherever possible, original 
documents must be submitted except the following: Official government 
records; employment or employment-related records maintained by 
employers, unions, or collective bargaining organizations; medical 
records; school records maintained by a school or school board; or other 
records maintained by a party other than the applicant. Copies of 
records maintained by parties other than the applicant which are 
submitted in evidence must be certified as true and correct by such 
parties and must bear their seal or signature or the signature and title 
of persons authorized to act in their behalf. If at the time of the 
interview the return of original documents is desired by the applicant, 
they must be accompanied by notarized copies or copies certified true 
and correct by a qualified designated entity or by the alien's 
representative in the format prescribed in Sec. 204.2(j)(1) or (2) of 
this chapter. At the discretion of the district director, original 
documents, even if accompanied by certified copies, may be temporarily 
retained for forensic examination by the Document Analysis Unit at the 
Regional Processing Facility having jurisdiction over the legalization 
office to which the documents were submitted.
    (3) A separate application (I-687) must be filed by each eligible 
applicant. All fees required by Sec. 103.7(b)(1) of this chapter must 
be submitted in the exact amount in the form of a money order, cashier's 
check, or certified bank check, made payable to the Immigration and 
Naturalization Service. No personal checks or currency will be accepted. 
Fees will not be waived or refunded under any circumstances.
    (f) Filing date of application. The date the alien submits a 
completed application to a Service Legalization Office or designated 
entity shall be considered the filing date of the application, provided 
that in the case of an application filed at a designated entity the 
alien has consented to having the designated entity forward the 
application to the Service Legalization Office having jurisdiction over 
the location of the alien's residence. The designated entities are 
required to forward completed applications to the appropriate Service 
Legalization Office within sixty days of receipt.
    (g) Selective Service registration. At the time of filing an 
application under this section, male applicants over the age of 17 and 
under the age of 26 are required to be registered under the Military 
Selective Service Act. An applicant shall present evidence that he has 
previously registered under that Act in the form of a letter of 
acknowledgement from the Selective Service System, or such alien shall 
present a completed and signed Form SSS-1 at the time of filing Form I-
687 with the Immigration and Naturalization Service or a designated 
entity. Form SSS-1 will be forwarded to the Selective Service System by 
the Service.
    (h) Continuous residence. (1) For the purpose of this Act, an 
applicant for temporary resident status shall be regarded as having 
resided continuously in the United States if, at the time of filing of 
the application:
    (i) No single absence from the United States has exceeded forty-five 
(45) days, and the aggregate of all absences has not exceeded one 
hundred and eighty (180) days between January 1, 1982 through the date 
the application for temporary resident status is filed, unless the alien 
can establish that due to emergent reasons, his or her return to the 
United States could not be accomplished within the time period allowed;
    (ii) The alien was maintaining a residence in the United States; and
    (iii) The alien's departure from the United States was not based on 
an order of deportation.

[[Page 638]]

    (2) An alien who has been absent from the United States in 
accordance with the Service's advance parole procedures shall not be 
considered as having interrupted his or her continuous residence as 
required at the time of filing an application under this section.
    (i) Medical examination. An applicant under this part shall be 
required to submit to an examination by a designated civil surgeon at no 
expense to the government. The designated civil surgeon shall report on 
the findings of the mental and physical condition of the applicant and 
the determination of the alien's immunization status. Results of the 
medical examination must be presented to the Service at the time of 
interview and shall be incorporated into the record. Any applicant 
certified under paragraphs (1), (2), (3), (4), or (5) of section 212(a) 
of the Act may appeal to a Board of Medical Officers of the U.S. Public 
Health Service as provided in section 234 of the Act and part 235 of 
this chapter.
    (j) Interview. Each applicant, regardless of age, must appear at the 
appropriate Service Office and must be fingerprinted for the purpose of 
issuance of an employment authorization document and Form I-688. Each 
applicant shall be interviewed by an immigration officer, except that 
the interview may be waived for a child under 14, or when it is 
impractical because of the health or advanced age of the applicant.
    (k) Applicability of exclusion grounds--(1) Grounds of exclusion not 
to be applied. The following paragraphs of section 212(a) of the Act 
shall not apply to applicants for temporary resident status: (14) 
Workers entering without Labor Certification; (20) immigrants not in 
possession of a valid entry document; (21) visas issued without 
compliance with section 203; (25) illiterates; and (32) graduates of 
non-accredited medical schools.
    (2) Waiver of grounds of exclusion. Except as provided in paragraph 
(k)(3) of this section, the Attorney General may waive any other 
provision of section 212(a) of the Act only in the case of individual 
aliens for humanitarian purposes, to assure family unity, or when the 
granting of such a waiver is in the public interest. If an alien is 
excludable on grounds which may be waived as set forth in this 
paragraph, he or she shall be advised of the procedures for applying for 
a waiver of grounds of excludability on Form I-690. When an application 
for waiver of grounds of excludability is filed jointly with an 
application for temporary residence under this section, it shall be 
accepted for processing at the legalization office. If an application 
for waiver of grounds of excludability is submitted after the alien's 
preliminary interview at the legalization office, it shall be forwarded 
to the appropriate Regional Processing Facility. All applications for 
waivers of grounds of excludability must be accompanied by the correct 
fee in the exact amount. All fees for applications filed in the United 
States must be in the form of a money order, cashier's check, or bank 
check. No personal checks or currency will be accepted. Fees will not be 
waived or refunded under any circumstances. An application for waiver of 
grounds of excludability under this part shall be approved or denied by 
the director of the Regional Processing Facility in whose jurisdiction 
the applicant's application for adjustment of status was filed except 
that in cases involving clear statutory ineligibility or admitted fraud, 
such application may be denied by the district director in whose 
jurisdiction the application is filed, and in cases returned to a 
Service Legalization Office for re-interview, such application may be 
approved at the discretion of the district director. The applicant shall 
be notified of the decision and, if the application is denied, of the 
reason therefor. Appeal from an adverse decision under this part may be 
taken by the applicant on Form I-694 within 30 days after the service of 
the notice only to the Service's Administrative Appeals Unit pursuant to 
the provisions of Sec. 103.3(a) of this chapter.
    (3) Grounds of exclusion that may not be waived. Notwithstanding any 
other provision of the Act, the following provisions of section 212(a) 
may not be waived by the Attorney General under paragraph (k)(2) of this 
section:
    (i) Paragraphs (9) and (10) (criminals);

[[Page 639]]

    (ii) Paragraph (23) (narcotics) except for a single offense of 
simple possession of thirty grams or less of marijuana;
    (iii) Paragraphs (27) (prejudicial to the public interest), (28) 
(communist), and (29) (subversive);
    (iv) Paragraph (33) (participated in Nazi persecution).
    (4) Special rule for determination of public charge. An alien who 
has a consistent employment history which shows the ability to support 
himself or herself even though his or her income may be below the 
poverty level, may be admissible. The alien's employment history need 
not be continuous in that it is uninterrupted. It should be continuous 
in the sense that the alien shall be regularly attached to the 
workforce, has an income over a substantial period of the applicable 
time, and has demonstrated the capacity to exist on his or her income 
without recourse to public cash assistance. This regulation is 
prospective in that the Service shall determine, based on the alien's 
history, whether he or she is likely to become a public charge. Past 
acceptance of public cash assistance within a history of consistent 
employment will enter into this decision. The weight given in 
considering applicability of the public charge provisions will depend on 
many factors, but the length of time an applicant has received public 
cash assistance will constitute a significant factor.
    (5) Public assistance and criminal history verification. 
Declarations by an applicant that he or she has not been the recipient 
of public cash assistance and/or has not had a criminal record are 
subject to a verification of facts by the Service. The applicant must 
agree to fully cooperate in the verification process. Failure to assist 
the Service in verifying information necessary for the adjudication of 
the application may result in a denial of the application.
    (l) Continous physical presence since November 6, 1986. (1) An alien 
applying for adjustment to temporary resident status must establish that 
he or she has been continuously physically present in the United States 
since November 6, 1986. Aliens who were outside of the United States on 
the date of enactment or departed the United States after enactment may 
apply for legalization if they reentered prior to May 1, 1987, and meet 
the continuous residence requirements and are otherwise eligible for 
legalization.
    (2) A brief, casual and innocent absence means a departure 
authorized by the Service (advance parole) subsequent to May 1, 1987 of 
not more than thirty (30) days for legitimate emergency or humanitarian 
purposes unless a further period of authorized departure has been 
granted in the discretion of the district director or a departure was 
beyond the alien's control.
    (m) Departure. (1) During the time period from the date that an 
alien's application establishing prima facie eligibility for temporary 
resident status is reviewed at a Service Legalization Office and the 
date status as a temporary resident is granted, the alien applicant can 
only be readmitted to the United States provided his or her departure 
was authorized under the Service's advance parole provisions contained 
in Sec. 212.5(f) of this chapter.
    (2) An alien whose application for temporary resident status has 
been approved may be admitted to the United States upon return as a 
returning temporary resident provided he or she:
    (i) Is not under deportation proceedings, such proceedings having 
been instituted subsequent to the approval of temporary resident status. 
A temporary resident alien will not be considered deported if that alien 
departs the United States while under an outstanding order of 
deportation issued prior to the approval of temporary resident status;
    (ii) Has not been absent from the United States more than thirty 
(30) days on the date application for admission is made;
    (iii) Has not been absent from the United States for an aggregate 
period of more than 90 days since the date the alien was granted lawful 
temporary resident status;
    (iv) Presents Form I-688;
    (v) Presents himself or herself for inspection; and
    (vi) Is otherwise admissible.
    (3) The periods of time in paragraph (m)(2)(ii) and (m)(2)(iii) of 
this section may be waived at the discretion of the Attorney General in 
cases where the absence from the United States was

[[Page 640]]

due merely to a brief temporary trip abroad due to emergent or 
extenuating circumstances beyond the alien's control.
    (n)(1) Employment and travel authorization; general. Authorization 
for employment and travel abroad for temporary resident status 
applicants under section 245A(a) of the Act may only be granted by a 
Service Office. INS district directors will determine the Service 
location for the completion of processing of travel documentation. In 
the case of an application which has been filed with a designated 
entity, employment authorization may only be granted by the Service 
after the application has been properly received at the Service Office.
    (2) Employment authorization prior to the granting of temporary 
resident status. (i) Permission to travel abroad and accept employment 
may be granted to the applicant after an interview has been conducted in 
connection with an application establishing prima facie eligibility for 
temporary resident status. Permission to travel abroad may be granted in 
emergent circumstances in accordance with the Service's advance parole 
provisions contained in Sec. 212.5(f) of this chapter after an 
interview has been conducted in connection with an application 
establishing prima facie eligiblity for temporary resident status.
    (ii) If an interview appointment cannot be scheduled within 30 days 
from the date an application is filed at a Service office, authorization 
to accept employment will be granted, valid until the scheduled 
appointment date. Employment authorization, both prior and subsequent to 
an interview, will be restricted to increments of 1 year, pending final 
determination on the application for temporary resident status. If a 
final determination has not been made prior to the expiration date on 
the Employment Authorization Document (Form I-766, Form I-688A or Form 
I-688B), that date may be extended upon return of the employment 
authorization document by the applicant to the appropriate Service 
office.
    (3) Employment and travel authorization upon grant of temporary 
resident status. Upon the granting of an application for adjustment to 
temporary resident status, the service center will forward a notice of 
approval to the applicant at his or her last known address and to his or 
her qualified designated entity or representative. The applicant may 
appear at any Service office and, upon surrender of the previously 
issued Employment Authorization Document, will be issued Form I-688, 
Temporary Resident Card, authorizing employment and travel abroad.
    (4) Revocation of employment authorization upon denial of temporary 
resident status. Upon denial of an application for adjustment to 
temporary resident status the alien will be notified that if a timely 
appeal is not submitted, employment authorization shall be automatically 
revoked on the final day of the appeal period.
    (o) Decision. The applicant shall be notified in writing of the 
decision, and, if the application is denied, of the reason therefor. An 
appeal from an adverse decision under this part may be taken by the 
applicant on Form I-694.
    (p) Appeal process. An adverse decision under this part may be 
appealed to the Associate Commissioner, Examinations (Administrative 
Appeals Unit). Any appeal with the required fee shall be filed with the 
Regional Processing Facility within thirty (30) days after service of 
the notice of denial in accordance with the procedures of Sec. 103.3(a) 
of this chapter. An appeal received after the thirty (30) day period has 
tolled will not be accepted. The thirty (30) day period includes any 
time required for service or receipt by mail.
    (q) Motions. The Regional Processing Facility director may sua 
sponte reopen and reconsider any adverse decision. When an appeal to the 
Associate Commissioner, Examinations (Administrative Appeals Unit) has 
been filed, the INS director of the Regional Processing Facility may 
issue a new decision that will grant the benefit which has been 
requested. The director's new decision must be served on the appealing 
party within 45 days of receipt of any briefs and/or new evidence, or 
upon expiration of the time allowed for the submission of any briefs. 
Motions to reopen a proceeding or reconsider a decision shall not be 
considered under this part.

[[Page 641]]

    (r) Certifications. The Regional Processing Facility director may, 
in accordance with Sec. 103.4 of this chapter, certify a decision to 
the Associate Commissioner, Examinations (Administrative Appeals Unit) 
when the case involves an unusually complex or novel question of law or 
fact. The party affected shall be given notice of such certification and 
of the right to submit a brief within thirty (30) days from service of 
the notice.
    (s) Date of adjustment to temporary residence. The status of an 
alien whose application for temporary resident status is approved shall 
be adjusted to that of a lawful temporary resident as of the date 
indicated on the application fee receipt issued at Service Legalization 
Office.
    (t) Limitation on access to information and confidentiality. (1) No 
person other than a sworn officer or employee of the Justice Department 
or bureau of agency thereof, will be permitted to examine individual 
applications, except employees of designated entities where applications 
are filed with the same designated entity. For purposes of this part, 
any individual employed under contract by the Service to work in 
connection with the legalization program shall be considered an 
``employee of the Justice Department or bureau or agency thereof.''
    (2) Files and records prepared by designated entites under this 
section are confidential. The Attorney General and the Service shall not 
have access to these files and records without the consent of the alien.
    (3) No information furnished pursuant to an application for 
legalization under this section shall be used for any purpose except: 
(i) To make a determination on the application; or, (ii) for the 
enforcement of the provisions encompassed in section 245A(c)(6) of the 
Act, except as provided in paragraph (t)(4) of this section.
    (4) If a determination is made by the Service that the alien has, in 
connection with his or her application, engaged in fraud or willful 
misrepresentation or concealment of a material fact, knowingly provided 
a false writing or document in making his or her application, knowingly 
made a false statement or representation, or engaged in any other 
activity prohibited by section 245A(c)(6) of the Act, the Service shall 
refer the matter to the United States Attorney for prosecution of the 
alien or of any person who created or supplied a false writing or 
document for use in an application for adjustment of status under this 
part.
    (5) Information obtained in a granted legalization application and 
contained in the applicant's file is subject to subsequent review in 
reference to future benefits applied for (including petitions for 
naturalization and permanent resident status for relatives).
    (u) Termination of temporary resident staus--(1) Termination of 
temporary resident status; General. The status of an alien lawfully 
admitted for temporary residence under section 245A(a)(1) of the Act may 
be terminated at any time in accordance with section 245A(b)(2) of the 
Act. It is not necessary that a final order of deportation be entered in 
order to terminate temporary resident status. The temporary resident 
status may be terminated upon the occurence of any of the following:
    (i) It is determined that the alien was ineligible for temporary 
residence under section 245A of this Act;
    (ii) The alien commits an act which renders him or her inadmissible 
as an immigrant, unless a waiver is secured pursuant to Sec. 
245a.2(k)(2).
    (iii) The alien is convicted of any felony, or three or more 
misdemeanors;
    (iv) The alien fails to file for adjustment of status from temporary 
resident to permanent resident on Form I-698 within forty-three (43) 
months of the date he/she was granted status as a temporary resident 
under Sec. 245a.1 of this part.
    (2) Procedure--(i) Termination by the Service. Except as provided in 
paragraph (u)(2)(ii) of this section, termination of an alien's 
temporary resident status under paragraph (u)(1) of this section will be 
made before instituting deportation proceedings against a temporary 
resident alien and only on notice sent to the alien by certified mail 
directed to his or her last known address, and to his or her 
representative, if any. The alien must be given an opportunity to offer 
evidence in opposition to the grounds alleged for termination of his or 
her status. Evidence in

[[Page 642]]

opposition must be submitted within thirty (30) days after the service 
of the Notice of Intent to Terminate. If the alien's status is 
terminated, the director of the regional processing facility shall 
notify the alien of the decision and the reasons for the termination, 
and further notify the alien that any Service Form I-94, Arrival-
Departure Record or other official Service document issued to the alien 
authorizing employment and/or travel abroad, or any Form I-688, 
Temporary Resident Card previously issued to the alien will be declared 
void by the director of the regional processing facility within thirty 
(30) days if no appeal of the termination decision is filed within that 
period. The alien may appeal the decision to the Associate Commissioner, 
Examinations (Administrative Appeals Unit). Any appeal with the required 
fee shall be filed with the regional processing facility within thirty 
(30) days after the service of the notice of termination. If no appeal 
is filed within that period, the I-94, I-688 or other official Service 
document shall be deemed void, and must be surrendered without delay to 
an immigration officer or to the issuing office of the Service.
    (ii) Termination upon entry of final order of deportation or 
exclusion. (A) The Service may institute deportation or exclusion 
proceedings against a temporary resident alien without regard to the 
procedures set forth in paragraph (u)(2)(i) of this section:
    (1) If the ground for deportation arises under section 
241(a)(2)(A)(iii) of the Act (8 U.S.C. 1251(a)(2)(A)(iii));
    (2) If the ground for deportation arises after the acquisition of 
temporary resident status, and the basis of such ground of deportation 
is not waivable pursuant to section 245A(d)(2)(B)(ii) of the Act (8 
U.S.C. 1255a(d)(2)(B)(ii)); or
    (3) If the ground for exclusion arises after the acquisition of 
temporary resident status and is not waivable pursuant to section 
245A(d)(2)(B)(ii) of the Act (8 U.S.C. 1255a(d)(2)(B)(ii)).
    (B) In such cases, the entry of a final order of deportation or 
exclusion will automatically terminate an alien's temporary resident 
status acquired under section 245A(a)(1) of the Act.
    (3) Termination not construed as rescission under section 246. For 
the purposes of this part the phrase termination of status of an alien 
granted lawful temporary residence under section 245A(a) of the Act 
shall not be construed to necessitate a rescission of status as 
described in section 246 of the Act, and the proceedings required by the 
regulations issued thereunder shall not apply.
    (4) Return to unlawful status after termination. Termination of the 
status of any alien previously adjusted to lawful temporary residence 
under section 245A(a) of the Act shall act to return such alien to the 
unlawful status held prior to the adjustment, and render him or her 
amenable to exclusion or deportation proceedings under section 236 or 
242 of the Act, as appropriate.
    (v) Ineligibility for immigration benefits. An alien whose status is 
adjusted to that of a lawful temporary resident under section 245A of 
the Act is not entitled to submit a petition pursuant to section 
203(a)(2) or to any other benefit or consideration accorded under the 
Act to aliens lawfuly admitted for permanent residence.
    (w) Declaration of Intending Citizen. An alien who has been granted 
the status of temporary resident under section 245A(a)(1) of this Act 
may assert a claim of discrimination on the basis of citizenship status 
under section 274B of the Act only if he or she has previously filed 
Form I-772 (Declaration of Intending Citizen) after being granted such 
status. The Declaration of Intending Citizen is not required as a basis 
for filing a petition for naturalization; nor shall it be regarded as a 
right to United States citizenship; nor shall it be regarded as evidence 
of a person's status as a resident.

[52 FR 16208, May 1, 1987, as amended at 52 FR 43845, 43846, Nov. 17, 
1987; 53 FR 23382, June 22, 1988; 54 FR 29449, July 12, 1989; 56 FR 
31061, July 9, 1991; 58 45236, Aug. 27, 1993; 60 FR 21040, May 1, 1995; 
60 FR 21975, May 4, 1995; 61 FR 46536, Sept. 4, 1996; 65 FR 82256, Dec. 
28, 2000]



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

status.

    (a) Application period for permanent residence. (1) An alien may 
submit an

[[Page 643]]

application for lawful permanent resident status, with fee, immediately 
subsequent to the granting of lawful temporary resident status. Any 
application received prior to the alien's becoming eligible for 
adjustment to permanent resident status will be administratively 
processed and held by the INS, but will not be considered filed until 
the beginning of the nineteenth month after the date the alien was 
granted temporary resident status as defined in Sec. 245a.2(s) of this 
chapter.
    (2) No application shall be denied for failure to timely apply 
before the end of 43 months from the date of actual approval of the 
temporary resident application.
    (3) The Service Center Director shall sua sponte reopen and 
reconsider without fee any application which was previously denied for 
late filing. No additional fee will be required for those applications 
which are filed during the twelve month extension period but prior to 
July 9, 1991.
    (b) Eligibility. Any alien who has been lawfully admitted for 
temporary resident status under section 245A(a) of the Act, such status 
not having been terminated, may apply for adjustment of status of that 
of an alien lawfully admitted for permanent residence if the alien:
    (1) Applies for such adjustment anytime subsequent to the granting 
of temporary resident status but on or before the end of 43 months from 
the date of actual approval of the termporary resident application. The 
alien need not be physically present in the United States at the time of 
application; however, the alien must establish continuous residence in 
the United States in accordance with the provisions of paragraph (b)(2) 
of this section and must be physically present in the United States at 
the time of interview and/or processing for permanent resident status 
(ADIT processing);
    (2) Establishes continuous residence in the United States since the 
date the alien was granted such temporary residence status. An alien 
shall be regarded as having resided continuously in the United States 
for the purpose of this part if, at the time of applying for adjustment 
from temporary to permanent resident status, or as of the date of 
eligibility for permanent residence, whichever is later, no single 
absence from the United States has exceeded thirty (30) days, and the 
aggregate of all absences has not exceeded ninety (90) days between the 
date of approval of the temporary resident application, Form I-687 (not 
the ``roll-back'' date) and the date the alien applied or became 
eligible for permanent resident status, whichever is later, unless the 
alien can establish that due to emergent reasons or circumstances beyond 
his or her control, the return to the United States could not be 
accomplished within the time period(s) allowed. A single absence from 
the United States of more than 30 days, and aggregate absences of more 
than 90 days during the period for which continuous residence is 
required for adjustment to permanent residence, shall break the 
continuity of such residence, unless the temporary resident can 
establish to the satisfaction of the district director or the Director 
of the Regional Processing Facility that he or she did not, in fact, 
abandon his or her residence in the United States during such period;
    (3) Is admissible to the United States as an immigrant, except as 
otherwise provided in paragraph (g) of this section; and has not been 
convicted of any felony, or three or more misdemeanors; and
    (4)(i)(A) Can demonstrate that the alien meets the requirements of 
section 312 of the Immigration and Nationality Act, as amended (relating 
to minimal understanding of ordinary English and a knowledge and 
understanding of the history and government of the United States); or
    (B) Is satisfactorily pursuing a course of study recognized by the 
Attorney General to achieve such an understanding of English and such a 
knowledge and understanding of the history and government of the United 
States.
    (ii) The requirements of paragraph (b)(4)(i) of this section must be 
met by each applicant. However, these requirements shall be waived 
without formal application for persons who, as of the date of 
application or the date of eligibility for permanent residence under 
this part, whichever date is later, are:
    (A) Under 16 years of age; or

[[Page 644]]

    (B) 65 years of age or older; or
    (C) Over 50 years of age who have resided in the United States for 
at least 20 years and submit evidence establishing the 20-year 
qualification requirement. Such evidence must be submitted pursuant to 
the requirements contained in Section 245a.2(d)(3) of this chapter; or
    (D) Developmentally disabled as defined at Sec. 245a.1(v) of this 
chapter. Such persons must submit medical evidence concerning their 
developmental disability; or
    (E) Physically unable to comply. The physical disability must be of 
a nature which renders the applicant unable to acquire the four language 
skills of speaking, understanding, reading, and writing English in 
accordance with the criteria and precedence established in OI 
312.1(a)(2)(iii) (Interpretations). Such persons must submit medical 
evidence concerning their physical disability.
    (iii)(A) Literacy and basic citizenship skills may be demonstrated 
for purposes of complying with paragraph (b)(4)(i)(A) of this section 
by:
    (1) Speaking and understanding English during the course of the 
interview for permanent resident status. An applicant's ability to read 
and write English shall be tested by excerpts from one or more parts of 
the Federal Textbooks on Citizenship at the elementary literacy level. 
The test of an applicant's knowledge and understanding of the history 
and form of government of the United States shall be given in the 
English language. The scope of the testing shall be limited to subject 
matter covered in the revised (1987) Federal Textbooks on Citizenship or 
other approved training material. The test questions shall be selected 
from a list of 100 standardized questions developed by the Service. In 
choosing the subject matter and in phrasing questions, due consideration 
shall be given to the extent of the applicant's education, background, 
age, length of residence in the United States, opportunities available 
and efforts made to acquire the requisite knowledge, and any other 
elements or factors relevant to an appraisal of the adequacy of his or 
her knowledge and understanding; or
    (2) By passing a standardized section 312 test (effective 
retroactively as of November 7, 1988) such test being given in the 
English language by the Legalization Assistance Board with the 
Educational Testing Service (ETS) or the California State Department of 
Education with the Comprehensive Adult Student Assessment System 
(CASAS). The scope of the test is based on the 1987 edition of the 
Federal Textbooks on Citizenship series written at the elementary 
literacy level. An applicant may evidence passing of the standardized 
section 312 test by submitting the approved testing organization's 
standard notice of passing test results at the time of filing Form I-
698, subsequent to filing the application but prior to the interview, or 
at the time of the interview. The test results may be independently 
verified by INS, if necessary.
    (B) An applicant who fails to pass the English literacy and/or the 
U.S. history and government tests at the time of the interview, shall be 
afforded a second opportunity after six (6) months (or earlier, at the 
request of the applicant) to pass the tests, submit evidence of passing 
an INS approved section 312 standardized examination or submit evidence 
of fulfillment of any one of the ``satisfactorily pursuing'' 
alternatives listed at Sec. 245a.1(s) of this chapter. The second 
interview shall be conducted prior to the denial of the application for 
permanent residence and may be based solely on the failure to pass the 
basic citizenship skills requirements. An applicant whose period of 
eligibility expires prior to the end of the six-month re-test period, 
shall still be accorded the entire six months within which to be re-
tested.
    (iv) To satisfy the English language and basic citizenship skills 
requirements under the ``satisfactorily pursuing'' standard as defined 
at Sec. 245a.1(s) of this chapter the applicant must submit evidence of 
such satisfactory pursuit in the form of a ``Certificate of Satisfactory 
Pursuit'' (Form I-699) issued by the designated school or program 
official attesting to the applicant's satisfactory pursuit of the course 
of study as defined at Sec. 245a.1(s)(1) and (4) of this chapter; or a 
high school diploma or general educational development diploma (GED)

[[Page 645]]

under Sec. 245a.1(s)(2) of this chapter; or certification on letterhead 
stationery from a state recognized, accredited learning institution 
under Sec. 245a.1(s)(3) of this chapter; or evidence of having passed 
the IRCA Test for Permanent Residency under Sec. 245a.1(s)(5) of this 
chapter. Such applicants shall not then be required to demonstrate that 
they meet the requirements of Sec. 245a.3(b)(4)(i)(A) of this chapter 
in order to be granted lawful permanent residence provided they are 
otherwise eligible. Evidence of ``Satisfactory Pursuit'' may be 
submitted at the time of filing Form I-698, subsequent to filing the 
application but prior to the interview, or at the time of the interview 
(the applicant's name and A90M number must appear on any such evidence 
submitted). An applicant need not necessarily be enrolled in a 
recognized course of study at the time of application for permanent 
residency.
    (v) Enrollment in a recognized course of study as defined in Sec. 
245a.3(b)(5) and issuance of a ``Certificate of Satisfactory Pursuit'' 
must occur subsequent to May 1, 1987.
    (5) A course of study in the English language and in the history and 
government of the United States shall satisfy the requirement of 
paragraph (b)(4)(i) of this section if the course materials for such 
instruction include textbooks published under the authority of section 
346 of the Act, and it is
    (i) Sponsored or conducted by: (A) An established public or private 
institution of learning recognized as such by a qualified state 
certifying agency; (B) An institution of learning approved to issue 
Forms I-20 in accordance with Sec. 214.3 of this chapter; (C) A 
qualified designated entity within the meaning of section 245A(c)(2) of 
the Act, in good-standing with the Service; or (D) Is certified by the 
district director in whose jurisdiction the program is conducted, or is 
certified by the Director of the Outreach Program nationally.
    (ii) A program seeking certification as a course of study recognized 
by the Attorney General under paragraph (b)(5)(i)(D) of this section 
shall file Form I-803, Petition for Attorney General Recognition to 
Provide Course of Study for Legalization: Phase II, with the Director of 
Outreach for national level programs or with the district director 
having jurisdiction over the area in which the school or program is 
located. In the case of local programs, a separate petition must be 
filed with each district director when a parent organization has schools 
or programs in more than one INS district. A petition must identify by 
name and address those schools or programs included in the petition. No 
fee shall be required to file Form I-803;
    (A) The Director of Outreach and the district directors may approve 
a petition where they have determined that (1) a need exists for a 
course of study in addition to those already certified under Sec. 
245a.3(b)(5)(i) (A), (B), or (C); and/or (2) of this chapter the 
petitioner has historically provided educational services in English and 
U.S. history and government but is not already certified under Sec. 
245a.3(b)(5)(i)(A), (B), or (C); and (3) of this chapter the petitioner 
is otherwise qualified to provide such course of study;
    (B) Upon approval of the petition the Director of Outreach and 
district directors shall issue a Certificate of Attorney General 
Recognition on Form I-804 to the petitioner. If the petition is denied, 
the petitioner shall be notified in writing of the decision therefor. No 
appeal shall lie from a denial of Form I-803, except that in such case 
where the petitions of a local, cross-district program are approved in 
one district and denied in another within the same State, the petitioner 
may request review of the denied petition by the appropriate Regional 
Commissioner. The Regional Commissioner shall then make a determination 
in this case;
    (C) Each district director shall compile and maintain lists of 
programs approved under paragraph (b)(5)(i)(D) of this section within 
his or her jurisdiction. The Director of Outreach shall compile and 
maintain lists of approved national level programs.
    (6) Notice of participation. All courses of study recognized under 
Sec. 245a.3(b)(5)(i)(A) through (C) of this chapter which are already 
conducting or will conduct English and U.S. history and government 
courses for temporary residents must submit a Notice of Participation to 
the district director in whose jurisdiction the program is

[[Page 646]]

conducted. Acceptance of ``Certificates of Satisfactory Pursuit'' (Form 
I-699) shall be delayed until such time as the course provider submits 
the Notice of Participation, which notice shall be in the form of a 
letter typed on the letterhead of the course provider (if available) and 
include the following:
    (i) The name(s) of the school(s)/program(s).
    (ii) The complete addresses and telephone numbers of sites where 
courses will be offered, and class schedules.
    (iii) The complete names of persons who are in charge of conducting 
English and U.S. history and government courses of study.
    (iv) A statement that the course of study will issue ``Certificates 
of Satisfactory Pursuit'' to temporary resident enrollees according to 
INS regulations.
    (v) A list of designated officials of the recognized course of study 
authorized to sign ``Certificates of Satisfactory Pursuit'', and samples 
of their original signatures.
    (vi) A statement that if a course provider charges a fee to 
temporary resident enrollees, the fee will not be excessive.
    (vii) Evidence of recognition under 8 CFR 245a.3(b)(5)(i)(A), (B), 
or (C) (e.g., certification from a qualified state certifying agency; 
evidence of INS approval for attendance by nonimmigrant students, such 
as the school code number, or the INS identification number from the QDE 
cooperative agreement).

The course provider shall notify the district director, in writing, of 
any changes to the information contained in the Notice of Participation 
subsequent to its submission within ten (10) days of such change.

A Certificate of Attorney General Recognition to Provide Course of Study 
for Legalization (Phase II), Form I-804, shall be issued to course 
providers who have submitted a Notice of Participation in accordance 
with the provisions of this section by the distict director. A Notice of 
Participation deficient in any way shall be returned to the course 
provider to correct the deficiency. Upon the satisfaction of the 
district director that the deficiency has been corrected, the course 
provider shall be issued Form I-804. Each district director shall 
compile and maintain lists of recognized courses within his or her 
district.
    (7) Fee structure. No maximum fee standard will be imposed by the 
Attorney General. However, if it is believed that a fee charged is 
excessive, this factor alone will justify non-certification of the 
course provider by INS as provided in Sec. 245a.3(b)(10) and/or (12) of 
this section. Once fees are established, any change in fee without prior 
approval of the district director or the Director of Outreach may 
justify de-certification. In determining whether or not a fee is 
excessive, district directors and the Director of Outreach shall 
consider such factors as the means of instruction, class size, 
prevailing wages of instructors in the area of the program, and 
additional costs such as rent, materials, utilities, insurance, and 
taxes. District directors and the Director of Outreach may also seek the 
assistance of various Federal, State and local entities as the need 
arises (e.g., State Departments of Education) to determine the 
appropriateness of course fees.
    (8) The Citizenship textbooks to be used by applicants for lawful 
permanent residence under section 245A of the Act shall be distributed 
by the Service to appropriate representatives of public schools. These 
textbooks may otherwise be purchased from the Superintendent of 
Documents, Government Printing Office, Washington, DC 20402, and are 
also available at certain public institutions.
    (9) Maintenance of Student Records. Course providers conducting 
courses of study recognized under Sec. 245a.3(b)(5) of this chapter 
shall maintain for each student, for a period of three years from the 
student's enrollment, the following information and documents:
    (i) Name (as copied exactly from the I-688A or I-688);
    (ii) A-number (90 million series);
    (iii) Date of enrollment;
    (iv) Attendance records;
    (v) Assessment records;
    (vi) Photocopy of signed ``Certificate of Satisfactory Pursuit'' 
issued to the student.
    (10) Issuance of ``Certificate of Satisfactory Pursuit'' (I-699). 
(i) Each recognized course of study shall prepare a standardized 
certificate that is signed by the designated official. The Certificate

[[Page 647]]

shall be issued to an applicant who has attended a recognized course of 
study for at least 40 hours of a minimum of 60-hour course as 
appropriate for his or her ability level, and is demonstrating progress 
according to the performance standards of the English and U.S. history 
and government course prescribed. Such standards shall conform with the 
provisions of Sec. 245a.1(s) of this chapter.
    (ii) The district director shall reject a certificate if it is 
determined that the certificate is fraudulent or was fraudulently 
issued.
    (iii) The district director shall reject a Certificate if it is 
determined that the course provider is not complying with INS 
regulations. In the case of non-compliance, the district director will 
advise the course provider in writing of the specific deficiencies and 
give the provider thirty (30) days within which to correct such 
deficiencies.
    (iv) District directors will accept Certificates from course 
providers once it is determined that the deficiencies have been 
satisfactorily corrected.
    (v) Course providers which engage in fraudulent activities or fail 
to conform with INS regulations will be removed from the list of INS 
approved programs. INS will not accept Certificates from these 
providers.
    (vi) Certificates may be accepted if a program is cited for 
deficiencies or decertified at a later date and no fraud was involved.
    (vii) Certificates shall not be accepted from a course provider that 
has been decertified unless the alien enrolled in and had been issued a 
certificate prior to the decertification, provided that no fraud was 
involved.
    (viii) The appropriate State agency responsbile for SLIAG funding 
shall be notified of all decertifications by the district director.
    (11) Designated official. (i) The designated official is the 
authorized person from each recognized course of study whose signature 
appears on all ``Certificates of Satisfactory Pursuit'' issued by that 
course;
    (ii) The designated official must be a regularly employed member of 
the school administration whose office is located at the school and 
whose compensation does not come from commissions for recruitment of 
foreign students;
    (iii)(A) The head of the school system or school, the director of 
the Qualified Designated Entity, the head of a program approved by the 
Attorney General, or the president or owner of other institutions 
recognized by the Attorney General must specify a designated official. 
Such designated official may not delegate this designation to any other 
person. Each school or institution may have up to three (3) designated 
officials at any one time. In a multi-campus institution, each campus 
may have up to three (3) designated officials at any one time;
    (B) Each designated official shall have read and otherwise be 
familiar with the ``Requirements and Guidelines for Courses of Study 
Recognized by the Attorney General''. The signature of a designated 
official shall affirm the official's compliance with INS regulations;
    (C) The name, title, and sample signature of each designated 
official for each recognized course of study shall be on file with the 
district director in whose jurisdiction the program is conducted.
    (12) Monitoring by INS. (i) INS Outreach personnel in conjunction 
with the district director shall monitor the course providers in each 
district in order to:
    (A) Assure that the program is a course of study recognized by the 
Attorney General under the provisions of Sec. 245a.3(b)(5).
    (B) Verify the existence of curriculm as defined in Sec. 245a.1(u) 
on file for each level of instruction provided in English language and 
U.S. history and government classes.
    (C) Assure that ``Certificates of Satisfactory Pursuit'' are being 
issued in accordance with Sec. 245a.3(b)(10).
    (D) Assure that records are maintained on each temporary resident 
enrollee in accordance with Sec. 245a.3(b)(9).
    (E) Assure that fees (if any) assessed by the course provider are in 
compliance in accordance with Sec. 245a.3(b)(7).
    (ii) If INS has reason to believe that the service is not being 
provided to the applicant, INS will issue a 24-hour minimum notice to 
the service provider before any site visit is conducted.

[[Page 648]]

    (iii) If it is determined that a course provider is not performing 
according to the standards established in either Sec. 245a.3(b)(10) or 
(12) of this chapter, the district director shall institute 
decertification proceedings. Notice of Intent to Decertify shall be 
provided to the course provider. The course provider has 30 days within 
which to correct performance according to standards established. If 
after the 30 days, the district director is not satisfied that the basis 
for decertification has been overcome, the course provider will be 
decertified. The appropriate State agency shall be notified in 
accordance with Sec. 245a.3(b)(10)(viii) of this chapter. A copy of the 
notice of decertification shall be sent to the State agency.
    (13) Courses of study recognized by the Attorney General as defined 
at Sec. 245a.3(b)(5) of this chapter shall provide certain standards 
for the selection of teachers. Since some programs may be in locations 
where selection of qualified staff is limited, or where budget 
constraints restrict options, the following list of qualities for 
teacher selection is provided as guidance. Teacher selections should 
include as many of the following qualities as possible:
    (i) Specific training in Teaching English to Speakers of Other 
Languages (TESOL);
    (ii) Experience as a classroom teacher with adults;
    (iii) Cultural sensitivity and openness;
    (iv) Familiarity with compentency-based education;
    (v) Knowledge of curriculum and materials adaptation;
    (vi) Knowledge of a second language.
    (c) Ineligible aliens. (1) An alien who has been convicted of a 
felony, or three or more misdemeanors in the United States.
    (2) An alien who is inadmissible to the United States as an 
immigrant, except as provided in Sec. 245a.3(g)(1).
    (3) An alien who was previously granted temporary resident status 
pursuant to section 245A(a) of the Act who has not filed an application 
for permanent resident status under section 245A(b)(1) of the Act by the 
end of 43 months from the date of actual approval of the temporary 
resident application.
    (4) An alien who was not previously granted temporary resident 
status under section 245A(a) of the Act.
    (5) An alien whose temporary resident status has been terminated 
under Sec. 245a.2(u) of this chapter
    (d) Filing the application. The provisions of part 211 of this 
chapter relating to the documentary requirements for immigrants shall 
not apply to an applicant under this part.
    (1) The application must be filed on Form I-698. Form I-698 must be 
accompanied by the correct fee and documents specified in the 
instructions. The application will be mailed to the director having 
jurisdiction over the applicant's place of residence.
    (2) Certification of documents. The submission of original documents 
is not required at the time of filing Form I-698. A copy of a document 
submitted in support of Form I-698 filed pursuant to section 245A(b) of 
the Act and this part may be accepted, though unaccompanied by the 
original, if the copy is certified as true and complete by
    (i) An attorney in the format prescribed in Sec. 204.2(j)(1) of 
this chapter; or
    (ii) An alien's representative in the format prescribed in Sec. 
204.2(j)(2) of this chapter; or
    (iii) A qualified designated entity (QDE) in good standing as 
defined in Sec. 245a.1(r) of this chapter, if the copy bears a 
certification by the QDE in good-standing, typed or rubber-stamped in 
the following language:

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

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

    (iv) Authentication. Certification of documents must be 
authenticated by an original signature. A facsimile signature on a 
rubber stamp will not be acceptable.

[[Page 649]]

    (v) Original documents. Original documents must be presented when 
requested by the Service. Official government records, employment or 
employment-related records maintained by employers, unions, or 
collective bargaining organizations, medical records, school records 
maintained by a school or school board or other records maintained by a 
party other than the applicant which are submitted in evidence must be 
certified as true and complete by such parties and must bear their seal 
or signature or the signature and title of persons authorized to act in 
their behalf. At the discretion of the district director and/or the 
Regional Processing Facility director, original documents may be kept 
for forensic examination.
    (3) A separate application (I-698) must be filed by each eligible 
applicant. All fees required by Sec. 103.7(b)(1) of this chapter must 
be submitted in the exact amount in the form of a money order, cashier's 
check or certified bank check. No personal checks or currency will be 
accepted. Fees will not be waived or refunded under any circumstances.
    (4) Applicants who filed for temporary resident status prior to 
December 1, 1987, are required to submit the results of a serologic test 
for HIV virus on Form I-693, ``Medical Examination of Aliens Seeking 
Adjustment of Status'', completed by a designated civil surgeon, unless 
the serologic test for HIV was performed and the results were submitted 
on Form I-693 when the applicant filed for temporary resident status. 
Applicants who did submit an I-693 reflecting a serologic test for HIV 
was performed prior to December 1, 1987, must submit evidence of this 
fact when filing the I-698 application in order to be relieved from the 
requirement of submitting another I-693. If such evidence is not 
available, applicants may note on their I-698 application their prior 
submission of the results of the serologic test for HIV. This 
information shall then be verified at the Regional Processing Facility. 
Applicants having to submit an I-693 pursuant to this section are not 
required to have a complete medical examination. All HIV-positive 
applicants shall be advised that a waiver of the ground of excludability 
under section 212(a)(6) of the Act is available and shall be provided 
the opportunity to apply for the waiver. To be eligible for the waiver, 
the applicant must establish that:
    (i) The danger to the public health of the United States created by 
the alien's admission to the United States is minimal,
    (ii) The possibility of the spread of the infection created by the 
alien's admission to the United States is minimal, and
    (iii) There will be no cost incurred by any government agency 
without prior consent of that agency. Provided these criteria are met, 
the waiver may be granted only for humanitarian purposes, to assure 
family unity, or when the granting of such a waiver is in the public 
interest in accordance with Sec. 245a.3(g)(2) of this chapter.
    (5) If necessary, the validity of an alien's temporary resident card 
(I-688) will be extended in increments of one (1) year until such time 
as the decision on an alien's properly filed application for permanent 
residence becomes final.
    (6) An application lacking the proper fee or incomplete in any way 
shall be returned to the applicant with request for the proper fee, 
correction, additional information, and/or documentation. Once an 
application has been accepted by the Service and additional information 
and/or documentation is required, the applicant shall be sent a notice 
to submit such information and/or documentation. In such case the 
application Form I-698 shall be retained at the RPF. If a response to 
this request is not received within 60 days, a second request for 
correction, additional information, and/or documentation shall be made. 
If the second request is not complied with by the end of 43 months from 
the date the application for temporary residence, Form I-687, was 
approved the application for permanent residence will be adjudicated on 
the basis of the existing record.
    (e) Interview. Each applicant regardless of age, must appear at the 
appropriate Service office and must be fingerprinted for the purpose of 
issuance of Form I-551. Each applicant shall be interviewed by an 
immigration officer, except that the adjudicative

[[Page 650]]

interview may be waived for a child under 14, or when it is impractical 
because of the health or advanced age of the applicant. An applicant 
failing to appear for the scheduled interview may, for good cause, be 
afforded another interview. Where an applicant fails to appear for two 
scheduled interviews, his or her application shall be held in abeyance 
until the end of 43 months from the date the application for temporary 
residence was approved and adjudicated on the basis of the existing 
record.
    (f) Numerical limitations. The numerical limitations of sections 201 
and 202 of the Act do not apply to the adjustment of aliens to lawful 
permanent resident status under section 245A(b) of the Act.
    (g) Applicability of exclusion grounds--(1) Grounds of exclusion not 
to be applied. The following paragraphs of section 212(a) of the Act 
shall not apply to applicants for adjustment of status from temporary 
resident to permanent resident status: (14) workers entering without 
labor certification; (20) immigrants not in possession of valid entry 
documents; (21) visas issued without compliance of section 203; (25) 
illiterates; and (32) graduates of non-accredited medical schools.
    (2) Waiver of grounds of excludability. Except as provided in 
paragraph (g)(3) of this section, the Service may waive any provision of 
section 212(a) of the Act only in the case of individual aliens for 
humanitarian purposes, to assure family unity, or when the granting of 
such a waiver is otherwise in the public interest. In any case where a 
provision of section 212(a) of the Act has been waived in connection 
with an alien's application for lawful temporary resident status under 
section 245A(a) of the Act, no additional waiver of the same ground of 
excludability will be required when the alien applies for permanent 
resident status under section 245A(b)(1) of the Act. In the event that 
the alien was excludable under any provision of section 212(a) of the 
Act at the time of temporary residency and failed to apply for a waiver 
in connection with the application for temporary resident status, or 
becomes excludable subsequent to the date temporary residence was 
granted, a waiver of the ground of excludability, if available, will be 
required before permanent resident status may be granted.
    (3) Grounds of exclusion that may not be waived. Notwithstanding any 
other provisions of the Act the following provisions of section 212(a) 
of the Act may not be waived by the Attorney General under paragraph 
(g)(2) of this section:
    (i) Paragraphs (9) and (10) (criminals);
    (ii) Paragraph (15) (public charge) except for an alien who is or 
was an aged, blind, or disabled individual (as defined in section 
1614(a)(1) of the Social Security Act);
    (iii) Paragraph (23) (narcotics), except for a single offense of 
simple possession of thirty grams or less of marijuana;
    (iv) Paragraphs (27) (prejudicial to the public interest), (28) 
(communists), and (29) (subversives);
    (v) Paragraph (33) (participated in Nazi persecution).
    (4) Determination of Likely to become a public charge and Special 
Rule. Prior to use of the special rule for determination of public 
charge, paragraph (g)(4)(iii) of this section, an alien must first be 
determined to be excludable under section 212(a)(15) of the Act. If the 
applicant is determined to be likely to become a public charge, he or 
she may still be admissible under the terms of the Special Rule.
    (i) In determining whether an alien is likely to become a public 
charge financial responsibility of the alien is to be established by 
examining the totality of the alien's circumstances at the time of his 
or her application for legalization. The existence or absence of a 
particular factor should never be the sole criteria for determining if 
an alien is likely to become a public charge. The determination of 
financial responsibility should be a prospective evaluation based on the 
alien's age, health, income, and vocation.
    (ii) The Special Rule for determination of public charge, paragraph 
(g)(4)(iii) of this section, is to be applied only after an initial 
determination that the alien is inadmissible under the provisions of 
section 212(a)(15) of the act.
    (iii) Special Rule. An alien who has a consistent employment history 
which

[[Page 651]]

shows the ability to support himself or herself even though his or her 
income may be below the poverty level is not excludable under paragraph 
(g)(3)(ii) of this section. The alien's employment history need not be 
continuous in that it is uninterrupted. It should be continuous in the 
sense that the alien shall be regularly attached to the workforce, has 
an income over a substantial period of the applicable time, and has 
demonstrated the capacity to exist on his or her income without recourse 
to public cash assistance. The Special Rule is prospective in that the 
Service shall determine, based on the alien's history, whether he or she 
is likely to become a public charge. Past acceptance of public cash 
assistance within a history of consistent employment will enter into 
this decision. The weight given in considering applicability of the 
public charge provisions will depend on many factors, but the length of 
time an applicant has received public cash assistance will constitute a 
significant factor. It is not necessary to file a waiver in order to 
apply the Special Rule for Determination of Public Charge.
    (5) Public cash assistance and criminal history verification. 
Declarations by an applicant that he or she has not been the recipient 
of public cash assistance and/or has not had a criminal record are 
subject to a verification of facts by the Service. The applicant must 
agree to fully cooperate in the verification process. Failure to assist 
the Service in verifying information necessary for proper adjudication 
may result in denial of the application.
    (h) Departure. An applicant for adjustment to lawful permanent 
resident status under section 245A(b)(1) of the Act who was granted 
lawful temporary resident status under section 245A(a) of the Act, shall 
be permitted to return to the United States after such brief and casual 
trips abroad, as long as the alien reflects a continuing intention to 
adjust to lawful permanent resident status. However, such absences from 
the United States must not exceed the periods of time specified in Sec. 
245a.3(b)(2) of this chapter in order for the alien to maintain 
continuous residence as specified in the Act.
    (i) Decision. The applicant shall be notified in writing of the 
decision, and, if the application is denied, of the reason therefor. 
Applications for permanent residence under this chapter will not be 
denied at local INS offices (districts, suboffices, and legalization 
offices) until the entire record of proceeding has been reviewed. An 
application will not be denied if the denial is based on adverse 
information not previously furnished to the Service by the alien without 
providing the alien an opportunity to rebut the adverse information and 
to present evidence in his or her behalf. If inconsistencies are found 
between information submitted with the adjustment application and 
information previously furnished to the Service, the applicant shall be 
afforded the opportunity to explain discrepancies or rebut any adverse 
information. A party affected under this part by an adverse decision is 
entitled to file an appeal on Form I-694. If an application is denied, 
work authorization will be granted until a final decision has been 
rendered on an appeal or until the end of the appeal period if no appeal 
is filed. An applicant whose appeal period has ended is no longer 
considered to be an Eligible Legalized Alien for the purposes of the 
administration of State Legalization Impact Assistance Grants (SLIAG) 
funding. An alien whose application is denied will not be required to 
surrender his or her temporary resident card (I-688) until such time as 
the appeal period has tolled, or until expiration date of the I-688, 
whichever date is later. After exhaustion of an appeal, an applicant who 
believes that the grounds for denial have been overcome may submit 
another application with fee, provided that the application is submitted 
within his or her eligibility period.
    (j) Appeal process. An adverse decision under this part may be 
appealed to the Associate Commissioner, Examinations (Administrative 
Appeals Unit) the appellate authority designated in Sec. 103.1(f)(2). 
Any appeal shall be submitted to the Regional Processing Facility with 
the required fee within thirty (30) days after service of the Notice of 
Denial in accordance with the procedures of Sec. 103.3(a) of this 
chapter. An appeal received after the thirty (30) day

[[Page 652]]

period has tolled will not be accepted. The thirty (30) day period for 
submitting an appeal begins three days after the notice of denial is 
mailed. If a review of the Record of Proceeding (ROP) is requested by 
the alien or his or her legal representative and an appeal has been 
properly filed, an additional thirty (30) days will be allowed for this 
review from the time the Record of Proceeding is photocopied and mailed. 
A brief may be submitted with the appeal form or submitted up to thirty 
(30) calendar days from the date of receipt of the appeal form at the 
Regional Processing Facility. Briefs filed after submission of the 
appeal should be mailed directly to the Regional Processing Facility. 
For good cause shown, the time within which a brief supporting an appeal 
may be submitted may be extended by the Director of the Regional 
Processing Facility.
    (k) Motions. The Regional Processing Facility director may reopen 
and reconsider any adverse decision sua sponte. When an appeal to the 
Associate Commissioner, Examinations (Administrative Appeals Unit) has 
been filed, the INS director of the Regional Processing Facility may 
issue a new decision that will grant the benefit which has been 
requested. The director's new decision must be served on the appealing 
party within forty-five (45) days of receipt of any briefs and/or new 
evidence, or upon expiration of the time allowed for the submission of 
any briefs.
    (l) Certifications. The Regional Processing Facility director or 
district director may, in accordance with Sec. 103.4 of this chapter, 
certify a decision to the Associate Commissioner, Examinations 
(Administrative Appeals Unit) when the case involves an unusually 
complex or novel question of law or fact. The decision on an appealed 
case subsequently remanded back to either the Regional Processing 
Facility director or the district director will be certified to the 
Administrative Appeals Unit.
    (m) Date of adjustment to permanent residence. The status of an 
alien whose application for permanent resident status is approved shall 
be adjusted to that of a lawful permanent resident as of the date of 
filing of the application for permanent residence or the eligibility 
date, whichever is later. For purposes of making application to petition 
for naturalization, the continuous residence requirements for 
naturalization shall begin as of the date the alien's status is adjusted 
to that of a person lawfully admitted for permanent residence under this 
part.
    (n) Limitation on access to information and confidentiality. (1) No 
person other than a sworn officer or employee of the Department of 
Justice or bureau of agency thereof, will be permitted to examine 
individual applications. For purposes of this part, any individual 
employed under contract by the Service to work in connection with the 
Legalization Program shall be considered an employee of the Department 
of Justice or bureau or agency thereof.
    (2) No information furnished pursuant to an application for 
permanent resident status under this section shall be used for any 
purpose except: (i) To make a determination on the application; or (ii) 
for the enforcement of the provisions encompassed in section 245A(c)(6) 
of the Act, except as provided in paragraph (n)(3) of this section.
    (3) If a determination is made by the Service that the alien has, in 
connection with his or her application, engaged in fraud or willful 
misrepresentation or concealment of a material fact, knowingly provided 
a false writing or document in making his or her application, knowingly 
made a false statement or representation, or engaged in any other 
activity prohibited by section 245A(c)(6) of the Act, the Service shall 
refer the matter to the United States Attorney for prosecution of the 
alien and/or of any person who created or supplied a false writing or 
document for use in an application for adjustment of status under this 
part.
    (4) Information contained in granted legalization files may be used 
by the Service at a later date to make a decision (i) On an immigrant 
visa petition or other status filed by the applicant under section 
204(a) of the Act; (ii) On a naturalization application submitted by the 
applicant; (iii) For the preparation of reports to Congress under 
section 404 of IRCA, or; (iv) For the furnishing of information, at the 
discretion of the Attorney General, in the

[[Page 653]]

same manner and circumstances as census information may be disclosed by 
the Secretary of Commerce under section 8 of title 13, Unites States 
Code.
    (o) Rescission. Rescission of adjustment of status under 245a shall 
occur under the guidelines established in section 246 of the Act.

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



Sec. 245a.4  Adjustment to lawful resident status of certain nationals of 

countries for which extended voluntary departure has been made available.

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

An alien who has been absent from the United States in accordance with 
the Service's advance parole procedures shall not be considered as 
having interrupted his or her continuous residence as required at the 
time of filing an application. An alien who, after appearing for a 
scheduled interview to obtain an immigrant visa at a Consulate or 
Embassy in Canada or Mexico but who subsequently is not issued an 
immigrant visa and who is paroled back into the United States pursuant 
to the stateside criteria program, shall be considered as having resided 
continuously.
    (4) Continous residence means that the alien shall be regarded as 
having resided continously in the United States if, at the time of 
applying for adjustment from temporary residence to permanent resident 
status: No single absence from the United States has exceeded 30 days, 
and the aggregate of all absences has not exceeded 90 days between the 
date on which lawful temporary resident status was granted and the date 
permanent resident status was applied for, unless the alien can 
establish that due to emergent reasons or extenuating circumstances 
beyond his or her control, the return to the United States could not be 
accomplished within the time period(s) allowed. A single absence from 
the United States of more than 30 days, and aggregate absences of more 
than 90 days during the period for which continuous residence is 
required for adjustment to permanent resident status, shall break the 
continuity of such residence unless the temporary resident can establish 
to the satisfaction of the district director that he or she did not, in 
fact, abandon his or her residence in the United States during such 
period.
    (5) To make a determination means obtaining and reviewing all 
information required to adjudicate an application for the benefit sought 
and making a decision thereon. If fraud, willful misrepresentation or 
concealment of a material fact, knowingly providing a false writing or 
document, knowingly making a false statement or representation, or any 
other activity prohibited by the Act is established during the process 
of making the determination on the application, the Service shall refer 
the matter to the United States Attorney for prosecution of the alien or 
of any person who created or supplied a false writing or document for 
use in an application for adjustment of status under this part.
    (6) Continuous physical presence means actual continuous presence in 
the United States since December 22, 1987, until filing of any 
application for adjustment of status. Aliens who were outside of the 
United States after enactment may apply for temporary residence if they 
reentered prior to March

[[Page 654]]

21, 1988, provided they meet the continuous residence requirements, and 
are otherwise eligible for legalization.
    (7) Brief, casual, and innocent means a departure authorized by the 
Service (advance parole) subsequent to March 21, 1988, for not more than 
30 days for legitimate emergency or humanitarian purposes unless a 
further period of authorized departure has been granted in the 
discretion of the district director or a departure was beyond the 
alien's control.
    (8) Brief and casual means temporary trips abroad as long as the 
alien establishes a continuing intention to adjust to lawful permanent 
resident status. However, such absences must not exceed the specific 
periods of time required in order to maintain continuous residence.
    (9) Certain nationals of countries for which extended voluntary 
departure has been made available on the basis of a nationality group 
determination at any time during the 5-year period ending on November 1, 
1987 is limited to nationals of Poland, Afghanistan, Ethiopia, and 
Uganda.
    (10) Public cash assistance means income or need-based monetary 
assistance to include, but not limited to, supplemental security income 
received by the alien through federal, state, or local programs designed 
to meet subsistence levels. It does not include assistance in kind, such 
as food stamps, public housing, or other non-cash benefits, nor does it 
include work related compensation or certain types of medical assistance 
(Medicare, Medicaid, emergency treatment, services to pregnant women or 
children under 18 years of age, or treatment in the interest of public 
health).
    (11) Designated entity means any state, local, church, community, 
farm labor organization, voluntary organization, association of 
agricultural employers or individual determined by the Service to be 
qualified to assist aliens in the preparation of applications for 
legalization status.
    (12) Through the passage of time means through the expiration date 
of the nonimmigrant permission to remain in the United States, including 
any extensions and/or change of status.
    (13) Prima facie eligibility means eligibility is established if the 
applicant presents a completed I-687 and specific factual information 
which in the absence of rebuttal will establish a claim of eligibility 
under this part.
    (b) Application for temporary residence--(1) Application for 
temporary residence. (i) An alien who is a national of Poland, Uganda, 
Ethiopia, or Afghanistan who has resided continuously in the United 
States since prior to July 2l, 1984, and who believes that he or she 
meets the eligibility requirements of section 245A of the Act must make 
application within the 21-month period beginning on March 21, 1988, and 
ending on December 22, 1989.
    (ii) An alien who fails to file an application for adjustment of 
status to that of a temporary resident under Sec. 245A.4 of this part 
during the time period, will be statutorily ineligible for such 
adjustment of status.
    (2) Eligibility (i) The following categories of aliens who are not 
otherwise excludable under section 212(a) of the Act are eligible to 
apply for status to that of a person admitted for temporary residence:
    (A) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, (other than an alien who entered as a nonimmigrant) who 
establishes that he or she entered the United States prior to July 21, 
1984, and who has thereafter resided continuously in the United States, 
and who has been physically present in the United States from December 
22, 1987, until the date of filing the application.
    (B) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, and establishes that he or she entered the United States as 
a nonimmigrant prior to July 21, 1984, and whose period of authorized 
admission expired through the passage of time prior to January 21, 1985, 
and who has thereafter resided continuously in the United States, and 
who has been physically present in the United States from December 22, 
1987, until the date of filing the application.
    (C) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, and establishes that he or she entered the United States as 
a nonimmigrant prior to July 21, 1984, and

[[Page 655]]

who applied for asylum prior to July 21, 1984, and who has thereafter 
resided continuously in the United States, and who has been physically 
present in the United States from December 22, 1987, until the date of 
filing the application.
    (D) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, who would otherwise be eligible for temporary resident 
status and who establishes that he or she resided continuously in the 
United States prior to July 21, 1984, and who subsequently reentered the 
United States as a nonimmigrant in order to return to an unrelinquished 
residence. An alien described in this paragraph must have received a 
waiver of 212(a)(19) as an alien who entered the United States by fraud.
    (E) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, and was a nonimmigrant who entered the United States in the 
classification A, A-1, A-2, G, G-1, G-2, G-3, or G-4, for Duration of 
Status (D/S), and whose qualifying employment terminated or who ceased 
to be recognized by the Department of State as being entitled to such 
classification prior to January 21, 1985, and who thereafter continued 
to reside in the United States.
    (F) An alien who is a national of Poland, Uganda, Ethiopia, or 
Afghanistan, and who was a nonimmigrant who entered the United States as 
an F, F-1, or F-2 for Duration of Status (D/S), and who completed a full 
course of studies, including practical training (if any), and whose time 
period to depart the United States after completion of studies expired 
prior to January 21, 1985, and who has thereafter continued to reside in 
the United States. Those students placed in a nunc pro tunc retroactive 
student status which would otherwise preclude their eligibility for 
legalization under this section, must present evidence that they had 
otherwise terminated their status during the requisite time period. A 
dependent F-2 alien otherwise eligible who was admitted into the United 
States with a specific time period, as opposed to duration of status, 
documented on Service Form I-94, Arrival-Departure Record that extended 
beyond July 21, 1984 is considered eligible if the principal F-1 alien 
is found eligible.
    (3) Ineligible aliens. (i) An alien who has been convicted of a 
felony, or three or more misdemeanors.
    (ii) An alien who has assisted in the persecution of any person or 
persons on account of race, religion, nationality, membership in a 
particular social group, or political opinion.
    (iii) An alien excludable under the provisions of section 212(a) of 
the Act whose grounds of excludability may not be waived.
    (4) Documentation. Evidence to support an alien's eligibility for 
temporary residence status shall include documents establishing proof of 
identity, proof of nationality, proof of residence, and proof of 
financial responsibility, as well as photographs, a completed 
fingerprint card (Form FD-258), and a completed medical report of 
examination (Form I-693). All documentation submitted will be subject to 
Service verification. Applications submitted with unverifiable 
documentation may be denied. Failure by an applicant to authorize 
release to INS of information protected by the Privacy Act and/or 
related laws in order for INS to adjudicate a claim may result in denial 
of the benefit sought. Acceptable supporting documents for the four 
categories of documentation are discussed as follows:
    (i) Proof of identity. Evidence to establish identity is listed 
below in descending order of preference:
    (A) Passport;
    (B) Birth certificate;
    (C) Any national identity document from the alien's country of 
origin bearing photo and fingerprint;
    (D) Driver's license or similar document issued by a state if it 
contains a photo;
    (E) Baptismal Record/Marriage Certificate; or
    (F) Affidavits.
    (ii) Proof of nationality. Evidence to establish nationality is 
listed as follows:
    (A) Passport;
    (B) Birth certificate;
    (C) Any national identity document from the alien's country of 
origin bearing photo and fingerprint;

[[Page 656]]

    (D) Other credible documents, including those created by, or in the 
possession of the INS, or any other documents (excluding affidavits) 
that, when taken singly, or together as a whole, establish the alien's 
nationality.
    (iii) Assumed names--(A) General. In cases where an applicant claims 
to have met any of the eligibility criteria under an assumed name, the 
applicant has the burden of proving that the applicant was in fact the 
person who used that name. The applicant's true identity is established 
pursuant to the requirements of paragraph (b)(4)(i) and (ii) of this 
section. The assumed name must appear in the documentation provided by 
the applicant to establish eligibility. To meet the requirement of this 
paragraph, documentation must be submitted to prove the common identity, 
i.e., that the assumed name was in fact used by the applicant.
    (B) Proof of common identity. The most persuasive evidence is a 
document issued in the assumed name which identifies the applicant by 
photograph, fingerprint, or detailed physical description. Other 
evidence which will be considered are affidavit(s) by a person or 
persons other than the applicant, made under oath, which identify the 
affiant by name and address, state the affiant's relationship to the 
applicant and the basis of the affiant's knowledge of the applicant's 
use of the assumed name. Affidavits accompanied by a photograph which 
has been identified by the affiant as the individual known to the 
affiant under the assumed name in question will carry greater weight.
    (iv) Proof of residence. Evidence to establish proof of continuous 
residence in the United States during the requisite period of time may 
consist of any combination of the following:
    (A) Past employment records, which may consist of pay stubs, W-2 
Forms, certification of the filing of Federal income tax returns on IRS 
Form 6166, a state verification of the filing of state income tax 
returns, letters from employer(s) or, if the applicant has been in 
business for himself or herself, letters from banks and other firms with 
whom he or she has done business. In all of the above, the name of the 
alien and the name of the employer or other interested organizations 
must appear on the form or letter, as well as relevant dates. Letters 
from employers should be on employer letterhead stationery, if the 
employer has such stationery, and must include:
    (1) Alien's address at the time of employment;
    (2) Exact period of employment;
    (3) Periods of layoff;
    (4) Duties with the company;
    (5) Whether or not the information was taken from official company 
records; and
    (6) Where records are located, whether the Service may have access 
to the records.

If the records are unavailable, an affidavit form letter stating that 
the alien's employment records are unavailable and why such records are 
unavailable may be accepted in lieu of paragraphs (b)(4)(iv)(A)(5) and 
(6) of this section. This affidavit form letter shall be signed, 
attested to by the employer under penalty of perjury, and shall state 
the employer's willingness to come forward and give testimony if 
requested.
    (B) Utility bills (gas, electric, phone, etc.) receipts, or letters 
from companies showing the dates during which the applicant received 
service are acceptable documentation.
    (C) School records (letters, report cards, etc.) from the schools 
that the applicant or his or her children have attended in the United 
States must show the name of school and periods of school attendance.
    (D) Hospital or medical records showing treatment or hospitalization 
of the applicant or his or her children must show the name of the 
medical facility or physician and the date(s) of the treatment or 
hospitalization.
    (E) Attestations by churches, unions, or other organizations as to 
the applicant's residence by letter which:
    (1) Identify applicant by name;
    (2) Are signed by an official (whose title is shown);
    (3) Show inclusive dates of membership;
    (4) State the address where applicant resided during membership 
period;
    (5) Include the seal of the organization impressed on the letter or 
the letterhead of the organization, if the organization has letterhead 
stationery;

[[Page 657]]

    (6) Establish how the author knows the applicant; and
    (7) Establish the origin of the information being attested to.
    (F) Additional documents to support the applicant's claim may 
include:
    (1) Money order receipts for money sent into or out of the country;
    (2) Passport entries;
    (3) Birth certificates of children born in the United States;
    (4) Bank books with dated transactions;
    (5) Letters or correspondence between applicant and other person or 
organization;
    (6) Social Security card;
    (7) Selective Service card;
    (8) Automobile license receipts, title, vehicle registration, etc.;
    (9) Deeds, mortgages, contracts to which applicant has been a party;
    (10) Tax receipts;
    (11) Insurance policies, receipts, or letters; and
    (12) Any other relevant document.
    (v) Proof of financial responsibility. An applicant for adjustment 
of status under this part is subject to the provisions of section 
212(a)(15) of the Act relating to excludability of aliens likely to 
become public charges. Generally, the evidence of employment submitted 
under paragraph (b)(4)(iv)(A) of this section will serve to demonstrate 
the alien's financial responsibility during the documented period(s) of 
employment. If the alien's period(s) of residence in the United States 
include significant gaps in employment or if there is reason to believe 
that the alien may have received public assistance while employed, the 
alien may be required to provide proof that he or she has not received 
public cash assistance. An applicant for residence who is determined 
likely to become a public charge and is unable to overcome this 
determination after application of the Special Rule under paragraph 
(b)(11)(iv)(C) of this section will be denied adjustment. The burden of 
proof to demonstrate the inapplicability of this provision of law lies 
with the applicant who may provide:
    (A) Evidence of a history of employment (i.e., employment letter, W-
2 forms, income tax returns, etc.);
    (B) Evidence that he/she is self-supporting (i.e., bank statements, 
stocks, other assets, etc.); or
    (C) Form I-134. Affidavit of Support, completed by a spouse on 
behalf of the applicant and/or children of the applicant or a parent in 
behalf of children which guarantees complete or partial financial 
support. Acceptance of the Affidavit of Support shall be extended to 
other family members in unusual family circumstances.

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

[[Page 658]]

designated entity, the alien must have consented to having the 
designated entity forward the application to the Service office. In the 
case of applications filed at a Service office, the district director 
may, at his or her discretion:
    (A) Require the applicant to file the application in person; or
    (B) Require the applicant to file the application by mail; or
    (C) Permit the filing of applications whether by mail or in person.

The applicant must appear for a personal interview at the Service office 
as scheduled. If the applicant is 14 years of age or older, the 
application must be accompanied by a completed Form FD-258 (Applicant 
Card).
    (ii) At the time of the interview, whenever possible, original 
documents must be submitted except the following: Official government 
records; employment or employment-related records maintained by 
employers, union, or collective bargaining organizations; medical 
records; school records maintained by a school or school board; or other 
records maintained by a party other than the applicant. Copies of 
records maintained by parties other than the applicant which are 
submitted in evidence must be certified as true and correct by such 
parties and must bear their seal or signature or the signature and title 
of persons authorized to act in their behalf. If at the time of the 
interview the return of the original document is desired by the 
applicant, the document must be accompanied by notarized copies or 
copies certified true and correct by a qualified designated entity or by 
the alien's representative in the format prescribed in Sec. 204.2(j)(1) 
or (2) of this chapter. At the discretion of the district director, 
original documents, even if accompanied by certified copies, may be 
temporarily retained for forensic examination by the Document Analysis 
Unit at the Regional Processing Facility having jurisdiction over the 
Service office to which the documents were submitted.
    (iii) A separate application (I-687) must be filed by each eligible 
applicant. All fees required by Sec. 103.7(b)(1) of this chapter must 
be submitted in the exact amount in the form of a money order, cashier's 
check, or certified bank check, made payable to the Immigration and 
Naturalization Service. No personal checks or currency will be accepted. 
Fees will not be waived or refunded under any circumstances.
    (6) Filing date of application. The date the alien submits a 
completed application to a Service office or designated entity shall be 
considered the filing date of the application, provided that in the case 
of an application filed at a designated entity the alien has consented 
to having the designated entity forward the application to the Service 
office having jurisdiction over the location of the alien's residence. 
Designated entities are required to forward completed applications to 
the appropriate Service office within 60 days of receipt.
    (7) Selective Service registration. At the time of filing an 
application under this section, male applicants over the age of 17 and 
under the age of 26, are required to be registered under the Military 
Selective Service Act. An applicant shall present evidence that he has 
previously registered under that Act in the form of a letter of 
acknowledgement from the Selective Service System, or such alien shall 
present a completed and signed Form SSS-1 at the time of filing Form I-
687 with the Immigration and Naturalization Service or a designated 
entity. Form SSS-1 will be forwarded to the Selective Service System by 
the Service.
    (8) Continuous residence. (i) For the purpose of this Act, an 
applicant for temporary residence status shall be regarded as having 
resided continuously in the United States if, at the time of filing of 
the application:
    (A) No single absence from the United States has exceeded 45 days, 
and the aggregate of all absences has not exceeded 180 days between July 
2l, 1984, through the date the application for temporary resident status 
is filed, unless the alien can establish that due to emergent reasons, 
his or her return to the United States could not be accomplished within 
the time period allowed;
    (B) The alien was maintaining a residence in the United States; and

[[Page 659]]

    (C) The alien's departure from the United States was not based on an 
order of deportation.
    (ii) An alien who has been absent from the United States in 
accordance with the Service's advance parole procedures shall not be 
considered as having interrupted his or her continuous residence as 
required at the time of filing an application under this section.
    (9) Medical examination. (i) An applicant under this part shall be 
required to submit to an examination by a designated civil surgeon at no 
expense to the government. The designated civil surgeon shall report on 
the findings of the mental and physical condition of the applicant and 
the determination of the alien's immunization status on Form I-693, 
``Medical Examination of Aliens Seeking Adjustment of Status, (Pub. L. 
99-603)''. Results of the medical examination must be presented to the 
Service at the time of interview and shall be incorporated into the 
record. Any applicant certified under paragraphs (1), (2), (3), (4) or 
(5) of section 212(a) of the Act may appeal to a Board of Medical 
Officers of the U.S. Public Health Service as provided in section 234 of 
the Act and part 235 of this chapter.
    (ii) All applicants who file for temporary resident status are 
required to include the results of a serological test for the HIV virus 
on the I-693. All HIV-positive applicants shall be advised that a waiver 
is available and shall be provided with the opportunity to apply for a 
waiver.
    (10) Interview. Each applicant, regardless of age, must appear at 
the appropriate Service office and must be fingerprinted for the purpose 
of issuance of an employment authorization document and Form I-688. Each 
applicant shall be interviewed by an immigration officer, except that 
the interview may be waived for a child under 14 years of age, or when 
it is impractical because of the health or advanced age of the 
applicant.
    (11) Applicability of exclusion grounds--(i) Grounds of exclusion 
not to be applied. Paragraphs (14), (workers entering without labor 
certification); (20), (immigrants not in possession of a valid entry 
document); (21), (visas issued without compliance with section 203); 
(25), (illiterates); and (32) (graduates of non-accredited medical 
schools) of section 212(a) of the Act shall not apply to applicants for 
temporary resident status.
    (ii) Waiver of grounds of exclusion. Except as provided in paragraph 
(b)(11)(iii) of this section, the Attorney General may waive any other 
provision of section 212(a) of the Act only in the case of individual 
aliens for humanitarian purposes, to assure family unity, or when the 
granting of such a waiver is in the public interest. If an alien is 
excludable on grounds which may be waived as set forth in this 
paragraph, he or she shall be advised of the procedures for applying for 
a waiver of grounds of excludability on Form I-690. When an application 
for waiver of grounds of excludability is filed jointly with an 
application for temporary residence under this section, it shall be 
accepted for processing at the Service office. If an application for 
waiver of grounds of excludability is submitted after the alien's 
preliminary interview at the Service office, it shall be forwarded to 
the appropriate Regional Processing Facility. All applications for 
waivers of grounds of excludability must be accompanied by the correct 
fee in the exact amount. All fees for applications filed in the United 
States must be in the form of a money order, cashier's check, or bank 
check. No personal checks or currency will be accepted. Fees will not be 
waived or refunded under any circumstances. An application for waiver of 
grounds of excludability under this part shall be approved or denied by 
the director of the Regional Processing Facility in whose jurisdiction 
the alien's application for adjustment of status was filed except that 
in cases involving clear statutory ineligibility or fraud, such 
application may be denied by the district director in whose jurisdiction 
the application is filed, and in cases returned to a Service office for 
re-interview, such application may be approved at the discretion of the 
district director. The applicant shall be notified of the decision and, 
if the application is denied, of the reason therefore. Appeal from an 
adverse decision under this part may be taken by the applicant on Form 
I-694 within 30 days after the service of the notice

[[Page 660]]

only to the Service's Administrative Appeals Unit pursuant to the 
provisions of section 103.3(a) of this chapter.
    (iii) Grounds of exclusion that may not be waived. Notwithstanding 
any other provision of the Act, the following provisions of section 
212(a) may not be waived by the Attorney General under paragraph 
(b)(11)(ii) of this section:
    (A) Paragraphs (9) and (10) (criminals);
    (B) Paragraph (23) (narcotics) except for a single offense of simple 
possession of thirty grams or less of marijuana;
    (C) Paragraphs (27) (prejudicial to the public interest), (28) 
(communist), and (29) (subversive);
    (D) Paragraph (33) (participated in Nazi persecution).
    (iv) Determination of Likely to become a public charge and the 
special rule. (A) Prior to use of the special rule for determination of 
public charge, an alien must first be determined to be excludable under 
section 212(a)(15) of the Act. If the applicant is determined to be 
likely to become a public charge, he or she may still be admissible 
under the terms of the Special Rule.
    (B) In determining whether an alien is likely to become a public 
charge, financial responsibility of the alien is to be established by 
examining the totality of the alien's circumstances at the time of his 
or her application for legalization. The existence or absence of a 
particular factor should never be the sole criterion for determining if 
an alien is likely to become a public charge. The determination of 
financial responsibility should be a prospective evaluation based on the 
alien's age, health, income and vocation.
    (C) An alien who has a consistent employment history which shows the 
ability to support himself or herself even though his or her income may 
be below the poverty level may be admissible under this section. The 
alien's employment history need not be continuous in that it is 
uninterrupted. It should be continuous in the sense that the alien shall 
be regularly attached to the workforce, has an income over a substantial 
period of the applicable time, and has demonstrated the capacity to 
exist on his or her income without recourse to public cash assistance. 
The Special Rule is prospective in that the Service shall determine, 
based on the alien's history, whether he or she is likely to become a 
public charge. Past acceptance of public cash assistance within a 
history of consistent employment will enter into this decision. The 
weight given in considering applicability of the public charge 
provisions will depend on many factors, but the length of time an 
applicant has received public cash assistance will constitute a 
significant factor. It is not necessary to file a waiver in order to 
apply the Special Rule for Determination of Public Charge.
    (v) Public assistance and criminal history verification. 
Declarations by an applicant that he or she has not been the recipient 
of public cash assistance and/or has not had a criminal record are 
subject to a verification of facts by the Service. The applicant must 
agree to fully cooperate in the verification process. Failure to assist 
the Service in verifying information necessary for the adjudication of 
the application may result in a denial of the application.
    (12) Continuous physical presence since December 22, 1987. (i) An 
alien applying for adjustment to temporary resident status must 
establish that he or she has been continuously physically present in the 
United States since December 22, 1987. Aliens who were outside of the 
United States on the date of enactment or departed the United States 
after enactment may apply for legalization if they reentered prior to 
March 21, 1988, and meet the continuous residence requirements and are 
otherwise eligible for legalization.
    (ii) A brief, casual and innocent absence means a departure 
authorized by the Service (advance parole) subsequent to March 21, 1988, 
of not more than thirty (30) days for legitimate emergency or 
humanitarian purposes unless a further period of authorized departure 
has been granted in the discretion of the district director or a 
departure was beyond the alien's control.
    (13) Departure. (i) During the time period from the date that an 
alien's application establishing prima facie eligibility for temporary 
resident status is reviewed at a Service office and the date status as a 
temporary resident is granted, the alien applicant can be readmitted to 
the United States provided

[[Page 661]]

his or her departure was authorized under the Service's advance parole 
provisions contained in Sec. 212.5(f) of this chapter.
    (ii) An alien whose application for temporary resident status has 
been approved may be admitted to the United States upon return as a 
returning temporary resident provided he or she:
    (A) Is not under deportation proceedings, such proceedings having 
been instituted subsequent to the approval of temporary resident status. 
A temporary resident alien will not be considered deported if that alien 
departs the United States while under an outstanding order of 
deportation issued prior to the approval of temporary resident status;
    (B) Has not been absent from the United States for more than 30 days 
on the date application for admission is made;
    (C) Has not been absent from the United States for an aggregate 
period of more than 90 days since the date the alien was granted lawful 
temporary resident status;
    (D) Presents Form I-688;
    (E) Presents himself or herself for inspection; and
    (F) Is otherwise admissible.
    (iii) The periods of time in paragraphs (b)(13)(ii)(B) and (C) of 
this section may be waived at the discretion of the Attorney General in 
cases where the absence from the United States was due merely to a brief 
and casual trip abroad due to emergent or extenuating circumstances 
beyond the alien's control.
    (14) Employment and travel authorization--(i) General. Authorization 
for employment and travel abroad for temporary resident status 
applicants under this section may be granted only by a Service office. 
INS district directors will determine the Service location for the 
completion of processing travel documentation. In the case of an 
application which has been filed with a designated entity, employment 
authorization may be granted by the Service only after the application 
has been properly received at the Service office.
    (ii) Employment and travel authorization prior to the granting of 
temporary resident status. (A) Permission to travel abroad and accept 
employment may be granted to the applicant after an interview has been 
conducted in connection with an application establishing prima facie 
eligibility for temporary resident status. Permission to travel abroad 
may be granted in emergent circumstances in accordance with the 
Service's advance parole provisions contained in Sec. 212.5(f) of this 
chapter after an interview has been conducted in connection with an 
application establishing prima facie eligibility for temporary resident 
status.
    (B) If an appointment cannot be scheduled within 30 days, 
authorization to accept employment will be granted, valid until the 
scheduled appointment date. The appointment letter will be endorsed with 
the temporary employment authorization. An employment authorization 
document will be given to the applicant after an interview has been 
completed by an immigration officer unless a formal denial is issued by 
a Service office. This temporary employment authorization will be 
restricted to six-months duration, pending final determination on the 
application for temporary resident status.
    (iii) Employment and travel authorization upon grant of temporary 
resident status. Upon grant of an application for adjustment to 
temporary resident status by a Regional Processing Facility, the 
processing facility will forward a notice of approval to the alien at 
his or her last known address, or to his or her legal representative. 
The alien will be required to return to the appropriate INS office, 
surrender the I-688A or employment authorization document previously 
issued, and obtain Form I-688, Temporary Resident Card, authorizing 
employment and travel abroad.
    (iv) Revocation of employment authorization upon denial of temporary 
resident status. Upon denial of an application for adjustment to 
temporary resident status, the alien will be notified that if a timely 
appeal is not submitted, employment authorization shall be automatically 
revoked on the final day of the appeal period. An applicant whose appeal 
period has ended is no longer considered to be an Eligible Legalized 
Alien for the purposes of the administration of State Legalization 
Impact Assistance Grants (SLIAG) funding.

[[Page 662]]

    (15) Decision. The applicant shall be notified in writing of the 
decision. If the application is denied, the reason(s) for the decision 
shall be provided to the applicant. An appeal from an adverse decision 
under this part may be taken by the applicant on Form I-694.
    (16) Appeal process. An adverse decision under this part may be 
appealed to the Associate Commissioner, Examinations (Administrative 
Appeals Unit), the appellate authority designated in Sec. 103.1(f)(2). 
Any appeal shall be submitted to the Regional Processing Facility (RPF) 
with the required fee within 30 days after service of the Notice of 
Denial in accordance with the procedures of Sec. 103.3(a) of this 
chapter. An appeal received after the 30-day period will not be 
accepted. The 30-day period for submission of an appeal begins three 
days after the Notice of Denial is mailed as provided in Sec. 103.5a(b) 
of this Act. If a review of the Record of Proceeding (ROP) is requested 
by the alien or his or her legal representative and an appeal has been 
properly filed, an additional 30 days will be allowed for this review 
beginning at the time the ROP is mailed. A brief may be submitted with 
the appeal form or submitted up to 30 calendar days from the date of 
receipt of the appeal form at the RPF. Briefs filed after submission of 
the appeal should be mailed directly to the RPF. For good cause shown, 
the time within which a brief supporting an appeal may be submitted may 
be extended by the Director of the Regional Processing Facility.
    (17) Motions. The Regional Processing Facility director may sua 
sponte reopen and reconsider any adverse decision. When an appeal to the 
Associate Commissioner, Examinations (Administrative Appeals Unit) has 
been filed, the INS director of the Regional Processing Facility may 
issue a new decision granting the benefit which has been requested. The 
director's new decision must be served on the appealing party within 45 
days of receipt of any briefs and/or new evidence, or upon expiration of 
the time allowed for the submission of any briefs. Motions to reopen a 
proceeding or reconsider a decision shall not be considered under this 
part.
    (18) Certifications. The Regional Processing Facility director may, 
in accordance with Sec. 103.4 of this chapter, certify a decision to 
the Associate Commissioner, Examinations (Administrative Appeals Unit) 
when the case involves an unusually complex or novel question of law or 
fact. The decision on an appealed case subsequently remanded to the 
Regional Processing Facility director will be certified to the 
Administrative Appeals Unit.
    (19) Date of adjustment to temporary residence. The status of an 
alien whose application for temporary resident status is approved shall 
be adjusted to that of a lawful temporary resident as of the date 
indicated on the application fee receipt issued at the Service office.
    (20) Termination of temporary resident status--(i) Termination of 
temporary resident status (General). The status of an alien lawfully 
admitted for temporary residence under Sec. 245a.4 of this part may be 
terminated at any time. It is not necessary that a final order of 
deportation be entered in order to terminate temporary resident status. 
The temporary resident status may be terminated upon the occurrence of 
any of the following:
    (A) It is determined that the alien was ineligible for temporary 
residence under Sec. 245a.4 of this part;
    (B) The alien commits an act which renders him or her inadmissible 
as an immigrant unless a waiver is obtained, as provided in this part;
    (C) The alien is convicted of any felony, or three or more 
misdemeanors;
    (D) The alien fails to file for adjustment of status from temporary 
resident to permanent resident within 31 months of the date he or she 
was granted status as a temporary resident.
    (ii) Procedure. Termination of an alien's status will be made only 
on notice to the alien sent by certified mail directed to his or her 
last known address, and, if applicable, to his or her representative. 
The alien must be given an opportunity to offer evidence in opposition 
to the grounds alleged for termination of his or her status. Evidence in 
opposition must be submitted within 30 days after the service of the 
Notice of Intent to Terminate. If the alien's status is terminated, the 
director of the Regional Processing Facility shall

[[Page 663]]

notify the alien of the decision and the reason for the termination, and 
further notify the alien that any Service Form issued to the alien 
authorizing employment and/or travel abroad, or any Form I-688, 
Temporary Resident Card previously issued to the alien will be declared 
void by the director of the Regional Processing Facility within 30 days 
if no appeal of the termination decision is filed within that period. 
The alien may appeal the decision to the Associate Commissioner, 
Examinations (Administrative Appeals Unit). Any appeal along with the 
required fee, shall be filed with the Regional Processing Facility 
within 30 days after the service of the notice of termination. If no 
appeal is filed within that period, the official Service document shall 
be deemed void, and must be surrendered without delay to an immigration 
officer or to the issuing office of the Service.
    (iii) Termination not construed as rescission under section 246. For 
the purposes of this part the phrase termination of status of an alien 
granted lawful temporary residence under this section shall not be 
construed to necessitate a rescission of status as described in section 
246 of the Act, and the proceedings required by the regulations issued 
thereunder shall not apply.
    (iv) Return to unlawful status after termination. Termination of the 
status of any alien previously adjusted to lawful temporary residence 
shall act to return such alien to the status held prior to the 
adjustment, and render him or her amenable to exclusion or deportation 
proceedings under sections 236 or 242 of the Act, as appropriate.
    (21) Ineligibility for immigration benefits. An alien whose status 
is adjusted to that of a lawful temporary resident under Sec. 245a.4 of 
this part is not entitled to submit a petition pursuant to section 
203(a)(2), nor is such alien entitled to any other benefit or 
consideration accorded under the Act to aliens lawfully admitted for 
permanent residence.
    (22) Declaration of intending citizen. An alien who has been granted 
the status of temporary resident under Sec. 245a.4 of this part may 
assert a claim of discrimination on the basis of citizenship status 
under section 274B of the Act only if he or she has previously filed 
Form I-772 (Declaration of Intending Citizen) after being granted such 
status. The Declaration of Intending Citizen is not required as a basis 
for filing a petition for naturalization; nor shall it be regarded as a 
right to United States citizenship; nor shall it be regarded as evidence 
of a person's status as a resident.
    (23) Limitation on access to information and confidentiality. (i) No 
person other than a sworn officer or employee of the Department of 
Justice or bureau or agency thereof, will be permitted to examine 
individual applications. For purposes of this part, any individual 
employed under contract by the Service to work in connection with the 
Legalization Program shall be considered an employee of the Department 
of Justice or bureau or agency thereof.
    (ii) No information furnished pursuant to an application for 
temporary or permanent resident status under this section shall be used 
for any purpose except:
    (A) To make a determination on the application; or,
    (B) for the enforcement of the provisions encompassed in section 
245A(c)(6) of the Act, except as provided in paragraph (b)(23)(iii) of 
this section.
    (iii) If a determination is made by the Service that the alien has, 
in connection with his or her application, engaged in fraud or willful 
misrepresentation or concealment of a material fact, knowingly provided 
a false writing or document in making his or her application, knowingly 
made a false statement or representation, or engaged in any other 
activity prohibited by section 245A(c)(6) of the Act, the Service shall 
refer the matter to the United States Attorney for prosecution of the 
alien or of any person who created or supplied a false writing or 
document for use in an application for adjustment of status under this 
part.
    (iv) Information contained in granted legalization files may be used 
by the Service at a later date to make a decision on an immigrant visa 
petition (or other status petition) filed by the applicant under section 
204(a), or for naturalization applications submitted by the applicant.

[[Page 664]]

    (c) Adjustment from temporary to permanent resident status. The 
provisions of Sec. 245a.3 of this part shall be applied to aliens 
adjusting to permanent residence under this part.

[54 FR 6505, Feb. 13, 1989, as amended at 54 FR 29455, July 12, 1989; 54 
FR 47676, Nov. 16, 1989; 60 FR 21976, May 4, 1995; 65 FR 82256, Dec. 28, 
2000]



Sec. 245a.5  Temporary disqualification of certain newly legalized aliens from 

receiving benefits from programs of financial assistance furnished under 

federal law.

    (a) Except as provided in Sec. 245a.5(b), any alien who has 
obtained the status of an alien lawfully admitted for temporary 
residence pursuant to section 245A of the Act (Adjustment of Status of 
Certain Entrants Before January 1, 1982, to that of Person Admitted for 
Lawful Residence) or 210A of the Act (Determinations of Agricultural 
Labor Shortages and Admission of Additional Special Agricultural 
Workers) is ineligible, for a period of five years from the date such 
status was obtained, for benefits financed directly or indirectly, in 
whole or in part, through the programs identified in Sec. 245a.5(c) of 
this chapter.
    (b)(1) Section 245a.5(a) shall not apply to a Cuban or Haitian 
entrant (as defined in paragraph (1) or (2)(A) of section 501(e) of 
Public Law 96-422, as in effect on April 1, 1983), or in the case of 
assistance (other than aid to families with dependent children) which is 
furnished to an alien who is an aged, blind, or disabled individual (as 
defined in section 1614(a)(1) of the Social Security Act).
    (2) With respect to any alien who has obtained the status of an 
alien lawfully admitted for temporary residence pursuant to section 210A 
of the Act only, assistance furnished under the Legal Services 
Corporation Act (42 U.S.C. 2996, et seq.) or title V of the Housing Act 
of 1949 (42 U.S.C. l471 et seq.) shall not be construed to be financial 
assistance referred to in Sec. 245a.5(a).
    (3) Section 245a.5(a) shall not apply to benefits financed through 
the programs identified in Sec. 245a.5(c), which are marked with an 
asterisk (*), except to the extent that such benefits:
    (i) Consist of, or are financed by, financial assistance in the form 
of grants, wages, loan, loan guarantees, or otherwise, which is 
furnished by the Federal Government directly, or indirectly through a 
State or local government or a private entity, to eligible individuals 
or to private suppliers of goods or services to such individuals, or is 
furnished to a State or local government that provides to such 
individuals goods or services of a kind that is offered by private 
suppliers, and
    (ii) Are targeted to individuals in financial need; either (A) in 
order to be eligible, individuals must establish that their income or 
wealth is below some maximum level, or, with respect to certain loan or 
loan guarantee programs, that they are unable to obtain financing from 
alternative sources, or at prevailing interest rates, or at rates that 
would permit the achievement of program goals, or (B) distribution of 
assistance is directed, geographically or otherwise, in a way that is 
intended to primarily benefit persons in financial need, as evidenced by 
references to such intent in the authorizing legislation.
    (c) The programs of Federal financial assistance referred to in 
Sec. 245a.5(a) are those identified in the list set forth below. The 
General Services Administration (GSA) Program Numbers set forth in the 
right column of the program list refer to the program identification 
numbers used in the Catalog of Federal Domestic Assistance, published by 
the United States General Services Administration, as updated through 
December, 1986.

------------------------------------------------------------------------
                                                                   GSA
                                                                 Program
                                                                 Numbers
------------------------------------------------------------------------
Department of Agriculture:
    Farm Operating Loans......................................    10.406
    Farm Ownership Loans......................................    10.407
Department of Health and Human Services:
    Assistance Payments--Maintenance Assistance (Maintenance      13.780
     Assistance; Emergency Assistance; State Aid; Aid to
     Families with Dependent Children)........................
    Low-Income Home Energy Assistance.........................    13.789
    *Community Services Block Grant...........................    13.792
    *Community Services Block Grant--Discretionary Awards.....    13.793
Department of Housing and Urban Development:
    Mortgage Insurance--Housing in Older, Declining Areas         14.123
     (223(e)).................................................
    Mortgage Insurance--Special Credit Risks (237)............    14.140

[[Page 665]]

 
    *Community Development Block Grants/Entitlement Grants....    14.218
    *Community Development Block Grants/Small Cities Program      14.219
     (Small Cities)...........................................
    Section 312 Rehabilitation Loans (312)....................    14.220
    *Urban development action grants..........................    14.221
    *Community Development Block Grants/State's Program.......    14.228
    Section 221(d)(3) Mortgage Insurance for Multifamily          14.136
     Rental Housing for Low and Moderate Income Families
     (Below Market Interest Rate).............................
Department of Labor:
    Senior Community Service Employment Program (SCSEP).......    17.235
Office of Personnel Management:
    Federal Employment for Disadvantaged Youth--Part-Time         27.003
     (Stay-in-School Program).................................
    Federal Employment for Disadvantaged Youth--Summer (Summer    27.004
     Aides)...................................................
Small Business Administration:
    Small Business Loans (7(a) Loans).........................    59.012
Department of Energy:
    Weatherization Assistance for Low-Income Persons..........    81.042
Department of Education:
    Patricia Roberts Harris Fellowships (Graduate and             84.094
     Professional Study; Graduate and Professional Study
     Opportunity Fellowships; Public Service Education
     Fellowships).............................................
    Legal Training for the Disadvantaged (The American Bar        84.136
     Association Fund for Public Education)...................
    Allen J. Ellender Fellowship Program (Ellender Fellowship)    84.148
Legal Services Corporation:
    Payments to Legal Services Corporation....................  ........
------------------------------------------------------------------------


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



Sec. 245a.6  Treatment of denied application under part 245a, Subpart B.

    If the district director finds that an eligible alien as defined at 
Sec. 245a.10 has not established eligibility under section 1104 of the 
LIFE Act (part 245a, Subpart B), the district director shall consider 
whether the eligible alien has established eligibility for adjustment to 
temporary resident status under section 245A of the Act, as in effect 
before enactment of section 1104 of the LIFE Act (part 245a, Subpart A). 
In such an adjudication using this Subpart A, the district director will 
deem the ``date of filing the application'' to be the date the eligible 
alien establishes that he or she was ``front-desked'' or that, though he 
or she took concrete steps to apply, the front-desking policy was a 
substantial cause of his or her failure to apply. If the eligible alien 
has established eligibility for adjustment to temporary resident status, 
the LIFE Legalization application shall be deemed converted to an 
application for temporary residence under this Subpart A.

[67 FR 38350, June 4, 2002]



   Subpart B_Legal Immigration Family Equity (LIFE) Act Legalization 

                               Provisions

    Source: 66 FR 29673, June 1, 2001, unless otherwise noted.



Sec. 245a.10  Definitions.

    In this Subpart B, the terms:
    Eligible alien means an alien (including a spouse or child as 
defined at section 101(b)(1) of the Act of the alien who was such as of 
the date the alien alleges that he or she attempted to file or was 
discouraged from filing an application for legalization during the 
original application period) who, before October 1, 2000, filed with the 
Attorney General a written claim for class membership, with or without 
filing fee, pursuant to a court order issued in the case of:
    (1) Catholic Social Services, Inc. v. Meese, vacated sub nom. Reno 
v. Catholic Social Services, Inc., 509 U.S. 43 (1993) (CSS);
    (2) League of United Latin American Citizens v. INS, vacated sub 
nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993) (LULAC); 
or
    (3) Zambrano v. INS, vacated, 509 U.S. 918 (1993) (Zambrano).
    Lawful Permanent Resident (LPR) 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.
    LIFE Act means the Legal Immigration Family Equity Act and the LIFE 
Act Amendments of 2000.
    LIFE Legalization means the provisions of section 1104 of the LIFE 
Act and section 1503 of the LIFE Act Amendments.
    Prima facie means eligibility is established if an ``eligible 
alien'' presents a properly filed and completed Form I-485 and specific 
factual information which in the absence of rebuttal will

[[Page 666]]

establish a claim of eligibility under this Subpart B.
    Written claim for class membership means a filing, in writing, in 
one of the forms listed in Sec. 245a.14 that provides the Attorney 
General with notice that the applicant meets the class definition in the 
cases of CSS, LULAC or Zambrano.

[66 FR 29673, June 1, 2001, as amended at 67 38350, June 4, 2002; 67 FR 
66532, Nov. 1, 2002]



Sec. 245a.11  Eligibility to adjust to LPR status.

    An eligible alien, as defined in Sec. 245a.10, may adjust status to 
LPR status under LIFE Legalization if:
    (a) He or she properly files, with fee, Form I-485, Application to 
Register Permanent Residence or Adjust Status, with the Service during 
the application period beginning June 1, 2001, and ending June 4, 2003.
    (b) He or she entered the United States before January 1, 1982, and 
resided continuously in the United States in an unlawful status since 
that date through May 4, 1988;
    (c) He or she was continuously physically present in the United 
States during the period beginning on November 6, 1986, and ending on 
May 4, 1988;
    (d) He or she is not inadmissible to the United States for permanent 
residence under any provisions of section 212(a) of the Act, except as 
provided in Sec. 245a.18, and that he or she:
    (1) Has not been convicted of any felony or of three or more 
misdemeanors committed in the United States;
    (2) Has not assisted in the persecution of any person or persons on 
account of race, religion, nationality, membership in a particular 
social group, or political opinion; and
    (3) Is registered or registering under the Military Selective 
Service Act, if the alien is required to be so registered; and
    (e) He or she can demonstrate basic citizenship skills.

[66 FR 29673, June 1, 2001, as amended at 67 38350, June 4, 2002]



Sec. 245a.12  Filing and applications.

    (a) When to file. The application period began on June 1, 2001, and 
ends on June 4, 2003. To benefit from the provisions of LIFE 
Legalization, an alien must properly file an application for adjustment 
of status, Form I-485, with appropriate fee, to the Service during the 
application period as described in this section. All applications, 
whether filed in the United States or filed from abroad, must be 
postmarked on or before June 4, 2003, to be considered timely filed.
    (1) If the postmark is illegible or missing, and the application was 
mailed from within the United States, the Service will consider the 
application to be timely filed if it is received on or before June 9, 
2003.
    (2) If the postmark is illegible or missing, and the application was 
mailed from outside the United States, the Service will consider the 
application to be timely filed if it is received on or before June 18, 
2003.
    (3) If the postmark is made by other than the United States Post 
Office, and is filed from within the United States, the application must 
bear a date on or before June 4, 2003, and must be received on or before 
June 9, 2003.
    (4) If an application filed from within the United States bears a 
postmark that was made by other than the United States Post Office, 
bears a date on or before June 4, 2003, and is received after June 9, 
2003, the alien must establish:
    (i) That the application was actually deposited in the mail before 
the last collection of the mail from the place of deposit that was 
postmarked by the United States Post Office June 4, 2003; and
    (ii) That the delay in receiving the application was due to a delay 
in the transmission of the mail; and
    (iii) The cause of such delay.
    (5) If an application filed from within the United States bears both 
a postmark that was made by other than the United States Post Office and 
a postmark that was made by the United States Post Office, the Service 
shall disregard the postmark that was made by other than the United 
States Post Office.
    (6) If an application filed from abroad bears both a foreign 
postmark and a postmark that was subsequently made by the United States 
Post Office, the Service shall disregard the postmark

[[Page 667]]

that was made by the United States Post Office.
    (7) In all instances, the burden of proof is on the applicant to 
establish timely filing of an application for LIFE Legalization.
    (b) Filing of applications in the United States. The Service has 
jurisdiction over all applications for the benefits of LIFE Legalization 
under this Subpart B. All applications filed with the Service for the 
benefits of LIFE Legalization must be submitted by mail to the Service. 
After proper filing of the application, the Service will instruct the 
applicant to appear for fingerprinting as prescribed in Sec. 103.2(e) 
of this chapter. The Director of the Missouri Service Center shall have 
jurisdiction over all applications filed with the Service for LIFE 
Legalization adjustment of status, unless the Director refers the 
applicant for a personal interview at a local Service office as provided 
in Sec. 245a.19.
    (1) Aliens in exclusion, deportation, or removal proceedings, or who 
have a pending motion to reopen or motion to reconsider. An alien who is 
prima facie eligible for adjustment of status under LIFE Legalization 
who is in exclusion, deportation, or removal proceedings before the 
Immigration Court or the Board of Immigration Appeals (Board), or who is 
awaiting adjudication of a motion to reopen or motion to reconsider 
filed with the Immigration Court of the Board, may request that the 
proceedings be administratively closed or that the motion filed be 
indefinitely continued, in order to allow the alien to pursue a LIFE 
Legalization application with the Service. In the request to 
administratively close the matter or indefinitely continue the motion, 
the alien must include documents demonstrating prima facie eligibility 
for the relief, and proof that the application for relief had been 
properly filed with the Service as prescribed in this section. With the 
concurrence of Service counsel, if the alien appears eligible to file 
for relief under LIFE Legalization, the Immigration Court or the Board, 
whichever has jurisdiction, shall administratively close the proceeding 
or continue the motion indefinitely.
    (2) If an alien has a matter before the Immigration Court or the 
Board that has been administratively closed for reasons unrelated to 
this Subpart B, the alien may apply before the Service for LIFE 
Legalization adjustment of status.
    (3) Aliens with final orders of exclusion, deportation, or removal. 
An alien, who is prima facie eligible for adjustment of status under 
LIFE Legalization, and who is subject to a final order of exclusion, 
deportation, or removal, may apply to the Service for LIFE Legalization 
adjustment.
    (c) Filing of applications from outside the United States. An 
applicant for LIFE Legalization may file an application for LIFE 
Legalization from abroad. An application for LIFE Legalization filed 
from outside the United States shall be submitted by mail to the Service 
according to the instructions on the application. The Missouri Service 
Center Director shall have jurisdiction over all applications filed with 
the Service for LIFE Legalization adjustment of status. After reviewing 
the application and all evidence with the application, the Service shall 
notify the applicant of any further requests for evidence regarding the 
application and, if eligible, how an interview will be conducted.
    (d) Application and supporting documentation. Each applicant for 
LIFE Legalization adjustment of status must file Form I-485. An 
applicant should complete Part 2 of Form I-485 by checking box ``h--
other'' and writing ``LIFE Legalization'' next to that block. Each 
application must be accompanied by:
    (1) The Form I-485 application fee as contained in 8 CFR 
103.7(b)(1).
    (2) The fee for fingerprinting as contained in 8 CFR 103.7(b)(1), if 
the applicant is between the ages of 14 and 79.
    (3) Evidence to establish identity, such as a passport, birth 
certificate, any national identity document from the alien's country of 
origin bearing photo and fingerprint, driver's license or similar 
document issued by a state if it contains a photo, or baptismal record/
marriage certificate.
    (4) A completed Form G-325A, Biographic Information Sheet, if the 
applicant is between the ages of 14 and 79.

[[Page 668]]

    (5) A report of medical examination, as specified in Sec. 245.5 of 
this chapter.
    (6) Two photographs, as described in the instructions to Form I-485.
    (7) Proof of application for class membership in CSS, LULAC, or 
Zambrano class action lawsuits as described in Sec. 245a.14.
    (8) Proof of continuous residence in an unlawful status since prior 
to January 1, 1982, through May 4, 1988, as described in Sec. 245a.15.
    (9) Proof of continuous physical presence from November 6, 1986, 
through May 4, 1988, as described in Sec. 245a.16.
    (10) Proof of citizenship skills as described in Sec. 245a.17. This 
proof may be submitted either at the time of filing the application, 
subsequent to filing the application but prior to the interview, or at 
the time of the interview.
    (e) Burden of proof. An alien applying for adjustment of status 
under this part has the burden of proving by a preponderance of the 
evidence that he or she has resided in the United States for the 
requisite periods, is admissible to the United States under the 
provisions of section 212(a) of the Act, and is otherwise eligible for 
adjustment of status under this Subpart B. The inference to be drawn 
from the documentation provided shall depend on the extent of the 
documentation, its credibility and amenability to verification as set 
forth in paragraph (f) of this section.
    (f) Evidence. The sufficiency of all evidence produced by the 
applicant will be judged according to its probative value and 
credibility. To meet his or her burden of proof, an applicant must 
provide evidence of eligibility apart from his or her own testimony. In 
judging the probative value and credibility of the evidence submitted, 
greater weight will be given to the submission of original 
documentation. Subject to verification by the Service, if the evidence 
required to be submitted by the applicant is already contained in the 
Service's file or databases relating to the applicant, the applicant may 
submit a statement to that effect in lieu of the actual documentation.

[66 FR 29673, June 1, 2001, as amended at 67 38350, June 4, 2002]



Sec. 245a.13  During pendency of application.

    (a) In general. When an eligible alien in the United States submits 
a prima facie application for adjustment of status under LIFE 
Legalization during the application period, until a final determination 
on his or her application has been made, the applicant:
    (1) May not be deported or removed from the United States;
    (2) Is authorized to engage in employment in the United States and 
is provided with an ``employment authorized'' endorsement or other 
appropriate work permit; and
    (3) Is allowed to travel and return to the United States as 
described at paragraph (e) of this section. Any domestic LIFE 
Legalization applicant who departs the United States while his or her 
application is pending without advance parole may be denied re-admission 
to the United States as described at paragraph (e) of this section.
    (b) Determination of filing of claim for class membership. With 
respect to each LIFE Legalization application for adjustment of status 
that is properly filed under this Subpart B during the application 
period, the Service will first determine whether or not the applicant is 
an ``eligible alien'' as defined under Sec. 245a.10 of this Subpart B 
by virtue of having filed with the Service a claim of class membership 
in the CSS, LULAC, or Zambrano lawsuit before October 1, 2000. If the 
Service's records indicate, or if the evidence submitted by the 
applicant with the application establishes, that the alien had filed the 
requisite claim of class membership before October 1, 2000, then the 
Service will proceed to adjudicate the application under the remaining 
standards of eligibility.
    (c) Prima facie eligibility. Unless the Service has evidence 
indicating ineligibility due to criminal grounds of inadmissibility, an 
application for adjustment of status shall be treated as a prima facie 
application during the pendency of application, until the Service has 
made a final determination on the application, if:
    (1) The application was properly filed under this Subpart B during 
the application period; and

[[Page 669]]

    (2) The applicant establishes that he or she filed the requisite 
claim for class membership in the CSS, LULAC, or Zambrano lawsuit.
    (d) Authorization to be employed in the United States while the 
application is pending--(1) Application for employment authorization. An 
applicant for adjustment of status under LIFE Legalization who wishes to 
obtain initial or continued employment authorization during the pendency 
of the adjustment application must file a Form I-765, Application for 
Employment Authorization, with the Service, including the fee as set 
forth in Sec. 103.7(b)(1) of this chapter. The applicant may submit 
Form I-765 either concurrently with or subsequent to the filing of the 
application for adjustment of status benefits on Form I-485.
    (2) Adjudication and issuance. Until a final determination on the 
application has been made, an eligible alien who submits a prima facie 
application for adjustment of status under this Subpart B shall be 
authorized to engage in employment in the United States and be provided 
with an ``employment authorized'' endorsement or other appropriate work 
permit in accordance with Sec. 274a.12(c)(24) of this chapter. An alien 
shall not be granted employment authorization pursuant to LIFE 
Legalization until he or she has submitted a prima facie application for 
adjustment of status under this Subpart B. If the Service finds that 
additional evidence is required from the alien in order to establish 
prima facie eligibility for LIFE Legalization, the Service shall request 
such evidence from the alien in writing. Nothing in this section shall 
preclude an applicant for adjustment of status under LIFE Legalization 
from being granted an initial employment authorization or an extension 
of employment authorization under any other provision of law or 
regulation for which the alien may be eligible.
    (e) Travel while the application is pending. This paragraph is 
authorized by section 1104(c)(3) of the LIFE Act relating to the ability 
of an alien to travel abroad and return to the United States while his 
or her LIFE Legalization adjustment application is pending. Parole 
authority is granted to the Missouri Service Center Director for the 
purposes described in this section. Nothing in this section shall 
preclude an applicant for adjustment of status under LIFE Legalization 
from being granted advance parole or admission into the United States 
under any other provision of law or regulation for which the alien may 
be eligible.
    (1) An applicant for LIFE Legalization benefits who wishes to travel 
during the pendency of the application and who is applying from within 
the United States should file, with his or her application for 
adjustment, at the Missouri Service Center, a Form I-131, Application 
for Travel Document, with fee as set forth in Sec. 103.7(b)(1) of this 
chapter. The Service shall approve the Form I-131 and issue an advance 
parole document, unless the Service finds that the alien's application 
does not establish a prima facie claim to adjustment of status under 
LIFE Legalization.
    (2) An eligible alien who has properly filed a Form I-485 pursuant 
to this Subpart B, and who needs to travel abroad pursuant to the 
standards prescribed in section 212(d)(5) of the Act, may file a Form I-
131 with the district director having jurisdiction over his or her place 
of residence.
    (3) If an alien travels abroad and returns to the United States with 
a grant of advance parole, the Service shall presume that the alien is 
entitled to return under section 1104(c)(3)(B) of the LIFE Act, unless, 
in a removal or expedited removal proceeding, the Service shows by a 
preponderance of the evidence, that one or more of the provisions of 
Sec. 245a.11(d) makes the alien ineligible for adjustment of status 
under LIFE Legalization.
    (4) If an alien travels abroad and returns without a grant of 
advance parole, he or she shall be denied admission and shall be subject 
to removal or expedited removal unless the alien establishes, clearly 
and beyond doubt, that:
    (i) He or she filed an application for adjustment pursuant to LIFE 
Legalization during the application period that presented a prima facie 
claim to adjustment of status under LIFE Legalization; and,
    (ii) His or her absence was either a brief and casual trip 
consistent with an intention on the alien's part to pursue

[[Page 670]]

his or her LIFE Legalization adjustment application, or was a brief 
temporary trip that occurred because of the alien's need to tend to 
family obligations relating to a close relative's death or illness or 
similar family need.
    (5) An applicant for LIFE Legalization benefits who applies for 
admission into the United States shall not be subject to the provisions 
of section 212(a)(9)(B) of the Act.
    (6) Denial of admission under this section is not a denial of the 
alien's application for adjustment. The alien may continue to pursue his 
or her application for adjustment from abroad, and may also appeal any 
denial of such application from abroad. Such application shall be 
adjudicated in the same manner as other applications filed from abroad.
    (f) Stay of final order of exclusion, deportation, or removal. The 
filing of a LIFE Legalization adjustment application on or after June 1, 
2001, and on or before June 4, 2003, 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 LIFE Legalization 
application, unless the district director who intends to execute the 
order makes a formal determination that the applicant does not present a 
prima facie claim to LIFE Legalization eligibility pursuant to 
Sec. Sec. 245a.18(a)(1) or (a)(2), or Sec. Sec. 245a.18(c)(2)(i), 
(c)(2)(ii), (c)(2)(iii), (c)(2)(iv), (c)(2)(v), or (c)(2)(vi), and 
serves the applicant with a written decision explaining the reason for 
this determination. Any such stay determination by the district director 
is not appealable. Neither an Immigration Judge nor the Board has 
jurisdiction to adjudicate an application for stay of execution of an 
exclusion, deportation, or removal order, on the basis of the alien's 
having filed a LIFE Legalization adjustment application.

[66 FR 29673, June 1, 2001, as amended at 67 38351, June 4, 2002]



Sec. 245a.14  Application for class membership in the CSS, LULAC, or Zambrano 

lawsuit.

    The Service will first determine whether an alien filed a written 
claim for class membership in the CSS, LULAC, or Zambrano lawsuit as 
reflected in the Service's indices, a review of the alien's 
administrative file with the Service, and by all evidence provided by 
the alien. An alien must provide with the application for LIFE 
Legalization evidence establishing that, before October 1, 2000, he or 
she was a class member applicant in the CSS, LULAC, or Zambrano lawsuit. 
An alien should include as many forms of evidence as the alien has 
available to him or her. Such forms of evidence include, but are not 
limited to:
    (a) An Employment Authorization Document (EAD) or other employment 
document issued by the Service pursuant to the alien's class membership 
in the CSS, LULAC, or Zambrano lawsuit (if a photocopy of the EAD is 
submitted, the alien's name, A-number, issuance date, and expiration 
date should be clearly visible);
    (b) Service document(s) addressed to the alien, or his or her 
representative, granting or denying the class membership, which includes 
date, alien's name and A-number;
    (c) The questionnaire for class member applicant under CSS, LULAC, 
or Zambrano submitted with the class membership application, which 
includes date, alien's full name and date of birth;
    (d) Service document(s) addressed to the alien, or his or her 
representative, discussing matters pursuant to the class membership 
application, which includes date, alien's name and A-number. These 
include, but are not limited to the following:
    (1) Form I-512, Parole authorization, or denial of such;
    (2) Form I-221, Order to Show Cause;
    (3) Form I-862, Notice to Appear;
    (4) Final order of removal or deportation;
    (5) Request for evidence letter (RFE); or
    (6) Form I-687 submitted with the class membership application.
    (e) Form I-765, Application for Employment Authorization, submitted 
pursuant to a court order granting interim relief.
    (f) An application for a stay of deportation, exclusion, or removal 
pursuant to a court's order granting interim relief.

[[Page 671]]

    (g) Any other relevant document(s).

[66 FR 29673, June 1, 2001, as amended at 67 38351, June 4, 2002]



Sec. 245a.15  Continuous residence in an unlawful status since prior to 

January 1, 1982, through May 4, 1988.

    (a) General. The Service will determine whether an alien entered the 
United States before January 1, 1982, and resided in continuous unlawful 
status since such date through May 4, 1988, based on the evidence 
provided by the alien. An alien must provide with the application for 
LIFE Legalization evidence establishing that he or she entered the 
United States before January 1, 1982, and resided in continuous unlawful 
status since that date through May 4, 1988.
    (b) Evidence. (1) A list of evidence that may establish an alien's 
continuous residence in the United States can be found at Sec. 
245a.2(d)(3).
    (2) The following evidence may establish an alien's unlawful status 
in the United States:
    (i) Form I-94, Arrival-Departure Record;
    (ii) Form I-20A-B, Certificate of Eligibility for Nonimmigrant (F-1) 
Student Status--For Academic and Language Students;
    (iii) Form IAP-66, Certificate of Eligibility for Exchange Visitor 
Status;
    (iv) A passport; or
    (v) Nonimmigrant visa(s) issued to the alien.
    (c) Continuous residence. An alien shall be regarded as having 
resided continuously in the United States if:
    (1) No single absence from the United States has exceeded forty-five 
(45) days, and the aggregate of all absences has not exceeded one 
hundred and eighty (180) days between January 1, 1982, and May 4, 1988, 
unless the alien can establish that due to emergent reasons, his or her 
return to the United States could not be accomplished within the time 
period allowed;
    (2) The alien was maintaining residence in the United States; and
    (3) The alien's departure from the United States was not based on an 
order of deportation.
    (d) Unlawful status. The following categories of aliens, who are 
otherwise eligible to adjust to LPR status pursuant to LIFE 
Legalization, may file for adjustment of status provided they resided 
continuously in the United States in an unlawful status since prior to 
January 1, 1982, through May 4, 1988:
    (1) An eligible alien who entered the United States without 
inspection prior to January 1, 1982.
    (2) Nonimmigrants. An eligible alien who entered the United States 
as a nonimmigrant before January 1, 1982, whose authorized period of 
admission as a nonimmigrant expired before January 1, 1982, through the 
passage of time, or whose unlawful status was known to the Government 
before January 1, 1982. Known to the Government means documentation 
existing in one or more Federal Government agencies' files such that 
when such document is taken as a whole, it warrants a finding that the 
alien's status in the United States was unlawful. Any absence of 
mandatory annual and/or quarterly registration reports from Federal 
Government files does not warrant a finding that the alien's unlawful 
status was known to the Government.
    (i) A or G nonimmigrants. An eligible alien who entered the United 
States for duration of status (D/S) in one of the following nonimmigrant 
classes, A-1, A-2, G-1, G-2, G-3 or G-4, whose qualifying employment 
terminated or who ceased to be recognized by the Department of State as 
being entitled to such classification prior to January 1, 1982. A 
dependent family member may be considered a member of this class if the 
dependent family member was also in A or G status when the principal A 
or G alien's status terminated or ceased to be recognized by the 
Department of State.
    (ii) F nonimmigrants. An eligible alien who entered the United 
States for D/S in one of the following nonimmigrant classes, F-1 or F-2, 
who completed a full course of study, including practical training, and 
whose time period, if any, to depart the United States after completion 
of study expired prior to January 1, 1982. A dependent F-2 alien 
otherwise eligible who was admitted into the United States with a 
specific time period, as opposed to duration of status, documented on 
Form I-94, Arrival-

[[Page 672]]

Departure Record, that extended beyond January 1, 1982, is considered 
eligible if the principal F-1 alien is found eligible.
    (iii) Nonimmigrant exchange visitors. An eligible alien who was at 
any time a nonimmigrant exchange alien (as defined in section 
101(a)(15)(J) of the Act), who entered the United States before January 
1, 1982, and who:
    (A) Was not subject to the 2-year foreign residence requirement of 
section 212(e) of the Act; or
    (B) Has fulfilled the 2-year foreign residence requirement of 
section 212(e) of the Act; or
    (C) Has received a waiver for the 2-year foreign residence 
requirement of section 212(e) of the Act.
    (3) Asylum applicants. An eligible alien who filed an asylum 
application prior to January 1, 1982, and whose application was 
subsequently denied or whose application was not decided by May 4, 1988.
    (4) Aliens considered to be in unlawful status. Aliens who were 
present in the United States in one of the following categories were 
considered to be in unlawful status:
    (i) An eligible alien who was granted voluntary departure, voluntary 
return, extended voluntary departure, or placed in deferred action 
category by the Service prior to January 1, 1982.
    (ii) An eligible alien who is a Cuban or Haitian entrant (as 
described in paragraph (1) or (2)(A) of section 501(e) of Public Law 96-
422 and at Sec. 212.5(g) of this chapter), who entered the United 
States before January 1, 1982. Pursuant to section 1104(c)(2)(B)(iv) of 
the LIFE Act, such alien is considered to be in an unlawful status in 
the United States.
    (iii) An eligible alien who was paroled into the United States prior 
to January 1, 1982, and whose parole status terminated prior to January 
1, 1982.
    (iv) An eligible alien who entered the United States before January 
1, 1982, and whose entries to the United States subsequent to January 1, 
1982, were not documented on Form I-94.



Sec. 245a.16  Continuous physical presence from November 6, 1986, through May 

4, 1988.

    (a) The Service will determine whether an alien was continuously 
physically present in the United States from November 6, 1986, through 
May 4, 1988, based on the evidence provided by the alien. An alien must 
provide with the application evidence establishing his or her continuous 
physical presence in the United States from November 6, 1986, through 
May 4, 1988. Evidence establishing the alien's continuous physical 
presence in the United States from November 6, 1986, to May 4, 1988, may 
consist of any documentation issued by any governmental or 
nongovernmental authority, provided such evidence bears the name of the 
applicant, was dated at the time it was issued, and bears the signature, 
seal, or other authenticating instrument of the authorized 
representative of the issuing authority, if the document would normally 
contain such authenticating instrument.
    (b) For purposes of this section, an alien shall not be considered 
to have failed to maintain continuous physical presence in the United 
States by virtue of brief, casual, and innocent absences from the United 
States. Also, brief, casual, and innocent absences from the United 
States are not limited to absences with advance parole. Brief, casual, 
and innocent absence(s) as used in this paragraph means temporary, 
occasional trips abroad as long as the purpose of the absence from the 
United States was consistent with the policies reflected in the 
immigration laws of the United States.
    (c) An alien who has been absent from the United States in 
accordance with the Service's advance parole procedures shall not be 
considered as having interrupted his or her continuous physical presence 
as required at the time of filing an application under this section.

[66 FR 29673, June 1, 2001, as amended at 67 38351, June 4, 2002]



Sec. 245a.17  Citizenship skills.

    (a) Requirements. Applicants for adjustment under LIFE Legalization 
must meet the requirements of section

[[Page 673]]

312(a) of the Act (8 U.S.C. 1423(a)) (relating to minimal understanding 
of ordinary English and a knowledge and understanding of the history and 
government of the United States). Unless an exception under paragraph 
(c) of this section applies to the applicant, LIFE Legalization 
applicants must establish that:
    (1) He or she has complied with the same requirements as those 
listed for naturalization applicants under Sec. Sec. 312.1 and 312.2 of 
this chapter; or
    (2) He or she has a high school diploma or general educational 
development diploma (GED) from a school in the United States. A GED 
gained in a language other than English is acceptable only if a GED 
English proficiency test has been passed. (The curriculum for both the 
high school diploma and the GED must have included at least 40 hours of 
instruction in English and United States history and government). The 
applicant may submit a high school diploma or GED either at the time of 
filing Form I-485, subsequent to filing the application but prior to the 
interview, or at the time of the interview (the applicant's name and A-
number must appear on any such evidence submitted); or
    (3) He or she has attended, or is attending, a state recognized, 
accredited learning institution in the United States, and that 
institution certifies such attendance. The course of study at such 
learning institution must be for a period of one academic year (or the 
equivalent thereof according to the standards of the learning 
institution) and the curriculum must include at least 40 hours of 
instruction in English and United States history and government. The 
applicant may submit certification on letterhead stationery from a state 
recognized, accredited learning institution either at the time of filing 
Form I-485, subsequent to filing the application but prior to the 
interview, or at the time of the interview (the applicant's name and A-
number must appear on any such evidence submitted).
    (b) Second interview. An applicant who fails to pass the English 
literacy and/or the United States history and government tests at the 
time of the interview, shall be afforded a second opportunity after 6 
months (or earlier, at the request of the applicant) to pass the tests 
or submit evidence as described in paragraphs (a)(2) or (a)(3) of this 
section. The second interview shall be conducted prior to the denial of 
the application for permanent residence and may be based solely on the 
failure to pass the basic citizenship skills requirements.
    (c) Exceptions. LIFE Legalization applicants are exempt from the 
requirements listed under paragraph (a)(1) of this section if he or she 
has qualified for the same exceptions as those listed for naturalization 
applicants under Sec. Sec. 312.1(b)(3) and 312.2(b) of this chapter. 
Further, at the discretion of the Attorney General, the requirements 
listed under paragraph (a) of this section may be waived if the LIFE 
Legalization applicant:
    (1) Is 65 years of age or older on the date of filing; or
    (2) Is developmentally disabled as defined under Sec. 245a.1(v).

[66 FR 29673, June 1, 2001, as amended at 67 38351, June 4, 2002]



Sec. 245a.18  Ineligibility and applicability of grounds of inadmissibility.

    (a) Ineligible aliens. (1) An alien who has been convicted of a 
felony or of three or misdemeanors committed in the United States is 
ineligible for adjustment to LPR status under this Subpart B; or
    (2) An alien who has assisted in the persecution of any person or 
persons on account of race, religion, nationality, membership in a 
particular social group, or political opinion is ineligible for 
adjustment of status under this Subpart B.
    (b) Grounds of inadmissibility not to be applied. Section 212(a)(5) 
of the Act (labor certification requirements) and section 212(a)(7)(A) 
of the Act (immigrants not in possession of valid visa and/or travel 
documents) shall not apply to applicants for adjustment to LPR status 
under this Subpart B.
    (c) Waiver of grounds of inadmissibility. Except as provided in 
paragraph (c)(2) of this section, the Service may waive any provision of 
section 212(a) of the Act only in the case of individual aliens for 
humanitarian purposes, to ensure family unity, or when the

[[Page 674]]

granting of such a waiver is otherwise in the public interest. If 
available, an applicant may apply for an individual waiver as provided 
in paragraph (c)(1) of this section without regard to section 241(a)(5) 
of the Act.
    (1) Special rule for waiver of inadmissibility grounds for LIFE 
Legalization applicants under sections 212(a)(9)(A) and 212(a)(9)(C) of 
the Act. An applicant for adjustment of status under LIFE Legalization 
who is inadmissible under section 212(a)(9)(A) or 212(a)(9)(C) of the 
Act, may apply for a waiver of these grounds of inadmissibility while 
present in the United States, without regard to the normal requirement 
that a Form I-212, Application for Permission to Reapply for Admission 
into the United States After Deportation or Removal, be filed prior to 
embarking or re-embarking for travel to the United States, and without 
regard to the length of time since the alien's removal or deportation 
from the United States. Such an alien shall file Form I-690, Application 
for Waiver of Grounds of Excludability Under Sections 245A or 210 of the 
Immigration and Nationality Act, with the district director having 
jurisdiction over the applicant's case if the application for adjustment 
of status is pending at a local office, or with the Director of the 
Missouri Service Center. Approval of a waiver of inadmissibility under 
section 212(a)(9)(A) or section 212(a)(9)(C) of the Act does not cure a 
break in continuous residence resulting from a departure from the United 
States at any time during the period from January 1, 1982, and May 4, 
1988, if the alien was subject to a final exclusion or deportation order 
at the time of the departure.
    (2) Grounds of inadmissibility that may not be waived. 
Notwithstanding any other provisions of the Act, the following 
provisions of section 212(a) of the Act may not be waived by the 
Attorney General under paragraph (c) of this section:
    (i) Section 212(a)(2)(A)(i)(I) (crimes involving moral turpitude);
    (ii) Section 212(a)(2)(A)(i)(II) (controlled substance, except for 
so much of such paragraph as relates to a single offense of simple 
possession of 30 grams or less of marijuana);
    (iii) Section 212(a)(2)(B) (multiple criminal convictions);
    (iv) Section 212(a)(2)(C) (controlled substance traffickers);
    (v) Section 212(a)(3) (security and related grounds); and
    (vi) Section 212(a)(4) (public charge) except for an alien who is or 
was an aged, blind, or disabled individual (as defined in section 
1614(a)(1) of the Social Security Act). If a LIFE Legalization applicant 
is determined to be inadmissible under section 212(a)(4) of the Act, he 
or she may still be admissible under the Special Rule described under 
paragraph (d)(3) of this section.
    (d)(1) In determining whether an alien is ``likely to become a 
public charge'', financial responsibility of the alien is to be 
established by examining the totality of the alien's circumstance at the 
time of his or her application for adjustment. The existence or absence 
of a particular factor should never be the sole criteria for determining 
if an alien is likely to become a public charge. The determination of 
financial responsibility should be a prospective evaluation based on the 
alien's age, health, family status, assets, resources, education and 
skills.
    (2) An alien who has a consistent employment history that shows the 
ability to support himself or herself even though his or her income may 
be below the poverty level is not excludable under paragraph (c)(2)(vi) 
of this section. The alien's employment history need not be continuous 
in that it is uninterrupted. In applying the Special Rule, the Service 
will take into account an alien's employment history in the United 
States to include, but not be limited to, employment prior to and 
immediately following the enactment of IRCA on November 6, 1986. 
However, the Service will take into account that an alien may not have 
consistent employment history due to the fact that an eligible alien was 
in an unlawful status and was not authorized to work. 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

[[Page 675]]

length of time an applicant has received public cash assistance will 
constitute a significant factor. It is not necessary to file a waiver in 
order to apply the Special Rule for determination of public charge.
    (3) In order to establish that an alien is not inadmissible under 
paragraph (c)(2)(vi) of this section, an alien may file as much evidence 
available to him or her establishing that the alien is not likely to 
become a public charge. An alien may have filed on his or her behalf a 
Form I-134, Affidavit of Support. The failure to submit Form I-134 shall 
not constitute an adverse factor.
    (e) Public cash assistance and criminal history verification. 
Declarations by an alien that he or she has not been the recipient of 
public cash assistance and/or has not had a criminal record are subject 
to a verification by the Service. The alien must agree to fully 
cooperate in the verification process. Failure to assist the Service in 
verifying information necessary for proper adjudication may result in 
denial of the application.

[66 FR 29673, June 1, 2001, as amended at 67 38351, June 4, 2002]



Sec. 245a.19  Interviews.

    (a) All aliens filing applications for adjustment of status with the 
Service under this section must be personally interviewed, except that 
the adjudicative interview may be waived for a child under the age of 
14, or when it is impractical because of the health or advanced age of 
the applicant. Applicants will be interviewed by an immigration officer 
as determined by the Director of the Missouri Service Center. An 
applicant failing to appear for the scheduled interview may, for good 
cause, be afforded another interview. Where an applicant fails to appear 
for two scheduled interviews, his or her application shall be denied for 
lack of prosecution. Applications for LIFE Legalization adjustment may 
be denied without interview if the applicant is determined to be 
statutorily ineligible.
    (b) At the time of the interview, wherever possible, original 
documents must be submitted except the following: official government 
records; employment or employment-related records maintained by 
employers, unions, or collective bargaining organizations; medical 
records; school records maintained by a school or school board; or other 
records maintained by a party other than the applicant. Copies of 
records maintained by parties other than the applicant which are 
submitted in evidence must be certified as true and correct by such 
parties and must bear their seal or signature or the signature and title 
of persons authorized to act in their behalf.
    (c) 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 the alien's 
representative. At the discretion of the district director, original 
documents, even if accompanied by certified copies, may be temporarily 
retained for forensic examination by the Service.



Sec. 245a.20  Decisions, appeals, motions, and certifications.

    (a) Decisions.--(1) Approval of applications. If the Service 
approves the application for adjustment of status under LIFE 
Legalization, the district director shall record the alien's lawful 
admission for permanent residence as of the date of such approval and 
notify the alien accordingly. The district director shall also advise 
the alien regarding the delivery of his or her Form I-551, Permanent 
Resident Card, and of the process for obtaining temporary evidence of 
alien registration. If the alien has previously been issued a final 
order of exclusion, deportation, or removal, such order shall be deemed 
canceled as of the date of the district director's approval of the 
application for adjustment of status. If the alien had been in 
exclusion, deportation, or removal proceedings that were 
administratively closed, such proceedings shall be deemed terminated as 
of the date of approval of the application for adjustment of status by 
the district director.
    (2) Denials. The alien shall be notified in writing of the decision 
of denial and of the reason(s) therefore. An applicant affected under 
this part by an adverse decision is entitled to file an appeal on Form 
I-290B Notice of Appeal to the Administrative Appeals Office (AAO), with 
the required fee specified in 8 CFR

[[Page 676]]

103.7(b)(1). Renewal of employment authorization issued pursuant to 8 
CFR 245a.13 will be granted until a final decision has been rendered on 
appeal or until the end of the appeal period if no appeal is filed. 
After exhaustion of an appeal, an alien who believes that the grounds 
for denial have been overcome may submit another application with fee, 
provided that the application is submitted on or before June 4, 2003.
    (b) Appeals process. An adverse decision under this part may be 
appealed to the Associate Commissioner, Examinations, Administrative 
Appeals Office (AAO), who is the appellate authority designated in Sec. 
103.1(f)(3) of this chapter. Any appeal shall be submitted to the 
Service office that rendered the decision with the required fee.
    (1) If an appeal is filed from within the United States, it must be 
received by the Service within 30 calendar days after service of the 
Notice of Denial (NOD) in accordance with the procedures of Sec. 
103.3(a) of this chapter. An appeal received after the 30 day period has 
tolled will not be accepted. The 30 day period for submitting an appeal 
begins 3 days after the NOD is mailed. If a review of the Record of 
Proceeding (ROP) is requested by the alien or his or her legal 
representative, and an appeal has been properly filed, an additional 30 
days will be allowed for this review from the time the ROP is 
photocopied and mailed.
    (2) If an applicant's last known address of record was outside the 
United States, and the NOD was mailed to that foreign address, the 
appeal must be received by the Service within 60 calendar days after 
service of the NOD in accordance with the procedures of Sec. 103.3(a) 
of this chapter. An appeal received after the 60 day period has tolled 
will not be accepted. The 60-day period for submitting an appeal begins 
3 days after the NOD is mailed.
    (c) Motions. The Service director who denied the application may 
reopen and reconsider any adverse decision sua sponte. When an appeal to 
the AAO has been filed, the director may issue a new decision that will 
grant the benefit that has been requested. Motions to reopen a 
proceeding or reconsider a decision shall not be considered under this 
Subpart B.
    (d) Certifications. The Service director who adjudicates the 
application may, in accordance with Sec. 103.4 of this chapter, certify 
a decision to the AAO when the case involves an unusually complex or 
novel question of law or fact.
    (e) Effect of final adjudication of application on aliens previously 
in proceedings.--(1) Upon the granting of an application. If the 
application for LIFE Legalization is granted, proceedings shall be 
deemed terminated or a final order of exclusion, deportation, or removal 
shall be deemed canceled as of the date of the approval of the LIFE 
Legalization application for adjustment of status.
    (2) Upon the denial of an application.--(i) Where proceedings were 
administratively closed. In the case of an alien whose previously 
initiated exclusion, deportation or removal proceeding had been 
administratively closed or continued indefinitely under Sec. 
245a.12(b)(1), the director shall make a request for recalendaring to 
the Immigration Court that had administratively closed the proceeding, 
or the Board, as appropriate, when there is a final decision denying the 
LIFE Legalization application. The Immigration Court or the Board will 
then recalendar the prior proceeding.
    (ii) Where final order was stayed. If the application for LIFE 
Legalization is denied, the stay of a final order of exclusion, 
deportation, or removal afforded in Sec. 245a.13(f) shall be deemed 
lifted as of the date of such denial.

[66 FR 29673, June 1, 2001, as amended at 67 38352, June 4, 2002; 72 FR 
19107, Apr. 17, 2007]



Sec. 245a.21  Confidentiality.

    (a) No person other than a sworn officer or employee of the 
Department of Justice or bureau or agency thereof, will be permitted to 
examine individual applications. For purposes of this part, any 
individual employed under contract by the Service to work in connection 
with the LIFE Legalization provisions shall be considered an employee of 
the Department of Justice or bureau or agency thereof.
    (b) No information furnished pursuant to an application for 
permanent resident status under this Subpart B shall be used for any 
purpose except:

[[Page 677]]

    (1) To make a determination on the application;
    (2) For the enforcement of the provisions encompassed in section 
245A(c)(6) of the Act, except as provided in paragraphs (c) of this 
section; or
    (3) For the purposes of rescinding, pursuant to section 246(a) of 
the Act (8 U.S.C. 1256(a)), any adjustment of status obtained by the 
alien.
    (c) 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 statement or document in making his or her application, 
knowingly made a false statement or representation, or engaged in any 
other activity prohibited by section 245A(c)(6) of the Act, the Service 
shall refer the matter to the United States Attorney for prosecution of 
the alien and/or of any person who created or supplied a false statement 
or document for use in an application for adjustment of status under 
this Subpart B.
    (d) Information contained in granted files may be used by the 
Service at a later date to make a decision:
    (1) On an immigrant visa petition or other status filed by the 
applicant under section 204(a) of the Act;
    (2) On a naturalization application submitted by the applicant;
    (3) For the preparation of reports to Congress under section 404 of 
the Immigration Reform and Control Act of 1986; or
    (4) For the furnishing of information, at the discretion of the 
Attorney General, in the same manner and circumstances as census 
information may be disclosed by the Secretary of Commerce under 13 
U.S.C. 8.
    (e) Information concerning whether the applicant has at any time 
been convicted of a crime may be used or released for immigration 
enforcement or law enforcement purposes.



Sec. 245a.22  Rescission.

    (a) Rescission of adjustment of status under LIFE Legalization shall 
occur only under the procedures of 8 CFR part 246.
    (b) Information furnished by an eligible alien pursuant to any 
application filed under LIFE Legalization may be used by the Attorney 
General, and other officials and employees of the Department of Justice 
and any bureau or agency thereof, for purposes of rescinding, pursuant 
to 8 CFR part 246, any adjustment of status obtained by the alien.



Sec. Sec. 245a.23-245a.29  [Reserved]



          Subpart C_LIFE Act Amendments Family Unity Provisions

    Source: 66 FR 29673, June 1, 2001, unless otherwise noted.



Sec. 245a.30  Description of program.

    This Subpart C implements the Family Unity provisions of section 
1504 of the LIFE Act Amendments, Public Law 106-554.



Sec. 245a.31  Eligibility.

    An alien who is currently in the United States may obtain Family 
Unity benefits under section 1504 of the LIFE Act Amendments if he or 
she establishes that:
    (a) He or she is the spouse or unmarried child under the age of 21 
of an eligible alien (as defined under Sec. 245a.10) at the time the 
alien's application for Family Unity benefits is adjudicated and 
thereafter;
    (b) He or she entered the United States before December 1, 1988, and 
resided in the United States on such date; and
    (c) If applying for Family Unity benefits on or after June 5, 2003, 
he or she is the spouse or unmarried child under the age of 21 of an 
alien who has filed a Form I-485 pursuant to this Subpart B.

[66 FR 29673, June 1, 2001, as amended at 67 FR 38352, June 4, 2002]



Sec. 245a.32  Ineligible aliens.

    The following categories of aliens are ineligible for Family Unity 
benefits under the LIFE Act Amendments:
    (a) An alien who has been convicted of a felony or of three or more 
misdemeanors in the United States; or
    (b) An alien who has ordered, incited, assisted, or otherwise 
participated in

[[Page 678]]

the persecution of an individual because of the individual's race, 
religion, nationality, membership in a particular social group, or 
political opinion; or
    (c) An alien who has been convicted by a final judgment of a 
particularly serious crime and who is a danger to the community of the 
United States; or
    (d) An alien who the Attorney General has serious reasons to believe 
has committed a serious nonpolitical crime outside the United States 
before the alien arrived in the United States; or
    (e) An alien who the Attorney General has reasonable grounds to 
believe is a danger to the security of the United States.



Sec. 245a.33  Filing.

    (a) General. An application for Family Unity benefits under section 
1504 of the LIFE Act Amendments must be filed on a Form I-817, 
Application for Family Unity Benefits, with the Missouri Service Center. 
A Form I-817 must be filed with the correct fee required in Sec. 
103.7(b)(1) of this chapter and the required supporting documentation. A 
separate application with appropriate fee and documentation must be 
filed for each person claiming eligibility.
    (b) Decision. The Missouri Service Center Director has sole 
jurisdiction to adjudicate an application for Family Unity benefits 
under the LIFE Act Amendments. The Director will provide the applicant 
with specific reasons for any decision to deny an application. Denial of 
an application may not be appealed. An applicant who believes that the 
grounds for denial have been overcome may submit another application 
with the appropriate fee and documentation.
    (c) Referral of denied cases for consideration of issuance of notice 
to appear. If an application is denied, the case will be referred to the 
district director with jurisdiction over the alien's place of residence 
for consideration of whether to issue a notice to appear. After an 
initial denial, an applicant's case will not be referred for issuance of 
a notice to appear until 90 days from the date of the initial denial, to 
allow the alien the opportunity to file a new Form I-817 application in 
order to attempt to overcome the basis of the denial. However, if the 
applicant is found not to be eligible for benefits under Sec. 
245a.32(a), the Service reserves the right to issue a notice to appear 
at any time after the initial denial.

[66 FR 29673, June 1, 2001, as amended by 72 FR 19107, Apr. 17, 2007]



Sec. 245a.34  Protection from removal, eligibility for employment, and period 

of authorized stay.

    (a) Scope of protection. Nothing in this Subpart C shall be 
construed to limit the authority of the Service to commence removal 
proceedings against an applicant for or beneficiary of Family Unity 
benefit under this Subpart C on any ground of removal. Also, nothing in 
this Subpart C shall be construed to limit the authority of the Service 
to take any other enforcement action against such an applicant or 
beneficiary with respect to any ground of removal not specified in 
paragraphs (a)(1) through (a)(4) of this section. Protection from 
removal under this Subpart C is limited to the grounds of removal 
specified in:
    (1) Section 237(a)(1)(A) of the Act (aliens who were inadmissible at 
the time of entry or adjustment of status), except that the alien may be 
removed if he or she is inadmissible because of a ground listed in 
section 212(a)(2) (criminal and related grounds) or in section 212(a)(3) 
(security and related grounds) of the Act; or
    (2) Section 237(a)(1)(B) of the Act (aliens present in the United 
States in violation of the Act or any other law of the United States);
    (3) Section 237(a)(1)(C) of the Act (aliens who violated their 
nonimmigrant status or violated the conditions of entry); or
    (4) Section 237(a)(3)(A) of the Act (aliens who failed to comply 
with the change of address notification requirements).
    (b) Duration of protection from removal. When an alien whose 
application for Family Unity benefits under the LIFE Act Amendments is 
approved, he or she will receive protection from removal, commencing 
with the date of approval of the application. A grant of protection from 
removal under this section shall be considered effective from the

[[Page 679]]

date on which the application was properly filed.
    (1) In the case of an alien who has been granted Family Unity 
benefits under the LIFE Act Amendments based on the principal alien's 
application for LIFE Legalization, any evidence of protection from 
removal shall be dated to expire 1 year after the date of approval, or 
the day before the alien's 21st birthday, whichever comes first.
    (2) In the case of an alien who has been granted Family Unity 
benefits under the LIFE Act Amendments based on the principal alien's 
adjustment to LPR status pursuant to his or her LIFE Legalization 
application, any evidence of protection from removal shall be dated to 
expire 2 years after the date of approval, or the day before the alien's 
21st birthday, whichever comes first.
    (c) Employment authorization. An alien granted Family Unity benefits 
under the LIFE Act Amendments is authorized to be employed in the United 
States.
    (1) In the case of an alien who has been granted Family Unity 
benefits based on the principal alien's application for LIFE 
Legalization, the validity period of the employment authorization 
document shall be dated to expire 1 year after the date of approval of 
the Form I-817, or the day before the alien's 21st birthday, whichever 
comes first.
    (2) In the case of an alien who has been granted Family Unity 
benefits based on the principal alien's adjustment to LPR status 
pursuant to his or her LIFE Legalization application, the validity 
period of the employment authorization document shall be dated to expire 
2 years after the date of approval of the Form I-817, or the day before 
the alien's 21st birthday, whichever comes first.
    (d) Period of authorized stay. An alien granted Family Unity 
benefits under the LIFE Act Amendments is deemed to have received an 
authorized period of stay approved by the Attorney General within the 
scope of section 212(a)(9)(B) of the Act.

[66 FR 29673, June 1, 2001, as amended at 67 FR 38352, June 4, 2002]



Sec. 245a.35  Travel outside the United States.

    (a) An alien who departs the United States while his or her 
application for Family Unity benefits is pending will be deemed to have 
abandoned the application and the application will be denied.
    (b) An alien granted Family Unity benefits under the LIFE Act 
Amendments who intends to travel outside the United States temporarily 
must apply for advance authorization using Form I-131. The authority to 
grant an application for advance authorization for an alien granted 
Family Unity benefits under the LIFE Act Amendments rests solely with 
the Service. An alien who is granted advance authorization and returns 
to the United States in accordance with such authorization, and who is 
found not to be inadmissible under section 212(a)(2) or (3) of the Act, 
shall be paroled into the United States. He or she shall be provided the 
remainder of the protection from removal period previously granted under 
the Family Unity provisions of the LIFE Act Amendments.



Sec. 245a.36  [Reserved]



Sec. 245a.37  Termination of Family Unity Program benefits.

    (a) Grounds for termination. The Service may terminate Family Unity 
benefits under the LIFE Act Amendments whenever the necessity for the 
termination comes to the attention of the Service. Such grounds will 
exist in situations including, but not limited to, those in which:
    (1) A determination is made that Family Unity benefits were acquired 
as the result of fraud or willful misrepresentation of a material fact;
    (2) The beneficiary commits an act or acts which render him or her 
ineligible for Family Unity benefits under the LIFE Act Amendments;
    (3) The alien, upon whose status Family Unity benefits under the 
LIFE Act were based, fails to apply for LIFE Legalization by June 4, 
2003, has his or her LIFE Legalization application denied, or loses his 
or her LPR status; or
    (4) A qualifying relationship to the alien, upon whose status Family 
Unity

[[Page 680]]

benefits under the LIFE Act Amendments were based, no longer exists.
    (b) Notice procedure. Notice of intent to terminate and of the 
grounds thereof shall be served pursuant to the provisions of Sec. 
103.5a of this chapter. The alien shall be given 30 days to respond to 
the notice and may submit to the Service additional evidence in 
rebuttal. Any final decision of termination shall also be served 
pursuant to the provisions of Sec. 103.5a of this chapter. Nothing in 
this section shall preclude the Service from commencing removal 
proceedings prior to termination of Family Unity benefits.
    (c) Effect of termination. Termination of Family Unity benefits 
under the LIFE Act Amendments shall render the alien amenable to removal 
under any ground specified in section 237 of the Act (including those 
grounds described in Sec. 245a.34(a)). In addition, the alien will no 
longer be considered to be in a period of stay authorized by the 
Attorney General as of the date of such termination.

[66 FR 29673, June 1, 2001, as amended at 67 FR 38352, June 4, 2002]



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




Sec.
246.1 Notice.
246.2 Allegations admitted; no answer filed; no hearing requested.
246.3 Allegations contested or denied; hearing requested.
246.4 Immigration judge's authority; withdrawal and substitution.
246.5 Hearing.
246.6 Decision and order.
246.7 Appeals.
246.8 [Reserved]
246.9 Surrender of Form I-551.

    Authority: Authority: 8 U.S.C. 1103, 1254, 1255, 1256, 1259; 8 CFR 
part 2.

    Source: 62 FR 10385, Mar. 6, 1997, unless otherwise noted.



Sec. 246.1  Notice.

    If it appears to a district director that a person residing in his 
or her district was not in fact eligible for the adjustment of status 
made in his or her case, or it appears to an asylum office director that 
a person granted adjustment of status by an asylum officer pursuant to 8 
CFR 240.70 was not in fact eligible for adjustment of status, a 
proceeding shall be commenced by the personal service upon such person 
of a notice of intent to rescind, which shall inform him or her of the 
allegations upon which it is intended to rescind the adjustment of his 
or her status. In such a proceeding the person shall be known as the 
respondent. The notice shall also inform the respondent that he or she 
may submit, within thirty days from the date of service of the notice, 
an answer in writing under oath setting forth reasons why such 
rescission shall not be made, and that he or she may, within such 
period, request a hearing before an immigration judge in support of, or 
in lieu of, his or her written answer. The respondent shall further be 
informed that he or she may have the assistance of or be represented by 
counsel or representative of his or her choice qualified under part 292 
of this chapter, at no expense to the Government, in the preparation of 
his or her answer or in connection with his or her hearing, and that he 
or she may present such evidence in his or her behalf as may be relevant 
to the rescission.

[62 FR 10385, Mar. 6, 1997, as amended at 64 FR 27881, May 21, 1999]



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

    If the answer admits the allegations in the notice, or if no answer 
is filed within the thirty-day period, or if no hearing is requested 
within such period, the district director or asylum office director 
shall rescind the adjustment of status previously granted, and no appeal 
shall lie from his decision.

[62 FR 10385, Mar. 6, 1997, as amended at 64 FR 27881, May 21, 1999]



Sec. 246.3  Allegations contested or denied; hearing requested.

    If, within the prescribed time following service of the notice 
pursuant to Sec. 246.1, the respondent has filed an answer which 
contests or denies any allegation in the notice, or a hearing is 
requested, a hearing pursuant to Sec. 246.5 shall be conducted by an 
immigration judge, and the requirements contained in Sec. Sec. 240.3, 
240.4, 240.5, 240.6, 240.7, and 240.9 of this chapter shall be followed.

[[Page 681]]



Sec. 246.4  Immigration judge's authority; withdrawal and substitution.

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



Sec. 246.5  Hearing.

    (a) Service counsel. The Government shall be represented at the 
hearing by a Service counsel who shall have authority to present 
evidence, and to interrogate, examine, and cross-examine the respondent 
and other witnesses. The Service counsel is authorized to appeal from a 
decision of the immigration judge pursuant to Sec. 246.7 and to move 
for reopening or reconsideration pursuant to Sec. 3.23 of this chapter.
    (b) Opening. The immigration judge shall advise the respondent of 
the nature of the proceeding and the legal authority under which it is 
conducted; advise the respondent of his or her right to representation, 
at no expense to the Government, by counsel or representative of his or 
her own choice qualified under part 292 of this chapter and require him 
or her to state then and there whether he or she desires representation; 
advise the respondent that he or she will have a reasonable opportunity 
to examine and object to the evidence against him or her, to present 
evidence in his or her own behalf, and to cross-examine witnesses 
presented by the Government; place the respondent under oath; read the 
allegations in the notice to the respondent and explain them in 
nontechnical language, and enter the notice and respondent's answer, if 
any, as exhibits in the record.
    (c) Pleading by respondent. The immigration judge shall require the 
respondent to state for the record whether he or she admits or denies 
the allegations contained in the notice, or any of them, and whether he 
or she concedes that his or her adjustment of status should be 
rescinded. If the respondent admits all of the allegations and concedes 
that the adjustment of status in his or her case should be rescinded 
under the allegations set forth in the notice, and the immigration judge 
is satisfied that no issues of law or fact remain, he or she may 
determine that rescission as alleged has been established by the 
respondent's admissions. The allegations contained in the notice shall 
be taken as admitted when the respondent, without reasonable cause, 
fails or refuses to attend or remain in attendance at the hearing.



Sec. 246.6  Decision and order.

    The decision of the immigration judge may be oral or written. The 
formal enumeration of findings is not required. The order shall direct 
either that the proceeding be terminated or that the adjustment of 
status be rescinded. Service of the decision and finality of the order 
of the immigration judge shall be in accordance with, and as stated in 
Sec. Sec. 240.13 (a) and (b) and 240.14 of this chapter.



Sec. 246.7  Appeals.

    Pursuant to 8 CFR part 3, an appeal shall lie from a decision of an 
immigration judge under this part to the Board of Immigration Appeals. 
An appeal shall be taken within 30 days after the mailing of a written 
decision or the stating of an oral decision. The reasons for the appeal 
shall be specifically

[[Page 682]]

identified in the Notice of Appeal (Form EOIR 26); failure to do so may 
constitute a ground for dismissal of the appeal by the Board.



Sec. 246.8  [Reserved]



Sec. 246.9  Surrender of Form I-551.

    A respondent whose status as a permanent resident has been rescinded 
in accordance with section 246 of the Act and this part, shall, upon 
demand, promptly surrender to the district director having 
administrative jurisdiction over the office in which the action under 
this part was taken, the Form I-551 issued to him or her at the time of 
the grant of permanent resident status.



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




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

    Authority: 8 U.S.C. 1101, 1103, and 1257.



Sec. 247.1  Scope of part.

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

[22 FR 9801, Dec. 6, 1957]



Sec. 247.11  Notice.

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

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



Sec. 247.12  Disposition of case.

    (a) Allegations admitted or no answer filed. If the waiver Form I-
508 and, if applicable, Form I-508F is not filed by the alien within the 
time prescribed, and the answer admits the allegations in the notice, or 
no answer is filed, the district director shall place a notation on the 
notice describing the alien's adjusted nonimmigrant status and shall 
cause a set of Forms I-94 to be prepared evidencing the nonimmigrant 
classification to which the alien has been adjusted and no appeal shall 
lie from such decision. Form I-94A shall be delivered to the alien and 
shall constitute notice to him of such adjustment. The alien's 
nonimmigrant status shall be for such time, under such conditions, and 
subject to such regulations as are applicable to the particular 
nonimmigrant status granted and shall be subject to such other terms and 
conditions, including the exaction of bond as the district director may 
deem appropriate.

[[Page 683]]

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

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



Sec. 247.13  Disposition of Form I-508.

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

[35 FR 13829, Sept. 1, 1970]



Sec. 247.14  Surrender of documents.

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

[22 FR 9802, Dec. 6, 1957, as amended at 45 FR 32657, May 19, 1980; 63 
FR 70316, Dec. 21, 1998]



PART 248_CHANGE OF NONIMMIGRANT CLASSIFICATION--Table of Contents




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

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



Sec. 248.1  Eligibility.

    (a) General. Except for those classes enumerated in Sec. 248.2, any 
alien lawfully admitted to the United States as a nonimmigrant, 
including an alien who acquired such status pursuant to section 247 of 
the Act, 8 U.S.C. 1257, who is continuing to maintain his or her 
nonimmigrant status, may apply to

[[Page 684]]

have his or her nonimmigrant classification changed to any nonimmigrant 
classification other than that of a spouse or fianc(e), or the child of 
such alien, under section 101(a)(15)(K) of the Act, 8 U.S.C. 
1101(a)(15)(K), or as an alien in transit under section 101(a)(15)(C) of 
the Act, 8 U.S.C. 1101(a)(15)(C). An alien defined by section 
101(a)(15)(V), or 101(a)(15)(U) of the Act, 8 U.S.C. 1101(a)(15)(V) or 8 
U.S.C. 1101(a)(15)(U), may be accorded nonimmigrant status in the United 
States by following the procedures set forth respectively in Sec. 
214.15(f) or Sec. 214.14 of this chapter.
    (b) Except in the case of an alien applying to obtain V nonimmigrant 
status in the United States under Sec. 214.15(f) of this chapter, a 
change of status may not be approved for an alien who failed to maintain 
the previously accorded status or whose status expired before the 
application or petition was filed, except that failure to file before 
the period of previously authorized status expired may be excused in the 
discretion of the Service, and without separate application, where it is 
demonstrated at the time of filing that:
    (1) The failure to file a timely application was due to 
extraordinary circumstances beyond the control of the applicant or 
petitioner, and the Service finds the delay commensurate with the 
circumstances;
    (2) The alien has not otherwise violated his or her nonimmigrant 
status;
    (3) The alien remains a bona fide nonimmigrant; and
    (4) The alien is not the subject of removal proceedings under 8 CFR 
part 240.
    (c) Change of nonimmigrant classification to that of a nonimmigrant 
student. (1) Except as provided in paragraph (c)(3) of this section, a 
nonimmigrant applying for a change of classification as an F-1 or M-1 
student is not considered ineligible for such a change solely because 
the applicant may have started attendance at school before the 
application was submitted. The district director or service center 
director shall deny an application for a change to classification as an 
M-1 student if the applicant intends to pursue the course of study 
solely in order to qualify for a subsequent change of nonimmigrant 
classification to that of an alien temporary worker under section 
101(a)(15)(H) of the Act. Furthermore, an alien may not change from 
classification as an M-1 student to that of an F-1 student.
    (2) [Reserved]
    (3) A nonimmigrant 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 as a B-1 or B-2 nonimmigrant on 
or after such date, may not pursue a course of study at an approved 
school unless the Service has approved his or her application for change 
of status to a classification as an F-1 or M-1 student. The district 
director or service center director will deny the change of status if 
the B-1 or B-2 nonimmigrant enrolled in a course of study before filing 
the application for change of status or while the application is pending 
before the Service.
    (d) Application for change of nonimmigrant classification from that 
of a student under section 101(a)(15)(M)(i) to that described in section 
101(a)(15)(H). A district director shall deny an application for change 
of nonimmigrant classification from that of an M-1 student to that of an 
alien temporary worker under section 101(a)(15)(H) of the Act if the 
education or training which the student received while an M-1 student 
enables the student to meet the qualifications for temporary worker 
classification under section 101(a)(15)(H) of the Act.
    (e) Change of nonimmigrant classification to that as described in 
section 101(a)(15)(N). An application for change to N status shall not 
be denied on the grounds the applicant is an intending immigrant. Change 
of status shall be granted for three years not to exceed termination of 
eligibility under section 101(a)(15)(N) of the Act. Employment 
authorization pursuant to section 274(A) of the Act may be granted to an 
alien accorded nonimmigrant status under section 101(a)(15)(N) of the 
Act. Employment authorization is automatically terminated when the alien 
changes status or is no longer eligible

[[Page 685]]

for classification under section 101(a)(15)(N) of the Act.

[36 FR 9001, May 18, 1971, as amended at 48 FR 14592, Apr. 5, 1983; 52 
FR 11621, Apr. 10, 1987; 59 FR 1465, Jan. 11 1994; 62 FR 10386, Mar. 6, 
1997; 66 FR 42595, Aug. 14, 2001; 66 FR 46704, Sept. 7, 2001; 67 FR 
18064, Apr. 12, 2002; 72 FR 53041, Sept. 17, 2007]



Sec. 248.2  Ineligible classes.

    (a) Except as described in paragraph (b) of this section, the 
following categories of aliens are not eligible to change their 
nonimmigrant status under section 248 of the Act, 8 U.S.C. 1258:
    (1) Any alien in immediate and continuous transit through the United 
States without a visa;
    (2) Any alien classified as a nonimmigrant under section 101(a)(15) 
(C), (D), (K), or (S) of the Act;
    (3) Any alien admitted as a nonimmigrant under section 101(a)(15)(J) 
of the Act, or who acquired such status after admission in order to 
receive graduate medical education or training, whether or not the alien 
was subject to, received a waiver of, or fulfilled the two-year foreign 
residence requirement of section 212(e) of the Act. This restriction 
shall not apply when the alien is a foreign medical graduate who was 
granted a waiver under section 212(e)(iii) of the Act pursuant to a 
request made by a State Department of Public Health (or its equivalent) 
under Pub. L. 103-416, and the alien complies with the terms and 
conditions imposed on the waiver under section 214(k) of the Act and the 
implementing regulations at Sec. 212.7(c)(9) of this chapter. A foreign 
medical graduate who was granted a waiver under Pub. L. 103-416 and who 
does not fulfill the requisite 3-year employment contract or otherwise 
comply with the terms and conditions imposed on the waiver is ineligible 
to apply for change of status to any other nonimmigrant classification; 
and
    (4) Any alien classified as a nonimmigrant under section 
101(a)(15)(J) of the Act (other than an alien described in paragraph (c) 
of this section) who is subject to the foreign residence requirement of 
section 212(e) of the Act and who has not received a waiver of the 
residence requirement, except when the alien applies to change to a 
classification under section 101(a)(15)(A) or (G) of the Act.
    (5) Any alien admitted as a visitor under the visa waiver provisions 
of Sec. 212.1(e) of this chapter.
    (6) Any alien admitted as a Visa Waiver Pilot Program visitor under 
the provisions of section 217 of the Act and part 217 of this chapter.
    (b) The prohibition against a change of nonimmigrant status for the 
categories of aliens described in paragraphs (a)(1) through (6) of this 
section is inapplicable to aliens applying for a change of nonimmigrant 
status to that of a nonimmigrant under section 101(a)(15)(U) of the Act, 
8 U.S.C. 1101(a)(15)(U).

[47 FR 44238, Oct. 7, 1982, as amended at 48 FR 41017, Sept. 13, 1983; 
52 FR 48084, Dec. 18, 1987; 53 FR 24903, June 30, 1988; 60 FR 26683, May 
18, 1995; 60 FR 44271, Aug. 25, 1995; 72 FR 53041, Sept. 17, 2007]



Sec. 248.3  Application.

    (a) Change of status on Form I-129. An employer seeking the services 
of an alien as an E-1, E-2, H-1A, H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, 
P-1, P-2, P-3, Q-1, R-1, or TN nonimmigrant, must, where the alien is 
already in the U.S. and does not currently hold such status, apply for a 
change of status on Form I-129. The form must be filed with the fee 
required in Sec. 103.7 of this chapter and the initial evidence 
specified in Sec. 214.2 of this chapter and on the petition form. 
Dependents holding derivative status may be included in the petition if 
the form is for only one worker. In all other cases, dependents of the 
worker should file on Form I-539.
    (b) Change of status on Form I-539. Any nonimmigrant who desires a 
change of status to any nonimmigrant classification, other than those 
listed in paragraph (a) of this section, or to E-1 or E-2 classification 
as the spouse or child of a principal E-1 or E-2, must apply for a 
change of status on Form I-539. The application must be filed with the 
fee required in Sec. 103.7 of this chapter and any initial evidence 
specified in the applicable provisions of Sec. 214.2 of this chapter, 
and on the application form. More than one person may be included in an 
application where the co-applicants are all members of a single

[[Page 686]]

family group and either all hold the same nonimmigrant status or one 
holds a nonimmigrant status and the co-applicants are his or her spouse 
and/or children who hold derivative nonimmigrant status based on the 
principal's nonimmigrant status.
    (c) Special provisions for change of nonimmigrant classification to, 
or from, a position classified under section 101(a)(15) (A) or (G) of 
the Act. Each application for change of nonimmigrant classification to, 
or from, a position classified under section 101(a)(15)(A) or (G) must 
be filed on Form I-539 and be accompanied by a Form I-566, completed and 
endorsed in accordance with the instructions on that form. If the 
Department of State recommends against the change, the application shall 
be denied. An application for a change of classification by a principal 
alien in a position classified A-1, A-2, G-1, G-2, G-3, or G-4 shall be 
processed without fee. Members of the principal alien's immediate family 
who are included on the principal alien's application shall also be 
processed without fee.
    (d) Special provisions for change of nonimmigrant classification 
from Q-2 classification. Any alien classified as a Q-2 nonimmigrant, who 
requests a change to another nonimmigrant classification, must file Form 
I-539, with appropriate fee, to the Nebraska Service Center. Any spouse 
or minor children of the principal alien who are in the United States 
and who are also classified as either Q-2 or Q-3 nonimmigrants may be 
included in the application.
    (e) Change of classification not required. The following do not need 
to request a change of classification:
    (1) An alien classified as a visitor for business under section 
101(a)(15)(B) of the Act who intends to remain in the United States 
temporarily as a visitor for pleasure during the period of authorized 
admission; or
    (2) An alien classified under sections 101(a)(15)(A) or 
101(a)(15)(G) of the Act as a member of the immediate family of a 
principal alien classified under the same section, or an alien 
classified under sections 101(a)(15)(E), (H), (I), (J), (L), or (Q)(ii) 
of the Act as the spouse or child who accompanied or followed-to-join a 
principal alien who is classified under the same section, may attend 
school in the United States, provided that the principal alien or spouse 
or child maintain their nonimmigrant status.
    (f) Approval of application. If the application is granted, the 
applicant shall be notified of the decision and granted a new period of 
time to remain in the United States without the requirement of filing a 
separate application and paying a separate fee for an extension of stay. 
The applicant's nonimmigrant status under his new classification shall 
be subject to the terms and conditions applicable generally to such 
classification and to such other additional terms and conditions, 
including exaction of bond, which the district director deems 
appropriate to the case.
    (g) Denial of application. When the application is denied, the 
applicant shall be notified of the decision and the reasons for the 
denial. There is no appeal from the denial of the application under this 
chapter.
    (h) Change to S nonimmigrant classification. An eligible state or 
federal law enforcement agency (``LEA''), which shall include a state or 
federal court or a United States Attorney's Office, may seek to change 
the nonimmigrant classification of a nonimmigrant lawfully admitted to 
the United States, except those enumerated in Sec. 248.2 of this 
chapter, to that of an alien witness or informant pursuant to section 
101(a)(15)(S) of the Act by filing with the Assistant Attorney General, 
Criminal Division, Form I-539, Application to Extend/Change Nonimmigrant 
Status, with the appropriate fee, and Form I-854, Inter-Agency Alien 
Witness and Informant Record, with attachments establishing eligibility 
for the change of nonimmigrant classification.
    (1) If the Assistant Attorney General, Criminal Division, certifies 
the request for S nonimmigrant classification in accordance with the 
procedures set forth in 8 CFR 214.2(t), the Assistant Attorney General 
shall forward the LEA's request on Form I-854 with Form I-539 to the 
Commissioner. No request for change of nonimmigrant classification to S 
classification may proceed to the Commissioner unless it has first been 
certified by the Assistant Attorney General, Criminal Division.

[[Page 687]]

    (2) In the event the Commissioner decides to deny an application to 
change nonimmigrant classification to S nonimmigrant classification, the 
Assistant Attorney General, Criminal Division, and the relevant LEA 
shall be notified in writing to that effect. The Assistant Attorney 
General, Criminal Division, shall concur in or object to that decision. 
Unless the Assistant Attorney General, Criminal Division, objects within 
7 days, he or she shall be deemed to have concurred in the decision. In 
the event of an objection by the Assistant Attorney General, Criminal 
Division, the matter will be expeditiously referred to the Deputy 
Attorney General for a final resolution. In no circumstances shall the 
alien or the relevant LEA have a right of appeal from any decision to 
deny.
    (i) Change of nonimmigrant status to perform labor in a health care 
occupation. A request for a change of nonimmigrant status filed by, or 
on behalf of, an alien seeking to perform labor in a health care 
occupation as provided in 8 CFR 212.15(c), must be accompanied by a 
certificate as described in 8 CFR 212.15(f), or if the alien is 
eligible, a certified statement as described in 8 CFR 212.15(h). See 8 
CFR 214.1(j) for a special rule concerning applications for change of 
status for aliens admitted temporarily under section 212(d)(3) of the 
Act and 8 CFR 212.15(n).

[36 FR 9001, May 18, 1971, as amended at 48 FR 14593, Apr. 5, 1983; 48 
FR 41017, Sept. 13, 1983; 48 FR 44763, Sept. 30, 1983; 50 FR 25697, June 
21, 1985; 59 FR 1466, Jan. 11, 1994; 60 FR 44271, Aug. 25, 1995; 65 FR 
14779, 14780, Mar. 17, 2000; 65 FR 18432, Apr. 7, 2000; 67 FR 76280, 
Dec. 11, 2002; 68 FR 43921, July 25, 2003; 73 FR 61336, Oct. 16, 2008]



PART 249_CREATION OF RECORDS OF LAWFUL ADMISSION FOR PERMANENT RESIDENCE--

Table of Contents




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

    Authority: 8 U.S.C. 1103, 1182, 1259; 8 CFR part 2.



Sec. 249.1  Waiver of inadmissibility.

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

[47 FR 44238, Oct. 7, 1982]



Sec. 249.2  Application.

    (a) Jurisdiction. An application by an alien, other than an arriving 
alien, who has been served with a notice to appear or warrant of arrest 
shall be considered only in proceedings under 8 CFR part 240. In any 
other case, an alien who believes he or she meets the eligibility 
requirements of section 249 of the Act shall apply to the district 
director having jurisdiction over his or her place of residence. The 
application shall be made on Form I-485 and shall be accompanied by Form 
G-325A, which shall be considered part of the application. The 
application shall also be accompanied by documentary evidence 
establishing continuous residence in the United States since prior to 
January 1, 1972, or since entry and prior to July 1, 1924. All documents 
must be submitted in accordance with Sec. 103.2(b) of this chapter. 
Documentary evidence may include any records of official or personal 
transactions or recordings of events occurring during the period of 
claimed residence. Affidavits of credible witnesses may also be 
accepted. Persons unemployed and unable to furnish evidence in their own 
names may furnish evidence in the names of parents or other persons with 
whom they have been living, if affidavits of the parents or other 
persons are submitted attesting to the residence. The numerical 
limitations of sections 201 and 202 of the Act shall not apply.
    (b) Decision. The applicant shall be notified of the decision and, 
if the application is denied, of the reasons therefor. If the 
application is granted,

[[Page 688]]

a Form I-551, showing that the applicant has acquired the status of an 
alien lawfully admitted for permanent residence, shall not be issued 
until the applicant surrenders any other document in his or her 
possession evidencing compliance with the alien registration 
requirements of former or existing law. No appeal shall lie from the 
denial of an application by the district director. However, an alien, 
other than an arriving alien, may renew the denied application in 
proceedings under 8 CFR part 240.

[52 FR 6322, Mar. 3, 1987, as amended at 62 FR 10386, Mar. 6, 1997]



Sec. 249.3  Reopening and reconsideration.

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

[29 FR 11494, Aug. 11, 1964]



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




Sec.
250.1 Application.
250.2 Removal authorization.

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



Sec. 250.1  Application.

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

[22 FR 9802, Dec. 6, 1957]



Sec. 250.2  Removal authorization.

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

[22 FR 9802, Dec. 6, 1957]



PART 251_ARRIVAL AND DEPARTURE MANIFESTS AND LISTS: SUPPORTING DOCUMENTS--

Table of Contents




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

    Authority: 8 U.S.C. 1103, 1182, 1221, 1281, 1282, 8 CFR part 2.



Sec. 251.1  Arrival manifests and lists.

    (a) Vessels--(1) General. The master or agent of every vessel 
arriving in the United States from a foreign place or an outlying 
possession of the United States shall present to the immigration officer 
at the port where the immigration inspection is performed a manifest of 
all crewmen on board on Form I-418, Passenger List and Crew List, in 
accordance with the instructions contained thereon.
    (2) Longshore work notations. The master or agent of the vessel 
shall indicate in writing immediately below the name of the last alien 
listed on the Form I-418 whether or not crewmen aboard the vessel will 
be used to perform longshore work at any United States port before the 
vessel departs the United States.
    (i) If no longshore work will be performed, no further notation 
regarding longshore work is required.
    (ii) If longshore work will be performed, the master or agent shall 
note which exception listed in section 258 of the Act permits the work. 
The exceptions are:
    (A) The hazardous cargo exception;
    (B) The prevailing practice exception in accordance with a port's 
collective bargaining agreements;
    (C) The prevailing practice exception at a port where there is no 
collective bargaining agreement, but for which the vessel files an 
attestation;

[[Page 689]]

    (D) The prevailing practice exception for automated vessels; and
    (E) The reciprocity exception.
    (iii) If longshore work will be performed under the hazardous cargo 
exception, the vessel must either be a tanker or be transporting dry 
bulk cargo that qualifies as hazardous. All tankers qualify for the 
hazardous cargo exception, except for a tanker that has been gas-freed 
to load non-hazardous dry bulk commodities.
    (A) To invoke the exception for tankers, the master or agent shall 
note on the manifest that the vessel is a qualifying tanker.
    (B) If the vessel is transporting dry bulk hazardous cargo, the 
master or agent shall note on the manifest that the vessel's dry bulk 
cargo is hazardous and shall show the immigration officer the dangerous 
cargo manifest that is signed by the master or an authorized 
representative of the owner, and that under 46 CFR 148.02 must be kept 
in a conspicuous place near the bridge house.
    (iv) If longshore work will be performed under the prevailing 
practice exception, the master or agent shall note on the manifest each 
port at which longshore work will be performed under this exception. 
Additionally, for each port the master or agent shall note either that:
    (A) The practice of nonimmigrant crewmen doing longshore work is in 
accordance with all collective bargaining agreements covering 30 percent 
or more of the longshore workers in the port;
    (B) The port has no collective bargaining agreement covering 30 
percent or more of the longshore workers in the port and an attestation 
has been filed with the Secretary of Labor;
    (C) An attestation that was previously filed is still valid and the 
vessel continues to comply with the conditions stated in that 
attestation; or
    (D) The longshore work consists of operating an automated, self-
unloading conveyor belt or a vacuum-actuated system.
    (v) If longshore work will be performed under the reciprocity 
exception, the master or agent shall note on the manifest that the work 
will be done under the reciprocity exception, and will note the 
nationality of the vessel's registry and the nationality or 
nationalities of the holders of a majority of the ownership interest in 
the vessel.
    (3) Exception for certain Great Lakes vessels. (i) A manifest shall 
not be required for a vessel of United States, Canadian, or British 
registry engaged solely in traffic on the Great Lakes or the St. 
Lawrence River and connecting waterways, herein designated as a Great 
Lakes vessel, unless:
    (A) The vessel employs nonimmigrant crewmen who will do longshore 
work at a port in the United States; or
    (B) The vessel employs crewmen of other than United States, 
Canadian, or British citizenship.
    (ii) In either situation, the master shall note the manifest in the 
manner prescribed in paragraph (a)(2) of this section.
    (iii) After submission of a manifest on the first voyage of a 
calendar year, a manifest shall not be required on subsequent arrivals 
unless a nonimmigrant crewman of other than Canadian or British 
citizenship is employed on the vessel who was not aboard and listed on 
the last prior manifest, or a change has occurred regarding the 
performance of longshore work in the United States by nonimmigrant 
crewmen, or a change has occurred in the exception that the master or 
agent of the vessel wishes to invoke which was not noted on the last 
prior manifest.
    (4) The master or agent of a vessel that only bunkers at a United 
States port en route to another United States port shall annotate Form 
I-418 presented at the onward port to indicate the time, date, and place 
of bunkering.
    (5) If documentation is required to support an exception, as 
described in Sec. 258.2 of this chapter, it must accompany the 
manifest.
    (b) Aircraft. The captain or agent of every aircraft arriving in the 
United States from a foreign place or from an outlying possession of the 
United States, except an aircraft arriving in the United States directly 
from Canada on a flight originating in that country, shall present to 
the immigration officer at the port where the inspection is

[[Page 690]]

performed a manifest on United States Customs Service Form 7507 or on 
the International Civil Aviation Organization's General Declaration of 
all the alien crewmembers on board, including alien crewmembers who are 
returning to the United States after taking an aircraft of the same line 
from the United States to a foreign place or alien crewmembers who are 
entering the United States as passengers solely for the purpose of 
taking an aircraft of the same line from the United States to a foreign 
port. The captain or agent of an aircraft that only refuels at the 
United States en route to another United States port must annotate the 
manifest presented at the onward port to indicate the time, date, and 
place of refueling. The surname, given name, and middle initial of each 
alien crewman listed also shall be shown on the manifest. In addition, 
the captain or agent of the aircraft shall indicate the total number of 
United States citizen crewmembers and total number of alien crewmembers.
    (c) Additional documents. The master, captain, or agent shall 
prepare as a part of the manifest, when one is required for presentation 
to an immigration officer, a completely executed set of Forms I-95, 
Conditional Landing Permit, for each nonimmigrant alien crewman on 
board, except:
    (1) A Canadian or British citizen crewman serving on a vessel plying 
solely between Canada and the United States; or
    (2) A nonimmigrant crewman who is in possession of an unmutilated 
Form I-184, Alien Crewman Landing Permit and Identification Card, or an 
unmutilated Form I-95 with space for additional endorsements previously 
issued to him or her as a member of the crew of the same vessel or an 
aircraft of the same line on his or her last prior arrival in the United 
States, following which he or she departed from the United States as a 
member of the crew of the same vessel or an aircraft of the same line.

[62 FR 10386, Mar. 6, 1997]



Sec. 251.2  Notification of illegal landings.

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

[62 FR 10387, Mar. 6, 1997]



Sec. 251.3  Departure manifests and lists for vessels.

    (a) Form I-418, Passenger List-Crew List. The master or agent of 
every vessel departing from the United States shall submit to the 
immigration officer at the port from which such vessel is to depart 
directly to some foreign place or outlying possession of the United 
States, except when a manifest is not required pursuant to Sec. 
251.1(a), a single Form I-418 completed in accordance with the 
instructions on the form. Submission of a Form I-418 that lacks any 
required endorsement shall be regarded as lack of compliance with 
section 251(c) of the Act.
    (b) Exception for certain Great Lakes vessels. The required list 
need not be submitted for Canadian or British crewmembers of Great Lakes 
vessels described in Sec. 251.1(a)(3).

[62 FR 10387, Mar. 6, 1997]



Sec. 251.4  Departure manifests and lists for aircraft.

    (a) United States Customs Service Form 7507 or International Civil 
Aviation Organization's General Declaration. The captain or agent of 
every aircraft departing from the United States for a foreign place or 
an outlying possession of the United States, except on a flight 
departing for and terminating in Canada, shall submit to the immigration 
officer at the port from which such aircraft is to depart a completed 
United

[[Page 691]]

States Customs Service Form 7507 or the International Civil Aviation 
Organization's General Declaration. The form shall contain a list of all 
alien crewmen on board, including alien crewmen who arrived in the 
United States as crewmen on an aircraft of the same line and who are 
departing as passengers. The surname, given name, and middle initial of 
each such alien crewman listed shall be shown. In addition, the captain 
or agent of the aircraft shall indicate the total number of alien 
crewmembers and the total number of United States citizen crewmembers.
    (b) Notification of changes in employment for aircraft. The agent of 
the air transportation line shall immediately notify in writing the 
nearest immigration office of the termination of employment in the 
United States of each alien employee of the line furnishing the name, 
birth date, birthplace, nationality, passport number, and other 
available information concerning such alien. The procedure to follow in 
obtaining permission to pay off or discharge an alien crewman in the 
United States after initial immigration inspection, other than an alien 
lawfully admitted for permanent residence, is set forth in Sec. 
252.1(f) of this chapter.

[62 FR 10387, Mar. 6, 1997]



Sec. 251.5  Paper arrival and departure manifests for crew.

    In addition to the electronic manifest transmission requirement 
applicable to crew members specified in Sec. Sec. 231.1 and 231.2 of 
this chapter, the master or commanding officer, or authorized agent, 
owner, or consignee, of a commercial vessel or commercial aircraft 
arriving in or departing from the United States must submit arrival and 
departure manifests in a paper format in accordance with Sec. Sec. 
251.1, 251.3, and 251.4.

[70 FR 17849, Apr. 7, 2005]



Sec. 251.6  Exemptions for private vessels and aircraft.

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

[70 FR 17849, Apr. 7, 2005]



PART 252_LANDING OF ALIEN CREWMEN--Table of Contents




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

    Authority: 8 U.S.C. 1103, 1184, 1185 (pursuant to E.O. 13323 
published on January 2, 2004) , 1258, 1281, 1282; 8 CFR part 2.



Sec. 252.1  Examination of crewmen.

    (a) Detention prior to examination. All persons employed in any 
capacity on board any vessel or aircraft arriving in the United States 
shall be detained on board the vessel or at the airport of arrival by 
the master or agent of such vessel or aircraft until admitted or 
otherwise permitted to land by an officer of the Service.
    (b) Classes of aliens subject to examination under this part. The 
examination of every nonimmigrant alien crewman arriving in the United 
States shall be in accordance with this part except that the following 
classes of persons employed on vessels or aircraft shall be examined in 
accordance with the provisions of 8 CFR parts 235 and 240:
    (1) Canadian or British citizen crewmen serving on vessels plying 
solely between Canada and the United States; or
    (2) Canadian or British citizen crewmen of aircraft arriving in a 
State of the United States directly from Canada on flights originating 
in that country. The crew of a vessel arriving at a United States port 
that may not require inspection by or clearance from the United States 
Customs Service is, nevertheless, subject to examination under this 
part; however, the master of such a vessel is not required to present 
Form I-95 for any crewman who is not an applicant for a conditional 
landing permit.

[[Page 692]]

    (c) Requirements for landing permits. Every alien crewman applying 
for landing privileges in the United States is subject to the provisions 
of 8 CFR 235.1(d)(1)(ii) and (iii), and must make his or her application 
in person before a Customs and Border Protection (CBP) officer, present 
whatever documents are required, establish to the satisfaction of the 
inspecting officer that he or she is not inadmissible under any 
provision of the law, and is entitled clearly and beyond doubt to 
landing privileges in the United States.
    (d) Authorization to land. The immigration officer in his discretion 
may grant an alien crewman authorization to land temporarily in the 
United States for: (1) Shore leave purposes during the period of time 
the vessel or aircraft is in the port of arrival or other ports in the 
United States to which it proceeds directly without touching at a 
foreign port or place, not exceeding 29 days in the aggregate, if the 
immigration officer is satisfied that the crewman intends to depart on 
the vessel on which he arrived or on another aircraft of the same 
transportation line, and the crewman's passport is surrendered for safe 
keeping to the master of the arriving vessel, or (2) the purpose of 
departing from the United States as a crewman on a vessel other than the 
one on which he arrived, or departing as a passenger by means of other 
transportation, within a period of 29 days, if the immigration officer 
is satisfied that the crewman intends to depart in that manner, that 
definite arrangements for such departure have been made, and the 
immigration officer has consented to the pay off or discharge of the 
crewman from the vessel on which he arrived. A crewman granted a 
conditional permit to land under section 252(a)(1) of the Act and 
paragraph (d)(1) of this section is required to depart with his vessel 
from its port of arrival and from each other port in the United States 
to which it thereafter proceeds coastwise without touching at a foreign 
port or place; however, he may rejoin his vessel at another port in the 
United States before it touches at a foreign port or place if he has 
advance written permission from the master or agent to do so.
    (e) Conditional permits to land. Unless the crewman is in possession 
of Form I-184 and is landed under paragraph (d)(1) of this section, the 
immigration officer shall give to each alien nonimmigrant crewman 
permitted to land a copy of the Form I-95 presented by the crewman, 
endorsed to show the date and place of admission and the type of 
conditional landing permit.
    (f) Change of status. An alien nonimmigrant crewman landed pursuant 
to the provisions of this part shall be ineligible for any extension of 
stay or for a change of nonimmigrant classification under part 248 of 
this chapter. A crewman admitted under paragraph (d)(1) of this section 
may, if still maintaining status, apply for a conditional landing permit 
under paragraph (d)(2) of this section. The application shall not be 
approved unless an application on Form I-408, filed pursuant to 
paragraph (h) of this section, has been approved authorizing the master 
or agent of the vessel on which the crewman arrived to pay off or 
discharge the crewman and unless evidence is presented by the master or 
agent of the vessel to which the crewman will be transferred that a 
specified position on that vessel has been authorized for him or that 
satisfactory arrangements have been completed for the repatriation of 
the alien crewman. If the application is approved, the crewman shall be 
given a new Form I-95 endorsed to show landing authorized under 
paragraph (d)(2) of this section for the period necessary to accomplish 
his scheduled reshipment, which shall not exceed 29 days from the date 
of his landing, upon surrendering any conditional landing permit 
previously issued to him on Form I-95.
    (g) Refusal of conditional landing permit. When an alien crewman is 
refused a conditional landing permit for any reason, the Form I-95 
presented by him at time of examination shall be endorsed ``Permission 
to land temporarily at all U.S. ports is refused'' and the Form I-95 
shall be given to the master or agent of the vessel or aircraft and, in 
the case of vessels, the alien crewman's name shall be listed on the 
Form I-410 delivered to the master of the vessel upon completion of the 
examination of the crew. If an alien

[[Page 693]]

crewman who has been refused a conditional landing permit is in 
possession of Form I-184, the Form I-184 shall be lifted by the 
examining immigration officer and, except in the case of an alien 
crewman who is refused a conditional landing permit solely because he is 
not in possession of a valid passport or visa, the Form I-184 shall be 
voided. In the case of an alien crewman refused a conditional landing 
permit because he is not in possession of a valid passport or visa, the 
Form I-184 shall be delivered to the master or agent of the vessel with 
instructions to return it to the alien crewman after the vessel has 
departed from the United States.
    (h) Authorization to pay off or discharge an alien crewman. 
Application to pay off or discharge an alien crewman, except an alien 
lawfully admitted for permanent residence, shall be made by the owner, 
agent, consignee, charterer, master, or commanding officer of the vessel 
or aircraft on which the alien crewman arrived on Form I-408 filed with 
the immigration officer having jurisdiction over the area in which the 
vessel or aircraft is located at the time of application. The applicant 
shall be notified of the decision, and, if the application is denied, of 
the reasons therefor. There shall be no appeal from the denial of an 
application on Form I-408.

[23 FR 2788, Apr. 26, 1958, as amended at 27 FR 11875, Dec. 1, 1962; 29 
FR 13243, Sept. 24, 1964; 29 FR 14432, Oct. 21, 1964; 32 FR 9633, July 
4, 1967; 33 FR 9332, June 26, 1968; 33 FR 17137, Nov. 19, 1968; 58 FR 
48779, Sept. 20, 1993; 62 FR 10388, Mar. 6, 1997; 69 FR 53333, Aug. 31, 
2004]



Sec. 252.2  Revocation of conditional landing permits; removal.

    (a) Revocation and removal while vessel is in the United States. A 
crewman whose landing permit is subject to revocation pursuant to 
section 252(b) of the Act may be taken into custody by any immigration 
officer without a warrant of arrest and be transferred to the vessel of 
arrival, if the vessel is in any port in the United States and has not 
departed foreign since the crewman was issued his or her conditional 
landing permit. Detention and removal of the crewman shall be at the 
expense of the transportation line on which the crewman arrived. Removal 
may be effected on the vessel of arrival or, if the master of the vessel 
has requested in writing, by alternate means if removal on the vessel of 
arrival is impractical.
    (b) Revocation and removal after vessel has departed the United 
States. A crewman who was granted landing privileges prior to April 1, 
1997, and who has not departed foreign on the vessel of arrival, or on 
another vessel or aircraft if such permission was granted pursuant to 
Sec. 252.1(f), is subject to removal proceedings under section 240 of 
the Act as an alien deportable pursuant to section 237(a)(1)(C)(i) of 
the Act. A crewman who was granted landing privileges on or after April 
1, 1997, and who has not departed foreign on the vessel of arrival, or 
on another vessel or aircraft if such permission was granted pursuant to 
Sec. 252.1(f), shall be removed from the United States without a 
hearing, except as provided in Sec. 208.2(b)(1) of this chapter. In 
either case, if the alien is removed within 5 years of the date of 
landing, removal of the crewman shall be at the expense of the owner of 
the vessel. In the case of a crewman ordered removed more than 5 years 
after the date of landing, removal shall be at the expense of the 
appropriation for the enforcement of the Act.

[62 FR 10388, Mar. 6, 1997]



Sec. 252.3  Great Lakes vessels and tugboats arriving in the United States 

from Canada; special procedures.

    (a) United States vessels and tugboats. An immigration examination 
shall not be required of any crewman aboard a Great Lakes vessel of 
United States registry or a tugboat of United States registry arriving 
from Canada at a port of the United States who has been examined and 
admitted by an immigration officer as a member of the crew of the same 
vessel or tugboat or of any other vessel or tugboat of the same company 
during the current calendar year.
    (b) Canadian or British vessels or tugboats. An alien crewman need 
not be presented for inspection if the alien crewman:
    (1) Serves aboard a Great Lakes vessel of Canadian or British 
registry or

[[Page 694]]

aboard a tugboat of Canadian or British registry arriving at a United 
States port-of-entry from Canada;
    (2) Seeks admission for a period of less than 29 days;
    (3) Has, during the current calendar year, been inspected and 
admitted by an immigration officer as a member of the crew of the same 
vessel or tugboat, or of any other vessel or tugboat of the same 
company;
    (4) Is either a British or Canadian citizen or is in possession of a 
valid Form I-95 previously issued to him or her as a member of the crew 
of the same vessel or tugboat, or of any other vessel or tugboat of the 
same company;
    (5) Does not request or require landing privileges in the United 
States beyond the time the vessel or tugboat will be in port; and,
    (6) Will depart to Canada with the vessel or tugboat.

[62 FR 10388, Mar. 6, 1997]



Sec. 252.4  Permanent landing permit and identification card.

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

[62 FR 10388, Mar. 6, 1997]



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

war.

    (a) General. Under E.O. 11267 of January 19, 1966 (31 FR 807) and 28 
CFR 0.109, and E.O. 11300 of August 17, 1966, (31 FR 11009), and 28 CFR 
0.110, the Commissioner and immigration officers (as defined in Sec. 
103.1(j) of this chapter) are designated as ``competent national 
authorities'' on the part of the United States within the meaning of 
Article XXIV of the 1903 Treaty of Friendship and General Relations 
between the United States and Spain (33 Stat. 2105, 2117), and ``local 
authorities'' and ``competent officers'' on the part of the United 
States within the meaning of Article XIII of the Convention between the 
United States and Greece (33 Stat. 2122, 2131).
    (b) Application for restoration. On application of a Consul General, 
Consul, Vice-Consul, or Consular-Agent of the Spanish or Greek 
Government, made in writing pursuant to Article XXIV of the treaty, or 
Article XIII of the Convention, respectively, stipulating for the 
restoration of crewmen deserting, stating that the person named therein 
has deserted from a ship of war of that government, while in any port of 
the United States, and on proof by the exhibition of the register, crew 
list, or official documents of the vessel, or a copy or extract 
therefrom, duly certified, that the person named belonged, at the time 
of desertion, to the crew of such vessel, such person shall be taken 
into custody by any immigration officer without a warrant of arrest. 
Written notification of charges shall be served on the alien when he or 
she is taken into custody or as soon as practical thereafter.
    (c) Examination. Within a reasonable period of time after the 
arrest, the alien shall be accorded an examination by the district 
director, acting district director, or the deputy district director 
having jurisdiction over the place of arrest. The alien shall be 
informed that he or she may have the assistance of or be represented by 
a counsel or representative of his or her choice qualified under 8 CFR 
part 292 without expense to the Government, and that he or she may 
present such evidence in his or her behalf as may be relevant to this 
proceeding. If, upon the completion of such examination, it is 
determined that:
    (1) The individual sought by the Spanish or Greek authorities had 
deserted from a Spanish or Greek ship of war in a United States port;
    (2) The individual actually arrested and detained is the person 
sought;
    (3) The individual is not a citizen of the United States; and
    (4) The individual had not previously been arrested for the same 
cause and set at liberty because he or she had been detained for more 
than 3 months, or more than 2 months in the case of a deserter from a 
Greek ship of war, from the day of his or her arrest without the

[[Page 695]]

Spanish or Greek authorities having found an opportunity to send him or 
her home, the individual shall be served with a copy of the findings, 
from which no appeal shall lie, and be surrendered forthwith to the 
Spanish or Greek authorities if they are prepared to remove him or her 
from the United States. On written request of the Spanish or Greek 
authorities, the individual shall be detained, at their expense, for a 
period not exceeding 3 months or 2 months, respectively, from the day of 
arrest to afford opportunity to arrange for his or her departure from 
the United States.
    (d) Timely departure not effected. If the Spanish authorities delay 
in sending the individual home for more than 3 months, or if the Greek 
authorities delay in sending the individual home for more than 2 months, 
from the day of his or her arrest, the individual shall be dealt with as 
any other alien unlawfully in the United States under the removal 
provisions of the Act, as amended.
    (e) Commission of crime. If the individual has committed any crime 
or offense in the United States, he or she shall not be placed at the 
disposal of the consul until after the proper tribunal having 
jurisdiction in his or her case shall have pronounced sentence, and such 
sentence shall have been executed.

[62 FR 10388, Mar. 6, 1997]



PART 253_PAROLE OF ALIEN CREWMEN--Table of Contents




Sec.
253.1 Parole.
253.2 Termination of parole.

    Authority: 8 U.S.C. 1103, 1182, 1282, 1283, 1285; 8 CFR part 2.



Sec. 253.1  Parole.

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

[[Page 696]]

set by the district director in whose district the port is located, in 
the custody of the agent of the vessel or aircraft for the purpose of 
passing through the United States and transferring to another vessel or 
aircraft for departure to such foreign country, by the most direct and 
expeditious route.
    (d) Shipwrecked or castaway seamen or airmen. A shipwrecked or 
castaway alien seaman or airman who is rescued by or transferred at sea 
to a vessel or aircraft destined directly for the United States and who 
is brought to the United States on such vessel or aircraft other than as 
a member of its crew shall be paroled into the United States under the 
provisions of section 212(d)(5) of the Act for the period of time and 
under the conditions set by the district director in whose district the 
port is located, in the custody of the appropriate foreign consul or the 
agent of the aircraft or vessel which was wrecked or from which such 
seaman or airman was removed, for the purpose of treatment or 
observation in a hospital, if such is required, and for departure to the 
appropriate foreign country by the most direct and expeditious route.
    (e) Medical treatment or observation. Any alien crewman denied a 
conditional landing permit or whose conditional landing permit issued 
under Sec. 252.1(d)(1) of this chapter is revoked may, upon the request 
of the master or agent, be paroled into the United States under the 
provisions of section 212(d)(5) of the Act in the custody of the agent 
of the vessel or aircraft and at the expense of the transportation line 
for medical treatment or observation.
    (f) Crewman, stowaway, or alien removable under section 235(c) 
alleging persecution or torture. Any alien crewman, stowaway, or alien 
removable under section 235(c) of the Act who alleges that he or she 
cannot return to his or her country of nationality or last habitual 
residence (if not a national of any country) because of fear of 
persecution in that country on account of race, religion, nationality, 
membership in a particular social group, or political opinion, or 
because of fear of torture is eligible to apply for asylum or 
withholding of removal under 8 CFR part 208. Service officers shall take 
particular care to ensure that the provisions of Sec. 208.5(b) of this 
chapter regarding special duties toward aliens aboard certain vessels 
are closely followed.
    (g) Other crewmen. In the discretion of the district director, any 
alien crewman not within the purview of paragraphs (b) through (f) of 
this section may for other emergent reasons or for reasons deemed 
strictly in the public interest be paroled into the United States under 
the provisions of section 212(d)(5) of the Act for the period of time 
and under the conditions set by the district director having 
jurisdiction over the area where the alien crewman is located.

[22 FR 9804, Dec. 6, 1957, as amended at 26 FR 11797, Dec. 8, 1961; 32 
FR 4341, Mar. 22, 1967; 32 FR 9633, July 4, 1967; 55 FR 30687, July 27, 
1990; 62 FR 10389, Mar. 6, 1997; 64 FR 8495, Feb. 19, 1999]



Sec. 253.2  Termination of parole.

    (a) General. At the expiration of the period of parole authorized by 
the district director, or when the purpose of the parole has been 
served, whichever is earlier, the agent upon whom the relating Form I-
259 was served as provided in Sec. 253.1, shall present the alien 
crewman for inspection to an immigration officer at the Service office 
specified in the Form I-259. If the agent cannot present the alien 
crewman, the agent shall immediately submit a report of the reasons 
therefor to the district director. The district director shall take such 
further action as the circumstances may require. If the vessel or 
aircraft on which the alien crewman arrived in the United States is 
still in the United States when he is presented for inspection, he shall 
be treated as an applicant for a conditional landing permit and his case 
shall be dealt with in the same manner as any other applicant for a 
conditional landing permit. If the vessel or aircraft on which the alien 
crewman arrived in the United States departed before he was presented 
for inspection, the agent shall be directed by means of written notice 
on Form I-259 to arrange for the removal of the alien crewman from the 
United States, and if such alien crewman thereafter departs voluntarily 
from the United States within the time

[[Page 697]]

specified by the district director, such departure shall not be 
considered a deportation within the meaning of this section.
    (b) Revocation of parole. When an immigration officer has reason to 
believe that an alien crewman paroled into the United States pursuant to 
the provisions of Sec. 253.1 has violated the conditions of parole, the 
immigration officer may take such alien crewman into custody without a 
warrant of arrest. Following such action, the alien crewman shall be 
accorded, without undue delay, an examination by another immigration 
officer. If it is determined on the basis of such examination that the 
individual detained is an alien crewman who was paroled into the United 
States pursuant to the provisions of Sec. 253.1 and that he has 
violated the conditions of the parole or has remained in the United 
States beyond the period authorized by the district director, the 
district director shall cause to be served upon the alien crewman a 
written notice that his parole has been revoked, setting forth the 
reasons for such action. If the vessel or aircraft upon which the alien 
crewman arrived in the United States is still in the United States, the 
alien crewman shall be delivered to that vessel or aircraft and Form I-
259 shall be served upon the master or commanding officer of the vessel 
or aircraft directing that the alien crewman be detained on board the 
vessel or aircraft and deported from the United States. A copy of Form 
I-259 shall also be served on the agent for the vessel or aircraft. If 
the vessel or aircraft upon which the alien crewman arrived in the 
United States has departed from the United States, the agent or owner of 
the vessel or aircraft shall be directed by means of a notice on Form I-
259 to effect the deportation of the alien crewman from the United 
States. Pending deportation, the alien crewman shall be continued in 
custody, unless the district director authorizes his release on parole 
under such conditions, including the posting of a suitable bond, as the 
district director may prescribe.

[32 FR 4342, Mar. 22, 1967]



PART 258_LIMITATIONS ON PERFORMANCE OF LONGSHORE WORK BY ALIEN CREWMEN--Table 

of Contents




Sec.
258.1 Limitations--General.
258.2 Exceptions.
258.3 Action upon arrival.

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

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



Sec. 258.1  Limitations--General.

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



Sec. 258.2  Exceptions.

    Any master or agent who uses nonimmigrant crewmen to perform 
longshore work at any United States port under the exceptions provided 
for in paragraphs (a)(2), (b), or (c) of this section must so indicate 
on the crew manifest and shall note under which exception the work will 
be performed.

[[Page 698]]

    (a) Hazardous cargo. (1) The term longshore work does not include 
the loading and unloading of any cargo for which the Secretary of 
Transportation has prescribed regulations under authority contained in 
chapter 37 of title 46, United States Code, section 311 of the Federal 
Water Pollution Control Act, section 4106 of the Oil Pollution Act of 
1990, or section 105 or 106 of the Hazardous Materials Transportation 
Act.
    (2) In order to invoke the hazardous cargo exception for safety and 
environmental protection, the master or agent shall note on the manifest 
that the vessel is a qualifying tanker or carries hazardous dry bulk 
cargo.
    (i) All tankers qualify for the hazardous cargo exception, including 
parcel tankers, except for a tanker that has been gas-freed to transport 
non-hazardous dry bulk commodities.
    (ii) In order for a vessel to qualify for the hazardous cargo 
exception as a dry bulk hazardous cargo carrier, the master or agent 
must show the immigration officer the dangerous cargo manifest that is 
required by Coast Guard regulation 46 CFR 148.02-3(a) to be kept near 
the bridge house.
    (b) Prevailing practice exception. (1) Nonimmigrant crewmen may 
perform longshore work under this exception if:
    (i) There is in effect in the local port one or more collective 
bargaining agreements, each covering at least 30 percent of the persons 
performing longshore work at the port, and each of which permits the 
longshore activity to be performed by the nonimmigrant crewman, or
    (ii) There is no collective bargaining agreement in effect in the 
local port covering at least 30 percent of the persons performing 
longshore work at the port, and the employer of the crewmen has filed an 
attestation with the Secretary of Labor that the Secretary of Labor has 
accepted.
    (2) Documentation to be presented under the prevailing practice 
exception. (i) If the master or agent states on the manifest, Form I-
418, that nonimmigrant crewmen will perform longshore work at a port 
under the prevailing practice exception as permitted by all collective 
bargaining agreements covering 30 percent or more of the persons 
performing longshore work at the port, then the master or agent must 
present to the examining immigration officer an affidavit from the local 
stevedore. The stevedore or a union representative of the employees' 
association must state on the affidavit that all bargaining agreements 
covering 30 percent or more of the longshore workers at the port allow 
nonimmigrant crewmen either to perform all longshore work or to perform 
those specified longshore activities that crewmen on the vessel intend 
to perform.
    (ii) Where there is no collective bargaining agreement in effect at 
a port covering at least 30 percent of the persons who do longshore 
work, and the master or agent states on the manifest that nonimmigrant 
crewmen will perform such work under the prevailing practice exception, 
then the master or agent shall present a copy of the notification 
received from the Secretary of Labor that the attestation required for 
this exception has been accepted.
    (iii) When an unanticipated emergency occurs, the master or agent of 
a vessel may file an attestation with the Secretary of Labor up to the 
date on which crewmen perform longshore work.
    (A) If, because of an unanticipated emergency, crewmen on a vessel 
perform longshore work under the prevailing practice exception at a 
port, a revised manifest shall be submitted together with complete 
documentation, as specified in paragraph (b)(2)(ii) of this section, 
within 14 days of the longshore work having been done. Failure to 
present the required documentation may result in a fine under section 
251 of the Act.
    (B) All documents submitted after inspection shall be sent to the 
Immigration and Naturalization Service seaport office that inspected the 
vessel.
    (iv) Attestations are valid for one year from the date of filing and 
cover nonimmigrant crewmen landing during that period if the master or 
agent states on the manifest that the vessel's crew continue to comply 
with the conditions in the attestation. When the vessel's master or 
agent intends to use a previously accepted attestation that is still 
valid, the master or agent shall

[[Page 699]]

submit a copy of the notification from the Secretary of Labor that the 
attestation was accepted and shall note on the manifest that the vessel 
continues to comply with the conditions of the attestation.
    (3) Use of automated self-unloading conveyor belt or vacuum-actuated 
system on a vessel. An automated self-unloading conveyor belt or a 
vacuum-actuated system may be operated by a nonimmigrant crewman under 
the prevailing practice exception when no collective bargaining 
agreement at the local port prevents it. The master or agent is not 
required to file an attestation for nonimmigrant crewmen to perform such 
activity in such a circumstance unless the Secretary of Labor has 
determined that such activity is not the prevailing practice at that 
port, and has publicized this finding. When invoking this exception, the 
master or agent of the vessel shall annotate the manifest that the 
longshore work consists of operating a self-unloading conveyor belt or a 
vacuum-actuated system on the vessel under the prevailing practice 
exception.
    (4) Sanctions upon notification by the Secretary of Labor. If the 
Immigration and Naturalization Service is notified by the Secretary of 
Labor that an entity has either misrepresented facts in its attestation 
or has failed to meet a condition attested to, then the Immigration and 
Naturalization Service will take the necessary steps to prevent the 
landing of vessels owned or chartered by the offending entity in 
accordance with section 258(c)(E)(i) of the Act. The Service may also 
impose a sanction as provided in that section, including the prohibition 
of any vessel owned or chartered by the violating entity from landing at 
any United States port for up to one year.
    (5) The three variations of the prevailing practice exception--
collective bargaining agreement, attestation process, and automated 
equipment--are port specific. If a vessel is to use nonimmigrant crewmen 
to perform longshore work under the prevailing practice exception, the 
appropriate documentation required under paragraph (b)(2) of this 
section must be presented for each port at which the longshore work will 
be performed.
    (c) Reciprocity exception. Nonimmigrant crewmen may perform 
longshore work in a United States port under this exception if:
    (1) The vessel on which the crewmen serve is registered in a country 
that does not prohibit crewmen aboard United States vessels from 
performing longshore work, or a specified longshore activity, when 
United States vessels land in that country, as determined by the 
Secretary of State; and
    (2) The master or agent presents an affidavit from the crewmen's 
employer or the vessel's owner that a majority of the ownership interest 
in the vessel is held by nationals of a country or countries that do not 
prohibit such longshore activity by crewmen aboard United States vessels 
when they land in those countries.
    (d) Vessels that qualify for multiple exceptions. A vessel that 
qualifies for more than one exception under this section may invoke the 
exception that the master or agent chooses.
    (e) Lack of documentation required by an exception. If a vessel 
invokes an exception to the prohibition against nonimmigrant crewmen 
performing longshore work, but lacks any documentation required to 
accompany the manifest when invoking the exception, then the vessel's 
crewmen shall not perform longshore work. If the longshore work is 
performed despite the lack of documentation that the immigration officer 
has noted on the Form I-410, then the vessel is subject to fine under 
section 251(d) of the Act.



Sec. 258.3  Action upon arrival.

    (a) The master or agent of the vessel shall state on the manifest at 
the first port of entry:
    (1) Whether or not nonimmigrant crewmen aboard the vessel will 
perform longshore work at any port before departing the United States; 
and
    (2) If nonimmigrant crewmen will perform longshore work, which 
exception in section 258 of the Act permits them to do so.
    (b) If nonimmigrant crewmen will perform longshore work, the master 
or agent of the vessel shall present with the manifest any documentation 
required by 8 CFR 258.2 for the exception invoked.

[[Page 700]]

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



PART 264_REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED STATES--Table 

of Contents




Sec.
264.1 Registration and fingerprinting.
264.2 Application for creation of record of permanent residence.
264.4 [Reserved]
264.5 Application for a replacement Permanent Resident Card.
264.6 Application for an initial or replacement Form I-94, Nonimmigrant 
          Arrival-Departure Document, or Form I-95, Crewmen's Landing 
          Permit.

    Authority: 8 U.S.C. 1103, 1201, 1303-1305; 8 CFR part 2.



Sec. 264.1  Registration and fingerprinting.

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

                           Form No. and Class

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

[[Page 701]]

the Immigration and Nationality Act, as amended.
I-817, Application for Voluntary Departure under the Family Unity 
Program.

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

                           Form No. and Class

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

    (c) Replacement of registration. Any alien whose evidence of 
registration has been lost, mutilated, or destroyed, shall immediately 
apply for new evidence of registration.
    (1) Temporary residents. Application by an alien lawfully admitted 
for temporary residence for Form I-688, Temporary Resident Card, shall 
be made on Form I-695. (i) Who can file. An I-695 application may be 
filed by a lawful temporary resident:
    (A) To replace a lost, stolen, or detroyed card;
    (B) To replace a mutilated card;
    (C) To change a name or other biographic data.
    (ii) Fee. An I-695 application must be submitted with the fee 
required by Sec. 103.7(b)(1) of this chapter.
    (iii) Accompanying documents--(A) Photographs. An I-695 application 
must be filed with two color photographs meeting the specifications on 
the application form.
    (B) Prior evidence of alien registration. Any Form I-688 in the 
applicant's possession must be submitted with the application.
    (C) Evidence of name or other biographic change. An I-695 
application filed under paragraph (c)(2)(i)(C) of this section must be 
filed with the order, issued by a court of competent jurisdiction, 
changing the applicant's name, or with the applicant's marriage 
certificate. An application to change other biographic data on a card 
must be filed with documentary evidence conclusively establishing the 
new data.
    (iv) Filing--(A) Where to file. An application by an alien within 
the United States for replacement of evidence of registration shall be 
submitted to the legalization or Service office having jurisdiction over 
the applicant's place of residence in the United States. An alien 
outside the United States shall appear at an American Consulate or 
Service office abroad and present a full account of the circumstances 
involving the loss or destruction of Form I-688. A cable shall be sent 
to the Service's Central Office Records Management Branch for 
verification of status. Subsequent to verification that temporary 
residence was granted, a transportation letter will be issued to the 
temporary resident alien. Upon entry to the United States, the alien 
shall submit the I-695 to the legalization or Service office having 
jurisdiction over the applicant's place of residence in the United 
States.
    (B) Camera ready card. Prior to the issuance of Form I-688, all 
applicants, regardless of age, shall appear at the appropriate 
legalization or Service office for placement of fingerprint and 
signature on I-688.
    (v) Processing--(A) Interview. An alien who files application Form 
I-695 may be required to appear in person before an immigration officer 
prior to the adjudication of the application and be interviewed under 
oath concerning his

[[Page 702]]

or her eligibility for issuance of I-688 as evidence of his or her 
registration.
    (B) Waiver of requirements. The Service may waive the photograph, 
interview or the placement of fingerprint and signature on the I-688 for 
a child under 14 or when it is impractical because of the health or 
advanced age of the applicant.
    (C) Fingerprint chart. An applicant may be required to present a 
completed fingerprint chart, FD-258.
    (vi) Decision. The decision on an application for replacement of 
evidence of registration shall be made by the Regional Processing 
Facility director having jurisdiction over the alien's place of 
residence in the United States. No appeal shall lie from the decision of 
the Regional Processing Facility director denying the application.
    (2) [Reserved]
    (d) Surrender of registration. If an alien is naturalized, dies, 
permanently departs, or is deported from the United States, or evidence 
of registration is found by a person other than the one to whom such 
evidence was issued, the person in possession of the document shall 
forward it to a Service office.
    (e) Fingerprinting waiver. (1) Fingerprinting is waived for 
nonimmigrant aliens admitted as foreign government officials and 
employees; international organization representatives, officers and 
employees; NATO representatives, officers and employees, and holders of 
diplomatic visas while they maintain such nonimmigrant status. 
Fingerprinting is also waived for other nonimmigrant aliens, while they 
maintain nonimmigrant status, who are nationals of countries which do 
not require fingerprinting of United States citizens temporarily 
residing therein.
    (2) Fingerprinting is waived for every nonimmigrant alien not 
included in paragraph (e)(1) of this section who departs from the United 
States within one year of his admission, provided he maintains his 
nonimmigrant status during that time; each such alien not previously 
fingerprinted shall apply therefor at once if he remains in the United 
States in excess of one year.
    (3) Every nonimmigrant alien not previously fingerprinted shall 
apply therefor at once upon his failure to maintain his nonimmigrant 
status.
    (f) Registration, fingerprinting, and photographing of certain 
nonimmigrant aliens. (1) Registration requirement for certain 
nonimmigrants. Notwithstanding the provisions in paragraph (e) of this 
section, nonimmigrant aliens identified in paragraph (f)(2) of this 
section are subject to special registration, fingerprinting, and 
photographing requirements upon arrival in the United States. This 
requirement shall not apply to those nonimmigrant aliens applying for 
admission to the United States under sections 101(a)(15)(A) (8 U.S.C. 
1101(a)(15)(A)) or 101(a)(15)(G) (8 U.S.C. 1101(a)(15)(G)) of the Act. 
In addition, this requirement shall not apply to those classes of 
nonimmigrant aliens to whom the Secretary of Homeland Security and the 
Secretary of State jointly determine it shall not apply, or to any 
individual nonimmigrant alien to whom the Secretary of Homeland Security 
or the Secretary of State determines it shall not apply. Completion of 
special registration pursuant to this paragraph (f) is a condition of 
admission under section 214 of the Act (8 U.S.C. 1184) if the inspecting 
officer determines that the alien is subject to registration under this 
paragraph (f) (hereinafter ``nonimmigrant alien subject to special 
registration'').
    (2) Identification of aliens subject to registration at ports-of-
entry. Nonimmigrant aliens in the following categories are subject to 
the requirements of paragraph (f)(3) of this section:
    (i) Nonimmigrant aliens who are nationals or citizens of a country 
or territory designated by the Secretary of Homeland Security, in 
consultation with the Secretary of State, by a notice in the Federal 
Register;
    (ii) Nonimmigrant aliens whom a consular officer or an inspecting 
officer has reason to believe are nationals or citizens of a country or 
territory designated by the Secretary of Homeland Security, in 
consultation with the Secretary of State, by a notice in the Federal 
Register; or
    (iii) Nonimmigrant aliens who meet pre-existing criteria, or whom a 
consular officer or the inspecting officer has reason to believe meet 
pre-existing

[[Page 703]]

criteria, determined by the Secretary of Homeland Security or the 
Secretary of State to indicate that such aliens' presence in the United 
States warrants monitoring in the national security interests, as 
defined in section 219 of the Act (8 U.S.C. 1189), or law enforcement 
interests of the United States.
    (3) Obligations regarding registration. (i) Any nonimmigrant alien 
who is included in paragraph (f)(2) of this section, and who applies for 
admission to the United States, shall be specially registered by 
providing information required by the Department of Homeland Security, 
shall be fingerprinted, and shall be photographed, by Department of 
Homeland Security, at the port-of-entry at such time the nonimmigrant 
alien applies for admission to the United States. The Department of 
Homeland Security shall advise the nonimmigrant alien subject to special 
registration that the nonimmigrant alien may, upon ten days notice, and 
at the Department of Homeland Security's discretion, be required to 
appear at a U.S. Immigration and Customs Enforcement office in person to 
verify information by providing additional information or documentation 
confirming compliance with the conditions of his or her visa status and 
admission. The Department of Homeland Security will determine on a case-
by-case basis which aliens must appear in person to verify information. 
The nonimmigrant alien subject to special registration must appear at 
the designated office location, and on the specified date and time, 
unless otherwise specified in the notice.
    (ii) At the time of verification of information for registration 
pursuant to paragraph (f)(3)(i) of this section, the nonimmigrant alien 
subject to special registration shall provide the Department of Homeland 
Security with proof of compliance with the conditions of his or her 
nonimmigrant visa status and admission, including, but not limited to, 
proof of residence, employment, or registration and matriculation at an 
approved school or educational institution. The nonimmigrant alien 
subject to special registration shall provide any additional information 
required by the Department of Homeland Security.
    (4) Registration of aliens present in the United States. (i) The 
Secretary of Homeland Security, by publication of a notice in the 
Federal Register, also may impose such special registration, 
fingerprinting, and photographing requirements upon nonimmigrant aliens 
who are nationals, citizens, or residents of specified countries or 
territories (or a designated subset of such nationals, citizens, or 
residents) who have already been admitted to the United States or who 
are otherwise in the United States. A notice under this paragraph (f)(4) 
shall explain the procedures for appearing in person and providing the 
information required by the Department of Homeland Security, providing 
fingerprints, photographs, or submitting supplemental information or 
documentation.
    (ii) Any nonimmigrant alien who is currently subject to special 
registration as a result of the publication of any previous Federal 
Register notice may, while he or she remains in the United States, upon 
10 days notice and at the Department of Homeland Security's discretion, 
be required to appear at a Department of Homeland Security Office in 
person to provide additional information or documentation confirming 
compliance with his or her visa and admission. The Department of 
Homeland Security will determine on a case-by-case basis which aliens 
must appear in person to verify information. The nonimmigrant alien 
subject to special registration must appear at the designated office 
location, and on the specified date and time, unless otherwise specified 
in the notice.
    (5) Obligation to provide updated information. In addition to any 
additional re-registrations that may be required pursuant to paragraphs 
(f)(3) and (f)(4) of this section, any nonimmigrant alien subject to 
special registration under this paragraph (f) who remains in the United 
States for 30 days or more shall notify the Department of Homeland 
Security by mail or other such means as determined by the Secretary of 
Homeland Security, using a notification form designated by the 
Department of Homeland Security, of any change of address, change of 
residence, change of employment, or change of educational institution 
within 10 days

[[Page 704]]

of such change. Notice to the Department of Homeland Security of a 
change of address, change of residence or change of educational 
institution made within 10 days of such a change through the Student and 
Exchange Visitor Information System (SEVIS) shall constitute notice 
under this paragraph.
    (6) [Reserved]
    (7) Relief from registration requirements. A nonimmigrant alien 
subject to special registration may apply for relief from the 
registration requirements as follows:
    (i) Relief from departure controls set out in 264.1(f) (8). An alien 
who has been registered under the provisions of this section (f) and has 
not yet departed the United States may seek relief from the departure 
control requirement contained in paragraph (f)(8) for that admission by 
applying to the U.S. Customs and Border Protection field office director 
for the port from which the alien intends to depart. In making an 
application for relief, the alien must establish that exigent or unusual 
circumstances exist and that the alien warrants a favorable exercise of 
discretion.
    (ii) Frequent travelers. An alien who previously has been registered 
and who would otherwise be subject to registration at a port of entry 
under the provisions of paragraphs (f)(2) and (3) of this section may 
seek relief from the registration requirements from the Secretary of 
Homeland Security after his initial registration if the alien makes 
frequent trips to the United States. An alien seeking relief under this 
paragraph from the Secretary of Homeland Security may apply to the U.S. 
Customs and Border Protection field office director for the port to 
which the alien most frequently arrives in the United States. The field 
office director or his designee will make the determination that the 
frequency of arrival warrants relief from the registration requirements 
on a case-by-case basis, and will consider in this analysis the mode of 
travel, business and economic concerns, purpose of travel, or other 
factors as determined by the director. In making an application for 
relief, the alien must establish that good cause or exigent or unusual 
circumstances exist and that the alien warrants a favorable exercise of 
discretion.
    (iii) Exemption from registration. At a Department of State consular 
office abroad, an alien may seek exemption from these regulations from 
the Department of State by such methods as it may prescribe.
    (iv) For all applications for relief. Any decision of a Department 
of Homeland Security officer or official to grant or deny relief under 
this paragraph (f)(7) is final and not appealable. Absent receipt of a 
decision exempting or relieving the nonimmigrant alien from these 
requirements, he or she shall comply with the special registration 
requirements contained in this section.
    (v) Termination of relief. Relief granted under paragraphs (f)(7)(i) 
or (ii) of this section may be terminated by notice to the alien by any 
field office director or other Department of Homeland Security officer 
or official authorized to grant such relief.
    (8) Departure requirements. (i) General requirements When a 
nonimmigrant alien subject to special registration departs from the 
United States (other than nonimmigrant crewmen as defined under section 
101(a)(15)(D) of the Act) he or she shall report to an inspecting 
officer of the Department of Homeland Security at any'port-of entry 
unless the Department of Homeland Security has, by publication of a 
notice in the Federal Register, specified that nonimmigrant aliens 
subject to special registration may not depart from specific ports. This 
paragraph (f)(8) applies only to those nonimmigrant aliens who have been 
registered under paragraph (f)(3) of this section, or who have been 
required to register pursuant to paragraph (f)(4) of this section, and 
who have not been granted relief from the departure requirements under 
paragraph (f)(7).
    (ii) Presumption of inadmissibility. Any nonimmigrant alien subject 
to special registration who fails, without good cause, to be examined by 
an inspecting officer at the time of his or her departure and to have 
his or her departure recorded by the inspecting officer shall thereafter 
be presumed to be inadmissible under, but not limited to, section 
212(a)(3)(A)(ii) of the Act (8 U.S.C. 1182(a)(3)(A)(ii)), as an alien 
whom the

[[Page 705]]

Secretary of Homeland Security has reasonable grounds to believe, based 
on the alien's past failure to conform with the requirements for special 
registration, seeks to enter the United States to engage in unlawful 
activity.
    (iii) Overcoming inadmissibility. An alien may overcome the 
presumption of inadmissibility set out in paragraph (f)(8)(ii) by making 
a showing that he or she satisfies conditions set by the Secretary of 
Homeland Security and the Secretary of State. If a consular officer, in 
adjudicating a new visa application by an alien that previously failed 
to register his or her departure from the United States, finds good 
cause existed for the alien's failure to register departure or that the 
alien is not inadmissible under section 212(a)(3)(A)(ii) of the Act, the 
inspecting officer at the port-of-entry, while not bound by the consular 
officer's decision, will consider this finding as a significantly 
favorable factor in determining whether the alien is admissible.
    (9) Completion of registration. Registration under this paragraph 
(f) is not deemed to be complete unless all of the information required 
by the Department of Homeland Security and all requested documents are 
provided in a timely manner. Any additional re-registration that may be 
required and each change of material fact is a registration that is 
required under sections 262 and 263 of the Act (8 U.S.C. 1302, 1303). 
Each change of address required under this paragraph (f) is a change of 
address required under section 265 of the Act (8 U.S.C. 1305).
    (g) Registration and fingerprinting of children who reach age 14. 
Within 30 days after reaching the age of 14, any alien in the United 
States not exempt from alien registration under the act and this chapter 
shall present himself to a Service office for registration in accordance 
with section 262(b) of the Act, and for fingerprinting unless 
fingerprinting is waived pursuant to paragraph (e) of this section. He 
shall submit Form I-90 if he is a lawful permanent resident. If such 
alien is a lawful permanent resident of the United States and is 
temporarily absent from the United States when he reaches the age of 14, 
he shall comply with the foregoing within 30 days of his return to the 
United States. The alien, if a lawful permanent resident of the United 
States, shall surrender his prior evidence of alien registration and 
shall be issued Form I-551 bearing a photograph submitted by him in 
accordance with the instructions on Form I-90. In the case of an alien 
who is not a lawful permanent resident, the alien's Form I-94 or I-95 
shall be noted to show that he has been registered and the date of 
registration.
    (h) Temporary evidence of registration. Form I-94, appropriately 
endorsed, may be issued as temporary evidence of registration and lawful 
admission for permanent residence to a lawful permanent resident alien 
who is departing temporarily from the United States and has applied on 
Form I-90 for issuance of Form I-551, if the district director is unable 
to issue and deliver the Form I-551 prior to the alien's contemplated 
return to the United States. The alien shall surrender such Form I-94 to 
the Service upon receipt of Form I-551.
    (i) Copy of Form I-94. An attorney or representative as defined in 
Sec. 1.1 of this chapter who is representing an alien before the 
Service or the Board may make and retain, solely for information 
purposes, a copy of the Form I-94 (Arrival-Departure Record) issued to 
and in the possession of the alien. Such copy shall not be used for any 
other purpose.

[25 FR 10495, Nov. 2, 1960]

    Editorial Note: For Federal Register citations affecting Sec. 
264.1, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



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

    (a) Jurisdiction. An applicant who believes that he/she is eligible 
for presumption of lawful admission for permanent residence under Sec. 
101.1 or Sec. 101.2 of this chapter or for lawful permanent residence 
as a person born in the United States to a foreign diplomatic officer 
under Sec. 101.3 of this chapter shall submit his/her application for 
creation of a record of lawful permanent residence to the Service office 
having jurisdiction over the applicant's place of residence in the 
United States.

[[Page 706]]

The applicant must be physically present in the United States at the 
time of submission of his/her application.
    (b) Applicant under eighteen years old. If the applicant is under 
eighteen years old, the applicant's parent or legal guardian shall 
prepare and sign the application in the applicant's behalf.
    (c) Filing application--(1) Presumption of lawful admission for 
permanent residence. An applicant who believes that he/she is eligible 
for presumption of lawful admission for permanent residence under Sec. 
101.1 or Sec. 101.2 of this chapter shall submit the following:
    (i) A completed Form I-485, with the fee required in 8 CFR 
103.7(b)(1) and any initial evidence required on the application form 
and in this section.
    (ii) Form G-325A, Biographic Information.
    (iii) [Reserved]
    (iv) A list of all the applicant's arrivals in and departures from 
the United States.
    (v) A statement signed by the applicant indicating the basis of the 
applicant's claim to presumption of lawful admission for permanent 
residence.
    (vi) Documentary evidence substantiating the applicant's claim to 
presumption of lawful admission for permanent residence, including proof 
of continuous residence in the United States.
    (vii) Two photographs prepared in accordance with the specifications 
outlined in the instructions on the application form. The immigration 
officer to whom the application is submitted, however, may waive the 
photographs for just cause.
    (2) Lawful permanent residence as a person born in the United States 
under diplomatic status. An applicant who believes that he/she is 
eligible for lawful permanent residence as a person born in the United 
States to a foreign diplomatic officer under Sec. 101.3 of this chapter 
shall submit the following:
    (i) A completed Form I-485, with the fee required in 8 CFR 
103.7(b)(1) and any initial evidence required in this application form 
and in this section.
    (ii) Form G-325A, Biographic Information.
    (iii) [Reserved]
    (iv) The applicant's birth certificate.
    (v) An executed Form I-508, Waiver of Rights, Privileges, 
Exemptions, and Immunities.
    (vi) Official confirmation of the diplomatic classification and 
occupational title of the applicant's parent(s) at the time of the 
applicant's birth.
    (vii) A list of all the applicant's arrivals in and departures from 
the United States.
    (viii) Proof of continuous residence in the United States.
    (ix) Two photographs prepared in accordance with the specifications 
outlined in the instructions on the application form. The immigration 
officer to whom the application is submitted, however, may waive the 
photographs for just cause.
    (3) Applicant under fourteen years old. An applicant under fourteen 
years old shall not submit Form G-325A, Biographic Information.
    (d) Fingerprinting. After filing an application, each applicant 14 
years of age or older shall be fingerprinted on Form FD-258, Applicant 
Card, as prescribed in Sec. 103.2(e) of this chapter.
    (e) Personal appearance. Each applicant, including an applicant 
under eighteen years of age, must submit his/her application in person. 
This requirement may be waived at the discretion of the immigration 
officer to whom the application is submitted because of confinement of 
age, physical infirmity, illiteracy, or other compelling reason.
    (f) Interview. The applicant may be required to appear in person 
before an immigration officer prior to adjudication of the application 
to be interviewed under oath concerning his/her eligibility for creation 
of a record of lawful permanent residence.
    (g) Decision. The decision regarding creation of a record of lawful 
permanent residence for an alien eligible for presumption of lawful 
admission for permanent residence or for a person born in the United 
States to a foreign diplomatic officer will be made by the district 
director having jurisdiction over the applicant's place of residence.
    (h) Date of record of lawful permanent residence--(1) Presumption of 
lawful admission for permanent residence. If the application is granted, 
the applicant's permanent residence will be recorded as of the date of 
the applicant's arrival

[[Page 707]]

in the United States under the conditions which caused him/her to be 
eligible for presumption of lawful admission for permanent residence.
    (2) Lawful permanent residence as a person born in the United States 
under diplomatic status. If the application is granted, the applicant's 
permanent residence will be recorded as of his/her date of birth.
    (i) Denied application. If the application is denied, the decision 
may not be appealed.

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

[47 FR 941, Jan. 8, 1982, as amended at 58 FR 48779, Sept. 20, 1993; 63 
FR 12987, Mar. 17, 1998]



Sec. 264.4  [Reserved]



Sec. 264.5  Application for a replacement Permanent Resident Card.

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

[[Page 708]]

with the Service office that has jurisdiction over his or her place of 
residence, except for those applicants filing an I-90 pursuant to 
paragraph (b)(6) of this section, who shall file the application with 
the Director of the Service Center having jurisdiction over his or her 
place of residence. If the applicant's place of residence is outside the 
United States and there is no Service office in that foreign country, 
the application shall be filed by the applicant, in person, at the 
American Consulate with jurisdiction over his or her place of residence.
    (ii) Data collection form. An applicant must execute the signature 
and fingerprint blocks of Form I-89, Data Collection Form, at a Service 
office when filing an I-90 application.
    (3) Miscellaneous--(i) Fingerprinting. After filing an I-90 
application, each applicant filing under paragraph (b)(8) of this 
section shall be fingerprinted on Form FD-258, Applicant Card, as 
prescribed in Sec. 103.2(e) of this chapter.
    (ii) Interview. An applicant may be required to appear before an 
immigration officer or consular officer and be interviewed under oath 
concerning eligibility.
    (iii) Waiver of requirements. The Service may waive the photograph, 
in person filing, fingerprinting, and I-89 execution requirements of 
this section in cases of confinement due to advanced age or physical 
infirmity.
    (f) Decision. If an application is denied, the applicant shall be 
notified of the reasons for denial. No appeal shall lie from this 
decision.
    (g) Eligibility for a card while in deportation or exclusion 
proceedings. A person in exclusion proceedings shall be entitled to 
evidence of permanent resident status until ordered excluded. Such 
evidence shall be in the form of a temporary Form I-551 issued for a 
period sufficient to accomplish the exclusion proceedings. A person in 
deportation proceedings shall be entitled to evidence of permanent 
resident status until ordered deported or excluded. Issuance of an 
Permanent Resident Card to a person in exclusion or deportation 
proceedings, provided the person had status as a lawful permanent 
resident when the proceeding commenced, shall not affect those 
proceedings.

[58 FR 48779, Sept. 20, 1993, as amended at 59 FR 1466, Jan. 11, 1994; 
59 FR 33905, July 1, 1994; 63 FR 12987, Mar. 17, 1998; 63 FR 70316, Dec. 
21, 1998; 65 FR 57724, Sept. 26, 2000]



Sec. 264.6  Application for an initial or replacement Form I-94, Nonimmigrant 

Arrival-Departure Document, or Form I-95, Crewmen's Landing Permit.

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

[59 FR 1466, Jan. 11, 1994]



PART 265_NOTICES OF ADDRESS--Table of Contents




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



Sec. 265.1  Forms.

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

[[Page 709]]

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

[47 FR 44239, Oct. 7, 1982]



PART 270_PENALTIES FOR DOCUMENT FRAUD--Table of Contents




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

    Authority: 8 U.S.C. 1101, 1103, and 1324c; Pub. L. 101-410, 104 
Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.

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



Sec. 270.1  Definitions.

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



Sec. 270.2  Enforcement procedures.

    (a) Procedures for the filing of complaints. Any person or entity 
having knowledge of a violation or potential violation of section 274C 
of the Act may submit a signed, written complaint to the Service office 
having jurisdiction over the business or residence of the potential 
violator or the location where the violation occurred. The signed, 
written complaint must contain sufficient information to identify both 
the complainant and the alleged violator, including their names and 
addresses. The complaint should also contain detailed factual 
allegations relating to the potential violation including the date, time 
and place of the alleged violation and the specific act or conduct 
alleged to constitute a violation of the Act. Written complaints may be 
delivered either by mail to the appropriate Service office or by 
personally appearing before any immigration officer at a Service office.
    (b) Investigation. When the Service receives complaints from a third 
party in accordance with paragraph (a) of this section, it shall 
investigate only those complaints which, on their face, have a 
substantial probability of validity. The Service may also conduct 
investigations for violations on its own initiative, and without having 
received a written complaint. If it is determined after investigation 
that the person or entity has violated section 274C of the Act, the 
Service may issue and serve upon the alleged violator a Notice of Intent 
to Fine.
    (c) Issuance of a subpoena. Service officers shall have reasonable 
access to examine any relevant evidence of any person or entity being 
investigated. The Service may issue subpoenas pursuant to its authority 
under sections 235(a) and 287 of the Act, in accordance with the 
procedures set forth in Sec. 287.4 of this chapter.
    (d) Notice of Intent to Fine. The proceeding to assess 
administrative penalties under section 274C of the Act is commenced when 
the Service issues a Notice of Intent to Fine. Service of this notice 
shall be accomplished by personal service pursuant to Sec. 103.5a(a)(2) 
of this chapter. Service is effective upon receipt, as evidenced by the 
certificate of service or the certified mail return receipt. The person 
or entity identified in the Notice of Intent to Fine shall be known as 
the respondent. The Notice of Intent to Fine may be issued by an officer 
defined in Sec. 242.1 of this chapter or by an INS port director 
designated by his or her district director.
    (e) Contents of the Notice of Intent to Fine. (1) The Notice of 
Intent to Fine shall contain the basis for the charge(s) against the 
respondent, the statutory provisions alleged to have been violated, and 
the monetary amount of the penalty the Service intends to impose.
    (2) The Notice of Intent to Fine shall provide the following 
advisals to the respondent:
    (i) That the person or entity has the right to representation by 
counsel of

[[Page 710]]

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

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

[[Page 711]]



Sec. 270.3  Penalties.

    (a) Criminal penalties. Nothing in section 274C of the Act shall be 
construed to diminish or qualify any of the penalties available for 
activities prohibited by this section but proscribed as well in title 
18, United States Code.
    (b) Civil penalties. A person or entity may face civil penalties for 
a violation of section 274C of the Act. Civil penalties may be imposed 
by the Service or by an administrative law judge for violations under 
section 274C of the Act. The Service may charge multiple violations of 
section 274C of the Act in a single Notice of Intent to Fine, and may 
impose separate penalties for each such unlawful act in a single 
proceeding or determination. However, in determining whether an offense 
is a first offense or a subsequent offense, a finding of more than one 
violation in the course of a single proceeding or determination will be 
counted as a single offense.
    (1) A respondent found by the Service or an administrative law judge 
to have violated section 274C of the Act shall be subject to an order:
    (i) To cease and desist from such behavior; and
    (ii) To pay a civil penalty as follows:
    (A) First offense under section 274C(a)(1) through (a)(4). Not less 
than $275 and not exceeding $2,200 for each fraudulent document or each 
proscribed activity described in section 274C(a)(1) through (a)(4) of 
the Act before March 27, 2008, and not less than $375 and not exceeding 
$3,200 for each fraudulent document or each proscribed activity on or 
after March 27, 2008.
    (B) First offense under section 274C(a)(5) or (a)(6). Not less than 
$250 and not exceeding $2,000 for each fraudulent document or each 
proscribed activity described in section 274C(a)(5) or (a)(6) of the Act 
before March 27, 2008, and not less than $275 and not exceeding $2,200, 
for each fraudulent document or each proscribed activity on or after 
March 27, 2008.
    (C) Subsequent offenses under section 274C(a)(1) through (a)(4). Not 
less than $2,200 and not more than $5,500 for each fraudulent document 
or each proscribed activity described in section 274C(a)(1) through 
(a)(4) of the Act before March 27, 2008, and not less than $3,200 and 
not exceeding $6,500, for each fraudulent document or each proscribed 
activity occurring on or after March 27, 2008.
    (D) Subsequent offenses under section 274C(a)(5) or (a)(6). Not less 
than $2,000 and not more than $5,000 for each fraudulent document or 
each proscribed activity described in section 274C(a)(5) or (a)(6) of 
the Act before March 27, 2008, and not less than $2,200 and not 
exceeding $5,500, for each fraudulent document or each proscribed 
activity occurring on or after March 27, 2008.
    (2) Where an order is issued to a respondent composed of distinct, 
physically separate subdivisions each of which provides separately for 
the hiring, recruiting, or referring for a fee for employment (without 
reference to the practices of, and not under the common control of or 
common control with, another subdivision), each subdivision shall be 
considered a separate person or entity.

[57 FR 33866, July 31, 1992, as amended at 64 FR 47101, Aug. 30, 1999; 
73 FR 10135, Feb. 26, 2008]



PART 271_DILIGENT AND REASONABLE EFFORTS TO PREVENT THE UNAUTHORIZED ENTRY OF 

ALIENS BY THE OWNERS OF RAILROAD LINES, INTERNATIONAL BRIDGES OR TOLL ROADS--

Table of Contents




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



Sec. 271.1  Procedures for inspections.

    (a) Applicability. The following terms and conditions apply to those 
owners or operators of railroad lines, international bridges, or toll 
roads, which provide a means for an alien to come to the United States.
    (b) Inspection of facility. Based upon a written request by the 
owners or operators, the INS district director or his designee shall 
inspect the facility or method utilized in order to ensure that owners 
and operators have acted diligently in taking adequate steps to prevent 
the unlawful entry of aliens into the United States. Such measures may 
include but are not necessarily limited

[[Page 712]]

to fencing, barricades, lighting, or security guards. If the district 
director determines that preventive measures are inadequate, he or she 
shall advise the owners or operators in writing, citing the reasons for 
such determination. If the owners or operators believe the requirements 
of the district director to be excessive or unnecessary, they may 
request that the Regional Commissioner having jurisdiction over the 
location where the facility is located, review the district director's 
requirements. The Regional Commissioner shall advise the owners or 
operators in writing of the results of his or her review.
    (c) Preventive measures and certification. Upon a determination by 
the district director that reasonable and adequate preventive measures 
have been taken by the owners and operators, he or she shall certify 
that the owners and operators shall not be liable for the penalty 
described in section 271(a), so long as the facility or method utilized 
is maintained in the condition in which approved and certified.
    (d) Revocation of certification. The District Director having 
jurisdiction over the location where the facility is located, in his or 
her discretion, may at any time, conduct an inspection of said facility 
to determine if any violation is occurring. If the facility is found to 
be not in compliance, said certification will be revoked.

[53 FR 26036, July 11, 1988]



PART 273_CARRIER RESPONSIBILITIES AT FOREIGN PORTS OF EMBARKATION; REDUCING, 

REFUNDING, OR WAIVING FINES UNDER SECTION 273 OF THE ACT--Table of Contents




Sec.
273.1 General.
273.2 Definition.
273.3 Screening procedures.
273.4 Demonstration by carrier that screening requirements were met.
273.5 General criteria used for reduction, refund, or waiver of fines.
273.6 Memorandum of Understanding.

    Authority: 8 U.S.C. 1103, 1323; 8 CFR part 2.

    Source: 63 FR 23655, Apr. 30, 1998, unless otherwise noted.



Sec. 273.1  General.

    In any fines case in which a fine is imposed under section 273 of 
the Act involving an alien brought to the United States after December 
24, 1994, the carrier may seek a reduction, refund, or waiver of fine, 
as provided for by section 273(e) of the Act, in accordance with this 
part. The provisions of section 273(e) of the Act and of this part do 
not apply to any fine imposed under any provision other than section 273 
(a)(1) and (b) of the Act.



Sec. 273.2  Definition.

    As used in this part, the term Carrier means an individual or 
organization engaged in transporting passengers or goods for hire to the 
United States.



Sec. 273.3  Screening procedures.

    (a) Applicability. The terms and conditions contained in paragraph 
(b) of this section apply to those owners, operators, or agents of 
carriers which transport passengers to the United States.
    (b) Procedures at ports of embarkation. At each port of embarkation 
carriers shall take reasonable steps to prevent the boarding of 
improperly documented aliens destined to the United States by taking the 
following steps:
    (1) Screening of passengers by carrier personnel prior to boarding 
and examination of their travel documents to ensure that:
    (i) The passport or travel document presented is not expired and is 
valid for entry into the United States;
    (ii) The passenger is the rightful holder; and
    (iii) If the passenger requires a visa, the visa is valid for the 
holder and any other accompanying passengers named in the passport.
    (2) Refusing to board any passenger determined to be improperly 
documented. Failure to refuse boarding when advised to do so by a 
Service or Consular Officer may be considered by the Service as a factor 
in its evaluation of applications under Sec. 273.5.
    (3) Implementing additional safeguards such as, but not necessarily 
limited to, the following:

[[Page 713]]

    (i) For instances in which the carrier suspects fraud, assessing the 
adequacy of the documents presented by asking additional, pertinent 
questions or by taking other appropriate steps to corroborate the 
identity of passengers, such as requesting secondary information.
    (ii) Conducting a second check of passenger documents, when 
necessary at high-risk ports of embarkation, at the time of boarding to 
verify that all passengers are properly documented consistent with 
paragraph (b)(1) of this section. This includes a recheck of documents 
at the final foreign port of embarkation for all passengers, including 
those originally boarded at a prior stop or who are being transported to 
the United States under the Transit Without Visa (TWOV) or 
International-to-International (ITI) Programs.
    (iii) Providing a reasonable level of security during the boarding 
process so that passengers are unable to circumvent any carrier document 
checks.



Sec. 273.4  Demonstration by carrier that screening requirements were met.

    (a) To be eligible to apply for reduction, refund, or waiver of a 
fine, the carrier shall provide evidence that it screened all passengers 
on the conveyance for the instant flight or voyage in accordance with 
the procedures listed in Sec. 273.3.
    (b) The Service may, at any time, conduct an inspection of a 
carrier's document screening procedures at ports of embarkation to 
determine compliance with the procedures listed in Sec. 273.3, to the 
extent permitted by the local competent authority responsible for port 
access or security. If necessary, the carrier shall use its good offices 
to obtain this permission from the local authority. If the carrier's 
port of embarkation operation is found not to be in compliance, the 
carrier will be notified by the Service that it will not be eligible for 
refund, reduction, or waiver of fines under section 273(e) of the Act 
unless the carrier can establish that lack of compliance was beyond the 
carrier's control.



Sec. 273.5  General criteria used for reduction, refund, or waiver of fines.

    (a) Upon application by the carrier, the Service shall determine 
whether circumstances exist which would justify a reduction, refund, or 
waiver of fines pursuant to section 273(e) of the Act.
    (b) Applications for reduction, refund, or waiver of fine under 
section 273(e) of the Act shall be made in accordance with the 
procedures outlined in 8 CFR 280.12 and 8 CFR 280.51.
    (c) In determining the amount of the fine reduction, refund, or 
waiver, the Service shall consider:
    (1) The effectiveness of the carrier's screening procedures;
    (2) The carrier's history of fines violations, including fines, 
liquidated damages, and user fee payment records; and,
    (3) The existence of any extenuating circumstances.



Sec. 273.6  Memorandum of Understanding.

    (a) Carriers may apply to enter into a Memorandum of Understanding 
(MOU) with the Service for an automatic reduction, refund, or waiver of 
fines imposed under section 273 of the Act.
    (b) Carriers signatory to an MOU will not be required to apply for 
reduction, refund, or waiver of fines in accordance with the procedures 
outlined in 8 CFR 280.12 and 8 CFR 280.51, but will follow procedures as 
set forth in the MOU.
    (c) Carriers signatory to an MOU will have fines reduced, refunded, 
or waived according to performance standards enumerated in the MOU or as 
determined by the Service.
    (d) Carriers signatory to an MOU are not precluded from seeking 
additional reduction, refund, or waiver of fines in accordance with the 
procedures outlined in 8 CFR 280.12 and 8 CFR 280.51.



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




Sec.
274.1 Seizure and forfeiture authority.
274.2 Delegation of authority.

    Authority: 8 U.S.C. 1103, 1324(b); 18 U.S.C. 983, 19 U.S.C. 66, 
1600, 1618, 1619, 1624; 22 U.S.C. 401; 31 U.S.C. 5321; 49 U.S.C. 80304.

[[Page 714]]


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



Sec. 274.1  Seizure and forfeiture authority.

    Any officer of Customs and Border Protection or Immigration and 
Customs Enforcement may seize and forfeit any property that has been or 
is being used in the commission of a violation of any statutory 
authority involving the unlawful introduction of aliens, contraband or 
proceeds of such introduction, pursuant to, but not limited to, section 
274(a) of the Act (8 U.S.C. 1324(a)). All seizures and forfeitures in 
such cases will be administered in accordance with 19 CFR parts 162 and 
171.

[73 FR 9011, Feb. 19, 2008]



Sec. 274.2  Delegation of authority.

    All powers provided to Fines, Penalties and Forfeitures Officers in 
19 CFR parts 162 and 171 are provided to the Chief, Office of Border 
Patrol or his designees, for purposes of administering seizures and 
forfeitures made by Border Patrol Officers.

[73 FR 9011, Feb. 19, 2008]



PART 274a_CONTROL OF EMPLOYMENT OF ALIENS--Table of Contents




                     Subpart A_Employer Requirements

Sec.
274a.1 Definitions.
274a.2 Verification of employment eligibility.
274a.3 Continuing employment of unauthorized aliens.
274a.4 Good faith defense.
274a.5 Use of labor through contract.
274a.6 State employment agencies.
274a.7 Pre-enactment provisions for employees hired prior to November 7, 
          1986.
274a.8 Prohibition of indemnity bonds.
274a.9 Enforcement procedures.
274a.10 Penalties.
274a.11 [Reserved]

                   Subpart B_Employment Authorization

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

    Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2; Pub. L. 101-
410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.

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



                     Subpart A_Employer Requirements



Sec. 274a.1  Definitions.

    For the purpose of this part--
    (a) The term unauthorized alien means, with respect to employment of 
an alien at a particular time, that the alien is not at that time 
either: (1) Lawfully admitted for permanent residence, or (2) authorized 
to be so employed by this Act or by the Attorney General;
    (b) The term entity means any legal entity, including but not 
limited to, a corporation, partnership, joint venture, governmental 
body, agency, proprietorship, or association;
    (c) The term hire means the actual commencement of employment of an 
employee for wages or other remuneration. For purposes of section 
274A(a)(4) of the Act and Sec. 274a.5 of this part, a hire occurs when 
a person or entity uses a contract, subcontract or exchange entered 
into, renegotiated or extended after November 6, 1986, to obtain the 
labor of an alien in the United States, knowing that the alien is an 
unauthorized alien;
    (d) The term refer for a fee means the act of sending or directing a 
person or transmitting documentation or information to another, directly 
or indirectly, with the intent of obtaining employment in the United 
States for such person, for remuneration whether on a retainer or 
contingency basis; however, this term does not include union hiring 
halls that refer union members or non-union individuals who pay union 
membership dues;
    (e) The term recruit for a fee means the act of soliciting a person, 
directly or indirectly, and referring that person to another with the 
intent of obtaining employment for that person, for remuneration whether 
on a retainer or contingency basis; however, this term does not include 
union hiring halls that refer union members or non-union individuals who 
pay union membership dues;

[[Page 715]]

    (f) The term employee means an individual who provides services or 
labor for an employer for wages or other remuneration but does not mean 
independent contractors as defined in paragraph (j) of this section or 
those engaged in casual domestic employment as stated in paragraph (h) 
of this section;
    (g) The term employer means a person or entity, including an agent 
or anyone acting directly or indirectly in the interest thereof, who 
engages the services or labor of an employee to be performed in the 
United States for wages or other remuneration. In the case of an 
independent contractor or contract labor or services, the term employer 
shall mean the independent contractor or contractor and not the person 
or entity using the contract labor;
    (h) The term employment means any service or labor performed by an 
employee for an employer within the United States, including service or 
labor performed on a vessel or aircraft that has arrived in the United 
States and has been inspected, or otherwise included within the 
provisions of the Anti-Reflagging Act codified at 46 U.S.C. 8704, but 
not including duties performed by nonimmigrant crewmen defined in 
sections 101 (a)(10) and (a)(15)(D) of the Act. However, employment does 
not include casual employment by individuals who provide domestic 
service in a private home that is sporadic, irregular or intermittent;
    (i) The term State employment agency means any State government unit 
designated to cooperate with the United States Employment Service in the 
operation of the public employment service system;
    (j) The term independent contractor includes individuals or entities 
who carry on independent business, contract to do a piece of work 
according to their own means and methods, and are subject to control 
only as to results. Whether an individual or entity is an independent 
contractor, regardless of what the individual or entity calls itself, 
will be determined on a case-by-case basis. Factors to be considered in 
that determination include, but are not limited to, whether the 
individual or entity: supplies the tools or materials; makes services 
available to the general public; works for a number of clients at the 
same time; has an opportunity for profit or loss as a result of labor or 
services provided; invests in the facilities for work; directs the order 
or sequence in which the work is to be done and determines the hours 
during which the work is to be done. The use of labor or services of an 
independent contractor are subject to the restrictions in section 
274A(a)(4) of the Act and Sec. 274a.5 of this part;
    (k) The term pattern or practice means regular, repeated, and 
intentional activities, but does not include isolated, sporadic, or 
accidental acts;
    (l)(1) The term knowing includes having actual or constructive 
knowledge. Constructive knowledge is knowledge that may fairly be 
inferred through notice of certain facts and circumstances that would 
lead a person, through the exercise of reasonable care, to know about a 
certain condition. Examples of situations where the employer may, 
depending on the totality of relevant circumstances, have constructive 
knowledge that an employee is an unauthorized alien include, but are not 
limited to, situations where the employer:
    (i) Fails to complete or improperly completes the Employment 
Eligibility Verification, Form I-9;
    (ii) Acts with reckless and wanton disregard for the legal 
consequences of permitting another individual to introduce an 
unauthorized alien into its work force or to act on its behalf; and
    (iii) Fails to take reasonable steps after receiving information 
indicating that the employee may be an alien who is not employment 
authorized, such as--
    (A) An employee's request that the employer file a labor 
certification or employment-based visa petition on behalf of the 
employee;
    (B) Written notice to the employer from the Social Security 
Administration reporting earnings on a Form W-2 that employees' names 
and corresponding social security account numbers fail to match Social 
Security Administration records; or
    (C) Written notice to the employer from the Department of Homeland 
Security that the immigration status document or employment 
authorization document presented or referenced

[[Page 716]]

by the employee in completing Form I-9 is assigned to another person, or 
that there is no agency record that the document has been assigned to 
any person.
    (2)(i) An employer who receives written notice from the Social 
Security Administration as described in paragraph (l)(1)(iii)(B) of this 
section will be considered by the Department of Homeland Security to 
have taken reasonable steps--and receipt of the written notice will 
therefore not be used as evidence of constructive knowledge--if the 
employer takes the following actions:
    (A) The employer must check its records to determine whether the 
discrepancy results from a typographical, transcription, or similar 
clerical error. If the employer determines that the discrepancy is due 
to such an error, the employer must correct the error and inform the 
Social Security Administration of the correct information (in accordance 
with the written notice's instructions, if any). The employer must also 
verify with the Social Security Administration that the employee's name 
and social security account number, as corrected, match Social Security 
Administration records. The employer should make a record of the manner, 
date, and time of such verification, and then store such record with the 
employee's Form I-9(s) in accordance with 8 CFR 274a.2(b). The employer 
may update the employee's Form I-9 or complete a new Form I-9 (and 
retain the original Form I-9), but the employer should not perform a new 
Form I-9 verification. The employer must complete these steps within 
thirty days of receiving the written notice.
    (B) If the employer determines that the discrepancy is not due to an 
error in its own records, the employer must promptly request that the 
employee confirm that the name and social security account number in the 
employer's records are correct. If the employee states that the 
employer's records are incorrect, the employer must correct, inform, 
verify, and make a record as set forth in paragraph (l)(2)(i)(A) of this 
section. If the employee confirms that its records are correct, the 
employer must promptly request that the employee resolve the discrepancy 
with the Social Security Administration (in accordance with the written 
notice's instructions, if any). The employer must advise the employee of 
the date that the employer received the written notice from the Social 
Security Administration and advise the employee to resolve the 
discrepancy with the Social Security Administration within ninety days 
of the date the employer received the written notice from the Social 
Security Administration.
    (C) If the employer is unable to verify with the Social Security 
Administration within ninety days of receiving the written notice that 
the employee's name and social security account number matches the 
Social Security Administration's records, the employer must again verify 
the employee's employment authorization and identity within an 
additional three days by following the verification procedure specified 
in paragraph (l)(2)(iii) of this section.
    (ii) An employer who receives written notice from the Department of 
Homeland Security as described in paragraph (l)(1)(iii)(C) of this 
section will be considered by the Department of Homeland Security to 
have taken reasonable steps--and receipt of the written notice will 
therefore not be used as evidence of constructive knowledge--if the 
employer takes the following actions:
    (A) The employer must contact the local Department of Homeland 
Security office (in accordance with the written notice's instructions, 
if any) and attempt to resolve the question raised by the Department of 
Homeland Security about the immigration status document or employment 
authorization document. The employer must complete this step within 
thirty days of receiving the written notice.
    (B) If the employer is unable to verify with the Department of 
Homeland Security within ninety days of receiving the written notice 
that the immigration status document or employment authorization 
document is assigned to the employee, the employer must again verify the 
employee's employment authorization and identity within an additional 3 
days by following the verification procedure specified in paragraph 
(l)(2)(iii) of this section.

[[Page 717]]

    (iii) The verification procedure referenced in paragraphs 
(l)(2)(i)(C) and (l)(2)(ii)(B) of this section is as follows:
    (A) The employer completes a new Form I-9 for the employee, using 
the same procedures as if the employee were newly hired, as described in 
section 274a.2(a) and (b) of this part, except that--
    (1) The employee must complete Section 1 (``Employee Information and 
Verification'') and the employer must complete Section 2 (``Employer 
Review and Verification'') of the new Form I-9 within ninety-three days 
of the employer's receipt of the written notice referred to in paragraph 
(l)(1)(iii)(B) or (C) of this section;
    (2) The employer must not accept any document referenced in any 
written notice described in paragraph (l)(1)(iii)(C) of this section, 
any document that contains a disputed social security account number or 
alien number referenced in any written notice described in paragraphs 
(l)(1)(iii)(B) or (l)(1)(iii)(C) of this section, or any receipt for an 
application for a replacement of such document, to establish employment 
authorization or identity or both; and
    (3) The employee must present a document that contains a photograph 
in order to establish identity or both identity and employment 
authorization.
    (B) The employer must retain the new Form I-9 with the prior Form(s) 
I-9 in accordance with 8 CFR 274a.2(b).
    (3) Knowledge that an employee is unauthorized may not be inferred 
from an employee's foreign appearance or accent. Nothing in this 
definition should be interpreted as permitting an employer to request 
more or different documents than are required under section 274A(b) of 
the Act or to refuse to honor documents tendered that on their face 
reasonably appear to be genuine and to relate to the individual, except 
a document about which the employer has received written notice 
described in paragraph (l)(1)(iii) of this section and with respect to 
which the employer has received no verification as described in 
paragraphs (l)(2)(i)(C) or (l)(2)(ii)(B) of this section.

[52 FR 16221, May 1, 1987, as amended at 53 FR 8612, Mar. 16, 1988; 55 
FR 25931, June 25, 1990; 56 FR 41783, Aug. 23, 1991; 72 FR 45623, Aug. 
15, 2007; 73 FR 63867, Oct. 28, 2008]



Sec. 274a.2  Verification of employment eligibility.

    (a) General. This section establishes requirements and procedures 
for compliance by persons or entities when hiring, or when recruiting or 
referring for a fee, or when continuing to employ individuals in the 
United States.
    (1) Recruiters and referrers for a fee. For purposes of complying 
with section 274A(b) of the Act and this section, all references to 
recruiters and referrers for a fee are limited to a person or entity who 
is either an agricultural association, agricultural employer, or farm 
labor contractor (as defined in section 3 of the Migrant and Seasonal 
Agricultural Worker Protection Act, Pub. L. 97-470 (29 U.S.C. 1802)).
    (2) Verification form. Form I-9, Employment Eligibility Verification 
Form, is used in complying with the requirements of this 8 CFR 274a.1--
274a.11. Form I-9 can be in paper or electronic format. In paper format, 
the Form I-9 may be obtained in limited quantities at USCIS district 
offices, or ordered from the Superintendent of Documents, Washington, DC 
20402. In electronic format, a fillable electronic Form I-9 may be 
downloaded from http://www.uscis.gov. Alternatively, Form I-9 can be 
electronically generated or retained, provided that the resulting form 
is legible; there is no change to the name, content, or sequence of the 
data elements and instructions; no additional data elements or language 
are inserted; and the standards specified under 8 CFR 274a.2(e), (f), 
(g), (h), and (i), as applicable, are met. When copying or printing the 
paper Form I-9, the text of the two-sided form may be reproduced by 
making either double-sided or single-sided copies.
    (3) Attestation Under Penalty and Perjury. In conjunction with 
completing the Form I-9, an employer or recruiter or referrer for a fee 
must examine documents that evidence the identity and

[[Page 718]]

employment eligibility of the individual. The employer or recruiter or 
referrer for a fee and the individual must each complete an attestation 
on the Form I-9 under penalty of perjury.
    (b) Employment verification requirements--(1) Examination of 
documents and completion of Form I-9. (i) A person or entity that hires 
or recruits or refers for a fee an individual for employment must ensure 
that the individual properly:
    (A) Completes section 1--``Employee Information and Verification''--
on the Form I-9 at the time of hire and signs the attestation with a 
handwritten or electronic signature in accordance with paragraph (h) of 
this section; or if an individual is unable to complete the Form I-9 or 
needs it translated, someone may assist him or her. The preparer or 
translator must read the Form I-9 to the individual, assist him or her 
in completing Section 1--``Employee Information and Verification,'' and 
have the individual sign or mark the Form I-9 by a handwritten 
signature, or an electronic signature in accordance with paragraph (h) 
of this section, in the appropriate place; and
    (B) Present to the employer or the recruiter or referrer for a fee 
documentation as set forth in paragraph (b)(1)(v) of this section 
establishing his or her identity and employment eligibility within the 
time limits set forth in paragraphs (b)(1)(ii) through (b)(1)(v) of this 
section.
    (ii) Except as provided in paragraph (b)(1)(viii) of this section, 
an employer, his or her agent, or anyone acting directly or indirectly 
in the interest thereof, must within three business days of the hire:
    (A) Physically examine the documentation presented by the individual 
establishing identity and employment eligibility as set forth in 
paragraph (b)(1)(v) of this section and ensure that the documents 
presented appear to be genuine and to relate to the individual; and
    (B) Complete section 2--``Employer Review and Verification''--on the 
Form I-9 within three days of the hire and sign the attestation with a 
handwritten signature or electronic signature in accordance with 
paragraph (i) of this section.
    (iii) An employer who hires an individual for employment for a 
duration of less than three business days must comply with paragraphs 
(b)(1)(ii)(A) and (b)(1)(ii)(B) of this section at the time of the hire. 
An employer may not accept a receipt, as described in paragraph 
(b)(1)(vi) of this section, in lieu of the required document if the 
employment is for less than three business days.
    (iv) A recruiter or referrer for a fee for employment must comply 
with paragraphs (b)(1)(ii)(A) and (b)(1)(ii)(B) of this section within 
three business days of the date the referred individual is hired by the 
employer. Recruiters and referrers may designate agents to complete the 
employment verification procedures on their behalf including but not 
limited to notaries, national associations, or employers. If a recruiter 
or referrer designates an employer to complete the employment 
verification procedures, the employer need only provide the recruiter or 
referrer with a photocopy or printed electronic image of the Form I-9, 
electronic Form I-9, or a Form I-9 on microfilm or microfiche.
    (v) The individual may present either an original document which 
establishes both employment authorization and identity, or an original 
document which establishes employment authorization and a separate 
original document which establishes identity. The identification number 
and expiration date (if any) of all documents must be noted in the 
appropriate space provided on the Form I-9.
    (A) The following documents, so long as they appear to relate to the 
individual presenting the document, are acceptable to evidence both 
identity and employment eligibility:
    (1) United States passport (unexpired or expired);
    (2) Alien Registration Receipt Card or Permanent Resident Card, Form 
I-551;
    (3) An unexpired foreign passport that contains a temporary I-551 
stamp;
    (4) An unexpired Employment Authorization Document issued by the 
Immigration And Naturalization Service which contains a photograph, Form 
I-766; Form I-688, Form I-688A, or Form I-688B;

[[Page 719]]

    (5) In the case of a nonimmigrant alien authorized to work for a 
specific employer incident to status, an unexpired foreign passport with 
an Arrival-Departure Record, Form I-94, bearing the same name as the 
passport and containing an endorsement of the alien's nonimmigrant 
status, so long as the period of endorsement has not yet expired and the 
proposed employment is not in conflict with any restrictions or 
limitations identified on the Form I-94.
    (B) The following documents are acceptable to establish identity 
only:
    (1) For individuals 16 years of age or older:
    (i) A driver's license or identification card containing a 
photograph, issued by a state (as defined in section 101(a)(36) of the 
Act) or an outlying possession of the United States (as defined by 
section 101(a)(29) of the Act). If the driver's license or 
identification card does not contain a photograph, identifying 
information shall be included such as: name, date of birth, sex, height, 
color of eyes, and address;
    (ii) School identification card with a photograph;
    (iii) Voter's registration card;
    (vi) U.S. military card or draft record;
    (v) Identification card issued by federal, state, or local 
government agencies or entities. If the identification card does not 
contain a photograph, identifying information shall be included such as: 
name, date of birth, sex, height, color of eyes, and address;
    (vi) Military dependent's identification card;
    (vii) Native American tribal documents;
    (viii) United States Coast Guard Merchant Mariner Card;
    (ix) Driver's license issued by a Canadian government authority;
    (2) For individuals under age 18 who are unable to produce a 
document listed in paragraph (b)(1)(v)(B)(1) of this section, the 
following documents are acceptable to establish identity only:
    (i) School record or report card;
    (ii) Clinic doctor or hospital record;
    (iii) Daycare or nursery school record.
    (3) Minors under the age of 18 who are unable to produce one of the 
identity documents listed in paragraph (b)(1)(v)(B) (1) or (2) of this 
section are exempt from producing one of the enumerated identity 
documents if:
    (i) The minor's parent or legal guardian completes on the Form I-9 
Section 1--``Employee Information and Verification'' and in the space 
for the minor's signature, the parent or legal guardian writes the 
words, ``minor under age 18.''
    (ii) The minor's parent or legal guardian completes on the Form I-9 
the ``Preparer/Translator certification.''
    (iii) The employer or the recruiter or referrer for a fee writes in 
Section 2--``Employer Review and Verification'' under List B in the 
space after the words ``Document Identification '' the words, 
``minor under age 18.''
    (4) Individuals with handicaps, who are unable to produce one of the 
identity documents listed in paragraph (b)(1)(v)(B) (1) or (2) of this 
section, who are being placed into employment by a nonprofit 
organization, association or as part of a rehabilitation program, may 
follow the procedures for establishing identity provided in this section 
for minors under the age of 18, substituting where appropriate, the term 
``special placement'' for ``minor under age 18'', and permitting, in 
addition to a parent or legal guardian, a representative from the 
nonprofit organization, association or rehabilitation program placing 
the individual into a position of employment, to fill out and sign in 
the appropriate section, the Form I-9. For purposes of this section the 
term individual with handicaps means any person who
    (i) Has a physical or mental impairment which substantially limits 
one or more of such person's major life activities,
    (ii) Has a record of such impairment, or
    (iii) Is regarded as having such impairment.
    (C) The following are acceptable documents to establish employment 
authorization only:
    (1) A social security number card other than one which has printed 
on its face ``not valid for employment purposes'';

[[Page 720]]

    (2) A Certification of Birth Abroad issued by the Department of 
State, Form FS-545;
    (3) A Certification of Birth Abroad issued by the Department of 
State, Form DS-1350;
    (4) An original or certified copy of a birth certificate issued by a 
State, county, municipal authority or outlying possession of the United 
States bearing an official seal;
    (5) Native American tribal document;
    (6) United States Citizen Identification Card, INS Form I-197;
    (7) Identification card for use of resident citizen in the United 
States, INS Form I-179;
    (8) An unexpired employment authorization document issued by the 
Immigration and Naturalization Service.
    (vi) Special rules for receipts. Except as provided in paragraph 
(b)(1)(iii) of this section, unless the individual indicates or the 
employer or recruiter or referrer for a fee has actual or constructive 
knowledge that the individual is not authorized to work, an employer or 
recruiter or referrer for a fee must accept a receipt for the 
application for a replacement document or a document described in 
paragraphs (b)(1)(vi)(B)((1) and (b)(1)(vi)(C)((1) of this section in 
lieu of the required document in order to comply with any requirement to 
examine documentation imposed by this section, in the following 
circumstances:
    (A) Application for a replacement document. The individual:
    (1) Is unable to provide the required document within the time 
specified in this section because the document was lost, stolen, or 
damaged;
    (2) Presents a receipt for the application for the replacement 
document within the time specified in this section; and
    (3) Presents the replacement document within 90 days of the hire or, 
in the case of reverification, the date employment authorization 
expires; or
    (B) Form I-94 indicating temporary evidence of permanent resident 
status. The individual indicates in section 1 of the Form I-9 that he or 
she is a lawful permanent resident and the individual:
    (1) Presents the arrival portion of Form I-94 containing an 
unexpired ``Temporary I-551'' stamp and photograph of the individual, 
which is designated for purposes of this section as a receipt for Form 
I-551; and
    (2) Presents the Form I-551 by the expiration date of the 
``Temporary I-551'' stamp or, if the stamp has no expiration date, 
within 1 year from the issuance date of the arrival portion of Form I-
94; or
    (C) Form I-94 indicating refugee status. The individual indicates in 
section 1 of the Form I-9 that he or she is an alien authorized to work 
and the individual:
    (1) Presents the departure portion of Form I-94 containing an 
unexpired refugee admission stamp, which is designated for purposes of 
this section as a receipt for the Form I-766, Form I-688B, or a social 
security account number card that contains no employment restrictions; 
and
    (2) Presents, within 90 days of the hire or, in the case of 
reverification, the date employment authorization expires, either an 
unexpired Form I-766 or Form I-688B, or a social security account number 
card that contains no employment restrictions, and a document described 
under paragraph (b)(1)(v)(B) of this section.
    (vii) If an individual's employment authorization expires, the 
employer, recruiter or referrer for a fee must reverify on the Form I-9 
to reflect that the individual is still authorized to work in the United 
States; otherwise the individual may no longer be employed, recruited, 
or referred. Reverification on the Form I-9 must occur not later than 
the date work authorization expires. In order to reverify on the Form I-
9, the employee or referred individual must present a document that 
either shows continuing employment eligibility or is a new grant of work 
authorization. The employer or the recruiter or referrer for a fee must 
review this document, and if it appears to be genuine and relate to the 
individual, re-verify by noting the document's identification number and 
expiration date, if any, on the Form I-9 and signing the attestation by 
a handwritten signature or electronic signature in accordance with 
paragraph (i) of this section.
    (viii) An employer will not be deemed to have hired an individual 
for employment if the individual is continuing in

[[Page 721]]

his or her employment and has a reasonable expectation of employment at 
all times.
    (A) An individual is continuing in his or her employment in one of 
the following situations:
    (1) An individual takes approved paid or unpaid leave on account of 
study, illness or disability of a family member, illness or pregnancy, 
maternity or paternity leave, vacation, union business, or other 
temporary leave approved by the employer;
    (2) An individual is promoted, demoted, or gets a pay raise;
    (3) An individual is temporarily laid off for lack of work;
    (4) An individual is on strike or in a labor dispute;
    (5) An individual is reinstated after disciplinary suspension for 
wrongful termination, found unjustified by any court, arbitrator, or 
administrative body, or otherwise resolved through reinstatement or 
settlement;
    (6) An individual transfers from one distinct unit of an employer to 
another distinct unit of the same employer; the employer may transfer 
the individual's Form I-9 to the receiving unit;
    (7) An individual continues his or her employment with a related, 
successor, or reorganized employer, provided that the employer obtains 
and maintains from the previous employer records and Forms I-9 where 
applicable. For this purpose, a related, successor, or reorganized 
employer includes:
    (i) The same employer at another location;
    (ii) An employer who continues to employ some or all of a previous 
employer's workforce in cases involving a corporate reorganization, 
merger, or sale of stock or assets;
    (iii) An employer who continues to employ any employee of another 
employer's workforce where both employers belong to the same multi-
employer association and the employee continues to work in the same 
bargaining unit under the same collective bargaining agreement. For 
purposes of this subsection, any agent designated to complete and 
maintain the Form I-9 must record the employee's date of hire and/or 
termination each time the employee is hired and/or terminated by an 
employer of the multi-employer association; or
    (8) An individual is engaged in seasonal employment.
    (B) The employer who is claiming that an individual is continuing in 
his or her employment must also establish that the individual expected 
to resume employment at all times and that the individual's expectation 
is reasonable. Whether an individual's expectation is reasonable will be 
determined on a case-by-case basis taking into consideration several 
factors. Factors which would indicate that an individual has a 
reasonable expectation of employment include, but are not limited to, 
the following:
    (1) The individual in question was employed by the employer on a 
regular and substantial basis. A determination of a regular and 
substantial basis is established by a comparison of other workers who 
are similarly employed by the employer;
    (2) The individual in question complied with the employer's 
established and published policy regarding his or her absence;
    (3) The employer's past history of recalling absent employees for 
employment indicates a likelihood that the individual in question will 
resume employment with the employer within a reasonable time in the 
future;
    (4) The former position held by the individual in question has not 
been taken permanently by another worker;
    (5) The individual in question has not sought or obtained benefits 
during his or her absence from employment with the employer that are 
inconsistent with an expectation of resuming employment with the 
employer within a reasonable time in the future. Such benefits include, 
but are not limited to, severance and retirement benefits;
    (6) The financial condition of the employer indicates the ability of 
the employer to permit the individual in question to resume employment 
within a reasonable time in the future; or
    (7) The oral and/or written communication between employer, the 
employer's supervisory employees and the individual in question 
indicates that it is reasonably likely that the individual in question 
will resume employment

[[Page 722]]

with the employer within a reasonable time in the future.
    (2) Retention and Inspection of Form I-9. (i) A paper (with original 
handwritten signatures), electronic (with acceptable electronic 
signatures that meet the requirements of paragraphs (h) and (i) of this 
section or original paper scanned into an electronic format that meets 
the requirements of 8 CFR 274a.2(e), (f), and (g)), or microfilm or 
microfiche copy of the original signed version of the Form I-9 must be 
retained by an employer or a recruiter or referrer for a fee for the 
following time periods:
    (A) In the case of an employer, three years after the date of the 
hire or one year after the date the individual's employment is 
terminated, whichever is later; or
    (B) In the case of a recruiter or referrer for a fee, three years 
after the date of the hire.
    (ii) Any person or entity required to retain Forms I-9 in accordance 
with this section shall be provided with at least three days notice 
prior to an inspection of the Forms I-9 by officers of an authorized 
agency of the United States. At the time of inspection, Forms I-9 must 
be made available in their original paper, electronic form, a paper copy 
of the electronic form, or on microfilm or microfiche at the location 
where the request for production was made. If Forms I-9 are kept at 
another location, the person or entity must inform the officer of the 
authorized agency of the United States of the location where the forms 
are kept and make arrangements for the inspection. Inspections may be 
performed at an office of an authorized agency of the United States. A 
recruiter or referrer for a fee who has designated an employer to 
complete the employment verification procedures may present a photocopy 
or printed electronic image of the Form I-9 in lieu of presenting the 
Form I-9 in its original paper or electronic form or on microfilm or 
microfiche, as set forth in paragraph (b)(1)(iv) of this section. Any 
refusal or delay in presentation of the Forms I-9 for inspection is a 
violation of the retention requirements as set forth in section 
274A(b)(3) of the Act. No Subpoena or warrant shall be required for such 
inspection, but the use of such enforcement tools is not precluded. In 
addition, if the person or entity has not complied with a request to 
present the Forms I-9, any officer listed in 8 CFR 287.4 may compel 
production of the Forms I-9 and any other relevant documents by issuing 
a subpoena. Nothing in this section is intended to limit the subpoena 
power under section 235(a) of the Act.
    (iii) The following standards shall apply to Forms I-9 presented on 
microfilm or microfiche submitted to an officer of the Service, the 
Special Counsel for Immigration-Related Unfair Employment Practices, or 
the Department of Labor: Microfilm, when displayed on a microfilm reader 
(viewer) or reproduced on paper must exhibit a high degree of legibility 
and readability. For this purpose, legibility is defined as the quality 
of a letter or numeral which enables the observer to positively and 
quickly identify it to the exclusion of all other letters or numerals. 
Readability is defined as the quality of a group of letters or numerals 
being recognizable as words or whole numbers. A detailed index of all 
microfilmed data shall be maintained and arranged in such a manner as to 
permit the immediate location of any particular record. It is the 
responsibility of the employer, recruiter or referrer for a fee:
    (A) To provide for the processing, storage and maintenace of all 
microfilm, and
    (B) To be able to make the contents thereof available as required by 
law. The person or entity presenting the microfilm will make available a 
reader-printer at the examination site for the ready reading, location 
and reproduction of any record or records being maintained on microfilm. 
Reader-printers made available to an officer of the Service, the Special 
Counsel for Immigration-Related Unfair Employment Practices, or the 
Department of Labor shall provide safety features and be in clean 
condition, properly maintained and in good working order. The reader-
printers must have the capacity to display and print a complete page of 
information. A person or entity who is determined to have failed to 
comply with the criteria established by this regulation for the 
presentation of

[[Page 723]]

microfilm or microfiche to the Service, the Special Counsel for 
Immigration-Related Unfair Employment Practices, or the Department of 
Labor, and at the time of the inspection does not present a properly 
completed Form I-9 for the employee, is in violation of section 
274A(a)(1)(B) of the Act and Sec. 274a.2(b)(2).
    (iv) Paragraphs (e), (f), (g), (h), and (i) of this section specify 
the standards for electronic Forms I-9.
    (3) Copying of documentation. An employer, or a recruiter or 
referrer for a fee may, but is not required to, copy or make an 
electronic image of a document presented by an individual solely for the 
purpose of complying with the verification requirements of this section. 
If such a copy or electronic image is made, it must be retained with the 
Form I-9. The copying or electronic imaging of any such document and 
retention of the copy or electronic image does not relieve the employer 
from the requirement to fully complete section 2 of the Form I-9. An 
employer, recruiter or referrer for a fee should not, however, copy or 
electronically image only the documents of individuals of certain 
national origins or citizenship statuses. To do so may violate section 
274B of the Act.
    (4) Limitation on use of Form I-9. Any information contained in or 
appended to the Form I-9, including copies or electronic images of 
documents listed in paragraph (c) of this section used to verify an 
individual's identity or employment eligibility, may be used only for 
enforcement of the Act and sections 1001, 1028, 1546, or 1621 of title 
18, United States Code.
    (c) Employment verification requirements in the case of hiring an 
individual who was previously employed. (1) When an employer hires an 
individual whom that person or entity has previously employed, if the 
employer has previously completed the Form I-9 and complied with the 
verification requirements set forth in paragraph (b) of this section 
with regard to the individual, the employer may (in lieu of completing a 
new Form I-9) inspect the previously completed Form I-9 and:
    (i) If upon inspection of the Form I-9, the employer determines that 
the Form I-9 relates to the individual and that the individual is still 
eligible to work, that previously executed Form I-9 is sufficient for 
purposes of section 274A(b) of the Act if the individual is hired within 
three years of the date of the initial execution of the Form I-9 and the 
employer updates the Form I-9 to reflect the date of rehire; or
    (ii) If upon inspection of the Form I-9, the employer determines 
that the individual's employment authorization has expired, the employer 
must reverify on the Form I-9 in accordance with paragraph (b)(1)(vii); 
otherwise the individual may no longer be employed.
    (2) For purposes of retention of the Form I-9 by an employer for a 
previously employed individual hired pursuant to paragraph (c)(1) of 
this section, the employer shall retain the Form I-9 for a period of 
three years commencing from the date of the initial execution of the 
Form I-9 or one year after the individual's employment is terminated, 
whichever is later.
    (d) Employment verification requirements in the case of recruiting 
or referring for a fee an individual who was previously recruited or 
referred. (1) When a recruiter or referrer for a fee refers an 
individual for whom that recruiter or referrer for a fee has previously 
completed a Form I-9 and complied with the verification requirements set 
forth in paragraph (b) of this section with regard to the individual, 
the recruiter or referrer may (in lieu of completing a new Form I-9) 
inspect the previously completed Form I-9 and:
    (i) If upon inspection of the Form I-9, the recruiter or referrer 
for a fee determines that the Form I-9 relates to the individual and 
that the individual is still eligible to work, that previously executed 
Form I-9 is sufficient for purposes of section 274A(b) of the Act if the 
individual is referred within three years of the date of the initial 
execution of the Form I-9 and the recruiter or referrer for a fee 
updates the Form I-9 to reflect the date of rehire; or
    (ii) If upon inspection of the Form I-9, the recruiter or referrer 
determines that the individual's employment authorization has expired, 
the recruiter or referrer for a fee must reverify on

[[Page 724]]

the Form I-9 in accordance with paragraph (b)(1)(vii) of this section; 
otherwise the individual may no longer be recruited or referred.
    (2) For purposes of retention of the Form I-9 by a recruiter or 
referrer for a previously recruited or referred individual pursuant to 
paragraph (d)(1) of this section, the recruiter or referrer shall retain 
the Form I-9 for a period of three years from the date of the rehire.
    (e) Standards for electronic retention of Form I-9. (1) Any person 
or entity who is required by this section to complete and retain Forms 
I-9 may complete or retain electronically Form I-9 in an electronic 
generation or storage system that includes:
    (i) Reasonable controls to ensure the integrity, accuracy and 
reliability of the electronic generation or storage system;
    (ii) Reasonable controls designed to prevent and detect the 
unauthorized or accidental creation of, addition to, alteration of, 
deletion of, or deterioration of an electronically completed or stored 
Form I-9, including the electronic signature if used;
    (iii) An inspection and quality assurance program evidenced by 
regular evaluations of the electronic generation or storage system, 
including periodic checks of the electronically stored Form I-9, 
including the electronic signature if used;
    (iv) In the case of electronically retained Forms I-9, a retrieval 
system that includes an indexing system that permits searches by any 
data element; and
    (v) The ability to reproduce legible and readable hardcopies.
    (2) All documents reproduced by the electronic retention system must 
exhibit a high degree of legibility and readability when displayed on a 
video display terminal or when printed on paper, microfilm, or 
microfiche. The term ``legibility'' means the observer must be able to 
identify all letters and numerals positively and quickly, to the 
exclusion of all other letters or numerals. The term ``readability'' 
means that the observer must be able to recognize any group of letters 
or numerals that form words or numbers as those words or complete 
numbers. The employer, or recruiter or referrer for a fee, must ensure 
that the reproduction process maintains the legibility and readability 
of the electronically stored document.
    (3) An electronic generation or storage system must not be subject, 
in whole or in part, to any agreement (such as a contract or license) 
that would limit or restrict access to and use of the electronic 
generation or storage system by an agency of the United States, on the 
premises of the employer, recruiter or referrer for a fee (or at any 
other place where the electronic generation or storage system is 
maintained), including personnel, hardware, software, files, indexes, 
and software documentation.
    (4) A person or entity who chooses to complete or retain Forms I-9 
electronically may use more than one electronic generation or storage 
system. Each electronic generation or storage system must meet the 
requirements of this paragraph, and remain available as long as required 
by the Act and these regulations.
    (5) For each electronic generation or storage system used, the 
person or entity retaining the Form I-9 must maintain, and make 
available upon request, complete descriptions of:
    (i) The electronic generation and storage system, including all 
procedures relating to its use; and
    (ii) The indexing system.
    (6) An ``indexing system'' for the purposes of paragraphs (e)(1)(iv) 
and (e)(5) of this section is a system that permits the identification 
and retrieval for viewing or reproducing of relevant books and records 
maintained in an electronic storage system. For example, an indexing 
system might consist of assigning each electronically stored document a 
unique identification number and maintaining a separate database that 
contains descriptions of all electronically stored books and records 
along with their identification numbers. In addition, any system used to 
maintain, organize, or coordinate multiple electronic storage systems is 
treated as an indexing system. The requirement to maintain an indexing 
system will be satisfied if the indexing system is functionally 
comparable to a reasonable hardcopy filing system. The requirement to 
maintain an indexing

[[Page 725]]

system does not require that a separate electronically stored books and 
records description database be maintained if comparable results can be 
achieved without a separate description database.
    (7) Any person or entity choosing to retain completed Forms I-9 
electronically may use reasonable data compression or formatting 
technologies as part of the electronic storage system as long as the 
requirements of 8 CFR 274a.2 are satisfied.
    (8) At the time of an inspection, the person or entity required to 
retain completed Forms I-9 must:
    (i) Retrieve and reproduce (including printing copies on paper, if 
requested) only the Forms I-9 electronically retained in the electronic 
storage system and supporting documentation specifically requested by an 
agency of the United States, along with associated audit trails. 
Generally, an audit trail is a record showing who has accessed a 
computer system and the actions performed within or on the computer 
system during a given period of time, and
    (ii) Provide a requesting agency of the United States with the 
resources (e.g., appropriate hardware and software, personnel and 
documentation) necessary to locate, retrieve, read, and reproduce 
(including paper copies) any electronically stored Forms I-9, any 
supporting documents, and their associated audit trails, reports, and 
other data used to maintain the authenticity, integrity, and reliability 
of the records.
    (iii) Provide, if requested, any reasonably available or obtainable 
electronic summary file(s), such as a spreadsheet, containing all of the 
information fields on all of the electronically stored Forms I-9 
requested by a requesting agency of the United States.
    (f) Documentation. (1) A person or entity who chooses to complete 
and/or retain Forms I-9 electronically must maintain and make available 
to an agency of the United States upon request documentation of the 
business processes that:
    (i) Create the retained Forms I-9;
    (ii) Modify and maintain the retained Forms I-9; and
    (iii) Establish the authenticity and integrity of the Forms I-9, 
such as audit trails.
    (2) Insufficient or incomplete documentation is a violation of 
section 274A(a)(1)(B) of the Act.
    (3) Any officer listed in 8 CFR 287.4 may issue a subpoena to compel 
production of any documentation required by 8 CFR 274a.2. Nothing in 
this section is intended to limit the subpoena power of an agency of the 
United States under section 235(a) of the Act.
    (g) Security.(1) Any person or entity who elects to complete or 
retain Forms I-9 electronically must implement an effective records 
security program that:
    (i) Ensures that only authorized personnel have access to electronic 
records;
    (ii) Provides for backup and recovery of records to protect against 
information loss, such as power interruptions;
    (iii) Ensures that employees are trained to minimize the risk of 
unauthorized or accidental alteration or erasure of electronic records; 
and
    (iv) Ensure that whenever the electronic record is created, 
accessed, viewed, updated, or corrected, a secure and permanent record 
is created that establishes the date of access, the identity of the 
individual who accessed the electronic record, and the particular action 
taken.
    (2) An action or inaction resulting in the unauthorized alteration, 
loss, or erasure of electronic records, if it is known, or reasonably 
should be known, to be likely to have that effect, is a violation of 
section 274A(b)(3) of the Act.
    (h) Electronic signatures for employee.(1) If a Form I-9 is 
completed electronically, the attestations in Form I-9 must be completed 
using a system for capturing an electronic signature that meets the 
standards set forth in this paragraph. The system used to capture the 
electronic signature must include a method to acknowledge that the 
attestation to be signed has been read by the signatory. The electronic 
signature must be attached to, or logically associated with, an 
electronically completed Form I-9. In addition, the system must:

[[Page 726]]

    (i) Affix the electronic signature at the time of the transaction;
    (ii) Create and preserve a record verifying the identity of the 
person producing the signature; and
    (iii) Provide a printed confirmation of the transaction, at the time 
of the transaction, to the person providing the signature.
    (2) Any person or entity who is required to ensure proper completion 
of a Form I-9 and who chooses electronic signature for a required 
attestation, but who has failed to comply with the standards set forth 
in this paragraph, is deemed to have not properly completed the Form I-
9, in violation of section 274A(a)(1)(B) of the Act and 8 CFR 
274a.2(b)(2).
    (i) Electronic signatures for employer, recruiter or referrer, or 
representative. If a Form I-9 is completed electronically, the employer, 
the recruiter or referrer for a fee, or the representative of the 
employer or the recruiter or referrer, must attest to the required 
information in Form I-9. The system used to capture the electronic 
signature should include a method to acknowledge that the attestation to 
be signed has been read by the signatory. Any person or entity who has 
failed to comply with the criteria established by this regulation for 
electronic signatures, if used, and at the time of inspection does not 
present a properly completed Form I-9 for the employee, is in violation 
of section 274A(a)(1)(B) of the Act and 8 CFR 274a.2(b)(2).

[52 FR 16221, May 1, 1987, as amended at 53 FR 8612, Mar. 16, 1988; 55 
FR 25932, June 25, 1990; 56 FR 41784-41786, Aug. 23, 1991; 58 FR 48780, 
Sept. 20, 1993; 61 FR 46537, Sept. 4, 1996; 61 FR 52236, Oct. 7, 1996; 
62 FR 51005, Sept. 30, 1997; 64 FR 6189, Feb. 9, 1999; 64 FR 11533, Mar. 
9, 1999; 71 FR 34514, June 15, 2006]

    Effective Date Note: At 73 FR 76511, Dec. 17, 2008, Sec. 274a.2 was 
amended by revising the section heading; revising the term 
``eligibility'' to read ``authorization'' in the first sentence of 
paragraphs (a)(3), (b)(1)(i)(B), and (b)(1)(ii)(A); and by revising 
paragraphs (b)(1)(v) introductory text, (b)(1)(v)(A), (b)(1)(v)(C)(1), 
(b)(1)(v)(C)(2), (b)(1)(v)(C)(3), (b)(1)(v)(C)(6), (b)(1)(v)(C)(7), 
(b)(1)(v)(C)(8), (b)(1)(vi)(B) and (b)(1)(vi)(C), effective Feb. 2, 
2009. For the convenience of the user, the revised text is set forth as 
follows:



Sec. 274a.2  Verification of identity and employment authorization.

                                * * * * *

    (b) * * *
    (1) * * *
    (v) The individual may present either an original document which 
establishes both employment authorization and identity, or an original 
document which establishes employment authorization and a separate 
original document which establishes identity. Only unexpired documents 
are acceptable. The identification number and expiration date (if any) 
of all documents must be noted in the appropriate space provided on the 
Form I-9.
    (A) The following documents, so long as they appear to relate to the 
individual presenting the document, are acceptable to evidence both 
identity and employment authorization:
    (1) A United States passport;
    (2) An Alien Registration Receipt Card or Permanent Resident Card 
(Form I-551);
    (3) A foreign passport that contains a temporary I-551 stamp, or 
temporary I-551 printed notation on a machine-readable immigrant visa;
    (4) An Employment Authorization Document which contains a photograph 
(Form I-766);
    (5) In the case of a nonimmigrant alien authorized to work for a 
specific employer incident to status, a foreign passport with a Form I-
94 or Form I-94A bearing the same name as the passport and containing an 
endorsement of the alien's nonimmigrant status, as long as the period of 
endorsement has not yet expired and the proposed employment is not in 
conflict with any restrictions or limitations identified on the Form;
    (6) A passport from the Federated States of Micronesia (FSM) or the 
Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A 
indicating nonimmigrant admission under the Compact of Free Association 
Between the United States and the FSM or RMI.

                                * * * * *

    (C) * * *
    (1) A Social Security account number card other than one that 
specifies on the face that the issuance of the card does not authorize 
employment in the United States;
    (2) Certification of Birth issued by the Department of State, Form 
FS-545;
    (3) Certification of Report of Birth issued by the Department of 
State, Form DS-1350;

                                * * * * *

    (6) United States Citizen Identification Card, Form I-197;

[[Page 727]]

    (7) Identification card for use of resident citizen in the United 
States, Form I-179;
    (8) An employment authorization document issued by the Department of 
Homeland Security.
    (vi) * * *
    (B) Form I-94 or I-94A indicating temporary evidence of permanent 
resident status. The individual indicates in section 1 of the Form I-9 
that he or she is a lawful permanent resident and the individual:
    (1) Presents the arrival portion of Form I-94 or Form I-94A with an 
unexpired foreign passport containing an unexpired ``Temporary I-551'' 
stamp and a photograph of the individual, which is designated for 
purposes of this section as a receipt for Form I-551; and
    (2) Presents the Form I-551 by the expiration date of the 
``Temporary I-551'' stamp or, if the stamp or statement has no 
expiration date, within one year from the issuance date of the arrival 
portion of the Form I-94 or Form I-94A; or
    (C) Form I-94 or I-94A indicating refugee status. The individual 
indicates in section 1 of the Form I-9 that he or she is an alien 
authorized to work and the individual:
    (1) Presents the departure portion of Form I-94 or I-94A containing 
an unexpired refugee admission stamp, which is designated for purposes 
of this section as a receipt for the Form I-766, or a social security 
account number card that contains no employment restrictions; and
    (2) Presents, within 90 days of the hire or, in the case of 
reverification, the date employment authorization expires, either an 
unexpired Form I-766, or a social security account number card that 
contains no employment restrictions and a document described under 
paragraph (b)(1)(v)(B) of this section.

                                * * * * *



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

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

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



Sec. 274a.4  Good faith defense.

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



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

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

[55 FR 25934, June 25, 1990]



Sec. 274a.6  State employment agencies.

    (a) General. Pursuant to sections 274A(a)(5) and 274A(b) of the Act, 
a state employment agency as defined in Sec. 274a.1 of this part may, 
but is not required to, verify identity and employment eligibility of 
individuals referred for employment by the agency. However, should a 
state employment agency choose to do so, it must:
    (1) Complete the verification process in accordance with the 
requirements of Sec. 274a.2(b) of this part provided that the 
individual may not present receipts in lieu of documents in order to 
complete the verification process as otherwise permitted by Sec. 
274a.2(b)(1)(vi) of this part; and
    (2) Complete the verification process prior to referral for all 
individuals for whom a certification is required to be issued pursuant 
to paragraph (c) of this section.
    (b) Compliance with the provisions of section 274A of the Act. A 
state employment agency which chooses to verify employment eligibility 
of individuals pursuant to Sec. 274a.2(b) of this part shall comply 
with all provisions of section 274A of the Act and the regulations 
issued thereunder.
    (c) State employment agency certification. (1) A state employment 
agency which chooses to verify employment eligibility pursuant to 
paragraph (a) of this section shall issue to an employer who hires an 
individual referred for

[[Page 728]]

employment by the agency, a certification as set forth in paragraph (d) 
of this section. The certification shall be transmitted by the state 
employment agency directly to the employer, personally by an agency 
official, or by mail, so that it will be received by the employer within 
21 business days of the date that the referred individual is hired. In 
no case shall the certification be transmitted to the employer from the 
state employment agency by the individual referred. During this period:
    (i) The job order or other appropriate referral form issued by the 
state employment agency to the employer, on behalf of the individual who 
is referred and hired, shall serve as evidence, with respect to that 
individual, of the employer's compliance with the provisions of section 
274A(a)(1)(B) of the Act and the regulations issued thereunder.
    (ii) In the case of a telephonically authorized job referral by the 
state employment agency to the employer, an appropriate annotation by 
the employer shall be made and shall serve as evidence of the job order. 
The employer should retain the document containing the annotation where 
the employer retains Forms I-9.
    (2) Job orders or other referrals, including telephonic 
authorizations, which are used as evidence of compliance pursuant to 
paragraph (c)(1)(i) of this section shall contain:
    (i) The name of the referred individual;
    (ii) The date of the referral;
    (iii) The job order number or other applicable identifying number 
relating to the referral;
    (iv) The name and title of the referring state employment agency 
official; and
    (v) The telephone number and address of the state employment agency.
    (3) A state employment agency shall not be required to verify 
employment eligibility or to issue a certification to an employer to 
whom the agency referred an individual if the individual is hired for a 
period of employment not to exceed 3 days in duration. Should a state 
agency choose to verify employment eligibility and to issue a 
certification to an employer relating to an individual who is hired for 
a period of employment not to exceed 3 days in duration, it must verify 
employment eligibility and issue certifications relating to all such 
individuals. Should a state employment agency choose not to verify 
employment eligibility or issue certifications to employers who hire, 
for a period not to exceed 3 days in duration, agency-referred 
individuals, the agency shall notify employers that, as a matter of 
policy, it does not perform verifications for individuals hired for that 
length of time, and that the employers must complete the identity and 
employment eligibility requirements pursuant to Sec. 274a.2(b) of this 
part. Such notification may be incorporated into the job order or other 
referral form utilized by the state employment agency as appropriate.
    (4) An employer to whom a state employment agency issues a 
certification relating to an individual referred by the agency and hired 
by the employer, shall be deemed to have complied with the verification 
requirements of Sec. 274a.2(b) of this part provided that the employer:
    (i) Reviews the identifying information contained in the 
certification to ensure that it pertains to the individual hired;
    (ii) Observes the signing of the certification by the individual at 
the time of its receipt by the employer as provided for in paragraph 
(d)(13) of this section;
    (iii) Complies with the provisions of Sec. 274a.2(b)(1)(vii) of 
this part by either:
    (A) Updating the state employment agency certification in lieu of 
Form I-9, upon expiration of the employment authorization date, if any, 
which was noted on the certification issued by the state employment 
agency pursuant to paragraph (d)(11) of this section; or
    (B) By no longer employing an individual upon expiration of his or 
her employment authorization date noted on the certification;
    (iv) Retains the certification in the same manner prescribed for 
Form I-9 in Sec. 274a.2(b)(2) of this part, to wit, three years after 
the date of the hire or one year after the date the individual's 
employment is terminated, whichever is later; and

[[Page 729]]

    (v) Makes it available for inspection to officers of the Service or 
the Department of Labor, pursuant to the provisions of section 
274A(b)(3) of the Act, and Sec. 274a.2(b)(2) of this part.
    (5) Failure by an employer to comply with the provisions of 
paragraph (c)(4)(iii) of this section shall constitute a violation of 
section 274A(a)(2) of the Act and shall subject the employer to the 
penalties contained in section 274A(e)(4) of the Act, and Sec. 274a.10 
of this part.
    (d) Standards for state employment agency certifications. All 
certifications issued by a state employment agency pursuant to paragraph 
(c) of this section shall conform to the following standards. They must:
    (1) Be issued on official agency letterhead;
    (2) Be signed by an appropriately designated official of the agency;
    (3) Bear a date of issuance;
    (4) Contain the employer's name and address;
    (5) State the name and date of birth of the individual referred;
    (6) Identify the position or type of employment for which the 
individual is referred;
    (7) Bear a job order number relating to the position or type of 
employment for which the individual is referred;
    (8) Identify the document or documents presented by the individual 
to the state employment agency for the purposes of identity and 
employment eligibility verification;
    (9) State the identifying number or numbers of the document or 
documents described in paragraph (d)(8) of this section;
    (10) Certify that the agency has complied with the requirements of 
section 274A(b) of the Act concerning verification of the identity and 
employment eligibility of the individual referred, and has determined 
that, to the best of the agency's knowledge, the individual is 
authorized to work in the United States;
    (11) Clearly state any restrictions, conditions, expiration dates or 
other limitations which relate to the individual's employment 
eligibility in the United States, or contain an affirmative statement 
that the employment authorization of the referred individual is not 
restricted;
    (12) State that the employer is not required to verify the 
individual's identity or employment eligibility, but must retain the 
certification in lieu of Form I-9;
    (13) Contain a space or a line for the signature of the referred 
individual, requiring the individual under penalty of perjury to sign 
his or her name before the employer at the time of receipt of the 
certification by the employer; and
    (14) State that counterfeiting, falsification, unauthorized issuance 
or alteration of the certification constitutes a violation of federal 
law pursuant to title 18, U.S.C. 1546.
    (e) Retention of Form I-9 by state employment agencies. A Form I-9 
utilized by a state employment agency in verifying the identity and 
employment eligibility of an individual pursuant to Sec. 274a.2(b) of 
this part must be retained by a state employment agency for a period of 
three years from the date that the individual was last referred by the 
agency and hired by an employer. A state employment agency may retain a 
Form I-9 either in its original form, or on microfilm or microfiche.
    (f) Retention of state employment agency certifications. A 
certification issued by a state employment agency pursuant to this 
section shall be retained:
    (1) By a state employment agency, for a period of three years from 
the date that the individual was last referred by the agency and hired 
by an employer, and in a manner to be determined by the agency which 
will enable the prompt retrieval of the information contained on the 
original certification for comparison with the relating Form I-9;
    (2) By the employer, in the original form, and in the same manner 
and location as the employer has designated for retention of Forms I-9, 
and for the period of time provided in paragraph (c)(4)(iv) of this 
section.
    (g) State employment agency verification requirements in the case of 
an individual who was previously referred and certified. When a state 
employment agency refers an individual for whom the verification 
requirements have been previously complied with and a Form I-9 
completed, the agency shall

[[Page 730]]

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

[52 FR 43053, Nov. 9, 1987]



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

1986.

    (a) The penalty provisions set forth in section 274A (e) and (f) of 
the Act for violations of sections 274A(a)(1)(B) and 274A(a)(2) of the 
Act shall not apply to employees who were hired prior to November 7, 
1986, and who are continuing in their employment and have a reasonable 
expectation of employment at all times (as set forth in Sec. 
274a.2(b)(1)(viii)), except those individuals described in section 
274a.2 (b)(1)(viii)(A)(7)(iii) and (b)(1)(viii)(A)(8).
    (b) For purposes of this section, an employee who was hired prior to 
November 7, 1986 shall lose his or her pre-enactment status if the 
employee:
    (1) Quits; or
    (2) Is terminated by the employer; the term termination shall 
include, but is not limited to, situations in which an employee is 
subject to seasonal employment; or
    (3) Is excluded or deported from the United States or departs the 
United

[[Page 731]]

States under a grant of voluntary departure; or
    (4) Is no longer continuing his or her employment (or does not have 
a reasonable expectation of employment at all times) as set forth in 
Sec. 274a.2(b)(1)(viii).

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



Sec. 274a.8  Prohibition of indemnity bonds.

    (a) General. It is unlawful for a person or other entity, in hiring 
or recruiting or referring for a fee for employment of an individual, to 
require the individual to post a bond or security, to pay or agree to 
pay an amount, or otherwise to provide a financial guarantee or 
indemnity, against any potential liability arising under this part 
relating to such hiring, recruiting, or referring of the individual. 
However, this prohibition does not apply to performance clauses which 
are stipulated by agreement between contracting parties.
    (b) Penalty. Any person or other entity who requires any individual 
to post a bond or security as stated in this section shall, after notice 
and opportunity for an administrative hearing in accordance with section 
274A(e)(3)(B) of the Act, be subject to a civil monetary penalty of 
$1,000 for each violation before September 29, 1999, and $1,100 for each 
violation occurring on or after September 29, 1999, and to an 
administrative order requiring the return to the individual of any 
amounts received in violation of this section or, if the individual 
cannot be located, to the general fund of the Treasury.

[52 FR 16221, May 1, 1987, as amended at 64 FR 47101, Aug. 30, 1999]



Sec. 274a.9  Enforcement procedures.

    (a) Procedures for the filing of complaints. Any person or entity 
having knowledge of a violation or potential violation of section 274A 
of the Act may submit a signed, written complaint in person or by mail 
to the Service office having jurisdiction over the business or residence 
of the potential violator. The signed, written complaint must contain 
sufficient information to identify both the complainant and the 
potential violator, including their names and addresses. The complaint 
should also contain detailed factual allegations relating to the 
potential violation including the date, time and place of the alleged 
violation and the specific act or conduct alleged to constitute a 
violation of the Act. Written complaints may be delivered either by mail 
to the appropriate Service office or by personally appearing before any 
immigration officer at a Service office.
    (b) Investigation. The Service may conduct investigations for 
violations on its own initiative and without having received a written 
complaint. When the Service receives a complaint from a third party, it 
shall investigate only those complaints that have a reasonable 
probability of validity. If it is determined after investigation that 
the person or entity has violated section 274A of the Act, the Service 
may issue and serve a Notice of Intent to Fine or a Warning Notice upon 
the alleged violator. Service officers shall have reasonable access to 
examine any relevant evidence of any person or entity being 
investigated.
    (c) Warning notice. The Service and/or the Department of Labor may 
in their discretion issue a Warning Notice to a person or entity alleged 
to have violated section 274A of the Act. This Warning Notice will 
contain a statement of the basis for the violations and the statutory 
provisions alleged to have been violated.
    (d) Notice of Intent to Fine. The proceeding to assess 
administrative penalties under section 274A of the Act is commenced when 
the Service issues a Notice of Intent to Fine on Form I-763. Service of 
this Notice shall be accomplished pursuant to part 103 of this chapter. 
The person or entity identified in the Notice of Intent to Fine shall be 
known as the respondent. The Notice of Intent to Fine may be issued by 
an officer defined in Sec. 242.1 of this chapter with concurrence of a 
Service attorney.
    (1) Contents of the Notice of Intent to Fine. (i) The Notice of 
Intent to Fine will contain the basis for the charge(s) against the 
respondent, the statutory provisions alleged to have been violated, and 
the penalty that will be imposed.

[[Page 732]]

    (ii) The Notice of Intent to Fine will provide the following 
advisals to the respondent:
    (A) That the person or entity has the right to representation by 
counsel of his or her own choice at no expense to the government;
    (B) That any statement given may be used against the person or 
entity;
    (C) That the person or entity has the right to request a hearing 
before an Administrative Law Judge pursuant to 5 U.S.C. 554-557, and 
that such request must be made within 30 days from the service of the 
Notice of Intent to Fine;
    (D) That the Service will issue a final order in 45 days if a 
written request for a hearing is not timely received and that there will 
be no appeal of the final order.
    (2) [Reserved]
    (e) Request for Hearing Before an Administrative Law Judge. If a 
respondent contests the issuance of a Notice of Intent to Fine, the 
respondent must file with the INS, within thirty days of the service of 
the Notice of Intent to Fine, a written request for a hearing before an 
Administrative Law Judge. Any written request for a hearing submitted in 
a foreign language must be accompanied by an English language 
translation. A request for a hearing is not deemed to be filed until 
received by the Service office designated in the Notice of Intent to 
Fine. In computing the thirty day period prescribed by this section, the 
day of service of the Notice of Intent to Fine shall not be included. If 
the Notice of Intent to Fine was served by ordinary mail, five days 
shall be added to the prescribed thirty day period. In the request for a 
hearing, the respondent may, but is not required to, respond to each 
allegation listed in the Notice of Intent to Fine.
    (f) Failure to file a request for hearing. If the respondent does 
not file a request for a hearing in writing within thirty days of the 
day of service of the Notice of Intent to Fine (thirty-five days if 
served by ordinary mail), the INS shall issue a final order from which 
there is no appeal.

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



Sec. 274a.10  Penalties.

    (a) Criminal penalties. Any person or entity which engages in a 
pattern or practice of violations of subsection (a)(1)(A) or (a)(2) of 
the Act shall be fined not more than $3,000 for each unauthorized alien, 
imprisoned for not more than six months for the entire pattern or 
practice, or both, notwithstanding the provisions of any other Federal 
law relating to fine levels.
    (b) Civil penalties. A person or entity may face civil penalties for 
a violation of section 274A of the Act. Civil penalties may be imposed 
by the Service or an administrative law judge for violations under 
section 274A of the Act. In determining the level of the penalties that 
will be imposed, a finding of more than one violation in the course of a 
single proceeding or determination will be counted as a single offense. 
However, a single offense will include penalties for each unauthorized 
alien who is determined to have been knowingly hired or recruited or 
referred for a fee.
    (1) A respondent found by the Service or an administrative law judge 
to have knowingly hired, or to have knowingly recruited or referred for 
a fee, an unauthorized alien for employment in the United States or to 
have knowingly continued to employ an unauthorized alien in the United 
States, shall be subject to the following order:
    (i) To cease and desist from such behavior;
    (ii) To pay a civil fine according to the following schedule:
    (A) First offense--not less than $275 and not more than $2,200 for 
each unauthorized alien with respect to whom the offense occurred before 
March 27, 2008, and not less than $375 and not exceeding $3,200, for 
each unauthorized alien with respect to whom the offense occurred 
occurring on or after March 27, 2008;
    (B) Second offense--not less than $2,200 and not more than $5,500 
for each unauthorized alien with respect to whom the second offense 
occurred before March 27, 2008, and not less than $3,200 and not more 
than $6,500, for each unauthorized alien with respect to whom the second 
offense occurred on or after March 27, 2008; or

[[Page 733]]

    (C) More than two offenses--not less than $3,300 and not more than 
$11,000 for each unauthorized alien with respect to whom the third or 
subsequent offense occurred before March 27, 2008 and not less than 
$4,300 and not exceeding $16,000, for each unauthorized alien with 
respect to whom the third or subsequent offense occurred on or after 
March 27, 2008; and
    (iii) To comply with the requirements of section 274a.2(b) of this 
part, and to take such other remedial action as is appropriate.
    (2) A respondent determined by the Service (if a respondent fails to 
request a hearing) or by an administrative law judge, to have failed to 
comply with the employment verification requirements as set forth in 
Sec. 274a.2(b), shall be subject to a civil penalty in an amount of not 
less than $100 and not more than $1,000 for each individual with respect 
to whom such violation occurred before September 29, 1999, and not less 
than $110 and not more than $1,100 for each individual with respect to 
whom such violation occurred on or after September 29, 1999. In 
determining the amount of the penalty, consideration shall be given to:
    (i) The size of the business of the employer being charged;
    (ii) The good faith of the employer;
    (iii) The seriousness of the violation;
    (iv) Whether or not the individual was an unauthorized alien; and
    (v) The history of previous violations of the employer.
    (3) Where an order is issued with respect to a respondent composed 
of distinct, physically separate subdivisions which do their own hiring, 
or their own recruiting or referring for a fee for employment (without 
reference to the practices of, and under the control of, or common 
control with another subdivision) the subdivision shall be considered a 
separate person or entity.
    (c) Enjoining pattern or practice violations. If the Attorney 
General has reasonable cause to believe that a person or entity is 
engaged in a pattern or practice of employment, recruitment or referral 
in violation of section 274A(a)(1)(A) or (2) of the Act, the Attorney 
General may bring civil action in the appropriate United States District 
Court requesting relief, including a permanent or temporary injunction, 
restraining order, or other order against the person or entity, as the 
Attorney General deems necessary.

[52 FR 16221, May 1, 1987, as amended at 55 FR 25935, June 25, 1990; 56 
FR 41786, Aug. 23, 1991; 64 FR 47101, Aug. 30, 1999; 73 FR 10136, Feb. 
26, 2008]



Sec. 274a.11  [Reserved]



                   Subpart B_Employment Authorization



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

    (a) Aliens authorized employment incident to status. Pursuant to the 
statutory or regulatory reference cited, the following classes of aliens 
are authorized to be employed in the United States without restrictions 
as to location or type of employment as a condition of their admission 
or subsequent change to one of the indicated classes. Any alien who is 
within a class of aliens described in paragraphs (a)(3), (a)(4), (a)(6)-
(a)(8), (a)(10)-(a)(15), or (a)(20) of this section, and who seeks to be 
employed in the United States, must apply to U.S. Citizenship and 
Immigration Services (USCIS) for a document evidencing such employment 
authorization. USCIS may, in its discretion, determine the validity 
period assigned to any document issued evidencing an alien's 
authorization to work in the United States.
    (1) An alien who is a lawful permanent resident (with or without 
conditions pursuant to section 216 of the Act), as evidenced by Form I-
551 issued by the Service. An expiration date on the Form I-551 reflects 
only that the card must be renewed, not that the bearer's work 
authorization has expired;
    (2) An alien admitted to the United States as a lawful temporary 
resident pursuant to sections 245A or 210 of the Act, as evidenced by an 
employment authorization document issued by the Service;
    (3) An alien admitted to the United States as a refugee pursuant to 
section 207 of the Act for the period of time in that status, as 
evidenced by an employment authorization document issued by the Service;

[[Page 734]]

    (4) An alien paroled into the United States as a refugee for the 
period of time in that status, as evidenced by an employment 
authorization document issued by the Service;
    (5) An alien granted asylum under section 208 of the Act for the 
period of time in that status, as evidenced by an employment 
authorization document, issued by BCIS to the alien. An expiration date 
on the employment authorization document issued by BCIS reflects only 
that the document must be renewed, and not that the bearer's work 
authorization has expired. Evidence of employment authorization shall be 
granted in increments not exceeding 5 years for the period of time the 
alien remains in that status.
    (6) An alien admitted to the United States as a nonimmigrant 
fianc[eacute] or fianc[eacute]e pursuant to section 101(a)(15)(K)(i) of 
the Act, or an alien admitted as a child of such alien, for the period 
of admission in that status, as evidenced by an employment authorization 
document issued by the Service;
    (7) An alien admitted as a parent (N-8) or dependent child (N-9) of 
an alien granted permanent residence under section 101(a)(27)(I) of the 
Act, as evidenced by an employment authorization document issued by the 
Service;
    (8) An alien admitted to the United States as a citizen of the 
Federated States of Micronesia (CFA/FSM) or of the Marshall Islands 
(CFA/MIS) pursuant to agreements between the United States and the 
former trust territories, as evidenced by an employment authorization 
document issued by the Service;
    (9) Any alien admitted as a nonimmigrant spouse pursuant to section 
101(a)(15)(K)(ii) of the Act, or an alien admitted as a child of such 
alien, for the period of admission in that status, as evidenced by an 
employment authorization document, with an expiration date issued by the 
Service;
    (10) An alien granted withholding of deportation or removal for the 
period of time in that status, as evidenced by an employment 
authorization document issued by the Service;
    (11) An alien who has been granted extended voluntary departure by 
the Attorney General as a member of a nationality group pursuant to a 
request by the Secretary of State. Employment is authorized for the 
period of time in that status as evidenced by an employment 
authorization document issued by the Service;
    (12) An alien granted Temporary Protected Status under section 244 
of the Act for the period of time in that status, as evidenced by an 
employment authorization document issued by the Service;
    (13) An alien granted voluntary departure by the Attorney General 
under the Family Unity Program established by section 301 of the 
Immigration Act of 1990, as evidenced by an employment authorization 
document issued by the Service;
    (14) An alien granted Family Unity benefits under section 1504 of 
the Legal Immigrant Family Equity (LIFE) Act Amendments, Public Law 106-
554, and the provisions of 8 CFR part 245a, Subpart C of this chapter, 
as evidenced by an employment authorization document issued by the 
Service;
    (15) Any alien in V nonimmigrant status as defined in section 
101(a)(15)(V) of the Act and 8 CFR 214.15.
    (16) An alien authorized to be admitted to or remain in the United 
States as a nonimmigrant alien victim of a severe form of trafficking in 
persons under section 101(a)(15)(T)(i) of the Act. Employment 
authorization granted under this paragraph shall expire upon the 
expiration of the underlying T-1 nonimmigrant status granted by the 
Service;
    (17) [Reserved]
    (18) [Reserved]
    (19) Any alien in U-1 nonimmigrant status, pursuant to 8 CFR 214.14, 
for the period of time in that status, as evidenced by an employment 
authorization document issued by USCIS to the alien.
    (20) Any alien in U-2, U-3, U-4, or U-5 nonimmigrant status, 
pursuant to 8 CFR 214.14, for the period of time in that status, as 
evidenced by an employment authorization document issued by USCIS to the 
alien.
    (b) Aliens authorized for employment with a specific employer 
incident to status. The following classes of nonimmigrant aliens are 
authorized to be

[[Page 735]]

employed in the United States by the specific employer and subject to 
the restrictions described in the section(s) of this chapter indicated 
as a condition of their admission in, or subsequent change to, such 
classification. An alien in one of these classes is not issued an 
employment authorization document by the Service:
    (1) A foreign government official (A-1 or A-2), pursuant to Sec. 
214.2(a) of this chapter. An alien in this status may be employed only 
by the foreign government entity;
    (2) An employee of a foreign government official (A-3), pursuant to 
Sec. 214.2(a) of this chapter. An alien in this status may be employed 
only by the foreign government official;
    (3) A foreign government official in transit (C-2 or C-3), pursuant 
to Sec. 214.2(c) of this chapter. An alien in this status may be 
employed only by the foreign government entity;
    (4) [Reserved]
    (5) A nonimmigrant treaty trader (E-1) or treaty investor (E-2), 
pursuant to Sec. 214.2(e) of this chapter. An alien in this status may 
be employed only by the treaty-qualifying company through which the 
alien attained the status. Employment authorization does not extend to 
the dependents of the principal treaty trader or treaty investor (also 
designated ``E-1'' or ``E-2''), other than those specified in paragraph 
(c)(2) of this section;
    (6) A nonimmigrant (F-1) student who is in valid nonimmigrant 
student status and pursuant to 8 CFR 214.2(f) is seeking:
    (i) On-campus employment for not more than twenty hours per week 
when school is in session or full-time employment when school is not in 
session if the student intends and is eligible to register for the next 
term or session. Part-time on-campus employment is authorized by the 
school and no specific endorsement by a school official or Service 
officer is necessary;
    (ii) [Reserved]
    (iii) Curricular practical training (internships, cooperative 
training programs, or work-study programs which are part of an 
established curriculum) after having been enrolled full-time in a 
Service approved institution for one full academic year. Curricular 
practical training (part-time or full-time) is authorized by the 
Designated School Official on the student's Form I-20. No Service 
endorsement is necessary.
    (iv) A Form I-766, ``Employment Authorization Document,'' under 8 
CFR 274a.12(c)(3)(i)(C) based on a 17-month STEM Optional Practical 
Training extension, and whose timely filed Form I-765, ``Application for 
Employment Authorization,'' is pending and Form I-766 issued under 8 CFR 
274a.12(c)(3)(i)(B) has expired. Employment is authorized beginning on 
the expiration date of Form I-766 issued under 8 CFR 274a.12(c)(3)(i)(B) 
and ending on the date of USCIS' written decision on Form I-765, but not 
to exceed 180 days; or
    (v) Or pursuant to 8 CFR 214.2(h) is seeking H-1B nonimmigrant 
status and whose duration of status and employment authorization have 
been extended pursuant to 8 CFR 214.2(f)(5)(vi).
    (7) A representative of an international organization (G-1, G-2, G-
3, or G-4), pursuant to Sec. 214.2(g) of this chapter. An alien in this 
status may be employed only by the foreign government entity or the 
international organization;
    (8) A personal employee of an official or representative of an 
international organization (G-5), pursuant to Sec. 214.2(g) of this 
chapter. An alien in this status may be employed only by the official or 
representative of the international organization;
    (9) A temporary worker or trainee (H-1, H-2A, H-2B, or H-3), 
pursuant to Sec. 214.2(h) of this chapter. An alien in this status may 
be employed only by the petitioner through whom the status was obtained. 
In the case of a professional H-2B 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 to petition for H-2B 
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's employment authorization will 
continue until the petition is adjudicated.

[[Page 736]]

If the new petition is denied, employment authorization will cease;
    (10) An information media representative (I), pursuant to Sec. 
214.2(i) of this chapter. An alien in this status may be employed only 
for the sponsoring foreign news agency or bureau. Employment 
authorization does not extend to the dependents of an information media 
representative (also designated ``I'');
    (11) An exchange visitor (J-1), pursuant to Sec. 214.2(j) of this 
chapter and 22 CFR part 62. An alien in this status may be employed only 
by the exchange visitor program sponsor or appropriate designee and 
within the guidelines of the program approved by the Department of State 
as set forth in the Form DS-2019, Certificate of Eligibility, issued by 
the program sponsor;
    (12) An intra-company transferee (L-1), pursuant to Sec. 214.2(1) 
of this chapter. An alien in this status may be employed only by the 
petitioner through whom the status was obtained;
    (13) An alien having extraordinary ability in the sciences, arts, 
education, business, or athletics (O-1), and an accompanying alien (O-
2), pursuant to Sec. 214.2(o) of this chapter. An alien in this status 
may be employed only by the petitioner through whom the status was 
obtained. 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 the 
acquisition by the new organization, within which time the new 
organization is expected to file a new Form I-129 petition for O 
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's employment authorization will 
continue until the petition is adjudicated. If the new petition is 
denied, employment authorization will cease.
    (14) An athlete, artist, or entertainer (P-1, P-2, or P-3), pursuant 
to Sec. 214.2(p) of this chapter. An alien in this status may be 
employed only by the petitioner through whom the status was obtained. 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 the 
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's employment authorization will 
continue until the petition is adjudicated. If the new petition is 
denied, employment authorization will cease;
    (15) An international cultural exchange visitor (Q-1), according to 
Sec. 214.2(q)(1) of this chapter. An alien may only be employed by the 
petitioner through whom the status was obtained;
    (16) An alien having a religious occupation, pursuant to Sec. 
214.2(r) of this chapter. An alien in this status may be employed only 
by the religious organization through whom the status was obtained;
    (17) Officers and personnel of the armed services of nations of the 
North Atlantic Treaty Organization, and representatives, officials, and 
staff employees of NATO (NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 and 
NATO-6), pursuant to Sec. 214.2(o) of this chapter. An alien in this 
status may be employed only by NATO;
    (18) An attendant, servant or personal employee (NATO-7) of an alien 
admitted as a NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6, 
pursuant to Sec. 214.2(o) of this chapter. An alien admitted under this 
classification may be employed only by the NATO alien through whom the 
status was obtained;
    (19) A nonimmigrant pursuant to section 214(e) of the Act. An alien 
in this status must be engaged in business activities at a professional 
level in accordance with the provisions of Chapter 16 of the North 
American Free Trade Agreement (NAFTA); or
    (20) A nonimmigrant alien within the class of aliens described in 
paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12), 
(b)(13), (b)(14), (b)(16), and (b)(19) of this section whose status has 
expired but who has filed a timely application

[[Page 737]]

for an extension of such stay pursuant to Sec. Sec. 214.2 or 214.6 of 
this chapter. These aliens are authorized to continue employment with 
the same employer for a period not to exceed 240 days beginning on the 
date of the expiration of the authorized period of stay. Such 
authorization shall be subject to any conditions and limitations noted 
on the initial authorization. However, if the district director or 
service center director adjudicates the application prior to the 
expiration of this 240 day period and denies the application for 
extension of stay, the employment authorization under this paragraph 
shall automatically terminate upon notification of the denial decision.
    (c) Aliens who must apply for employment authorization. An alien 
within a class of aliens described in this section must apply for work 
authorization. If authorized, such an alien may accept employment 
subject to any restrictions stated in the regulations or cited on the 
employment authorization document. BCIS, in its discretion, may 
establish a specific validity period for an employment authorization 
document, which may include any period when an administrative appeal or 
judicial review of an application or petition is pending.
    (1) An alien spouse or unmarried dependent child; son or daughter of 
a foreign government official (A-1 or A-2) pursuant to Sec. 214.2(a)(2) 
of this chapter and who presents a fully executed Form I-566 bearing the 
endorsement of an authorized representative of the Department of State;
    (2) An alien spouse or unmarried dependent son or daughter of an 
alien employee of the Coordination Council for North American Affairs 
(E-1) pursuant to Sec. 214.2(e) of this chapter;
    (3) A nonimmigrant (F-1) student who:
    (i)(A) Is seeking pre-completion practical training pursuant to 8 
CFR 214.2(f)(10)(ii)(A)(1)-(2);
    (B) Is seeking authorization to engage in post-completion Optional 
Practical Training (OPT) pursuant to 8 CFR 214.2(f)(10)(ii)(A)(3); or
    (C) Is seeking a 17-month STEM OPT extension pursuant to 8 CFR 
214.2(f)(10)(ii)(C);
    (4) An alien spouse or unmarried dependent child; son or daughter of 
an officer of, representative to, or employee of an international 
organization (G-1, G-3 or G-4) pursuant to Sec. 214.2(g) of this 
chapter who presents a fully executed Form I-566 bearing the endorsement 
of an authorized representative of the Department of State;
    (5) An alien spouse or minor child of an exchange visitor (J-2) 
pursuant to Sec. 214.2(j) of this chapter;
    (6) A nonimmigrant (M-1) student seeking employment for practical 
training pursuant to 8 CFR 214.2(m) following completion of studies. The 
alien may be employed only in an occupation or vocation directly related 
to his or her course of study as recommended by the endorsement of the 
designated school official on the I-20 ID;
    (7) A dependent of an alien classified as NATO-1 through NATO-7 
pursuant to Sec. 214.2(n) of this chapter;
    (8) An alien who has filed a complete application for asylum or 
withholding of deportation or removal pursuant to 8 CFR part 208, whose 
application:
    (i) Has not been decided, and who is eligible to apply for 
employment authorization under Sec. 208.7 of this chapter because the 
150-day period set forth in that section has expired. Employment 
authorization may be granted according to the provisions of Sec. 208.7 
of this chapter in increments to be determined by the Commissioner and 
shall expire on a specified date; or
    (ii) Has been recommended for approval, but who has not yet received 
a grant of asylum or withholding or deportation or removal;
    (9) An alien who has filed an application for adjustment of status 
to lawful permanent resident pursuant to part 245 of this chapter. For 
purposes of section 245(c)(8) of the Act, an alien will not be deemed to 
be an ``unauthorized alien'' as defined in section 274A(h)(3) of the Act 
while his or her properly filed Form I-485 application is pending final 
adjudication, if the alien has otherwise obtained permission from the 
Service pursuant to 8 CFR 274a.12 to engage in employment, or if the 
alien

[[Page 738]]

had been granted employment authorization prior to the filing of the 
adjustment application and such authorization does not expire during the 
pendency of the adjustment application. Upon meeting these conditions, 
the adjustment applicant need not file an application for employment 
authorization to continue employment during the period described in the 
preceding sentence;
    (10) An alien who has filed an application for suspension of 
deportation under section 244 of the Act (as it existed prior to April 
1, 1997), cancellation of removal pursuant to section 240A of the Act, 
or special rule cancellation of removal under section 309(f)(1) of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 
enacted as Pub. L. 104-208 (110 Stat. 3009-625) (as amended by the 
Nicaraguan Adjustment and Central American Relief Act (NACARA)), title 
II of Pub. L. 105-100 (111 Stat. 2160, 2193) and whose properly filed 
application has been accepted by the Service or EOIR.
    (11) An alien paroled into the United States temporarily for 
emergency reasons or reasons deemed strictly in the public interest 
pursuant to Sec. 212.5 of this chapter;
    (12)-(13) [Reserved]
    (14) An alien who has been granted deferred action, an act of 
administrative convenience to the government which gives some cases 
lower priority, if the alien establishes an economic necessity for 
employment;
    (15) [Reserved]
    (16) Any alien who has filed an application for creation of record 
of lawful admission for permanent residence pursuant to part 249 of this 
chapter.
    (17) A nonimmigrant visitor for business (B-1) who:
    (i) Is a personal or domestic servant who is accompanying or 
following to join an employer who seeks admission into, or is already 
in, the United States as a nonimmigrant defined under sections 
101(a)(15) (B), (E), (F), (H), (I), (J), (L) or section 214(e) of the 
Act. The personal or domestic servant shall have a residence abroad 
which he or she has no intention of abandoning and shall demonstrate at 
least one year's experience as a personal or domestic servant. The 
nonimmigrant's employer shall demonstrate that the employer/employee 
relationship has existed for at least one year prior to the employer's 
admission to the United States; or, if the employer/employee 
relationship existed for less than one year, that the employer has 
regularly employed (either year-round or seasonally) personal or 
domestic servants over a period of several years preceding the 
employer's admission to the United States;
    (ii) Is a domestic servant of a United States citizen accompanying 
or following to join his or her United States citizen employer who has a 
permanent home or is stationed in a foreign country, and who is visiting 
temporarily in the United States. The employer/employee relationship 
shall have existed prior to the commencement of the employer's visit to 
the United States; or
    (iii) Is an employee of a foreign airline engaged in international 
transportation of passengers freight, whose position with the foreign 
airline would otherwise entitle the employee to classification under 
section 101(a)(15)(E)(i) of the Immigration and Nationality Act, and who 
is precluded from such classification solely because the employee is not 
a national of the country of the airline's nationality or because there 
is no treaty of commerce and navigation in effect between the United 
States and the country of the airline's nationality.
    (18) An alien against whom a final order of deportation or removal 
exists and who is released on an order of supervision under the 
authority contained in section 241(a)(3) of the Act may be granted 
employment authorization in the discretion of the district director only 
if the alien cannot be removed due to the refusal of all countries 
designated by the alien or under section 241 of the Act to receive the 
alien, or because the removal of the alien is otherwise impracticable or 
contrary to the public interest. Additional factors which may be 
considered by the district director in adjudicating the application for 
employment authorization include, but are not limited to, the following:
    (i) The existence of economic necessity to be employed;

[[Page 739]]

    (ii) The existence of a dependent spouse and/or children in the 
United States who rely on the alien for support; and
    (iii) The anticipated length of time before the alien can be removed 
from the United States.
    (19) An alien applying for Temporary Protected Status pursuant to 
section 244 of the Act shall apply for employment authorization only in 
accordance with the procedures set forth in part 244 of this chapter.
    (20) Any alien who has filed a completed legalization application 
pursuant to section 210 of the Act (and part 210 of this chapter).
    (21) A principal nonimmigrant witness or informant in S 
classification, and qualified dependent family members.
    (22) Any alien who has filed a completed legalization application 
pursuant to section 245A of the Act (and part 245a of this chapter). 
Employment authorization shall be granted in increments not exceeding 1 
year during the period the application is pending (including any period 
when an administrative appeal is pending) and shall expire on a 
specified date.
    (23) An Irish peace process cultural and training program visitor 
(Q-2), pursuant to Sec. 214.2(q)(15) of this chapter and 22 CFR 41.57 
and 22 CFR part 139. An alien in this status may only accept employment 
with the employer listed on the Certification Letter issued by the DOS' 
Program Administrator.
    (24) An alien who has filed an application for adjustment pursuant 
to section 1104 of the LIFE Act, Public Law 106-553, and the provisions 
of 8 CFR part 245a, Subpart B of this chapter.
    (25) An immediate family member of a T-1 victim of a severe form of 
trafficking in persons designated as a T-2, T-3 or T-4 nonimmigrant 
pursuant to Sec. 214.11 of this chapter. Aliens in this status shall 
only be authorized to work for the duration of their T nonimmigrant 
status.
    (d) Basic criteria to establish economic necessity. Title 45--Public 
Welfare, Poverty Guidelines, 45 CFR 1060.2 should be used as the basic 
criteria to establish eligibility for employment authorization when the 
alien's economic necessity is identified as a factor. The alien shall 
submit an application for employment authorization listing his or her 
assets, income, and expenses as evidence of his or her economic need to 
work. Permission to work granted on the basis of the alien's application 
for employment authorization may be revoked under Sec. 274a.14 of this 
chapter upon a showing that the information contained in the statement 
was not true and correct.

[52 FR 16221, May 1, 1987]

    Editorial Note: For Federal Register citations affecting Sec. 
274a.12, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



  274a.12, Nt.--Table of Contents




    Effective Date Note: At 73 FR 76914, Dec. 18, 2008, Sec. 274a.12 
was amended by removing the word ``or'' at the end of paragraph (b)(19); 
removing the period at the end of paragraph (b)(20), and adding ``; or'' 
in its place; and by adding a new paragraph (b)(21) effective Jan. 17, 
2009. For the convenience of the user, the added text is set forth as 
follows:



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

                                * * * * *

    (b) * * *
    (21) A nonimmigrant alien within the class of aliens described in 8 
CFR 214.2(h)(1)(ii)(C) who filed an application for an extension of stay 
pursuant to 8 CFR 214.2 during his or her period of admission. Such 
alien is authorized to be employed by a new employer that has filed an 
H-2A petition naming the alien as a beneficiary and requesting an 
extension of stay for the alien for a period not to exceed 120 days 
beginning from the ``Received Date'' on Form I-797 (Notice of Action) 
acknowledging receipt of the petition requesting an extension of stay, 
provided that the employer has enrolled in and is a participant in good 
standing in the E-Verify program, as determined by USCIS in its 
discretion. Such authorization will be subject to any conditions and 
limitations noted on the initial authorization, except as to the 
employer and place of employment. However, if the District Director or 
Service Center director adjudicates the application prior to the 
expiration of this 120-day period and denies the application for 
extension of stay, the employment authorization under this paragraph 
(b)(21) shall automatically terminate upon 15 days after the date of the 
denial decision. The employment authorization

[[Page 740]]

shall also terminate automatically if the employer fails to remain a 
participant in good standing in the E-Verify program, as determined by 
USCIS in its discretion.

                                * * * * *



Sec. 274a.13  Application for employment authorization.

    (a) General. Aliens authorized to be employed under section 
274a.12(a)(3), (a)(4), (a)(6)-(8), (a)(10)-(15), and (a)(20) must file 
an Application for Employment Authorization (Form I-765) in order to 
obtain documentation evidencing this fact.
    (1) Aliens who may apply for employment authorization under Sec. 
274a.12(c) of this part, except for those who may apply under Sec. 
274a.12(c)(8), shall file a Form I-765 with the director having 
jurisdiction over applicant's residence, or the director having 
jurisdiction over the port of entry at which the alien applies, or with 
such other Service office as the Commissioner may designate. The 
approval of applications filed under Sec. 274a.12(c) of this part, 
except for Sec. 274a.12(c)(8), shall be within the discretion of the 
director or such other officer as the Commissioner may designate. Where 
economic necessity has been identified as a factor, the alien must 
provide information regarding his or her assets, income, and expenses in 
accordance with instructions on Form I-765.
    (2) An initial Application for Employment Authorization (Form I-765) 
for asylum applicants under 274a.12(c)(8) of this part shall be filed in 
accordance with instructions on or attached to Form I-765 with the 
appropriate Service Center or with such other Service office as the 
Commissioner may designate. The applicant also must submit a copy of the 
underlying application for asylum or withholding of deportation, 
together with evidence that the application has been filed in accordance 
with Sec. Sec. 208.3 and 208.4 of this chapter. An application for an 
initial employment authorization or for a renewal of employment 
authorization filed in relation to a pending claim for asylum shall be 
adjudicated in accordance with Sec. 208.7 of this chapter. An 
application for renewal or replacement of employment authorization 
submitted in relation to a pending claim for asylum, as provided in 
Sec. 208.7 of this chapter, shall be filed, with fee or application for 
waiver of such fee, in accordance with the instructions on or attached 
to Form I-765 with the appropriate Service Center or with such other 
Service office as the Commissioner may designate.
    (b) Approval of application. If the application is granted, the 
alien shall be notified of the decision and issued an INS employment 
authorization document valid for a specific period and subject to any 
terms and conditions as noted.
    (c) Denial of application. If the application is denied, the 
applicant shall be notified in writing of the decision and the reasons 
for the denial. There shall be no appeal from the denial of the 
application.
    (d) Interim employment authorization. The district director shall 
adjudicate the application within 90 days from the date of receipt of 
the application by the INS, except in the case of an initial application 
for employment authorization under Sec. 274a.12(c)(8), which is 
governed by paragraph (a)(2) of this section, and Sec. 274a.12(c)(9) 
insofar as it is governed by Sec. Sec. 245.13(j) and 245.15(n) of this 
chapter. Failure to complete the adjudication within 90 days will result 
in the grant of an employment authorization document for a period not to 
exceed 240 days. Such authorization shall be subject to any conditions 
noted on the employment authorization document. However, if the director 
adjudicates the application prior to the expiration date of the interim 
employment authorization and denies the individual's employment 
authorization application, the interim employment authorization granted 
under this section shall automatically terminate as of the date of the 
director's adjudication and denial.

[52 FR 16221, May 1, 1987, as amended at 55 FR 25937, June 25, 1990; 56 
FR 41787, Aug. 23, 1991; 59 FR 33905, July 1, 1994; 59 FR 62303, Dec. 5, 
1994; 60 FR 21976, May 4, 1995; 63 FR 39121, July 21, 1998; 64 FR 25773, 
May 12, 1999; 65 FR 15846, Mar. 24, 2000; 72 FR 53042, Sept. 17, 2007]

[[Page 741]]



Sec. 274a.14  Termination of employment authorization.

    (a) Automatic termination of employment authorization. (1) 
Employment authorization granted under Sec. 274a.12(c) of this chapter 
shall automatically terminate upon the occurrence of one of the 
following events:
    (i) The expiration date specified by the Service on the employment 
authorization document is reached;
    (ii) Exclusion or deportation proceedings are instituted (however, 
this shall not preclude the authorization of employment pursuant to 
Sec. 274a.12(c) of this part where appropriate); or
    (iii) The alien is granted voluntary departure.
    (2) Termination of employment authorization pursuant to this 
paragraph does not require the service of a notice of intent to revoke; 
employment authorization terminates upon the occurrence of any event 
enumerated in paragraph (a)(1) of this section.
    However, automatic revocation under this section does not preclude 
reapplication for employment authorization under Sec. 274.12(c) of this 
part.
    (b) Revocation of employment authorization--(1) Basis for revocation 
of employment authorization. Employment authorization granted under 
Sec. 274a.12(c) of this chapter may be revoked by the district 
director:
    (i) Prior to the expiration date, when it appears that any condition 
upon which it was granted has not been met or no longer exists, or for 
good cause shown; or
    (ii) Upon a showing that the information contained in the 
application is not true and correct.
    (2) Notice of intent to revoke employment authorization. When a 
district director determines that employment authorization should be 
revoked prior to the expiration date specified by the Service, he or she 
shall serve written notice of intent to revoke the employment 
authorization. The notice will cite the reasons indicating that 
revocation is warranted. The alien will be granted a period of fifteen 
days from the date of service of the notice within which to submit 
countervailing evidence. The decision by the district director shall be 
final and no appeal shall lie from the decision to revoke the 
authorization.
    (c) Automatic termination of temporary employment authorization 
granted prior to June 1, 1987. (1) Temporary employment authorization 
granted prior to June 1, 1987, pursuant to 8 CFR 274a.12(c) (Sec. 
109.1(b) contained in the 8 CFR edition revised as of January 1, 1987), 
shall automatically terminate on the date specified by the Service on 
the document issued to the alien, or on December 31, 1996, whichever is 
earlier. Automatic termination of temporary employment authorization 
does not preclude a subsequent application for temporary employment 
authorization.
    (2) A document issued by the Service prior to June 1, 1987, that 
authorized temporary employment authorization for any period beyond 
December 31, 1996, is null and void pursuant to paragraph (c)(1) of this 
section. The alien shall be issued a new employment authorization 
document upon application to the Service if the alien is eligible for 
temporary employment authorization pursuant to 274A.12(c).
    (3) No notice of intent to revoke is necessary for the automatic 
termination of temporary employment authorization pursuant to this part.

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



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




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

[[Page 742]]

280.52 Payment of fines.
280.53 Civil monetary penalties inflation adjustment.

    Authority: 8 U.S.C. 1103, 1221, 1223, 1227, 1229, 1253, 1281, 1283, 
1284, 1285, 1286, 1322, 1323, and 1330; 66 Stat. 173, 195, 197, 201, 
203, 212, 219, 221-223, 226, 227, 230; Pub. L. 101-410, 104 Stat. 890, 
as amended by Pub. L. 104-134, 110 Stat. 1321.

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



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

exclusive.

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

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



Sec. 280.2  Special provisions relating to aircraft.

    In any case in which the imposition of a fine is predicated upon an 
alleged violation of a regulation promulgated under authority of section 
239 of the Immigration and Nationality Act, the procedure prescribed in 
this part shall be followed and the aircraft involved shall not be 
granted clearance pending determination of the question of liability to 
the payment of any fine, or while the fine remains unpaid; but clearance 
may be granted prior to the determination of such question upon the 
deposit of a sum sufficient to cover such fine or of a bond with 
sufficient surety to secure the payment thereof, approved by the 
Commisioner. If the alleged violation was by the owner or person in 
command of the aircraft, the penalty provided for shall be a lien 
against the aircraft, which, except as provided in Sec. 280.21, shall 
be seized by the district director or by an immigration officer 
designated by the district director, and placed in the custody of the 
customs officer who is in charge of the port of entry or customs station 
nearest the place of seizure. If the owner or owners of the airport at 
which such aircraft is located are the owners of the seized aircraft, 
the aircraft shall be removed to another suitable place for storage if 
practicable.

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



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

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

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



Sec. 280.4  Data concerning cost of transportation.

    Within five days after request therefor, transportation companies 
shall furnish to the district director or the Associate Commissioner for 
Examinations, or the Director for the National Fines Office pertinent 
information contained in the original transportation contract of all 
rejected aliens whose cases are within the purview of any of the 
provisions of the Immigration and Nationality Act relating to refund of

[[Page 743]]

passage monies, and shall specify the exact amounts paid for 
transportation from the initial point of departure (which point shall be 
indicated) to the foreign port of embarkation, from the latter to the 
port of arrival in the United States and from the port of arrival to the 
inland point of destination, respectively, and also the amount paid for 
headtax, if any.

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



Sec. 280.5  Mitigation or remission of fines.

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

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



Sec. 280.6  Bond to obtain clearance; form.

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

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



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

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

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



Sec. 280.11  Notice of intention to fine; procedure.

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

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



Sec. 280.12  Answer and request or order for interview.

    Within 30 days following the service of the Notice of Intention to 
Fine (which period the district director or the Associate Commissioner 
for Examinations, or the Director for the National Fines Office may 
extend for an

[[Page 744]]

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

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



Sec. 280.13  Disposition of case.

    (a) Allegations admitted or no answer filed. If a request for 
personal appearance is not filed and (1) the answer admits the 
allegations in the notice, or (2) no answer is filed, the district 
director or the Associate Commissioner for Examinations, or the Director 
for the National Fines Office shall enter such order in the case as he 
deems appropriate and no appeal from his decision may be taken.
    (b) Answer filed; personal appearance. Upon receipt of an answer 
asserting a defense to the allegations in the notice without requesting 
a personal appearance, or if a personal appearance is requested or 
directed, the case shall be assigned to an immigration officer. The 
immigration officer shall prepare a report summarizing the evidence and 
containing his findings and recommendation. The record, including the 
report and recommendation of the immigration officer, shall be forwarded 
to the district director or the Associate Commissioner for Examinations, 
or the Director for the National Fines Office. The district director or 
the Associate Commissioner for Examinations, or the Director for the 
National Fines Office shall note on the report of the immigration 
officer whether he approves or disapproves the recommendation of the 
immigration officer. The person shall be informed in writing of the 
decision of the district director or the Associate Commissioner for 
Examinations, or the Director for the National Fines Office and, if his 
decision is that a fine shall be imposed or that the requested 
mitigation or remission shall not be granted, of the reasons for such 
decision. From the decision of the district director or the Associate 
Commissioner for Examinations, or the Director for the National Fines 
Office an appeal may be taken to the Board within 15 days after the 
mailing of the notification of decision as provided in part 3 of this 
chapter.

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



Sec. 280.14  Record.

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



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

    At such time as the decision under this part is final, the regional 
administrative officer shall be furnished a copy of the decision by the 
district director

[[Page 745]]

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

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



Sec. 280.21  Seizure of aircraft.

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

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



Sec. 280.51  Application for mitigation or remission.

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

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



Sec. 280.52  Payment of fines.

    (a) All fines assessed pursuant to sections 231(d); 237(b); 239; 
251(d); 254(a); 255; 256; 271(a); 272, 273 and 274(c) of the Act shall 
be made payable to and collected by the Service.
    (b) All fines collected pursuant to sections 271(a) and 273 of the 
Act shall be deposited in the Immigration User Fee Account established 
in accordance with the provisions of section 286 of the Act.

[[Page 746]]

    (c) From the amounts collected under paragraphs (a) and (b) of this 
section, the increase in penalties collected resulting from the 
amendments made by sections 203(b), 543(a), and 544 of the Immigration 
Act of 1990, shall be credited to the appropriation for activities 
authorized under section 280(b) of the Act.

[56 FR 26020, June 6, 1991]



Sec. 280.53  Civil monetary penalties inflation adjustment.

    (a) In general. In accordance with the requirements of the Federal 
Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 101-410, 104 
Stat. 890, as amended by the Debt Collection Improvement Act of 1996, 
Pub. L. 104-34, 110 Stat. 1321, the civil monetary penalties provided by 
law within the jurisdiction of the Service and listed in paragraph (c) 
of this section are adjusted as set forth in this section, effective for 
violations occurring on or after September 29, 1999.
    (b) Calculation of adjustment. (1) The inflation adjustments 
described in paragraph (c) of this section were determined by increasing 
the maximum civil monetary penalty or the range of minimum and maximum 
civil monetary penalties, as applicable, for each civil monetary penalty 
assessed or enforced by the Service by the cost-of-living adjustment as 
that term is defined by the Federal Civil Penalties Inflation Adjustment 
Act of 1990, Pub. L. 101-410. Any increase so determined was rounded to 
the nearest--
    (i) Multiples of $10 in the case of penalties less than or equal to 
$100;
    (ii) Multiples of $100 in the case of penalties greater than $100 
but less than or equal to $1,000;
    (iii) Multiples of $1,000 in the case of penalties greater than 
$1,000 but less than or equal to $10,000;
    (iv) Multiples of $5,000 in the case of penalties greater than 
$10,000 but less than or equal to $100,000;
    (v) Multiples of $10,000 in the case of penalties greater than 
$100,000 but less than or equal to $200,000; and
    (vi) Multiples of $25,000 in the case of penalties greater than 
$200,000.
    (2) Notwithstanding the provisions of paragraph (b)(1) of this 
section, the initial adjustment for each penalty is capped at 10%.
    (c) Adjustment to penalties. The civil monetary penalties provided 
by law within the jurisdiction of the Service, as set forth in this 
paragraph (c)(1) through (9), are adjusted in accordance with the 
inflation adjustment procedures prescribed in section 5 of the Federal 
Civil Monetary Penalties Inflation Adjustment Act of 1990, Pub. L. 101-
410, effective on or after the September 29, 1999 as follows:
    (1) Section 231(d) of the Act, Lists of Aliens and Citizen 
Passengers Arriving or Departing; Record of Resident Aliens and Citizens 
Leaving Permanently for Foreign Country: from $300 to $330.
    (2) Section 234 of the Act, Designation of Ports of Entry for Aliens 
Arriving by Civil Aircraft: from $2,000 to $2,200.
    (3) Section 251(d) of the Act, List of Alien Crewmen; Reports of 
Illegal Landings: from $200 to $220 for each alien not reported in 
accordance with Sec. 251; and from $5,000 to $5,500 for use of alien 
crewman for longshore work in violation of section 251(d).
    (4) Section 254(a) of the Act, Control of Alien Crewman: from $500 
minimum/$3,000 maximum to $550 minimum/$3,300 maximum.
    (5) Section 255 of the Act, Employment on Passenger Vessels of 
Aliens Afflicted with Certain Disabilities: from $1,000 to $1,100.
    (6) Section 256 of the Act, Discharge of Alien Crewman: from $1,500 
minimum/$3,000 maximum to $1,500 minimum/$3,300 maximum.
    (7) Section 257 of the Act, Bringing Alien Crewmen Into United 
States with Intent to Evade Immigration Laws: from a $10,000 maximum to 
a $11,000 maximum.
    (8) Section 271(a) of the Act, Prevention of Unauthorized Landing of 
Aliens: from $3,000 to $3,300.
    (9) Section 272(a) of the Act, Bringing in Aliens Subject to 
Exclusion on a Health-Related Ground: from $3,000 to $3,300.
    (10) Section 273(b) of the Act, Unlawful Bringing of Aliens Into 
United States: from $3,000 to $3,300.
    (d) Identification of sections requiring no adjustment to penalties. 
The civil

[[Page 747]]

monetary penalties provided by law within the jurisdiction of the 
Service, as set forth below in paragraphs (d)(1) through (7) of this 
section require no adjustment:
    (1) Section 240B(d) of the Act, Voluntary Departure.
    (2) Section 243(c)(1)(A) and (B) of the Act, Penalties Related to 
Removal.
    (3) [Reserved]
    (4) Section 274D of the Act, Penalties for Failure to Depart.
    (5) Section 275(b) of the Act, Entry of Alien at Improper Time or 
Place.

[64 FR 47102, Aug. 30, 1999, as amended at 73 FR 10136, Feb. 26, 2008]



PART 286_IMMIGRATION USER FEE--Table of Contents




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

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

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



Sec. 286.1  Definitions.

    The following definitions apply to the following terms in this part:
    (a) The term adjacent islands means Anguilla, Antigua, Aruba, 
Bahamas, Barbados, Barbuda, Bermuda, Bonaire, British Virgin Islands, 
Cayman Islands, Cuba, Curacao, Dominica, the Dominican Republic, 
Grenada, Guadeloupe, Haiti, Jamaica, Marie-Galante, Martinique, 
Miquelon, Montserrat, Saba, Saint Barth[eacute]lemy, Saint Christopher, 
Saint Eustatius, Saint Kitts-Nevis, Saint Lucia, Saint Maarten, Saint 
Martin, Saint Pierre, Saint Vincent and Grenadines, Trinidad and Tobago, 
Turks and Caicos Islands, and other British, French and Netherlands 
territory or possessions bordering on the Caribbean Sea.
    (b) The term collector means an air or sea carrier, travel agent, 
tour wholesaler, or other entity which collects, but may or may not be 
required to remit, fees pursuant to this part.
    (c) The term commercial aircraft means any civilian aircraft being 
used to transport persons or property for compensation or hire.
    (d) The term commercial vessel means any civilian vessel being used 
to transport persons or property for compensation or hire.
    (e) The term Assistant Commissioner, Office of Financial Management 
means the Office of the Assistant Commissioner, Financial Management, 
Immigration and Naturalization Service, Room 6307, 425 I Street NW., 
Washington, DC 20536.
    (f) The term fee means the immigration user fee.
    (g) The term port of entry means a port or place designated by the 
Commissioner at which a person may apply for admission into the United 
States.
    (h) The term remitter means an air or sea carrier, travel agent, 
tour wholesaler, or other entity which collects, including receipt of 
fees collected by collectors which are not required to remit fees, and 
remits fees pursuant to this part.
    (i) The term territories or possessions of the United States means 
American Samoa, Baker Island, Howland Island, Jarvis Island, Johnston 
Atoll, Kingman Reef, Midway, the Northern Mariana Islands, Swains 
Island, Palmyra Island, and Wake Island.
    (j) The term document for transportation means any document accepted 
by a carrier in return for transportation.
    (k) The term United States, when used in a geographical sense, means 
the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and 
the Virgin Islands of the United States.

[53 FR 5757, Feb. 26, 1988, as amended at 59 FR 49349, Sept. 28, 1994; 
63 FR 51272, Sept. 25, 1998]



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

commercial vessels.

    (a) A fee, in the amount prescribed in section 286(d) of the Act, 
per individual

[[Page 748]]

is charged and collected by the Commissioner for the immigration 
inspection of each passenger aboard a commercial aircraft or commercial 
vessel, arriving at a port-of-entry in the United States, or for the 
preinspection of a passenger in a place outside the United States prior 
to such arrival, except as provided in Sec. 286.3.
    (b) A fee, in the amount prescribed in section 286(e)(3) of the Act, 
per individual, is charged and collected by the Commissioner for the 
immigration inspection at a port-of-entry in the United States, or for 
the preinspection in a place outside the United States of each 
commercial vessel passenger whose journey originated in the United 
States, Canada, Mexico, territories or possessions of the United States, 
or adjacent islands, except as provided in Sec. 286.3. All tickets or 
documents for transportation on voyages that are booked on or after 
February 27, 2003, will be subject to this immigration user fee.
    (c) Each commercial aircraft and vessel carrier or ticket-selling 
agent whose monthly collections in any month exceed $50,000 shall submit 
a summary statement showing the amount of user fees collected that 
month. The summary statement is due on the last business day of the 
following month. This information shall be forwarded to the Immigration 
and Naturalization Service, Chief, Analysis and Formulation Branch, 425 
I Street, NW., Room 6307, Washington, DC 20536. For the months of 
December, March, June, and August, the quarterly remittance and 
statement required by Sec. 286.5 will serve as the monthly report for 
those months. Therefore, a monthly report is required for all other 
months in which monthly collections exceed $50,000.

[59 FR 49348, Sept. 28, 1994, as amended at 63 FR 51272, Sept. 25, 1998; 
67 FR 15334, Apr. 1, 2002; 68 FR 4092, Jan. 28, 2003]



Sec. 286.3  Exceptions.

    The fees set forth in Sec. Sec. 286.2(a) and 286.2(b) shall not be 
charged or collected from passengers who fall within any one of the 
following categories:
    (a) Persons arriving at designated ports-of-entry by the following 
vessels, when operating on a regular schedule: Great Lakes international 
ferries or Great Lakes vessels on the Great Lakes and connecting 
waterways;
    (b) Persons directly connected with the operation, navigation, or 
business of the commercial aircraft or commercial vessel including 
working crew, deadheading crew, U.S. Federal Aviation Administration 
inspectors, sky marshals, and commercial airline or commercial vessel 
employees on official business;
    (c) Persons who are listed as foreign diplomats on the accreditation 
list maintained by the U.S. Department of State or who are in possession 
of a diplomatic visa (A-1 and 2, G-1 thru 4) valid for entry into the 
United States;
    (d) Persons who are passengers on any commercial aircraft or 
commercial vessel owned or operated exclusively by the Government of the 
United States or a foreign government, including any agency or political 
subdivision thereof, so long as that aircraft or vessel is not 
transporting any persons or property for commercial purposes.
    (e) Persons who are passengers on commercial aircraft or commercial 
vessels under contract to the U.S. Department of Defense, if they have 
been preinspected outside of the United States under a joint Service and 
U.S. Department of Defense military inspection program;
    (f) Persons arriving on an aircraft or vessel due to an emergency or 
forced landing when the original destination of the aircraft or vessel 
was not the United States; and
    (g) Persons transiting the United States who are not inspected by 
the Service. Transit without visa passengers who are inspected by the 
Service are not excepted from payment of the fee under this section.

[53 FR 5757, Feb. 26, 1988, as amended at 59 FR 49348, Sept. 28, 1994; 
68 FR 4092, Jan. 28, 2003]



Sec. 286.4  Fee collection responsibility.

    (a) It is the responsibility of the air or sea carriers, travel 
agents, tour wholesalers, or other parties, which issue tickets or 
documents for transportation on or after December 1, 1986, to collect 
the fee set forth in Sec. 286.2 of

[[Page 749]]

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

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



Sec. 286.5  Remittance and statement procedures.

    (a) The air or sea carrier whose ticket stock or document for 
transportation reflects collection of the fee is responsible for 
remittance of the fee to the Service. The travel agent, tour wholesaler, 
or other entity, which issues their own non-carrier related ticket or 
document for transportation to an air or sea passenger who is not 
excepted from the fee pursuant to Sec. 286.3 of this part, is 
responsible for remittance of the fee to the Service, unless by contract 
the carrier will remit the fee.
    (b)(1) Fee remittances shall be sent to the Immigration and 
Naturalization Service, at a designated Treasury depository, for receipt 
no later than 31 days after the close of the calendar quarter in which 
the fees are collected, except the fourth quarter payment for fees 
collected shall be made on the date that is 10 days before the end of 
the U.S. Government's fiscal year, and the first quarter payment shall 
include any collections made in the preceding quarter that were not 
remitted with the previous payment. The fourth quarter payment shall 
include collections for the months of July and August. The fiscal year 
referenced is the U.S. Government's fiscal year which begins on October 
1 and ends on September 30.
    (2) Late payments will be subject to interest, penalty, and handling 
charges as provided in the Debt Collection Act of 1982 (31 U.S.C. 3717). 
Refunds by a remitter of fees collected in conjunction with unused 
tickets or documents for transportation shall be netted against the next 
subsequent remittance.
    (c) Along with the remittance, as set forth in paragraph (b) of this 
section, each remitter making such remittance shall attach a statement 
which sets forth the following:
    (1) Name and address;
    (2) Taxpayer identification number;
    (3) Calendar quarter covered by the payment;
    (4) Interest and penalty charges; and
    (5) Total amount collected and remitted.
    (d) Remittances shall be made in U.S. dollars by check or money 
order through a U.S. bank, to Assistant Commissioner, Office of 
Financial Management, INS.
    (e) Annually, each U.S. based remitter, which retains an independent 
accountant and which remits $10,000 or more in fees in any one calendar 
quarter, shall submit to the Assistant Commissioner, Financial 
Management a report from the independent accountant in accordance with 
the Statement on Standards for Attestation Engagements on the 
application of Passenger User Fee Collection and Remittance Procedures 
established by the American Institute of Certified Public Accountants 
and the Service, to the Assistant Commissioner, Financial Management. 
Each foreign-based remitter, which retains an independent accountant and 
which remits $10,000 or more in fees in any one calendar quarter, shall 
submit a similar report to the Assistant Commissioner, Financial 
Management from

[[Page 750]]

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

[53 FR 5757, Feb. 26, 1988, as amended at 55 FR 729, Jan. 9, 1990; 59 FR 
49348, 49349, Sept. 28, 1994; 63 FR 51272, Sept. 25, 1998]



Sec. 286.6  Maintenance of records.

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

[53 FR 5757, Feb. 26, 1988, as amended at 59 FR 49349, Sept. 28, 1994; 
63 FR 51272, Sept. 25, 1998]



Sec. 286.7  Penalties.

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



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

fee for inspection services.

    Under the provisions of section 286(q) of the Act, the Service may 
establish pilot programs at one or more land border ports-of-entry to 
charge fees for immigration inspection services to be collected by the 
Commissioner. Individual ports-of-entry selected by the Commissioner to 
participate in such pilot programs may charge a fee to enhance 
inspection services and to recover the cost of:
    (a) Hiring additional immigration inspectors, including all 
associated personnel costs such as salary, benefits, and overtime;
    (b) Expansion, operation, and maintenance of information systems for 
nonimmigrant control;
    (c) Construction costs, including those associated with adding new 
primary traffic lanes (with the concurrence of the General Services 
Administration);
    (d) Procuring detection devices and conducting training to identify 
fraudulent documents used by applicants for entry to the United States;
    (e) Other administrative costs associated with the PORTPASS Program; 
and

[[Page 751]]

    (f) Costs associated with the administration of the Land Border 
Inspection Fee account.

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



Sec. 286.9  Fee for processing applications and issuing documentation at land 

border Ports-of-Entry.

    (a) General. A fee may be charged and collected by the Commissioner 
for the processing and issuance of specified Service documents at land 
border Ports-of-Entry. These fees, as specified in Sec. 103.7(b)(1) of 
this chapter, shall be dedicated to funding the cost of providing 
application-processing services at land border ports.
    (b) Forms for which a fee may be charged. (1) A nonimmigrant alien 
who is required to be issued, or requests to be issued, Form I-94, 
Arrival/Departure Record, for admission at a land border Port-of-Entry 
must remit the required fee for issuance of Form I-94 upon determination 
of admissibility.
    (2) A nonimmigrant alien applying for admission at a land border 
Port-of-Entry as a Visa Waiver Pilot Program applicant pursuant to Sec. 
217.2(c) or Sec. 217.3(c) of this chapter must remit the required fee 
for issuance of Form I-94W upon determination of admissibility.
    (3) A Mexican national in possession of a valid Form DSP-150, B-1/B-
2 Visa and Border Crossing Card, issued by the DOS, or a passport and 
combined B-1/B-2 visa and non-biometric BCC (or similar stamp in a 
passport) issued by the DOS, who is required to be issued Form I-94, 
Arrival/Departure Record, pursuant to Sec. 235.1(f) of this chapter, 
must remit the required fee for issuance of Form I-94 upon determination 
of admissibility.
    (4) A citizen or lawful permanent resident alien of the United 
States or a Canadian citizen or permanent resident of Canada who is a 
national of a designated Visa Waiver Program country listed in Sec. 
217.2(a) of this chapter who requests Form I-68, Canadian Border Boat 
Landing Permit, pursuant to Sec. 235.1(e) of this chapter, for entry to 
the United States from Canada as an eligible pleasure boater on a 
designated body of water, must remit the required fee at the time of 
application for Form I-68.

[60 FR 40069, Aug. 7, 1995, as amended at 62 FR 10390, Mar. 6, 1997; 67 
FR 71450, Dec. 2, 2002; 68 FR 5194, Jan. 31, 2003]



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




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

    Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357; 
Homeland Security Act of 2002, Pub. L. 107-296 (6 U.S.C. 1, et seq.); 8 
CFR part 2.



Sec. 287.1  Definitions.

    (a)(1) External boundary. The term external boundary, as used in 
section 287(a)(3) of the Act, means the land boundaries and the 
territorial sea of the United States extending 12 nautical miles from 
the baselines of the United States determined in accordance with 
international law.
    (2) Reasonable distance. The term reasonable distance, as used in 
section 287(a) (3) of the Act, means within 100 air miles from any 
external boundary of the United States or any shorter distance which may 
be fixed by the chief patrol agent for CBP, or the special agent in 
charge for ICE, or, so far as the power to board and search aircraft is 
concerned any distance fixed pursuant to paragraph (b) of this section.
    (b) Reasonable distance; fixing by chief patrol agents and special 
agents in charge. In fixing distances not exceeding 100 air miles 
pursuant to paragraph (a) of this section, chief patrol agents and 
special agents in charge shall take into consideration topography, 
confluence of arteries of transportation

[[Page 752]]

leading from external boundaries, density of population, possible 
inconvenience to the traveling public, types of conveyances used, and 
reliable information as to movements of persons effecting illegal entry 
into the United States: Provided, That whenever in the opinion of a 
chief patrol agent or special agent in charge a distance in his or her 
sector or district of more than 100 air miles from any external boundary 
of the United States would because of unusual circumstances be 
reasonable, such chief patrol agent or special agent in charge shall 
forward a complete report with respect to the matter to the Commissioner 
of CBP, or the Assistant Secretary for ICE, as appropriate, who may, if 
he determines that such action is justified, declare such distance to be 
reasonable.
    (c) Patrolling the border. The phrase patrolling the border to 
prevent the illegal entry of aliens into the United States as used in 
section 287 of the Immigration and Nationality Act means conducting such 
activities as are customary, or reasonable and necessary, to prevent the 
illegal entry of aliens into the United States.
    (d) Arrested by federal, state, or local law enforcement official. 
The term arrested, as used in section 287(d) of the Act (as amended by 
section 1701 (Subtitle M) of the Anti-Drug Abuse Act of 1986, Pub. L. 
99-509), means that an alien has been--
    (1) Physically taken into custody for a criminal violation of the 
controlled substance laws; and
    (2) Subsequently booked, charged or otherwise officially processed; 
or
    (3) Provided an initial appearance before a judicial officer where 
the alien has been informed of the charges and the right to counsel.
    (e) Law enforcement or other official. The phrase law enforcement 
official (or other official), as used in section 287(d) of the Act, 
means an officer or employee of an agency engaged in the administration 
of criminal justice pursuant to statute or executive order, including 
(1) courts; (2) a government agency or component which performs the 
administration of criminal justice as defined in 28 CFR part 20 
including performance of any of the following activities: detection, 
apprehension, detention, pretrial release, post-trial release, 
prosecution, adjudication, correctional supervision, or rehabilitation 
of accused persons or criminal offenders.
    (f) Controlled substance. The term controlled substance, as used in 
section 287(d)(3) of the Act, shall mean the same as that referenced in 
the Controlled Substances Act, 21 U.S.C. 801 et seq., and shall include 
any substance contained in Schedules I through V of 21 CFR 1308.1 et 
seq. For the purposes of this chapter, the term controlled substance 
includes controlled substance analogues as defined in 21 U.S.C. 802(23) 
and 813.
    (g) Basic immigration law enforcement training. The phrase basic 
immigration law enforcement training, as used in Sec. Sec. 287.5 and 
287.8, means the successful completion of one of the following courses 
of training provided at the Immigration Officer Academy or Border Patrol 
Academy: Immigration Officer Basic Training Course after 1971; Border 
Patrol Basic Training Course after 1950; Immigration Detention 
Enforcement Officer Basic Training Course after 1977; and Immigration 
Customs Enforcement Special Agent Training, after 2002; or training 
substantially equivalent thereto as determined by the Commissioner of 
CBP or the Assistant Secretary for ICE with respect to personnel in 
their respective bureaus. The phrase basic immigration law enforcement 
training also means the successful completion of the Other than 
Permanent Full-Time (OTP) Immigration Inspector Basic Training Course 
after 1991 in the case of individuals who are OTP immigration 
inspectors. Conversion by OTP immigration to any other status requires 
training applicable to that position.
    (h) References to specific titles of officers mean all individuals 
holding such positions and any individual acting in such position.
    (i) Nothing in this part limits the authority of any DHS officers to 
act pursuant to any authorities that they may otherwise possess.

[22 FR 9808, Dec. 6, 1957, as amended at 29 FR 13244, Sept. 24, 1964; 53 
FR 9283, Mar. 22, 1988; 57 FR 47258, Oct. 15, 1992; 59 FR 42415, Aug. 
17, 1994; 68 FR 35276, June 13, 2003]

[[Page 753]]



Sec. 287.2  Disposition of criminal cases.

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

[59 FR 42415, Aug. 17, 1994, as amended at 68 FR 35276, June 13, 2003]



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

    (a) Examination. An alien arrested without a warrant of arrest under 
the authority contained in section 287(a)(2) of the Act will be examined 
by an officer other than the arresting officer. If no other qualified 
officer is readily available and the taking of the alien before another 
officer would entail unnecessary delay, the arresting officer, if the 
conduct of such examination is a part of the duties assigned to him or 
her, may examine the alien.
    (b) Determination of proceedings. If the examining officer is 
satisfied that there is prima facie evidence that the arrested alien was 
entering, attempting to enter, or is present in the United States in 
violation of the immigration laws, the examining officer will refer the 
case to an immigration judge for further inquiry in accordance with 8 
CFR parts 235, 239, or 240, order the alien removed as provided for in 
section 235(b)(1) of the Act and Sec. 235.3(b) of this chapter, or take 
whatever other action may be appropriate or required under the laws or 
regulations applicable to the particular case.
    (c) Notifications and information. Except in the case of an alien 
subject to the expedited removal provisions of section 235(b)(1)(A) of 
the Act, an alien arrested without warrant and placed in formal 
proceedings under section 238 or 240 of the Act will be advised of the 
reasons for his or her arrest and the right to be represented at no 
expense to the Government. The examining officer will provide the alien 
with a list of the available free legal services provided by 
organizations and attorneys qualified under 8 CFR part 1003 and 
organizations recognized under Sec. 292.2 of this chapter or 8 CFR 
1292.2 that are located in the district where the hearing will be held. 
The examining officer shall note on Form I-862 that such a list was 
provided to the alien. The officer will also advise the alien that any 
statement made may be used against him or her in a subsequent 
proceeding.
    (d) Custody procedures. Unless voluntary departure has been granted 
pursuant to subpart C of 8 CFR part 240, a determination will be made 
within 48 hours of the arrest, except in the event of an emergency or 
other extraordinary circumstance in which case a determination will be 
made within an additional reasonable period of time, whether the alien 
will be continued in custody or released on bond or recognizance and 
whether a notice to appear and warrant of arrest as prescribed in 8 CFR 
parts 236 and 239 will be issued.

[62 FR 10390, Mar. 6, 1997, as amended at 66 FR 48335, Sept. 20, 2001; 
68 FR 35276, June 13, 2003]



Sec. 287.4  Subpoena.

    (a) Who may issue--(1) Criminal or civil investigations. All 
District Directors; Deputy District Directors; Chief Patrol Agents; 
Deputy Chief Patrol Agents; Assistant Chief Patrol Agents; Officers in 
Charge; Patrol Agents in Charge; Assistant Patrol Agents in Charge; 
Field Operations Supervisors; Special Operations Supervisors; 
Supervisory Border Patrol Agents; Assistant District Directors, 
Investigations; Supervisory Criminal Investigators, Anti-Smuggling; 
Regional Directors; Service Center Directors; Assistant District 
Directors, Examinations; Director, Detention and Removal; Special Agents 
in Charge; all Special Agents in supervisory positions; Field Office 
Directors; Deputy Field Office Directors; and any other immigration 
officer who has been

[[Page 754]]

expressly delegated such authority as provided by 8 CFR 2.1 may issue a 
subpoena requiring the production of records and evidence for use in 
criminal or civil investigations.
    (2) Proceedings other than naturalization proceedings--(i) Prior to 
commencement of proceedings. All District Directors; Deputy District 
Directors; Chief Patrol Agents; Deputy Chief Patrol Agents; Officers in 
Charge; Director, Detention and Removal; Special Agents in Charge; 
Deputy Special Agents in Charge; Resident Agents in Charge; District 
Field Officers; Field Office Directors; Deputy Field Office Directors; 
and Port Directors may issue a subpoena requiring the attendance of 
witnesses or the production of documentary evidence, or both, for use in 
any proceeding under this chapter I, other than under 8 CFR part 335, or 
any application made ancillary to the proceeding.
    (ii) Subsequent to commencement of any immigration court proceeding. 
Procedures for the issuance of a subpoena after the commencement of 
proceedings, in cases other than those arising under part 335 of this 
chapter, are set forth at 8 CFR 1003.35(b) and 1287.4.
    (b) Form of subpoena. All subpoenas shall be issued on Form I-138.
    (1) Criminal or civil investigations. The subpoena shall command the 
person or entity to which it is addressed to attend and to give 
testimony at a time or place specified. A subpoena shall also command 
the person or entity to which it is addressed to produce the books, 
papers, or documents specified in the subpoena. A subpoena may direct 
the taking of a deposition before an immigration officer of the 
Department.
    (2) Proceedings other than naturalization proceedings. Every 
subpoena issued under the provisions of this section shall state the 
title of the proceeding and shall command the person to whom it is 
directed to attend and to give testimony at a time and place specified. 
A subpoena shall also command the person to whom it is directed to 
produce the books, papers, or documents specified in the subpoena. A 
subpoena may direct the taking of a deposition before an immigration 
officer of the Department.
    (c) Service. A subpoena issued under this section may be served by 
any person, over 18 years of age not a party to the case, designated to 
make such service by the District Director; Deputy District Director; 
Chief Patrol Agent; Deputy Chief Patrol Agent; Assistant Chief Patrol 
Agent; Patrol Agent in Charge; Officer in Charge; Assistant District 
Director, Investigations; Supervisory Criminal Investigator, Anti-
Smuggling; Regional Director; Special Agent in Charge; Deputy Special 
Agent in Charge; Resident Agent in Charge; District Field Officer; Field 
Office Director; Deputy Field Office Director; Supervisory Deportation 
Officer; Supervisory Detention and Deportation Officer; and Port 
Director having administrative jurisdiction over the office in which the 
subpoena is issued. The Director, Detention and Removal, shall also have 
the authority to make such designation. Service of the subpoena shall be 
made by delivering a copy thereof to the person named therein and by 
tendering to him/her the fee for one day's attendance and the mileage 
allowed by law by the United States District Court for the district in 
which the testimony is to be taken. When the subpoena is issued on 
behalf of the Department, fee and mileage need not be tendered at the 
time of service. A record of such service shall be made and attached to 
the original copy of the subpoena.
    (d) Invoking aid of court. If a witness neglects or refuses to 
appear and testify as directed by the subpoena served upon him or her in 
accordance with the provisions of this section, the officer or 
immigration judge issuing the subpoena shall request the United States 
Attorney for the district in which the subpoena was issued to report 
such neglect or refusal to the United States District Court and to 
request such court to issue an order requiring the witness to appear and 
testify and to produce the books, papers, or documents designated in the 
subpoena.

[50 FR 30134, July 24, 1985; 50 FR 47205, Nov. 15, 1985, as amended at 
60 FR 56937, Nov. 13, 1995; 62 FR 10390, Mar. 6, 1997; 67 FR 39260, June 
7, 2002; 68 FR 35276, June 13, 2003]

[[Page 755]]



Sec. 287.5  Exercise of power by immigration officers.

    (a) Power and authority to interrogate and administer oaths. Any 
immigration officer as defined in 8 CFR 103.1(b) is hereby authorized 
and designated to exercise anywhere in or outside the United States the 
power conferred by:
    (1) Section 287(a)(1) of the Act to interrogate, without warrant, 
any alien or person believed to be an alien concerning his or her right 
to be, or to remain, in the United States, and
    (2) Section 287(b) of the Act to administer oaths and to take and 
consider evidence concerning the privilege of any person to enter, 
reenter, pass through, or reside in the United States; or concerning any 
matter which is material or relevant to the enforcement of the Act and 
the administration of the immigration and naturalization functions of 
the Department.
    (b) Power and authority to patrol the border. The following 
immigration officers who have successfully completed basic immigration 
law enforcement training are hereby authorized and designated to 
exercise the power to patrol the border conferred by section 287(a)(3) 
of the Act:
    (1) Border patrol agents, including aircraft pilots;
    (2) Special agents;
    (3) Immigration inspectors (seaport operations only);
    (4) Adjudications officers and deportation officers when in the 
uniform of an immigration inspector and performing inspections or 
supervising other immigration inspectors performing inspections (seaport 
operations only);
    (5) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (6) Immigration officers who need the authority to patrol the border 
under section 287(a)(3) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner of CBP, or the Assistant Secretary for ICE.
    (c) Power and authority to arrest--(1) Arrests of aliens under 
section 287(a)(2) of the Act for immigration violations. The following 
immigration officers who have successfully completed basic immigration 
law enforcement training are hereby authorized and designated to 
exercise the arrest power conferred by section 287(a)(2) of the Act and 
in accordance with 8 CFR 287.8(c):
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Immigration inspectors;
    (v) Adjudications officers;
    (vi) Immigration enforcement agents;
    (vii) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (viii) Immigration officers who need the authority to arrest aliens 
under section 287(a)(2) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner of CBP, the Assistant Secretary for ICE, or 
the Director of the BCIS.
    (2) Arrests of persons under section 287(a)(4) of the Act for 
felonies regulating the admission or removal of aliens. The following 
immigration officers who have successfully completed basic immigration 
law enforcement training are hereby authorized and designated to 
exercise the arrest power conferred by section 287(a)(4) of the Act and 
in accordance with 8 CFR 287.8(c):
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Immigration inspectors;
    (v) Adjudications officers;
    (vi) Immigration enforcement agents;
    (vii) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (viii) Immigration officers who need the authority to arrest persons 
under section 287(a)(4) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner of CBP, the Assistant Secretary for ICE, or 
the Director of the BCIS.
    (3) Arrests of persons under section 287(a)(5)(A) of the Act for any 
offense against the United States. The following immigration officers 
who have

[[Page 756]]

successfully completed basic immigration law enforcement training are 
hereby authorized and designated to exercise the arrest power conferred 
by section 287(a)(5)(A) of the Act and in accordance with 8 CFR 
287.8(c):
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Immigration inspectors (permanent full-time immigration 
inspectors only);
    (v) Adjudications officers when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (vi) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (vii) Immigration officers who need the authority to arrest persons 
under section 287(a)(5)(A) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner of CBP, or the Assistant Secretary for ICE.
    (4) Arrests of persons under section 287(a)(5)(B) of the Act for any 
felony. (i) Section 287(a)(5)(B) of the Act authorizes designated 
immigration officers, as listed in paragraph (c)(4)(iii) of this 
section, to arrest persons, without warrant, for any felony cognizable 
under the laws of the United States if:
    (A) The immigration officer has reasonable grounds to believe that 
the person to be arrested has committed or is committing such a felony;
    (B) The immigration officer is performing duties relating to the 
enforcement of the immigration laws at the time of the arrest;
    (C) There is a likelihood of the person escaping before a warrant 
can be obtained for his or her arrest; and
    (D) The immigration officer has been certified as successfully 
completing a training program that covers such arrests and the standards 
with respect to the immigration enforcement activities of the Department 
as defined in 8 CFR 287.8.
    (ii) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the arrest power conferred by 
section 287(a)(5)(B) of the Act and in accordance with 8 CFR 287.8(c):
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Immigration inspectors (permanent full-time immigration 
inspectors only);
    (E) Adjudications officers when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (F) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (G) Immigration officers who need the authority to arrest persons 
under section 287(a)(5)(B) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner of CBP or the Assistant Secretary for ICE.
    (iii) Notwithstanding the authorization and designation set forth in 
paragraph (c)(4)(ii) of this section, no immigration officer is 
authorized to make an arrest for any felony under the authority of 
section 287(a)(5)(B) of the Act until such time as he or she has been 
certified by the Director of Training as successfully completing a 
training course encompassing such arrests and the standards for 
enforcement activities as defined in 8 CFR 287.8. Such certification 
shall be valid for the duration of the immigration officer's continuous 
employment, unless it is suspended or revoked by the Commissioner of CBP 
or the Assistant Secretary for ICE, or their respective designees, for 
just cause.
    (5) Arrests of persons under section 274(a) of the Act who bring in, 
transport, or harbor certain aliens, or induce them to enter.
    (i) Section 274(a) of the Act authorizes designated immigration 
officers, as listed in paragraph (c)(5)(ii) of this section, to arrest 
persons who bring in, transport, or harbor aliens, or induce them to 
enter the United States in violation of law. When making an arrest,

[[Page 757]]

the designated immigration officer shall adhere to the provisions of the 
enforcement standard governing the conduct of arrests in 8 CFR 287.8(c).
    (ii) The following immigration officers who have successfully 
completed basic immigration law enforcement training are authorized and 
designated to exercise the arrest power conferred by section 274(a) of 
the Act:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Immigration inspectors;
    (E) Adjudications officers when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (F) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (G) Immigration officers who need the authority to arrest persons 
under section 274(a) of the Act in order to effectively accomplish their 
individual missions and who are designated, individually or as a class, 
by the Commissioner of CBP or the Assistant Secretary for ICE.
    (6) Custody and transportation of previously arrested persons. In 
addition to the authority to arrest pursuant to a warrant of arrest in 
paragraph (e)(3)(iv) of this section, detention enforcement officers and 
immigration enforcement agents who have successfully completed basic 
immigration law enforcement training are hereby authorized and 
designated to take and maintain custody of and transport any person who 
has been arrested by an immigration officer pursuant to paragraphs 
(c)(1) through (c)(5) of this section.
    (d) Power and authority to conduct searches. The following 
immigration officers who have successfully completed basic immigration 
law enforcement training are hereby authorized and designated to 
exercise the power to conduct searches conferred by section 287(c) of 
the Act:
    (1) Border patrol agents, including aircraft pilots;
    (2) Special agents;
    (3) Deportation officers;
    (4) Immigration inspectors;
    (5) Adjudications officers;
    (6) Immigration enforcement agents;
    (7) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (8) Immigration officers who need the authority to conduct searches 
under section 287(c) of the Act in order to effectively accomplish their 
individual missions and who are designated, individually or as a class, 
by the Commissioner of CBP, the Assistant Secretary for ICE, or the 
Director of the BCIS.
    (e) Power and authority to execute warrants--(1) Search warrants. 
The following immigration officers who have successfully completed basic 
immigration law enforcement training are hereby authorized and 
designated to exercise the power conferred by section 287(a) of the Act 
to execute a search warrant:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Immigration enforcement agents;
    (v) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph, 
and
    (vi) Immigration officers who need the authority to execute search 
warrants under section 287(a) of the Act in order to effectively 
accomplish their individual missions and who are designated, 
individually or as a class, by the Commissioner of CBP or the Assistant 
Secretary for ICE.
    (2) Issuance of arrest warrants for immigration violations. A 
warrant of arrest may be issued by any of the following immigration 
officials who have been authorized or delegated such authority:
    (i) District directors (except foreign);
    (ii) Deputy district directors (except foreign);
    (iii) Assistant district directors for investigations;
    (iv) Deputy assistant district directors for investigations;
    (v) Assistant district directors for deportation;
    (vi) Deputy assistant district directors for deportation;
    (vii) Assistant district directors for examinations;

[[Page 758]]

    (viii) Deputy assistant district directors for examinations;
    (ix) Officers in charge (except foreign);
    (x) Assistant officers in charge (except foreign);
    (xi) Chief patrol agents;
    (xii) Deputy chief patrol agents;
    (xiii) Assistant chief patrol agents;
    (xiv) Patrol agents in charge;
    (xv) Assistant patrol agents in charge;
    (xvi) Field operations supervisors;
    (xvii) Special operations supervisors;
    (xviii) Supervisory border patrol agents;
    (xix) The Assistant Commissioner, Investigations;
    (xx) Institutional Hearing Program directors;
    (xxi) Area port directors;
    (xxii) Port directors;
    (xxiii) Deputy port directors;
    (xxiv) Assistant Area port directors;
    (xxv) Supervisory deportation officers;
    (xxvi) Supervisory detention and deportation officers;
    (xxvii) Group Supervisors;
    (xxviii) Director, Office of Detention and Removal Operations;
    (xxix) Special Agents in Charge;
    (xxx) Deputy Special Agents in Charge;
    (xxxi) Associate Special Agents in Charge;
    (xxxii) Assistant Special Agents in Charge;
    (xxxiii) Resident Agents in Charge;
    (xxxiv) Field Office Directors;
    (xxxv) Deputy Field Office Directors;
    (xxxvi) District Field Officers;
    (xxxvii) Supervisory district adjudications officers;
    (xxxviii) Supervisory asylum officers;
    (xxxix) Supervisory special agents;
    (xl) Director of investigations;
    (xli) Directors or officers in charge of detention facilities;
    (xlii) Directors of field operations;
    (xliii) Deputy or assistant directors of field operations;
    (xliv) Unit Chief, Law Enforcement Support Center;
    (xlv) Section Chief, Law Enforcement Support Center;
    (xlvi) Director, Field Operations;
    (xlvii) Deputy Director, Field Operations;
    (xlviii) Assistant Director, Field Operations;
    (xlix) Immigration Enforcement Agents; or
    (l) Other officers or employees of the Department or the United 
States who are delegated the authority as provided in 8 CFR 2.1 to issue 
warrants of arrest.
    (3) Service of warrant of arrests for immigration violations. The 
following immigration officers who have successfully completed basic 
immigration law enforcement training are hereby authorized and 
designated to exercise the power pursuant to section 287(a) of the Act 
to execute warrants of arrest for administrative immigration violations 
issued under section 236 of the Act or to execute warrants of criminal 
arrest issued under the authority of the United States:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Detention enforcement officers or immigration enforcement 
agents (warrants of arrest for administrative immigration violations 
only);
    (v) Immigration inspectors;
    (vi) Adjudications officers when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (vii) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (viii) Immigration officers who need the authority to execute arrest 
warrants for immigration violations under section 287(a) of the Act in 
order to effectively accomplish their individual missions and who are 
designated, individually or as a class, by the Commissioner of CBP or 
the Assistant Secretary for ICE.
    (4) Service of warrant of arrests for non-immigration violations. 
The following immigration officers who have successfully completed basic 
immigration law enforcement training are hereby authorized and 
designated to exercise the power to execute warrants of criminal arrest 
for non-immigration violations issued under the authority of the United 
States:

[[Page 759]]

    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Immigration enforcement agents;
    (v) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (vi) Immigration officers who need the authority to execute warrants 
of arrest for non-immigration violations under section 287(a) of the Act 
in order to effectively accomplish their individual missions and who are 
designated, individually or as a class, by the Commissioner of CBP or 
the Assistant Secretary for ICE.
    (f) Power and authority to carry firearms. The following immigration 
officers who have successfully completed basic immigration enforcement 
training are hereby authorized and designated to exercise the power 
conferred by section 287(a) of the Act to carry firearms provided that 
they are individually qualified by training and experience to handle and 
safely operate the firearms they are permitted to carry, maintain 
proficiency in the use of such firearms, and adhere to the provisions of 
the enforcement standard governing the use of force in 8 CFR 287.8(a):
    (1) Border patrol agents, including aircraft pilots;
    (2) Special agents;
    (3) Deportation officers;
    (4) Detention enforcement officers or immigration enforcement 
agents;
    (5) Immigration inspectors;
    (6) Adjudications officers when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (7) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (8) Immigration officers who need the authority to carry firearms 
under section 287(a) of the Act in order to effectively accomplish their 
individual missions and who are designated, individually or as a class, 
by the Commissioner of CBP or the Assistant Secretary for ICE.

[68 FR 35277, June 13, 2003, as amended at 70 FR 67089, Nov. 4, 2005]



Sec. 287.6  Proof of official records.

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

[[Page 760]]

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

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



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

    (a) Detainers in general. Detainers are issued pursuant to sections 
236 and 287 of the Act and this chapter 1. Any authorized immigration 
officer may at any time issue a Form I-247, Immigration Detainer-Notice 
of Action, to any other Federal, State, or local law enforcement agency. 
A detainer serves to advise another law enforcement agency that the 
Department seeks custody of an alien presently in the custody of that 
agency, for the purpose of arresting and removing the alien. The 
detainer is a request that such agency advise the Department, prior to 
release of the alien, in order for the Department to arrange to assume 
custody, in situations when gaining immediate physical custody is either 
impracticable or impossible.
    (b) Authority to issue detainers. The following officers are 
authorized to issue detainers:
    (1) Border patrol agents, including aircraft pilots;
    (2) Special agents;
    (3) Deportation officers;
    (4) Immigration inspectors;
    (5) Adjudications officers;
    (6) Immigration enforcement agents;
    (7) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (8) Immigration officers who need the authority to issue detainers 
under section 287(d)(3) of the Act in order to effectively accomplish 
their individual missions and who are designated individually or as a 
class, by the Commissioner of CBP, the Assistant Secretary for ICE, or 
the Director of the BCIS.
    (c) Availability of records. In order for the Department to 
accurately determine the propriety of issuing a detainer, serving a 
notice to appear, or taking custody of an alien in accordance with this 
section, the criminal justice agency requesting such action or informing 
the Department of a conviction or act that renders an alien inadmissible 
or removable under any provision of law shall provide the Department 
with all documentary records and information available from the agency 
that reasonably relates to the alien's status in the United States, or 
that may have an impact on conditions of release.
    (d) Temporary detention at Department request. Upon a determination 
by the Department to issue a detainer for an alien not otherwise 
detained by a criminal justice agency, such agency shall maintain 
custody of the alien for

[[Page 761]]

a period not to exceed 48 hours, excluding Saturdays, Sundays, and 
holidays in order to permit assumption of custody by the Department.
    (e) Financial responsibility for detention. No detainer issued as a 
result of a determination made under this chapter I shall incur any 
fiscal obligation on the part of the Department, until actual assumption 
of custody by the Department, except as provided in paragraph (d) of 
this section.

[68 FR 35279, June 13, 2003]



Sec. 287.8  Standards for enforcement activities.

    The following standards for enforcement activities contained in this 
section must be adhered to by every immigration officer involved in 
enforcement activities. Any violation of this section shall be reported 
to the Office of the Inspector General or such other entity as may be 
provided for in 8 CFR 287.10.
    (a) Use of force--(1) Non-deadly force. (i) Non-deadly force is any 
use of force other than that which is considered deadly force as defined 
in paragraph (a)(2) of this section.
    (ii) Non-deadly force may be used only when a designated immigration 
officer, as listed in paragraph (a)(1)(iv) of this section, has 
reasonable grounds to believe that such force is necessary.
    (iii) A designated immigration officer shall always use the minimum 
non-deadly force necessary to accomplish the officer's mission and shall 
escalate to a higher level of non-deadly force only when such higher 
level of force is warranted by the actions, apparent intentions, and 
apparent capabilities of the suspect, prisoner, or assailant.
    (iv) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the power conferred by section 
287(a) of the Act to use non-deadly force should circumstances warrant 
it:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Detention enforcement officers or immigration enforcement 
agents;
    (E) Immigration inspectors;
    (F) Adjudications officers when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (G) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (H) Immigration officers who need the authority to use non-deadly 
force under section 287(a) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner of CBP or the Assistant Secretary for ICE.
    (2) Deadly force. (i) Deadly force is any use of force that is 
likely to cause death or serious physical injury.
    (ii) Deadly force may be used only when a designated immigration 
officer, as listed in paragraph (a)(2)(iii) of this section, has 
reasonable grounds to believe that such force is necessary to protect 
the designated immigration officer or other persons from the imminent 
danger of death or serious physical injury.
    (iii) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the power conferred by section 
287(a) of the Act to use deadly force should circumstances warrant it:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Detention enforcement officers or immigration enforcement 
agents;
    (E) Immigration inspectors;
    (F) Adjudications officers when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (G) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (H) Immigration officers who need the authority to use deadly force 
under section 287(a) of the Act in order to effectively accomplish their 
individual

[[Page 762]]

missions and who are designated, individually or as a class, by the 
Commissioner of CBP or the Assistant Secretary for ICE.
    (b) Interrogation and detention not amounting to arrest. (1) 
Interrogation is questioning designed to elicit specific information. An 
immigration officer, like any other person, has the right to ask 
questions of anyone as long as the immigration officer does not restrain 
the freedom of an individual, not under arrest, to walk away.
    (2) If the immigration officer has a reasonable suspicion, based on 
specific articulable facts, that the person being questioned is, or is 
attempting to be, engaged in an offense against the United States or is 
an alien illegally in the United States, the immigration officer may 
briefly detain the person for questioning.
    (3) Information obtained from this questioning may provide the basis 
for a subsequent arrest, which must be effected only by a designated 
immigration officer, as listed in 8 CFR 287.5(c). The conduct of arrests 
is specified in paragraph (c) of this section.
    (c) Conduct of arrests--(1) Authority. Only designated immigration 
officers are authorized to make an arrest. The list of designated 
immigration officers varies depending on the type of arrest as listed in 
8 CFR 287.5(c)(1) through (c)(5).
    (2) General procedures. (i) An arrest shall be made only when the 
designated immigration officer has reason to believe that the person to 
be arrested has committed an offense against the United States or is an 
alien illegally in the United States.
    (ii) A warrant of arrest shall be obtained except when the 
designated immigration officer has reason to believe that the person is 
likely to escape before a warrant can be obtained.
    (iii) At the time of the arrest, the designated immigration officer 
shall, as soon as it is practical and safe to do so:
    (A) Identify himself or herself as an immigration officer who is 
authorized to execute an arrest; and
    (B) State that the person is under arrest and the reason for the 
arrest.
    (iv) With respect to an alien arrested and administratively charged 
with being in the United States in violation of law, the arresting 
officer shall adhere to the procedures set forth in 8 CFR 287.3 if the 
arrest is made without a warrant.
    (v) With respect to a person arrested and charged with a criminal 
violation of the laws of the United States, the arresting officer shall 
advise the person of the appropriate rights as required by law at the 
time of the arrest, or as soon thereafter as practicable. It is the duty 
of the immigration officer to assure that the warnings are given in a 
language the subject understands, and that the subject acknowledges that 
the warnings are understood. The fact that a person has been advised of 
his or her rights shall be documented on appropriate Department forms 
and made a part of the arrest record.
    (vi) Every person arrested and charged with a criminal violation of 
the laws of the United States shall be brought without unnecessary delay 
before a United States magistrate judge, a United States district judge 
or, if necessary, a judicial officer empowered in accordance with 18 
U.S.C. 3041 to commit persons charged with such crimes. Accordingly, the 
immigration officer shall contact an Assistant United States Attorney to 
arrange for an initial appearance.
    (vii) The use of threats, coercion, or physical abuse by the 
designated immigration officer to induce a suspect to waive his or her 
rights or to make a statement is prohibited.
    (d) Transportation--(1) Vehicle transportation. All persons will be 
transported in a manner that ensures the safety of the persons being 
transported. When persons arrested or detained are being transported by 
vehicle, each person will be searched as thoroughly as circumstances 
permit before being placed in the vehicle. The person being transported 
shall not be handcuffed to the frame or any part of the moving vehicle 
or an object in the moving vehicle. The person being transported shall 
not be left unattended during transport unless the immigration officer 
needs to perform a law enforcement function.
    (2) Airline transportation. Escorting officers must abide by all 
Federal Aviation Administration, Transportation Security Administration, 
and airline

[[Page 763]]

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

[68 FR 35280, June 13, 2003]



Sec. 287.9  Criminal search warrant and firearms policies.

    (a) A search warrant should be obtained prior to conducting a search 
in a criminal investigation unless a specific exception to the warrant 
requirement is authorized by statute or recognized by the courts. Such 
exceptions may include, for example, the consent of the person to be 
searched, exigent circumstances, searches incident to a lawful arrest, 
and border searches. The Commissioner of CBP and the Assistant Secretary 
of ICE shall promulgate guidelines governing officers' conduct relating 
to search and seizure.
    (b) In using a firearm, an immigration officer shall adhere to the 
standard of conduct set forth in 8 CFR 287.8(a)(2). An immigration 
officer may carry only firearms (whether Department issued or personally 
owned) that have been approved pursuant to guidelines promulgated by the 
Commissioner of CBP or the Assistant Secretary for ICE. These officials 
shall promulgate guidelines with respect to:

[[Page 764]]

    (1) Investigative procedures to be followed after a shooting 
incident involving an officer;
    (2) Loss or theft of an approved firearm;
    (3) Maintenance of records with respect to the issuance of firearms 
and ammunition; and
    (4) Procedures for the proper care, storage, and maintenance of 
firearms, ammunition, and related equipment.

[59 FR 42420, Aug. 17, 1994, as amended at 68 FR 35280, June 13, 2003]



Sec. 287.10  Expedited internal review process.

    (a) Violations of standards for enforcement activities. Alleged 
violations of the standards for enforcement activities established in 
accordance with the provisions of Sec. 287.8 shall be investigated 
expeditiously consistent with the policies and procedures of the 
Department of Homeland Security and pursuant to any guidelines issued by 
the Secretary.
    (b) Complaints. Any persons wishing to lodge a complaint pertaining 
to violations of enforcement standards contained in Sec. 287.8 may 
contact the Department of Homeland Security, Office of the Inspector 
General, 245 Murray Drive--Building 410, Washington, DC, 20548, or 
telephone 1-800-323-8603. With respect to employees of the former INS, 
persons may contact the Office of Internal Audit, Bureau of Immigration 
and Customs Enforcement, 425 I Street NW., Washington, DC, 20536.
    (c) Expedited processing of complaints. When an allegation or 
complaint of violation of Sec. 287.8 is lodged against an employee or 
officer of the Department, the allegation or complaint shall be referred 
promptly for investigation in accordance with the policies and 
procedures of the Department. At the conclusion of an investigation of 
an allegation or complaint of violation of Sec. 287.8, the 
investigative report shall be referred promptly for appropriate action 
in accordance with the policies and procedures of the Department.
    (d) Unsubstantiated complaints. When an investigative report does 
not support the allegation, the employee or officer against whom the 
allegation was made shall be informed in writing that the matter has 
been closed as soon as practicable. No reference to the allegation shall 
be filed in the official's or employee's official personnel file.
    (e) Jurisdiction of Department of Justice organizations. Nothing in 
this section alters or limits, is intended to alter or limit, or shall 
be construed to alter or limit, the jurisdiction or authority conferred 
upon the Federal Bureau of Investigation, the United States Attorneys, 
the Criminal Division or the Civil Rights Division, or any other 
component of the Department of Justice that may have jurisdiction 
regarding criminal violations of law.

[68 FR 35281, June 13, 2003]



Sec. 287.11  Pre-enrolled Access Lane.

    (a) Pre-enrolled Access Lane (PAL). A PAL is a designated traffic 
lane located at a Service checkpoint, which, when in operation, may be 
used exclusively by enrolled participants and their passengers in 
vehicles authorized by the Service to pass through the checkpoint.
    (b) General requirements for Pre-enrolled Access Lane Program. (1) 
Participation in the Pre-enrolled Access Lane program is wholly 
voluntary and failure to apply or denial of an application does not 
prevent any person from passing through the checkpoint in the regular 
traffic lanes.
    (2) Only United States citizens and members of the classes of aliens 
which the Commissioner of the Service or her delegates determine to be 
eligible may enroll in the PAL program. To participate in the PAL 
program, an applicant must have a permanent or temporary residence in 
the United States, and must agree to furnish all information requested 
on the application.
    (3) The applicant must agree to all terms and conditions required 
for use of a Pre-enrolled Access Lane. Immigration, criminal justice 
information, and law enforcement records and databases will be checked 
to assist in determining the applicant's eligibility. The Service may 
require applicants to submit fingerprints, and the Service may provide 
those fingerprints to Federal, State, and local government agencies for 
the purpose of determining eligibility to participate in the PAL 
program.

[[Page 765]]

    (4) Any vehicle used in a Pre-enrolled Access Lane must have current 
approval from the Service for use in the PAL program.
    (5) Enrolled participants may be issued an identification document 
showing authorization to participate in the PAL program, and, if such a 
document is issued, participants must have it in their possession 
whenever using the PAL. In addition, alien participants must be in 
possession of a valid form constituting evidence of alien registration 
pursuant to Sec. 264.1(b) of this chapter at all times while using the 
PAL.
    (6) The Service will install any and all equipment, decals, devices, 
technology, or methodology it deems necessary on registered vehicles to 
ensure that only authorized persons and vehicles use the PAL.
    (7) All devices, decals, or other equipment, methodology, or 
technology used to identify persons or vehicles using a Pre-enrolled 
Access Lane remain the property of the United States Government at all 
times and must be surrendered upon request of the Service. Enrolled 
participants must abide by the terms set forth by the Service for use of 
any device, decal, or other equipment, methodology, or technology. If a 
vehicle is sold or otherwise disposed of, it is the responsibility of 
the enrolled participant to remove or obliterate any identifying decal 
or other authorization for participation in the PAL program before or at 
the time of sale or disposal unless otherwise notified by the Service. 
If the Service installs an electronic transmitter or similar device on 
the vehicle, the enrolled participant must have that device removed by 
the Service at the PAL enrollment center prior to sale or disposal of an 
authorized vehicle.
    (8) Enrolled participants in the PAL program may carry passengers 
who are not enrolled in the program in their authorized vehicles in the 
PAL as long as all passengers are United States citizens, lawful 
permanent residents of the United States, or rightful holders of valid 
nonimmigrant United States visas.
    (c) Application. (1) Application for Pre-enrolled Access Lane 
participation shall be made on Form I-866, Application--Checkpoint Pre-
enrolled Access Lane.
    (2) Each person wishing to enroll in the Pre-enrolled Access Lane 
program must submit a separate application.
    (3) Applications must be supported by documents establishing 
identity, United States citizenship or lawful immigration status in the 
United States, a valid driver's license, and vehicle registration for 
all vehicles being registered. The Service may require additional 
documentation where appropriate to substantiate information provided on 
the application, as well as written permission from the vehicle owner to 
use any vehicle not owned by the applicant in the PAL.
    (4) Each person filing an application may be required to present 
himself or herself for an interview at a time and place designated by 
the Service prior to approval of the application.
    (5) The Service may inspect any vehicle that a PAL applicant desires 
to register for use in the PAL to ensure that it does not present 
evidence of having been used or prepared to be used to smuggle aliens or 
controlled substances, and the Service must approve all vehicles prior 
to use in the PAL. The Service may prohibit the use of certain types of 
vehicles in the PAL for reasons of safety and law enforcement.
    (6) An application may be denied by the Chief Patrol Agent having 
jurisdiction over the PAL enrollment center where the application is 
filed. Written notice of the decision on the application shall be given 
to the applicant or mailed by ordinary mail to the applicant's last 
known address. There is no appeal from a denial, but denial is without 
prejudice to reapplying for this program. Re-applications following 
denial or revocation of the privilege to participate in the PAL program 
will not be considered by the Service until 90 days after the date of 
denial or revocation.
    (7) Registration in the PAL program is limited to individuals who 
the Service has determined present a low risk of using the PAL for 
unlawful purposes. Criteria that will be considered in the decision to 
approve or deny the application include the following: lawful presence 
in the United States, criminal history and/or evidence of

[[Page 766]]

criminality, employment, residency, prior immigration history, 
possession of a valid driver's license, vehicle type, registration, and 
inspection.
    (8) Applications approved by the Service will entitle the authorized 
person and the authorized vehicle to use the PAL for 2 years from the 
date of approval of the application or until authorization is revoked, 
whichever occurs first.
    (d) Acknowledgments and agreements. By signing and submitting the 
Form I-866 each applicant acknowledges and agrees to all of the 
conditions for participation in the PAL program and the statements on 
the Form I-866.
    (e) Violation of conditions of a Pre-enrolled Access Lane and 
Revocation. An enrolled participant who violates any condition of the 
PAL program, or any applicable law or regulation, or who is otherwise 
determined by an immigration officer to be ineligible to participate in 
the PAL program, may have his or her authorization and the authorization 
of his or her vehicle(s) revoked by the Chief Patrol Agent with 
jurisdiction over the PAL enrollment center where the application is 
filed and may be subject to other applicable sanctions, such as criminal 
and/or civil penalties, removal, and/or possible seizure of goods and/or 
vehicles. If an authorized vehicle is sold, stolen, or otherwise 
disposed of, authorization to use that vehicle in the PAL is 
automatically revoked. Within 24 hours of when an authorized vehicle is 
stolen, or within 7 days of when such vehicle is sold, or otherwise 
disposed of or the license plates are changed, enrolled participants 
must give, in person or by facsimile transmission, written notice of 
such occurrence to the PAL enrollment center at which their application 
was filed. Failure to do so will result in the automatic revocation of 
the authorization to use the PAL of the person who registered such 
vehicle in the PAL program. Unless revocation is automatic, the Service 
will give notice of revocation to the enrolled PAL participant or mail 
it by ordinary mail to his or her last known address. However, written 
notification is not necessary prior to revocation of the privilege to 
participate in the PAL program. There is no appeal from the revocation 
of an authorization to participate in the PAL program.
    (f) No benefits or rights conferred. This section does not, is not 
intended to, shall not be construed to, and may not be relied upon to 
confer any immigration benefit or status to any alien or create any 
rights, substantive or procedural, enforceable in law or equity by any 
party in any matter.

[62 FR 19025, Apr. 18, 1997]



Sec. 287.12  Scope.

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

[68 FR 35282, June 13, 2003]



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




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

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



Sec. 289.1  Definition.

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

[[Page 767]]

such person possesses at least 50 per centum or more of such blood.

[29 FR 11494, Aug. 11, 1964]



Sec. 289.2  Lawful admission for permanent residence.

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

[29 FR 11494, Aug. 11, 1964]



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

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

[33 FR 7485, May 21, 1968]



PART 292_REPRESENTATION AND APPEARANCES--Table of Contents




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

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



Sec. 292.1  Representation of others.

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

[[Page 768]]

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

[40 FR 23271, May 29. 1975, as amended at 53 FR 7728, Mar. 10, 1988; 55 
FR 49251, Nov. 27, 1990; 61 FR 53610, Oct. 15, 1996; 62 FR 23635, May 1, 
1997]



Sec. 292.2  Organizations qualified for recognition; requests for recognition; 

withdrawal of recognition; accreditation of representatives; roster.

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

[[Page 769]]

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

[[Page 770]]

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

[40 FR 23272, May 29, 1975, as amended at 49 FR 44086, Nov. 2, 1984; 62 
FR 9075, Feb. 28, 1997]



Sec. 292.3  Professional conduct for practitioners--Rules and procedures.

    (a) General provisions--(1) Authority to sanction. An adjudicating 
official or the Board of Immigration Appeals (the Board) may impose 
disciplinary sanctions against any practitioner if it finds it to be in 
the public interest to do so. It will be in the public interest to 
impose disciplinary sanctions against a practitioner who is authorized 
to practice before the Service when such person has engaged in criminal, 
unethical, or unprofessional conduct, or in frivolous behavior, as set 
forth in Sec. 3.102 of this chapter. In accordance with the 
disciplinary proceedings set forth in part 3 of this chapter, an 
adjudicating official or the Board may impose any of the following 
disciplinary sanctions:
    (i) Expulsion, which is permanent, from practice before the Board 
and the Immigration Courts or the Service, or before all three 
authorities;
    (ii) Suspension, including immediate suspension, from practice 
before the Board and the Immigration Courts or the Service, or before 
all three authorities;
    (iii) Public or private censure; or
    (iv) Such other disciplinary sanctions as the adjudicating official 
or the Board deems appropriate.
    (2) Persons subject to sanctions. Persons subject to sanctions 
include any practitioner. A practitioner is any attorney as defined in 
Sec. 1.1(f) of this chapter who does not represent the federal 
government, or any representative as defined in Sec. 1.1(j) of this 
chapter. Attorneys employed by the Department of Justice shall be 
subject to discipline pursuant to paragraph (i) of this section.
    (b) Grounds of discipline as set forth in Sec. 3.102 of this 
chapter. It is deemed to be in the public interest for the adjudicating 
official or the Board to impose disciplinary sanctions as described in 
paragraph (a)(1) of this section against any practitioner who falls 
within one or more of the categories enumerated in Sec. 3.102 of this 
chapter, with the exception of paragraphs (k) and (l) of that section, 
but these categories do not constitute the exclusive grounds for which 
disciplinary sanctions may be imposed in the public interest. Nothing in 
this regulation should be read to denigrate the practitioner's duty to 
represent zealously his or her client within the bounds of the law.
    (c) Immediate suspension and summary disciplinary proceedings; duty 
of practitioner to notify the Service of conviction

[[Page 771]]

or discipline--(1) Petition. The Office of the General Counsel of the 
Service shall petition the Board to suspend immediately from practice 
before the Service any practitioner who has been found guilty of, or 
pleaded guilty or nolo contendere to, a serious crime, as defined in 
Sec. 3.102(h) of this chapter, or who has been disbarred or suspended 
on an interim or final basis by, or has resigned with an admission of 
misconduct from, the highest court of any state, possession, territory, 
commonwealth, or the District of Columbia, or any Federal court. A copy 
of the petition shall be forwarded to the Office of the General Counsel 
of EOIR, which may submit a written request to the Board that entry of 
any order immediately suspending a practitioner before the Service also 
apply to the practitioner's authority to practice before the Board or 
the Immigration Courts. Proof of service on the practitioner of EOIR's 
request to broaden the scope of any immediate suspension must be filed 
with the Board.
    (2) Immediate suspension. Upon the filing of a petition for 
immediate suspension by the Office of the General Counsel of the 
Service, together with a certified copy of a court record finding that a 
practitioner has been so found guilty of a serious crime, or has been so 
disciplined or has so resigned, the Board shall forthwith enter an order 
immediately suspending the practitioner from practice before the Service 
and/or the Board and Immigration Courts, notwithstanding the pendency of 
an appeal, if any, of the underlying conviction or discipline, pending 
final disposition of a summary proceeding, as provided in paragraph 
(c)(3) of this section. Such immediate suspension will continue until 
imposition of a final administrative decision. Upon good cause shown, 
the Board may set aside such order of immediate suspension when it 
appears in the interest of justice to do so. If a final administrative 
decision includes the imposition of a period of suspension, time spent 
by the practitioner under immediate suspension pursuant to this 
paragraph may be credited toward the period of suspension imposed under 
the final administrative decision.
    (3) Summary disciplinary proceedings. The Office of the General 
Counsel of the Service shall promptly initiate summary disciplinary 
proceedings against any practitioner described in paragraph (c)(1) of 
this section. Summary proceedings shall be initiated by the issuance of 
a Notice of Intent to Discipline, accompanied by a certified copy of the 
order, judgment and/or record evidencing the underlying criminal 
conviction or discipline. Summary proceedings shall be conducted in 
accordance with the provisions set forth in Sec. Sec. 3.105 and 3.106 
of this chapter. Any such proceeding shall not be concluded until all 
direct appeals from an underlying criminal conviction have been 
completed.
    (i) In matters concerning criminal convictions, a certified copy of 
the court record, docket entry, or plea shall be conclusive evidence of 
the commission of that crime in any summary disciplinary hearing based 
thereon.
    (ii) In the case of a summary proceeding based upon a final order of 
disbarment or suspension, or a resignation with an admission of 
misconduct, (i.e., reciprocal discipline), a certified copy of a 
judgment or order of discipline shall establish a rebuttable presumption 
of the professional misconduct. Disciplinary sanctions shall follow in 
such a proceeding unless the attorney can rebut the presumption by 
demonstrating by clear, unequivocal, and convincing evidence that:
    (A) The underlying disciplinary proceeding was so lacking in notice 
or opportunity to be heard as to constitute a deprivation of due 
process;
    (B) There was such an infirmity of proof establishing the 
practitioner's professional misconduct as to give rise to the clear 
conviction that the adjudicating official could not, consistent with his 
or her duty, accept as final the conclusion on that subject; or
    (C) The imposition of discipline by the adjudicating official would 
result in grave injustice.
    (4) Duty of practitioner to notify the Service of conviction or 
discipline. Any practitioner who has been found guilty of, or pleaded 
guilty or nolo contendere to, a serious crime, as defined in Sec. 
3.102(h) of this chapter, or who has

[[Page 772]]

been disbarred or suspended by, or who has resigned with an admission of 
misconduct from, the highest court of any state, possession, territory, 
commonwealth, or the District of Columbia, or by any Federal court, must 
notify the Office of the General Counsel of the Service of any such 
conviction or disciplinary action within 30 days of the issuance of the 
initial order, even if an appeal of the conviction or discipline is 
pending. Failure to do so may result in immediate suspension as set 
forth in paragraph (c)(1) of this section. This duty to notify applies 
only to convictions for serious crimes or to orders imposing discipline 
for professional misconduct entered on or after July 27, 2000.
    (d) Filing of complaints; preliminary inquiries; resolutions; 
referral of complaints--(1) Filing of complaints--(i) Misconduct 
occurring before Service. Complaints of criminal, unethical, or 
unprofessional conduct, or of frivolous behavior before the Service by a 
practitioner shall be filed with the Office of the General Counsel of 
the Service. Disciplinary complaints must be submitted in writing and 
must state in detail the information that supports the basis for the 
complaint, including, but not limited to, the names and addresses of the 
complainant and the practitioner, the date(s) of the conduct or 
behavior, the nature of the conduct or behavior, the individuals 
involved, the harm or damages sustained by the complainant, and any 
other relevant information. Any individual may file a complaint with the 
Office of the General Counsel of the Service. The Office of the General 
Counsel of the Service shall notify the Office of the General Counsel of 
EOIR of any disciplinary complaint that pertains, in whole or in part, 
to a matter before the Board or the Immigration Courts.
    (ii) Misconduct occurring before the Board and the Immigration 
Courts. Complaints of criminal, unethical, or unprofessional conduct, or 
of frivolous behavior before the Board and the Immigration Courts by a 
practitioner shall be filed with the Office of the General Counsel of 
EOIR pursuant to the procedures set forth in Sec. 3.104(a) of this 
chapter.
    (2) Preliminary inquiry. Upon receipt of a disciplinary complaint or 
on its own initiative, the Office of the General Counsel of the Service 
will initiate a preliminary inquiry. If a complaint is filed by a client 
or former client, the complainant thereby waives the attorney-client 
privilege and any other applicable privilege, to the extent necessary to 
conduct a preliminary inquiry and any subsequent proceeding based 
thereon. If the Office of the General Counsel of the Service determines 
that a complaint is without merit, no further action will be taken. The 
Office of the General Counsel of the Service may, in its discretion, 
close a preliminary inquiry if the complainant fails to comply with 
reasonable requests for assistance, information, or documentation. The 
complainant and the practitioner shall be notified of any such 
determination in writing.
    (3) Resolutions reached prior to the issuance of a Notice of Intent 
to Discipline. The Office of the General Counsel of the Service, in its 
discretion, may issue warning letters and admonitions, and may enter 
into agreements in lieu of discipline, prior to the issuance of a Notice 
of Intent to Discipline.
    (4) Referral of complaints of criminal conduct. If the Office of the 
General Counsel of the Service receives credible information or 
allegations that a practitioner has engaged in criminal conduct, the 
Office of the General Counsel of the Service shall refer the matter to 
the Inspector General and, if appropriate, to the Federal Bureau of 
Investigation. In such cases, in making the decision to pursue 
disciplinary sanctions, the Office of the General Counsel of the Service 
shall coordinate in advance with the appropriate investigative and 
prosecutorial authorities within the Department to ensure that neither 
the disciplinary process nor criminal prosecutions are jeopardized.
    (e) Notice of Intent to Discipline--(1) Issuance of Notice to 
practitioner. If, upon completion of the preliminary inquiry, the Office 
of the General Counsel of the Service determines that sufficient prima 
facie evidence exists to warrant charging a practitioner with 
professional misconduct as set forth in Sec. 3.102 of this chapter, it 
will issue a

[[Page 773]]

Notice of Intent to Discipline to the practitioner named in the 
complaint. This notice will be served upon the practitioner by personal 
service as defined in Sec. 103.5a of this chapter. Such notice shall 
contain a statement of the charge(s), a copy of the preliminary inquiry 
report, the proposed disciplinary sanctions to be imposed, the procedure 
for filing an answer or requesting a hearing, and the mailing address 
and telephone number of the Board.
    (2) Copy of Notice to EOIR; reciprocity of disciplinary sanctions. A 
copy of the Notice of Intent to Discipline shall be forwarded to the 
Office of the General Counsel of EOIR. The Office of the General Counsel 
of EOIR may submit a written request to the Board or the adjudicating 
official requesting that any discipline imposed upon a practitioner 
which restricts his or her authority to practice before the Service also 
apply to the practitioner's authority to practice before the Board and 
the Immigration Courts. Proof of service on the practitioner of any 
request to broaden the scope of the proposed discipline must be filed 
with the adjudicating official.
    (3) Answer--(i) Filing. The practitioner shall file a written answer 
to the Notice of Intent to Discipline with the Board as provided in 
Sec. 3.105(c) of this chapter.
    (ii) Failure to file an answer. Failure to file an answer within the 
time period prescribed in the Notice of Intent to Discipline, except 
where the time to answer is extended by the Board, shall constitute an 
admission of the allegations in the Notice of Intent to Discipline and 
no further evidence with respect to such allegations need be adduced. 
Upon such a default by the practitioner, the Office of the General 
Counsel of the Service shall submit to the Board proof of personal 
service of the Notice of Intent to Discipline. The practitioner shall be 
precluded thereafter from requesting a hearing on the matter. The Board 
shall adopt the recommended disciplinary sanctions in the Notice of 
Intent to Discipline and issue a final order as provided in Sec. 
3.105(d) of this chapter. A practitioner may file a motion to set aside 
a final order of discipline issued pursuant to this paragraph, with 
service of such motion on the Office of the General Counsel of the 
Service, provided:
    (A) Such a motion is filed within 15 days of service of the final 
order; and
    (B) His or her failure to file an answer was due to exceptional 
circumstances (such as serious illness of the practitioner or death of 
an immediate relative of the practitioner, but not including less 
compelling circumstances) beyond the control of the practitioner.
    (f) Hearing and disposition; appeal; reinstatement proceedings. Upon 
the filing of an answer, the matter shall be heard and decided according 
to the procedures set forth in Sec. 3.106(a), (b), and (c) of this 
chapter. The Office of the General Counsel of the Service shall 
represent the government. Reinstatement proceedings shall be conducted 
according to the procedures set forth in Sec. 3.107 of this chapter.
    (g) Referral. In addition to, or in lieu of, initiating disciplinary 
proceedings against a practitioner, the Office of the General Counsel of 
the Service may notify any appropriate Federal and/or state disciplinary 
or regulatory authority of any complaint filed against a practitioner. 
Any final administrative decision imposing sanctions against a 
practitioner (other than a private censure) shall be reported to any 
such disciplinary or regulatory authority in every jurisdiction where 
the disciplined practitioner is admitted or otherwise authorized to 
practice. In addition, the Office of the General Counsel of the Service 
shall transmit notice of all public discipline imposed under this rule 
to the National Lawyer Regulatory Data Bank maintained by the American 
Bar Association.
    (h) Confidentiality--(1) Complaints and preliminary inquiries. 
Except as otherwise provided by law or regulation, information 
concerning complaints or preliminary inquiries is confidential. A 
practitioner whose conduct is the subject of a complaint or preliminary 
inquiry, however, may waive confidentiality, except that the Office of 
the

[[Page 774]]

General Counsel of the Service may decline to permit a waiver of 
confidentiality if it is determined that an ongoing preliminary inquiry 
may be substantially prejudiced by a public disclosure before the filing 
of a Notice of Intent to Discipline.
    (i) Disclosure of information for the purpose of protecting the 
public. The Office of the General Counsel of the Service may disclose 
information concerning a complaint or preliminary inquiry for the 
protection of the public when the necessity for disclosing information 
outweighs the necessity for preserving confidentiality in circumstances 
including, but not limited to, the following:
    (A) A practitioner has caused, or is likely to cause, harm to 
client(s), the public, or the administration of justice, such that the 
public or specific individuals should be advised of the nature of the 
allegations. If disclosure of information is made pursuant to this 
paragraph, the Office of the General Counsel of the Service may define 
the scope of information disseminated and may limit the disclosure of 
information to specified individuals or entities;
    (B) A practitioner has committed criminal acts or is under 
investigation by law enforcement authorities;
    (C) A practitioner is under investigation by a disciplinary or 
regulatory authority, or has committed acts or made omissions that may 
reasonably result in investigation by such an authority;
    (D) A practitioner is the subject of multiple disciplinary 
complaints and the Office of the General Counsel of the Service has 
determined not to pursue all of the complaints. The Office of the 
General Counsel of the Service may inform complainants whose allegations 
have not been pursued of the status of any other preliminary inquiries 
or the manner in which any other complaint(s) against the practitioner 
have been resolved.
    (ii) Disclosure of information for the purpose of conducting a 
preliminary inquiry. The Office of the General Counsel of the Service, 
in the exercise of discretion, may disclose documents and information 
concerning complaints and preliminary inquiries to the following 
individuals or entities:
    (A) To witnesses or potential witnesses in conjunction with a 
complaint or preliminary inquiry;
    (B) To other governmental agencies responsible for the enforcement 
of civil or criminal laws;
    (C) To agencies and other jurisdictions responsible for conducting 
disciplinary investigations or proceedings;
    (D) To the complainant or a lawful designee; and
    (E) To the practitioner who is the subject of the complaint or 
preliminary inquiry or the practitioner's counsel of record.
    (2) Resolutions reached prior to the issuance of a Notice of Intent 
to Discipline. Resolutions, such as warning letters, admonitions, and 
agreements in lieu of discipline, reached prior to the issuance of a 
Notice of Intent to Discipline, will remain confidential. However, such 
resolutions may become part of the public record if the practitioner 
becomes subject to a subsequent Notice of Intent to Discipline.
    (3) Notices of Intent to Discipline and action subsequent thereto. 
Notices of Intent to Discipline and any action that takes place 
subsequent to their issuance, except for the imposition of private 
censures, may be disclosed to the public, except that private censures 
may become part of the public record if introduced as evidence of a 
prior record of discipline in any subsequent disciplinary proceeding. 
Settlement agreements reached after the issuance of a Notice of Intent 
to Discipline may be disclosed to the public upon final approval by the 
adjudicating official or the Board. Disciplinary hearings are open to 
the public, except as noted in Sec. 3.106(a)(v) of this chapter.
    (i) Discipline of government attorneys. Complaints regarding the 
conduct or behavior of Department attorneys, Immigration Judges, or 
Board Members shall be directed to the Office of Professional 
Responsibility, United States Department of Justice. If disciplinary 
action is warranted, it shall be administered pursuant to the 
Department's attorney discipline procedures.

[65 FR 39531, June 27, 2000]

[[Page 775]]



Sec. 292.4  Appearances.

    (a) An appearance shall be filed on the appropriate form by the 
attorney or representative appearing in each case. During Immigration 
Judge or Board proceedings, withdrawal and/or substitution of counsel is 
permitted only in accordance with Sec. Sec. 3.16 and 3.36 respectively. 
During proceedings before the Service, substitution may be permitted 
upon the written withdrawal of the attorney or representative of record, 
or upon notification of the new attorney or representative. When an 
appearance is made by a person acting in a representative capacity, his 
or her personal appearance or signature shall constitute a 
representation that under the provisions of this chapter he or she is 
authorized and qualified to represent. Further proof of authority to act 
in a representative capacity may be required. A notice of appearance 
entered in application or petition proceedings must be signed by the 
applicant or petitioner to authorize representation in order for the 
appearance to be recognized by the Service.
    (b) Availability of records. During the time a case is pending, and 
except as otherwise provided in Sec. 103.2(b) of this chapter, a party 
to a proceeding or his attorney or representative shall be permitted to 
examine the record of proceeding in a Service office. He may, in 
conformity with Sec. 103.10 of this chapter, obtain copies of Service 
records or information therefrom and copies of documents or transcripts 
of evidence furnished by him. Upon request, he may in addition, be 
loaned a copy of the testimony and exhibits contained in the record of 
proceeding upon giving his receipt for such copies and pledging that it 
will be surrendered upon final disposition of the case or upon demand. 
If extra copies of exhibits do not exist, they shall not be furnished 
free on loan; however, they shall be made available for copying or 
purchase of copies as provided in Sec. 103.10 of this chapter.

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



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

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

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



Sec. 292.6  Interpretation.

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

[32 FR 9633, July 4, 1967]



PART 293_DEPOSIT OF AND INTEREST ON CASH RECEIVED TO SECURE IMMIGRATION 

BONDS--Table of Contents




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

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

[[Page 776]]


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



Sec. 293.1  Computation of interest.

    Interest shall be computed from the date of deposit occurring after 
April 27, 1966, or from the date cash deposited in the postal savings 
system ceased to accrue interest, to and including the date of 
withdrawal or date of breach of the immigration bond, whichever occurs 
first. For purposes of this section, the date of deposit shall be the 
date shown on the Receipt of Immigration Officer for the cash received 
as security on an immigration bond. The date of withdrawal shall be the 
date upon which the interest is certified to the Treasury Department for 
payment. The date of breach shall be the date as of which the 
immigration bond was concluded to have been breached as shown on Form I-
323, Notice--Immigration Bond Breached. In counting the number of days 
for which interest shall be computed, the day on which the cash was 
deposited, or the day which cash deposited in the postal savings system 
ceased to accrue interest, shall not be counted; however, the day of 
withdrawal or the day of breach of the immigration bond shall be 
counted. Interest shall be computed at the rate determined by the 
Secretary of the Treasury and set forth in Sec. 293.2. The simple 
interest table in Sec. 293.3 shall be utilized in the computation of 
interest under this part.



Sec. 293.2  Interest rate.

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



Sec. 293.3  Simple interest table.

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

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

    Example: 3% on $500 for 93 days:

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



Sec. 293.4  Payment of interest.

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



PART 299_IMMIGRATION FORMS--Table of Contents




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

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



Sec. 299.1  Prescribed forms.

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

------------------------------------------------------------------------
       Form No.          Edition date                 Title
------------------------------------------------------------------------
AR-11................  10-01-85.......  Alien's Change of Address Card.
CDC 4.222-1..........  10-84..........  Statement in Support of
                                         Application for Waiver of
                                         Excludability (Under section
                                         212(a)(1), Immigration and
                                         Nationality Act).
CDC 42.10............  04-81..........  Interstate Reciprocal
                                         Notification of Disease.
CDC 75.17............  04-82..........  Report on Alien with
                                         Tuberculosis not Considered
                                         Active.

[[Page 777]]

 
CDC 75.18............  04-82..........  Report on Alien with
                                         Tuberculosis Waiver.
DSP-150..............  01-01-98.......  B-1/B-2 Visa and Border Crossing
                                         Card.
EOIR-40..............  11-94..........  Application for Suspension of
                                         Deportation.
FD-258...............  12-29-82.......  Applicant Fingerprint Card.
G-28.................  10-25-79.......  Notice of Entry of Appearance as
                                         Attorney or Representative.
G-56.................  05-01-83.......  General Call-in-Letter.
G-296................  09-12-58.......  Report of Violation.
G-297................  05-28-70.......  Order to Seize Aircraft.
G-298................  09-12-58.......  Public Notice of Seizure.
G-325................  10-01-82.......  Biographic Information.
G-325A...............  10-01-82.......  Biographic Information.
G-325B...............  10-01-82.......  Biographic Information.
G-325C...............  10-01-82.......  Biographic Information.
G-639................  03-21-94.......  Freedom of Information Act/
                                         Privacy Act Request.
G-658................  11-01-75.......  Record of Information Disclosure
                                         (Privacy Act).
G-1041...............  11/15/06.......  Genealogy Index Search Request.
G-1041A..............  11/15/06.......  Genealogy Records Request.
I-9..................  11-21-91.......  Employment Eligibility
                                         Verification.
I-17.................  04-11-91.......  Petition for Approval of School
                                         for Attendance by Nonimmigrant
                                         Students.
I-17A................  05-01-83.......  Designated School Officials.
I-17B................  05-01-83.......  School System Attachment.
I-20A-B/I-20ID.......  04-27-88.......  Certificate of Eligibility for
                                         Nonimmigrant (F-1) Student
                                         Status--For Academic and
                                         Language Students.
I-20M-N/I-20ID.......  05-03-90.......  Certificate of Eligibility for
                                         Nonimmigrant (M-1) Student
                                         Status--For Vocational
                                         Students.
I-68.................  09-01-84.......  Canadian Border Boat Landing
                                         Permit.
I-72.................  04-01-83.......  Form letter for Returning
                                         Deficient Applications/
                                         Petitions.
I-79.................  05-15-70.......  Notice of Intention to Fine
                                         Under Immigration and
                                         Nationality Act.
I-90.................  07-28-92.......  Application to Replace Alien
                                         Registration Receipt Card.
I-92.................  06-01-73.......  Aircraft/Vessel Report.
I-94.................  04-15-86.......  Arrival-Departure Record.
I-94T................  09-22-87.......  Arrival-Departure Record
                                         (Transit without visa).
I-94W................  05-29-91.......  Nonimmigrant Visa Waiver Arrival/
                                         Departure Document.
I-95AB...............  10-01-84.......  Crewman's Landing Permit.
I-99.................  04-01-97.......  Notice of Revocation and
                                         Penalty.
I-102................  06-13-95.......  Application for Replacement/
                                         Initial Nonimmigrant Arrival/
                                         Departure Document.
I-104................  11-01-84.......  Alien Address Report Card.
I-129................  11-26-08.......  Petition for a Nonimmigrant
                                         Worker.
I-129F...............  04-11-91.......  Petition for Alien Fiance(e).
I-129S...............  12-20-91.......  Nonimmigrant Petition Based on
                                         Blanket L Petition.
I-129W...............  12-22-99.......  H-1B Data Collection and Filing
                                         Fee Exemption.
I-130................  04-11-91.......  Petition for Alien Relative.
I-131................  12-10-91.......  Application for Travel Document.
I-134................  12-01-84.......  Affidavit of Support.
I-138................  07-01-83.......  Subpoena.
I-140................  08-30-01.......  Immigrant Petition for Alien
                                         Worker.
I-141................  04-21-69.......  Medical Certificate.
I-147................  04-01-97.......  Notice of Temporary
                                         Inadmissibility to U.S.
I-148................  04-01-97.......  Notice of Permanent
                                         Inadmissibility.
I-160................  04-01-97.......  Notice of Parole/Lookout
                                         Intercept.
I-171................  03-04-82.......  Notice of Approval of Relative
                                         Immigrant Visa Petition.
I-171C...............  07-01-83.......  Notice of Approval or Extension
                                         of Nonimmigrant Visa Petition
                                         of H or L Alien.
I-171F...............  10-14-76.......  Notice of Approval of
                                         Nonimmigrant Visa Petition for
                                         Fiance or Fiancee.
I-171H...............  12-15-82.......  Notice of Favorable
                                         Determination Concerning
                                         Application for Advance
                                         Processing of Orphan Petition.
I-180................  09-01-81.......  Notice of Voidance of Form I-186
                                         or Denial of Form I-190.
I-181................  03-01-83.......  Memorandum of Creation of Record
                                         of Lawful Permanent Residence.
I-185................  01-01-75.......  Nonresident Alien Canadian
                                         Border Crossing Card.
I-191................  04-11-91.......  Application for Advance
                                         Permission to Return to
                                         Unrelinquished Domicile.
I-192................  04-11-91.......  Application for Advance
                                         Permission to Enter as
                                         Nonimmigrant.
I-193................  04-11-91.......  Application for Waiver of
                                         Passport and/or Visa.
I-194................  02-01-82.......  Notice of Approval of Advance
                                         Permission to Enter as
                                         Nonimmigrant (Pursuant to Sec.
                                          212(d)(3) (A) or (B) of the
                                         Act).
I-202................  11-15-79.......  Authorization for Removal.
I-205................  04-01-97.......  Warrant of Removal.
I-210................  04-01-97.......  Notice of Action--Voluntary
                                         Departure.
I-212................  04-11-91.......  Application for Permission to
                                         Reapply for Admission Into the
                                         United States After Deportation
                                         or Removal.
I-213................  04-01-97.......  Record of Deportable/
                                         Inadmissible Alien.
I-217................  04-01-97.......  Information for Travel Document
                                         or Passport.
I-220A...............  04-01-97.......  Order of Release on
                                         Recognizance.
I-220B...............  04-01-97.......  Order of Supervision.
I-241................  04-01-97.......  Request for Travel Document to
                                         Country Designated by Alien.
I-243................  09-27-75.......  Application for Removal.
I-246................  04-01-97.......  Application for Stay of Removal.

[[Page 778]]

 
I-247................  04-01-97.......  Immigration Detainer--Notice of
                                         Action.
I-259................  04-01-97.......  Notice to Detain, Deport,
                                         Remove, or Present Aliens.
I-260................  06-01-73.......  Notice to Take Testimony of
                                         Witness.
I-261................  04-01-97.......  Additional Charges of
                                         Removability.
I-270................  04-01-97.......  Request for Consent to Return
                                         Person to Canada.
I-275................  04-01-97.......  Withdrawal of Application/
                                         Consular Notification.
I-284................  04-01-97.......  Notice to Transportation Line
                                         Regarding Deportation and
                                         Detention Expenses of Detained
                                         Alien.
I-286................  04-01-97.......  Notification to Alien of
                                         Conditions of Release or
                                         Detention.
I-287................  04-10-72.......  Special Care and Attention for
                                         Alien.
I-288................  02-20-62.......  Notice to Transportation Line
                                         Regarding Deportation Expenses
                                         of Alien Completely Ready for
                                         Deportation.
I-290B...............  01-04-91.......  Notice of Appeal to the
                                         Administrative Appeals Unit
                                         (AAU).
I-290C...............  02-01-99.......  Notice of Certification.
I-291................  04-01-97.......  Decision on Application for
                                         Status as Permanent Resident.
I-292................  10-26-90.......  Decision.
I-294................  04-01-97.......  Notice of Country to Which
                                         Deportation has been Directed
                                         and Penalty for Reentry without
                                         Permission.
I-296................  04-01-97.......  Notice to Alien Ordered Removed.
I-305................  05-01-76.......  Receipt of Immigration Officer--
                                         United States Bond or Notes, or
                                         Cash, Accepted as Security on
                                         Immigration Bond.
I-310................  04-16-62.......  Bond for Payment of Sums and
                                         Fines Imposed under Immigration
                                         and Nationality Act (Term or
                                         Single Entry).
I-312................  04-15-76.......  Designation of Attorney in Fact.
I-320B...............  09-01-75.......  Agreement Between Employer of
                                         Alien Labor and the United
                                         States.
I-323................  03-15-77.......  Notice--Immigration Bond
                                         Breached.
I-327................  02-10-93.......  Permit to Reenter the United
                                         States.
I-351................  06-01-74.......  Bond Riders.
I-352................  06-01-84.......  Immigration Bond.
I-356................  09-27-75.......  Request for Cancellation of
                                         Public Charge Bond.
I-360................  11-26-08.......  Petition for Amerasian,
                                         Widow(er) or Special Immigrant.
I-361................  07-01-84.......  Affidavit of Financial Support
                                         and Intent to Petition for
                                         Legal Custody for Pub. L. 97-
                                         359 Amerasian.
I-365................  07-01-84.......  Notice of Completion of
                                         Preliminary Processing of
                                         Petition for Public Law 97-359
                                         Amerasian.
I-391................  03-14-77.......  Notice--Immigration Bond
                                         Cancelled.
I-407................  04-01-97.......  Abandonment by Alien of Status
                                         as Lawful Permanent Resident.
I-408................  04-01-97.......  Application to Pay Off or
                                         Discharge Alien Crewman.
I-410................  05-01-83.......  Receipt for Crew List.
I-418................  07-01-74.......  Passenger List-Crew List.
I-420................  06-11-92.......  Agreement (Land-Border) Between
                                         Transportation Line and United
                                         States.
I-421................  06-29-58.......  Agreement (Overseas) Between
                                         Transportation Line and United
                                         States.
I-425................  03-24-77.......  Agreement (For Preinspection at--
                                         --) Between Transportation Line
                                         and United States.
I-426................  05-01-65.......  Immediate and Continuous Transit
                                         Agreement Between a
                                         Transportation Line and United
                                         States of America (special
                                         direct transit procedure).
I-485................  09-09-92.......  Application to Register
                                         Permanent Residence or Adjust
                                         Status.
I-485 Supplement B...  12-01-99.......  NACARA Supplement to Form I-485
                                         Instructions.
I-485 Supplement C...  12-01-99.......  HRIFA Supplement to Form I-485
                                         Instructions.
I-485 Supplement D...  06-05-02.......  LIFE Legalization Supplement to
                                         Form I-485 Instructions.
I-508................  10-01-80.......  Waiver of Rights, Privileges,
                                         Exemptions, and Immunities.
I-508F...............  06-01-70.......  Waiver of Rights, Privileges,
                                         Exemptions, and Immunities
                                         (Under section 247(b) of the
                                         Act and under the Convention
                                         between the United States of
                                         America and the French Republic
                                         with respect to Taxes on Income
                                         and Property).
I-509................  05-31-83.......  Notice of Proposed Change of
                                         Status.
I-510................  11-15-82.......  Guarantee of Payment.
I-512................  10-01-82.......  Authorization for Parole of an
                                         Alien into the United States.
I-515................  08-02-83.......  Notice to Student or Exchange
                                         Visitor.
I-516................  08-01-83.......  Notice of Approval or
                                         Continuation of School
                                         Approval.
I-517................  08-01-83.......  Review of School Approval.
I-526................  12-02-91.......  Immigrant Petition by Alien
                                         Entrepreneur.
I-538................  10-29-91.......  Certification by Designated
                                         School Official.
I-539................  12-02-91.......  Application to Extend/Change
                                         Nonimmigrant Status.
I-539 Supplement A...  03-27-01.......  Filing Instructions for V
                                         nonimmigrant status.
I-541................  04-01-97.......  Order of Denial of Application
                                         for Extension of Stay or
                                         Student Employment or Student
                                         Transfer.
I-543................  12-01-83.......  Order of Denial of Application
                                         for Change of Nonimmigrant
                                         Status.
I-546................  04-01-97.......  Order to Appear--Deferred
                                         Inspection.
I-551................  05-01-97.......  Permanent Resident Card.
I-566................  10-15-96.......  Inter-Agency Record of
                                         Individual Requesting Change/
                                         Adjustment to, or from, A or G
                                         status; or Requesting A, G or
                                         NATO Dependent Employment
                                         Authorization.
I-571................  02-10-93.......  Refugee Travel Document.
I-586................  04-30-77.......  Nonresident Alien Border
                                         Crossing Card.
I-589................  04-01-97.......  Application for Asylum and
                                         Withholding of Removal.
I-590................  11-13-92.......  Registration for Classification
                                         as Refugee.

[[Page 779]]

 
I-594................  11-01-83.......  Notice to Appear for Adjustment
                                         of Status.
I-600................  04-11-91.......  Petition to Classify Orphan as
                                         an Immediate Relative.
I-600A...............  04-11-91.......  Application for Advance
                                         Processing of Orphan Petition.
I-601................  04-11-91.......  Application for Waiver of
                                         Grounds of Excludability.
I-602................  10-01-85.......  Application by Refugee for
                                         Waiver on Grounds of
                                         Excludability.
I-607................  02-01-72.......  Order Re Waiver of Excludability
                                         Pursuant to Section 212(h), (i)
                                         and Permission to Reapply.
I-612................  04-11-91.......  Application for Waiver of the
                                         Foreign Residence Requirement
                                         of section 212(e) of the
                                         Immigration and Nationality
                                         Act, as amended.
I-613................  03-30-83.......  Request for United States
                                         Information Agency
                                         Recommendation section 212(e)
                                         Waiver.
I-644................  11-01-82.......  Supplementary Statement for
                                         Graduate Medical Trainees.
I-688................  01-01-89.......  Temporary Resident Card.
I-688A...............  05-87..........  Employment Authorization Card.
I-688B...............  08-07-93.......  Employment Authorization Card.
I-690................  02-14-87.......  Application for Waiver of
                                         Grounds of Excludability under
                                         sections 245A or 210 of the
                                         Immigration and Nationality
                                         Act.
I-692................  06-07-89.......  Notice of Denial, Temporary
                                         Resident.
I-693................  09-01-87.......  Medical Examination of Aliens
                                         Seeking Adjustment of Status.
I-694................  11-09-88.......  Notice of Appeal of Decision
                                         under section 210 or 245A of
                                         the Immigration and Nationality
                                         Act.
I-695................  02-24-87.......  Application for Replacement of
                                         Form I-688A, Employment
                                         Authorization Card, or Form I-
                                         688, Temporary Residence Card
                                         (Under Pub. L. 99-603).
I-697A...............  01-26-90.......  Change of Address Card for
                                         Legalization, Special
                                         Agricultural Workers (SAW), and
                                         Replenishment Agricultural
                                         Workers (RAW).
I-698................  11-09-88.......  Application to Adjust Status
                                         from Temporary to Permanent
                                         Resident (Under section 245A of
                                         Pub. L. 99-603).
I-699................  10-20-88.......  Certificate of Satisfactory
                                         Pursuit.
I-701................  04-01-97.......  Detainee Transfer Worksheet.
I-730................  01-07-98.......  Refugee/Asylee Relative
                                         Petition.
I-736................  09-08-88.......  Guam Visa Waiver Information.
I-751................  12-04-91.......  Petition to Remove Conditions on
                                         Residence.
I-760................  07-22-87.......  Agreement Between Transportation
                                         Line, Operating Between Foreign
                                         Territory and Guam, and United
                                         States.
I-762................  11-30-87.......  Citation Pursuant to Section
                                         274A of the Immigration and
                                         Nationality Act.
I-765................  04-24-01.......  Application for Employment
                                         Authorization.
I-766................  01-03-96.......  Employment Authorization
                                         Document.
I-770................  04-01-97.......  Notice of Rights and Request for
                                         Disposition.
I-771................  04-01-97.......  Bond Computation Worksheet.
I-775................  04-01-97.......  Visa Waiver Pilot Program
                                         Agreement.
I-777................  06-16-88.......  Application for Issuance or
                                         Replacement of Northern Mariana
                                         Card.
I-791................  05-26-88.......  Visa Waiver Pilot Program
                                         Information Form.
I-800................  09-21-07.......  Petition to Classify a
                                         Convention Adoptee as an
                                         Immediate Relative.
I-800A...............  09-21-07.......  Application for Determination of
                                         Suitability to Adopt a Child
                                         from a Convention Country.
I-817................  04-26-01.......  Application for Family Unity
                                         Benefits.
I-821................  05-22-91.......  Application for Temporary
                                         Protected Status.
I-823................  09-10-96.......  Application--Alternative
                                         Inspection Services.
I-824................  10-01-91.......  Application for Action on an
                                         Approved Application or
                                         Petition.
I-826................  04-01-97.......  Notice of Rights and Request for
                                         Disposition
I-851................  04-01-97.......  Notice of Intent to Issue Final
                                         Administrative Removal Order.
I-851A...............  04-01-97.......  Final Administrative Removal
                                         Order.
I-854................  06-20-95.......  Inter-Agency Alien Witness and
                                         Informant Record.
I-860................  04-01-97.......  Notice and Order of Expedited
                                         Removal.
I-862................  04-01-97.......  Notice to Appear.
I-863................  04-01-97.......  Notice of Referral to
                                         Immigration Judge.
I-864................  09-15-2003.....  Affidavit of support under
                                         Section 213A of the Act.
I-864A...............  09-15-2003.....  Contract between sponsor and
                                         household member.
I-864EZ..............  09-15-2003.....  EZ Affidavit of support under
                                         Section 213A of the Act.
I-864W...............  09-15-2003.....  Intending immigrant's I-864
                                         exemption.
I-865................  10-06-97.......  Sponsor's Notice of Change of
                                         Address.
I-866................  04-15-97.......  Application--Checkpoint Pre-
                                         enrolled Access Lane.
I-867AB..............  04-01-97.......  Record of Sworn Statement in
                                         Proceedings under Section
                                         235(b)(1) of the Act.
I-869................  04-01-97.......  Record of Negative Credible Fear
                                         Finding and Request for Review
                                         by Immigration Judge.
I-881................  05-01-99.......  Application for Suspension of
                                         Deportation or Special Rule
                                         Cancellation of Removal
                                         (pursuant to section 203 of
                                         Pub. L. 105-100 (NACARA))
I-901................  02-09-04.......  Fee Remittance for Certain F, J,
                                         and M Nonimmigrants.
I-905................  04-15-02.......  Application for Authorization to
                                         Issue Certification for Health
                                         Care Workers.
I-907................  05-16-01.......  Request for Premium Processing
                                         Services.
I-914................  1-22-02........  Application for T Nonimmigrant
                                         Status.
I-918................  8/15/07........  Petition for U Nonimmigrant
                                         Status.
I-918 Supplement A...  8/15/07........  Petition for Qualifying Family
                                         Member of U-1 Recipient.
I-918 Supplement B...  8/15/07........  U Nonimmigrant Status
                                         Certification.
IAP-66...............  10-78..........  Certificate of Eligiblity for
                                         Exchange Visitor Status.
ICAO.................  ...............  International Civil Aviation
                                         Organization's General
                                         Declaration.

[[Page 780]]

 
MA 7-50..............  04-70..........  Application for Alien Employment
                                         Certification. (Part I--
                                         Statement of Qualifications of
                                         Aliens MA 7-50A). (Part II--Job
                                         Offer for Alien Employment MA 7-
                                         50B).
OF-157...............  02-88..........  Medical Examination of
                                         Applicants for United States
                                         Visas.
7507.................  03-69..........  Bureau of Customs' General
                                         Declaration.
------------------------------------------------------------------------


[59 FR 25556, May 17, 1994]

    Editorial Note: 1. For Federal Register citations affecting Sec. 
299.1, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.

    Effective Date Note: At 73 FR 75563, Dec. 12, 2008, Sec. 299.1 was 
amended by adding the entries ``I-485, Supplement E'' and ``I-929'', 
effective Jan. 12, 2009. For the convenience of the user, the added text 
is set forth as follows:



Sec. 299.1  Prescribed forms.

                                * * * * *

------------------------------------------------------------------------
            Form No.              Edition date            Title
------------------------------------------------------------------------
 
                                  * * *
I-485, Supplement E............        10/31/08  T and U Nonimmigrant
                                                  Supplement to Form I-
                                                  485 Instructions.
 
                                  * * *
I-929..........................        10/31/08  Petition for Qualifying
                                                  Family Member of a U-1
                                                  Nonimmigrant.
 
                                  * * *
------------------------------------------------------------------------



Sec. 299.2  Distribution of Service forms.

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

[43 FR 14304, Apr. 5, 1978, as amended at 45 FR 6777, Jan. 30, 1980; 45 
FR 21611, Apr. 2, 1980]



Sec. 299.3  Forms available from Superintendent of Documents.

    The Immigration and Naturalization Service forms listed in this 
section may be obtained, upon prepayment, from the Superintendent of 
Documents, who is authorized to print these forms for sale to the 
public. Prices are set by the Superintendent of Documents, Government 
Printing Office, and are subject to change without notice. A small 
supply of these forms shall be set aside by immigration officers for 
free distribution and official use.

------------------------------------------------------------------------
                                            GPO Stock No. (S/  Price per
                 Form No.                           N)          100/pad
------------------------------------------------------------------------
G-28......................................    027-002-00218-1      14.00
G-325A....................................    027-002-00277-6      21.00
G-325B....................................    027-002-00349-7      13.00
I-9.......................................    027-002-00417-5      13.00
I-20AB/I-20ID.............................    027-002-00373-0      25.00
I-20MN....................................    027-002-00403-5      26.00
I-90......................................    027-002-00433-7      21.00
I-92......................................    027-002-00124-9       5.00
I-94 (English)............................    027-002-00318-7      11.00

[[Page 781]]

 
I-95AB....................................    027-002-00311-0      27.00
I-129.....................................    027-002-00436-1  \1\ 31.00
I-129F....................................    027-002-00389-6      26.00
I-129S....................................    027-002-00425-6      17.00
I-130.....................................    027-002-00432-9      32.00
I-131.....................................    027-002-00424-8      11.00
I-134.....................................    027-002-00315-2      25.00
I-140.....................................    027-002-00429-9      11.00
I-408.....................................    027-002-00431-1      14.00
I-418.....................................    027-002-00320-9      11.00
I-485.....................................    027-002-00434-5      37.00
I-538.....................................    027-002-00435-3      14.00
I-539.....................................    027-002-00420-5      14.00
I-693.....................................    027-002-00355-1      43.00
I-698.....................................    027-002-00375-6      18.00
I-751.....................................    027-002-00422-1      15.00
I-765.....................................    027-002-00441-8      49.00
I-817.....................................    027-002-00415-9      36.00
I-824.....................................    027-002-00423-0      10.00
N-400.....................................    027-002-00419-1      17.00
------------------------------------------------------------------------
\1\ Per 50.


[59 FR 25558, May 17, 1994, as amended at 61 FR 47800, Sept. 11, 1996]



Sec. 299.4  Reproduction of Public Use Forms by public and private entities.

    (a) Duplication requirements. All forms required for applying for a 
specific benefit in compliance with the immigration and naturalization 
regulations, including those which have been made available for purchase 
by the Superintendent of Documents as listed in Sec. 299.3, may be 
printed or otherwise reproduced. Such reproduction must be by an 
appropriate duplicating process and at the expense of the public or 
private entity. Forms printed or reproduced by public or private 
entities shall be:
    (1) In black ink or dye that will not fade or ``feather'' within 20 
years, and
    (2) Conform to the officially printed forms currently in use with 
respect to:
    (i) Size,
    (ii) Wording and language,
    (iii) Arrangement, style and size of type, and
    (iv) Paper specifications (White, standard copier or typing paper).
    (b) Requirements for electronic generation. Public or private 
entities may electronically generate forms required for applying for a 
specific benefit, in compliance with the immigration and naturalization 
regulations, at their own expense. This includes forms that have been 
made available for purchase by the Superintendent of Documents, as 
listed in Sec. 299.3 provided that each form satisfies the following 
requirements:
    (1) An electronic reproduction must be complete, containing all 
questions which appear on the official form. The wording and punctuation 
of all data elements and identifying information must match exactly. No 
data elements may be added or deleted. The sequence and format for each 
item on the form must be replicated to mirror the authorized agency 
form. Each item must be printed on the same page in the same location. 
Likewise, multiple-part sets may be printed as single sheets provided 
that the destination of the carbon copy is clearly identified on the 
bottom of the form. An electronic reproduction of a multi page form does 
not need to match the head-to-head or head-to-foot printing 
configuration of the official form. In the case of the Form I-20 A-B/I-
20ID, Certificate of Eligibility for Nonimmigrant (F-1) Student Status--
For Academic and Language Students, private entities may generate this 
form in single-page format rather than double-sided format, provided 
that the student's name, school, and date of birth is printed in a 
shaded box on the top of page 4 of the form, using the same type size 
and font style as the body of the form.
    (2) The final form must match the design, format, and dimensions of 
the official form. All blocks must remain the same size and lines must 
remain the same length. No variations will be permissible.
    (c) The accuracy of electronically generated forms is the 
responsibility of the private entities. Changes to existing forms, as 
announced by the Service, must be promptly incorporated into the private 
entity software program application. Deviations from the aforementioned 
standards may result in the return or denial of the applicant's 
application/petition for a particular benefit.
    (d) Electronic printers that provide for near-letter-quality 
documents should be used to generate electronic forms. Dot matrix 
printers that are only capable of producing draft quality documents 
should not be used for form generation, but may be used for the entry of 
data in a preprinted form where appropriate.

[[Page 782]]

    (e) Any form with poor print quality or other defect which renders 
it illegible, difficult to read, or displays added or missing data 
elements, will be rejected by the Service. Any problems regarding the 
acceptability of a specific electronic version of a particular Service 
form may be brought to the attention of the Director, Policy Directives 
and Instructions Branch, 425 ``I'' Street, NW., Room 4034, Washington, 
DC 20536, telephone number (202) 514-3048.

[59 FR 25558, May 17, 1994, as amended at 61 FR 47801, Sept. 11, 1996; 
65 FR 61260, Oct. 17, 2000]



Sec. 299.5  Display of control numbers.

    The following listing includes the Immigration and Naturalization 
Service public use forms and reports which are cited for use throughout 
Title 8 of the Code of Federal Regulations, Chapter I. The information 
collection requirements contained in this title have been approved by 
the Office of Management and Budget (OMB) under the provisions of the 
Paperwork Reduction Act. The form numbers, titles, and OMB control 
numbers read as follows:

------------------------------------------------------------------------
                                                              Currently
       Form No.                     Form title              assigned OMB
                                                             Control No.
------------------------------------------------------------------------
AR-11.................  Alien's Change of Address Card....     1115-0003
G-79A.................  Data Relating to Beneficiary of        1115-0044
                         Private Bill.
G-146.................  Nonimmigrant Checkout Letter......     1115-0075
G-325.................  Biographic Information............     1115-0066
G-639.................  Freedom of Information/Privacy Act     1115-0087
                         Request.
G-845.................  Document Verification Request.....     1115-0122
G-845S................  Document Verification Request          1115-0122
                         (SAVE).
G-845T................  Document Verification Request          1115-0122
                         (TVS).
G-884.................  Request for the Return of Original     1115-0162
                         Document(s).
G-942.................  Applicant Survey..................     1115-0188
G-1041................  Genealogy Index Search Request....     1615-0096
G-1041A...............  Genealogy Records Request.........     1615-0096
I-9...................  Employment Eligibility                 1115-0136
                         Verification.
I-17..................  Petition for Approval of School        1115-0070
                         for Attendance by Nonimmigrant
                         Students.
I-20A-B/I-20ID........  Certificate of Eligibility of          1115-0051
                         Nonimmigrant (F-1) Student
                         Status--For Academic and Language
                         Students.
I-20M-N/I-20ID........  Verification of Eligibility for        1115-0051
                         Nonimmigrant (M-1) Student Status
                         for Vocational Students.
I-43..................  Baggage and Personal Effects of        1115-0063
                         Detained Alien.
I-68..................  Canadian Border Boat Landing           1115-0065
                         Permit.
I-90..................  Application to Replace Alien           1115-0004
                         Registration Card.
I-92..................  Aircraft/Vessel Report............     1115-0078
I-94..................  Arrival-Depature Report...........     1115-0077
I-94T.................  Arrival-Departure Record (Transit      1115-0139
                         without VISA).
I-94W.................  Nonimmigrant Visa Waiver Arrival--     1115-0148
                         Departure Document.
I-95AB................  Crewman's Landing Permit..........     1115-0040
I-102.................  Application for Replacement/           1115-0079
                         Initial Nonimmigrant Arrival--
                         Departure Document.
I-104.................  Alien Address Report Card.........     1115-0115
I-129.................  Petition for a Nonimmigrant Worker     1615-0009
I-129F................  Petition for Alien Fiance(e)......     1115-0071
I-129S................  Nonimmigrant Petition Based on         1115-0128
                         Blanket L Petition.
I-129W................  H-1B Data Collection and Filing        1115-0225
                         Exemption.
I-130.................  Petition for Alien Relative.......     1115-0054
I-131.................  Application for Travel Document...     1115-0005
I-134.................  Affidavit of Support..............     1115-0062
I-140.................  Immigrant Petition for Alien           1115-0061
                         Worker.
I-191.................  Application for Advance Permission     1115-0032
                         to Return to Unrelinquished
                         Domicile.
I-192.................  Application for Advance Permission     1115-0028
                         to Enter as Nonimmigrant.
I-193.................  Application for Waiver of Passport     1115-0042
                         and/or Visa.
I-212.................  Application for Permission to          1115-0099
                         Reapply for Admission into the
                         U.S. After Deportation or Removal.
I-243.................  Application for Removal...........     1115-0020
I-246                   Application for Stay of Removal...     1115-0055
I-356.................  Request for Cancellation of Public     1115-0046
                         Charge Bond.
I-360.................  Petition for Amerasian, Widow(er)      1615-0020
                         or Special Immigrant.
I-361.................  Affidavit of Financial Support and     1115-0118
                         Intent to Petition for Legal
                         Custody for Amerasian.
I-363.................  Request to Enforce Affidavit of        1115-0116
                         Financial Support and Intent to
                         Petition for Legal Custody for
                         Amerasian.
I-408.................  Application to Pay Off or              1115-0073
                         Discharge Alien Crewman.
I-418.................  Passenger List-Crew List..........     1115-0083
I-485.................  Application to Register Permanent      1115-0053
                         Resident or Adjust Status.
I-485 Supplement B....  NACARA Supplement to Form I-485        1115-0221
                         Instructions.

[[Page 783]]

 
I-485 Supplement C....  HRIFA Supplement to Form I-485         1115-0229
                         Instructions.
I-485 Supplement D....  LIFE Legalization Supplement to        1115-0239
                         Form I-485 Instructions.
I-508.................  Waiver of Rights, Privileges,          1115-0037
                         Exemptions, and Immunities.
I-510.................  Guarantee of Payment..............     1115-0029
I-515.................  Notice to Student or Exchange          1115-0068
                         Visitor.
I-526.................  Immigrant Petition by Alien            1115-0081
                         Entrepreneur.
I-538.................  Certification by Designated School     1115-0060
                         Official.
I-539.................  Application to Extend/Change           1115-0093
                         Nonimmigrant Status.
                        I-539 Supplement A Filing              1115-0237
                         Instructions for V nonimmigrant
                         status.
I-566.................  Inter-Agency Record of Individual      1115-0090
                         Requesting Change/Adjustment to
                         or from, A or G Status, or
                         Requesting A and G Dependent
                         Employment Authorization.
I-589                   Application for Asylum and             1115-0086
                         Withholding of Removal.
I-590.................  Registration for Classification as     1115-0057
                         Refugee (section 207, I&N Act).
I-600.................  Petition to Classify Orphan as an      1115-0049
                         Immediate Relative.
I-600A................  Application for Advance Processing     1115-0049
                         or Orphan Petition.
I-601.................  Application for Waiver of Grounds      1115-0048
                         of Excludability.
I-602.................  Application by Refugee for Waiver      1115-0098
                         of Grounds of Excludability.
I-612.................  Application for Waiver of the          1115-0059
                         Foreign Residence Requirement.
I-643.................  Health and Human Services              1115-0104
                         Statistical Data for Refugee
                         Asylee Adjusting Status.
I-644.................  Supplementary Statement for            1115-0108
                         Graduate Medical Trainees.
I-690.................  Application for Waiver of Grounds      1115-0132
                         of Excludability.
I-693.................  Medical Examination of Aliens          1115-0134
                         Seeking Adjustment of Status.
I-694.................  Notice of Appeal of Decision......     1115-0135
I-695.................  Application of Temporary               1115-0129
                         Replacement Card.
I-697A................  Changes of Address Card...........     1115-0130
I-698.................  Application to Adjust Status from      1115-0155
                         Temporary to Permanent Resident
                         (Under Section 245A of Pub. L. 99-
                         603).
I-699.................  Certificate of Satisfactory            1115-0154
                         Pursuit.
I-730.................  Refugee/Asylee Relative Petition..     1115-0121
I-736.................  Guam Visa Waiver Information......     1115-0141
I-751.................  Petition to Remove Conditions on       1115-0145
                         Residence.
I-760.................  Guam Visa Waiver Agreement........     1115-0140
I-765.................  Application for Employment             1115-0163
                         Authorization.
I-775.................  Visa Waiver Pilot Program              1115-0149
                         Agreement.
I-777.................  Application for Issuance or            1115-0151
                         Replacement of Northern Mariana
                         Card.
I-817.................  Application for Family Unity           1115-0166
                         Benefits.
I-821.................  Application for Temporary              1115-0170
                         Protected Status.
I-823.................  Application--Alternative               1115-0174
                         Inspection Services.
I-824.................  Application for Action on an           1115-0176
                         Approved Application or Petition.
I-829.................  Petition by Entrepreneur to Remove     1115-0190
                         Conditions.
I-833.................  INSPASS Application...............     1115-0179
I-847.................  Report of Complaint...............     1115-0191
I-854.................  Inter-Agency Alien Witness and         1115-0196
                         Informant Record.
I-855.................  ABC Change of Address Form........     1115-0197
I-864.................  Affidavit of support under Section     1615-0075
                         213A of the Act.
I-864A................  Contract between sponsor and           1615-0075
                         household member.
I-864EZ...............  EZ Affidavit of support under          1615-0075
                         Section 213A of the Act.
I-864W................  Intending immigrant's I-864            1615-0075
                         Exemption.
I-865.................  Sponsor's Change of Address.......     1615-0076
I-866.................  Application--Checkpoint Pre-           1115-0210
                         enrolled Access Lane.
I-881.................  Application for Suspension of          1115-0227
                         Deportation or Special Rule
                         Cancellation of Removal (pursuant
                         to section 203 of Pub. L. 105-100
                         (NACARA)).
I-901.................  Fee Remittance For Certain F, J,       1653-0034
                         and M Nonimmigrants..
I-905.................  Application for Authorization to       1115-0238
                         Issue Certification for Health
                         Care Workers.
I-907.................  Request for Premium Processing         1115-0241
                         Services.
I-914.................  Application for T Nonimmigrant         1115-0246
                         Status.
I-918.................  Petition for U Nonimmigrant Status     1615-0104
I-918 Supplement A....  Petition for Qualifying Family         1615-0104
                         Member of U-1 Recipient.
I-918 Supplement B....  U Nonimmigrant Status                  1615-0104
                         Certification.
M-398.................  Systematic Alien Verification for      1115-0185
                         Entitlements User Satisfaction
                         Survey.
N-4...................  Monthly Report--Naturalization         1115-0189
                         Papers Forwarded.
N-14A.................  Arrival Information...............     1115-0082
N-25..................  Request for Verification of            1115-0007
                         Naturalization.
N-300.................  Application to File Declaration of     1115-0008
                         Intention.
N-336.................  Request for Hearing on a Decision      1115-0180
                         in Naturalization Procedures
                         under Section 336 of the Act.
N-400.................  Application for Naturalization....     1115-0009
N-422.................  Form letter re: Information from       1115-0011
                         Selective Service File.
N-426.................  Request for Certification of           1115-0022
                         Military or Naval Service.
N-445.................  Notice of Naturalization Oath          1115-0052
                         Ceremony.
N-455.................  Application for Transfer of            1115-0035
                         Petition for Naturalization.
N-470.................  Application to Preserve Residence      1115-0014
                         for Naturalization Purpose.

[[Page 784]]

 
N-565.................  Application for Replacement            1115-0015
                         Naturalization/Citizenship
                         Document.
N-600.................  Application for Certification of       1115-0018
                         Citizenship.
N-643.................  Application for Certificate of         1115-0152
                         Citizenship in Behalf of an
                         Adopted Child.
N-644.................  Application for Posthumous             1115-0173
                         Citizenship.
N-648.................  Medical Certification for              1115-0205
                         Disability Exceptions.
                        User Fee..........................     1115-0142
                        Judicial Recommendations Against       1115-0158
                         Deportation, Controlled Substance
                         Violations.
                        Dedicated Commuter Lane Usage          1115-0181
                         Survey.
                        Guidelines on Producing Master         1115-0182
                         Exhibits for Asylum Application.
                        The Immigration and Naturalization     1115-0183
                         Service is Soliciting Proposals
                         from Interested Parties to
                         Participate in Pilot Immigration
                         Program (Notice).
                        Emergency Federal Law Enforcement      1115-0184
                         Assistance.
                        Nonimmigrant Classes; NATO-1, 2,       1115-0187
                         3, 4, 5, 6, and 7; Control of
                         Employment of Aliens.
                        Telephone Verification System          1115-0192
                         (TVS) Pilot Phase II.
                        Generic Clearance of Customer          1115-0195
                         Service Surveys.
                        Certificates for Health Care           1115-0226
                         Benefits.
------------------------------------------------------------------------


[59 FR 25559, May 17, 1994]

    Editorial Note: For Federal Register citations affecting Sec. 
299.5, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.

    Effective Date Note: At 73 FR 75564, Dec. 12, 2008, Sec. 299.5 was 
amended by by adding the entries ``I-485, Supplement E'' and ``I-929'', 
effective Jan. 12, 2009. For the convenience of the user, the added text 
is set forth as follows:



Sec. 299.5  Display of control numbers.

                                * * * * *

------------------------------------------------------------------------
                                                     Currently assigned
          Form No.                 Form title          OMB control No.
------------------------------------------------------------------------
 
                                 * * * *
I-485, Supplement E.........  T and U Nonimmigrant             1615-0023
                               Supplement to Form
                               I-485 Instructions.
 
                                 * * * *
I-929.......................  Petition for                     1615-0106
                               Qualifying Family
                               Member of a U-1
                               Nonimmigrant.
 
                                   * *
------------------------------------------------------------------------


[[Page 785]]



                  SUBCHAPTER C_NATIONALITY REGULATIONS



PART 301_NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH--Table of 

Contents




    Authority: 8 U.S.C. 1103, 1401; 8 CFR part 2.

    Source: 62 FR 39927, July 25, 1997, unless otherwise noted.



Sec. 301.1  Procedures.

    (a) Application. (1) A person residing in the United States who 
desires to be documented as a United States citizen pursuant to section 
301(h) of the Act may apply for a passport at a United States passport 
agency or may submit an application on Form N-600, Application for 
Certificate of Citizenship, to the Service, as provided in 8 CFR part 
341. Such application shall be filed with the Service office having 
jurisdiction over the applicant's place of residence, or with such other 
Service office as the Commissioner may designate. It must be accompanied 
by the fee specified in 8 CFR 103.7(b)(1). The application also must be 
accompanied by supporting documentary and other evidence essential to 
establish the claimed citizenship, such as birth, marriage, death, and 
divorce certificates. The applicant will be notified in writing when and 
where to appear before a Service officer for examination of his or her 
application.
    (2) A person residing outside of the United States who desires to be 
documented as a United States citizen under section 301(h) of the Act 
shall make his or her claim at a United States embassy or consulate, in 
accordance with such regulations as may be prescribed in the Secretary 
of State.
    (b) Oath of allegiance; issuance of certificate. Upon determination 
by the district director that a person is a United States citizen 
pursuant to section 301(h) of the Act, the person shall take the oath of 
allegiance, prescribed in 8 CFR part 337, before an officer of the 
Service designated to administer the oath of allegiance within the 
United States, and a certificate of citizenship shall be issued. The 
person shall be considered a United States citizen as of the date of his 
or her birth.



PART 306_SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: VIRGIN ISLANDERS--

Table of Contents




Sec.
306.1 Persons eligible.
306.2 United States citizenship; when acquired.
306.11 Preliminary application form; filing; examination.
306.12 Renunciation forms; disposition.

    Authority: Secs. 103, 306, 332, 66 Stat. 173, 237, 252; 8 U.S.C. 
1103, 1406, 1443.

    Source: 22 FR 9812, Dec. 6, 1957, unless otherwise noted.



Sec. 306.1  Persons eligible.

    Any Danish citizen who resided in the Virgin Islands of the United 
States on January 17, 1917, and in those Islands, Puerto Rico, or the 
United States on February 25, 1927, and who had preserved his Danish 
citizenship by making the declaration prescribed by Article VI of the 
treaty entered into between the United States and Denmark on August 4, 
1916, and proclaimed January 25, 1917, may renounce his Danish 
citizenship before any court of record in the United States irrespective 
of his place of residence, in accordance with the provisions of this 
part.



Sec. 306.2  United States citizenship; when acquired.

    Immediately upon making the declaration of renunciation as described 
in Sec. 306.12 the declarant shall be deemed to be a citizen of the 
United States. No certificate of naturalization or of citizenship shall 
be issued by the clerk of court to any person obtaining, or who has 
obtained citizenship solely under section 306(a)(1) of the Immigration 
and Nationality Act or under section 1 of the act of February 25, 1927.



Sec. 306.11  Preliminary application form; filing; examination.

    A person of the class described in Sec. 306.1 shall submit to the 
Service on Form N-350 preliminary application to

[[Page 786]]

renounce Danish citizenship, in accordance with the instructions 
contained therein. The applicant shall be notified in writing when and 
where to appear before a representative of the Service for examination 
as to his eligibility to renounce Danish citizenship and for assistance 
in filing the renunciation.



Sec. 306.12  Renunciation forms; disposition.

    The renunciation shall be made and executed by the applicant under 
oath, in duplicate, on Form N-351 and filed in the office of the clerk 
of court. The usual procedural requirements of the Immigration and 
Nationality Act shall not apply to proceedings under this part. The fee 
shall be fixed by the court or the clerk thereof in accordance with the 
law and rules of the court, and no accounting therefor shall be required 
to be made to the Service. The clerk shall retain the original of Form 
N-351 as the court record and forward the duplicate to the district 
director exercising administrative naturalization jurisdiction over the 
area in which the court is located.



PART 310_NATURALIZATION AUTHORITY--Table of Contents




Sec.
310.1 Administrative naturalization authority.
310.2 Jurisdiction to accept applications for naturalization.
310.3 Administration of the oath of allegiance.
310.4 Judicial naturalization authority and withdrawal of petitions.
310.5 Judicial review.

    Authority: 8 U.S.C. 1103, 1421, 1443, 1447, 1448; 8 CFR 2.

    Source: 56 FR 50480, Oct. 7, 1991, unless otherwise noted.



Sec. 310.1  Administrative naturalization authority.

    (a) Attorney General. Commencing October 1, 1991, section 310 of the 
Act confers the sole authority to naturalize persons as citizens of the 
United States upon the Attorney General.
    (b) Commissioner of the Immigration and Naturalization Service. 
Pursuant to Sec. 2.1 of this chapter, the Commissioner of the 
Immigration and Naturalization Service is authorized to perform such 
acts as are necessary and proper to implement the Attorney General's 
authority under the provisions of section 310 of the Act.



Sec. 310.2  Jurisdiction to accept applications for naturalization.

    The Service shall accept an application for naturalization from an 
applicant who is subject to a continuous residence requirement under 
section 316(a) or 319(a) of the Act as much as three months before the 
date upon which the applicant would otherwise satisfy such continuous 
residence requirement in the State or Service district where residence 
is to be established for naturalization purposes. At the time of 
examination on the application, the applicant will be required to prove 
that he or she satisfies the residence requirements for the residence 
reflected in the application.



Sec. 310.3  Administration of the oath of allegiance.

    (a) An applicant for naturalization may elect, at the time of filing 
of, or at the examination on, the application, to have the oath of 
allegiance and renunciation under section 337(a) of the Act administered 
in a public ceremony conducted by the Service or by any court described 
in section 310(b) of the Act, subject to section 310(b)(1)(B) of the 
Act.
    (b) The jurisdiction of all such courts specified to administer the 
oath of allegiance shall extend only to those persons who are resident 
within the respective jurisdictional limits of such courts, except as 
otherwise provided in section 316(f)(2) of the Act. Persons who 
temporarily reside within the jurisdictional limits of a court in order 
to pursue an application properly filed pursuant to section 319(b), 
328(a), or 329 of the Act or section 405 of the Immigration Act of 1990 
are not subject to the exclusive jurisdiction provisions of section 
310(b)(1)(B) of the Act.
    (c)(1) A court that wishes to exercise exclusive jurisdiction to 
administer the oath of allegiance for the 45-day period specified in 
section 310(b)(1)(B) of the Act shall notify, in writing, the district 
director of the Service office having jurisdiction over the place in

[[Page 787]]

which the court is located, of the court's intent to exercise such 
exclusive jurisdiction.
    (2) At least 60 days prior to the holding of any oath administration 
ceremony referred to in Sec. 337.8 of this chapter, the clerk of court 
shall give written notice to the appropriate district director of the 
time, date, and place of such ceremony and of the number of persons who 
may be accommodated.
    (d) A court that has notified the Service pursuant to paragraph 
(c)(1) of this section shall have exclusive authority to administer the 
oath of allegiance to persons residing within its jurisdiction for a 
period of 45 days beginning on the date that the Service notifies the 
clerk of court of the applicant's eligibility for naturalization. Such 
exclusive authority shall be effective only if on the date the Service 
notifies the clerk of court of the applicant's eligibility, the court 
has notified the Service of the day or days during such 45-day period on 
which the court has scheduled oath administration ceremonies available 
to the applicant. The Service must submit the notification of the 
applicant's eligibility to the clerk of court within 10 days of the 
approval of the application pursuant to Sec. 337.8 of this chapter.
    (e) Waiver of exclusive authority. A court exercising exclusive 
authority to administer the oath of allegiance pursuant to paragraph (c) 
of this section may waive such exclusive authority when it is determined 
by the court that the Service failed to notify the court within a 
reasonable time prior to a scheduled oath ceremony of the applicant's 
eligibility such that it is impractical for the applicant to appear at 
that ceremony. The court shall notify the district director in writing 
of the waiver of exclusive authority as it relates to a specific 
applicant, and the Service shall promptly notify the applicant. The 
Service shall then arrange for the administration of the oath of 
allegiance pursuant to Sec. 337.2 of this chapter.

[58 FR 49911, Sept. 24, 1993, as amended at 66 FR 32144, June 13, 2001]



Sec. 310.4  Judicial naturalization authority and withdrawal of petitions.

    (a) Jurisdiction. No court shall have jurisdiction under section 
310(a) of the Act, to naturalize a person unless a petition for 
naturalization with respect to that person was filed with the 
naturalization court before October 1, 1991.
    (b) Withdrawal of petitions. (1) In the case of any petition for 
naturalization which was pending in any court as of November 29, 1990, 
the petitioner may elect to withdraw such petition, and have the 
application for naturalization considered under the administrative 
naturalization process. Such petition must be withdrawn after October 1, 
1991, but not later than December 31, 1991.
    (2) Except as provided in paragraph (b)(1) of this section, the 
petitioner shall not be permitted to withdraw his or her petition for 
naturalization, unless the Attorney General consents to the withdrawal.
    (c) Judicial proceedings. (1) All pending petitions not withdrawn in 
the manner and terms described in paragraph (b) of this section, shall 
be decided, on the merits, by the naturalization court, in conformity 
with the applicable provisions of the judicial naturalization authority 
of the prior statute. The reviewing court shall enter a final order.
    (2) In cases where the petitioner fails to prosecute his or her 
petition, the court shall decide the petition upon its merits unless the 
Attorney General moves that the petition be dismissed for lack of 
prosecution.



Sec. 310.5  Judicial review.

    (a) After 120 days following examination. An applicant for 
naturalization may seek judicial review of a pending application for 
naturalization in those instances where the Service fails to make a 
determination under section 335 of the Act within 120 days after an 
examination is conducted under part 335 of this chapter. An applicant 
shall make a proper application for relief to the United States District 
Court having jurisdiction over the district in which the applicant 
resides. The court may either determine the issues

[[Page 788]]

brought before it on their merits, or remand the matter to the Service 
with appropriate instructions.
    (b) After denial of an application. After an application for 
naturalization is denied following a hearing before a Service officer 
pursuant to section 336(a) of the Act, the applicant may seek judicial 
review of the decision pursuant to section 310 of the Act.



PART 312_EDUCATIONAL REQUIREMENTS FOR NATURALIZATION--Table of Contents




Sec.
312.1 Literacy requirements.
312.2 Knowledge of history and government of the United States.
312.3 Standardized citizenship testing.
312.4 Selection of interpreter.
312.5 Failure to meet educational and literacy requirements.

    Authority: 8 U.S.C. 1103, 1423, 1443, 1447, 1448.

    Source: 56 FR 50481, Oct. 7, 1991, unless otherwise noted.



Sec. 312.1  Literacy requirements.

    (a) General. Except as otherwise provided in paragraph (b) of this 
section, no person shall be naturalized as a citizen of the United 
States upon his or her own application unless that person can 
demonstrate an understanding of the English language, including an 
ability to read, write, and speak words in ordinary usage in the English 
language.
    (b) Exceptions. The following persons need not demonstrate an 
ability to read, write and speak words in ordinary usage in the English 
language:
    (1) A person who, on the date of filing of his or her application 
for naturalization, is over 50 years of age and has been living in the 
United States for periods totalling at least 20 years subsequent to a 
lawful admission for permanent residence;
    (2) A person who, on the date of filing his or her application for 
naturalization, is over 55 years of age and has been living in the 
United States for periods totalling at least 15 years subsequent to a 
lawful admission for permanent residence; or
    (3) The requirements of paragraph(a) of this section shall not apply 
to any person who is unable, because of a medically determinable 
physical or mental impairment or combination of impairments which has 
lasted or is expected to last at least 12 months, to demonstrate an 
understanding of the English language as noted in paragraph (a) of this 
section. The loss of any cognitive abilities based on the direct effects 
of the illegal use of drugs will not be considered in determining 
whether a person is unable to demonstrate an understanding of the 
English language. For purposes of this paragraph, the term medically 
determinable means an impairment that results from anatomical, 
physiological, or psychological abnormalities which can be shown by 
medically acceptable clinical or laboratory diagnostic techniques to 
have resulted in functioning so impaired as to render an individual 
unable to demonstrate an understanding of the English language as 
required by this section, or that renders the individual unable to 
fulfill the requirements for English proficiency, even with reasonable 
modifications to the methods of determining English proficiency, as 
outlined in paragraph(c) of this section.
    (c) Literacy examination--(1) Verbal skills. The ability of an 
applicant to speak English shall be determined by a designated examiner 
from the applicant's answers to questions normally asked in the course 
of the examination.
    (2) Reading and writing skills. Except as noted in Sec. 312.3, an 
applicant's ability to read and write English shall be tested using 
excerpts from one or more parts of the Service authorized Federal 
Textbooks on Citizenship written at the elementary literacy level, 
Service publications M-289 and M-291. These textbooks may be purchased 
from the Superintendent of Documents, Government Printing Office, 
Washington, DC 20402, and are available at certain public educational 
institutions. An applicant's writing sample shall be retained in the 
applicant's Service file.

[56 FR 50481, Oct. 7, 1991, as amended at 62 FR 12923, Mar. 19, 1997; 62 
FR 15751, Apr. 2, 1997; 64 FR 7993, Feb. 18, 1999]

[[Page 789]]



Sec. 312.2  Knowledge of history and government of the United States.

    (a) General. No person shall be naturalized as a citizen of the 
United States upon his or her own application unless that person can 
demonstrate a knowledge and understanding of the fundamentals of the 
history, and of the principles and form of government, of the United 
States. A person who is exempt from the literacy requirement under Sec. 
312.1(b) (1) and (2) must still satisfy this requirement.
    (b) Exceptions. (1) The requirements of paragraph(a) of this section 
shall not apply to any person who is unable to demonstrate a knowledge 
and understanding of the fundamentals of the history, and of the 
principles and form of government of the United States because of a 
medically determinable physical or mental impairment, that already has 
or is expected to last at least 12 months. The loss of any cognitive 
skills based on the direct effects of the illegal use of drugs will not 
be considered in determining whether an individual may be exempted. For 
the purposes of this paragraph the term medically determinable means an 
impairment that results from anatomical, physiological, or psychological 
abnormalities which can be shown by medically acceptable clinical or 
laboratory diagnosis techniques to have resulted in functioning so 
impaired as to render an individual to be unable to demonstrate the 
knowledge required by this section or that renders the individuals 
unable to participate in the testing procedures for naturalization, even 
with reasonable modifications.
    (2) Medical certification. All persons applying for naturalization 
and seeking an exception from the requirements of Sec. 312.1(a) and 
paragraph(a) of this section based on the disability exceptions must 
submit Form N-648, Medical Certification for Disability Exceptions, to 
be completed by a medical or osteopathic doctor licensed to practice 
medicine in the United States or a clinical psychologist licensed to 
practice psychology in the United States (including the United States 
territories of Guam, Puerto Rico, and the Virgin Islands). Form N-648 
must be submitted as an attachment to the applicant's Form N-400, 
Application for Naturalization. These medical professionals shall be 
experienced in diagnosing those with physical or mental medically 
determinable impairments and shall be able to attest to the origin, 
nature, and extent of the medical condition as it relates to the 
disability exceptions noted under Sec. 312.1(b)(3) and paragraph(b)(1) 
of this section. In addition, the medical professionals making the 
disability determination must sign a statement on the Form N-648 that 
they have answered all the questions in a complete and truthful manner, 
that they (and the applicant) agree to the release of all medical 
records relating to the applicant that may be requested by the Service 
and that they attest that any knowingly false or misleading statements 
may subject the medical professional to the penalties for perjury 
pursuant to title 18, United Stated Code, Section 1546 and to civil 
penalties under section 274C of the Act. The Service also reserves the 
right to refer the applicant to another authorized medical source for a 
supplemental disability determination. This option shall be invoked when 
the Service has credible doubts about the veracity of a medical 
certification that has been presented by the applicant. An affidavit or 
attestation by the applicant, his or her relatives, or guardian on his 
or her medical condition is not a sufficient medical attestation for 
purposes of satisfying this requirement.
    (c) History and government examination--(1) Procedure. The 
examination of an applicant's knowledge of the history and form of 
government of the United States shall be given orally by a designated 
examiner in the English language unless:
    (i) The applicant is exempt from the English literacy requirement 
under Sec. 312.1(b), in which case the examination may be conducted in 
the applicant's native language with the assistance of an interpreter 
selected in accordance with Sec. 312.4 of this part, but only if the 
applicant's command of spoken English is insufficient to conduct a valid 
examination in English;
    (ii) The applicant is required to satisfy and has satisfied the 
English literacy requirement under Sec. 312.1(a), but the officer 
conducting the examination

[[Page 790]]

determines that an inaccurate or incomplete record of the examination 
would result if the examination on technical or complex issues were 
conducted in English. In such a case the examination may be conducted in 
the applicant's native language, with the assistance of an interpreter 
selected in accordance with Sec. 312.4;
    (iii) The applicant has met the requirements of Sec. 312.3.
    (2) Scope and substance. The scope of the examination shall be 
limited to subject matters covered in the Service authorized Federal 
Textbooks on Citizenship except for the identity of current 
officeholders. In choosing the subject matters, in phrasing questions 
and in evaluating responses, due consideration shall be given to the 
applicant's education, background, age, length of residence in the 
United States, opportunities available and efforts made to acquire the 
requisite knowledge, and any other elements or factors relevant to an 
appraisal of the adequacy of the applicant's knowledge and 
understanding.

(Approved by the Office of Management and Budget under control number 
1115-0208)

[56 FR 50481, Oct. 7, 1991, as amended at 58 FR 49912, Sept. 24, 1993; 
62 FR 12923, Mar. 19, 1997; 62 FR 15751, Apr. 2, 1997; 64 FR 7993, Feb. 
18, 1999]



Sec. 312.3  Standardized citizenship testing.

    (a)(1) An applicant for naturalization may satisfy the reading and 
writing requirements of Sec. 312.1 and the knowledge requirements of 
Sec. 312.2 by passing, within one (1) year preceding the date on which 
he or she files an application for naturalization, or at any time 
subsequent to filing an application but prior to a final determination 
on the application, a standardized citizenship test given by an entity 
authorized by the Service to conduct such a test.
    (2) The applicant must still demonstrate his or her ability to speak 
and understand English in accordance with Sec. 312.1(c)(1). An 
applicant who passes a standardized citizenship test may submit evidence 
of passage of the test either with the submission of the application, at 
the examination on the application, or at the time of the second 
examination provided in Sec. 312.5(a). Any evidence of passage 
submitted by the applicant shall be subject to independent verification 
by the Service with the test provider.
    (3) An applicant who passes a standardized citizenship test as 
provided in paragraph (a)(1) of this section for naturalization shall 
not be reexamined at the Service naturalization interview on his or her 
ability to read and write English or on his or her knowledge of the 
history and form of government of the United States, unless the 
examining officer has reasonable cause to believe, subsequent to 
verification of the applicant's test results with the authorized testing 
entity, that the applicant's test results were obtained English may not 
be the sole reason for finding that the test results were obtained 
through fraud or misrepresentation. The Applicant's inability to speak 
English may not be the sole reason for finding that the test results 
were botained through fraud or misrepresentation. A written record of 
the officer's determination shall be made in the record of the 
application including the response from the testing entity concerning 
the applicant's test.
    (4) An applicant who has failed a standardized citizenship test will 
not be prejudiced by that failure during an examination conducted by the 
Service under Sec. Sec. 312.1 and 312.2, and may continue to pursue the 
application with the Service as if the applicant had never taken the 
standardized test.
    (b) An applicant who has obtained lawful permanent resident alien 
status pursuant to section 245A of the Act, and who, at that time 
demonstrated English language proficiency in reading and writing, and 
knowledge of the government and history of the United States through 
either an examination administered by the Service or a standardized 
section 312 test authorized by the Service for use with Legalization 
applicants as provided in section 245A(b)(1)(D)(iii) of the Act, will 
not be reexamined on those skills at the time of the naturalization 
interview. However, such applicant must still establish eligibility for 
naturalization through testimony in the English language.

[56 FR 50481, Oct. 7, 1991, as amended at 58 FR 49912, Sept. 24, 1993; 
60 FR 6651, Feb. 3, 1995]

[[Page 791]]



Sec. 312.4  Selection of interpreter.

    An interpreter to be used under Sec. 312.2 may be selected either 
by the applicant or by the Service. However, the Service reserves the 
right to disqualify an interpreter provided by the applicant in order to 
ensure the integrity of the examination. Where the Service disqualifies 
an interpreter, the Service must provide another interpreter for the 
applicant in a timely manner. If rescheduling of the interview is 
required, then a new date shall be set as soon as practicable so as not 
to delay unduly the adjudication of the application. The officer who 
disqualifies an interpreter shall make a written record of the reason(s) 
for disqualification as part of the record of the application.

[60 FR 6651, Feb. 3, 1995]



Sec. 312.5  Failure to meet educational and literacy requirements.

    (a) An applicant for naturalization who fails the English literacy 
or history and government test at the first examination will be afforded 
a second opportunity to pass the test(s) within 90 days after the first 
examination during the pendency of the application.
    (b) If an applicant who receives notice of the second scheduled 
examination date fails to appear without good cause for that second 
examination without prior notification to the Service, the applicant 
will be deemed to have failed this second examination. Before an 
applicant may request a postponement of the second examination to a date 
that is more than 90 days after the initial examination, the applicant 
must agree in writing to waive the requirement under section 336 of the 
Act that the Service must render a determination on the application 
within 120 days from the initial interview, and instead to permit the 
Service to render a decision within 120 days from the second interview.

[56 FR 50481, Oct. 7, 1991, as amended at 58 FR 49912, Sept. 24, 1993]



PART 313_MEMBERSHIP IN THE COMMUNIST PARTY OR ANY OTHER TOTALITARIAN 

ORGANIZATIONS--Table of Contents




Sec.
313.1 Definitions.
313.2 Prohibitions.
313.3 Statutory exemptions.
313.4 Procedure.

    Authority: 8 U.S.C. 1103, 1424, 1443.

    Source: 56 FR 50482, Oct. 7, 1991, unless otherwise noted.



Sec. 313.1  Definitions.

    For purposes of this part:
    Advocate includes, but is not limited to, advising, recommending, 
furthering by overt act, or admitting a belief in a doctrine, and may 
include the giving, lending, or promising of support or of money or any 
thing of value to be used for advocating such doctrine.
    Advocating Communism means advocating the establishment of a 
totalitarian communist dictatorship, including the economic, 
international, and governmental doctrines of world communism, in all 
countries of the world through the medium of an internationally 
coordinated communist revolutionary movement.
    Affiliation with an organization includes, but is not limited to, 
the giving, lending, or promising of support or of money or any thing of 
value, to that organization to be used for any purpose.
    Circulate includes circulating, distributing, or displaying a work.
    Communist Party includes:
    (1) The Communist Party of the United States;
    (2) The Communist Political Association;
    (3) The Communist Party of any state of the United States, of any 
foreign state, or of any political or geographical subdivision of any 
foreign state;
    (4) Any section, subsidiary, branch, affiliate, or subdivision of 
any such association or party;
    (5) The direct predecessors or successors of any such association or 
party, regardless of what name such group or organization may have used, 
may now bear, or may hereafter adopt; and

[[Page 792]]

    (6) Any communist-action or communist-front organization that is 
registered or required to be registered under section 786 of title 50 of 
the United States Code, provided that the applicant knew or had reason 
to believe, while he or she was a member, that such organization was a 
communist-front organization.
    Organization includes, but is not limited to, an organization, 
corporation, company, partnership, association, trust, foundation, or 
fund, and any group of persons, whether incorporated or not, permanently 
or temporarily associated together for joint action on any subject or 
subjects.
    Publication or publishing of a work includes writing or printing a 
work; permitting, authorizing, or consenting to the writing or printing 
of a work; and paying for the writing or printing of a work.
    Subversive is any individual who advocates or teaches:
    (1) Opposition to all organized government;
    (2) The overthrow, by force or violence or other unconstitutional 
means, of the Government of the United States or of all forms of law;
    (3) The duty, necessity, or propriety of the unlawful assaulting or 
killing, either individually or by position, of any officer or officers 
of the United States or of any other organized government, because of 
his, her, or their official character;
    (4) The unlawful damage, injury, or destruction of property; or
    (5) Sabotage.
    Totalitarian dictatorship and totalitarianism refer to systems of 
government not representative in fact and characterized by:
    (1) The existence of a single political party, organized on a 
dictatorial basis, with so close an identity between the policies of 
such party and the government policies of the country in which the party 
exists that the government and the party constitute an indistinguishable 
unit; and
    (2) The forcible suppression of all opposition to such a party.
    Totalitarian party includes:
    (1) Any party in the United States which advocates totalitarianism;
    (2) Any party in any State of the United States, in any foreign 
state, or in any political or geographical subdivision of any foreign 
state which advocates or practices totalitarianism;
    (3) Any section, subsidiary, branch, affiliate, or subdivision of 
any such association or party; and
    (4) The direct predecessors or successors of any such association or 
party, regardless of what name such group or organization may have used, 
may now bear, or may hereafter adopt.

[56 FR 50482, Oct. 7, 1991, as amended at 58 FR 49912, Sept. 24, 1993]



Sec. 313.2  Prohibitions.

    Except as provided in Sec. 313.3, no applicant for naturalization 
shall be naturalized as a citizen of the United States if, within ten 
years immediately preceding the filing of an application for 
naturalization or after such filing but before taking the oath of 
citizenship, such applicant:
    (a) Is or has been a member of or affiliated with the Communist 
Party or any other totalitarian party; or
    (b) Is or has advocated communism or the establishment in the United 
States of a totalitarian dictatorship; or
    (c) Is or has been a member of or affiliated with an organization 
that advocates communism or the establishment in the United States of a 
totalitarian dictatorship, either through its own utterance or through 
any written or printed matter published by such organization; or
    (d) Is or has been a subversive, or a member of, or affiliated with, 
a subversive organization; or
    (e) Knowingly is publishing or has published any subversive written 
or printed matter, or written or printed matter advocating communism; or
    (f) Knowingly circulates or has circulated, or knowingly possesses 
or has possessed for the purpose of circulating, subversive written or 
printed matter, or written or printed matter advocating communism; or
    (g) Is or has been a member of, or affiliated with, any organization 
that publishes or circulates, or that possesses for the purpose of 
publishing or circulating, any subversive written or printed matter, or 
any written or

[[Page 793]]

printed matter advocating communism.



Sec. 313.3  Statutory exemptions.

    (a) General. An applicant shall bear the burden of establishing that 
classification in one of the categories listed under Sec. 313.2 is not 
a bar to naturalization.
    (b) Exemptions. Despite membership in or affiliation with an 
organization covered by Sec. 313.2, an applicant may be naturalized if 
the applicant establishes that such membership or affiliation is or was:
    (1) Involuntary:
    (2) Without awareness of the nature or the aims of the organization, 
and was discontinued if the applicant became aware of the nature or aims 
of the organization;
    (3) Terminated prior to the attainment of age sixteen by the 
applicant, or more than ten years prior to the filing of the application 
for naturalization;
    (4) By operation of law; or
    (5) Necessary for purposes of obtaining employment, food rations, or 
other essentials of living.
    (c) Awareness and participation--(1) Exemption applicable. The 
exemption under paragraph (b)(2) of this section may be found to apply 
only to an applicant whose participation in the activities of an 
organization covered under Sec. 313.2 was minimal in nature, and who 
establishes that he or she was unaware of the nature of the organization 
while a member of the organization.
    (2) Exemptions inapplicable. The exemptions under paragraphs (b)(4) 
and (b)(5) of this section will not apply to any applicant who served as 
a functionary of an organization covered under Sec. 313.2, or who was 
aware of and believed in the organization's doctrines.
    (d) Essentials of living--(1) Exemption applicable. The exemption 
under paragraph (b)(5) of this section may be found to apply only to an 
applicant who can demonstrate:
    (i) That membership in the covered organization was necessary to 
obtain the essentials of living like food, shelter, clothing, 
employment, and an education, which were routinely available to the rest 
of the population--for purposes of this exemption, higher education will 
qualify as an essential of living only if the applicant can establish 
the existence of special circumstances which convert the need for higher 
education into a need as basic as the need for food or employment: and,
    (ii) That he or she participated only to the minimal extent 
necessary to receive the essential of living.
    (2) Exemption inapplicable. The exemption under paragraph (b)(5) of 
this section will not be applicable to an applicant who became a member 
of an organization covered under 313.2 to receive certain benefits:
    (i) Without compulsion from the governing body of the relevant 
country; or
    (ii) Which did not qualify as essentials of living.



Sec. 313.4  Procedure.

    In all cases in which the applicant claims membership or affiliation 
in any of the organizations covered by Sec. 313.2, the applicant shall 
attach to the application a detailed written statement describing such 
membership or affiliation, including the periods of membership or 
affiliation, whether the applicant held any office in the organization, 
and whether membership or affiliation was voluntary or involuntary. If 
the applicant alleges that membership or affiliation was involuntary, or 
that one of the other exemptions in Sec. 313.3 applies, the applicant's 
statement shall set forth the basis of that allegation.



PART 315_PERSONS INELIGIBLE TO CITIZENSHIP: EXEMPTION FROM MILITARY SERVICE--

Table of Contents




Sec.
315.1 Definitions.
315.2 Ineligibility and exceptions.
315.3 Evidence.
315.4 Exemption treaties.

    Authority: 8 U.S.C. 1103, 1443.

    Source: 56 FR 50483, Oct. 7, 1991, unless otherwise noted.



Sec. 315.1  Definitions.

    As used in this part:
    Exemption from military service means either:

[[Page 794]]

    (1) A permanent exemption from induction into the Armed Forces or 
the National Security Training Corps of the United States for military 
training or military service; or
    (2) The release or discharge from military training or military 
service in the Armed Forces or in the National Security Training Corps 
of the United States.
    Induction means compulsory entrance into military service of the 
United States whether by conscription or, after being notified of a 
pending conscription, by enlistment.
    Treaty national means an alien who is a national of a country with 
which the United States has a treaty relating to the reciprocal 
exemption of aliens from military training or military service.



Sec. 315.2  Ineligibility and exceptions.

    (a) Ineligibility. Except as provided in paragraph (b) of this 
section, any alien who has requested, applied for, and obtained an 
exemption from military service on the ground that he or she is an alien 
shall be ineligible for approval of his or her application for 
naturalization as a citizen of the United States.
    (b) Exceptions. The prohibition in paragraph (a) of this section 
does not apply to an alien who establishes by clear and convincing 
evidence that:
    (1) At the time that he or she requested an exemption from military 
service, the applicant had no liability for such service even in the 
absence of an exemption;
    (2) The applicant did not request or apply for the exemption from 
military service, but such exemption was automatically granted by the 
United States government;
    (3) The exemption from military service was based upon a ground 
other than the applicant's alienage;
    (4) In claiming an exemption from military service, the applicant 
did not knowingly and intentionally waive his or her eligibility for 
naturalization because he or she was misled by advice from a competent 
United States government authority, or from a competent authority of the 
government of his or her country of nationality, of the consequences of 
applying for an exemption from military service and was, therefore, 
unable to make an intelligent choice between exemption and citizenship;
    (5) The applicant applied for and received an exemption from 
military service on the basis of alienage, but was subsequently inducted 
into the Armed Forces, or the National Security Training Corps, of the 
United States; however, an applicant who voluntarily enlists in and 
serves in the Armed Forces of the United States, after applying for and 
receiving an exemption from military service on the basis of alienage, 
does not satisfy this exception to paragraph (a) of this section;
    (6) Prior to requesting the exemption from military service:
    (i) The applicant was a treaty national who had served in the armed 
forces of the country of which he or she was a national; however, a 
treaty national who did not serve in the armed forces of the country of 
nationality prior to requesting the exemption from military service does 
not satisfy this exception to paragraph (a) of this section;
    (ii) The applicant served a minimum of eighteen months in the armed 
forces of a nation that was a member of the North Atlantic Treaty 
Organization at the time of the applicant's service; or
    (iii) The applicant served a minimum of twelve months in the armed 
forces of a nation that was a member of the North Atlantic Treaty 
Organization at the time of the applicant's service, provided that the 
applicant applied for registration with the Selective Service 
Administration after September 28, 1971; or
    (7) The applicant is applying for naturalization pursuant to section 
329 of the Act.



Sec. 315.3  Evidence.

    (a) The records of the Selective Service System and the military 
department under which the alien served shall be conclusive evidence of 
whether the alien was relieved or discharged from liability for military 
service because he or she was an alien.
    (b) The regulations of the Selective Service Administration and its 
predecessors will be controlling with respect to the requirement to 
register for, and

[[Page 795]]

liability for, service in the Armed Forces of the United States.



Sec. 315.4  Exemption treaties.

    (a) The following countries currently have effective treaties 
providing reciprocal exemption of aliens from military service:

Argentina (Art. X, 10 Stat. 1005, 1009, effective 1853)
Austria (Art. VI, 47 Stat. 1876, 1880, effective 1928)
China (Art. XIV, 63 Stat. 1299, 1311, effective 1946)
Costa Rica (Art. IX, 10 Stat. 916, 921, effective 1851)
Estonia (Art. VI, 44 Stat. 2379, 2381, effective 1925)
Honduras (Art. VI, 45 Stat. 2618, 2622, effective 1927)
Ireland (Art. III, 1 US 785, 789, effective 1950)
Italy (Art. XIII, 63 Stat. 2255, 2272, effective 1948)
Latvia (Art. VI, 45 Stat. 2641, 2643, effective 1928)
Liberia (Art. VI, 54 Stat. 1739, 1742, effective 1938)
Norway (Art. VI, 47 Stat. 2135, 2139, effective 1928)
Paraguay (Art. XI, 12 Stat. 1091, 1096, effective 1859)
Spain (Art. V, 33 Stat. 2105, 2108, effective 1902)
Switzerland (Art. II, 11 Stat. 587, 589, effective 1850)
Yugoslavia (Serbia) (Art. IV, 22 Stat. 963, 964, effective 1881)

    (b) The following countries previously had treaties providing for 
reciprocal exemption of aliens from military service:

El Salvador (Art. VI, 46 Stat. 2817, 2821, effective 1926 to February 8, 
1958)
Germany (Art. VI, 44 Stat. 2132, 2136, effective 1923 to June 2, 1954)
Hungary (Art. VI, 44 Stat, 2441, 2445, effective 1925 to July 5, 1952)
Thailand (Siam) (Art. 1, 53 Stat. 1731, 1732, effective 1937 to June 8, 
1968)



PART 316_GENERAL REQUIREMENTS FOR NATURALIZATION--Table of Contents




Sec.
316.1 Definitions.
316.2 Eligibility.
316.3 Jurisdiction.
316.4 Application; documents.
316.5 Residence in the United States.
316.6-316.9 [Reserved]
316.10 Good moral character.
316.11 Attachment to the Constitution; favorable disposition towards the 
          good order and happiness.
316.12 Applicant's legal incompetency during statutory period.
316.13 [Reserved]
316.14 Adjudication--examination, grant, denial.
316.15-316.19 [Reserved]
316.20 American institutions of research, public international 
          organizations, and designations under the International 
          Immunities Act.

    Authority: 8 U.S.C. 1103, 1181, 1182, 1443, 1447; 8 CFR part 2.

    Source: 56 FR 50484, Oct. 7, 1991, unless otherwise noted.



Sec. 316.1  Definitions.

    As used in this part:
    Application means the form specified in Sec. 499.1 of this chapter 
on which an applicant requests consideration for naturalization.
    Service district means the geographical area over which an office of 
the Immigration and Naturalization Service has jurisdiction, as defined 
in Sec. 100.4 of this chapter.



Sec. 316.2  Eligibility.

    (a) General. Except as otherwise provided in this chapter, to be 
eligible for naturalization, an alien must establish that he or she:
    (1) Is at least 18 years of age;
    (2) Has been lawfully admitted as a permanent resident of the United 
States;
    (3) Has resided continuously within the United States, as defined 
under Sec. 316.5, for a period of at least five years after having been 
lawfully admitted for permanent residence;
    (4) Has been physically present in the United States for at least 30 
months of the five years preceding the date of filing the application;
    (5) Immediately preceding the filing of an application, or 
immediately preceding the examination on the application if the 
application was filed early pursuant to section 334(a) of the Act and 
the three month period falls within the required period of residence 
under section 316(a) or 319(a) of the Act, has resided, as defined under 
Sec. 316.5, for at least three months in a State or Service district 
having jurisdiction over the applicant's actual place of residence,

[[Page 796]]

and in which the alien seeks to file the application;
    (6) Has resided continuously within the United States from the date 
of application for naturalization up to the time of admission to 
citizenship;
    (7) For all relevant time periods under this paragraph, has been and 
continues to be a person of good moral character, attached to the 
principles of the Constitution of the United States, and favorably 
disposed toward the good order and happiness of the United States; and
    (8) Is not a person described in Section 314 of the Act relating to 
deserters of the United States Armed Forces or those persons who 
departed from the United States to evade military service in the United 
States Armed Forces.
    (b) Burden of proof. The applicant shall bear the burden of 
establishing by a preponderance of the evidence that he or she meets all 
of the requirements for naturalization, including that the applicant was 
lawfully admitted as a permanent resident to the United States, in 
accordance with the immigration laws in effect at the time of the 
applicant's initial entry or any subsequent reentry.

[56 FR 50484, Oct. 7, 1991, as amended at 58 FR 49912, Sept. 24, 1993; 
60 FR 6651, Feb. 3, 1995]



Sec. 316.3  Jurisdiction.

    Except as provided in Sec. 316.5, the applicant shall file an 
application for naturalization with the Service office having 
jurisdiction, as described in Sec. 100.4 of this chapter, over the 
applicant's residence at the time of filing the application. The 
applicant may be required to submit evidence of residence for at least 
three months immediately preceding the filing of the application in the 
State or Service district in which the applicant files the application. 
For purposes of this section, the applicant's residence in a State where 
there are two or more districts will be sufficient to comply with the 
jurisdictional requirement of residence in any one of those districts.



Sec. 316.4  Application; documents.

    (a) The applicant shall apply for naturalization by filing:
    (1) Form N-400 (Application for Naturalization);
    (2) Evidence of lawful permanent residence in the United States in 
the form of photocopies (front and back) of Forms I-551 (Permanent 
Resident Card), or any other entry document; and
    (3) Three (3) photographs as described in Sec. 333.1 of this 
chapter.
    (b) Each applicant who files Form N-400, Application for 
Naturalization, shall be fingerprinted on Form FD-258, Applicant Card, 
as prescribed in Sec. 103.2(e) of this chapter.
    (c) At the time of the examination on the application for 
naturalization, the applicant may be required to establish the status of 
lawful permanent resident by submitting the original evidence, issued by 
the Service, of lawful permanent residence in the United States. The 
applicant may be also required to submit any passports, or any other 
documents that have been used to enter the United States at any time 
after the original admission for permanent residence.

[56 FR 50484, Oct. 7, 1991, as amended at 58 FR 48780, Sept. 20, 1993; 
63 FR 12987, Mar. 17, 1998; 63 FR 70316, Dec. 21, 1998]



Sec. 316.5  Residence in the United States.

    (a) General. Unless otherwise specified, for purposes of this 
chapter, including Sec. 316.2 (a)(3), (a)(5), and (a)(6), an alien's 
residence is the same as that alien's domicile, or principal actual 
dwelling place, without regard to the alien's intent, and the duration 
of an alien's residence in a particular location is measured from the 
moment the alien first establishes residence in that location.
    (b) Residences in specific cases--(1) Military personnel. For 
applicants who are serving in the Armed Forces of the United States but 
who do not qualify for naturalization under part 328 of this chapter, 
the applicant's residence shall be:
    (i) The State or Service District where the applicant is physically 
present for at least three months, immediately preceding the filing of 
an application for naturalization, or immediately preceding the 
examination on the application if the application was filed early 
pursuant to section 334(a) of the Act and the three month period

[[Page 797]]

falls within the required period of residence under section 316(a) or 
319(a) of the Act;
    (ii) The location of the residence of the applicant's spouse and/or 
minor child(ren); or
    (iii) The applicant's home of record as declared to the Armed Forces 
at the time of enlistment and as currently reflected in the applicant's 
military personnel file.
    (2) Students. An applicant who is attending an educational 
institution in a State or Service District other than the applicant's 
home residence may apply for naturalization:
    (i) Where that institution is located; or
    (ii) In the State of the applicant's home residence if the applicant 
can establish that he or she is financially dependent upon his or her 
parents at the time that the application is filed and during the 
naturalization process.
    (3) Commuter aliens. An applicant who is a commuter alien, as 
described in Sec. 211.5 of this chapter, must establish a principal 
dwelling place in the United States with the intention of permanently 
residing there, and must thereafter acquire the requisite period of 
residence before eligibility for naturalization may be established. 
Accordingly, a commuter resident alien may not apply for naturalization 
until he or she has actually taken up permanent residence in the United 
States and until such residence has continued for the required statutory 
period. Such an applicant bears the burden of providing evidence to that 
effect.
    (4) Residence in multiple states. If an applicant claims residence 
in more than one State, the residence for purposes of this part shall be 
determined by reference to the location from which the annual federal 
income tax returns have been and are being filed.
    (5) Residence during absences of less than one year. (i) An 
applicant's residence during any absence of less than one year shall 
continue to be the State or Service district where the applicant last 
resided at the time of the applicant's departure abroad.
    (ii) Return to the United States. If, upon returning to the United 
States, an applicant returns to the State or Service district where the 
applicant last resided, the applicant will have complied with the 
continuous residence requirement specified in Sec. 316.2(a)(5) when at 
least three months have elapsed, including any part of the applicant's 
absence, from the date on which the applicant first established that 
residence. If the applicant establishes residence in a State or Service 
district other than the one in which he or she last resided, the 
applicant must complete three months at that new residence to be 
eligible for naturalization.
    (c) Disruption of continuity of residence--(1) Absence from the 
United States--(i) For continuous periods of between six (6) months and 
one (1) year. Absences from the United States for continuous periods of 
between six (6) months and one (1) year during the periods for which 
continuous residence is required under Sec. 316.2 (a)(3) and (a)(6) 
shall disrupt the continuity of such residence for purposes of this part 
unless the applicant can establish otherwise to the satisfaction of the 
Service. This finding remains valid even if the applicant did not apply 
for or otherwise request a nonresident classification for tax purposes, 
did not document an abandonment of lawful permanent resident status, and 
is still considered a lawful permanent resident under immigration laws. 
The types of documentation which may establish that the applicant did 
not disrupt the continuity of his or her residence in the United States 
during an extended absence include, but are not limited to, evidence 
that during the absence:
    (A) The applicant did not terminate his or her employment in the 
United States;
    (B) The applicant's immediate family remained in the United States;
    (C) The applicant retained full access to his or her United States 
abode; or
    (D) The applicant did not obtain employment while abroad.
    (ii) For period in excess of one (1) year. Unless an applicant 
applies for benefits in accordance with Sec. 316.5(d), absences from 
the United States for a continuous period of one (1) year or more during 
the period for which continuous residence is required under Sec. 316.2 
(a)(3) and (a)(5) shall disrupt the continuity of the applicant's 
residence. An applicant described in this paragraph who

[[Page 798]]

must satisfy a five-year statutory residence period may file an 
application for naturalization four years and one day following the date 
of the applicant's return to the United States to resume permanent 
residence. An applicant described in this paragraph who must satisfy a 
three-year statutory residence period may file an application for 
naturalization two years and one day following the date of the 
applicant's return to the United States to resume permanent residence.
    (2) Claim of nonresident alien status for income tax purposes after 
lawful admission as a permanent resident. An applicant who is a lawfully 
admitted permanent resident of the United States, but who voluntarily 
claims nonresident alien status to qualify for special exemptions from 
income tax liability, or fails to file either federal or state income 
tax returns because he or she considers himself or herself to be a 
nonresident alien, raises a rebuttable presumption that the applicant 
has relinquished the privileges of permanent resident status in the 
United States.
    (3) Removal and return. Any departure from the United States while 
under an order of removal (including previously issued orders of 
exclusion or deportation) terminates the applicant's status as a lawful 
permanent resident and, therefore, disrupts the continuity of residence 
for purposes of this part.
    (4) Readmission after a deferred inspection or exclusion proceeding. 
An applicant who has been readmitted as a lawful permanent resident 
after a deferred inspection or by the immigration judge during exclusion 
proceedings shall satisfy the residence and physical presence 
requirements under Sec. 316.2 (a)(3), (a)(4), (a)(5), and (a)(6) in the 
same manner as any other applicant for naturalization.
    (d) Application for benefits with respect to absences; appeal--(1) 
Preservation of residence under section 316(b) of the Act. (i) An 
application for the residence benefits under section 316(b) of the Act 
to cover an absence from the United States for a continuous period of 
one year or more shall be submitted to the Service on Form N-470 with 
the required fee, in accordance with the form's instructions. The 
application may be filed either before or after the applicant's 
employment commences, but must be filed before the applicant has been 
absent from the United States for a continuous period of one year.
    (ii) An approval of Form N-470 under section 316(b) of the Act shall 
cover the spouse and dependent unmarried sons and daughters of the 
applicant who are residing abroad as members of the applicant's 
household during the period covered by the application. The notice of 
approval, Form N-472, shall identify the family members so covered.
    (iii) An applicant whose Form N-470 application under section 316(b) 
of the Act has been approved, but who voluntarily claims nonresident 
alien status to qualify for special exemptions from income tax 
liability, raises a rebuttable presumption that the applicant has 
relinquished a claim of having retained lawful permanent resident status 
while abroad. The applicant's family members who were covered under 
section 316(b) of the Act and who were listed on the applicant's Form N-
472 will also be subject to the rebuttable presumption that they have 
relinquished their claims to lawful permanent resident status.
    (2) Preservation of residence under section 317 of the Act. An 
application for the residence and physical presence benefits of section 
317 of the Act to cover any absences from the United States, whether 
before or after December 24, 1952, shall be submitted to the Service on 
Form N-470 with the required fee, in accordance with the form's 
instructions. The application may be filed either before or after the 
applicant's absence from the United States or the performance of the 
functions or services described in section 317 of the Act.
    (3) Approval, denial, and appeal. The applicant under paragraphs 
(d)(1) or (d)(2) of this section shall be notified of the Service's 
disposition of the application on Form N-472. If the application is 
denied, the Service shall specify the reasons for the denial, and shall 
inform the applicant of the right to appeal in accordance with the 
provisions of part 103 of this chapter.

[56 FR 50484, Oct. 7, 1991, as amended at 56 FR 50487, Oct. 7, 1991; 58 
FR 49913, Sept. 24, 1993; 60 FR 6651, Feb. 3, 1995; 62 FR 10394, Mar. 6, 
1997]

[[Page 799]]



Sec. Sec. 316.6-316.9  [Reserved]



Sec. 316.10  Good moral character.

    (a) Requirement of good moral character during the statutory period. 
(1) An applicant for naturalization bears the burden of demonstrating 
that, during the statutorily prescribed period, he or she has been and 
continues to be a person of good moral character. This includes the 
period between the examination and the administration of the oath of 
allegiance.
    (2) In accordance with section 101(f) of the Act, the Service shall 
evaluate claims of good moral character on a case-by-case basis taking 
into account the elements enumerated in this section and the standards 
of the average citizen in the community of residence. The Service is not 
limited to reviewing the applicant's conduct during the five years 
immediately preceding the filing of the application, but may take into 
consideration, as a basis for its determination, the applicant's conduct 
and acts at any time prior to that period, if the conduct of the 
applicant during the statutory period does not reflect that there has 
been reform of character from an earlier period or if the earlier 
conduct and acts appear relevant to a determination of the applicant's 
present moral character.
    (b) Finding of a lack of good moral character. (1) An applicant 
shall be found to lack good moral character, if the applicant has been:
    (i) Convicted of murder at any time; or
    (ii) Convicted of an aggravated felony as defined in section 
101(a)(43) of the Act on or after November 29, 1990.
    (2) An applicant shall be found to lack good moral character if 
during the statutory period the applicant:
    (i) Committed one or more crimes involving moral turpitude, other 
than a purely political offense, for which the applicant was convicted, 
except as specified in section 212(a)(2)(ii)(II) of the Act;
    (ii) Committed two or more offenses for which the applicant was 
convicted and the aggregate sentence actually imposed was five years or 
more, provided that, if the offense was committed outside the United 
States, it was not a purely political offense;
    (iii) Violated any law of the United States, any State, or any 
foreign country relating to a controlled substance, provided that the 
violation was not a single offense for simple possession of 30 grams or 
less of marijuana;
    (iv) Admits committing any criminal act covered by paragraphs (b)(2) 
(i), (ii), or (iii) of this section for which there was never a formal 
charge, indictment, arrest, or conviction, whether committed in the 
United States or any other country;
    (v) Is or was confined to a penal institution for an aggregate of 
180 days pursuant to a conviction or convictions (provided that such 
confinement was not outside the United States due to a conviction 
outside the United States for a purely political offense);
    (vi) Has given false testimony to obtain any benefit from the Act, 
if the testimony was made under oath or affirmation and with an intent 
to obtain an immigration benefit; this prohibition applies regardless of 
whether the information provided in the false testimony was material, in 
the sense that if given truthfully it would have rendered ineligible for 
benefits either the applicant or the person on whose behalf the 
applicant sought the benefit;
    (vii) Is or was involved in prostitution or commercialized vice as 
described in section 212(a)(2)(D) of the Act;
    (viii) Is or was involved in the smuggling of a person or persons 
into the United States as described in section 212(a)(6)(E) of the Act;
    (ix) Has practiced or is practicing polygamy;
    (x) Committed two or more gambling offenses for which the applicant 
was convicted;
    (xi) Earns his or her income principally from illegal gambling 
activities; or
    (xii) Is or was a habitual drunkard.
    (3) Unless the applicant establishes extenuating circumstances, the 
applicant shall be found to lack good moral character if, during the 
statutory period, the applicant:
    (i) Willfully failed or refused to support dependents;
    (ii) Had an extramarital affair which tended to destroy an existing 
marriage; or

[[Page 800]]

    (iii) Committed unlawful acts that adversely reflect upon the 
applicant's moral character, or was convicted or imprisoned for such 
acts, although the acts do not fall within the purview of Sec. 
316.10(b) (1) or (2).
    (c) Proof of good moral character in certain cases--(1) Effect of 
probation or parole. An applicant who has been on probation, parole, or 
suspended sentence during all or part of the statutory period is not 
thereby precluded from establishing good moral character, but such 
probation, parole, or suspended sentence may be considered by the 
Service in determining good moral character. An application will not be 
approved until after the probation, parole, or suspended sentence has 
been completed.
    (2) Full and unconditional executive pardon--(i) Before the 
statutory period. An applicant who has received a full and unconditional 
executive pardon prior to the beginning of the statutory period is not 
precluded by Sec. 316.10(b)(1) from establishing good moral character 
provided the applicant demonstrates that reformation and rehabilitation 
occurred prior to the beginning of the statutory period.
    (ii) During the statutory period. An applicant who receives a full 
and unconditional executive pardon during the statutory period is not 
precluded by Sec. 316.10(b)(2) (i) and (ii) from establishing good 
moral character, provided the applicant can demonstrate that extenuating 
and/or exonerating circumstances exist that would establish his or her 
good moral character.
    (3) Record expungement--(i) Drug offenses. Where an applicant has 
had his or her record expunged relating to one of the narcotics offenses 
under section 212(a)(2)(A)(i)(II) and section 241(a)(2)(B) of the Act, 
that applicant shall be considered as having been ``convicted'' within 
the meaning of Sec. 316.10(b)(2)(ii), or, if confined, as having been 
confined as a result of ``conviction'' for purposes of Sec. 
316.10(b)(2)(iv).
    (ii) Moral turpitude. An applicant who has committed or admits the 
commission of two or more crimes involving moral turpitude during the 
statutory period is precluded from establishing good moral character, 
even though the conviction record of one such offense has been expunged.

[56 FR 50484, Oct. 7, 1991, as amended at 58 FR 49913, Sept. 24, 1993]



Sec. 316.11  Attachment to the Constitution; favorable disposition towards the 

good order and happiness.

    (a) General. An applicant for naturalization must establish that 
during the statutorily prescribed period, he or she has been and 
continues to be attached to the principles of the Constitution of the 
United States and favorably disposed toward the good order and happiness 
of the United States. Attachment implies a depth of conviction which 
would lead to active support of the Constitution. Attachment and 
favorable disposition relate to mental attitude, and contemplate the 
exclusion from citizenship of applicants who are hostile to the basic 
form of government of the United States, or who disbelieve in the 
principles of the Constitution.
    (b) Advocacy of peaceful change. At a minimum, the applicant shall 
satisfy the general standard of paragraph (a) of this section by 
demonstrating an acceptance of the democratic, representational process 
established by the Constitution, a willingness to obey the laws which 
may result from that process, and an understanding of the means for 
change which are prescribed by the Constitution. The right to work for 
political change shall be consistent with the standards in paragraph (a) 
of this section only if the changes advocated would not abrogate the 
current Government and establish an entirely different form of 
government.
    (c) Membership in the Communist Party or any other totalitarian 
organization. An applicant who is or has been a member of or affiliated 
with the Communist Party or any other totalitarian organization shall be 
ineligible for naturalization, unless the applicant's membership meets 
the exceptions in sections 313 and 335 of the Act and Sec. 313.4 of 
this chapter.



Sec. 316.12  Applicant's legal incompetency during statutory period.

    (a) General. An applicant who is legally competent at the time of 
the examination on the naturalization application and of the 
administration of the

[[Page 801]]

oath of allegiance may be admitted to citizenship, provided that the 
applicant fully understands the purpose and responsibilities of the 
naturalization procedures.
    (b) Legal incompetence. Naturalization is not precluded if, during 
part of the statutory period, the applicant was legally incompetent or 
confined to a mental institution.
    (1) There is a presumption that the applicant's good moral 
character, attachment, and favorable disposition which existed prior to 
the period of legal incompetency continued through that period. The 
Service may, however, consider an applicant's actions during a period of 
legal incompetence, as evidence tending to rebut this presumption.
    (2) If the applicant has been declared legally incompetent, the 
applicant has the burden of establishing that legal competency has been 
restored. The applicant shall submit legal and medical evidence to 
determine and establish the claim of legal competency.
    (3) The applicant shall bear the burden of establishing that any 
crimes committed, regardless of whether the applicant was convicted, 
occurred while the applicant was declared legally incompetent.



Sec. 316.13  [Reserved]



Sec. 316.14  Adjudication--examination, grant, denial.

    (a) Examination. The examination on an application for 
naturalization shall be conducted in accordance with Section 335 of the 
Act.
    (b) Determination--(1) Grant or denial. Subject to supervisory 
review, the employee of the Service who conducts the examination under 
paragraph (a) of this section shall determine whether to grant or deny 
the application, and shall provide reasons for the determination, as 
required under section 335(d) of the Act.
    (2) Appeal. An applicant whose application for naturalization has 
been denied may request a hearing, which shall be carried out in 
accordance with section 336 of the Act.



Sec. Sec. 316.15-316.19  [Reserved]



Sec. 316.20  American institutions of research, public international 

organizations, and designations under the International Immunities Act.

    (a) American institutions of research. The following-listed 
organizations have been determined to be American Institutions of 
research recognized by the Attorney General:

African Medical and Research Foundation (AMREF-USA).
Albert Einstein College of Medicine of Yeshiva University (only in 
relationship to its research programs).
American Friends of the Middle East, Inc.
American Institutes of Research in the Behavioral Sciences (only in 
relationship to research projects abroad).
American Universities Field Staff, Inc.
American University, The, Cairo, Egypt.
American University of Beirut (Near East College Associations).
Arctic Institute of North America, Inc.
Armour Research Foundation of Illinois Institute of Technology.
Asia Foundation, The (formerly Committee for a Free Asia, Inc.).
Association of Universities for Research in Astronomy (AURA, Inc.), 
Tucson, AZ.
Atomic Bomb Casualty Commission.
Beirut University College.
Bermuda Biological Station for Research, Inc.
Bernice P. Biship Museum of Polynesian Antiquities, Ethnology and 
Natural History at Honolulu, HI.
Brookhaven National Laboratory, Associated Universities, Inc.
Brown University (Department of Engineering), Providence, RI.
Buffalo Eye Bank and Research Society, Inc.
Burma Office of Robert N. Nathan Associates, Inc.
California State University at Long Beach, Department of Geological 
Sciences.
Carleton College (Department of Sociology and Anthropology), Northfield, 
MN.
Center of Alcohol Studies, Laboratory of Applied Biodynamics of Yale 
University.
Central Registry of Jewish Losses in Egypt.
College of Engineering, University of Wisconsin.
College of Medicine, State University of New York.
Colorado State University (Research Foundation), Fort Collins, CO.
Colorado University (International Economic Studies Center), Boulder, 
CO.
Columbia University (Parker School of Foreign and Comparative Law) and 
(Faculty of Pure Science), New York, NY.

[[Page 802]]

Cornell University (International Agricultural Development, University 
of the Philippines-Cornell University Graduate Education Program).
Dartmouth Medical School.
Department of French, Department of Scandinavian Languages, and 
Department of Near Eastern Languages of the University of California, 
Berkeley, CA.
Duke University.
Environmental Research Laboratory of the University of Arizona.
Fletcher School of Law and Diplomacy, Medford, MA.
Ford Foundation, 477 Madison Avenue, New York, NY.
Free Europe, Inc. (formerly Free Europe Committee, Inc.; National 
Committee for a Free Europe (including Radio Free Europe)).
Georgetown University.
George Williams Hooper Foundation, San Francisco Medical Center, 
University of California, San Francisco, CA.
Gorgas Memorial Institute of Tropical and Preventive Medicine, Inc., and 
its operating unit, the Gorgas Memorial Laboratory.
Graduate Faculty of Political and Social Science Division of the New 
School for Social Research, New York, NY.
Harvard University (research and educational programs only)
Harvard-Yenching Institute.
Humboldt State University, School of Natural Resources, Wildlife 
Management Department.
Indiana University at Bloomington, Indianapolis, South Bend, Northwest, 
Kokomo, Southeast, East, and Fort Wayne
Institute for Development Anthropology, Inc.
Institute of International Education, Inc.
Institute of International Studies, University of California, Berkeley, 
CA.
International Center for Social Research, New York, NY.
International Development Foundation, Inc.
International Development Services, Inc.
International Research Associates, Inc.
Inter-University Program for Chinese Language Studies (formerly Stanford 
Center for Chinese Studies) in Taipei, Taiwan.
Iowa State University.
Iran Foundation, Inc., The.
Kossuth Foundation, Inc., The, New York, NY.
Louisiana State University.
Massachusetts Institute of Technology.
Michigan State University, East Lansing, MI.
Missouri Botanical Garden (research and educational programs only)
Natural Science Foundation, Philadelphia, PA.
New York Zoological Society.
Paderewski Foundation, Inc.
Peabody Museum of Natural History of Yale University.
People to People Health Foundation, Inc., The (only in relationship to 
the scientific research activities that will be carried on abroad by the 
medical staff of the SS ``Hope'').
Pierce College (in relationship to research by an instructor, Department 
of Psychology), Athens, Greece.
Population Council, The, New York, NY.
Radio Liberty Committee, Inc. (formerly American Committee for 
Liberation, Inc.; American Committee for Liberation of the Peoples of 
Russia, Inc.; American Committee for Liberation from Bolshevism, Inc.).
Rockefeller Foundation.
Rutgers University, the State University of New Jersey
School of International Relations of the University of Southern 
California.
SIRIMAR (Societa Internazionale Recerche Marine) Division, Office of the 
Vice President for Research, Pennsylvania State University.
Social Science Research Council.
Solar Energy Research Institute (SERI).
Stanford Electronic Laboratories, Department of Electrical Engineering, 
School of Engineering, Stanford University, Stanford, CA.
Stanford Research Institute, Menlo Park, CA.
Stanford University (the George Vanderbilt Foundation), Stanford, CA.
Syracuse University.
Tulane University Graduate School.
Tulane University Medical School.
University of Alabama.
University of Alabama Medical Center.
University of Chicago (as a participant in the International Cooperation 
Administration Program No. W-74 only).
University of Colorado (Department of History), Boulder, CO.
University of Connecticut, College of Liberal Arts and Science 
(Department of Germanic and Slavic Languages).
University of Hawaii, Honolulu, HI.
University of Ilinois at Urbana-Champaign, Austria-Illinois Exchange 
Program.
University of Kansas, Office of International Programs.
University of La Verne (La Verne College of Athens)
University of Michigan (School of Natural Resources), Ann Arbor, MI.
University of Minnesota, Department of Plant Pathology (in relationship 
to research project abroad).
University of Nebraska Mission in Columbia, South America.
University of North Carolina at Chapel Hill.
University of Notre Dame, Notre Dame, IN.
University of Puerto Rico.

[[Page 803]]

University of Washington (Department of Marketing, Transportation, and 
International Business) and (The School of Public Health and Community 
Medicine), Seattle, WA.
Wayne State University, Detroit, MI.
Wenner-Gren Foundation for Anthropological Research, Inc.
Williams College, Economic Department, Williamstown, MA.

    (b) Public international organizations of which the United States is 
a member by treaty or statute. The following-listed organizations have 
been determined to be public international organizations of which the 
United States is a member by treaty or statute:

The North Atlantic Treaty Organization.
United Nations and all agencies and organizations which are a part 
thereof.

    (c) International Organizations Immunities Act designations. The 
following public international organizations are entitled to enjoy the 
privileges, exemptions, and immunities provided for in the International 
Organizations Immunities Act, and are considered as public international 
organizations of which the United States is a member by treaty or 
statute within the meaning of section 316(b) of the Act and as public 
international organizations in which the United States participates by 
treaty or statute within the meaning of section 319(b) of the Act:

African Development Bank (E.O. 12403, Feb. 8, 1983).
African Development Fund (E.O. 11977, Mar. 14, 1977).
Asian Development Bank (E.O. 11334, Mar. 7, 1967).
Caribbean Organization (E.O. 10983, Dec. 30, 1961).
Criminal Police Organization (E.O. 12425, June 16, 1983).
Customs Cooperation Council (E.O. 11596, June 5, 1971).
European Space Research Organization (ESRO) (E.O. 11760, Jan. 17, 1974).
Food and Agriculture Organization, The (E.O. 9698, Feb 19, 1946).
Great Lakes Fishery Commission (E.O. 11059, Oct. 23, 1962).
Inter-American Defense Board (E.O. 10228, Mar. 26, 1951).
Inter-American Development Bank (E.O. 10873, Apr. 8, 1960).
Inter-American Institute for Cooperation on Agriculture (E.O. 9751, July 
11, 1946).
Inter-American Statistical Institute (E.O. 9751, July 11, 1946).
Inter-American Tropical Tuna Commission (E.O. 11059, Oct. 23, 1962).
Intergovernmental Committee for European Migration (formerly the 
Provisional Intergovernmental Committee for the Movement of Migrants 
from Europe) (E.O. 10335, Mar. 28, 1952).
Intergovernmental Maritime Consultative Organization (E.O. 10795, Dec. 
13, 1958).
International Atomic Energy Agency (E.O. 10727, Aug. 31, 1957).
International Bank for Reconstruction and Development (E.O. 9751, July 
11, 1946).
International Centre for Settlement of Investment Disputes (E.O. 11966, 
Jan. 19, 1977).
International Civil Aviation Organization (E.O. 9863, May 31, 1947).
International Coffee Organization (E.O. 11225, May 22, 1965).
International Cotton Advisory Committee (E.O. 9911, Dec. 19, 1947).
International Development Association (E.O. 11966, Jan. 19, 1977).
International Fertilizer Development Center (E.O. 11977, Mar. 14, 1977).
International Finance Corporation (E.O. 10680, Oct. 2, 1956).
International Food Policy Research Institute (E.O. 12359, Apr. 22, 
1982).
International Hydrographic Bureau (E.O. 10769, May 29, 1958).
International Institute for Cotton (E.O. 11283, May 27, 1966).
International Joint Commission--United States and Canada (E.O. 9972, 
June 25, 1948).
International Labor Organization, The (functions through staff known as 
The International Labor Office) (E.O. 9698, Feb. 19, 1946).
International Maritime Satellite Organization (E.O. 12238, Sept. 12, 
1980).
International Monetary Fund (E.O. 9751, July 11, 1946).
International Pacific Halibut Commission (E.O. 11059, Oct. 23, 1962).
International Secretariat for Volunteer Service (E.O. 11363, July 20, 
1967).
International Telecommunication Union (E.O. 9863, May 31, 1947).
International Telecommunications Satellite Organization (INTELSAT) (E.O. 
11718, May 14, 1973).
International Wheat Advisory Committee (E.O. 9823, Jan. 24, 1947).
Multinational Force and Observers (E.O. 12359, Apr. 22, 1982).
Organization for European Economic Cooperation (E.O. 10133, June 27, 
1950) (Now known as Organization for Economic Cooperation and 
Development; 28 FR 2959, Mar. 26, 1963).
Organization of African Unity (OAU) (E.O. 11767, Feb. 19, 1974).

[[Page 804]]

Organization of American States (includes Pan American Union) (E.O. 
10533, June 3, 1954).
Pan American Health Organization (includes Pan American Sanitary Bureau) 
(E.O. 10864, Feb. 18, 1960).
Preparatory Commission of the International Atomic Energy Agency (E.O. 
10727, Aug. 31, 1957).
Preparatory Commission for the International Refugee Organization and 
its successor, the International Refugee Organization (E.O. 9887, Aug. 
22, 1947).
South Pacific Commission (E.O. 10086, Nov. 25, 1949).
United International Bureau for the Protection of Intellectual Property 
(BIRPI) (E.O. 11484, Sept. 29, 1969).
United Nations, The (E.O. 9698, Feb. 19, 1946).
United Nations Educational, Scientific, and Cultural Organizations (E.O. 
9863, May 31, 1947).
Universal Postal Union (E.O. 10727, Aug. 31, 1957).
World Health Organization (E.O. 10025, Dec. 30, 1948).
World Intellectual Property Organization (E.O. 11866, June 18, 1975).
World Meteorological Organization (E.O. 10676, Sept. 1, 1956).

[32 FR 9634, July 4, 1967]

    Editorial Note: For Federal Register citations affecting Sec. 
316.20, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



PART 318_PENDING REMOVAL PROCEEDINGS--Table of Contents




    Authority: 8 U.S.C. 1103, 1252, 1429, 1443; 8 CFR part 2.

    Source: 62 FR 10394, Mar. 6, 1997, unless otherwise noted.



Sec. 318.1  Warrant of arrest.

    For the purposes of section 318 of the Act, a notice to appear 
issued under 8 CFR part 239 (including a charging document issued to 
commence proceedings under sections 236 or 242 of the Act prior to April 
1, 1997) shall be regarded as a warrant of arrest.



PART 319_SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: SPOUSES OF UNITED 

STATES CITIZENS--Table of Contents




Sec.
319.1 Person living in marital union with United States citizen spouse.
319.2 Person whose United States citizen spouse is employed abroad.
319.3 Surviving spouses of United States citizens who died during a 
          period of honorable service in an active duty status in the 
          Armed Forces of the United States.
319.4 Persons continuously employed for 5 years by United States 
          organizations engaged in disseminating information.
319.5 Public international organizations in which the U.S. participates 
          by treaty or statute.
319.6 United States nonprofit organizations engaged abroad in 
          disseminating information which significantly promotes U.S. 
          interests.
319.7-319.10 [Reserved]
319.11 Filing of application.

    Authority: 8 U.S.C. 1103, 1430, 1443.



Sec. 319.1  Persons living in marital union with United States citizen spouse.

    (a) Eligibility. To be eligible for naturalization under section 
319(a) of the Act, the spouse of a United States citizen must establish 
that he or she:
    (1) Has been lawfully admitted for permanent residence to the United 
States;
    (2) Has resided continuously within the United States, as defined 
under Sec. 316.5 of this chapter, for a period of at least three years 
after having been lawfully admitted for permanent residence;
    (3) Has been living in marital union with the citizen spouse for the 
three years preceding the date of examination on the application, and 
the spouse has been a United States citizen for the duration of that 
three year period;
    (4) Has been physically present in the United States for periods 
totaling at least 18 months;
    (5) Has resided, as defined in Sec. 316.5 of this chapter, for at 
least 3 months immediately preceding the filing of the application, or 
immediately preceding the examination on the application if the 
application was filed early pursuant to section 334(a) of the Act and 
the

[[Page 805]]

three month period falls within the required period of residence under 
section 316(a) or 319(a) of the Act, in the State or Service district 
having jurisdiction over the alien's actual place of residence and in 
which the alien has filed the application;
    (6) Has resided continuously within the United States from the date 
of application for naturalization until the time of admission to 
citizenship;
    (7) For all relevant periods under this paragraph, has been and 
continues to be a person of good moral character, attached to the 
principles of the Constitution of the United States, and favorably 
disposed toward the good order and happiness of the United States; and
    (8) Has complied with all other requirements for naturalization as 
provided in part 316 of this chapter, except for those contained in 
Sec. 316.2 (a)(3) through (a)(5) of this chapter.
    (b) Marital union--(1) General. An applicant lives in marital union 
with a citizen spouse if the applicant actually resides with his or her 
current spouse. The burden is on the applicant to establish, in each 
individual case, that a particular marital union satisfies the 
requirements of this part.
    (2) Loss of Marital Union--(i) Divorce, death or expatriation. A 
person is ineligible for naturalization as the spouse of a United States 
citizen under section 319(a) of the Act if, before or after the filing 
of the application, the marital union ceases to exist due to death or 
divorce, or the citizen spouse has expatriated. Eligibility is not 
restored to an applicant whose relationship to the citizen spouse 
terminates before the applicant's admission to citizenship, even though 
the applicant subsequently marries another United States citizen.
    (ii) Separation--(A) Legal separation. Any legal separation will 
break the continuity of the marital union required for purposes of this 
part.
    (B) Informal separation. Any informal separation that suggests the 
possibility of marital disunity will be evaluated on a case-by-case 
basis to determine whether it is sufficient enough to signify the 
dissolution of the marital union.
    (C) Involuntary separation. In the event that the applicant and 
spouse live apart because of circumstances beyond their control, such as 
military service in the Armed Forces of the United States or essential 
business or occupational demands, rather than because of voluntary legal 
or informal separation, the resulting separation, even if prolonged, 
will not preclude naturalization under this part.
    (c) Physical presence in the United States. In the event that the 
alien spouse has never been in the United States, eligibility under this 
section is not established even though the alien spouse resided abroad 
in marital union with the citizen spouse during the three year period.

[56 FR 50488, Oct. 7, 1991]



Sec. 319.2  Person whose United States citizen spouse is employed abroad.

    (a) Eligibility. To be eligible for naturalization under section 
319(b) of the Act, the alien spouse of a United States citizen must:
    (1) Establish that his or her citizen spouse satisfies the 
requirements under section 319(b)(1) of the Act, including that he or 
she is regularly stationed abroad. For purposes of this section, a 
citizen spouse is regularly stationed abroad if he or she proceeds 
abroad, for a period of not less than one year, pursuant to an 
employment contract or orders, and assumes the duties of employment;
    (2) At the time of examination on the application for 
naturalization, be present in the United States pursuant to a lawful 
admission for permanent residence;
    (3) At the time of naturalization, be present in the United States;
    (4) Declare in good faith, upon naturalization before the Service, 
an intention:
    (i) To reside abroad with the citizen spouse; and
    (ii) To take up residence within the United States immediately upon 
the termination of the citizen spouse's employment abroad;
    (5) Be a person of good moral character, attached to the principles 
of the Constitution of the United States, and favorably disposed toward 
the good order and happiness of the United States; and
    (6) Comply with all other requirements for naturalization as 
provided in

[[Page 806]]

part 316 of this chapter, except for those contained in Sec. 
316.2(a)(3) through (a)(6) of this chapter.
    (b) Alien spouse's requirement to depart abroad immediately after 
naturalization. An alien spouse seeking naturalization under section 
319(b) of the Act must:
    (1) Establish that he or she will depart to join the citizen spouse 
within 30 to 45 days after the date of naturalization;
    (2) Notify the Service immediately of any delay or cancellation of 
the citizen spouse's assignment abroad; and
    (3) Notify the Service immediately if he or she is unable to reside 
with the citizen spouse because the citizen spouse is employed abroad in 
an area of hostilities where dependents may not reside.
    (c) Loss of marital union due to death, divorce, or expatriation of 
the citizen spouse. A person is ineligible for naturalization as the 
spouse of a United States citizen under section 319(b) of the Act if, 
before or after the filing of the application, the marital union ceases 
to exist due to death or divorce, or the citizen spouse has expatriated. 
Eligibility is not restored to an applicant whose relationship to the 
citizen spouse terminates before the applicant's admission into 
citizenship, even though the applicant subsequently marries another 
United States citizen.

[56 FR 50488, Oct. 7, 1991]



Sec. 319.3  Surviving spouses of United States citizens who died during a 

period of honorable service in an active duty status in the Armed Forces of 

the United States.

    (a) Eligibility. To be eligible for naturalization under section 
319(d) of the Act, the surviving spouse of a United States citizen must:
    (1) Establish that his or her citizen spouse died during a period of 
honorable service in an active duty status in the Armed Forces of the 
United States;
    (2) Establish that he or she was living in marital union with the 
citizen spouse, in accordance with Sec. 319.1(b), at the time of that 
spouse's death;
    (3) At the time of examination on the application for 
naturalization, reside in the United States pursuant to a lawful 
admission for permanent residence;
    (4) Be a person of good moral character, attached to the principles 
of the Constitution of the United States, and favorably disposed toward 
the good order and happiness of the United States; and
    (5) Comply with all other requirements for naturalization as 
provided in part 316 of this chapter, except for those contained in 
Sec. 316.2(a)(3) through (a)(6) of this chapter.
    (b) Remarriage of the surviving spouse. The surviving spouse of a 
United States citizen described under paragraph (a)(1) of this section 
remains eligible for naturalization under section 319(d) of the Act, 
even if the surviving spouse remarries.

[56 FR 50488, Oct. 7, 1991]



Sec. 319.4  Persons continuously employed for 5 years by United States 

organizations engaged in disseminating information.

    To be eligible for naturalization under section 319(c) of the Act, 
an applicant must:
    (a) Establish that he or she is employed as required under section 
319(c)(1) of the Act;
    (b) Reside in the United States pursuant to a lawful admission for 
permanent residence;
    (c) Establish that he or she has been employed as required under 
paragraph (a) of this section continuously for a period of not less than 
five years after a lawful admission for permanent residence;
    (d) File his or her application for naturalization while employed as 
required under paragraph (a) of this section, or within six months 
following the termination of such employment;
    (e) Be present in the United States at the time of naturalization;
    (f) Declare in good faith, upon naturalization before the Service, 
an intention to take up residence within the United States immediately 
upon his or her termination of employment;
    (g) Be a person of good moral character, attached to the principles 
of the Constitution of the United States, and favorably disposed toward 
the good order and happiness of the United States; and
    (h) Comply with all other requirements for naturalization as 
provided in

[[Page 807]]

part 316 of this chapter, except for those contained in Sec. 
316.2(a)(3) through (a)(6) of this chapter.

[56 FR 50489, Oct. 7, 1991]



Sec. 319.5  Public international organizations in which the U.S. participates 

by treaty or statute.

    Organizations designated by the President as international 
organizations pursuant to the International Organizations Immunities Act 
are considered as public international organizations in which the United 
States participates by treaty or statute within the meaning of section 
319(b) or the Act. For a list of such organizations see Sec. 316.20(b) 
of this chapter. In addition, the following have been determined to be 
public international organizations within the purview of section 319(b) 
of the Act:

The North Atlantic Treaty Organization.
The United Nations and all agencies and organizations which are a part 
thereof.


The regional commissioner shall forward a copy of each decision 
regarding a public international organization to the Assistant 
Commissioner, Naturalization.

[32 FR 9635, July 4, 1967. Redesignated at 33 FR 255, Jan. 9, 1968. 
Further redesignated and amended at 56 FR 50489, Oct. 7, 1991]



Sec. 319.6  United States nonprofit organizations engaged abroad in 

disseminating information which significantly promotes U.S. interests.

    The following have been determined to be U.S. incorporated nonprofit 
organizations principally engaged in conducting abroad through 
communications media the dissemination of information which 
significantly promotes U.S. interests abroad within the purview of 
section 319(c) of the Act:

Free Europe, Inc.; formerly Free Europe Committee, Inc.; National 
Committee for a Free Europe (including Radio Free Europe)).
Radio Liberty Committee, Inc. (formerly American Committee for 
Liberation, Inc.; American Committee for Liberation of the Peoples of 
Russia, Inc.; American Committee for Liberation from Bolshevism, Inc.).

[33 FR 255, Jan. 9, 1968. Redesignated and amended at 56 FR 50489, Oct. 
7, 1991]



Sec. Sec. 319.7-319.10  [Reserved]



Sec. 319.11  Filing of application.

    (a) General. An applicant covered by this part shall submit to the 
Service an application for naturalization on Form N-400, with the 
required fee, in accordance with the instructions contained therein. An 
alien spouse applying for naturalization under section 319(b) of the Act 
and Sec. 319.2 shall also submit a statement of intent containing the 
following information about the citizen spouse's employment and the 
applicant's intent following naturalization:
    (1) The name of the employer and:
    (i) The nature of the employer's business; or
    (ii) The ministerial, religious, or missionary activity in which the 
employer is engaged;
    (2) Whether the employing entity is owned in whole or in part by 
United States interests;
    (3) Whether the employing entity is engaged in whole or in part in 
the development of the foreign trade and commerce of the United States;
    (4) The nature of the activity in which the citizen spouse is 
engaged;
    (5) The anticipated period of employment abroad;
    (6) Whether the alien spouse intends to reside abroad with the 
citizen spouse; and,
    (7) Whether the alien spouse intends to take up residence within the 
United States immediately upon the termination of such employment abroad 
of the citizen spouse.
    (b) Applications by military spouses--(1) General. The alien spouses 
of United States military personnel being assigned abroad must satisfy 
the basic requirements of section 319(b) of the Act and of paragraph (a) 
of this section.
    (2) Government expense. In the event that transportation expenses 
abroad for the alien spouse are to be paid by military authorities, a 
properly executed Certificate of Overseas Assignment to Support 
Application to File Petition for Naturalization, DD Form 1278 will be 
submitted in lieu of the statement of intent required by paragraph (a) 
of this section. Any DD Form

[[Page 808]]

1278 issued more than 90 days in advance of departure is unacceptable 
for purposes of this section.
    (3) Private expense. In the event that the alien spouse is not 
authorized to travel abroad at military expense, the alien spouse must 
submit in lieu of the statement of intent required by paragraph (a) of 
this section:
    (i) A copy of the citizen spouse's military travel orders,
    (ii) A letter from the citizen spouse's commanding officer 
indicating that the military has no objection to the applicant traveling 
to and residing in the vicinity of the citizen spouse's new duty 
station; and
    (iii) Evidence of transportation arrangements to the new duty 
station.

[56 FR 50489, Oct. 7, 1991]



PART 320_CHILD BORN OUTSIDE THE UNITED STATES AND RESIDING PERMANENTLY IN THE 

UNITED STATES; REQUIREMENTS FOR AUTOMATIC ACQUISITION OF CITIZENSHIP--Table of 

Contents




Sec.
320.1 What definitions are used in this part?
320.2 Who is eligible for citizenship?
320.3 How, where, and what forms and other documents should be filed?
320.4 Who must appear for an interview on the application for 
          citizenship?
320.5 What happens if the application is approved or denied by the 
          Service?

    Authority: 8 U.S.C. 1103, 1443; 8 CFR part 2.

    Source: 66 FR 32144, June 13, 2001, unless otherwise noted.



Sec. 320.1  What definitions are used in this part?

    As used in this part, the term:
    Adopted means adopted pursuant to a full, final and complete 
adoption. If a foreign adoption of an orphan was not full and final, was 
defective, or the unmarried U.S. citizen parent or U.S. citizen parent 
and spouse jointly did not see and observe the child in person prior to 
or during the foreign adoption proceedings, the child is not considered 
to have been fully, finally and completely adopted and must be readopted 
in the United States. Readoption requirements may be waived if the state 
of residence of the United States citizen parent(s) recognizes the 
foreign adoption as full and final under that state's adoption laws.
    Adopted child means a person who has been adopted as defined above 
and who meets the requirements of section 101(b)(1)(E) or (F) of the 
Act.
    Child means a person who meets the requirements of section 101(c)(1) 
of the Act.
    Joint custody, in the case of a child of divorced or legally 
separated parents, means the award of equal responsibility for and 
authority over the care, education, religion, medical treatment, and 
general welfare of a child to both parents by a court of law or other 
appropriate government entity pursuant to the laws of the state or 
country of residence.
    Legal custody refers to the responsibility for and authority over a 
child.
    (1) For the purpose of the CCA, the Service will presume that a U.S. 
citizen parent has legal custody of a child, and will recognize that 
U.S. citizen parent as having lawful authority over the child, absent 
evidence to the contrary, in the case of:
    (i) A biological child who currently resides with both natural 
parents (who are married to each other, living in marital union, and not 
separated),
    (ii) A biological child who currently resides with a surviving 
natural parent (if the other parent is deceased), or
    (iii) In the case of a biological child born out of wedlock who has 
been legitimated and currently resides with the natural parent.
    (2) In the case of an adopted child, a determination that a U.S. 
citizen parent has legal custody will be based on the existence of a 
final adoption decree. In the case of a child of divorced or legally 
separated parents, the Service will find a U.S. citizen parent to have 
legal custody of a child, for the purpose of the CCA, where there has 
been an award of primary care, control, and maintenance of a minor child 
to a parent by a court of law or other appropriate government entity 
pursuant to the laws of the state or country of residence. The Service 
will consider a U.S. citizen parent who has been awarded ``joint 
custody,'' to have legal custody of a child. There may be other factual 
circumstances under which the

[[Page 809]]

Service will find the U.S. citizen parent to have legal custody for 
purposes of the CCA.



Sec. 320.2  Who is eligible for citizenship?

    (a) General. To be eligible for citizenship under section 320 of the 
Act, a person must establish that the following conditions have been met 
after February 26, 2001:
    (1) The child has at least one United States citizen parent (by 
birth or naturalization);
    (2) The child is under 18 years of age; and
    (3) The child is residing in the United States in the legal and 
physical custody of the United States citizen parent, pursuant to a 
lawful admission for permanent residence.
    (b) Additional requirements if child is adopted. If adopted, the 
child must meet all of the requirements in paragraph (a) of this section 
as well as satisfy the requirements applicable to adopted children under 
section 101(b)(1) of the Act.



Sec. 320.3  How, where, and what forms and other documents should be filed?

    (a) Application. Individuals who are applying for certificate of 
citizenship on their own behalf should file a Form N-600, Application 
for Certificate of Citizenship. An application for a certificate of 
citizenship under this section on behalf of a minor biological child 
shall be submitted on Form N-600, Application for Certificate of 
Citizenship, by the U.S. citizen parent(s) or legal guardian. An 
application for a certificate of citizenship under this section on 
behalf of a minor adopted child shall be submitted on Form N-643, 
Application for Certificate of Citizenship in Behalf of An Adopted Child 
by U.S. citizen adoptive parent(s) or legal guardian. The completed 
application and accompanying supporting documentation must be filed at 
the appropriate stateside Service district office or sub-office with 
jurisdiction over the U.S. citizen parent and child's residence. The 
application must be filed with the filing fee required in Sec. 
103.7(b)(1) of this chapter.
    (b) Evidence. (1) An applicant under this section shall establish 
eligibility under Sec. 320.2. In addition to the forms and the 
appropriate fee as required in Sec. 103.7(b)(1) of this chapter, an 
applicant must submit the following required documents unless such 
documents are already contained in the Service administrative file(s):
    (i) The child's birth certificate or record;
    (ii) Marriage certificate of child's parents (if applicable);
    (iii) If the child's parents were married before their marriage to 
each other, proof of termination of any previous marriage of each parent 
(e.g., death certificate or divorce decree);
    (iv) Evidence of U.S. citizenship of parent, (i.e., birth 
certificate; naturalization certificate; FS-240, Report of Birth Abroad; 
a valid unexpired U.S. passport; or certificate of citizenship);
    (v) If the child was born out of wedlock, documents verifying 
legitimation according to the laws of the child's residence or domicile 
or father's residence or domicile (if applicable);
    (vi) In case of divorce, legal separation, or adoption, 
documentation of legal custody;
    (vii) Copy of Permanent Resident Card/Alien Registration Receipt 
Card or other evidence of lawful permanent resident status (e.g. I-551 
stamp in a valid foreign passport or Service-issued travel document);
    (viii) If adopted, a copy of the full, final adoption decree and, if 
the adoption was outside of the United States and the child immigrated 
as an IR-4 (orphans coming to the United States to be adopted by U.S. 
citizen parent(s)), evidence that the foreign adoption is recognized by 
the state where the child is permanently residing; and
    (ix) Evidence of all legal name changes, if applicable, for the 
child and U.S. citizen parent.
    (2) If the Service requires any additional documentation to make a 
decision on the application for certificate of citizenship, applicants 
may be asked to provide that documentation under separate cover or at 
the time of interview. Applicants do not need to submit documents that 
were submitted in connection with: An application for immigrant visa and 
retained by the American Consulate for inclusion in the immigrant visa 
package, or an immigrant

[[Page 810]]

petition or application and included in a Service administrative file. 
Applicants should indicate that they wish to rely on such documents and 
identify the administrative file(s) by name and alien number. The 
Service will only request the required documentation again if necessary.



Sec. 320.4  Who must appear for an interview on the application for 

citizenship?

    All applicants (and U.S. citizen parent(s) if application filed on 
behalf of a minor biological or adopted child) must appear for 
examination unless such examination is waived under the guidelines 
expressed in Sec. 341.2 of this chapter.



Sec. 320.5  What happens if the application is approved or denied by the 

Service?

    (a) Approval of application. If the application for the certificate 
of citizenship is granted, after the applicant takes the oath of 
allegiance prescribed in 8 CFR part 337, unless the oath is waived, the 
Service will issue a certificate of citizenship.
    (b) Denial of application. If the decision of the district director 
is to deny the application for a certificate of citizenship under this 
section, the applicant shall be furnished with the reasons for denial 
and advised of the right to appeal in accordance with the provisions of 
8 CFR 103.3(a). An applicant may file an appeal on Form I-290B, Notice 
of Appeal to the Administrative Appeals Unit (AAU), with the required 
fee prescribed in Sec. 103.7(b)(1) of this chapter, in accordance with 
the instructions therein and with any supporting documentation 
addressing the reasons for denial. To be timely, an appeal must be filed 
within 30 days of service of the decision. After an application for a 
certificate of citizenship has been denied and the time for appeal has 
expired, a second application submitted by the same individual shall be 
rejected and the applicant will be instructed to submit a motion for 
reopening or reconsideration in accordance with 8 CFR 103.5. The motion 
shall be accompanied by the rejected application and the fee specified 
in 8 CFR 103.7. A decision shall be issued with notification of appeal 
rights in all certificate of citizenship cases, including any case 
denied due to the applicant's failure to prosecute the application.



PART 322_CHILD BORN OUTSIDE THE UNITED STATES; REQUIREMENTS FOR APPLICATION 

FOR CERTIFICATE OF CITIZENSHIP--Table of Contents




Sec.
322.1 What are the definitions used in this part?
322.2 Who is eligible for citizenship?
322.3 How, where, and what forms and other documents should the United 
          States citizen parent(s) file?
322.4 Who must appear for an interview on the application for 
          citizenship?
322.5 What happens if the application is approved or denied by the 
          Service?

    Authority: 8 U.S.C. 1103, 1443; 8 CFR part 2.

    Source: 66 FR 32144, June 13, 2001, unless otherwise noted.



Sec. 322.1  What are the definitions used in this part?

    As used in this part the term:
    Adopted means adopted pursuant to a full, final and complete 
adoption. In the case of an orphan adoption, if a foreign adoption was 
not full and final, was defective, or the unmarried U.S. citizen parent 
or U.S. citizen parent and spouse jointly did not see and observe the 
child in person prior to or during the foreign adoption proceedings, an 
orphan is not considered to have been adopted and must be readopted in 
the United States or satisfy the requirements of section 101(b)(1)(E) of 
the Act.
    Adopted child means a person who has been adopted as defined above 
and who meets the requirements of section 101(b)(1)(E) or (F) of the 
Act.
    Child means a person who meets the requirements of section 101(c)(1) 
of the Act.
    Lawful admission shall have the same meaning as provided in section 
101(a)(13) of the Act.
    Joint custody, in the case of a child of divorced or legally 
separated parents, means the award of equal responsibility for and 
authority over the care, education, religion, medical treatment

[[Page 811]]

and general welfare of a child to both parents by a court of law or 
other appropriate government entity pursuant to the laws of the state or 
country of residence.
    Legal custody refers to the responsibility for and authority over a 
child.
    (1) For the purpose of the CCA, the Service will presume that a U.S. 
citizen parent has legal custody of a child, and will recognize that 
U.S. citizen parent as having lawful authority over the child, absent 
evidence to the contrary, in the case of:
    (i) A biological child who currently resides with both natural 
parents (who are married to each other, living in marital union, and not 
separated),
    (ii) A biological child who currently resides with a surviving 
natural parent (if the other parent is deceased), or
    (iii) In the case of a biological child born out of wedlock who has 
been legitimated and currently resides with the natural parent.
    (2) In the case of an adopted child, a determination that a U.S. 
citizen parent has legal custody will be based on the existence of a 
final adoption decree. In the case of a child of divorced or legally 
separated parents, the Service will find a U.S. citizen parent to have 
legal custody of a child, for the purpose of the CCA, where there has 
been an award of primary care, control, and maintenance of a minor child 
to a parent by a court of law or other appropriate government entity 
pursuant to the laws of the state or country of residence. The Service 
will consider a U.S. citizen parent who has been awarded ``joint 
custody,'' to have legal custody of a child. There may be other factual 
circumstances under which the Service will find the U.S. citizen parent 
to have legal custody for purposes of the CCA.



Sec. 322.2  Who is eligible for citizenship?

    (a) General. A child will be eligible for citizenship under section 
322 of the Act, if the following conditions have been fulfilled:
    (1) The child has at least one United States citizen parent (by 
birth or naturalization);
    (2) The United States citizen parent has been physically present in 
the United States or its outlying possessions for at least 5 years, at 
least 2 of which were after the age of 14, or the United States citizen 
parent has a United States citizen parent who has been physically 
present in the United States or its outlying possessions for at least 5 
years, at least 2 of which were after the age of 14;
    (3) The child currently is under 18 years of age;
    (4) The child currently is residing outside the United States in the 
legal and physical custody of the United States citizen parent; and
    (5) The child is temporarily present in the United States pursuant 
to a lawful admission and is maintaining such lawful status in the 
United States.
    (b) Additional requirements if child is adopted. If an adopted 
child, all of the requirements in paragraph (a) of this section must be 
fulfilled and the child must satisfy the requirements applicable to 
adopted children under section 101(b)(1) of the Act.



Sec. 322.3  How, where, and what forms and other documents should the United 

States citizen parent(s) file?

    (a) Application. An application for a certificate of citizenship 
under this section on behalf of a biological child shall be submitted on 
Form N-600, Application for Certificate of Citizenship, by the U.S. 
citizen parent(s). An application for a certificate of citizenship under 
this section on behalf of an adopted child shall be submitted on Form N-
643, Application for Certificate of Citizenship in Behalf of An Adopted 
Child by U.S. citizen adoptive parent(s). The completed application and 
accompanying supporting documentation may be filed at any stateside 
district office or suboffice. The application must be filed with the 
filing fee required in Sec. 103.7(b)(1) of this chapter. The U.S. 
citizen parent should include a request with the N-600 or N-643, noting 
preferred interview dates, and should allow sufficient time (at least 
ninety days) to enable the Service office to preliminarily adjudicate 
the application, schedule the interview, and send the appointment notice 
to the foreign address.
    (b) Evidence. (1) An applicant under this section shall establish 
eligibility under Sec. 322.2. In addition to the forms

[[Page 812]]

and the appropriate fee as required in Sec. 103.7(b)(1) of this 
chapter, an applicant must submit the following required documents 
unless such documents are already contained in the Service 
administrative file(s):
    (i) The child's birth certificate or record;
    (ii) Marriage certificate of child's parents (if applicable);
    (iii) If the child's parents were married before their marriage to 
each other, proof of termination of any previous marriage of each parent 
(e.g., death certificate or divorce decree);
    (iv) Evidence of U.S. citizenship of parent (i.e., birth 
certificate; naturalization certificate; FS-240, Report of Birth Abroad; 
a valid unexpired U.S. passport; or certificate of citizenship);
    (v) If the child was born out of wedlock, documents verifying 
legitimation according to the laws of the child's residence or domicile 
or father's residence or domicile (if applicable);
    (vi) In case of divorce, legal separation, or adoption, 
documentation of legal custody (if applicable);
    (vii) Documentation establishing that the U.S. citizen parent or 
U.S. citizen grandparent meets the required physical presence 
requirements (e.g., school records, military records, utility bills, 
medical records, deeds, mortgages, contracts, insurance policies, 
receipts, or attestations by churches, unions, or other organizations);
    (viii) Evidence that the child is present in the United States 
pursuant to a lawful admission and is maintaining such lawful status 
(e.g., Form I-94, Arrival/Departure Record) (in certain circumstances, 
this evidence may be presented at the time of interview);
    (ix) If adopted, a copy of a full, final adoption decree;
    (x) For adopted children (not orphans) applying under section 322 of 
the Act, evidence that they satisfy the requirements of section 
101(b)(1)(E);
    (xi) For adopted orphans applying under section 322 of the Act, a 
copy of notice of approval of a Form I-600 Petition to Classify Orphan 
as an Immediate Relative, and supporting documentation for such form 
(except the home study);
    (xii) For a Convention adoptee applying under section 322 of the 
Act, a copy of the notice of approval of the Form I-800 and the 
supporting documents submitted with the Form I-800 (except the home 
study); and
    (xiii) Evidence of all legal name changes, if applicable, for child, 
U.S. citizen parent, or U.S. citizen grandparent.
    (2) If the Service requires any additional documentation to make a 
decision on the Form N-600 or N-643, parents may be asked to provide 
that documentation under separate cover or at the time of interview. 
Parents do not need to submit documents that were submitted in 
connection with: An application for immigrant visa and retained by the 
American Consulate for inclusion in the immigrant visa package, or 
another immigrant petition or application and included in a Service 
administrative file. Parents should indicate that they wish to rely on 
such documents and identify the administrative file(s) by name and alien 
number. The Service will only request the required documentation again 
if necessary.

[66 FR 32144, June 13, 2001, as amended at 72 FR 56867, Oct. 4, 2007]



Sec. 322.4  Who must appear for an interview on the application for 

citizenship?

    The U.S. citizen parent and the child shall appear in person before 
a Service officer for examination on the application for certificate of 
citizenship.



Sec. 322.5  What happens if the application is approved or denied by the 

Service?

    (a) Approval of application. If the application for certificate of 
citizenship is approved, after the applicant takes the oath of 
allegiance prescribed in 8 CFR part 337, unless the oath is waived, the 
Service will issue a certificate of citizenship. The child is a citizen 
as of the date of approval and administration of the oath of allegiance.
    (b) Denial of application. If the decision of the district director 
is to deny the application for a certificate of citizenship under this 
section, the applicant shall be furnished with the reasons for denial 
and advised of the right to appeal in accordance with the provisions of 
8 CFR 103.3(a). An applicant

[[Page 813]]

may file an appeal on Form I-290B, Notice of Appeal to the 
Administrative Appeals Unit (AAU), with the required fee prescribed in 
Sec. 103.7(b)(1) of this chapter, in accordance with the instructions 
therein and with any supporting documentation addressing the reasons for 
denial. To be timely filed, an appeal must be filed within 30 days of 
service of the decision. After an application for a certificate of 
citizenship has been denied and the time for appeal has expired, a 
second application submitted by the same individual shall be rejected 
and the applicant will be instructed to submit a motion for reopening or 
reconsideration in accordance with 8 CFR 103.5. The motion shall be 
accompanied by the rejected application and the fee specified in 8 CFR 
103.7. A decision shall be issued with notification of appeal rights in 
all certificate of citizenship cases, including any case denied due to 
the applicant's failure to prosecute the application.



 PART 324_SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALlZED: WOMEN WHO HAVE 

LOST UNITED STATES CITIZENSHIP BY MARRIAGE AND FORMER CITIZENS WHOSE 

NATURALIZATION IS AUTHORIZED BY PRlVATE LAW--Table of Contents




Sec.
324.1 Definitions.
324.2 Former citizen at birth or by naturalization.
324.3 Women, citizens of the United States at birth, who lost or are 
          believed to have lost citizenship by marriage and whose 
          marriage has terminated.
324.4 Women restored to United States citizenship by the act of June 25, 
          1936, as amended by the act of July 2, 1940.
324.5 Former citizen of the United States whose naturalization by taking 
          the oath is authorized by a private law.

    Authority: 8 U.S.C. 1103, 1435, 1443, 1448, 1101 note.



Sec. 324.1  Definitions.

    As used in this part:
    Oath means the Oath of Allegiance as prescribed in section 337 of 
the Act.

[56 FR 50490, Oct. 7, 1991]



Sec. 324.2  Former citizen at birth or by naturalization.

    (a) Eligibility. To be eligible for naturalization under section 
324(a) of the Act, an applicant must establish that she:
    (1) Was formerly a United States citizen;
    (2) Lost or may have lost United States citizenship:
    (i) Prior to September 22, 1922, by marriage to an alien, or by the 
loss of United States citizenship of the applicant's spouse; or
    (ii) On or after September 22, 1922, by marriage before March 3, 
1931 to an alien ineligible to citizenship;
    (3) Did not acquire any other nationality by affirmative act other 
than by marriage;
    (4) Either:
    (i) Has resided in the United States continuously since the date of 
the marriage referred to in paragraph (a)(2) of this section; or
    (ii) Has been lawfully admitted for permanent residence prior to 
filing an application for naturalization;
    (5) Has been and is a person of good moral character, attached to 
the principles of the Constitution of the United States, and favorably 
disposed toward the good order and happiness of the United States, for 
the period of not less than five years immediately preceding the 
examination on the application for naturalization up to the time of 
admission to citizenship; and
    (6) Complies with all other requirements for naturalization as 
provided in part 316 of this chapter, except that:
    (i) The applicant is not required to satisfy the residence 
requirements under Sec. 316.2(a)(3) through (a)(6) of this chapter; 
and,
    (ii) The applicant need not set forth an intention to reside 
permanently within the United States.
    (b) Application. An applicant for naturalization under this section 
must submit an application on Form N-400, as required by Sec. 316.4 of 
this chapter. The application must be accompanied by a statement 
describing the applicant's eligibility as provided in paragraph (a) of 
this section as well as any available documentation to establish those 
facts. An application under this section shall be filed with the Service 
office having

[[Page 814]]

jurisdiction over the place of residence of the applicant.

[56 FR 50490, Oct. 7, 1991]



Sec. 324.3  Women, citizens of the United States at birth, who lost or are 

believed to have lost citizenship by marriage and whose marriage has 

terminated.

    (a) Eligibility. To be eligible for naturalization under section 
324(c) of the Act, an applicant must establish:
    (1) That she was formerly a United States citizen by birth;
    (2) That she lost or may have lost her United States citizenship:
    (i) Prior to September 22, 1922, by marriage to an alien; or
    (ii) On or after September 22, 1922, by marriage to an alien 
ineligible to citizenship before March 3, 1931;
    (3) That the marriage specified in paragraph (a)(2) of this section 
terminated subsequent to January 12, 1941;
    (4) That she did not acquire any other nationality by affirmative 
act other than by marriage; and
    (5) That she is not proscribed from naturalization under section 313 
of the Act.
    (b) Procedures--(1) Application. An applicant eligible for 
naturalization pursuant to paragraph (a) of this section, who desires to 
regain citizenship pursuant to section 324(c) of the Act, shall submit, 
without fee, an Application for Naturalization, form N-400, to the 
office of the Service having jurisdiction over her place of residence as 
evidence of her desire to take the oath.
    (2) Oath of Allegiance. The district director shall review the 
applicant's submission, and shall inform the applicant of her 
eligibility under section 324(c) of the Act to take the oath in 
conformity with part 337 of this chapter. After the applicant has taken 
the oath, the applicant will be furnished with a copy of the oath by the 
clerk of the Court or the Service, as appropriate, properly certified, 
for which a fee not exceeding $5 may be charged. The oath may also be 
taken abroad before any diplomatic or consular officer of the United 
States, in accordance with such regulations as may be prescribed by the 
Secretary of State.

[56 FR 50490 and 50491, Oct. 7, 1991]



Sec. 324.4  Women restored to United States citizenship by the act of June 25, 

1936, as amended by the act of July 2, 1940.

    A woman who was restored to citizenship by the act of June 25, 1936, 
as amended by the act of July 2, 1940, but who failed to take the oath 
of allegiance prescribed by the naturalization laws prior to December 
24, 1952, may take the oath before any naturalization court or office of 
the Service within the United States. Such woman shall comply with the 
procedural requirements of Sec. 324.4(b) and (c) except that a fee not 
exceeding $1.00 may be charged if the woman requests a copy of the oath.

[22 FR 9814, Dec. 6, 1957. Redesignated and amended at 56 FR 50490 and 
50491, Oct. 7, 1991]



Sec. 324.5  Former citizen of the United States whose naturalization by taking 

the oath is authorized by a private law.

    A former citizen of the United States whose naturalization by taking 
the oath before any naturalization court or office of the Service within 
the United States is authorized by a private law shall submit to the 
Service an application on Form N-400, without fee. The application to 
the court shall be made on Form N-400, in triplicate, amended as set 
forth in this chapter. A copy of the private law shall be attached to 
Form N-408. The provisions of Sec. 324.5(c) relating to fees and copies 
of the oath will apply to a proceeding under this section.

[23 FR 2673, Apr. 23, 1958. Redesignated and amended at 56 FR 50490 and 
50491, Oct. 7, 1991]



PART 325_NATIONALS BUT NOT CITIZENS OF THE UNITED STATES; RESIDENCE WITHIN 

OUTLYING POSSESSIONS--Table of Contents




Sec.
325.1 [Reserved]
325.2 Eligibility.
325.3 Residence.
325.4 Application; documents.

    Authority: 8 U.S.C. 1103, 1436, 1443.

    Source: 56 FR 50491, Oct. 7, 1991, unless otherwise noted.

[[Page 815]]



Sec. 325.1  [Reserved]



Sec. 325.2  Eligibility.

    An applicant for naturalization under section 325 of the Act who 
owes permanent allegiance to the United States, and who is otherwise 
qualified may be naturalized if:
    (a) The applicant becomes a resident of any State; and
    (b) The applicant complies with all of the applicable requirements 
in parts 316 or 319 of this chapter, as appropriate, except as modified 
in this part.



Sec. 325.3  Residence.

    (a) For purposes of applying the residence and physical presence 
requirements in parts 316 and 319 of this chapter, except as they relate 
to the required three months' residence in a State or Service district, 
residence and physical presence in an outlying possession of the United 
States will count as residence and physical presence in the United 
States.
    (b) An applicant who intends to resume residence in an outlying 
possession after naturalization will be regarded as having established 
that he or she intends to reside permanently in the United States.



Sec. 325.4  Application; documents.

    (a) An application for naturalization under this part shall be 
submitted in compliance with Sec. 316.4(a) of this chapter.
    (b) The applicant shall submit with the application:
    (1) A birth certificate or other evidence of national status;
    (2) Proof of identity; and
    (3) Evidence of actual residence in the State or Service district in 
the United States where the application is filed for three months 
immediately preceding the filing of the application, or immediately 
preceding the examination on the application if the application was 
filed early pursuant to section 334(a) of the Act and the three month 
period falls within the required period of residence under section 
316(a) or 319(a) of the Act.



PART 327_SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: PERSONS WHO LOST 

UNITED STATES CITlZENSHIP THROUGH SERVICE IN ARMED FORCES OF FOREIGN COUNTRY 

DURlNG WORLD WAR II--Table of Contents




Sec.
327.1 Eligibility.
327.2 Procedure for naturalization.

    Authority: 8 U.S.C. 1103, 1438, 1443.



Sec. 327.1  Eligibility.

    To be eligible for naturalization under section 327 of the Act, an 
applicant must establish that:
    (a) The applicant, on or after September 1, 1939 and on or before 
September 2, 1945:
    (1) Served in the military, air or naval forces of any country at 
war with a country with which the United States was at war after 
December 7, 1941 and before September 2, 1945; or
    (2) Took an oath of allegiance or obligation for purposes of 
entering or serving in the military, air, or, naval forces of any 
country at war with a country with which the United States was at war 
after December 7, 1941 and before September 2, 1945;
    (b) The applicant was a United States citizen at the time of the 
service or oath specified in paragraph (a) of this section;
    (c) The applicant lost United States citizenship as a result of the 
service or oath specified in paragraph (a) of this section;
    (d) The applicant has been lawfully admitted for permanent residence 
and intends to reside permanently in the United States;
    (e) The applicant is, and has been for a period of at least five 
years immediately preceding taking the oath required in Sec. 327.2(c), 
a person of good moral character, attached to the principles of the 
Constitution of the United States, and favorably disposed toward the 
good order and happiness of the United States; and
    (f) The applicant has complied with all other requirements for 
naturalization as provided in part 316 of this chapter, except for those 
contained in

[[Page 816]]

Sec. 316.2 (a)(3) through (a)(6) of this chapter.

[56 FR 50492, Oct. 7, 1991]



Sec. 327.2  Procedure for naturalization.

    (a) Application. An applicant who is eligible for naturalization 
pursuant to section 327 of the Act and Sec. 327.1 shall submit an 
Application for Naturalization, Form N-400, in accordance with Sec. 
316.4 of this chapter, to the Service office having jurisdiction over 
the applicant's place of residence. Such application must be accompanied 
by a statement describing the applicant's eligibility under Sec. 327.1 
(a), (b), and (c) and any available documentation to establish those 
facts.
    (b) Oath of Allegiance. Upon naturalization of the applicant, the 
district director shall transmit a copy of the oath of allegiance taken 
by the applicant to the Department of State.

[56 FR 50492, Oct. 7, 1991]



PART 328_SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: PERSONS WITH THREE 

YEARS SERVICE IN ARMED FORCES OF THE UNITED STATES--Table of Contents




Sec.
328.1 Definitions.
328.2 Eligibility.
328.3 Jurisdiction.
328.4 Application.

    Authority: 8 U.S.C. 1103, 1439, 1443.

    Source: 56 FR 50492, Oct. 7, 1991, unless otherwise noted.



Sec. 328.1  Definitions.

    As used in this part:
    Honorable service means only that military service which is 
designated as honorable service by the executive department under which 
the applicant performed that military service. Any service that is 
designated to be other than honorable will not qualify under this 
section.
    Service in the Armed Forces of the United States means:
    (1) Active or reserve service in the United States Army, United 
States Navy, United States Marines, United States Air Force, or United 
States Coast Guard; or
    (2) Service in a National Guard unit during such time as the unit is 
Federally recognized as a reserve component of the Armed Forces of the 
United States.



Sec. 328.2  Eligibility.

    To be eligible for naturalization under section 328(a) of the Act, 
an applicant must establish that the applicant:
    (a) Has served honorably in and, if separated, has been separated 
honorably from, the Armed Forces of the United States;
    (b) Has served under paragraph (a) of this section for a period of 
three or more years, whether that service is continuous or 
discontinuous;
    (c) Is a lawful permanent resident of the United States at the time 
of the examination on the application;
    (d) Has been, during any period within five years preceding the 
filing of the application for naturalization, or the examination on the 
application if eligible for early filing under section 334(a) of the 
Act, and continues to be, of good moral character, attached to the 
principles of the Constitution of the United States, and favorably 
disposed toward the good order and happiness of the United States.
    (1) An applicant is presumed to satisfy the requirements of this 
paragraph during periods of honorable service under paragraph (a) of 
this section.
    (2) An applicant must establish that he or she satisfies the 
requirements of this paragraph from the date of discharge from military 
until the date of admission to citizenship.
    (3) An applicant whose honorable service is discontinuous must also 
demonstrate that he or she satisfies the requirements of this paragraph 
for those periods of time when that applicant is not in honorable 
service.
    (e) Has complied with all other requirements for naturalization as 
provided in part 316 of this chapter, except that:
    (1) An applicant who files an application for naturalization while 
still in honorable service, or within six months after termination of 
such service, is generally not required to satisfy the residence 
requirements under

[[Page 817]]

Sec. 316.2(a)(3) through (a)(6) of this chapter; however, if the 
applicant's military service is discontinuous, that applicant must 
establish, for periods between honorable service during the five years 
immediately preceding the date of filing the application, or the 
examination on the application if eligible for early filing under 
section 334(a) of the Act, that he or she resided in the United States 
and in the State or Service district in the United States in which the 
application is filed.
    (2) An applicant who files an application for naturalization more 
than six months after terminating honorable service must satisfy the 
residence requirements under Sec. 316.2(a)(3) through (a)(6) of this 
chapter. However, any honorable service by the applicant within the five 
years immediately preceding the date of filing of the application shall 
be considered as residence within the United States for purposes of 
Sec. 316.2(a)(3) of this chapter.



Sec. 328.3  Jurisdiction.

    An application filed within 6 months after discharge may be filed 
with any office of the Service within the United States regardless of 
place of residence of the applicant. An application filed more than 6 
months after discharge shall be filed with the Service office having 
jurisdiction over the State or Service district where the applicant has 
been residing for at least three months immediately preceding the filing 
of the application, or immediately preceding the examination on the 
application if the application was filed early pursuant to section 
334(a) of the Act and the three month period falls within the required 
period of residence under section 316(a) or 319(a) of the Act.



Sec. 328.4  Application.

    An applicant for naturalization under this part must submit an 
Application for Naturalization, Form N-400, as provided in Sec. 316.4 
of this chapter. The application must be accompanied by Form N-426, 
Certificate of Military or Naval Service; and Form G-325B, Biographic 
Form.



  PART 329_SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: NATURALIZATION 

BASED UPON ACTIVE DUTY SERVICE IN THE UNITED STATES ARMED FORCES DURING 

SPECIFIED PERIODS OF HOSTILITIES--Table of Contents




Sec.
329.1 Definitions.
329.2 Eligibility.
329.3 Jurisdiction.
329.4 Application and evidence.
329.5 Natives of the Philippines with active duty service during World 
          War II.

    Authority: 8 U.S.C. 1103, 1440, 1443; 8 CFR part 2.



Sec. 329.1  Definitions.

    As used in this part:
    Honorable service and separation means service and separation from 
service which the executive department under which the applicant served 
determines to be honorable, including:
    (1) That such applicant had not been separated from service on 
account of alienage;
    (2) That such applicant was not a conscientious objector who 
performed no military, air or naval duty; and
    (3) That such applicant did not refuse to wear a military uniform.
    Service in an active duty status in the Armed Forces of the United 
States means active service in the following organizations:
    (1) United States Army, United States Navy, United States Marines, 
United States Air Force, United States Coast Guard; or
    (2) A National Guard unit during such time as the unit is Federally 
recognized as a reserve component of the Armed Forces of the United 
States and that unit is called for active duty.
    World War I means the period beginning on April 6, 1917, and ending 
on November 11, 1918.

[56 FR 50493, Oct. 7, 1991]



Sec. 329.2  Eligibility.

    To be eligible for naturalization under section 329(a) of the Act, 
an applicant must establish that he or she:
    (a) Has served honorably in an active duty status in the Armed 
Forces of the United States during:

[[Page 818]]

    (1) World War I;
    (2) The period beginning on September 1, 1939 and ending on December 
31, 1946;
    (3) The period beginning on June 25, 1950 and ending on July 1, 
1955;
    (4) The period beginning on February 28, 1961 and ending on October 
15, 1978; or
    (5) Any other period as may be designated by the President in an 
Executive Order pursuant to section 329(a) of the Act;
    (b) If separated, has been separated honorably from service in the 
Armed Forces of the United States under paragraph (a) of this section;
    (c) Satisfies the permanent residence requirement in one of the 
following ways:
    (1) Any time after enlistment or induction into the Armed Forces of 
the United States, the applicant was lawfully admitted to the United 
States as a permanent resident; or
    (2) At the time of enlistment or induction, the applicant was 
physically present in the geographical territory of the United States, 
the Canal Zone, American Samoa, Midway Island (prior to August 21, 
1959), or Swain's Island, or in the ports, harbors, bays, enclosed sea 
areas, or the three-mile territorial sea along the coasts of these land 
areas, whether or not the applicant has been lawfully admitted to the 
United States as a permanent resident;
    (d) Has been, for at least one year prior to filing the application 
for naturalization, and continues to be, of good moral character, 
attached to the principles of the Constitution of the United States, and 
favorably disposed toward the good order and happiness of the United 
States; and
    (e) Has complied with all other requirements for naturalization as 
provided in part 316 of this chapter, except that:
    (1) The applicant may be of any age;
    (2) The applicant is not required to satisfy the residence 
requirements under Sec. 316.2 (a)(3) through (a)(6) of this chapter; 
and
    (3) The applicant may be naturalized even if an outstanding notice 
to appear pursuant to 8 CFR part 239 (including a charging document 
issued to commence proceedings under sections 236 or 242 of the Act 
prior to April 1, 1997) exists.

[56 FR 50493, Oct. 7, 1991, as amended at 58 FR 49913, Sept. 24, 1993; 
62 FR 10395, Mar. 6, 1997]



Sec. 329.3  Jurisdiction.

    Except as noted in Sec. 329.5, an application under this part may 
be filed in any office of the Service within the United States 
regardless of the place of residence of the applicant.

[56 FR 50493, Oct. 7, 1991]



Sec. 329.4  Application and evidence.

    (a) Application. An applicant for naturalization under section 329 
of the Act must submit an Application for Naturalization, Form N-400, as 
provided in Sec. 316.4 of this chapter. The application must be 
accompanied by Form N-426, Certificate of Military or Naval Service, in 
triplicate, and Form G-325B, Biographic Form.
    (b) Evidence. The applicant's eligibility for naturalization under 
Sec. 329.2(a), (b), or (c)(2) shall be established only by the 
certification of the executive department under which the applicant 
served or is serving.

[56 FR 50493, Oct. 7, 1991, as amended at 60 FR 6651, Feb. 3, 1995]



Sec. 329.5  Natives of the Philippines with active duty service during World 

War II.

    (a) A person desiring to naturalize in accordance with section 405 
of the Immigration Act of 1990 shall establish that he/she:
    (1) Was born in the Philippines;
    (2) Served honorably at any time during the period beginning 
September 1, 1939, and ending December 31, 1946--
    (i) In an active-duty status under the command of the United States 
Armed Forces in the Far East, or
    (ii) Within the Commonwealth Army of the Philippines, the Philippine 
Scouts, or recognized guerrilla units; and
    (3) Resided in the Philippines prior to the service described in 
paragraph (a)(2) of this section.
    (b) An application under this section shall be submitted in 
compliance with Sec. 329.2. In addition to the forms and documentation 
required in Sec. 329.2 and the appropriate fee as required in Sec. 
103.7

[[Page 819]]

of this chapter, an applicant shall submit:
    (1) Proof of birth in the Philippines;
    (2) Police clearance for any place of residence for more than six 
months in the previous 5 years if such residence was not in the United 
States; and
    (3) Proof of identity.
    (c) If the applicant is residing in the United States, the 
application shall be submitted to the district or sub-office of the 
Service having jurisdiction over the place of residence in accordance 
with Sec. Sec. 100.4 (b) and (c) of this chapter. A person residing 
outside the United States shall submit the application to the Northern 
Service Center, 100 Centennial Mall North, room B26, Lincoln, Nebraska 
68508.
    (d)(1) A person residing in the Philippines shall be examined on his 
or her application at Manila, Philippines, unless he or she indicates in 
the application a preference to be interviewed in the United States. 
Those persons wishing to be interviewed in the United States shall 
submit with the application a statement listing the desired location and 
the reasons therefor. The Service may interview the applicant at a 
different site other than the one requested if it would, in fact, be in 
the best interest of the applicant to do so.
    (2) A person residing outside the United States and outside the 
Philippines may request to be interviewed in the Philippines or in the 
United States. If such a person elects to be interviewed in the 
Philippines, he or she will be solely responsible for obtaining the 
necessary documents for entry into the Philippines.
    (e) To be considered an application for naturalization under section 
405, the application must be received by the Service no earlier than 
November 29, 1990, and no later than February 3, 1995.
    (f) No decision to approve or deny an application for naturalization 
under section 405 of the Immigration Act of 1990 may be made prior to 
May 1, 1991.
    (g) The service described in Sec. 329.5(a)(2) shall be provided 
solely by the duly authenticated records of the United States Army 
Reserve Personnel Records, St. Louis, Missouri, or the National 
Personnel Records Center, St. Louis, Missouri.
    (h) Irrespective of the requirement in Sec. 337.2(a) of this 
chapter that an administrative oath ceremony be conducted in the United 
States and within the jurisdiction in which the application was filed or 
was transferred pursuant to Sec. 335.9 of this chapter, the 
administrative oath ceremony for an applicant under this section may be 
held within the geographical limits of the Philippines, provided the 
examination on the application was conducted in the Philippines.
    (i) If it should be necessary to institute revocation proceedings 
pursuant to section 340 of the Act in the case of a person naturalized 
outside the United States pursuant to Sec. 329.5 and he or she has 
never resided in the United States, the report of facts required in 
Sec. 340.11 of this chapter shall be made to the district director 
having jurisdiction over the person's current residence outside the 
United States.

[56 FR 11061, Mar. 15, 1991, as amended at 58 FR 45420, Aug. 30, 1993; 
60 FR 45659, Sept. 1, 1995]



PART 330_SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: SEAMEN--Table of 

Contents




Sec.
330.1 Eligibility.
330.2 Application.

    Authority: 8 U.S.C. 1103, 1443.



Sec. 330.1  Eligibility.

    To be eligible for naturalization under section 330 of the Act, an 
applicant must establish that he or she:
    (a) Has been lawfully admitted as a permanent resident of the United 
States;
    (b) Has served honorably or with good conduct, during such periods 
of lawful residence, in a capacity other than as a member of the Armed 
Forces of the United States, on board:
    (1) A vessel operated by the United States, or an agency thereof, 
the full legal and equitable title to which is in the United States; or
    (2) A vessel, whose home port is the United States, and
    (i) Which is registered under the laws of the United States; or

[[Page 820]]

    (ii) The full legal and equitable title to which is in a citizen of 
the United States, or a corporation organized under the laws of any of 
the several States of the United States;
    (c) Served in the capacity specified in paragraph (b) of this 
section within five years immediately preceding the date on which the 
applicant filed the application for naturalization, or on which the 
alien is examined, if the application was filed early pursuant to 
section 334(a) of the Act.
    (d) Has been, during the five years preceding the filing of the 
application for naturalization, or the examination on the application if 
the application was filed early under section 334(a) of the Act, and 
continues to be, of good moral character, attached to the principles of 
the Constitution of the United States, and favorably disposed toward the 
good order and happiness of the United States.
    (1) An applicant is presumed to satisfy the requirements of this 
paragraph during periods of service in accordance with paragraphs (b) 
and (c) of this section, as reflected by the records and certificates 
submitted by the applicant under Sec. 330.2(b).
    (2) An applicant must demonstrate that he or she satisfies the 
requirements of this paragraph for those required periods when that 
applicant did not perform service in accordance with paragraphs (b) and 
(c) of this section; and
    (e) Has complied with all other requirements for naturalization as 
provided in part 316 of this chapter, except that, for purposes of the 
residence requirements under paragraphs Sec. 316.2 (a)(3) and (a)(4) of 
this chapter, service satisfying the conditions of this section shall be 
considered as residence and physical presence within the United States.

[56 FR 50493, Oct. 7, 1991]



Sec. 330.2  Application.

    (a) An applicant for naturalization under section 330 of the Act 
must submit an Application for Naturalization, Form N-400, to the 
Service office exercising jurisdiction over the applicant's actual 
residence in the United States. For the purpose of this section, the 
term ``actual residence'' means the applicant's residence and abode 
ashore as may have been established during the period of qualifying 
service as a seaman immediately prior to the filing of the application.
    (b) An applicant under this part must submit authenticated copies of 
the records and certificates of either:
    (1) The Executive Department or Agencies having custody of records 
reflecting the applicant's service on a vessel in United States 
Government Service, if the applicant provided service under Sec. 
330.1(b)(1); or
    (2) The masters of those vessels maintaining a home port in the 
United States, and either registered under the laws of the United States 
or owned by United States citizens or corporations, if the applicant 
provided service under Sec. 330.1(b)(2).

[56 FR 50493, Oct. 7, 1991]



PART 331_ALIEN ENEMIES; NATURALIZATION UNDER SPECIFIED CONDITIONS AND 

PROCEDURES--Table of Contents




Sec.
331.1 Definitions.
331.2 Eligibility.
331.3 Investigation.
331.4 Procedures.

    Authority: 8 U.S.C. 1103, 1443.

    Source: 56 FR 50494, Oct. 7, 1991, unless otherwise noted.



Sec. 331.1  Definitions.

    As used in this part:
    Alien enemy means any person who is a native, citizen, subject or 
denizen of any country, state or sovereignty with which the United 
States is at war, for as long as the United States remains at war, as 
determined by proclamation of the President or resolution of Congress.
    Denizen includes, but is not limited to, any person who has been 
admitted to residence and is entitled to certain rights in a country 
other than the one of the person's nationality. A person holding a 
status in another country equivalent to that of a lawful permanent 
resident in the United States would be considered to be a denizen.

[[Page 821]]



Sec. 331.2  Eligibility.

    An alien enemy may be naturalized as a citizen of the United States 
under section 331 of the Act if:
    (a) The alien's application for naturalization is pending at the 
beginning of the state of war, or the Service has granted the alien an 
exception from the classification as an alien enemy after conducting an 
investigation in accordance with Sec. 331.3;
    (b) The alien's loyalty to the United States is fully established 
upon investigation by the Service in accordance with Sec. 331.3; and
    (c) The alien is otherwise entitled to admission to citizenship.



Sec. 331.3  Investigation.

    The Service shall conduct a full investigation of any alien enemy 
whose application for naturalization is pending upon declaration of war 
or at any time thereafter. This investigation may take place either 
prior to or after the examination on the application. This investigation 
shall encompass, but not be limited to, the applicant's loyalty to the 
United States and attachment to the country, state, or sovereignty with 
which the United States is at war.



Sec. 331.4  Procedures.

    (a) Upon determining that an applicant for naturalization is an 
alien enemy, the Service shall notify the applicant in writing of its 
determination. Upon service of this notice to the applicant, the 
provisions of section 336(b) of the Act will no longer apply to such 
applicant, until that applicant is no longer classifiable as an alien 
enemy.
    (b) Upon completion of the investigation described in Sec. 331.3, 
if the Service concludes that the applicant's loyalty and attachment to 
the United States have been fully established, the application may be 
granted.



PART 332_NATURALIZATION ADMINISTRATION--Table of Contents




Sec.
332.1 Designation of service employees to administer oaths and conduct 
          examinations and hearings.
332.2 Establishment of photographic studios.
332.3 Instruction and training in citizenship responsibilities.
332.4 Cooperation with official National and State organizations.
332.5 Official forms for use by clerks of court.

    Authority: 8 U.S.C. 1103, 1443, 1447.



Sec. 332.1  Designation of service employees to administer oaths and conduct 

examinations and hearings.

    (a) Examinations. All immigration examiners are hereby designated to 
conduct the examination for naturalization required under section 335 of 
the Act. A district director may also designate other officers of the 
Service, who are classified at grade levels equal to or higher than the 
grade of the immigration examiners, to conduct the examination under 
section 335 of the Act, provided that each officer so designated has 
received appropriate training.
    (b) Hearings. Section 336 of the Act authorizes immigration officers 
to conduct hearings under that section. A district director may 
designate the officers who are designated under paragraph (a) of this 
section to conduct hearings under section 336 of the Act.
    (c) Depositions. All immigration officers and other officers or 
employees of the Service who are classified at grade levels equal to or 
higher than the grade of the immigration officers are hereby designated 
to take depositions in matters relating to the administration of 
naturalization and citizenship laws.
    (d) Oaths and affirmations. All immigration officers and other 
officers or employees of the Service who are classified at grade levels 
equal to or higher than the grade of the immigration officers are hereby 
designated to administer oaths or affirmations except for the oath of 
allegiance as provided in Sec. 337.2 of this chapter.

[56 FR 50494, Oct. 7, 1991]



Sec. 332.2  Establishment of photographic studios.

    District directors shall after investigation recommend to the 
appropriate regional commissioner the establishment and operation of 
studios providing photographic services. The studios shall be operated 
by sponsoring organizations on a nonprofit basis solely

[[Page 822]]

for the benefit of persons seeking to comply with the requirements of 
the immigration and naturalization laws. Such studios must be in a 
building occupied by the Service and be conducted under the supervision 
of the district director. Each sponsoring organization shall submit an 
annual accounting of the conduct of each studio to the regional 
commissioner through the district director.

[51 FR 35628, Oct. 7, 1986. Redesignated and amended at 56 FR 50494, 
Oct. 7, 1991; 63 FR 12987, Mar. 17, 1998]



Sec. 332.3  Instruction and training in citizenship responsibilities.

    (a) Headquarters and the field offices of the Service shall 
cooperate with appropriate authorities or organizations in the community 
to establish and maintain classes within, or under the supervision of, 
the public schools, for the purpose of preparing applicants for 
naturalization to accept the duties and responsibilities of citizenship. 
Service officers shall, whenever practical, visit such classes or 
otherwise provide necessary liaison with those authorities or 
organizations that are providing such educational preparation.
    (b) Citizenship textbooks and other study materials are intended for 
the free use of applicants for naturalization who are enrolled in 
instructional courses in or under the supervision of the public schools 
as provided in paragraph (a) of this section. Such textbooks and other 
study materials shall be distributed by the regional offices of the 
Service to the appropriate representatives of the public schools upon 
their written and signed requests.
    (c) Public school certificates attesting to the attendance and 
progress of enrollees shall be given favorable consideration by Service 
officers in determining the applicant's overall knowledge and 
understanding of the fundamentals of the history, principles, and form 
of government of the United States, and the applicant's ability to read, 
write, and speak the English language.

[56 FR 50495, Oct. 7, 1991]



Sec. 332.4  Cooperation with official National and State organizations.

    The Central Office and the field offices shall take steps to obtain 
the aid of and to cooperate with official National and State 
organizations in the Service's program of promoting instruction and 
training of applicants for naturalization for their citizenship duties 
and responsibilities. Similar action shall be taken in relation to duly 
accredited unofficial educational, social service, welfare, and other 
organizations having as one of their objects the preparation of 
applicants for naturalization for their citizenship duties and 
responsibilities.

[22 FR 9818, Dec. 6, 1957. Redesignated at 56 FR 50495, Oct. 7, 1991]



Sec. 332.5  Official forms for use by clerks of court.

    (a) Official forms essential to exercise of jurisdiction. Before 
exercising jurisdiction in naturalization proceedings, the 
naturalization court shall direct the clerk of such court upon written 
application to obtain from the Service, in accordance with section 
310(c) of the Immigration and Nationality Act, proper forms, records, 
booked, and supplies required in naturalization proceedings. Such 
jurisdiction may not be exercised until such official forms, records, 
and books have been supplied to such court. Only such forms as are 
supplied shall be used in naturalization proceedings. Where sessions of 
the court are held at different places, the judge of such court may 
require the clerk to obtain a separate supply of official forms, records 
and books for each such place.
    (b) Official forms prescribed for use of clerks of naturalization 
courts. Clerks of courts shall use only the forms listed in Sec. 499.1 
of this chapter in the exercise of naturalization jurisdiction.
    (c) Initial application for official forms. Whenever the initial 
application for forms, records, books and supplies is made by a State 
court of record, it shall be accompanied by a certificate of the 
Attorney General of the State, certifying that the said court is a court 
of record, having a seal, a clerk, and jurisdiction in actions at law or 
in equity, or at law and in equity, in which

[[Page 823]]

the amount in controversy is unlimited.
    (d) Subsequent application for use of official forms. Included with 
the initial supply of official forms, records, and books furnished to 
the various courts by the Service shall be Form N-3 entitled 
``Requisition for Forms and Binders,'' and thereafter such forms shall 
be used by clerks of courts in making requisition for forms, records, 
books, and supplies for use in naturalization proceedings in their 
respective courts.

[22 FR 9817, Dec. 6, 1957. Redesignated and amended at 56 FR 50495, Oct. 
7, 1991]



PART 333_PHOTOGRAPHS--Table of Contents




Sec.
333.1 Description of required photographs.
333.2 Attachment of photographs to documents.

    Authority: 8 U.S.C. 1103, 1443.



Sec. 333.1  Description of required photographs.

    (a) Every applicant required to furnish photographs of himself or 
herself under section 333 of the Act and this chapter shall submit three 
identical color photographs that shall have a glossy finish and shall be 
no smaller than 40 mm in length by 35 mm in width, and no larger than 80 
mm in length by 60 mm in width; shall be unmounted and printed on a thin 
paper; shall have a white background; shall clearly show a three-quarter 
profile view of the features of the applicant with head bare (unless the 
applicant is wearing a headdress as required by a religious order of 
which he or she is a member), with the distance from the top of the head 
to point of chin approximately 30 mm; and shall have been taken within 
30 days of the date they are furnished. The image must be at least 26 mm 
in width. Photographs must be in natural color.
    (b) The applicant, except in the case of a child or other person 
physically incapable of signing his or her name, shall sign each copy of 
the photograph on the front of the photograph with his or her full true 
name, in such manner as not to obscure the features. An applicant unable 
to write may make the signature by a mark. An applicant for 
naturalization must sign the photographs in the English language, unless 
the applicant is exempt from the English language requirement of part 
312 of this chapter and is unable to sign in English, in which case the 
photographs may be signed in any language.
    (c)(1) If a child is unable to sign his or her name, the photographs 
must be signed by a parent or guardian, the signature reading ``(name of 
child) by (name of parent or guardian).''
    (2) If an adult is physically unable to sign or make a mark, a 
guardian or the Service employee conducting the interview will sign the 
photographs as provided in paragraph (c)(1) of this section.
    (d) The photographs must be signed when submitted with an 
application if the instructions accompanying the application so require. 
If signature is not required by the instructions, the photographs are to 
be submitted without being signed and shall be signed at such later time 
during the processing of the application as may be appropriate.

[56 FR 50495, Oct. 7, 1991]



Sec. 333.2  Attachment of photographs to documents.

    A signed photograph of the applicant must be securely and 
permanently attached to each certificate of naturalization or 
citizenship, to each original and duplicate declaration of intention 
issued by the Service, and to each replacement copy of a declaration of 
intention, certificate of naturalization, or certificate of citizenship 
issued by the Service. If a seal is affixed to the document, the imprint 
of a part of the seal must extend over the lower portion of the 
photograph in such a manner as not to obscure the features of the 
applicant.

[56 FR 50495, Oct. 7, 1991]



PART 334_APPLICATION FOR NATURALIZATION--Table of Contents




Sec.
334.1 Filing of application for naturalization.
334.2 Application for naturalization.
334.3 [Reserved]
334.4 Investigation and report if applicant is sick or disabled.

[[Page 824]]

334.5 Amendment of application for naturalization; reopening 
          proceedings.
334.6-334.10 [Reserved]
334.11 Declaration of intention.
334.12-334.15 [Reserved]
334.16 Amendment of petition for naturalization.
334.17 Transfer of petition for naturalization.
334.18 Withdrawal of petition and failure to prosecute.

    Authority: 8 U.S.C. 1103, 1443; 8 CFR part 2.



Sec. 334.1  Filing of application for naturalization.

    Any person who is an applicant under sections 316, 319, 324, 325, 
327, 328, 329, or 330 of the Act and the corresponding parts of this 
chapter, may apply for naturalization in accordance with the procedures 
prescribed in this chapter at the Service office indicated in the 
appropriate part of this chapter.

[56 FR 50496, Oct. 7, 1991, as amended at 66 FR 32147, June 13, 2001]



Sec. 334.2  Application for naturalization.

    (a) An applicant may file an application for naturalization by 
filing a completed Form N-400 signed in the applicant's own handwriting, 
if physically able to do so, and by including any other documents 
required by parts 316, 319, 324, 325, 327, 328, 329, and 330 of this 
chapter, as appropriate. An application prepared for a person physically 
unable to write shall be signed by the preparer, in the space marked 
``Preparer's signature.'' The applicant shall include the fee as 
required in Sec. 103.7 of chapter B of this title, and a photocopy of 
the applicant's Alien Registration Card (Form I-551).
    (b) An application for naturalization may be filed up to 90 days 
prior to the completion of the required period of residence, which may 
include the three-month period of residence required to establish 
jurisdiction under section 316(a) or 319(a) of the Act.

[56 FR 50496, Oct. 7, 1991, as amended at 59 FR 48780, Sept. 20, 1993; 
66 FR 32147, June 13, 2001]



Sec. 334.3  [Reserved]



Sec. 334.4  Investigation and report if applicant is sick or disabled.

    Whenever it appears that an applicant for naturalization may be 
unable, because of sickness or other disability, to appear for the 
initial examination on the application or for any subsequent interview, 
the district director shall cause an investigation to be conducted to 
determine the circumstances surrounding the sickness or disability. The 
district director shall determine, based on available medical evidence, 
whether the sickness or disability is of a nature which so incapacitates 
the applicant as to prevent the applicant's appearance at a Service 
office having jurisdiction over the applicant's place of residence. If 
so, the district director shall designate another place where the 
applicant may appear for the requisite naturalization proceedings.

[58 FR 49913, Sept. 24, 1993]



Sec. 334.5  Amendment of application for naturalization; reopening 

proceedings.

    (a) Clerical amendments--(1) By applicant. An applicant may request 
that the application for naturalization be amended either prior to or 
subsequent to the administration of the oath of allegiance.
    (2) By Service. The Service may amend, at any time, an application 
for naturalization when in receipt of information that clearly indicates 
that a clerical error has occurred.
    (3) Amendment procedure. Any amendment will be limited to the 
correction of clerical errors arising from oversight or omission. If the 
amendment is approved, the amended application shall be filed with the 
original application for naturalization.
    (b) Substantive amendments. Any substantive amendments which affect 
the jurisdiction or the decision on the merits of the application will 
not be authorized. When the Service is in receipt of any information 
that would indicate that an application for naturalization should not 
have been granted on the merits, the Service may institute proceedings 
to reopen the application before admission to citizenship, or to revoke 
the naturalization of a person who has been admitted to citizenship, in 
accordance with section 340 of the Act and Sec. 335.5 of this chapter.

[56 FR 50496, Oct. 7, 1991]

[[Page 825]]



Sec. Sec. 334.6-334.10  [Reserved]



Sec. 334.11  Declaration of intention.

    (a) Application. Any person who is a lawful permanent resident over 
18 years of age may file an application for a declaration of intention 
to become a citizen of the United States while present in the United 
States. Such application, with the requisite fee, shall be filed on Form 
N-300 with the Service office having jurisdiction over the applicant's 
place of residence in the United States.
    (b) Approval. If approved, the application for the declaration of 
intention, page 1 of Form N-300, shall be retained and filed in the 
applicant's Service file. The original of the declaration of intention, 
page 2 of Form N-300, shall be filed in chronological order in the 
official files of the Service office where the application was filed. 
The duplicate of the declaration of intention, page 3 of Form N-300, 
shall be delivered to the applicant.
    (c) Denial. If an application is denied, the applicant shall be 
notified in writing of the reasons for denial. No appeal shall lie from 
this decision.

[58 FR 49913, Sept. 24, 1993]



Sec. Sec. 334.12-334.15  [Reserved]



Sec. 334.16  Amendment of petition for naturalization.

    (a) During pendency of petition. An application to amend a petition 
for naturalization, filed prior to October 1, 1991, while such petition 
is pending, shall be made by the petitioner on Form N-410, with copies 
thereof equal to the number of copies of the petition for 
naturalization, and presented to the court at the hearing on the 
petition for naturalization. The application shall be accompanied by the 
fee specified in Sec. 103.7(b)(1) of this chapter, unless it was 
initiated by, and for the convenience of, the government. When the court 
orders the petition amended, the original order shall be filed with the 
original petition and the copies attached to the respective copies of 
the petition.
    (b) After final action on petition. Whenever an application is made 
to the court to amend a petition for naturalization after final action 
thereon has been taken by the court, a copy of the application shall be 
served upon the district director having administrative jurisdiction 
over the territory in which the court is located, in the manner and 
within the time provided by the rules of court in which application is 
made. No objection shall be made to the amendment of a petition for 
naturalization after the petitioner for naturalization has been admitted 
to citizenship if the motion or application is to correct a clerical 
error arising from oversight or omission. A representative of the 
Service may appear at the hearing upon such application and be heard in 
favor of or in opposition thereto. When the court orders the petition 
amended, the clerk of court shall transmit a copy of the order to the 
district director for inclusion in the Service file.

[22 FR 9819, Dec. 6, 1957, as amended at 32 FR 9635, July 4, 1967; 45 FR 
10313, Feb. 15, 1980; 56 FR 50496, Oct. 7, 1991]



Sec. 334.17  Transfer of petition for naturalization.

    (a) Application for transfer. An application to transfer a petition 
for naturalization, filed prior to October 1, 1991, shall be made on 
Form N-455, in quadruplicate, to the district diector exercising 
administrative jurisdiction over the place where the court in which the 
petition is filed is located.
    (b) Action by district director. If the district director consents 
to the transfer, he shall so indicate on each copy of Form N-455, which 
shall be filed with the clerk of court in which the petition is pending. 
If the district director does not consent to the transfer he shall so 
indicate on each copy of Form N-455 which shall be filed with the clerk 
of court, with a memorandum of the district director setting forth the 
reasons for the denial. The applicant shall be notified by the district 
director of the filing of Form N-455 with the clerk of court, and 
whether consent has been given by the district director.
    (c) Action by court in which petition is filed. The court in which 
the petition is filed shall enter an order on the original copy of Form 
N-455, approving or disapproving the application. If the application is 
approved, the original copy of Form N-455 shall be filed with the

[[Page 826]]

naturalization record in the office of the clerk of court, the duplicate 
and triplicate copies, duly attested and certified, transmitted to the 
court to which the petition is to be transferred, and the quadruplicate 
copy, also attested and certified, transmitted to the district director. 
If the application is disapproved, the original Form N-455 shall be 
filed with the naturalization record in the office of the clerk of court 
and the remaining copies transmitted to the district director, who shall 
notify the applicant of the disapproval.
    (d) Action by court to which petition is transferred. The court to 
which the petition is to be transferred shall enter an order on the 
duplicate copy of Form N-455, approving or disapproving the transfer. 
The duplicate copy shall be filed with the clerk of the court to which 
the petition is to be transferred, and the triplicate copy, duly 
attested and certified, transmitted to the clerk of the court in which 
the petition is filed. If the application is disapproved, the clerk of 
court receiving the triplicate copy shall notify the district director, 
who shall notify the applicant of the disapproval.
    (e) Transfer of petition and record. If the court to which the 
petition is to be transferred approves the transfer, the clerk of court 
in which the petition is filed shall file the triplicate copy of Form N-
455 with the naturalization record and forward a certified copy of the 
petition, and the originals of all documents filed relating thereto, to 
the court to which the petition is being transferred, and notify the 
district director having administrative jurisdiction over the place in 
which the petition is filed, of the action taken. Upon receipt of the 
certified copy and record, the clerk of court to which the petition is 
transferred shall index it, number it consecutively in the order in 
which it is received, prefixed by the letters TR, and in a series 
separate from petitions originally filed in the court. The petition 
shall be made a part of the record of the naturalization court. No fee 
shall be charged by the clerk of the court to which the petition is 
transferred for the filing of the transferred petition or the issuance 
of a certificate of naturalization.

[22 FR 9820, Dec. 6, 1957; 22 FR 9520, Nov. 28, 1957, as amended at 23 
FR 5820, Aug. 1, 1958; 56 FR 50496, Oct. 7, 1991]



Sec. 334.18  Withdrawal of petition and failure to prosecute.

    (a) A petitioner who desires to withdraw his petition for 
naturalization, filed prior to October 1, 1991, shall make request for 
withdrawal on Form N-404, in duplicate. The original shall be filed with 
the clerk of court and the duplicate with the office of the Service 
exercising administrative jurisdiction over the district in which the 
court is located. At the final hearing upon the petition, the officer in 
attendance shall inform the court whether the district director consents 
to the withdrawal of the petition. In cases in which the district 
director does not consent to the withdrawal, the court shall determine 
the petition on its merits.
    (b) At the final hearing upon a petition for naturalization which 
the petitioner has failed to prosecute, the officer in attendance shall 
inform the court whether the district director consents to dismissal of 
the petition for lack of prosecution. In cases in which the district 
director does not move that the petition be dismissed for lack of 
prosecution, the court shall determine the petition on its merits.

[22 FR 9819, Dec. 6, 1957, as amended at 56 FR 50496, Oct. 7, 1991]



PART 335_EXAMINATION ON APPLICATION FOR NATURALIZATION--Table of Contents




Sec.
335.1 Investigation of applicant.
335.2 Examination of applicant.
335.3 Determination on application; continuance of examination.
335.4 Use of record of examination.
335.5 Receipt of derogatory information after grant.
335.6 Failure to appear for examination.
335.7 Failure to prosecute application after initial examination.
335.8 [Reserved]
335.9 Transfer of application.
335.10 Withdrawal of application.
335.11 Preliminary examinations on petitions for naturalization filed 
          prior to October 1, 1991.

[[Page 827]]

335.12 Recommendations on petitions for naturalization of the designated 
          examiner and regional administrator; notice.
335.13 Notice of recommendation on petitions for naturalization of 
          designated examiner.

    Authority: 8 U.S.C. 1103, 1443, 1447.



Sec. 335.1  Investigation of applicant.

    Subsequent to the filing of an application for naturalization, the 
Service shall conduct an investigation of the applicant. The 
investigation shall consist, at a minimum, of a review of all pertinent 
records, police department checks, and a neighborhood investigation in 
the vicinities where the applicant has resided and has been employed, or 
engaged in business, for at least the five years immediately preceding 
the filing of the application. The district director may waive the 
neighborhood investigation of the applicant provided for in this 
paragraph.

[56 FR 50497, Oct. 7, 1991]



Sec. 335.2  Examination of applicant.

    (a) General. Subsequent to the filing of an application for 
naturalization, each applicant shall appear in person before a Service 
officer designated to conduct examinations pursuant to Sec. 332.1 of 
this chapter. The examination shall be uniform throughout the United 
States and shall encompass all factors relating to the applicant's 
eligibility for naturalization. The applicant may request the presence 
of an attorney or representative who has filed an appearance in 
accordance with part 292 of this chapter.
    (b) Completion of criminal background checks before examination. The 
Service will notify applicants for naturalization to appear before a 
Service officer for initial examination on the naturalization 
application only after the Service has received a definitive response 
from the Federal Bureau of Investigation that a full criminal background 
check of an applicant has been completed. A definitive response that a 
full criminal background check on an applicant has been completed 
includes:
    (1) Confirmation from the Federal Bureau of Investigation that an 
applicant does not have an administrative or a criminal record;
    (2) Confirmation from the Federal Bureau of Investigation that an 
applicant has an administrative or a criminal record; or
    (3) Confirmation from the Federal Bureau of Investigation that two 
properly prepared fingerprint cards (Form FD-258) have been determined 
unclassifiable for the purpose of conducting a criminal background check 
and have been rejected.
    (c) Procedure. Prior to the beginning of the examination, the 
Service officer shall make known to the applicant the official capacity 
in which the officer is conducting the examination. The applicant shall 
be questioned, under oath or affirmation, in a setting apart from the 
public. Whenever necessary, the examining officer shall correct written 
answers in the application for naturalization to conform to the oral 
statements made under oath or affirmation. The Service officer shall 
maintain, for the record, brief notations of the examination for 
naturalization. At a minimum, the notations shall include a record of 
the test administered to the applicant on English literacy and basic 
knowledge of the history and government of the United States. The 
Service officer may have a stenographic, mechanical, electronic, or 
videotaped transcript made, or may prepare an affidavit covering the 
testimony of the applicant. The questions to the applicant shall be 
repeated in different form and elaborated, if necessary, until the 
officer conducting the examination is satisfied that the applicant 
either fully understands the questions or is unable to understand 
English. The applicant and the Service shall have the right to present 
such oral or documentary evidence and to conduct such cross-examination 
as may be required for a full and true disclosure of the facts.
    (d) Witnesses. Witnesses, if called, shall be questioned under oath 
or affirmation to discover their own credibility and competency, as well 
as the extent of their personal knowledge of the applicant and his or 
her qualifications to become a naturalized citizen.
    (1) Issuance of subpoenas. Subpoenas requiring the attendance of 
witnesses or the production of documentary evidence, or both, may be 
issued by the examining officer upon his or her own

[[Page 828]]

volition, or upon written request of the applicant or his or her 
attorney or representative. Such written request shall specify, as 
nearly as possible, the relevance, materiality, and scope of the 
testimony or documentary evidence sought and must show affirmatively 
that the testimony or documentary evidence cannot otherwise be produced. 
The examining officer shall document in the record his or her refusal to 
issue a subpoena at the request of the applicant.
    (2) Service of subpoenas. Subpoenas shall be issued on Form I-138, 
and a record shall be made of service. The subpoena may be served by any 
person over 18 years of age, not a party to the case, designated to make 
such service by the district director.
    (3) Witness fees. Mileage and fees for witnesses subpoenaed under 
this section shall be paid by the party at whose instance the subpoena 
is issued, at rates allowed and under conditions prescribed by the 
Service. Before issuing a subpoena, the officer may require the deposit 
of an amount adequate to cover the fees and mileage involved.
    (4) Failure to appear. If the witness subpoenaed neglects or refuses 
to testify or to produce documentary evidence as directed by the 
subpoena, the district director shall request that the United States 
Attorney for the proper district report such neglect or refusal to any 
District Court of the United States, and file a motion in such court for 
an order directing the witness to appear and to testify and produce the 
documentary evidence described in the subpoena.
    (5) Extraterritorial testimony. The testimony of a witness may be 
taken outside the United States. The witness's name and address shall be 
sent to the Service office abroad which has jurisdiction over the 
witness's residence. The officer taking the statement shall be given 
express instructions regarding any aspect of the case which may require 
special development or emphasis during the interrogation of the witness.
    (e) Record of examination. At the conclusion of the examination, all 
corrections made on the application form and all supplemental material 
shall be consecutively numbered and listed in the space provided on the 
applicant's affidavit contained in the application form. The affidavit 
must then be subscribed and sworn to, or affirmed, by the applicant and 
signed by the Service officer. The affidavit shall be executed under the 
following oath (or affirmation): ``I swear (affirm) and certify under 
penalty of perjury under the laws of the United States of America that I 
know that the contents of this application for naturalization subscribed 
by me, and the evidence submitted with it, are true and correct to the 
best of my knowledge and belief.'' Evidence received by the officer 
shall be placed into the record for determination of the case. All 
documentary or written evidence shall be properly identified and 
introduced into the record as exhibits by number, unless read into the 
record. A deposition or statement taken by a Service officer during the 
initial examination or any subsequent examination shall be included as 
part of the record on the application.
    (f) Use of interpreter. If the use of an interpreter is authorized 
pursuant to Sec. 312.4 of this chapter, the examining officer shall 
note on the application the use and identity of any interpreter. If the 
Service officer is proficient in the applicant's native language, the 
Service officer may conduct the examination in that language with the 
consent of the applicant.

[56 FR 50497, Oct. 7, 1991, as amended at 58 FR 49913, Sept. 24, 1993; 
63 FR 12987, 12988, Mar. 17, 1998]



Sec. 335.3  Determination on application; continuance of examination.

    (a) The Service officer shall grant the application if the applicant 
has complied with all requirements for naturalization under this 
chapter. A decision to grant or deny the application shall be made at 
the time of the initial examination or within 120-days after the date of 
the initial examination of the applicant for naturalization under Sec. 
335.2. The applicant shall be notified that the application has been 
granted or denied and, if the application has been granted, of the 
procedures to be followed for the administration of the

[[Page 829]]

oath of allegiance pursuant to part 337 of this chapter.
    (b) Rather than make a determination on the application, the Service 
officer may continue the initial examination on an application for one 
reexamination, to afford the applicant an opportunity to overcome 
deficiencies on the application that may arise during the examination. 
The officer must inform the applicant in writing of the grounds to be 
overcome or the evidence to be submitted. The applicant shall not be 
required to appear for a reexamination earlier than 60 days after the 
first examination. However, the reexamination on the continued case 
shall be scheduled within the 120-day period after the initial 
examination, except as otherwise provided under Sec. 312.5(b) of this 
chapter. If the applicant is unable to overcome the deficiencies in the 
application, the application shall be denied pursuant to Sec. 336.1 of 
this chapter.

[56 FR 50497, Oct. 7, 1991, as amended at 58 FR 49914, Sept. 24, 1993]



Sec. 335.4  Use of record of examination.

    In the event that an application is denied, the record of the 
examination on the application for naturalization, including the 
executed and corrected application form and supplements, affidavits, 
transcripts of testimony, documents, and other evidence, shall be 
submitted to the Service officer designated in Sec. 332.1 of this 
chapter to conduct hearings on denials of applications for 
naturalization in accordance with part 336 of this chapter. The record 
of the examination shall be used for examining the petitioner and 
witnesses, if required to properly dispose of issues raised in the 
matter.

[56 FR 50498, Oct. 7, 1991]



Sec. 335.5  Receipt of derogatory information after grant.

    In the event that the Service receives derogatory information 
concerning an applicant whose application has already been granted as 
provided in Sec. 335.3(a) of this chapter, but who has not yet taken 
the oath of allegiance as provided in part 337 of this chapter, the 
Service shall remove the applicant's name from any list of granted 
applications or of applicants scheduled for administration of the oath 
of allegiance, until such time as the matter can be resolved. The 
Service shall notify the applicant in writing of the receipt of the 
specific derogatory information, with a motion to reopen the previously 
adjudicated application, giving the applicant 15 days to respond. If the 
applicant overcomes the derogatory information, the application will be 
granted and the applicant will be scheduled for administration of the 
oath of allegiance. Otherwise the motion to reopen will be granted and 
the application will be denied pursuant to Sec. 336.1 of this chapter.

[56 FR 50498, Oct. 7, 1991, as amended at 58 FR 49914, Sept. 24, 1993]



Sec. 335.6  Failure to appear for examination.

    (a) An applicant for naturalization shall be deemed to have 
abandoned his or her application if he or she fails to appear for the 
examination pursuant to Sec. 335.3 and fails to notify the Service of 
the reason for non-appearance within 30 days of the scheduled 
examination. Such notification shall be in writing and contain a request 
for rescheduling of the examination. In the absence of a timely 
notification, the Service may administratively close the application 
without making a decision on the merits.
    (b) An applicant may reopen an administratively closed application 
by submitting a written request to the Service within one (1) year from 
the date the application was closed. Such reopening shall be without 
additional fee. The date of the request for reopening shall be the date 
of filing of the application for purposes of determining eligibility for 
naturalization.
    (c) If the applicant does not request reopening of an 
administratively closed application within one year from the date the 
application was closed, the Service will consider that application to 
have been abandoned, and shall dismiss the application without further 
notice to the applicant.

[58 FR 49914, Sept. 24, 1993, as amended at 60 FR 6651, Feb. 3, 1995]

[[Page 830]]



Sec. 335.7  Failure to prosecute application after initial examination.

    An applicant for naturalization who has appeared for the examination 
on his or her application as provided in Sec. 335.2 shall be considered 
as failing to prosecute such application if he or she, without good 
cause being shown, either failed to excuse an absence from a 
subsequently required appearance, or fails to provide within a 
reasonable period of time such documents, information, or testimony 
deemed by the Service to be necessary to establish his or her 
eligibility for naturalization. The Service shall deliver notice of all 
such requests for appearance or supporting evidence, in writing, to the 
applicant either in person or to the applicant's last known address. In 
the event that the applicant fails to respond within 30 days of the date 
of notification, the Service shall adjudicate the application on the 
merits pursuant to Sec. 336.1 of this chapter.

[58 FR 49914, Sept. 24, 1993, as amended at 60 FR 6651, Feb. 3, 1995]



Sec. 335.8  [Reserved]



Sec. 335.9  Transfer of application.

    (a) Request for transfer of application. An applicant who, after 
filing an application for naturalization, changes residence, or plans to 
change residence within three months, may request, in writing, that a 
pending application be transferred from the current Service office to 
the Service office having jurisdiction over the applicant's new place of 
residence. The request shall be submitted to the office where the 
application was originally filed. The request shall include the 
applicant's name, alien registration number, date of birth, complete 
current address including name of the county, complete address at the 
time of filing the application, reason for the request to transfer the 
application, and the date the applicant moved or intends to move to the 
new jurisdiction.
    (b) Discretion to authorize transfer. The district director may 
authorize the transfer of an application for naturalization after such 
application has been filed. In the event that the district director does 
not consent to the transfer of the application, the application shall be 
adjudicated on its merits by the Service office retaining jurisdiction. 
If upon such adjudication the application is denied, the written 
decision pursuant to Sec. 336.1 of this chapter shall also address the 
reason(s) for the Service's decision not to consent to the transfer 
request.

[56 FR 50498, Oct. 7, 1991, as amended at 58 FR 49914, Sept. 24, 1993]



Sec. 335.10  Withdrawal of application.

    An applicant may request, in writing, that his or her application, 
filed with the Service, be withdrawn. If the district director consents 
to the withdrawal, the application will be denied without further notice 
to the applicant and without prejudice to any future application. The 
withdrawal by the applicant will constitute a waiver of any review 
pursuant to part 336 of this chapter. If the district director does not 
consent to the withdrawal, the application for naturalization shall be 
adjudicated on its merits.

[56 FR 50498, Oct. 7, 1991]



Sec. 335.11  Preliminary examinations on petitions for naturalization filed 

prior to October 1, 1991.

    (a) When held. Continued preliminary examinations shall be held on 
petitions for naturalization filed prior to October 1, 1991 when it is 
determined that further testimony is needed for the designated examiner 
to prepare a recommendation to the court consistent with Sec. 335.12. 
The examinations shall be open to the public.
    (b) Conduct of examination. Preliminary examinations shall be held 
before an employee of the Service designated by the district director to 
conduct such proceedings and to make findings and recommendations 
thereon to the naturalization court, who shall be known as the 
``designated examiner.'' The petitioner and his or her witnesses and the 
witnesses produced on behalf of the Government shall be present. The 
designated examiner shall, prior to the commencement of the examination, 
make known to the petitioner his or her official capacity and that of 
any other officer of the Service who may participate in the proceeding. 
The designated examiner shall have before him

[[Page 831]]

or her the entire record of the preliminary interrogation, including the 
petitioner's application to file a petition for naturalization (Form N-
400) and any other evidence or data that may be relevant or material to 
the inquiry. All testimony taken at the examination shall be under oath 
or affirmation administered by the designated examiner. The designated 
examiner may interrogate the petitioner and witnesses produced in behalf 
of the petitioner or the Government, and present evidence touching upon 
the petitioner's admissibility to citizenship. He shall regulate the 
course of the examination, rule upon applications for the issuance of 
subpoenas and issue such subpoenas in proper cases, grant or deny 
continuances, and rule on all objections to the introduction of 
evidence, which rulings shall be entered on the record. Evidence held by 
the designated examiner to be inadmissible shall nevertheless be 
received into the record subject to the ruling of the court. The 
petitioner and the Government shall have the right to present such oral 
or documentary evidence and to conduct such cross-examination as may be 
required for a full and true disclosure of the facts. If the petitioner 
is not represented by an attorney or representative, the designated 
examiner shall assist the petitioner in the introduction of all evidence 
available in his or her behalf. All documentary or written evidence 
shall be properly identified and introduced into the record as exhibits 
by number, unless read into the record.
    (c) Assignment of examining officer at preliminary examination. The 
district director may in his or her discretion assign an employee of the 
Service to act as examining officer at the preliminary examination. Such 
employee shall examine and cross-examine witnesses produced in behalf of 
the Government or the petitioner and present evidence pertinent to the 
petitioner's admissibility to citizenship. The designated examiner may 
take such part in the interrogation of the petitioner and witnesses and 
the introduction of evidence as he or she may deem necessary.
    (d) Stenographic reporting of proceedings; mechanical recording 
equipment. A stenographer shall be in attendance whenever, in the 
opinion of the designated examiner, such attendance is desirable, and in 
every case to which an examining officer is assigned. The stenographer 
shall record verbatim the entire proceedings, including the oaths 
administered and rulings on objections, but shall not record arguments 
in support of objections, or statements made off the record with the 
consent of the petitioner. The stenographer shall certify that the 
transcribed minutes constitute a complete and accurate record of the 
examination. Whenever, in the opinion of the designated examiner the use 
of mechanical recording equipment in lieu of a stenographer is deemed 
desirable, the proceedings may be recorded by such equipment.
    (e) Issuance of subpoenas; attendance and mileage fees. Subpenas 
requiring the attendance of witnesses or the production of documentary 
evidence, or both, may be issued by the designated examiner, upon his or 
her own volition or upon written application of the petitioner or his or 
her attorney or representative, the examining officer, or the Service. 
Such written application shall specify, as nearly as may be, the 
relevance, materiality, and scope of the testimony or documentary 
evidence sought and show affirmatively that the testimony or documentary 
evidence cannot otherwise be produced. Subpenas shall be issued on Form 
I-138 and due record shall be made of their service. The subpoena may be 
served by any person over 18 years of age, not a party to the case, 
designated to make such service by the district director. Mileage and 
fees for witnesses subpoenaed under this section shall be paid by the 
party at whose instance the subpoena is issued at rates allowed and 
under conditions prescribed by the naturalization court in which the 
petition is pending. Before issuing a subpoena the designated examiner 
may require a deposit of an amount adequate to cover the fees and 
mileage involved. If the witness subpoenaed neglects or refuses to 
testify or produce documentary evidence as directed by the subpoena, the 
district director shall request the United States Attorney for the 
proper

[[Page 832]]

district to report such neglect or refusal to any court exercising 
naturalization jurisdiction and to file a motion in such court for an 
order directing the witness to appear and testify and to produce the 
documentary evidence described in the subpoena.
    (f) Briefs. At the conclusion of the preliminary examination the 
petitioner or his or her attorney or representative, and the examining 
officer if one was assigned, may submit briefs in support of arguments 
made or issues raised at the examination.
    (g) Representation by attorney or representative; absence of 
representative; advice to petitioner. The petitioner may be represented 
by an attorney or representative who has filed an appearance in 
accordance with part 292 of this chapter. If at any stage of the 
preliminary examination it appears to the designated examiner that he or 
she may recommend denial of the petition, or granting thereof with the 
facts to be presented to the court, he or she shall advise the 
petitioner of his or her right to be represented by an attorney or 
representative. A continuance of the examination shall be granted upon 
the petitioner's motion for the purpose of obtaining an attorney or 
representative. The petitioner's attorney or a representative shall be 
permitted to be present at all times during the preliminary examination 
or at any subsequent examinations and the petitioner shall not in any 
such examination or subsequent examinations be interrogated in the 
absence of his or her attorney or representative, unless the petitioner 
waives such appearance. The attorney or a representative shall be 
permitted to offer evidence to meet any evidence presented or adduced by 
the Government or the designated examiner. A petitioner who is not 
represented by an attorney or a representative shall be entitled to all 
the benefits and the privileges provided for in this section.

[22 FR 9821, Dec. 6, 1957, as amended at 23 FR 2673, Apr. 23, 1958; 45 
FR 83195, Dec. 18, 1980; 46 FR 5861, Jan. 21, 1981; 47 FR 10778, Mar. 
12, 1982; 56 FR 50498, Oct. 7, 1991]



Sec. 335.12  Recommendations on petitions for naturalization of the designated 

examiner and regional administrator; notice.

    As soon as practicable after conclusion of the preliminary 
examination on a petition for naturalization filed prior to October 1, 
1991, the designated examiner shall prepare an appropriate 
recommendation to the court. If the recommendation is for denial, or for 
granting with the facts to be presented to the court, the designated 
examiner shall prepare a memorandum summarizing the evidence, and 
setting forth findings of fact and conclusions of law, and his or her 
recommendation. No evidence dehors the record or evidence not admissible 
in judicial proceedings under recognized rules of evidence shall be 
considered in the preparation of the memorandum. The memorandum shall be 
submitted before final hearing to the regional operations liaison 
officer, in those cases or classes of cases designated by him or her, 
for review and recommendation. If the regional operations liaison 
officer does not agree with the recommendation of the designated 
examiner, he or she shall prepare an appropriate memorandum, with 
findings of fact, conclusions of law, and the recommendation of the 
Service, subject to review and approval by the Commissioner in those 
cases or classes of cases designated by him or her, for presentation to 
the court with the designated examiner's memorandum. In the preparation 
of memoranda, designated examiners and regional operations liaison 
officers shall be bound by the interpretations and rulings by the 
Attorney General or the Commissioner on Questions of law.

[38 FR 29878, Oct. 30, 1973, as amended at 56 FR 50498, Oct. 7, 1991]



Sec. 335.13  Notice of recommendation on petitions for naturalization of 

designated examiner.

    (a) Recommendation that petition be denied. When the designated 
examiner proposes to recommend denial of the petition filed prior to 
October 1, 1991, the petitioner or his or her attorney or representative 
shall be notified thereof and furnished a copy of the designated 
examiner's memorandum. The notice

[[Page 833]]

shall be given in conjunction with notification of the date, place, and 
time of holding the final hearing. The notice shall be sent by certified 
mail, with return receipt requested, after any review made by the 
regional administrator.
    (b) Recommendation that petition be granted. When the designated 
examiner proposes to recommend granting of the petition filed prior to 
October 1, 1991 and to present the facts and issues to the court, the 
petitioner or his or her attorney or representative shall be notified of 
the recommendation and furnished a copy of the designated examiner's 
memorandum prior to the date of the hearing, and after any review made 
by the regional administrator.
    (c) Disagreement between recommendations of designated examiner and 
the regional administrator. In those cases reviewed by the regional 
administrator in which his or her views and recommendations do not agree 
with those of the designated examiner, the notice required by paragraphs 
(a) and (b) of this section shall also advise the petitioner of the 
recommendation of the regional administrator and that both 
recommendations will be presented to the court. There shall also be 
enclosed with such notice a copy of the regional administrator's 
memorandum.
    (d) Briefs. If the petitioner intends to file a brief or memorandum 
at the final hearing, he or she shall furnish a copy thereof to the 
Service office from which the notice on Form N-425 emanated at least 5 
days prior to the date of the final hearing. Failure to do so will 
result in a motion for a continuance if deemed essential for the proper 
presentation of the Government's case.

[22 FR 9822, Dec. 6, 1957, as amended at 35 FR 17530, Nov. 14, 1970; 56 
FR 50498, Oct. 7, 1991]



PART 336_HEARINGS ON DENIALS OF APPLICATIONS FOR NATURALIZATION--Table of 

Contents




Sec.
336.1 Denial after section 335 examination.
336.2 Hearing before an immigration officer.
336.3-336.8 [Reserved]
336.9 Judicial review of denial determinations on applications for 
          naturalization.

    Authority: 8 U.S.C. 1103, 1443, 1447, 1448.

    Source: 56 FR 50499, Oct. 7, 1991, unless otherwise noted.



Sec. 336.1  Denial after section 335 examination.

    (a) After completing all examination procedures contained in part 
335 of this chapter and determining to deny an application for 
naturalization, the Service shall serve a written notice of denial upon 
an applicant for naturalization no later than 120 days after the date of 
the applicant's first examination on the application.
    (b) A notice of denial shall be prepared in a written, narrative 
format, and shall recite, in clear concise language, the pertinent facts 
upon which the determination was based, the specific legal section or 
sections applicable to the finding of ineligibility, and the conclusions 
of law reached by the examining officer in rendering the decision. Such 
notice of denial shall also contain a specific statement of the 
applicant's right either to accept the determination of the examining 
officer, or request a hearing before an immigration officer.
    (c) Service of the notice of denial may be made in person or by 
certified mail to the applicant's last known address, or upon the 
attorney or representative of record as provided in part 292 of this 
chapter.



Sec. 336.2  Hearing before an immigration officer.

    (a) The applicant, or his or her authorized representative, may 
request a hearing on the denial of the applicant's application for 
naturalization by filing a request with the Service within thirty days 
after the applicant receives the notice of denial under Sec. 336.1.
    (b) Upon receipt of a timely request for a hearing, the Service 
shall schedule a review hearing before an immigration officer, within a 
reasonable period of time not to exceed 180 days from the date upon 
which the appeal is filed. The review shall be with an officer other 
than the officer who conducted the original examination under section 
335 of the Act or who rendered the Service determination upon which the 
hearing is based, and who is classified at a grade level equal to or 
higher

[[Page 834]]

than the grade of the examining officer. The reviewing officer shall 
have the authority and discretion to review the application for 
naturalization, to examine the applicant, and either to affirm the 
findings and determination of the original examining officer or to 
redetermine the original decision of the Service in whole or in part. 
The reviewing officer shall also have the discretion to review any 
administrative record which was created as part of the examination 
procedures as well as Service files and reports. He or she may receive 
new evidence or take such additional testimony as may be deemed relevant 
to the applicant's eligibility for naturalization or which the applicant 
seeks to provide. Based upon the complexity of the issues to be reviewed 
or determined, and upon the necessity of conducting further examinations 
with respect to essential naturalization requirements, such as literacy 
or civics knowledge, the reviewing immigration officer may, in his or 
her discretion, conduct a full de novo hearing or may utilize a less 
formal review procedure, as he or she deems reasonable and in the 
interest of justice.
    (c) Improperly filed request for hearing--(1) Request for hearing 
filed by a person or entity not entitled to file--(i) Rejection without 
refund of filing fee. A request for hearing filed by a person or entity 
who is not entitled to file such a request must be rejected as 
improperly filed. In such a case, any filing fee that the Service has 
accepted will not be refunded.
    (ii) Request for hearing by attorney or representative without 
proper Form G-28. If a request for hearing is filed by an attorney or 
representative without a properly executed Notice of Entry of Appearance 
as Attorney or Representative (Form G-28) entitling that person to file 
the request for hearing, the appeal will be considered as improperly 
filed. In such a case, any filing fee that the Service has accepted will 
not be refunded regardless of the action taken. The reviewing official 
shall ask the attorney or representative to submit Form G-28 to the 
official's office within 15 days of the request. If Form G-28 is not 
submitted within the time allowed, the official may, on his or her own 
motion, under Sec. 103.5(a)(5)(i) of this chapter, make a new decision 
favorable to the affected party without notifying the attorney or 
representative. The request for hearing may be considered properly filed 
as of its original filing date if the attorney or representative submits 
a properly executed Form G-28 entitling that person to file the request 
for hearing.
    (2) Untimely request for hearing--(i) Rejection without refund of 
filing fee. A request for hearing which is not filed within the time 
period allowed must be rejected as improperly filed. In such a case, any 
filing fee that the Service has accepted will not be refunded.
    (ii) Untimely request for hearing treated as motion. If an untimely 
request for hearing meets the requirements of a motion to reopen as 
described in Sec. 103.5(a)(2) of this chapter or a motion to reconsider 
as described in Sec. 103.5(a)(3) of this chapter, the request for 
hearing must be treated as a motion, and a decision must be made on the 
merits of the case.

[56 FR 50499, Oct. 7, 1991, as amended at 58 FR 49914, Sept. 24, 1993]



Sec. Sec. 336.3-336.8  [Reserved]



Sec. 336.9  Judicial review of denial determinations on applications for 

naturalization.

    (a) General. The provisions in part 310 of this chapter shall 
provide the sole and exclusive procedures for requesting judicial review 
of final determinations on applications for naturalization made pursuant 
to section 336(a) of the Act and the provisions of this chapter by the 
Service on or after October 1, 1991.
    (b) Filing a petition. Under these procedures an applicant shall 
file a petition for review in the United States District Court having 
jurisdiction over his or her place of residence, in accordance with 
chapter 7 of title 5, United States Code, within a period of not more 
than 120 days after the Service's final determination. The petition for 
review shall be brought against the Immigration and Naturalization 
Service, and service of the petition for review shall be made upon the 
Attorney General of the United States, and upon the official in charge 
of the Service office

[[Page 835]]

where the hearing was held pursuant to Sec. 336.2.
    (c) Standard of review. The review will be de novo, and the court 
will make its own findings of fact and conclusions of law. The court may 
also conduct, at the request of the petitioner, a hearing de novo on the 
application for naturalization.
    (d) Exhaustion of remedies. A Service determination denying an 
application for naturalization under section 335(a) of the Act shall not 
be subject to judicial review until the applicant has exhausted those 
administrative remedies available to the applicant under section 336 of 
the Act. Every petition for judicial review shall state whether the 
validity of the final determination to deny an application for 
naturalization has been upheld in any prior administrative proceeding 
and, if so, the nature and date of such proceeding and the forum in 
which such proceeding took place.



PART 337_OATH OF ALLEGIANCE--Table of Contents




Sec.
337.1 Oath of allegiance.
337.2 Oath administered by the Immigration and Naturalization Service or 
          an Immigration Judge.
337.3 Expedited administration of oath of allegiance.
337.4 When requests for change of name granted.
337.5-337.6 [Reserved]
337.7 Information and assignment of individuals under exclusive 
          jurisdiction.
337.8 Oath administered by the courts.
337.9 Effective date of naturalization.
337.10 Failure to appear for oath administration ceremony.

    Authority: 8 U.S.C. 1103, 1443, 1448; 8 CFR part 2.



Sec. 337.1  Oath of allegiance.

    (a) Form of oath. Except as otherwise provided in the Act and after 
receiving notice from the district director that such applicant is 
eligible for naturalization pursuant to Sec. 335.3 of this chapter, an 
applicant for naturalization shall, before being admitted to 
citizenship, take in a public ceremony held within the United States the 
following oath of allegiance, to a copy of which the applicant shall 
affix his or her signature:

    I hereby declare, on oath, that I absolutely and entirely renounce 
and abjure all allegiance and fidelity to any foreign prince, potentate, 
state, or sovereignty, of whom or which I have heretofore been a subject 
or citizen; that I will support and defend the Constitution and laws of 
the United States of America against all enemies, foreign and domestic; 
that I will bear true faith and allegiance to the same; that I will bear 
arms on behalf of the United States when required by the law; that I 
will perform noncombatant service in the Armed Forces of the United 
States when required by the law; that I will perform work of national 
importance under civilian direction when required by the law; and that I 
take this obligation freely, without any mental reservation or purpose 
of evasion; so help me God.

    (b) Alteration of form of oath; affirmation in lieu of oath. In 
those cases in which a petitioner or applicant for naturalization is 
exempt from taking the oath prescribed in paragraph (a) of this section 
in its entirety, the inapplicable clauses shall be deleted and the oath 
shall be taken in such altered form. When a petitioner or applicant for 
naturalization, by reason of religious training and belief (or 
individual interpretation thereof), or for other reasons of good 
conscience, cannot take the oath prescribed in paragraph (a) of this 
section with the words ``on oath'' and ``so help me God'' included, the 
words ``and solemnly affirm'' shall be substituted for the words ``on 
oath,'' the words ``so help me God'' shall be deleted, and the oath 
shall be taken in such modified form. Any reference to `oath of 
allegiance' in this chapter is understood to mean equally `affirmation 
of allegiance' as described in this paragraph.
    (c) Obligations of oath. A petitioner or applicant for 
naturalization shall, before being naturalized, establish that it is his 
or her intention, in good faith, to assume and discharge the obligations 
of the oath of allegiance, and that his or her attitude toward the 
Constitution and laws of the United States renders him or her capable of 
fulfilling the obligations of such oath.
    (d) Renunciation of title or order of nobility. A petitioner or 
applicant for naturalization who has borne any hereditary title or has 
been of any of the orders of nobility in any foreign state shall, in 
addition to taking the oath of allegiance prescribed in paragraph (a)

[[Page 836]]

of this section, make under oath or affirmation in public an express 
renunciation of such title or order of nobility, in the following form:
    (1) I further renounce the title of (give title or titles) which I 
have heretofore held; or
    (2) I further renounce the order of nobility (give the order of 
nobility) to which I have heretofore belonged.

[22 FR 9824, Dec. 6, 1957, as amended at 24 FR 2584, Apr. 3, 1959; 32 FR 
13756, Oct. 3, 1967; 56 FR 50499, Oct. 7, 1991]



Sec. 337.2  Oath administered by the Immigration and Naturalization Service or 

an Immigration Judge.

    (a) Public ceremony. An applicant for naturalization who has elected 
to have his or her oath of allegiance administered by the Service or an 
Immigration Judge and is not subject to the exclusive oath 
administration authority of an eligible court pursuant to section 310(b) 
of the Act shall appear in person in a public ceremony, unless such 
appearance is specifically excused under the terms and conditions set 
forth in this part. Such ceremony shall be held at a time and place 
designated by the Service or the Executive Office for Immigration Review 
within the United States and within the jurisdiction where the 
application for naturalization was filed, or into which the application 
for naturalization was transferred pursuant to Sec. 335.9 of this 
chapter. Such ceremonies shall be conducted at regular intervals as 
frequently as necessary to ensure timely naturalization, but in all 
events at least once monthly where it is required to minimize 
unreasonable delays. Such ceremonies shall be presented in such a manner 
as to preserve the dignity and significance of the occasion. District 
directors shall ensure that ceremonies conducted by the Service in their 
districts, inclusive of those held by suboffice managers, are in keeping 
with the Model Plan for Naturalization Ceremonies. Organizations 
traditionally involved in activities surrounding the ceremony should be 
encouraged to participate in Service-administered ceremonies by local 
arrangement.
    (b) Authority to administer oath of allegiance. The authority of the 
Attorney General to administer the oath of allegiance shall be delegated 
to Immigration Judges and to the following officers of the Service: The 
Commissioner; district directors; deputy district directors; officers-
in-charge; assistant officers-in-charge; or persons acting in behalf of 
such officers due to their absence or because their positions are 
vacant. In exceptional cases where the district director or officer-in-
charge determines that it is appropriate for employees of a different 
rank to conduct ceremonies, the district director or officer-in-charge 
may make a request through the Commissioner to the Assistant 
Commissioner, Adjudications, for permission to delegate such authority. 
The request shall furnish the reasons for seeking exemption from the 
requirements of this paragraph. The Commissioner may delegate such 
authority to such other officers of the Service or the Department of 
Justice as he or she may deem appropriate.
    (c) Execution of questionnaire. Immediately prior to being 
administered the oath of allegiance, each applicant shall complete the 
questionnaire on Form N-445. Each completed Form N-445 shall be reviewed 
by an officer of the Service who may question the applicant regarding 
the information thereon. If derogatory information is revealed, the 
applicant's name shall be removed from the list of eligible persons as 
provided in Sec. 335.5 of this chapter and he or she shall not be 
administered the oath.

[60 FR 37803, July 24, 1995]



Sec. 337.3  Expedited administration of oath of allegiance.

    (a) An applicant may be granted an expedited oath administration 
ceremony by either the court or the Service upon demonstrating 
sufficient cause. In determining whether to grant an expedited oath 
administration ceremony, the court or the district director shall 
consider special circumstances of a compelling or humanitarian nature. 
Special circumstances may include but are not limited to:
    (1) The serious illness of the applicant or a member of the 
applicant's family;
    (2) Permanent disability of the applicant sufficiently 
incapacitating as to prevent the applicant's personal appearance at a 
scheduled ceremony;

[[Page 837]]

    (3) The developmental disability or advanced age of the applicant 
which would make appearance at a scheduled ceremony inappropriate; or
    (4) Urgent or compelling circumstances relating to travel or 
employment determined by the court or the Service to be sufficiently 
meritorious to warrant special consideration.
    (b) Courts exercising exclusive authority may either hold an 
expedited oath administration ceremony or refer the applicant to the 
Service in order for either the Immigration Judge or the Service to 
conduct an oath administration ceremony, if an expedited judicial oath 
administration ceremony is impractical. The court shall inform the 
district director in writing of its decision to grant the applicant an 
expedited oath administration ceremony and that the court has 
relinquished exclusive jurisdiction as to that applicant.
    (c) All requests for expedited administration of the oath of 
allegiance shall be made in writing to either the court or the Service. 
Such requests shall contain sufficient information to substantiate the 
claim of special circumstances to permit either the court or the Service 
to properly exercise the discretionary authority to grant the relief 
sought. The court or the Service may seek verification of the validity 
of the information provided in the request. If the applicant submits a 
written request to the Service, but is awaiting an oath administration 
ceremony by a court pursuant to Sec. 337.8, the Service promptly shall 
provide the court with a copy of the request without reaching a decision 
on whether to grant or deny the request.

[60 FR 37804, July 24, 1995]



Sec. 337.4  When requests for change of name granted.

    When the court has granted the petitioner's change of name request, 
the petitioner shall subscribe his or her new name to the written oath 
of allegiance.

[56 FR 50500, Oct. 7, 1991]



Sec. Sec. 337.5-337.6  [Reserved]



Sec. 337.7  Information and assignment of individuals under exclusive 

jurisdiction.

    (a) No later than at the time of the examination on the application 
pursuant to Sec. 335.2 of this chapter, an employee of the Service 
shall advise the applicant of his or her right to elect the site for the 
administration of the oath of allegiance, subject to the exclusive 
jurisdiction provision of Sec. 310.3(d) of this chapter. In order to 
assist the applicant in making an informed decision, the Service shall 
advise the applicant of the upcoming Immigration Judge or Service 
conducted and judicial ceremonies at which the applicant may appear, if 
found eligible for naturalization.
    (b) An applicant whose application has been approved by the Service 
who is subject to the exclusive jurisdiction of a court pursuant to 
Sec. 310.2(d) of this chapter, shall be advised of the next available 
court ceremony and provided with a written notice to appear at that 
ceremony. If the applicant is subject to the exclusive jurisdiction of 
more than one court exercising exclusive jurisdiction, the applicant 
will be informed of the upcoming ceremonies in each affected court. The 
applicant shall decide which court he or she wishes to administer the 
oath of allegiance.

[58 FR 49915, Sept. 24, 1993, as amended at 60 FR 37804, July 24, 1995]



Sec. 337.8  Oath administered by the courts.

    (a) Notification of election. An applicant for naturalization not 
subject to the exclusive jurisdiction of Sec. 310.2(d) of this chapter 
shall notify the Service at the time of the filing of, or no later than 
at the examination on, the application of his or her election to have 
the oath of allegiance administered in an appropriate court having 
jurisdiction over the applicant's place of residence.
    (b) Certification of eligibility--(1) Exclusive jurisdiction. In 
those instances falling within the exclusive jurisdiction provision of 
section 310(b)(1)(B) of the Act, the Service shall notify the court of 
the applicant's eligibility for admission to United States citizenship 
by submitting to the clerk of court

[[Page 838]]

Form N-646 within ten (10) days of the approval of the application.
    (2) Non-exclusive jurisdiction. In those instances in which the 
applicant has elected to have the oath administered in a court ceremony, 
the Service shall notify the clerk of court, in writing, using Form N-
646, that the applicant has been determined by the Attorney General to 
be eligible for admission to United States citizenship upon taking the 
requisite oath of allegiance and renunciation in a public ceremony. If a 
scheduled hearing date is not available at the time of the notification, 
Form N-646 shall indicate that the applicant has not been scheduled for 
a ceremony and the applicant shall be informed in writing that the 
application has been approved but no ceremony date is yet available.
    (c) Preparation of lists. (1) At or prior to the oath administration 
ceremony the representative attending the ceremony shall submit to the 
court on Form N-647, in duplicate, lists of persons to be administered 
the oath of allegiance and renunciation. After the ceremony, and after 
any required amendments and notations have been made therein, the clerk 
of court shall sign the lists.
    (2) The originals of all court lists specified in this section shall 
be filed permanently in the court, and the duplicates returned by the 
clerk of court to the appropriate Service office for retention by such 
office. The same disposition shall be made of any list presented to, but 
not approved by, the court.
    (d) Personal representation of the government at oath administration 
ceremonies. An oath administration ceremony shall be attended by a 
representative of the Service, who shall review each applicant's 
completed questionnaire Form N-445. If necessary, the Service 
representative shall question the applicant regarding the information 
thereon. If the questioning reveals derogatory information, the 
applicant's name shall be removed from the list of eligible persons as 
provided in Sec. 335.5 of this chapter and the court shall not 
administer the oath to such applicant.
    (e) Written report in lieu of personal representation. If it is 
impracticable for a Service representative to be present at a judicial 
oath administration ceremony, written notice of that fact shall be given 
by the Service to the court. The applicants to be administered the oath 
shall be listed on the appropriate forms prescribed in paragraph (d) of 
this section. The forms, memoranda, and certificates of naturalization 
shall be transmitted to the clerk of court, who shall submit the 
appropriate lists to the court.
    (f) Withdrawal from court. An applicant for naturalization not 
subject to the exclusive jurisdiction of Sec. 310.3(d) of this chapter, 
who has elected to have the oath administered in a court oath ceremony, 
may, for good cause shown, request that his or her name be removed from 
the list of persons eligible to be administered the oath at a court oath 
ceremony and request that the oath be administered in a ceremony 
conducted by an Immigration Judge or the Service. Such request shall be 
in writing to the Service office which granted the application and shall 
cite the reasons for the request. The district director or officer-in-
charge shall consider the good cause shown and the best interests of the 
applicant in making a decision. If it is determined that the applicant 
shall be permitted to withdraw his or her name from the court ceremony, 
the Service shall give written notice to the court of the applicant's 
withdrawal, and the applicant shall be scheduled for the next available 
oath ceremony, conducted by an Immigration Judge or the Service, as if 
he or she had never elected the court ceremony.

[58 FR 49915, Sept. 24, 1993, as amended at 60 FR 37804, July 24, 1995]



Sec. 337.9  Effective date of naturalization.

    (a) An applicant for naturalization shall be deemed a citizen of the 
United States as of the date on which the applicant takes the prescribed 
oath of allegiance, administered either by the Service or an Immigration 
Judge in an administrative ceremony or in a ceremony conducted by an 
appropriate court under Sec. 337.8 of this chapter.
    (b) [Reserved]

[56 FR 50500, Oct. 7, 1991, as amended at 60 FR 37804, July 24, 1995; 66 
FR 32147, June 13, 2001]

[[Page 839]]



Sec. 337.10  Failure to appear for oath administration ceremony.

    An applicant who fails to appear without good cause for more than 
one oath administration ceremony for which he or she was duly notified 
shall be presumed to have abandoned his or her intent to be naturalized. 
Such presumption shall be regarded as the receipt of derogatory 
information, and the procedures contained in Sec. 335.5 of this chapter 
shall be followed.

[58 FR 49916, Sept. 24, 1993]



PART 338_CERTIFICATE OF NATURALIZATION--Table of Contents




Sec.
338.1 Execution and issuance of certificate.
338.2 Execution in case name is changed.
338.3 Delivery of certificates.
338.4 [Reserved]
338.5 Correction of certificates.
338.6-338.10 [Reserved]
338.11 Execution and issuance of certificate of naturalization by clerk 
          of court.
338.12 Endorsement by clerk of court in case name is changed.
338.13 Spoiled certificate.

    Authority: 8 U.S.C. 1103, 1443; 8 CFR part 2.



Sec. 338.1  Execution and issuance of certificate.

    (a) Issuance. When an applicant for naturalization has taken and 
subscribed to the oath of allegiance in accordance with Sec. Sec. 
337.1, 337.2 and 337.3 of this chapter, a Certificate of Naturalization, 
Form N-550, shall be issued by the Service at the conclusion of the oath 
administration ceremony. For each applicant appearing at a judicial oath 
administration ceremony pursuant to Sec. 337.8, the Service shall 
prepare the Certificate of Naturalization and forward it to the clerk of 
court sufficiently in advance of the ceremony to ensure the timely 
delivery on the date the oath administration ceremony is conducted.
    (b) Execution of certificate. The certificate shall be issued to the 
applicant in his or her true, full, and correct name as it exists at the 
time of the administration of the oath of allegiance. The certificate 
shall show, under ``former nationality,'' the name of the applicant's 
last country of citizenship, as shown in the application and Service 
records, even though the applicant may be stateless at the time of 
admission to citizenship. Photographs shall be affixed to the 
certificate in the manner provided in part 333 of this chapter. The 
certificate shall be signed by the applicant. The Commissioner's 
signature shall be affixed to the certificate.

[58 FR 49916, Sept. 24, 1993]



Sec. 338.2  Execution in case name is changed.

    Whenever the name of an applicant has been changed by order of a 
court as a part of a naturalization, the clerk of court, or his or her 
authorized deputy, shall forward a copy of the order changing the 
applicant's name with the notifications required by part 339 of this 
chapter. The Certificate of Naturalization will be issued to the 
applicant in the name as changed.

[56 FR 50501, Oct. 7, 1991]



Sec. 338.3  Delivery of certificates.

    No Certificate of Naturalization will be delivered in any case in 
which the naturalized person has not surrendered his or her Permanent 
Resident Card to the Service. Upon a finding that the card is destroyed 
or otherwise unavailable, the district director may waive the surrender 
of the card and the Certificate of Naturalization shall then be 
delivered to the naturalized person.

[56 FR 50501, Oct. 7, 1991, as amended at 63 FR 70316, Dec. 21, 1998]



Sec. 338.4  [Reserved]



Sec. 338.5  Correction of certificates.

    (a) Whenever a Certificate of Naturalization has been delivered 
which does not conform to the facts shown on the application for 
naturalization, or a clerical error was made in preparing the 
certificate, an application for issuance of a corrected certificate, 
Form N-565, without fee, may be filed by the naturalized person. The 
application shall be filed at the Service office having jurisdiction 
over the place of residence of the applicant.
    (b) If the certificate was originally issued by a clerk of court 
under a prior statute and the district director finds that a correction 
is justified and can be

[[Page 840]]

made without mutilating the certificate, he or she shall authorize the 
clerk of the issuing court, or his or her authorized deputy, on Form N-
459, in duplicate, to make the necessary correction and to place a dated 
endorsement on the reverse of the certificate, over the clerk's or 
deputy's signature and the seal of the court, explaining the correction. 
The authorization shall be filed with the naturalization record of the 
court, the corrected certificate shall be returned to the naturalized 
person, and the duplicate Form N-459 shall be endorsed to show the date 
and nature of the correction and endorsement made, and then returned to 
the district director. No fee shall be charged the naturalized person 
for the correction. The district director shall forward the duplicate 
endorsed authorization to the official Service file.
    (c) If the certificate was originally issued by the Service, and the 
district director finds that a correction was justified, the necessary 
correction shall be made to the certificate and a dated endorsement made 
on the reverse of the certificate, over the signature of the district 
director and the seal of the Department of Justice. A notation regarding 
the correction shall be placed on the Form N-565 which shall be 
forwarded to the Service file.
    (d) When a correction made pursuant to paragraph (b) or (c) of this 
section would or does result in mutilation of a certificate, the 
district director shall issue a replacement certificate on Form N-570 
and the surrendered certificate shall be destroyed.
    (e) The correction will not be deemed to be justified where the 
naturalized person later alleges that the name or date of birth which 
the applicant stated to be his or her correct name or date of birth at 
the time of naturalization was not in fact his or her name or date of 
birth at the time of the naturalization.

[56 FR 50501, Oct. 7, 1991]



Sec. Sec. 338.6-338.10  [Reserved]



Sec. 338.11  Execution and issuance of certificate of naturalization by clerk 

of court.

    (a) When a petitioner for naturalization, whose petition for 
naturalization was filed prior to October 1, 1991, has taken and 
subscribed to the oath of allegiance, and a final order of citizenship 
has been signed by the court, a certificate of naturalization shall be 
issued in duplicate by the clerk of court on Form N-550 (rev. 11-1-87) 
or N-550C. If the court maintains naturalization records using the 
certificate stub, the certificates and the stub of the original 
certificate shall be signed by the petitioner. If the court maintains 
naturalization records on an electronic database then only the 
certificates shall be signed by the petitioner and the information 
contained on the stub shall be entered into and maintained in the 
court's electronic database.
    (b) The certificate shall show under ``former nationality'' the name 
of the country of which the petitioner was last a citizen, as shown on 
the petition, even though the petitioner may have been stateless at the 
time of admission to citizenship. The clerk of court or the authorized 
deputy shall endorse the alien registration number on the certificate 
stub, or if using automation equipment, ensure it is part of the 
electronic database record. The clerk of court or the authorized deputy 
shall personally sign the certificate, and ensure that the essential 
facts from the certificate are on the stub or entered into the 
electronic database record. Both certificates and stubs shall be 
prepared in one operation unless an automated system is used. 
Photographs shall be affixed to the original and duplicate certificates 
in the manner prescribed in 8 CFR part 333.
    (c) The stub of the original certificate or the information recorded 
from the stub that is maintained on the electronic database shall be 
retained by the clerk of court. Courts using the certificate stub shall 
file and maintain the stub in a 3x5 card file 
container. The electronic record shall be maintained in an accessible 
database with a back-up system to ensure protection and integrity of 
data. The original certificate shall be delivered to the petitioner. The 
duplicate certificate shall not be separated from the stub, and shall be 
forwarded to the appropriate

[[Page 841]]

office of the Immigration and Naturalization Service with all other 
duplicate papers or records in accordance with 8 CFR part 333.

[56 FR 30679, July 5, 1991, as amended at 56 FR 50501, Oct. 7, 1991]



Sec. 338.12  Endorsement by clerk of court in case name is changed.

    Whenever the name of a petitioner, whose petition for naturalization 
was filed prior to October 1, 1991, has been changed by order of a court 
as part of a naturalization, the clerk of court or his or her authorized 
deputy shall make the following endorsement on the front of the original 
and duplicate certificate of naturalization: ``Name changed by decree of 
court from --------, as part of the naturalization.'' inserting in full 
the original name of the petitioner. This notation will be inserted 
immediately following the year of naturalization. If the stubs are being 
kept as naturalization records, a similar notation will be made on the 
stubs of the original and duplicate certificates, and the stub of the 
original certificate will be signed by the petitioner in the name as 
changed. If the court is using an electronic database for naturalization 
recordkeeping, the name change information will be maintained in that 
database. The original certificate will be issued and the duplicate, 
with or without the stub, depending on the specific courts recordkeeping 
system, will be sent to the Immigration and Naturalization Service.

[56 FR 30680, July 5, 1991; 56 FR 38485, Aug. 13, 1991, as amended at 56 
FR 50501, Oct. 7, 1991]



Sec. 338.13  Spoiled certificate.

    Whenever a certificate of naturalization is damaged, mutilated, 
defaced, or otherwise spoiled before delivery by the clerk, the original 
and duplicate, with stubs intact, shall be marked ``Spoiled'' and 
transmitted to the appropriate immigration and naturalization office, in 
the manner described in Sec. 339.2 of this chapter, with the monthly 
report of the clerk on Form N-4. This section applies to certificates 
prepared by the clerk of court pursuant to Sec. 338.11.

[22 FR 9824, Dec. 6, 1957, as amended at 56 FR 50502, Oct. 7, 1991]



PART 339_FUNCTIONS AND DUTIES OF CLERKS OF COURT REGARDING NATURALIZATION 

PROCEEDINGS--Table of Contents




Sec.
339.1 Administration of oath of allegiance to applicants for 
          naturalization.
339.2 Monthly reports.
339.3 Relinquishment of naturalization jurisdiction.
339.4 Binding of naturalization records.
339.5 Recordkeeping.

    Authority: 8 U.S.C. 1103, 1443, 1448.



Sec. 339.1  Administration of oath of allegiance to applicants for 

naturalization.

    It shall be the duty of a judge of a court that administers an oath 
of allegiance to ensure that such oath is administered to each applicant 
for naturalization who has chosen to appear before the court. The clerk 
of court shall issue to each person to whom such oath is administered 
the Certificate of Naturalization provided by the Service pursuant to 
Sec. 338.1 of this chapter. The clerk of court shall provide to each 
person whose name was changed as part of the naturalization proceedings, 
pursuant to section 336(e) of the Act, certified evidence of such name 
change.

[58 FR 49916, Sept. 24, 1993]



Sec. 339.2  Monthly reports.

    (a) Oath administration ceremonies. Clerks of court shall on the 
first day of each month submit to the Service office having 
administrative jurisdiction over the place in which the court is located 
a report on Form N-4, in duplicate, listing all oath administration 
ceremonies held and the total number of persons issued the oath at each 
ceremony, in accordance with the instructions contained in Form N-4. The 
report shall be accompanied by all duplicate lists of persons attending 
naturalization oath ceremonies during the month, certified copies of any 
court orders granting changes of name, an accounting of the certificates 
issued to them, and the original of all certificates of naturalization 
which were voided by the clerk of court. In lieu of

[[Page 842]]

forwarding duplicate lists of naturalized persons to the Service with 
the report on Form N-4, the clerk may deliver the lists to the Service 
representative immediately after the oath ceremony. In such a case, the 
N-4 shall reflect that the duplicate list was so delivered.
    (b) Petitions filed for de novo hearings. The clerk of court shall 
submit to the district director having administrative jurisdiction over 
the place in which the court is located, a monthly report of all persons 
who have filed de novo review petitions before the court. The report 
shall include each petitioner's name, alien registration number, date of 
filing of the petition for a de novo review, and, once an order has been 
entered, the disposition.
    (c) Reports relating to petitions filed prior to October 1, 1991. 
The clerks of court shall, on the first day of each month, submit to the 
district director or officer in charge having administrative 
jurisdiction over the place in which the court is located, a report on 
Form N-4, in duplicate, listing all certificates of naturalization 
issued or spoiled pursuant to Sec. 338.11 of this chapter during the 
preceding month in accordance with the instructions contained in Form N-
4. The report shall be accompanied by all duplicates of certificates of 
naturalization with stubs intact.
    (d) Other proceedings and orders. The clerk of court shall forward 
to the Service office having administrative jurisdiction over the place 
in which the court is located certified copies of the records of such 
other proceedings and other orders instituted on or issued by the court 
affecting or relating to the naturalization of any person as may be 
required from time to time by the Service.
    (e) Use of reports for accounting purposes. Form N-4 shall be used 
by state and federal courts as a monthly billing document, submitted to 
the Service for reimbursement in accordance with section 344(f)(1) of 
the Act. The Service shall use the information submitted on this form to 
calculate costs incurred by courts in performing their naturalization 
functions. State and federal courts will be reimbursed pursuant to terms 
set forth in annual agreements entered into between the Service and the 
Administrative Office of United States Courts.

[56 FR 50502, Oct. 7, 1991, as amended at 58 FR 49916, Sept. 24, 1993; 
60 FR 6652, Feb. 3, 1995]



Sec. 339.3  Relinquishment of naturalization jurisdiction.

    Whenever a court relinquishes naturalization jurisdiction, the clerk 
of court shall, within ten days following the date of relinquishment, 
furnish the district director having administrative jurisdiction over 
the place in which the court is located, a certified copy of the order 
of court relinquishing jurisdiction. A representative of the Service 
shall thereafter examine the naturalization records in the office of the 
clerk of court and shall bind and lock them. The clerk of court shall 
return all unused forms and blank certificates of naturalization to the 
district director with his monthly report on Form N-4.

[22 FR 9825, Dec. 6, 1957]



Sec. 339.4  Binding of naturalization records.

    Whenever a volume of petitions for naturalization, applications to 
take the oath of allegiance, declarations of intention, orders of court, 
or other documents affecting or relating to the naturalization of 
persons is completed, it shall be bound and locked by the clerk of 
court.

[22 FR 9825, Dec. 6, 1957]



Sec. 339.5  Recordkeeping.

    The maintenance of records and submission of reports under this 
chapter may be accomplished by either electronic or paper means.

[56 FR 50502, Oct. 7, 1991]



PART 340_REVOCATION OF NATURALIZATION--Table of Contents




Sec.
340.1 Reopening of a naturalization application by a district director 
          pursuant to section 340(h) of the Act.
340.2 Revocation proceedings pursuant to section 340(a) of the Act.

    Authority: 8 U.S.C. 1103, 1443.

[[Page 843]]



Sec. 340.1  Reopening of a naturalization application by a district director 

pursuant to section 340(h) of the Act.

    (a) Reopening general. On its own motion, the Service may reopen a 
naturalization proceeding and revoke naturalization in accordance with 
this section, if the Service obtains clear, convincing, and unequivocal 
evidence which:
    (1) Shows that the Service granted the application by mistake; or
    (2) Was not known to the Service Officer during the original 
naturalization proceeding; and--
    (i) Would have had a material effect on the outcome of the original 
naturalization; and
    (ii) Would have proven that:
    (A) The applicant's application was based on fraud or 
misrepresentation or concealment of a material fact; or
    (B) The applicant was not, in fact, eligible for naturalization.
    (b) Procedure for reopening of naturalization proceedings--(1) 
Jurisdiction. The district director under whose jurisdiction the 
applicant currently resides has jurisdiction to reopen proceedings under 
this section, except that notice of intent to reopen naturalization 
proceedings and to revoke naturalization must be served no later than 2 
years after the effective date of the order admitting a person to 
citizenship, as determined under Sec. 337.9 of this chapter. This 
section applies to any order admitting a person to citizenship with an 
effective date before, on, or after October 24, 1996.
    (2) Notice of intent to reopen naturalization proceedings and to 
revoke naturalization. (i) If the district director determines that 
reopening a naturalization proceeding is warranted under paragraph (a) 
of this section, the district director shall prepare a written notice of 
intent to reopen naturalization proceedings and to revoke 
naturalization. The notice shall describe in clear and detailed language 
the grounds on which the district director intends to reopen the 
proceeding. The notice shall include all evidence which the district 
director believes warrants reopening of the proceeding. The notice shall 
advise the applicant of his or her right to submit a response to the 
notice and to request a hearing, as provided in paragraph (b)(3) of this 
section.
    (ii) The Service shall serve the notice of intent to reopen 
naturalization proceedings and to revoke naturalization upon the 
applicant by personal service, as described in Sec. 103.5a(a)(2) of 
this chapter. When personal service is accomplished by certified or 
registered mail, return receipt requested, but the notice is returned as 
undeliverable, the Service shall serve the notice again, using another 
one of the methods of personal service described in Sec. 103.5a(a)(2) 
of this chapter.
    (3) Applicant's opportunity to respond and to request hearing. (i) 
Within sixty (60) days of service of the notice of intent to reopen 
naturalization proceedings and to revoke naturalization, the applicant 
may submit a response to the Service. The response may include any 
statements and/or additional evidence the applicant wishes to present in 
response to the proposed grounds for reopening.
    (ii) The applicant may request a hearing on the notice of intent to 
reopen naturalization proceedings and to revoke naturalization before an 
immigration officer authorized to review naturalization applications 
under sections 310 and 335 of the Act. The applicant must submit a 
written request for a hearing together with any statements and/or 
additional evidence within sixty (60) days of service of this notice. 
The Service shall schedule a requested hearing as soon as practicable.
    (4) Withdrawal of application or failure to respond. (i) Upon 
receipt of the notice of intent to reopen naturalization proceedings and 
to revoke naturalization, the applicant may submit a written statement 
admitting the facts which the district director alleges as grounds for 
reopening, and withdrawing the application for naturalization. The 
applicant shall sign the statement under oath or affirmation or shall 
certify the truth of the statement under penalty of perjury.
    (ii) If the applicant fails to submit a response to the notice of 
intent to reopen naturalization proceedings and to revoke naturalization 
within the period specified in paragraph (b)(3) of this section, that 
failure to respond will be

[[Page 844]]

deemed an admission of the stated grounds for reopening and revoking 
naturalization.
    (5) Right to counsel. The applicant may be represented at any time 
during reopening proceedings by an attorney or other representative 
qualified under part 292 of this chapter.
    (6) Burden of proof. Upon service of a notice of intent to reopen 
naturalization proceedings and to revoke naturalization, the Service 
bears the burden of proof by clear, convincing, and unequivocal evidence 
that the grounds for reopening and revoking set forth in the notice have 
been met.
    (c) Record of reopened proceedings. The record shall include, but is 
not limited to:
    (1) The applicant's application for naturalization;
    (2) The Service's notice of intent to reopen naturalization 
proceedings and to revoke naturalization with proof of service to the 
applicant;
    (3) All evidence forming the basis for reopening the naturalization 
application;
    (4) The applicant's statement and/or evidence in response to the 
Service's notice and in support of the application; and
    (5) The record of the hearing, if a hearing was held.
    (d) Decision. (1) The district director shall render, where 
practicable, a written decision on the reopened naturalization 
application within 180 days of service of the notice of intent to reopen 
naturalization proceedings and to revoke naturalization. The decision 
shall consist of findings of fact, conclusions of law, and a final 
determination on the naturalization application. Notice of decision 
shall be served on the applicant or his or her attorney or 
representative, if applicable.
    (2) Referral for revocation suit. Rather than reopening a 
naturalization decision and revoking naturalization, the district 
director shall refer a case for revocation proceedings under Sec. 340.2 
if:
    (i) The applicant's answer to the notice of intent to reopen a 
naturalization proceeding and to revoke naturalization and any 
additional evidence that the applicant submits raises a genuine factual 
issue about the propriety of the applicant's naturalization, so that 
resolution of the factual issue will depend on the credibility of 
witnesses testifying under oath and subject to cross-examination; or
    (ii) After rendering a decision on the merits, the district director 
determines that the applicant had adequately rebutted the allegations 
made in the notice of intent to reopen naturalization proceedings and to 
revoke naturalization, but the district director thereafter obtains 
additional evidence of at least one of the grounds set forth in 
paragraph (a) of this section.
    (e) Appeals. (1) The applicant may appeal an adverse decision under 
paragraph (d) of this section to the Office of Examinations, 
Administrative Appeals Unit. Any appeal shall be filed initially with 
the district director within thirty (30) days after service of the 
notice of decision. Such appeal shall be filed in accordance with Sec. 
103.1 and Sec. 103.7 of this chapter, by filing the appeal on Form I-
290B with the fee. Appeals received after the 30-day period may be 
subject to dismissal for failure to timely file.
    (2) If, within 45 days of the filing of a notice of appeal, the 
district director determines that the materials filed in support of the 
appeal adequately rebut the grounds for reopening, the district director 
may reconsider the decision to reopen the naturalization application and 
to revoke naturalization, and affirm the original decision naturalizing 
the applicant. In such a case, it is not necessary for the district 
director to forward the case to the Administrative Appeals Unit. If, 
after the district director affirms an original naturalization grant 
under this paragraph, the Service obtains additional evidence of the 
grounds set forth in paragraph (a) of this section, the Service may not 
bring a new motion to reopen the naturalization proceeding and to revoke 
naturalization, but may seek to revoke the applicant's naturalization 
only pursuant to section 340(a) of the Act.
    (f) Judicial review. If a decision of the Office of Examinations, 
Administrative Appeals Unit, is adverse to the applicant, the applicant 
may seek judicial review in accordance with section 310 of the Act.

[[Page 845]]

    (g) Effect of final decision of denial upon applicant's status. (1) 
A final decision to reopen a naturalization proceeding and to revoke 
naturalization shall be effective as of the date of the original order 
purporting to admit the applicant to citizenship. The order purporting 
to admit the applicant to citizenship shall then have no legal effect.
    (2) A district director's decision to reopen naturalization 
proceedings and to revoke naturalization will be final, unless the 
applicant seeks administrative or judicial review within the period 
specified by law or regulation.
    (3) When a decision to reopen naturalization proceedings and to 
revoke naturalization becomes final, the district director shall order 
the applicant to surrender his or her certificate of naturalization. The 
district director shall then cancel the certificate of naturalization, 
and shall also notify the Department of State of the revocation of 
naturalization.
    (4) Notwithstanding the service of a notice of intent to reopen 
naturalization proceedings and to revoke naturalization, the applicant 
shall be considered to be a citizen of the United States until a 
decision to reopen proceedings and deny naturalization becomes final.
    (h) Applicant's request for reopening or modification of 
application. After having been granted naturalization and administered 
the oath of allegiance and renunciation, an applicant may move that the 
Service reopen his or her naturalization application for the purpose of 
amending the application in accordance with Sec. 334.5 of this chapter.

[61 FR 55553, Oct. 28, 1996, as amended at 65 FR 17128, Mar. 31, 2000]



Sec. 340.2  Revocation proceedings pursuant to section 340(a) of the Act.

    (a) Recommendations for institution of revocation proceedings. 
Whenever it appears that any grant of naturalization may have been 
illegally procured or procured by concealment of a material fact or by 
willful misrepresentation, the facts shall be reported to the district 
director having jurisdiction over the naturalized person's last known 
place of residence in the United States. If the district director is 
satisfied that a prima facie case exists for revocation pursuant to 
section 340(a) of the Act, he or she shall report the facts in writing 
to the Regional Director, with a recommendation regarding the 
institution of revocation proceedings.
    (b) Recommendation for criminal prosecution. If it appears to the 
district director that a case described in paragraph (a) of this section 
or one in which a final decision has been reached under Sec. 340.1(g) 
is amenable to criminal penalties under 18 U.S.C. 1425 for unlawful 
procurement of citizenship or naturalization, the district director may 
present such facts to the appropriate United States Attorney for 
possible criminal prosecution.
    (c) Reports. It shall be the responsibility of the district director 
to advise the Service office that originated the information upon which 
the revocation inquiry is based about the progress of the investigation, 
and report the findings of the inquiry as soon as practicable.

[61 FR 55554, Oct. 28, 1996]



PART 341_CERTIFICATES OF CITIZENSHIP--Table of Contents




Sec.
341.1 Application.
341.2 Examination upon application.
341.3 Depositions.
341.4 Surrender of immigration documents.
341.5 Report and recommendation.
341.6 Denial of application.
341.7 Issuance of certificate.

    Authority: Pub. L. 82-414, 66 Stat. 173, 238, 254, 264, as amended; 
8 U.S.C. 1103, 1409(c), 1443, 1444, 1448, 1452, 1455; 8 CFR part 2.

    Source: 30 FR 5472, Apr. 16, 1965, unless otherwise noted.



Sec. 341.1  Application.

    Form N-600. An application for a certificate of citizenship by or in 
behalf of a person who claims to have acquired United States citizenship 
under section 309(c) or to have acquired or derived United States 
citizenship as specified in section 341 of the Act shall be submitted on 
Form N-600 in accordance with the instructions thereon, accompanied by 
the fee specified in Sec. 103.7(b)(1) of this chapter. The application 
shall be supported by documentary and other evidence essential to 
establish the claimed citizenship, such as

[[Page 846]]

birth, adoption, marriage, death, and divorce certificates.

(Approved by the Office of Management and Budget under control number 
1115-0018)

[52 FR 19719, May 27, 1987]



Sec. 341.2  Examination upon application.

    (a) Personal appearance of applicant and parent or guardian--(1) 
When testimony may be omitted. An application received at a Service 
office having jurisdiction over the applicant's residence may be 
processed without interview if the Service officer adjudicating the case 
has in the Service administrative file(s) all the required documentation 
necessary to establish the applicant's eligibility for U.S. citizenship, 
or if the application is accompanied by one of the following:
    (i) A Department of State Form FS-240 (Report of Birth Abroad of a 
Citizen of the United States);
    (ii) An unexpired United States passport issued initially for a full 
five/ten-year period to the applicant as a citizen of the United States, 
or
    (iii) The applicant's parent(s)' naturalization certificate(s).
    (2) Testimony required. Each applicant, when notified to do so, 
shall appear in person before an officer for examination under oath or 
affirmation upon the application. A person under 18 years of age must 
have a parent or guardian apply, appear, and testify for the applicant, 
unless one is unavailable and the district director is satisfied that 
the applicant is old enough to provide reliable testimony. The same rule 
will apply for incompetent applicants. At the examination the applicant 
and the acting parent or guardian, if necessary, shall present testimony 
and evidence pertinent to the claim to citizenship and shall have the 
right to review and rebut any adverse evidence on file, and to cross-
examine witnesses called by the Government.
    (b) Witness--(1) Personal appearance. A witness shall be called to 
testify under oath or affirmation at the district director's option only 
if that person's testimony is needed to prove a particular point, and 
only if alternative proof is unavailable or more difficult to produce 
than is the witness.
    (2) Substitution and waiver. When testimony is deemed necessary by 
the district director and the presentation of the person or persons 
through whom citizenship is claimed is precluded by reason of death, 
refusal to testify, unknown whereabouts, advanced age, mental or 
physical incapacity, or severe illness or infirmity, another witness or 
witnesses shall be produced. A substitute witness also may be produced 
in lieu of such person if such person is a member of the United States 
Armed Forces serving outside the United States in an area where his 
testimony could not be taken without imposing extreme hardship upon him, 
or without unduly delaying action on the application, and no issue is 
present which can be resolved only by this testimony.
    (c) Proof. The burden of proof shall be upon the claimant, or his 
parent or guardian if one is acting in his behalf, to establish the 
claimed citizenship by a preponderance of the evidence.
    (d) Assignment and authority of officer. A district director shall 
assign an officer of the Service to conduct the examination provided for 
in paragraphs (a) and (b) of this section. The assigned officer shall 
have authority to administer oaths or affirmations; to present and 
receive evidence; to rule upon offers of proof; to take or cause to be 
taken depositions or interrogatories; to regulate the course of the 
examination; to examine and cross-examine all witnesses appearing in the 
proceedings; to grant or order continuances; to consider and rule upon 
objections to the introduction of evidence; to make a report and 
recommendation to the district director as to whether the application 
shall be granted or denied, and to take such other action as may be 
appropriate to the conduct of the examination and the disposition of the 
application.
    (e) Conduct of examination. The assigned officer shall, at the 
commencement of the examination of the claimant or the acting parent or 
guardian, advise them of their rights as set forth in paragraphs (a) and 
(f) of this section, and shall interrogate them under oath or 
affirmation with regard to each assertion made in the application and 
any other matter pertinent to the

[[Page 847]]

claim to citizenship; in addition, when a witness is deemed necessary, 
he shall interrogate each witness with regard to pertinent matters 
within the personal knowledge of the witness, such as the relationship 
between the claimant and the citizen source or sources; the citizenship 
of the latter, and any possible expatriatory acts performed by the 
claimant and the citizen source or sources. He may, in his discretion, 
have a transcript made of the testimony. At the conclusion of the 
examination of the claimant or the action parent or guardian, all 
corrections made on the applications form shall be consecutively 
numbered and recorded in the space provided therefor in the form. The 
affidavit shall then be signed and sworn to or affirmed by the claimant 
or the acting parent or guardian; and the remainder of the affidavit 
completed and signed by the assigned officer.
    (f) Representation during proceedings. The claimant shall have the 
right to representation during the proceedings, as provided in part 292 
of this chapter, and such representative shall have the right to examine 
and cross-examine witnesses appearing in the proceedings; to introduce 
evidence; to object to the introduction of evidence, which objections 
shall be stated succinctly and entered on the record, and to submit 
briefs. If the claimant is not represented by an attorney or 
representative, the assigned officer shall assist him in the 
introduction of all evidence available in his behalf.
    (g) Assignment of additional officer. The district director may, in 
his discretion, assign an officer of the Service to examine and cross-
examine the applicant and any witnesses produced by the applicant or by 
the Government and present evidence pertinent to the applicant's claim 
to citizenship. The officer of the Service assigned to conduct the 
examination under this part may take such part in the proceedings as he 
may deem necessary.

[30 FR 5472, Apr. 16, 1965; 30 FR 5621, Apr. 21, 1965, as amended at 32 
FR 6260, Apr. 21, 1967; 45 FR 84011, Dec. 22, 1980; 51 FR 35629, Oct. 7, 
1986; 66 FR 32147, June 13, 2001]



Sec. 341.3  Depositions.

    If satisfied that a witness whose testimony is essential is not 
available for examination in the United States, the assigned officer may 
authorize the taking of a deposition abroad by written interrogatories 
before an officer of the Service or a United States consular official.



Sec. 341.4  Surrender of immigration documents.

    Each claimant shall surrender any immigration identification and 
permanent resident cards in his or her possession.

[30 FR 5472, Apr. 16, 1965, as amended at 63 FR 70316, Dec. 21, 1998]



Sec. 341.5  Report and recommendation.

    The officer assigned to act on the application shall report his/her 
findings and recommendation by completing the Report and Recommendation 
section of the Form N-600 application, or by formal order, as 
appropriate. The record, including the report and recommendation, shall 
be submitted to the distict director, who shall sign the report either 
approving or disapproving the recommendation.

[50 FR 39649, Sept. 30, 1985; 50 FR 41480, Oct. 11, 1985]



Sec. 341.6  Denial of application.

    If it is the decision of the district director to deny the 
application for a Certificate of Citizenship, the applicant shall be 
furnished the reasons for denial and advised of the right to appeal in 
accordance with the provisions of 8 CFR 103.3(a). After an application 
for a Certifcate of Citizenship has been denied and the appeal time has 
run, a second application submitted by the same individual shall be 
rejected and the applicant instructed to submit a motion for reopening 
or reconsideration in accordance with 8 CFR 103.5. The motion shall be 
accompanied by the rejected application and the fee specified in 8 CFR 
103.7 reduced by the amount of the fee paid with the rejected 
application. A decision shall be issued with notification of appeal 
rights in all Certificate of Citizenship cases, including any case 
denied due to

[[Page 848]]

the applicant's failure to prosecute the application.

[50 FR 39649, Sept. 30, 1985]



Sec. 341.7  Issuance of certificate.

    (a) If the application is granted, a Certificate of Citizenship 
shall be issued and, unless the claimant is unable by reason of mental 
incapacity or young age to understand the meaning thereof, he or she 
shall take and subscribe to the oath of renunciation and allegiance, 
prescribed by part 337 of this chapter, before a member of the Service 
within the United States. Thereafter, delivery of the certificate shall 
be made in the United States to the claimant or the acting parent or 
guardian, either personally or by certified mail.
    (b) [Reserved]

[55 FR 31037, July 31, 1990, as amended at 66 FR 32147, June 13, 2001]



PART 342_ADMINISTRATIVE CANCELLATION OF CERTIFICATES, DOCUMENTS, OR RECORDS--

Table of Contents




Sec.
342.1 Notice.
342.2 Service of notice.
342.3 Allegations admitted; no answer filed; no personal appearance 
          requested.
342.4 Answer asserting defense; personal appearance requested.
342.5 Conduct of examination.
342.6 Depositions.
342.7 Report and recommendation.
342.8 Appeals.
342.9 Notice re 18 U.S.C. 1428.

    Authority: Secs. 103, 342, 66 Stat. 173, 263; 8 U.S.C. 1103, 1453.

    Source: 28 FR 209, Jan. 9, 1963, unless otherwise noted.



Sec. 342.1  Notice.

    If it shall appear to a district director that a person has 
illegally or fraudulently obtained or caused to be created a 
certificate, document, or record described in section 342 of the Act, a 
notice shall be served upon the person of intention to cancel the 
certificate, document, or record. The notice shall contain allegations 
of the reasons for the proposed action and shall advise the person that 
he may submit, within 60 days of service of the notice, an answer in 
writing under oath or affirmation showing cause why the certificate, 
document, or record should not be canceled, that he may appear in person 
before a naturalization examiner in support of, or in lieu of his 
written answer, and that he may have present at that time, without 
expense to the Government, an attorney or representative qualified under 
part 292 of this chapter. In such proceedings the person shall be known 
as the respondent.

[29 FR 5511, Apr. 24, 1964, as amended at 37 FR 2767, Feb. 5, 1972]



Sec. 342.2  Service of notice.

    (a) Service. The notice required by Sec. 342.1 shall be served 
personally by an employee of the Government by delivery to the 
respondent, or by delivery to a person of suitable age and discretion at 
the respondent's dwelling house or usual place of abode, or by mailing 
to the respondent's last known address by registered or certified mail, 
return receipt requested.
    (b) Proof of Service. The post office return receipt, or the 
certificate of the employee serving the notice by personal delivery, 
setting forth the date and manner of service, shall constitute proof of 
service. In the case of a mentally incompetent respondent or a child 
under 14 years of age, service shall be made upon his guardian, near 
relative or friend, and the person so served shall be permitted to 
appear on behalf of the respondent.

[29 FR 5511, Apr. 24, 1964]



Sec. 342.3  Allegations admitted; no answer filed; no personal appearance 

requested.

    If the answer admits all material allegations in the notice, or if 
no answer is filed within the 60-day period or any extension thereof and 
no personal appearance is requested within such period or periods, it 
shall be deemed to authorize the district director, without further 
notice to respondent, to find the facts to be as alleged in the notice 
and to cancel the certificate, document, or record. No appeal shall lie 
from such decision. Written notice of the decision shall be served upon 
the respondent with demand for surrender of the certificate, document, 
or record forthwith.

[[Page 849]]



Sec. 342.4  Answer asserting defense; personal appearance requested.

    If the respondent files an answer within the prescribed period 
asserting a defense to the allegations in the notice, or requests a 
personal appearance, with or without an answer, the district director 
shall designate a naturalization examiner to consider the case. The 
respondent shall be notified that he may appear in person or through 
counsel with any witnesses and evidence in defense of the allegations, 
and shall be informed of the date, time, and place for such appearance.



Sec. 342.5  Conduct of examination.

    (a) Authority of naturalization examiner. The naturalization 
examiner assigned to consider the case shall have authority to 
administer oaths or affirmations to respondent and witnesses, issue 
subpoenas, present and receive evidence, rule upon offers of proof, take 
or cause depositions or interrogatories to be taken, regulate the course 
of the examination, take testimony of respondent and witnesses, grant 
continuances, consider and rule upon objections to the introduction of 
evidence, make recommendations to the district director as to whether 
cancellation shall be ordered or the proceedings terminated, and to take 
any other action as may be appropriate to the conduct and disposition of 
the case.
    (b) Assignment of additional officer. The district director may, in 
his discretion, assign an officer of the Service to examine and cross-
examine the respondent and witnesses and to present evidence pertinent 
to the case. The naturalization examiner designated under Sec. 342.4 
may take such part in the proceedings as he may deem necessary.
    (c) Examination. The naturalization examiner designated under Sec. 
342.4 shall, prior to commencement of the examination, make known to the 
respondent his official capacity and that of any officer assigned 
pursuant to paragraph (b) of this section, the nature of the 
proceedings, his right to representation by counsel, to examine or 
object to evidence against him, to present evidence in his own behalf, 
to cross-examine witnesses presented by the Government, and shall read 
the allegations in the notice to respondent and, if necessary, explain 
them to him. The respondent shall be asked whether he admits or denies 
the material allegations in the notice, or any of them, and whether he 
concedes illegality or fraud. If respondent admits all the material 
allegations and that the certificate, document, or record was procured 
by fraud or illegality, and no issue of law or fact remains, the 
naturalization examiner may determine that fraud or illegality has been 
established on the basis of the respondent's admissions. The allegations 
in the notice shall be taken as admitted if respondent, without 
reasonable cause, fails or refuses to attend or remain in attendance at 
the examination. The examination shall be recorded verbatim except for 
statements made off the record with the permission of the naturalization 
examiner.
    (d) Prior statements. The naturalization examiner assigned to 
consider the case may receive in evidence any oral or written statement 
which is material and relevant to any issue in the case previously made 
by the respondent or by any other person during any investigation, 
examination, hearing, trial, proceeding, or interrogation.

[28 FR 209, Jan. 9, 1963, as amended at 32 FR 3340, Feb. 28, 1967]



Sec. 342.6  Depositions.

    Upon good cause shown, the testimony of any witness may be taken by 
depositions, either orally or upon written interrogatories before a 
person having authority to administer oaths (affirmations), as may be 
designated by the naturalization examiner.

[37 FR 2767, Feb. 5, 1972]



Sec. 342.7  Report and recommendation.

    The naturalization examiner shall prepare a report summarizing the 
evidence, discussing the applicable law, and containing his findings and 
recommendations. The record, including the report and recommendation, 
shall be forwarded to the district director, who shall sign the report, 
either approving or disapproving the recommendation. If the decision of 
the district director is that the proceedings be terminated, the 
respondent shall be so informed.

[[Page 850]]



Sec. 342.8  Appeals.

    Should the district director find that the certificate, document, or 
record was fraudulently or illegally obtained, he shall enter an order 
that it be cancelled and the certificate or document surrendered to the 
Service forthwith. Written notification of such action shall be given 
the respondent, with a copy of the decision, findings and decision of 
the district director, and he shall be informed of his right of appeal 
in accordance with the provisions of part 103 of this chapter.



Sec. 342.9  Notice re 18 U.S.C. 1428.

    The notice to surrender a cancelled certificate of citizenship or 
copy thereof, prescribed by section 1428 of Title 18 of the United 
States Code, shall be given by the district director in whose district 
the person who has possession or control of such document resides.

[28 FR 9282, Aug. 23, 1963]



PART 343_CERTIFICATE OF NATURALIZATION OR REPATRIATION; PERSONS WHO RESUMED 

CITIZENSHIP UNDER SECTION 323 OF THE NATIONALITY ACT OF 1940, AS AMENDED, OR 

SECTION 4 OF THE ACT OF JUNE 29, 1906--Table of Contents




    Authority: Secs. 103, 332, 343, 344, 405, 66 Stat. 173, 252, 263, 
264, 280; 8 U.S.C. 1101, 1103, 1443, 1454, 1455.



Sec. 343.1  Application.

    A person who lost citizenship of the United States incidental to 
service in one of the allied armies during World War I or II, or by 
voting in a political election in a country not at war with the United 
States during World War II, and who was naturalized under the provisions 
of section 323 of the Nationality Act of 1940, as amended, or a person 
who, before January 13, 1941, resumed United States citizenship under 
the twelfth subdivision of section 4 of the act of June 29, 1906, may 
obtain a certificate evidencing such citizenship by making application 
therefor on Form N-580. The applicant shall be required to appear in 
person before an assigned officer for interrogation under oath or 
affirmation upon the application. When the application is approved, a 
certificate of naturalization or repatriation shall be issued and 
delivered in person, in the United States only, upon the applicant's 
signed receipt therefor. If the application is denied, the applicant 
shall be notified of the reasons therefor and his right to appeal in 
accordance with the provisions of part 103 of this chapter.

[23 FR 9125, Nov. 26, 1958, as amended at 32 FR 9635, July 4, 1967]



PART 343a_NATURALIZATION AND CITIZENSHIP PAPERS LOST, MUTILATED, OR DESTROYED; 

NEW CERTIFICATE IN CHANGED NAME; CERTIFIED COPY OF REPATRIATION PROCEEDINGS--

Table of Contents




Sec.
343a.1 Application for replacement of or new papers relating to 
          naturalization, citizenship, or repatriation.
343a.2 Return or replacement of surrendered certificate of 
          naturalization or citizenship.

    Authority: Secs. 103, 324, 332, 343, 344, 405, 66 Stat. 173, 246, 
247, 252, 263, 264, 265, 280; 8 U.S.C. 1101 note, 1103, 1435, 1443, 
1454, 1455.



Sec. 343a.1  Application for replacement of or new papers relating to 

naturalization, citizenship, or repatriation.

    (a) Lost, mutilated, or destroyed naturalization papers. A person 
whose declaration of intention, certificate of naturalization, 
citizenship, or repatriation, or whose certified copy of proceedings 
under the act of June 25, 1936, as amended, or under section 317(b) of 
the Nationality Act of 1940, or under section 324(c) of the Immigration 
and Nationality Act, or under the provisions of any private law, has 
been lost, mutilated, or destroyed, shall apply on Form N-565 for a new 
paper in lieu thereof.
    (b) New certificate in changed name. A naturalized citizen whose 
name has been changed after naturalization by order of court or by 
marriage shall apply on Form N-565 for a new certificate of 
naturalization, or of citizenship, in the changed name.
    (c) Disposition. The applicant shall only be required to appear in 
person before an officer for interview under oath

[[Page 851]]

or affirmation in specific cases. Those cases which necessitate an 
interview enabling an officer to properly adjudicate the application at 
the office having jurisdiction will be determined by a supervising 
officer. If an application for a new certificate of naturalization, 
citizenship, or repatriation or a new declaration of intention is 
approved, the new certificate or declaration shall be issued and 
delivered by personal service in accordance with Sec. 103.5a(a)(2) of 
this chapter. If an application for a new certified copy of the 
proceedings under the Act of June 25, 1936, as amended, or under section 
317(b) of the Nationality Act of 1940, or under section 324(c) of the 
Immigration and Nationality Act, or under the provisions of any private 
law is approved, a certified positive photocopy of the record of the 
proceedings filed with the Service shall be issued. If, subsequent to 
naturalization or repatriation, the applicant's name was changed by 
marriage, the certification of the positive photocopy shall show both 
the name in which the proceedings were conducted and the changed name. 
The new certified copy shall be personally delivered to the applicant 
upon his or her signed receipt therefor. If the application is denied, 
the applicant shall be notified of the reasons therefor and of the right 
to appeal in accordance with the provisions of part 103 of this chapter.

[23 FR 9125, Nov. 26, 1958, as amended at 32 FR 9635, July 7, 1967; 51 
FR 35629, Oct. 7, 1986]



Sec. 343a.2  Return or replacement of surrendered certificate of 

naturalization or citizenship.

    A certificate of naturalization or citizenship which is contained in 
a Service file, and which was surrendered on a finding that loss of 
nationality occurred directly or through a parent as a result of the 
application of any of the following sections of law may, upon request, 
be returned to the person to whom it was originally issued, 
notwithstanding the fact that he or she has since been naturalized or 
repatriated in the United States or abroad:
    (a) Section 404 (b) or (c) of the Nationality Act of 1940;
    (b) Section 352 of the Immigration and Nationality Act, which was 
invalidated by Schneider v. Rusk, 377 U.S. 163;
    (c) Section 401(e) of the Nationality Act of 1940;
    (d) Section 349(a)(5) of the Immigration and Nationality Act, which 
was invalidated by Afroyim v. Rusk, 387 U.S. 253;
    (e) Section 301(b) of the Immigration and Nationality Act
    (f) Section 301(c) of the Immigration and Nationality Act relative 
to persons born after May 24, 1934, which was invalidated by amendment 
to section 301(b) on October 27, 1972, Public Law 92-584.
    If, after having been surrendered to the Department of State or to 
the Service, the certificate was lost, mutilated, or destroyed as a 
result of action by the Service or that Department, a replacement 
certificate may be issued in the name shown in the surrendered 
certificate without fee and without requiring the submission of Form N-
565. A surrendered certificate shall not be regarded as mutilated and a 
replacement shall not be issued solely because of holes made in it to 
accommodate a fastener, unless the citizen declines to accept the return 
of the surrendered certificate in that condition and insists upon 
issuance of a replacement. When it is desired that the replacement 
certificate be furnished in a name other than the one shown in the 
surrendered certificate, the regular application procedure with payment 
of fee must be followed.

[51 FR 35629, Oct. 7, 1986]



PART 343b_SPECIAL CERTIFICATE OF NATURALIZATION FOR RECOGNITION BY A FOREIGN 

STATE--Table of Contents




Sec.
343b.1 Application.
343b.2 Number of applications required.
343b.3 Interrogation.
343b.4 Applicant outside of United States.
343b.5 Verification of naturalization.
343b.11 Disposition of application.

    Authority: 8 U.S.C. 1103, 1443, 1454, 1455.



Sec. 343b.1  Application.

    A naturalized citizen who desires to obtain recognition as a citizen 
of the United States by a foreign state shall

[[Page 852]]

submit an application on Form N-565. He shall not be furnished with 
verification of his naturalization for such purpose in any other way. An 
applicant who is a claimant against a foreign government for property 
damage pursuant to the provisions of a peace treaty shall not be 
requested to furnish the name, official title, and address of a foreign 
official unless such information is available when the investigation of 
the applicant is conducted. The applicant shall be required to appear in 
person before an assigned officer for interrogation under oath or 
affirmation upon the application.

[32 FR 9636, July 4, 1967, as amended at 56 FR 50502, Oct. 7, 1991]



Sec. 343b.2  Number of applications required.

    A special certificate of naturalization is delivered to one foreign 
government official only. An applicant who desires recognition as a U.S. 
citizen by more than one foreign official, whether in the same country 
or not, must file a separate application for each certificate required.

[32 FR 9636, July 4, 1967]



Sec. 343b.3  Interrogation.

    When Form N-565 presents a prima facie case, it shall be forwarded 
to the district director, without first interrogating the applicant, for 
issuance of the certificate. Interrogation of the applicant shall be 
conducted before the application is forwarded if he appears in person to 
file the application or if it is necessary in order to properly 
adjudicate the case. In that event the officer interviewing the 
applicant will complete the report on page 2 of Form N-565 before 
transmitting the application to the district director. In all other 
cases the interview shall take place at any time before the certificate 
is transmitted to the State Department (unless the applicant is abroad) 
and the report completed after the interview.

[32 FR 9636, July 4, 1967, as amended at 58 FR 49917, Sept. 24, 1993]



Sec. 343b.4  Applicant outside of United States.

    If the application is received by a Service officer stationed 
outside the United States, he shall, when practicable, interrogate the 
applicant before the application is forwarded to the district director 
in the United States having jurisdiction over the applicant's place of 
residence for issuance of the certificate. When such interrogation is 
not practicable, or is not conducted because the application is 
submitted directly to the Commissioner or a district director of the 
Service in the United States, the certificate may nevertheless be issued 
and the recommendation conditioned upon satisfactory interrogation by a 
State Department representative. When forwarding the certificate in such 
a case, the Secretary of State shall be informed that the applicant has 
not been interviewed, and requested to have his representative abroad 
interview the applicant regarding identity and possible expatriation. If 
identity is not established or if expatriation has occurred, the request 
shall be made that the certificate be returned to the Service.

[37 FR 7584, Apr. 18, 1972]



Sec. 343b.5  Verification of naturalization.

    The application shall not be granted without first obtaining 
verification of the applicant's naturalization.

[32 FR 9636, July 4, 1967]



Sec. 343b.11  Disposition of application.

    (a) Issuance of certificate. If the application is granted, a 
special certificate of naturalization of Form N-578 shall be issued by 
the district director and forwarded to the Secretary of State for 
transmission to the proper authority of the foreign state. The district 
director shall forward the original certificate by letter, in 
triplicate, to the Secretary of State, Attention: Office of Citizens' 
Consular Service, Department of State, Washington, DC 20520; forward the 
application and the duplicate certificate to the official Service file, 
and send Form N-568 to the applicant.
    (b) Application denied. If the application is denied, the applicant 
shall be notified of the reasons therefor and of his right to appeal in 
accordance with

[[Page 853]]

the provisions of part 103 of this chapter.

[23 FR 9126, Nov. 26, 1958 and 32 FR 9636, July 4, 1967, as amended at 
36 FR 11636, June 17, 1971; 45 FR 38340, June 9, 1980]



PART 343c_CERTIFICATIONS FROM RECORDS--Table of Contents




    Authority: 5 U.S.C. 552 (80 Stat. 383); as amended by Pub. L. 93-502 
(88 Stat. 1561); sec. 103 Immigration and Nationality Act (66 Stat. 173; 
8 U.S.C. 1103).



Sec. 343c.1  Application for certification of naturalization record of court 

or certificate of naturalization or citizenship.

    An application for certification of a naturalization record of any 
court, or of any part thereof, or of any certificate of naturalization, 
repatriation, or citizenship, under section 343(e) of the Act for use in 
complying with any statute, Federal or State, or in any judicial 
proceeding, shall be made on Form G-641.

[40 FR 50703, Oct. 31, 1975]



PART 349_LOSS OF NATIONALITY--Table of Contents




    Authority: Sec. 103, 66 Stat. 173; 8 U.S.C. 1103. Interprets or 
applies 401(i), 54 Stat. 1169; 8 U.S.C. 801, 1946 ed.



Sec. 349.1  Japanese renunciation of nationality.

    A Japanese who renounced United States nationality pursuant to the 
provisions of section 401(i), Nationality Act of 1940, who claims that 
his renunciation is void, shall complete Form N-576, Supplemental 
Affidavit to be Submitted with Applications of Japanese Renunciants. The 
affidavit shall be submitted to the Assistant Attorney General, Civil 
Division, Department of Justice, Washington, DC 20530, with a covering 
letter requesting a determination of the validity of the renunciation.

[32 FR 9636, July 4, 1967]



  PART 392_SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: PERSONS WHO DIE 

WHILE SERVING ON ACTIVE DUTY WITH THE UNITED STATES ARMED FORCES DURING 

CERTAIN PERIODS OF HOSTILITIES--Table of Contents




Sec.
392.1 Definitions.
392.2 Eligibility for posthumous citizenship.
392.3 Application for posthumous citizenship.
392.4 Issuance of a certificate of citizenship.

    Authority: 8 U.S.C. 1103, 1440 and note, and 1440-1; 8 CFR part 2.

    Source: 56 FR 22822, May 17, 1991, unless otherwise noted.



Sec. 392.1  Definitions.

    As used in this part:
    Active-duty status means full-time duty in the active military 
service of the United States, and includes full-time training duty, 
which constitutes qualifying service under section 329(a) of the Act. 
Active service in the United States Coast Guard during one of the 
periods of hostilities specified herein shall constitute service in the 
military, air, or naval forces of the United States. Active-duty status 
also includes annual training duty and attendance, while in the active 
military service, at a service school designated by the military 
authorities under 10 U.S.C. 101(22). The order of a national guardsman 
into active duty for training under 10 U.S.C. 672 constitutes service in 
active-duty status in the military forces of the United States. Active 
duty in a noncombatant capacity is qualifying service.
    Decedent means the person on whose behalf an application for a 
certificate of posthumous citizenship is made.
    Induction, enlistment, and reenlistment, refer to the decedent's 
place of entry into active duty military service.
    Korean Hostilities relates to the period from June 25, 1950, to July 
1, 1955, inclusive.
    Lodge Act means the Act of June 30, 1950, which qualified for 
naturalization nonresident aliens who served honorably for 5 years in 
the United States Army during specified periods, notwithstanding that 
they never formally

[[Page 854]]

became lawful permanent residents of the United States.
    Next-of-kin means the closest surviving blood or legal relative of 
the decedent in the following order of succession:
    (1) The surviving spouse;
    (2) The decedent's surviving son or daughter, if the decedent has no 
surviving spouse;
    (3) The decedent's surviving parent, if the decedent has no 
surviving spouse or sons or daughters; or,
    (4) The decedent's surviving brother or sister, if none of the 
persons described in paragraphs (1) through (3) of this definition 
survive the decedent.
    Other periods of military hostilities means any period designated by 
the President under Executive Order as a period in which Armed Forces of 
the United States are or were engaged in military operations involving 
armed conflict with a hostile foreign force.
    Representative means:
    (1) The duly appointed executor or administrator of the decedent's 
estate, including a special administrator appointed for the purpose of 
seeking the decedent's naturalization; or,
    (2) The duly appointed guardian, conservator, or committee of the 
decedent's next-of-kin; or,
    (3) A service organization listed in 38 U.S.C. 3402, or chartered by 
Congress, or State, or other service organization recognized by the 
Department of Veterans Affairs.
    Vietnam Hostilities relates to the period from February 28, 1961, to 
October 15, 1978, inclusive.
    World War I relates to the period from April 6, 1917, to November 
11, 1918, inclusive.
    World War II relates to the period from September 1, 1939, to 
December 31, 1946, inclusive.



Sec. 392.2  Eligibility for posthumous citizenship.

    (a) General. Any alien or noncitizen national of the United States 
is eligible for posthumous United States citizenship who:
    (1) Served honorably in an active-duty status with the military, 
air, or naval forces of the United States during World War I, World War 
II, the Korean Hostilities, the Vietnam Hostilities, or in other periods 
of military hostilities designated by the President under Executive 
Order; and,
    (2) Died as a result of injury or disease incurred in or aggravated 
by service in the United States Armed Forces during a period of military 
hostilities listed in paragraph (a)(1) of this section. Where the person 
died subsequent to separation from military service, the death must have 
resulted from an injury or disease that was sustained, acquired, or 
exacerbated during active-duty service in a qualifying period of 
military hostilities as specified in this part.
    (b) Qualifying enlistment. In conjunction with the qualifying 
service as described in paragraph (a)(1) of this section, the decedent 
must have:
    (1) Enlisted, reenlisted, or been inducted in the United States, the 
Canal Zone, American Samoa, or Swains Island;
    (2) Been lawfully admitted to the United States for permanent 
residence, at any time; or,
    (3) Enlisted or reenlisted in the United States Army pursuant to the 
provisions of the Lodge Act. In such case, the decedent shall be 
considered to have been lawfully admitted to the United States as a 
permanent resident for purposes of this section, provided he or she:
    (i) Entered the United States, its outlying possessions, or the 
Canal Zone, at some time during the period of army service, pursuant to 
military orders; and
    (ii) Was honorably discharged following completion of at least 5 
full years of active duty service, even though the active-duty service 
may not have occurred during a qualifying period of hostilities 
specified in section 329(a) of the Act.
    (c) Character of military service. Where the character of military 
service is not certified as honorable by the executive department under 
which the person served, or where the person was dishonorably discharged 
or discharged under conditions other than honorable, such service shall 
not satisfy the requirement of paragraph (a)(1) of this section.
    (d) Certification of eligibility. (1) The executive department under 
which the

[[Page 855]]

decedent served shall determine whether:
    (i) The decedent served honorably in an active-duty status;
    (ii) The separation from such service was under honorable 
conditions; and,
    (iii) The decedent died as a result of injury or disease incurred 
in, or aggravated by active duty service during a qualifying period of 
military hostilities.
    (2) The certification required by section 329A(c)(2) of the Act to 
prove military service and service-connected death shall be requested by 
the applicant on Form N-644, Application for Posthumous Citizenship. 
Form N-644 shall also be used to verify the decedent's place of 
induction, enlistment or reenlistment.



Sec. 392.3  Application for posthumous citizenship.

    (a) Persons who may apply. (1) Only one person who is either the 
next-of-kin or another representative of the decedent shall be permitted 
to apply for posthumous citizenship on the decedent's behalf. A person 
who is a next-of-kin who wishes to apply for posthumous citizenship on 
behalf of the decedent, shall, if there is a surviving next-of-kin in 
the line of succession above him or her, be required to obtain 
authorization to make the application from all surviving next-of-kin in 
the line of succession above him or her. The authorization shall be in 
the form of an affidavit stating that the affiant authorizes the 
requester to apply for posthumous citizenship on behalf of the decedent. 
The affidavit must include the name and address of the affiant, and the 
relationship of the affiant to the decedent.
    (2) When there is a surviving next-of-kin, an application for 
posthumous citizenship shall only be accepted from a representative 
provided authorization has been obtained from all surviving next-of-kin. 
However, this requirement shall not apply to the executor or 
administrator of the decedent's estate. In the case of a service 
organization acting as a representative, authorization must also have 
been obtained from any appointed representative. A veterans service 
organization must submit evidence of recognition by the Department of 
Veterans Affairs.
    Once the Service has granted posthumous citizenship to a person, no 
subsequent applications on his or her behalf shall be approved, nor 
shall any additional original certificates be issued, except in the case 
of an application for issuance of a replacement certificate for one 
lost, mutiliated, or destroyed.
    (b) Filing of application. (1) An application for posthumous 
citizenship shall be submitted by mail on Form N-644, according to the 
instructions on the form, to the INS Service Center having jurisdiction 
over the applicant's state of residence. Persons residing outside the 
United States must mail their applications to any one of the four 
Service Centers.
    (2) Form N-644 must be accompanied by the appropriate fee specified 
by and remitted in accordance with the provisions of Sec. 103.7 (a) and 
(b) of this chapter. The fee may not be waived or refunded. To 
facilitate the certification process, a legible copy of each of the 
following documents, if available, should be submitted with Form N-644:
    (i) DD Form 214, Certificate of Release or Discharge from Active 
Duty;
    (ii) DD Form 1300, Report of Casualty/Military Death Certificate; 
or,
    (iii) Other military or State-issued death certificate.
    (c) Application period for requesting posthumous citizenship. Form 
N-644 shall be filed with the appropriate INS Service Center not later 
than March 5, 1992, or 2 years after the date of the person's death, 
whichever date is later.
    (d) Denial of application. When the application is denied, the 
applicant shall be notified of the decision and the reason(s) for 
denial. There is no appeal from the denial of an application under this 
part.



Sec. 392.4  Issuance of a certificate of citizenship.

    (a) Approval of application. If the application (Form N-644) is 
approved, the director of the Service Center shall issue a Certificate 
of Citizenship, Form N-645, to the applicant, in the name of the 
decedent.
    (b) Delivery of certificate. Delivery of the Certificate of 
Citizenship shall be

[[Page 856]]

made by registered mail to the address designated by the applicant. If 
the applicant resides outside the United States, the certificate shall 
be sent by registered mail to the Service office abroad, if one is 
located where delivery is to be made; otherwise, it shall be forwarded 
to the nearest American Embassy or Consulate.
    (c) Effective date of citizenship. Where the Service has approved an 
Application for Posthumous Citizenship (Form N-644), the decedent shall 
be considered a United States citizen as of the date of his or her 
death.
    (d) Ineligibility for immigration benefits. The granting of 
posthumous citizenship under section 329A of the Immigration and 
Naturalization Act, as amended, and issuance of a certificate under 
paragraph (a) of this section, shall not entitle the surviving spouse, 
parent, son, daughter, or other relative of the decedent to any benefit 
under any provision of the Act. Nor shall such grant make applicable the 
provisions of section 319(d) of the Act to the surviving spouse.
    (e) Replacement certificate. An application for a replacement 
Certificate of Citizenship (Form N-645) shall be made on Form N-565, 
Application for a New Naturalization or Citizenship Paper, for a lost, 
mutilated, or destroyed certificate. Form N-565 shall be completed 
according to the instructions on the form and submitted by mail with the 
appropriate fee to the INS Service Center having jurisdiction over the 
applicant's state of residence. Persons residing outside the United 
States must mail their application to the Service Center that issued the 
original certificate.



PART 499_NATIONALITY FORMS--Table of Contents




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



Sec. 499.1  Prescribed forms.

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

----------------------------------------------------------------------------------------------------------------
               Form No.                              Edition date                     Title and description
----------------------------------------------------------------------------------------------------------------
M-288.................................  12-30-87..............................  United States History 1600-1987,
                                                                                 Level II.
M-289.................................  12-31-87..............................  United States History 1600-1987,
                                                                                 Level I.
M-290.................................  01-01-90..............................  U.S. Government Structure, Level
                                                                                 II.
M-291.................................  12-31-87..............................  U.S. Government Structure, Level
                                                                                 I.
M-302.................................  03-16-89..............................  For the People * * *, U.S.
                                                                                 Citizenship Education and
                                                                                 Naturalization Information.
M-303.................................  03-16-89..............................  By the People * * *, U.S.
                                                                                 Government Structure.
M-304.................................  03-16-89..............................  Of the People * * *, U.S.
                                                                                 History 1600-1988.
N-3...................................  01-30-83..............................  Requisition for Forms and
                                                                                 Binders.
N-4...................................  12-14-93..............................  Monthly Report--Naturalization
                                                                                 Papers Forwarded.
N-300.................................  10-01-91..............................  Application to File Declaration
                                                                                 of Intention.
N-335.................................  10-24-91..............................  Decision on Application for
                                                                                 Naturalization.
N-336.................................  10-24-91..............................  Request for Hearing on a
                                                                                 Decision in Naturalization
                                                                                 Proceedings under section 336
                                                                                 of the Act.
N-400.................................  07-17-91..............................  Application for Naturalization.
N-404.................................  08-01-65..............................  Request for Withdrawal of
                                                                                 Petition for Naturalization.
N-410.................................  09-07-89..............................  Motion for Amendment of Petition
                                                                                 (application).
N-425.................................  02-12-82..............................  Notice to Petitioner of Proposed
                                                                                 Recommendation of Denial of
                                                                                 Petition for Naturalization.
N-426.................................  05-12-77..............................  Request for Certification of
                                                                                 Military or Naval Service.
N-445.................................  01-08-92..............................  Notice of Naturalization Oath
                                                                                 Ceremony.
N-455.................................  04-11-91..............................  Application for Transfer of
                                                                                 Petition for Naturalization.
N-459.................................  12-15-58..............................  Authorization to Clerk of Court
                                                                                 to Correct Certificate of
                                                                                 Naturalization.
N-470.................................  04-11-91..............................  Application to Preserve
                                                                                 Residence for Naturalization
                                                                                 Purposes.
N-472.................................  04-05-82..............................  Notice of Approval of
                                                                                 Application to Preserve
                                                                                 Residence.
N-480.................................  02-05-68..............................  Naturalization Petitions
                                                                                 Recommended to be Granted (and)
                                                                                 Order of Court Granting
                                                                                 Petitions for Naturalization.
N-481.................................  09-20-67..............................  Naturalization Petitions
                                                                                 Recommended to be Granted
                                                                                 (Continuation Sheet).
N-484.................................  02-05-68..............................  Naturalization Petitions
                                                                                 Recommended to be Denied (and)
                                                                                 Order of Court Denying
                                                                                 Petitions for Naturalization.

[[Page 857]]

 
N-485.................................  02-05-68..............................  Naturalization Petitions
                                                                                 Recommended to be Granted (on
                                                                                 behalf of children) (and) Order
                                                                                 of Court Granting Petitions for
                                                                                 Naturalization.
N-550.................................  06-30-91..............................  Certificate of Naturalization.
N-565.................................  11-18-93..............................  Application for Replacement
                                                                                 Naturalization/Citizenship
                                                                                 Document.
N-578.................................  10-03-62..............................  Special Certificate of
                                                                                 Naturalization.
N-600.................................  04-11-91..............................  Application for Certificate of
                                                                                 Citizenship.
N-643.................................  05-10-93..............................  Application for Certificate of
                                                                                 Citizenship on Behalf of an
                                                                                 Adopted Child.
N-644.................................  05-30-91..............................  Application for Posthumous
                                                                                 Citizenship.
N-645.................................  07-01-90..............................  Certificate of Citizenship.
N-646.................................  01-03-92..............................  Naturalization Applicants
                                                                                 Eligible to be Administered
                                                                                 Oath of Allegiance.
N-646A................................  01-03-92..............................  Naturalization Applicants
                                                                                 Eligible to be Administered
                                                                                 Oath of Allegiance
                                                                                 (Continuation Sheet).
N-647.................................  01-15-92..............................  Oath of Allegiance and
                                                                                 Certificate Accountability
                                                                                 List.
N-647A................................  01-15-92..............................  Oath of Allegiance and
                                                                                 Certificate Accountability List
                                                                                 (Continuation Sheet).
N-648.................................  02-04-99..............................  Medical Certification for
                                                                                 Disability Exceptions.
----------------------------------------------------------------------------------------------------------------


[59 FR 25561, May 17, 1994, as amended at 61 FR 47801, Sept. 11, 1996; 
62 FR 12924, Mar. 19, 1997; 64 FR 7993, Feb. 18, 1999]

[[Page 859]]



   CHAPTER V--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, DEPARTMENT OF 
                                 JUSTICE




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

                    SUBCHAPTER A--GENERAL PROVISIONS
Part                                                                Page
1001            Definitions.................................         861
1003            Executive Office for Immigration Review.....         863
                  SUBCHAPTER B--IMMIGRATION REGULATIONS
1101            Presumption of lawful admission.............         923
1103            Appeals, records, and fees..................         927
1204            Immigrant petitions.........................         932
1205            Revocation of approval of petitions.........         932
1207            Admission of refugees.......................         935
1208            Procedures for asylum and withholding of 
                    removal.................................         935
1209            Adjustment of status of refugees and aliens 
                    granted asylum..........................         963
1211            Documentary requirements: Immigrants; 
                    waivers.................................         965
1212            Documentary requirements: Nonimmigrants; 
                    waivers; admission of certain 
                    inadmissible aliens; parole.............         966
1214            Review of nonimmigrant classes..............         995
1215            Controls of aliens departing from the United 
                    States..................................         996
1216            Conditional basis of lawful permanent 
                    residence status........................        1001
1235            Inspection of persons applying for admission        1011
1236            Apprehension and detention of inadmissable 
                    and deportable aliens; removal of aliens 
                    ordered removed.........................        1024
1238            Expedited removal of aggravated felons......        1032
1239            Initiation of removal proceedings...........        1034
1240            Proceedings to determine removability of 
                    aliens in the United States.............        1035
1241            Apprehension and detention of aliens ordered 
                    removed.................................        1070

[[Page 860]]

1244            Temporary protected status for nationals of 
                    designated states.......................        1077
1245            Adjustment of status to that of person 
                    admitted for permanent residence........        1088
1246            Rescission of adjustment of status..........        1142
1249            Creation of records of lawful admission for 
                    permanent residence.....................        1144
1270            Penalties for document fraud................        1145
1274a           Control of employment of aliens.............        1148
1280            Imposition and collection of fines..........        1169
1287            Field officers; powers and duties...........        1174
1292            Representation and appearances..............        1176
                  SUBCHAPTER C--NATIONALITY REGULATIONS
1299            Immigration review forms....................        1187
1337            Oath of allegiance..........................        1187

[[Page 861]]



                     SUBCHAPTER A_GENERAL PROVISIONS



PART 1001_DEFINITIONS--Table of Contents




    Authority: 8 U.S.C. 1101, 1103.



Sec. 1001.1  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 on or after that date mean the 
offices of the Department of Homeland Security to which the functions of 
the former Service were transferred pursuant to the Homeland Security 
Act, Public Law 107-296 (Nov. 25, 2002), as provided in 8 CFR chapter I.
    (d) The term Commissioner means the Commissioner of the Immigration 
and Naturalization Service prior to March 1, 2003. Unless otherwise 
specified, references to the Commissioner on or after that date mean 
those officials of the Department of Homeland Security who have 
succeeded to the functions of the Commissioner of the former Service, as 
provided in 8 CFR chapter I.
    (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. 1292.1(a) (2), (3), (4), (5), 
(6), and 1292.1(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.
    (m) The term representation before the Board and the Service 
includes

[[Page 862]]

practice and preparation as defined in paragraphs (i) and (k) of this 
section.
    (n) The term Executive Office means Executive Office for Immigration 
Review.
    (o) The term Director, unless otherwise specified, means the 
Director of the Executive Office for Immigration Review. For a 
definition of the term Director when used in the context of an official 
with the Department of Homeland Security, see 8 CFR 1.1(o).
    (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, 
removal, or rescission.
    (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 an arriving alien even if paroled pursuant to 
section 212(d)(5) of the Act, and even after any such parole is 
terminated or revoked. However, an arriving alien who was paroled into 
the United States before April 1, 1997, or who was paroled into the 
United States on or after April 1, 1997, pursuant to a grant of advance 
parole which the alien applied for and obtained in the United States 
prior to the alien's departure from and return to the United States, 
will not be treated, solely by reason of that grant of parole, as an 
arriving alien under section 235(b)(1)(A)(i) of the Act.
    (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 8 CFR chapter I as 
it existed prior to April 1, 1997.
    (s) The terms government counsel or Service counsel, in the context 
of proceedings in which the Department of Homeland Security has 
appeared, mean any officer assigned to represent the Department of 
Homeland Security 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 specified, means the 
Department of Justice.
    (v) The term Secretary, unless otherwise specified, means the 
Secretary of Homeland Security.
    (w) The term DHS means the Department of Homeland Security. These 
rules incorporate by reference the organizational definitions for 
components of DHS as provided in 8 CFR 1.1.

[23 FR 9115, Nov. 26, 1958]

    Editorial Note: For Federal Register citations affecting Sec. 
1001.1, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.

    Effective Date Note: At 73 FR 76922, Dec. 18, 2008, Sec. 1001.1 was 
amended by revising paragraphs (f) and (i), effective Jan. 20, 2009. For 
the convenience of the user, the revised text is set forth as follows:



Sec. 1001.1  Definitions.

                                * * * * *

    (f) The term attorney means any person who is eligible to practice 
law in and is a member in good standing of the bar of the highest court 
of any State, possession, territory, or Commonwealth of the United 
States, or of the District of Columbia, and is not under any order 
suspending, enjoining, restraining, disbarring, or otherwise restricting 
him in the practice of law.

                                * * * * *

    (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

[[Page 863]]

person or client before or with DHS, or any immigration judge, or the 
Board.

                                * * * * *



PART 1003_EXECUTIVE OFFICE FOR IMMIGRATION REVIEW--Table of Contents




Sec.
1003.0 Executive Office for Immigration Review.

                 Subpart A_Board of Immigration Appeals

1003.1 Organization, jurisdiction, and powers of the Board of 
          Immigration Appeals.
1003.2 Reopening or reconsideration before the Board of Immigration 
          Appeals.
1003.3 Notice of appeal.
1003.4 Withdrawal of appeal.
1003.5 Forwarding of record on appeal.
1003.6 Stay of execution of decision.
1003.7 Notice of certification.
1003.8 Fees before the Board.

             Subpart B_Office of the Chief Immigration Judge

1003.9 Chief Immigration Judge.
1003.10 Immigration Judges.
1003.11 Administrative control Immigration Courts.

             Subpart C_Immigration Court_Rules of Procedure

1003.12 Scope of rules.
1003.13 Definitions.
1003.14 Jurisdiction and commencement of proceedings.
1003.15 Contents of the order to show cause and notice to appear and 
          notification of change of address.
1003.16 Representation.
1003.17 Appearances.
1003.18 Scheduling of cases.
1003.19 Custody/bond.
1003.20 Change of venue.
1003.21 Pre-hearing conferences and statement.
1003.22 Interpreters.
1003.23 Reopening or reconsideration before the Immigration Court.
1003.24 Fees pertaining to matters within the jurisdiction of an 
          immigration judge.
1003.25 Form of the proceeding.
1003.26 In absentia hearings.
1003.27 Public access to hearings.
1003.28 Recording equipment.
1003.29 Continuances.
1003.30 Additional charges in deportation or removal hearings.
1003.31 Filing documents and applications.
1003.32 Service and size of documents.
1003.33 Translation of documents.
1003.34 Testimony.
1003.35 Depositions and subpoenas.
1003.36 Record of proceeding.
1003.37 Decisions.
1003.38 Appeals.
1003.39 Finality of decision.
1003.40 Local operating procedures.
1003.41 Evidence of criminal conviction.
1003.42 Review of credible fear determination.
1003.43 Motion to reopen for suspension of deportation and cancellation 
          of removal pursuant to section 203(c) of the Nicaraguan 
          Adjustment and Central American Relief Act (NACARA).
1003.44 Special motion to seek section 212(c) relief for aliens who 
          pleaded guilty or nolo contendere to certain crimes before 
          April 1, 1997.
1003.46 Protective orders, sealed submissions in Immigration Courts.
1003.47 Identity, law enforcement, or security investigations or 
          examinations relating to applications for immigration relief, 
          protection, or restriction on removal.

Subpart D [Reserved]

             Subpart E_List of Free Legal Services Providers

1003.61 List.
1003.62 Qualifications.
1003.63 Applications.
1003.64 Approval and denial of applications.
1003.65 Removal of an organization or attorney from list.

Subpart F [Reserved]

  Subpart G_Professional Conduct for Practitioners_Rules and Procedures

1003.101 General provisions.
1003.102 Grounds.
1003.103 Immediate suspension and summary disciplinary proceedings; duty 
          of practitioner to notify EOIR of conviction or discipline.
1003.104 Filing of complaints; preliminary inquiries; resolutions; 
          referral of complaints.
1003.105 Notice of Intent to Discipline.
1003.106 Hearing and disposition.
1003.107 Reinstatement after expulsion or suspension.
1003.108 Confidentiality.
1003.109 Discipline of government attorneys.

    Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 1154, 
1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 1254a, 1255, 
1324d, 1330, 1361, 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

[[Page 864]]

Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 
106-554, 114 Stat. 2763A-326 to -328.

    Source: Redesignated at 68 FR 9830, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1003 appear at 68 FR 
9846, Feb. 28, 2003, and at 68 FR 10350, Mar. 5, 2003.



Sec. 1003.0  Executive Office for Immigration Review.

    (a) Organization. Within the Department of Justice, there shall be 
an Executive Office for Immigration Review (EOIR), headed by a Director 
who is appointed by the Attorney General. The Director shall be assisted 
by a Deputy Director and by a General Counsel. EOIR shall include the 
Board of Immigration Appeals, the Office of the Chief Immigration Judge, 
the Office of the Chief Administrative Hearing Officer, and such other 
staff as the Attorney General or Director may provide.
    (b) Powers of the Director.-- (1) In general. The Director shall 
manage EOIR and its employees and shall be responsible for the direction 
and supervision of the Board, the Office of the Chief Immigration Judge, 
and the Office of the Chief Administrative Hearing Officer in the 
execution of their respective duties pursuant to the Act and the 
provisions of this chapter. Unless otherwise provided by the Attorney 
General, the Director shall report to the Deputy Attorney General and 
the Attorney General. The Director shall have the authority to:
    (i) Issue operational instructions and policy, including procedural 
instructions regarding the implementation of new statutory or regulatory 
authorities;
    (ii) Direct the conduct of all EOIR employees to ensure the 
efficient disposition of all pending cases, including the power, in his 
discretion, to set priorities or time frames for the resolution of 
cases; to direct that the adjudication of certain cases be deferred; to 
regulate the assignment of adjudicators to cases; and otherwise to 
manage the docket of matters to be decided by the Board, the immigration 
judges, the Chief Administrative Hearing Officer, or the administrative 
law judges;
    (iii) Provide for appropriate administrative coordination with the 
other components of the Department of Justice, with the Department of 
Homeland Security, and with the Department of State;
    (iv) Evaluate the performance of the Board of Immigration Appeals, 
the Office of the Chief Immigration Judge, the Office of the Chief 
Administrative Hearing Officer, and other EOIR activities, make 
appropriate reports and inspections, and take corrective action where 
needed;
    (v) Provide for performance appraisals for immigration judges and 
Board members while fully respecting their roles as adjudicators, 
including a process for reporting adjudications that reflect temperament 
problems or poor decisional quality;
    (vi) Administer an examination for newly-appointed immigration 
judges and Board members with respect to their familiarity with key 
principles of immigration law before they begin to adjudicate matters, 
and evaluate the temperament and skills of each new immigration judge or 
Board member within 2 years of appointment;
    (vii) Provide for comprehensive, continuing training and support for 
Board members, immigration judges, and EOIR staff in order to promote 
the quality and consistency of adjudications;
    (viii) Implement a process for receiving, evaluating, and responding 
to complaints of inappropriate conduct by EOIR adjudicators; and
    (ix) Exercise such other authorities as the Attorney General may 
provide.
    (2) Delegations. The Director may delegate the authority given to 
him by this part or by the Attorney General to the Deputy Director, the 
General Counsel, the Chairman of the Board of Immigration Appeals, the 
Chief Immigration Judge, the Chief Administrative Hearing Officer, or 
any other EOIR employee.
    (c) Limit on the Authority of the Director. The Director shall have 
no authority to adjudicate cases arising under the Act or regulations 
and shall not direct the result of an adjudication assigned to the 
Board, an immigration judge, the Chief Administrative Hearing Officer, 
or an Administrative Law Judge; provided, however, that nothing in this 
part shall be construed to limit

[[Page 865]]

the authority of the Director under paragraph (b) of this section.
    (d) Deputy Director. The Deputy Director shall advise and assist the 
Director in the management of EOIR and the formulation of policy and 
guidelines. Unless otherwise limited by law or by order of the Director, 
the Deputy Director shall exercise the full authority of the Director in 
the discharge of his or her duties.
    (e) General Counsel. Subject to the supervision of the Director, the 
General Counsel shall serve as the chief legal counsel of EOIR. The 
General Counsel shall provide legal advice and assistance to the 
Director, Deputy Director, and heads of the components within EOIR, and 
shall supervise all legal activities of EOIR not related to 
adjudications arising under the Act or this chapter.
    (1) Professional standards. The General Counsel shall administer 
programs to protect the integrity of immigration proceedings before 
EOIR, including administering the disciplinary program for attorneys and 
accredited representatives under subpart G of this part.
    (2) Fraud issues. The General Counsel shall designate an anti-fraud 
officer who shall--
    (i) Serve as a point of contact relating to concerns about possible 
fraud upon EOIR, particularly with respect to matters relating to 
fraudulent applications or documents affecting multiple removal 
proceedings, applications for relief from removal, appeals, or other 
proceedings before EOIR;
    (ii) Coordinate with investigative authorities of the Department of 
Homeland Security, the Department of Justice, and other appropriate 
agencies with respect to the identification of and response to such 
fraud; and
    (iii) Notify the EOIR disciplinary counsel and other appropriate 
authorities with respect to instances of fraud, misrepresentation, or 
abuse pertaining to an attorney or accredited representative.
    (f) Citizenship Requirement for Employment. (1) An application to 
work at EOIR, either as an employee or a volunteer, must include a 
signed affirmation from the applicant that he or she is a citizen of the 
United States of America. If requested, the applicant must document 
United States citizenship.
    (2) The Director of EOIR may, by explicit written determination and 
to the extent permitted by law, authorize the appointment of an alien to 
an EOIR position when necessary to accomplish the work of EOIR.

[72 FR 53676, Sept. 20, 2007]



                 Subpart A_Board of Immigration Appeals



Sec. 1003.1  Organization, jurisdiction, and powers of the Board of 

Immigration Appeals.

    (a)(1) Organization. There shall be in the Department of Justice a 
Board of Immigration Appeals, subject to the general supervision of the 
Director, Executive Office for Immigration Review (EOIR). The Board 
members shall be attorneys appointed by the Attorney General to act as 
the Attorney General's delegates in the cases that come before them. The 
Board shall consist of 15 members. A vacancy, or the absence or 
unavailability of a Board member, shall not impair the right of the 
remaining members to exercise all the powers of the Board.
    (2) Chairman. The Attorney General shall designate one of the Board 
members to serve as Chairman. The Attorney General may designate one or 
two Vice Chairmen to assist the Chairman in the performance of his 
duties and to exercise all of the powers and duties of the Chairman in 
the absence or unavailability of the Chairman.
    (i) The Chairman, subject to the supervision of the Director, shall 
direct, supervise, and establish internal operating procedures and 
policies of the Board. The Chairman shall have authority to:
    (A) Issue operational instructions and policy, including procedural 
instructions regarding the implementation of new statutory or regulatory 
authorities;
    (B) Provide for appropriate training of Board members and staff on 
the conduct of their powers and duties;
    (C) Direct the conduct of all employees assigned to the Board to 
ensure the efficient disposition of all pending cases, including the 
power, in his discretion, to set priorities or time frames

[[Page 866]]

for the resolution of cases; to direct that the adjudication of certain 
cases be deferred, to regulate the assignment of Board members to cases, 
and otherwise to manage the docket of matters to be decided by the 
Board;
    (D) Evaluate the performance of the Board by making appropriate 
reports and inspections, and take corrective action where needed;
    (E) Adjudicate cases as a Board member; and
    (F) Exercise such other authorities as the Director may provide.
    (ii) The Chairman shall have no authority to direct the result of an 
adjudication assigned to another Board member or to a panel; provided, 
however, that nothing in this section shall be construed to limit the 
management authority of the Chairman under paragraph (a)(2)(i) of this 
section.
    (3) Panels. The Chairman shall divide the Board into three-member 
panels and designate a presiding member of each panel if the Chairman or 
Vice Chairman is not assigned to the panel. The Chairman may from time 
to time make changes in the composition of such panels and of presiding 
members. Each three-member panel shall be empowered to decide cases by 
majority vote, and a majority of the Board members assigned to the panel 
shall constitute a quorum for such panel. In addition, the Chairman 
shall assign any number of Board members, as needed, to serve on the 
screening panel to implement the case management process as provided in 
paragraph (e) of this section.
    (4) Temporary Board members. The Director may in his discretion 
designate immigration judges, retired Board members, retired immigration 
judges, and administrative law judges employed within, or retired from, 
EOIR to act as temporary Board members for terms not to exceed six 
months. In addition, with the approval of the Deputy Attorney General, 
the Director may designate one or more senior EOIR attorneys with at 
least ten years of experience in the field of immigration law to act as 
temporary Board members for terms not to exceed six months. A temporary 
Board member shall have the authority of a Board member to adjudicate 
assigned cases, except that temporary Board members shall not have the 
authority to vote on any matter decided by the Board en banc.
    (5) En banc process. A majority of the permanent Board members shall 
constitute a quorum for purposes of convening the Board en banc. The 
Board may on its own motion by a majority vote of the permanent Board 
members, or by direction of the Chairman, consider any case en banc, or 
reconsider as the Board en banc any case that has been considered or 
decided by a three-member panel. En banc proceedings are not favored, 
and shall ordinarily be ordered only where necessary to address an issue 
of particular importance or to secure or maintain consistency of the 
Board's decisions.
    (6) Board staff. There shall also be attached to the Board such 
number of attorneys and other employees as the Deputy Attorney General, 
upon recommendation of the Director, shall from time to time direct.
    (7) [Reserved]
    (b) Appellate jurisdiction. Appeals may be filed with the Board of 
Immigration Appeals from the following:
    (1) Decisions of Immigration Judges in exclusion cases, as provided 
in 8 CFR part 240, subpart D.
    (2) Decisions of Immigration Judges in deportation cases, as 
provided in 8 CFR part 1240, subpart E, except that no appeal shall lie 
seeking review of a length of a period of voluntary departure granted by 
an Immigration Judge under section 244E of the Act as it existed prior 
to April 1, 1997.
    (3) Decisions of Immigration Judges in removal proceedings, as 
provided in 8 CFR part 1240, except that no appeal shall lie seeking 
review of the length of a period of voluntary departure granted by an 
immigration judge under section 240B of the Act or part 240 of this 
chapter.
    (4) Decisions involving administrative fines and penalties, 
including mitigation thereof, as provided in part 280 of this chapter.
    (5) Decisions on petitions filed in accordance with section 204 of 
the act (except petitions to accord preference classifications under 
section 203(a)(3) or section 203(a)(6) of the act, or a petition on 
behalf of a child described in

[[Page 867]]

section 101(b)(1)(F) of the act), and decisions on requests for 
revalidation and decisions revoking the approval of such petitions, in 
accordance with section 205 of the act, as provided in parts 204 and 
205, respectively, of 8 CFR chapter I or parts 1204 and 1205, 
respectively, of this chapter.
    (6) Decisions on applications for the exercise of the discretionary 
authority contained in section 212(d)(3) of the act as provided in part 
1212 of this chapter.
    (7) Determinations relating to bond, parole, or detention of an 
alien as provided in 8 CFR part 1236, subpart A.
    (8) Decisions of Immigration Judges in rescission of adjustment of 
status cases, as provided in part 1246 of this chapter.
    (9) Decisions of Immigration Judges in asylum proceedings pursuant 
to Sec. 1208.2(b) of this chapter.
    (10) Decisions of Immigration Judges relating to Temporary Protected 
Status as provided in 8 CFR part 1244.
    (11) Decisions on applications from organizations or attorneys 
requesting to be included on a list of free legal services providers and 
decisions on removals therefrom pursuant to Sec. 1003.65.
    (12) Decisions of Immigration Judges on applications for adjustment 
of status referred on a Notice of Certification (Form I-290C) to the 
Immigration Court in accordance with Sec. Sec. 1245.13(n)(2) and 
1245.15(n)(3) of this chapter or remanded to the Immigration Court in 
accordance with Sec. Sec. 1245.13(d)(2) and 1245.15(e)(2) of this 
chapter.
    (13) Decisions of adjudicating officials in practitioner 
disciplinary proceedings as provided in subpart G of this part.
    (14) Decisions of immigration judges regarding custody of aliens 
subject to a final order of removal made pursuant to Sec. 1241.14 of 
this chapter.
    (c) Jurisdiction by certification. The Commissioner, or any other 
duly authorized officer of the Service, any Immigration Judge, or the 
Board may in any case arising under paragraph (b) of this section 
certify such case to the Board. The Board in its discretion may review 
any such case by certification without regard to the provisions of Sec. 
1003.7 if it determines that the parties have already been given a fair 
opportunity to make representations before the Board regarding the case, 
including the opportunity request oral argument and to submit a brief.
    (d) Powers of the Board--(1) Generally. The Board shall function as 
an appellate body charged with the review of those administrative 
adjudications under the Act that the Attorney General may by regulation 
assign to it. The Board shall resolve the questions before it in a 
manner that is timely, impartial, and consistent with the Act and 
regulations. In addition, the Board, through precedent decisions, shall 
provide clear and uniform guidance to the Service, the immigration 
judges, and the general public on the proper interpretation and 
administration of the Act and its implementing regulations.
    (i) The Board shall be governed by the provisions and limitations 
prescribed by applicable law, regulations, and procedures, and by 
decisions of the Attorney General (through review of a decision of the 
Board, by written order, or by determination and ruling pursuant to 
section 103 of the Act).
    (ii) Subject to these governing standards, Board members shall 
exercise their independent judgment and discretion in considering and 
determining the cases coming before the Board, and a panel or Board 
member to whom a case is assigned may take any action consistent with 
their authorities under the Act and the regulations as is appropriate 
and necessary for the disposition of the case.
    (2) Summary dismissal of appeals--(i) Standards. A single Board 
member or panel may summarily dismiss any appeal or portion of any 
appeal in any case in which:
    (A) The party concerned fails to specify the reasons for the appeal 
on Form EOIR-26 or Form EOIR-29 (Notices of Appeal) or other document 
filed therewith;
    (B) The only reason for the appeal specified by the party concerned 
involves a finding of fact or a conclusion of law that was conceded by 
that party at a prior proceeding;
    (C) The appeal is from an order that granted the party concerned the 
relief that had been requested;
    (D) The Board is satisfied, from a review of the record, that the 
appeal is

[[Page 868]]

filed for an improper purpose, such as to cause unnecessary delay, or 
that the appeal lacks an arguable basis in fact or in law unless the 
Board determines that it is supported by a good faith argument for 
extension, modification, or reversal of existing law;
    (E) The party concerned indicates on Form EOIR-26 or Form EOIR-29 
that he or she will file a brief or statement in support of the appeal 
and, thereafter, does not file such brief or statement, or reasonably 
explain his or her failure to do so, within the time set for filing;
    (F) The appeal does not fall within the Board's jurisdiction, or 
lies with the Immigration Judge rather than the Board;
    (G) The appeal is untimely, or barred by an affirmative waiver of 
the right of appeal that is clear on the record; or
    (H) The appeal fails to meet essential statutory or regulatory 
requirements or is expressly excluded by statute or regulation.
    (ii) Action by the Board. The Board's case management screening plan 
shall promptly identify cases that are subject to summary dismissal 
pursuant to this paragraph. An order dismissing any appeal pursuant to 
this paragraph (d)(2) shall constitute the final decision of the Board.
    (iii) Disciplinary consequences. The filing by an attorney or 
representative accredited under Sec. 1292.2(d) of this chapter of an 
appeal that is summarily dismissed under paragraph (d)(2)(i) of this 
section may constitute frivolous behavior under Sec. 1003.102(j). 
Summary dismissal of an appeal under paragraph (d)(2)(i) of this section 
does not limit the other grounds and procedures for disciplinary action 
against attorneys or representatives.
    (3) Scope of review. (i) The Board will not engage in de novo review 
of findings of fact determined by an immigration judge. Facts determined 
by the immigration judge, including findings as to the credibility of 
testimony, shall be reviewed only to determine whether the findings of 
the immigration judge are clearly erroneous.
    (ii) The Board may review questions of law, discretion, and judgment 
and all other issues in appeals from decisions of immigration judges de 
novo.
    (iii) The Board may review all questions arising in appeals from 
decisions issued by Service officers de novo.
    (iv) Except for taking administrative notice of commonly known facts 
such as current events or the contents of official documents, the Board 
will not engage in factfinding in the course of deciding appeals. A 
party asserting that the Board cannot properly resolve an appeal without 
further factfinding must file a motion for remand. If further 
factfinding is needed in a particular case, the Board may remand the 
proceeding to the immigration judge or, as appropriate, to the Service.
    (4) Rules of practice. The Board shall have authority, with the 
approval of the Director, EOIR, to prescribe procedures governing 
proceedings before it.
    (5) Discipline of attorneys and representatives. The Board shall 
determine whether any organization or individual desiring to represent 
aliens in immigration proceedings meets the requirements as set forth in 
Sec. 1292.2 of this chapter. It shall also determine whether any 
organization desiring representation is of a kind described in Sec. 
1.1(j) of this chapter, and shall regulate the conduct of attorneys, 
representatives of organizations, and others who appear in a 
representative capacity before the Board or the Service or any 
immigration judge.
    (6) Identity, law enforcement, or security investigations or 
examinations. (i) The Board shall not issue a decision affirming or 
granting to an alien an immigration status, relief or protection from 
removal, or other immigration benefit, as provided in 8 CFR 1003.47(b), 
that requires completion of identity, law enforcement, or security 
investigations or examinations if:
    (A) Identity, law enforcement, or security investigations or 
examinations have not been completed during the proceedings;
    (B) DHS reports to the Board that the results of prior identity, law 
enforcement, or security investigations or examinations are no longer 
current under the standards established by DHS and must be updated; or
    (C) Identity, law enforcement, or security investigations or 
examinations

[[Page 869]]

have uncovered new information bearing on the merits of the alien's 
application for relief.
    (ii) Except as provided in paragraph (d)(6)(iv) of this section, if 
identity, law enforcement, or security investigations or examinations 
have not been completed or DHS reports that the results of prior 
investigations or examinations are no longer current under the standards 
established by DHS, then the Board will determine the best means to 
facilitate the final disposition of the case, as follows:
    (A) The Board may issue an order remanding the case to the 
immigration judge with instructions to allow DHS to complete or update 
the appropriate identity, law enforcement, or security investigations or 
examinations pursuant to Sec. 1003.47; or
    (B) The Board may provide notice to both parties that in order to 
complete adjudication of the appeal the case is being placed on hold 
until such time as all identity, law enforcement, or security 
investigations or examinations are completed or updated and the results 
have been reported to the Board.
    (iii) In any case placed on hold under paragraph (d)(6)(ii)(B) of 
this section, DHS shall report to the Board promptly when the identity, 
law enforcement, or security investigations or examinations have been 
completed or updated. If DHS obtains relevant information as a result of 
the identity, law enforcement, or security investigations or 
examinations, or if the applicant fails to comply with necessary 
procedures for collecting biometrics or other biographical information, 
DHS may move to remand the record to the immigration judge for 
consideration of whether, in view of the new information or the alien's 
failure to comply, the immigration relief should be denied, either on 
grounds of eligibility or, where applicable, as a matter of discretion.
    (iv) The Board is not required to remand or hold a case pursuant to 
paragraph (d)(6)(ii) of this paragraph if the Board decides to dismiss 
the respondent's appeal or deny the relief sought.
    (v) The immigration relief described in 8 CFR 1003.47(b) and granted 
by the Board shall take effect as provided in 8 CFR 1003.47(i).
    (7) Finality of decision. The decision of the Board shall be final 
except in those cases reviewed by the Attorney General in accordance 
with paragraph (h) of this section. The Board may return a case to the 
Service or an immigration judge for such further action as may be 
appropriate, without entering a final decision on the merits of the 
case.
    (e) Case management system. The Chairman shall establish a case 
management system to screen all cases and to manage the Board's 
caseload. Unless a case meets the standards for assignment to a three-
member panel under paragraph (e)(6) of this section, all cases shall be 
assigned to a single Board member for disposition. The Chairman, under 
the supervision of the Director, shall be responsible for the success of 
the case management system. The Chairman shall designate, from time to 
time, a screening panel comprising a sufficient number of Board members 
who are authorized, acting alone, to adjudicate appeals as provided in 
this paragraph.
    (1) Initial screening. All cases shall be referred to the screening 
panel for review. Appeals subject to summary dismissal as provided in 
paragraph (d)(2) of this section should be promptly dismissed.
    (2) Miscellaneous dispositions. A single Board member may grant an 
unopposed motion or a motion to withdraw an appeal pending before the 
Board. In addition, a single Board member may adjudicate a Service 
motion to remand any appeal from the decision of a Service officer where 
the Service requests that the matter be remanded to the Service for 
further consideration of the appellant's arguments or evidence raised on 
appeal; a case where remand is required because of a defective or 
missing transcript; and other procedural or ministerial issues as 
provided by the case management plan.
    (3) Merits review. In any case that has not been summarily 
dismissed, the case management system shall arrange for the prompt 
completion of the record of proceedings and transcript, and the issuance 
of a briefing schedule. A single Board member assigned under the case 
management system shall determine the appeal on the merits as provided 
in paragraph (e)(4) or (e)(5) of

[[Page 870]]

this section, unless the Board member determines that the case is 
appropriate for review and decision by a three-member panel under the 
standards of paragraph (e)(6) of this section. The Board member may 
summarily dismiss an appeal after completion of the record of 
proceeding.
    (4) Affirmance without opinion. (i) The Board member to whom a case 
is assigned shall affirm the decision of the Service or the immigration 
judge, without opinion, if the Board member determines that the result 
reached in the decision under review was correct; that any errors in the 
decision under review were harmless or nonmaterial; and that
    (A) The issues on appeal are squarely controlled by existing Board 
or federal court precedent and do not involve the application of 
precedent to a novel factual situation; or
    (B) The factual and legal issues raised on appeal are not so 
substantial that the case warrants the issuance of a written opinion in 
the case.
    (ii) If the Board member determines that the decision should be 
affirmed without opinion, the Board shall issue an order that reads as 
follows: ``The Board affirms, without opinion, the result of the 
decision below. The decision below is, therefore, the final agency 
determination. See 8 CFR 3.1(e)(4).'' An order affirming without 
opinion, issued under authority of this provision, shall not include 
further explanation or reasoning. Such an order approves the result 
reached in the decision below; it does not necessarily imply approval of 
all of the reasoning of that decision, but does signify the Board's 
conclusion that any errors in the decision of the immigration judge or 
the Service were harmless or nonmaterial.
    (5) Other decisions on the merits by single Board member. If the 
Board member to whom an appeal is assigned determines, upon 
consideration of the merits, that the decision is not appropriate for 
affirmance without opinion, the Board member shall issue a brief order 
affirming, modifying, or remanding the decision under review, unless the 
Board member designates the case for decision by a three-member panel 
under paragraph (e)(6) of this section under the standards of the case 
management plan. A single Board member may reverse the decision under 
review if such reversal is plainly consistent with and required by 
intervening Board or judicial precedent, by an intervening Act of 
Congress, or by an intervening final regulation. A motion to reconsider 
or to reopen a decision that was rendered by a single Board member may 
be adjudicated by that Board member unless the case is reassigned to a 
three-member panel as provided under the standards of the case 
management plan.
    (6) Panel decisions. Cases may only be assigned for review by a 
three-member panel if the case presents one of these circumstances:
    (i) The need to settle inconsistencies among the rulings of 
different immigration judges;
    (ii) The need to establish a precedent construing the meaning of 
laws, regulations, or procedures;
    (iii) The need to review a decision by an immigration judge or the 
Service that is not in conformity with the law or with applicable 
precedents;
    (iv) The need to resolve a case or controversy of major national 
import;
    (v) The need to review a clearly erroneous factual determination by 
an immigration judge; or
    (vi) The need to reverse the decision of an immigration judge or the 
Service, other than a reversal under Sec. 1003.1(e)(5).
    (7) Oral argument. When an appeal has been taken, a request for oral 
argument if desired shall be included in the Notice of Appeal. A three-
member panel or the Board en banc may hear oral argument, as a matter of 
discretion, at such date and time as is established under the Board's 
case management plan. Oral argument shall be held at the offices of the 
Board unless the Deputy Attorney General or his designee authorizes oral 
argument to be held elsewhere. The Service may be represented before the 
Board by an officer of the Service designated by the Service. No oral 
argument will be allowed in a case that is assigned for disposition by a 
single Board member.
    (8) Timeliness. As provided under the case management system, the 
Board shall promptly enter orders of summary dismissal, or other 
miscellaneous dispositions, in appropriate cases. In

[[Page 871]]

other cases, after completion of the record on appeal, including any 
briefs, motions, or other submissions on appeal, the Board member or 
panel to which the case is assigned shall issue a decision on the merits 
as soon as practicable, with a priority for cases or custody appeals 
involving detained aliens.
    (i) Except in exigent circumstances as determined by the Chairman, 
or as provided in paragraph (d)(6) of this section, the Board shall 
dispose of all appeals assigned to a single Board member within 90 days 
of completion of the record on appeal, or within 180 days after an 
appeal is assigned to a three-member panel (including any additional 
opinion by a member of the panel).
    (ii) In exigent circumstances, the Chairman may grant an extension 
in particular cases of up to 60 days as a matter of discretion. Except 
as provided in paragraph (e)(8)(iii) or (iv) of this section, in those 
cases where the panel is unable to issue a decision within the 
established time limits, as extended, the Chairman shall either assign 
the case to himself or a Vice-Chairman for final decision within 14 days 
or shall refer the case to the Attorney General for decision. If a 
dissenting or concurring panel member fails to complete his or her 
opinion by the end of the extension period, the decision of the majority 
will be issued without the separate opinion.
    (iii) In rare circumstances, when an impending decision by the 
United States Supreme Court or a United States Court of Appeals, or 
impending Department regulatory amendments, or an impending en banc 
Board decision may substantially determine the outcome of a case or 
group of cases pending before the Board, the Chairman may hold the case 
or cases until such decision is rendered, temporarily suspending the 
time limits described in this paragraph (e)(8).
    (iv) For any case ready for adjudication as of September 25, 2002, 
and that has not been completed within the established time lines, the 
Chairman may, as a matter of discretion, grant an extension of up to 120 
days.
    (v) The Chairman shall notify the Director of EOIR and the Attorney 
General if a Board member consistently fails to meet the assigned 
deadlines for the disposition of appeals, or otherwise fails to adhere 
to the standards of the case management system. The Chairman shall also 
prepare a report assessing the timeliness of the disposition of cases by 
each Board member on an annual basis.
    (vi) The provisions of this paragraph (e)(8) establishing time 
limits for the adjudication of appeals reflect an internal management 
directive in favor of timely dispositions, but do not affect the 
validity of any decision issued by the Board and do not, and shall not 
be interpreted to, create any substantive or procedural rights 
enforceable before any immigration judge or the Board, or in any court 
of law or equity.
    (f) Service of Board decisions. The decision of the Board shall be 
in writing and copies thereof shall be transmitted by the Board to the 
Service and a copy shall be served upon the alien or party affected as 
provided in part 292 of this chapter.
    (g) Decisions as precedents. Except as Board decisions may be 
modified or overruled by the Board or the Attorney General, decisions of 
the Board, and decisions of the Attorney General, shall be binding on 
all officers and employees of the Department of Homeland Security or 
immigration judges in the administration of the immigration laws of the 
United States. By majority vote of the permanent Board members, selected 
decisions of the Board rendered by a three-member panel or by the Board 
en banc may be designated to serve as precedents in all proceedings 
involving the same issue or issues. Selected decisions designated by the 
Board, decisions of the Attorney General, and decisions of the Secretary 
of Homeland Security to the extent authorized in paragraph (i) of this 
section, shall serve as precedents in all proceedings involving the same 
issue or issues.
    (h) Referral of cases to the Attorney General. (1) The Board shall 
refer to the Attorney General for review of its decision all cases that:
    (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.

[[Page 872]]

    (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 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.
    (j) Continuation of jurisdiction and procedure. The jurisdiction of, 
and procedures before, the Board of Immigration Appeals in exclusion, 
deportation, removal, rescission, asylum-only, and any other 
proceedings, shall remain in effect as in effect on February 28, 2003, 
until the regulations in this chapter are further modified by the 
Attorney General. Where a decision of an officer of the Immigration and 
Naturalization Service was, before March 1, 2003, appealable to the 
Board or to an immigration judge, or an application denied could be 
renewed in proceedings before an immigration judge, the same authority 
and procedures shall be followed until further modified by the Attorney 
General.

[23 FR 9117, Nov. 26, 1958. Redesignated at 68 FR 9830, Feb. 28, 2003]

    Effective Date Note: At 73 FR 76923, Dec. 18, 2008, Sec. 1003.1 was 
amended by removing from paragraph (d)(5) the citation ``Sec. 1.1(j) of 
this chapter'' and adding in its place the citation ``Sec. 1001.1(j) of 
this chapter'', effective Jan. 20, 2009.

    Editorial Note: For Federal Register citations affecting Sec. 
1003.1, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 1003.2  Reopening or reconsideration before the Board of Immigration 

Appeals.

    (a) General. The Board may at any time reopen or reconsider on its 
own motion any case in which it has rendered a decision. A request to 
reopen or reconsider any case in which a decision has been made by the 
Board, which request is made by the Service, or by the party affected by 
the decision, must be in the form of a written motion to the Board. The 
decision to grant or deny a motion to reopen or reconsider is within the 
discretion of the Board, subject to the restrictions of this section. 
The Board has discretion to deny a motion to reopen even if the party 
moving has made out a prima facie case for relief.
    (b) Motion to reconsider. (1) A motion to reconsider shall state the 
reasons for the motion by specifying the errors of fact or law in the 
prior Board decision and shall be supported by pertinent authority. A 
motion to reconsider a decision rendered by an Immigration Judge or 
Service officer that is pending when an appeal is filed with the Board, 
or that is filed subsequent to the filing with the Board of an appeal 
from the decision sought to be reconsidered, may be deemed a motion to 
remand the decision for further proceedings before the Immigration Judge 
or the Service officer from whose decision the appeal was taken. Such 
motion may be consolidated with, and considered by the Board in 
connection with the appeal to the Board.
    (2) A motion to reconsider a decision must be filed with the Board 
within 30 days after the mailing of the Board decision or on or before 
July 31, 1996, whichever is later. A party may file only one motion to 
reconsider any given decision and may not seek reconsideration of a 
decision denying a previous motion to reconsider. In removal proceedings 
pursuant to section 240 of the Act, an alien may file only one motion to 
reconsider a decision that the alien is removable from the United 
States.

[[Page 873]]

    (3) A motion to reconsider based solely on an argument that the case 
should not have been affirmed without opinion by a single Board Member, 
or by a three-Member panel, is barred.
    (c) Motion to reopen. (1) A motion to reopen proceedings shall state 
the new facts that will be proven at a hearing to be held if the motion 
is granted and shall be supported by affidavits or other evidentiary 
material. A motion to reopen proceedings for the purpose of submitting 
an application for relief must be accompanied by the appropriate 
application for relief and all supporting documentation. A motion to 
reopen proceedings shall not be granted unless it appears to the Board 
that evidence sought to be offered is material and was not available and 
could not have been discovered or presented at the former hearing; nor 
shall any motion to reopen for the purpose of affording the alien an 
opportunity to apply for any form of discretionary relief be granted if 
it appears that the alien's right to apply for such relief was fully 
explained to him or her and an opportunity to apply therefore was 
afforded at the former hearing, unless the relief is sought on the basis 
of circumstances that have arisen subsequent to the hearing. Subject to 
the other requirements and restrictions of this section, and 
notwithstanding the provisions in Sec. 1001.1(p) of this chapter, a 
motion to reopen proceedings for consideration or further consideration 
of an application for relief under section 212(c) of the Act (8 U.S.C. 
1182(c)) may be granted if the alien demonstrates that he or she was 
statutorily eligible for such relief prior to the entry of the 
administratively final order of deportation.
    (2) Except as provided in paragraph (c)(3) of this section, a party 
may file only one motion to reopen deportation or exclusion proceedings 
(whether before the Board or the Immigration Judge) and that motion must 
be filed no later than 90 days after the date on which the final 
administrative decision was rendered in the proceeding sought to be 
reopened, or on or before September 30, 1996, whichever is later. Except 
as provided in paragraph (c)(3) of this section, an alien may file only 
one motion to reopen removal proceedings (whether before the Board or 
the Immigration Judge) and that motion must be filed no later than 90 
days after the date on which the final administrative decision was 
rendered in the proceeding sought to be reopened.
    (3) In removal proceedings pursuant to section 240 of the Act, the 
time limitation set forth in paragraph (c)(2) of this section shall not 
apply to a motion to reopen filed pursuant to the provisions of Sec. 
1003.23(b)(4)(ii). The time and numerical limitations set forth in 
paragraph (c)(2) of this section shall not apply to a motion to reopen 
proceedings:
    (i) Filed pursuant to the provisions of Sec. 
1003.23(b)(4)(iii)(A)(1) or Sec. 1003.23(b)(4)(iii)(A)(2);
    (ii) To apply or reapply for asylum or withholding of deportation 
based on changed circumstances arising in the country of nationality or 
in the country to which deportation has been ordered, if such evidence 
is material and was not available and could not have been discovered or 
presented at the previous hearing;
    (iii) Agreed upon by all parties and jointly filed. Notwithstanding 
such agreement, the parties may contest the issues in a reopened 
proceeding; or
    (iv) Filed by the Service in exclusion or deportation proceedings 
when the basis of the motion is fraud in the original proceeding or a 
crime that would support termination of asylum in accordance with Sec. 
1208.22(f) of this chapter.
    (4) A motion to reopen a decision rendered by an Immigration Judge 
or Service officer that is pending when an appeal is filed, or that is 
filed while an appeal is pending before the Board, may be deemed a 
motion to remand for further proceedings before the Immigration Judge or 
the Service officer from whose decision the appeal was taken. Such 
motion may be consolidated with, and considered by the Board in 
connection with, the appeal to the Board.
    (d) Departure, deportation, or removal. A motion to reopen or a 
motion to reconsider shall not be made by or on behalf of a person who 
is the subject of exclusion, deportation, or removal proceedings 
subsequent to his or her departure from the United States. Any

[[Page 874]]

departure from the United States, including the deportation or removal 
of a person who is the subject of exclusion, deportation, or removal 
proceedings, occurring after the filing of a motion to reopen or a 
motion to reconsider, shall constitute a withdrawal of such motion.
    (e) Judicial proceedings. Motions to reopen or reconsider shall 
state whether the validity of the exclusion, deportation, or removal 
order has been or is the subject of any judicial proceeding and, if so, 
the nature and date thereof, the court in which such proceeding took 
place or is pending, and its result or status. In any case in which an 
exclusion, deportation, or removal order is in effect, any motion to 
reopen or reconsider such order shall include a statement by or on 
behalf of the moving party declaring whether the subject of the order is 
also the subject of any pending criminal proceeding under the Act, and, 
if so, the current status of that proceeding. If a motion to reopen or 
reconsider seeks discretionary relief, the motion shall include a 
statement by or on behalf of the moving party declaring whether the 
alien for whose relief the motion is being filed is subject to any 
pending criminal prosecution and, if so, the nature and current status 
of that prosecution.
    (f) Stay of deportation. Except where a motion is filed pursuant to 
the provisions of Sec. Sec. 1003.23(b)(4)(ii) and 
1003.23(b)(4)(iii)(A), the filing of a motion to reopen or a motion to 
reconsider shall not stay the execution of any decision made in the 
case. Execution of such decision shall proceed unless a stay of 
execution is specifically granted by the Board, the Immigration Judge, 
or an authorized officer of the Service.
    (g) Filing procedures--(1) English language, entry of appearance, 
and proof of service requirements. A motion and any submission made in 
conjunction with a motion must be in English or accompanied by a 
certified English translation. If the moving party, other than the 
Service, is represented, Form EOIR-27, Notice of Entry of Appearance as 
Attorney or Representative Before the Board, must be filed with the 
motion. In all cases, the motion shall include proof of service on the 
opposing party of the motion and all attachments. If the moving party is 
not the Service, service of the motion shall be made upon the Office of 
the District Counsel for the district in which the case was completed 
before the Immigration Judge.
    (2) Distribution of motion papers. (i) A motion to reopen or motion 
to reconsider a decision of the Board pertaining to proceedings before 
an Immigration Judge shall be filed directly with the Board. Such motion 
must be accompanied by a check, money order, or fee waiver request in 
satisfaction of the fee requirements of Sec. 1003.8. The record of 
proceeding pertaining to such a motion shall be forwarded to the Board 
upon the request or order of the Board.
    (ii) A motion to reopen or a motion to reconsider a decision of the 
Board pertaining to a matter initially adjudicated by an officer of the 
Service shall be filed with the officer of the Service having 
administrative control over the record of proceeding.
    (iii) If the motion is made by the Service in proceedings in which 
the Service has administrative control over the record of proceedings, 
the record of proceedings in the case and the motion shall be filed 
directly with the Board. If such motion is filed directly with an office 
of the Service, the entire record of proceeding shall be forwarded to 
the Board by the Service officer promptly upon receipt of the briefs of 
the parties, or upon expiration of the time allowed for the submission 
of such briefs.
    (3) Briefs and response. The moving party may file a brief if it is 
included with the motion. If the motion is filed directly with the Board 
pursuant to paragraph (g)(2)(i) of this section, the opposing party 
shall have 13 days from the date of service of the motion to file a 
brief in opposition to the motion directly with the Board. If the motion 
is filed with an office of the Service pursuant to paragraph (g)(2)(ii) 
of this section, the opposing party shall have 13 days from the date of 
filing of the motion to file a brief in opposition to the motion 
directly with the office of the Service. In all cases, briefs and any 
other filings made in conjunction with a motion shall include proof of 
service on the opposing party. The Board, in

[[Page 875]]

its discretion, may extend the time within which such brief is to be 
submitted and may authorize the filing of a brief directly with the 
Board. A motion shall be deemed unopposed unless a timely response is 
made. The Board may, in its discretion, consider a brief filed out of 
time.
    (h) Oral argument. A request for oral argument, if desired, shall be 
incorporated in the motion to reopen or reconsider. The Board, in its 
discretion, may grant or deny requests for oral argument.
    (i) Ruling on motion. Rulings upon motions to reopen or motions to 
reconsider shall be by written order. Any motion for reconsideration or 
reopening of a decision issued by a single Board member will be referred 
to the screening panel for disposition by a single Board member, unless 
the screening panel member determines, in the exercise of judgment, that 
the motion for reconsideration or reopening should be assigned to a 
three-member panel under the standards of Sec. 1003.1(e)(6). If the 
order directs a reopening and further proceedings are necessary, the 
record shall be returned to the Immigration Court or the officer of the 
Service having administrative control over the place where the reopened 
proceedings are to be conducted. If the motion to reconsider is granted, 
the decision upon such reconsideration shall affirm, modify, or reverse 
the original decision made in the case.

[61 FR 18904, Apr. 29, 1996; 61 FR 32924, June 26, 1996, as amended at 
62 FR 10330, Mar. 6, 1997; 64 FR 56142, Oct. 18, 1999; 67 FR 54904, Aug. 
26, 2002]



Sec. 1003.3  Notice of appeal.

    (a) Filing--(1) Appeal from decision of an immigration judge. A 
party affected by a decision of an immigration judge which may be 
appealed to the Board under this chapter shall be given notice of the 
opportunity for filing an appeal. An appeal from a decision of an 
immigration judge shall be taken by filing a Notice of Appeal from a 
Decision of an Immigration Judge (Form EOIR-26) directly with the Board, 
within the time specified in Sec. 1003.38. The appealing parties are 
only those parties who are covered by the decision of an immigration 
judge and who are specifically named on the Notice of Appeal. The appeal 
must reflect proof of service of a copy of the appeal and all 
attachments on the opposing party. An appeal is not properly filed 
unless it is received at the Board, along with all required documents, 
fees or fee waiver requests, and proof of service, within the time 
specified in the governing sections of this chapter. A Notice of Appeal 
may not be filed by any party who has waived appeal pursuant to Sec. 
1003.39.
    (2) Appeal from decision of a Service officer. A party affected by a 
decision of a Service officer that may be appealed to the Board under 
this chapter shall be given notice of the opportunity to file an appeal. 
An appeal from a decision of a Service officer shall be taken by filing 
a Notice of Appeal to the Board of Immigration Appeals from a Decision 
of an INS Officer (Form EOIR-29) directly with the office of the Service 
having administrative control over the record of proceeding within 30 
days of the service of the decision being appealed. An appeal is not 
properly filed until it is received at the appropriate office of the 
Service, together with all required documents, and the fee provisions of 
Sec. 1003.8 are satisfied.
    (3) General requirements for all appeals. The appeal must be 
accompanied by a check, money order, or fee waiver request in 
satisfaction of the fee requirements of Sec. 1003.8. If the respondent 
or applicant is represented, a Notice of Entry of Appearance as Attorney 
or Representative Before the Board (Form EOIR-27) must be filed with the 
Notice of Appeal. The appeal and all attachments must be in English or 
accompanied by a certified English translation.
    (b) Statement of the basis of appeal. The party taking the appeal 
must identify the reasons for the appeal in the Notice of Appeal (Form 
EOIR-26 or Form EOIR-29) or in any attachments thereto, in order to 
avoid summary dismissal pursuant to Sec. 1003.1(d)(2)(i). The statement 
must specifically identify the findings of fact, the conclusions of law, 
or both, that are being challenged. If a question of law is presented, 
supporting authority must be cited. If the dispute is over the findings 
of fact, the

[[Page 876]]

specific facts contested must be identified. Where the appeal concerns 
discretionary relief, the appellant must state whether the alleged error 
relates to statutory grounds of eligibility or to the exercise of 
discretion and must identify the specific factual and legal finding or 
findings that are being challenged. The appellant must also indicate in 
the Notice of Appeal (Form EOIR-26 or Form EOIR-29) whether he or she 
desires oral argument before the Board and whether he or she will be 
filing a separate written brief or statement in support of the appeal. 
An appellant who asserts that the appeal may warrant review by a three-
member panel under the standards of Sec. 1003.1(e)(6) may identify in 
the Notice of Appeal the specific factual or legal basis for that 
contention.
    (c) Briefs--(1) Appeal from decision of an immigration judge. Briefs 
in support of or in opposition to an appeal from a decision of an 
immigration judge shall be filed directly with the Board. In those cases 
that are transcribed, the briefing schedule shall be set by the Board 
after the transcript is available. In cases involving aliens in custody, 
the parties shall be provided 21 days in which to file simultaneous 
briefs unless a shorter period is specified by the Board, and reply 
briefs shall be permitted only by leave of the Board. In cases involving 
aliens who are not in custody, the appellant shall be provided 21 days 
in which to file a brief, unless a shorter period is specified by the 
Board. The appellee shall have the same period of time in which to file 
a reply brief that was initially granted to the appellant to file his or 
her brief. The time to file a reply brief commences from the date upon 
which the appellant's brief was due, as originally set or extended by 
the Board. The Board, upon written motion, may extend the period for 
filing a brief or a reply brief for up to 90 days for good cause shown. 
In its discretion, the Board may consider a brief that has been filed 
out of time. All briefs, filings, and motions filed in conjunction with 
an appeal shall include proof of service on the opposing party.
    (2) Appeal from decision of a Service officer. Briefs in support of 
or in opposition to an appeal from a decision of a Service officer shall 
be filed directly with the office of the Service having administrative 
control over the file. The alien and the Service shall be provided 21 
days in which to file a brief, unless a shorter period is specified by 
the Service officer from whose decision the appeal is taken, and reply 
briefs shall be permitted only by leave of the Board. Upon written 
request of the alien, the Service officer from whose decision the appeal 
is taken or the Board may extend the period for filing a brief for good 
cause shown. The Board may authorize the filing of briefs directly with 
the Board. In its discretion, the Board may consider a brief that has 
been filed out of time. All briefs and other documents filed in 
conjunction with an appeal, unless filed by an alien directly with a 
Service office, shall include proof of service on the opposing party.
    (d) Effect of certification. The certification of a case, as 
provided in this part, shall not relieve the party affected from 
compliance with the provisions of this section in the event that he or 
she is entitled and desires to appeal from an initial decision, nor 
shall it serve to extend the time specified in the applicable parts of 
this chapter for the taking of an appeal.
    (e) Effect of departure from the United States. Departure from the 
United States of a person who is the subject of deportation proceedings, 
prior to the taking of an appeal from a decision in his or her case, 
shall constitute a waiver of his or her right to appeal.
    (f) Application on effective date. All cases and motions pending on 
September 25, 2002, shall be adjudicated according to the rules in 
effect on or after that date, except that Sec. 1003.1(d)(3)(i) shall 
not apply to appeals filed before September 25, 2002. A party to an 
appeal or motion pending on August 26, 2002, may, until September 25, 
2002, or the expiration of any briefing schedule set by the Board, 
whichever is later, submit a brief or statement limited to explaining 
why the appeal or motion does or does not meet the criteria for three-
member review under Sec. 1003.1(e)(6).

[61 FR 18906, Apr. 29, 1996, as amended at 66 FR 6445, Jan. 22, 2001; 67 
FR 54904, Aug. 26, 2002]

[[Page 877]]



Sec. 1003.4  Withdrawal of appeal.

    In any case in which an appeal has been taken, the party taking the 
appeal may file a written withdrawal thereof with the office at which 
the notice of appeal was filed. If the record in the case has not been 
forwarded to the Board on appeal in accordance with Sec. 1003.5, the 
decision made in the case shall be final to the same extent as if no 
appeal had been taken. If the record has been forwarded on appeal, the 
withdrawal of the appeal shall be forwarded to the Board and, if no 
decision in the case has been made on the appeal, the record shall be 
returned and the initial decision shall be final to the same extent as 
if no appeal had been taken. If a decision on the appeal has been made 
by the Board in the case, further action shall be taken in accordance 
therewith. Departure from the United States of a person who is the 
subject of deportation proceedings subsequent to the taking of an 
appeal, but prior to a decision thereon, shall constitute a withdrawal 
of the appeal, and the initial decision in the case shall be final to 
the same extent as though no appeal had been taken. Departure from the 
United States of a person who is the subject of deportation or removal 
proceedings, except for arriving aliens as defined in Sec. 1001.1(q) of 
this chapter, subsequent to the taking of an appeal, but prior to a 
decision thereon, shall constitute a withdrawal of the appeal, and the 
initial decision in the case shall be final to the same extent as though 
no appeal had been taken.

[61 FR 18907, Apr. 29, 1996, as amended at 62 FR 10331, Mar. 6, 1997]



Sec. 1003.5  Forwarding of record on appeal.

    (a) Appeal from decision of an immigration judge. If an appeal is 
taken from a decision of an immigration judge, the record of proceeding 
shall be forwarded to the Board upon the request or the order of the 
Board. Where transcription of an oral decision is required, the 
immigration judge shall review the transcript and approve the decision 
within 14 days of receipt, or within 7 days after the immigration judge 
returns to his or her duty station if the immigration judge was on leave 
or detailed to another location. The Chairman and the Chief Immigration 
Judge shall determine the most effective and expeditious way to 
transcribe proceedings before the immigration judges, and take such 
steps as necessary to reduce the time required to produce transcripts of 
those proceedings and improve their quality.
    (b) Appeal from decision of a Service officer. If an appeal is taken 
from a decision of a Service officer, the record of proceeding shall be 
forwarded to the Board by the Service officer promptly upon receipt of 
the briefs of the parties, or upon expiration of the time allowed for 
the submission of such briefs. A Service officer need not forward such 
an appeal to the Board, but may reopen and reconsider any decision made 
by the officer if the new decision will grant the benefit that has been 
requested in the appeal. The new decision must be served on the 
appealing party within 45 days of receipt of any briefs or upon 
expiration of the time allowed for the submission of any briefs. If the 
new decision is not served within these time limits or the appealing 
party does not agree that the new decision disposes of the matter, the 
record of proceeding shall be immediately forwarded to the Board.

[61 FR 18907, Apr. 29, 1996, as amended at 67 FR 54905, Aug. 26, 2002]



Sec. 1003.6  Stay of execution of decision.

    (a) Except as provided under Sec. 236.1 of this chapter, Sec. 
1003.19(i), and paragraph (b) of this section, the decision in any 
proceeding under this chapter from which an appeal to the Board may be 
taken shall not be executed during the time allowed for the filing of an 
appeal unless a waiver of the right to appeal is filed, nor shall such 
decision be executed while an appeal is pending or while a case is 
before the Board by way of certification.
    (b) The provisions of paragraph (a) of this section shall not apply 
to an order of an Immigration Judge under Sec. 1003.23 or Sec. 242.22 
of 8 CFR chapter I denying a motion to reopen or reconsider or to stay 
deportation, except where such order expressly grants a stay or where 
the motion was filed pursuant to the provisions of Sec. 
1003.23(b)(4)(iii). The

[[Page 878]]

Board may, in its discretion, stay deportation while an appeal is 
pending from any such order if no stay has been granted by the 
Immigration Judge or a Service officer.
    (c) The following procedures shall be applicable with respect to 
custody appeals in which DHS has invoked an automatic stay pursuant to 8 
CFR 1003.19(i)(2).
    (1) The stay shall lapse if DHS fails to file a notice of appeal 
with the Board within ten business days of the issuance of the order of 
the immigration judge. DHS should identify the appeal as an automatic 
stay case. To preserve the automatic stay, the attorney for DHS shall 
file with the notice of appeal a certification by a senior legal 
official that--
    (i) The official has approved the filing of the notice of appeal 
according to review procedures established by DHS; and
    (ii) The official is satisfied that the contentions justifying the 
continued detention of the alien have evidentiary support, and the legal 
arguments are warranted by existing law or by a non-frivolous argument 
for the extension, modification, or reversal of existing precedent or 
the establishment of new precedent.
    (2) The immigration judge shall prepare a written decision 
explaining the custody determination within five business days after the 
immigration judge is advised that DHS has filed a notice of appeal, or, 
with the approval of the Board in exigent circumstances, as soon as 
practicable thereafter (not to exceed five additional business days). 
The immigration court shall prepare and submit the record of proceedings 
without delay.
    (3) The Board will track the progress of each custody appeal which 
is subject to an automatic stay in order to avoid unnecessary delays in 
completing the record for decision. Each order issued by the Board 
should identify the appeal as an automatic stay case. The Board shall 
notify the parties in a timely manner of the date the automatic stay is 
scheduled to expire.
    (4) If the Board has not acted on the custody appeal, the automatic 
stay shall lapse 90 days after the filing of the notice of appeal. 
However, if the Board grants a motion by the alien for an enlargement of 
the 21-day briefing schedule provided in Sec. 1003.3(c), the Board's 
order shall also toll the 90-day period of the automatic stay for the 
same number of days.
    (5) DHS may seek a discretionary stay pursuant to 8 CFR 
1003.19(i)(1) to stay the immigration judge's order in the event the 
Board does not issue a decision on the custody appeal within the period 
of the automatic stay. DHS may submit a motion for discretionary stay at 
any time after the filing of its notice of appeal of the custody 
decision, and at a reasonable time before the expiration of the period 
of the automatic stay, and the motion may incorporate by reference the 
arguments presented in its brief in support of the need for continued 
detention of the alien during the pendency of the removal proceedings. 
If DHS has submitted such a motion and the Board is unable to resolve 
the custody appeal within the period of the automatic stay, the Board 
will issue an order granting or denying a motion for discretionary stay 
pending its decision on the custody appeal. The Board shall issue 
guidance to ensure prompt adjudication of motions for discretionary 
stays. If the Board fails to adjudicate a previously-filed stay motion 
by the end of the 90-day period, the stay will remain in effect (but not 
more than 30 days) during the time it takes for the Board to decide 
whether or not to grant a discretionary stay.
    (d) If the Board authorizes an alien's release (on bond or 
otherwise), denies a motion for discretionary stay, or fails to act on 
such a motion before the automatic stay period expires, the alien's 
release shall be automatically stayed for five business days. If, within 
that five-day period, the Secretary of Homeland Security or other 
designated official refers the custody case to the Attorney General 
pursuant to 8 CFR 1003.1(h)(1), the alien's release shall continue to be 
stayed pending the Attorney General's consideration of the case. The 
automatic stay will expire 15 business days after the case is referred 
to the Attorney General. DHS may submit a motion and proposed order for 
a discretionary stay in connection with

[[Page 879]]

referring the case to the Attorney General. For purposes of this 
paragraph and 8 CFR 1003.1(h)(1), decisions of the Board shall include 
those cases where the Board fails to act on a motion for discretionary 
stay. The Attorney General may order a discretionary stay pending the 
disposition of any custody case by the Attorney General or by the Board.

[61 FR 18907, Apr. 29, 1996; 61 FR 21065, May 9, 1996, as amended at 63 
FR 27448, May 19, 1998; 71 FR 57884, Oct. 2, 2006]



Sec. 1003.7  Notice of certification.

    Whenever, in accordance with the provisions of Sec. 1003.1(c), a 
case is certified to the Board, the alien or other party affected shall 
be given notice of certification. An Immigration Judge or Service 
officer may certify a case only after an initial decision has been made 
and before an appeal has been taken. If it is known at the time the 
initial decision is rendered that the case will be certified, the notice 
of certification shall be included in such decision and no further 
notice of certification shall be required. If it is not known until 
after the initial decision is rendered that the case will be certified, 
the office of the Service or the Immigration Court having administrative 
control over the record of proceeding shall cause a Notice of 
Certification to be served upon the parties. In either case, the notice 
shall inform the parties that the case is required to be certified to 
the Board and that they have the right to make representations before 
the Board, including the making of a request for oral argument and the 
submission of a brief. If either party desires to submit a brief, it 
shall be submitted to the office of the Service or the Immigration Court 
having administrative control over the record of proceeding for 
transmittal to the Board within the time prescribed in Sec. 1003.3(c). 
The case shall be certified and forwarded to the Board by the office of 
the Service or Immigration Court having administrative jurisdiction over 
the case upon receipt of the brief, or upon the expiration of the time 
within which the brief may be submitted, or upon receipt of a written 
waiver of the right to submit a brief. The Board in its discretion may 
elect to accept for review or not accept for review any such certified 
case. If the Board declines to accept a certified case for review, the 
underlying decision shall become final on the date the Board declined to 
accept the case.

[61 FR 18907, Apr. 29, 1996]



Sec. 1003.8  Fees before the Board.

    (a) Appeals and motions before the Board--(1) When a fee is 
required. Except as provided in paragraph (a)(2) of this section, a 
filing fee prescribed in 8 CFR 1103.7, or a fee waiver request pursuant 
to paragraph (a)(3) of this section, is required in connection with the 
filing of an appeal, a motion to reopen, or a motion to reconsider 
before the Board.
    (2) When a fee is not required. A filing fee is not required in the 
following instances:
    (i) A custody bond appeal filed pursuant to Sec. 1003.1(b)(7);
    (ii) A motion to reopen that is based exclusively on an application 
for relief that does not require a fee;
    (iii) A motion to reconsider that is based exclusively on a prior 
application for relief that did not require a fee;
    (iv) A motion filed while an appeal, a motion to reopen, or a motion 
to reconsider is already pending before the Board;
    (v) A motion requesting only a stay of removal, deportation, or 
exclusion;
    (vi) Any appeal or motion filed by the Department of Homeland 
Security;
    (vii) A motion that is agreed upon by all parties and is jointly 
filed; or
    (viii) An appeal or motion filed under a law, regulation, or 
directive that specifically does not require a filing fee.
    (3) When a fee may be waived. The Board has the discretion to waive 
a fee for an appeal, motion to reconsider, or motion to reopen upon a 
showing that the filing party is unable to pay the fee. Fee waivers 
shall be requested through the filing of a Fee Waiver Request (Form 
EOIR-26A), including the declaration to be signed under penalty of 
perjury substantiating the filing party's inability to pay the fee. The 
fee waiver request shall be filed along with the Notice of Appeal or the 
motion. If the fee waiver request does not establish the inability to 
pay the required

[[Page 880]]

fee, the appeal or motion will not be deemed properly filed.
    (4) Method of payment. When a fee is required for an appeal or 
motion, the fee shall accompany the appeal or motion.
    (i) In general. Except as provided in paragraph (a)(4)(ii) of this 
section, the fee for filing an appeal or motion with the Board shall be 
paid by check, money order, or electronic payment in a manner and form 
authorized by the Executive Office for Immigration Review. When paid by 
check or money order, the fee shall be payable to the ``United States 
Department of Justice,'' drawn on a bank or other institution that is 
located within the United States, and payable in United States currency. 
The check or money order shall bear the full name and alien registration 
number of the alien. A payment that is uncollectible does not satisfy a 
fee requirement.
    (ii) Appeals from Department of Homeland Security decisions. The fee 
for filing an appeal, within the jurisdiction of the Board, from the 
decision of a Department of Homeland Security officer shall be paid to 
the Department of Homeland Security in accordance with 8 CFR 103.7(a).
    (b) Applications for relief. Fees for applications for relief are 
not collected by the Board, but instead are paid to the Department of 
Homeland Security in accordance with 8 CFR 103.7. When a motion before 
the Board is based upon an application for relief, only the fee for the 
motion to reopen shall be paid to the Board, and payment of the fee for 
the application for relief shall not accompany the motion. If the motion 
is granted and proceedings are remanded to the immigration judge, the 
application fee shall be paid in the manner specified in 8 CFR 
1003.24(c)(1).

[69 FR 44906, July 28, 2004]



             Subpart B_Office of the Chief Immigration Judge



    Source: 62 FR 10331, Mar. 6, 1997, unless otherwise noted.



Sec. 1003.9  Office of the Chief Immigration Judge.

    (a) Organization. Within the Executive Office for Immigration 
Review, there shall be an Office of the Chief Immigration Judge (OCIJ), 
consisting of the Chief Immigration Judge, the immigration judges, and 
such other staff as the Director deems necessary. The Attorney General 
shall appoint the Chief Immigration Judge. The Director may designate 
immigration judges to serve as Deputy and Assistant Chief Immigration 
Judges as may be necessary to assist the Chief Immigration Judge in the 
management of the OCIJ.
    (b) Powers of the Chief Immigration Judge. Subject to the 
supervision of the Director, the Chief Immigration Judge shall be 
responsible for the supervision, direction, and scheduling of the 
immigration judges in the conduct of the hearings and duties assigned to 
them. The Chief Immigration Judge shall have the authority to:
    (1) Issue operational instructions and policy, including procedural 
instructions regarding the implementation of new statutory or regulatory 
authorities;
    (2) Provide for appropriate training of the immigration judges and 
other OCIJ staff on the conduct of their powers and duties;
    (3) Direct the conduct of all employees assigned to OCIJ to ensure 
the efficient disposition of all pending cases, including the power, in 
his discretion, to set priorities or time frames for the resolution of 
cases, to direct that the adjudication of certain cases be deferred, to 
regulate the assignment of immigration judges to cases, and otherwise to 
manage the docket of matters to be decided by the immigration judges;
    (4) Evaluate the performance of the Immigration Courts and other 
OCIJ activities by making appropriate reports and inspections, and take 
corrective action where needed;
    (5) Adjudicate cases as an immigration judge; and
    (6) Exercise such other authorities as the Director may provide.
    (c) Limit on the Authority of the Chief Immigration Judge. The Chief 
Immigration Judge shall have no authority to

[[Page 881]]

direct the result of an adjudication assigned to another immigration 
judge, provided, however, that nothing in this part shall be construed 
to limit the authority of the Chief Immigration Judge in paragraph (b) 
of this section.
    (d) Immigration Court. The term Immigration Court shall refer to the 
local sites of the OCIJ where proceedings are held before immigration 
judges and where the records of those proceedings are created and 
maintained.

[72 FR 53677, Sept. 20, 2007]



Sec. 1003.10  Immigration judges.

    (a) Appointment. The immigration judges are attorneys whom the 
Attorney General appoints as administrative judges within the Office of 
the Chief Immigration Judge to conduct specified classes of proceedings, 
including hearings under section 240 of the Act. Immigration judges 
shall act as the Attorney General's delegates in the cases that come 
before them.
    (b) Powers and duties. In conducting hearings under section 240 of 
the Act and such other proceedings the Attorney General may assign to 
them, immigration judges shall exercise the powers and duties delegated 
to them by the Act and by the Attorney General through regulation. In 
deciding the individual cases before them, and subject to the applicable 
governing standards, immigration judges shall exercise their independent 
judgment and discretion and may take any action consistent with their 
authorities under the Act and regulations that is appropriate and 
necessary for the disposition of such cases. Immigration judges shall 
administer oaths, receive evidence, and interrogate, examine, and cross-
examine aliens and any witnesses. Subject to Sec. Sec. 1003.35 and 
1287.4 of this chapter, they may issue administrative subpoenas for the 
attendance of witnesses and the presentation of evidence. In all cases, 
immigration judges shall seek to resolve the questions before them in a 
timely and impartial manner consistent with the Act and regulations.
    (c) Review. Decisions of immigration judges are subject to review by 
the Board of Immigration Appeals in any case in which the Board has 
jurisdiction as provided in 8 CFR 1003.1.
    (d) Governing standards. Immigration judges shall be governed by the 
provisions and limitations prescribed by the Act and this chapter, by 
the decisions of the Board, and by the Attorney General (through review 
of a decision of the Board, by written order, or by determination and 
ruling pursuant to section 103 of the Act).

[72 FR 53677, Sept. 20, 2007]



Sec. 1003.11  Administrative control Immigration Courts.

    An administrative control Immigration Court is one that creates and 
maintains Records of Proceedings for Immigration Courts within an 
assigned geographical area. All documents and correspondence pertaining 
to a Record of Proceeding shall be filed with the Immigration Court 
having administrative control over that Record of Proceeding and shall 
not be filed with any other Immigration Court. A list of the 
administrative control Immigration Courts with their assigned 
geographical areas will be made available to the public at any 
Immigration Court.



             Subpart C_Immigration Court_Rules of Procedure



Sec. 1003.12  Scope of rules.

    These rules are promulgated to assist in the expeditious, fair, and 
proper resolution of matters coming before Immigration Judges. Except 
where specifically stated, the rules in this subpart apply to matters 
before Immigration Judges, including, but not limited to, deportation, 
exclusion, removal, bond, rescission, departure control, asylum 
proceedings, and disciplinary proceedings under this part 3. The sole 
procedures for review of credible fear determinations by Immigration 
Judges are provided for in Sec. 1003.42.

[57 FR 11571, Apr. 6, 1992, as amended at 62 FR 10331, Mar. 6, 1997; 65 
FR 39526, June 27, 2000]



Sec. 1003.13  Definitions.

    As used in this subpart:
    Administrative control means custodial responsibility for the Record 
of Proceeding as specified in Sec. 1003.11.

[[Page 882]]

    Charging document means the written instrument which initiates a 
proceeding before an Immigration Judge. For proceedings initiated prior 
to April 1, 1997, these documents include an Order to Show Cause, a 
Notice to Applicant for Admission Detained for Hearing before 
Immigration Judge, and a Notice of Intention to Rescind and Request for 
Hearing by Alien. For proceedings initiated after April 1, 1997, these 
documents include a Notice to Appear, a Notice of Referral to 
Immigration Judge, and a Notice of Intention to Rescind and Request for 
Hearing by Alien.
    Filing means the actual receipt of a document by the appropriate 
Immigration Court.
    Service means physically presenting or mailing a document to the 
appropriate party or parties; except that an Order to Show Cause or 
Notice of Deportation Hearing shall be served in person to the alien, or 
by certified mail to the alien or the alien's attorney and a Notice to 
Appear or Notice of Removal Hearing shall be served to the alien in 
person, or if personal service is not practicable, shall be served by 
regular mail to the alien or the alien's attorney of record.

[62 FR 10332, Mar. 6, 1997]



Sec. 1003.14  Jurisdiction and commencement of proceedings.

    (a) Jurisdiction vests, and proceedings before an Immigration Judge 
commence, when a charging document is filed with the Immigration Court 
by the Service. The charging document must include a certificate showing 
service on the opposing party pursuant to Sec. 1003.32 which indicates 
the Immigration Court in which the charging document is filed. However, 
no charging document is required to be filed with the Immigration Court 
to commence bond proceedings pursuant to Sec. Sec. 1003.19, 1236.1(d) 
and 1240.2(b) of this chapter.
    (b) When an Immigration Judge has jurisdiction over an underlying 
proceeding, sole jurisdiction over applications for asylum shall lie 
with the Immigration Judge.
    (c) Immigration Judges have jurisdiction to administer the oath of 
allegiance in administrative naturalization ceremonies conducted by the 
Service in accordance with Sec. 1337.2(b) of this chapter.
    (d) The jurisdiction of, and procedures before, immigration judges 
in exclusion, deportation and removal, rescission, asylum-only, and any 
other proceedings shall remain in effect as it was in effect on February 
28, 2003, until the regulations in this chapter are further modified by 
the Attorney General. Where a decision of an officer of the Immigration 
and Naturalization Service was, before March 1, 2003, appealable to the 
Board or an immigration judge, or an application denied could be renewed 
in proceedings before an immigration judge, the same authority and 
procedures shall be followed until further modified by the Attorney 
General.

[57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 62 
FR 10332, Mar. 6, 1997. Redesignated and amended at 68 FR 9830, 9832, 
Feb. 28, 2003]



Sec. 1003.15  Contents of the order to show cause and notice to appear and 

notification of change of address.

    (a) In the Order to Show Cause, the Service shall provide the 
following administrative information to the Executive Office for 
Immigration Review. Omission of any of these items shall not provide the 
alien with any substantive or procedural rights:
    (1) The alien's names and any known aliases;
    (2) The alien's address;
    (3) The alien's registration number, with any lead alien 
registration number with which the alien is associated;
    (4) The alien's alleged nationality and citizenship;
    (5) The language that the alien understands;
    (b) The Order to Show Cause and Notice to Appear must also include 
the following information:
    (1) The nature of the proceedings against the alien;
    (2) The legal authority under which the proceedings are conducted;
    (3) The acts or conduct alleged to be in violation of law;
    (4) The charges against the alien and the statutory provisions 
alleged to have been violated;

[[Page 883]]

    (5) Notice that the alien may be represented, at no cost to the 
government, by counsel or other representative authorized to appear 
pursuant to 8 CFR 1292.1;
    (6) The address of the Immigration Court where the Service will file 
the Order to Show Cause and Notice to Appear; and
    (7) A statement that the alien must advise the Immigration Court 
having administrative control over the Record of Proceeding of his or 
her current address and telephone number and a statement that failure to 
provide such information may result in an in absentia hearing in 
accordance with Sec. 1003.26.
    (c) Contents of the Notice to Appear for removal proceedings. In the 
Notice to Appear for removal proceedings, the Service shall provide the 
following administrative information to the Immigration Court. Failure 
to provide any of these items shall not be construed as affording the 
alien any substantive or procedural rights.
    (1) The alien's names and any known aliases;
    (2) The alien's address;
    (3) The alien's registration number, with any lead alien 
registration number with which the alien is associated;
    (4) The alien's alleged nationality and citizenship; and
    (5) The language that the alien understands.
    (d) Address and telephone number. (1) If the alien's address is not 
provided on the Order to Show Cause or Notice to Appear, or if the 
address on the Order to Show Cause or Notice to Appear is incorrect, the 
alien must provide to the Immigration Court where the charging document 
has been filed, within five days of service of that document, a written 
notice of an address and telephone number at which the alien can be 
contacted. The alien may satisfy this requirement by completing and 
filing Form EOIR-33.
    (2) Within five days of any change of address, the alien must 
provide written notice of the change of address on Form EOIR-33 to the 
Immigration Court where the charging document has been filed, or if 
venue has been changed, to the Immigration Court to which venue has been 
changed.

[57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 62 
FR 10332, Mar. 6, 1997]



Sec. 1003.16  Representation.

    (a) The government may be represented in proceedings before an 
Immigration Judge.
    (b) The alien may be represented in proceedings before an 
Immigration Judge by an attorney or other representative of his or her 
choice in accordance with 8 CFR part 1292, at no expense to the 
government.

[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992, 
as amended at 62 FR 10332, Mar. 6, 1997]



Sec. 1003.17  Appearances.

    (a) In any proceeding before an Immigration Judge in which the alien 
is represented, the attorney or representative shall file a Notice of 
Appearance on Form EOIR-28 with the Immigration Court and shall serve a 
copy of the Notice of Appearance on the Service as required by 8 CFR 
3.32(a). Such Notice of Appearance must be filed and served even if a 
separate Notice of Appearance(s) has previously been filed with the 
Service for appearance(s) before the Service.
    (b) Withdrawal or substitution of an attorney or representative may 
be permitted by an Immigration Judge during proceedings only upon oral 
or written motion submitted without fee.

[57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 62 
FR 10332, Mar. 6, 1997]



Sec. 1003.18  Scheduling of cases.

    (a) The Immigration Court shall be responsible for scheduling cases 
and providing notice to the government and the alien of the time, place, 
and date of hearings.
    (b) In removal proceedings pursuant to section 240 of the Act, the 
Service shall provide in the Notice to Appear, the time, place and date 
of the initial removal hearing, where practicable. If that information 
is not contained in the Notice to Appear, the Immigration Court shall be 
responsible for scheduling the initial removal hearing and

[[Page 884]]

providing notice to the government and the alien of the time, place, and 
date of hearing. In the case of any change or postponement in the time 
and place of such proceeding, the Immigration Court shall provide 
written notice to the alien specifying the new time and place of the 
proceeding and the consequences under section 240(b)(5) of the Act of 
failing, except under exceptional circumstances as defined in section 
240(e)(1) of the Act, to attend such proceeding. No such notice shall be 
required for an alien not in detention if the alien has failed to 
provide the address required in section 239(a)(1)(F) of the Act.

[62 FR 10332, Mar. 6, 1997]



Sec. 1003.19  Custody/bond.

    (a) Custody and bond determinations made by the service pursuant to 
8 CFR part 1236 may be reviewed by an Immigration Judge pursuant to 8 
CFR part 1236.
    (b) Application for an initial bond redetermination by a respondent, 
or his or her attorney or representative, may be made orally, in 
writing, or, at the discretion of the Immigration Judge, by telephone.
    (c) Applications for the exercise of authority to review bond 
determinations shall be made to one of the following offices, in the 
designated order:
    (1) If the respondent is detained, to the Immigration Court having 
jurisdiction over the place of detention;
    (2) To the Immigration Court having administrative control over the 
case; or
    (3) To the Office of the Chief Immigration Judge for designation of 
an appropriate Immigration Court.
    (d) Consideration by the Immigration Judge of an application or 
request of a respondent regarding custody or bond under this section 
shall be separate and apart from, and shall form no part of, any 
deportation or removal hearing or proceeding. The determination of the 
Immigration Judge as to custody status or bond may be based upon any 
information that is available to the Immigration Judge or that is 
presented to him or her by the alien or the Service.
    (e) After an initial bond redetermination, an alien's request for a 
subsequent bond redetermination shall be made in writing and shall be 
considered only upon a showing that the alien's circumstances have 
changed materially since the prior bond redetermination.
    (f) The determination of an Immigration Judge with respect to 
custody status or bond redetermination shall be entered on the 
appropriate form at the time such decision is made and the parties shall 
be informed orally or in writing of the reasons for the decision. An 
appeal from the determination by an Immigration Judge may be taken to 
the Board of Immigration Appeals pursuant to Sec. 1003.38.
    (g) While any proceeding is pending before the Executive Office for 
Immigration Review, the Service shall immediately advise the Immigration 
Court having administrative control over the Record of Proceeding of a 
change in the respondent/applicant's custody location or of release from 
Service custody, or subsequent taking into Service custody, of a 
respondent/applicant. This notification shall be in writing and shall 
state the effective date of the change in custody location or status, 
and the respondent/applicant's current fixed street address, including 
zip code.
    (h)(1)(i) While the Transition Period Custody Rules (TPCR) set forth 
in section 303(b)(3) of Div. C of Pub. L. 104-208 remain in effect, an 
immigration judge may not redetermine conditions of custody imposed by 
the Service with respect to the following classes of aliens:
    (A) Aliens in exclusion proceedings;
    (B) Arriving aliens in removal proceedings, including persons 
paroled after arrival pursuant to section 212(d)(5) of the Act;
    (C) Aliens described in section 237(a)(4) of the Act;
    (D) Aliens subject to section 303(b)(3)(A) of Pub. L. 104-208 who 
are not ``lawfully admitted'' (as defined in Sec. 1236.1(c)(2) of this 
chapter); or
    (E) Aliens designated in Sec. 1236.1(c) of this chapter as 
ineligible to be considered for release.
    (ii) Nothing in this paragraph shall be construed as prohibiting an 
alien from seeking a redetermination of custody conditions by the 
Service in accordance with part 1235 or 1236 of this chapter. In 
addition, with respect to

[[Page 885]]

paragraphs (h)(1)(i)(C), (D), and (E) of this section, nothing in this 
paragraph shall be construed as prohibiting an alien from seeking a 
determination by an immigration judge that the alien is not properly 
included within any of those paragraphs.
    (2)(i) Upon expiration of the Transition Period Custody Rules set 
forth in section 303(b)(3) of Div. C. of Pub. L. 104-208, an immigration 
judge may not redetermine conditions of custody imposed by the Service 
with respect to the following classes of aliens:
    (A) Aliens in exclusion proceedings;
    (B) Arriving aliens in removal proceedings, including aliens paroled 
after arrival pursuant to section 212(d)(5) of the Act;
    (C) Aliens described in section 237(a)(4) of the Act;
    (D) Aliens in removal proceedings subject to section 236(c)(1) of 
the Act (as in effect after expiration of the Transition Period Custody 
Rules); and
    (E) Aliens in deportation proceedings subject to section 242(a)(2) 
of the Act (as in effect prior to April 1, 1997, and as amended by 
section 440(c) of Pub. L. 104-132).
    (ii) Nothing in this paragraph shall be construed as prohibiting an 
alien from seeking a redetermination of custody conditions by the 
Service in accordance with part 1235 or 1236 of this chapter. In 
addition, with respect to paragraphs (h)(2)(i)(C), (D), and (E) of this 
section, nothing in this paragraph shall be construed as prohibiting an 
alien from seeking a determination by an immigration judge that the 
alien is not properly included within any of those paragraphs.
    (3) Except as otherwise provided in paragraph (h)(1) of this 
section, an alien subject to section 303(b)(3)(A) of Div. C of Pub. L. 
104-208 may apply to the Immigration Court, in a manner consistent with 
paragraphs (c)(1) through (c)(3) of this section, for a redetermination 
of custody conditions set by the Service. Such an alien must first 
demonstrate, by clear and convincing evidence, that release would not 
pose a danger to other persons or to property. If an alien meets this 
burden, the alien must further demonstrate, by clear and convincing 
evidence, that the alien is likely to appear for any scheduled 
proceeding or interview.
    (4) Unremovable aliens. A determination of a district director (or 
other official designated by the Commissioner) regarding the exercise of 
authority under section 303(b)(3)(B)(ii) of Div. C. of Pub. L. 104-208 
(concerning release of aliens who cannot be removed because the 
designated country of removal will not accept their return) is final, 
and shall not be subject to redetermination by an immigration judge.
    (i) Stay of custody order pending appeal by the government--(1) 
General discretionary stay authority. The Board of Immigration Appeals 
(Board) has the authority to stay the order of an immigration judge 
redetermining the conditions of custody of an alien when the Department 
of Homeland Security appeals the custody decision or on its own motion. 
DHS is entitled to seek a discretionary stay (whether or not on an 
emergency basis) from the Board in connection with such an appeal at any 
time.
    (2) Automatic stay in certain cases. In any case in which DHS has 
determined that an alien should not be released or has set a bond of 
$10,000 or more, any order of the immigration judge authorizing release 
(on bond or otherwise) shall be stayed upon DHS's filing of a notice of 
intent to appeal the custody redetermination (Form EOIR-43) with the 
immigration court within one business day of the order, and, except as 
otherwise provided in 8 CFR 1003.6(c), shall remain in abeyance pending 
decision of the appeal by the Board. The decision whether or not to file 
Form EOIR-43 is subject to the discretion of the Secretary.

[57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 62 
FR 10332, Mar. 6, 1997; 63 FR 27448, May 19, 1998; 66 FR 54911, Oct. 31, 
2001; 70 FR 4753, Jan. 31, 2005; 71 FR 57884, Oct. 2, 2006]



Sec. 1003.20  Change of venue.

    (a) Venue shall lie at the Immigration Court where jurisdiction 
vests pursuant to Sec. 1003.14.
    (b) The Immigration Judge, for good cause, may change venue only 
upon motion by one of the parties, after the charging document has been 
filed with

[[Page 886]]

the Immigration Court. The Immigration Judge may grant a change of venue 
only after the other party has been given notice and an opportunity to 
respond to the motion to change venue.
    (c) No change of venue shall be granted without identification of a 
fixed street address, including city, state and ZIP code, where the 
respondent/applicant may be reached for further hearing notification.

[57 FR 11572, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 62 
FR 10332, Mar. 6, 1997]



Sec. 1003.21  Pre-hearing conferences and statement.

    (a) Pre-hearing conferences may be scheduled at the discretion of 
the Immigration Judge. The conference may be held to narrow issues, to 
obtain stipulations between the parties, to exchange information 
voluntarily, and otherwise to simplify and organize the proceeding.
    (b) The Immigration Judge may order any party to file a pre-hearing 
statement of position that may include, but is not limited to: A 
statement of facts to which both parties have stipulated, together with 
a statement that the parties have communicated in good faith to 
stipulate to the fullest extent possible; a list of proposed witnesses 
and what they will establish; a list of exhibits, copies of exhibits to 
be introduced, and a statement of the reason for their introduction; the 
estimated time required to present the case; and, a statement of 
unresolved issues involved in the proceedings.
    (c) If submission of a pre-hearing statement is ordered under 
paragraph (b) of this section, an Immigration Judge also may require 
both parties, in writing prior to the hearing, to make any evidentiary 
objections regarding matters contained in the pre-hearing statement. If 
objections in writing are required but not received by the date for 
receipt set by the Immigration Judge, admission of all evidence 
described in the pre-hearing statement shall be deemed unopposed.

[57 FR 11572, Apr. 6, 1992]



Sec. 1003.22  Interpreters.

    Any person acting as an interpreter in a hearing shall swear or 
affirm to interpret and translate accurately, unless the interpreter is 
an employee of the United States Government, in which event no such oath 
or affirmation shall be required.

[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992]



Sec. 1003.23  Reopening or reconsideration before the Immigration Court.

    (a) Pre-decision motions. Unless otherwise permitted by the 
Immigration Judge, motions submitted prior to the final order of an 
Immigration Judge shall be in writing and shall state, with 
particularity the grounds therefore, the relief sought, and the 
jurisdiction. The Immigration Judge may set and extend time limits for 
the making of motions and replies thereto. A motion shall be deemed 
unopposed unless timely response is made.
    (b) Before the Immigration Court--(1) In general. An Immigration 
Judge may upon his or her own motion at any time, or upon motion of the 
Service or the alien, reopen or reconsider any case in which he or she 
has made a decision, unless jurisdiction is vested with the Board of 
Immigration Appeals. Subject to the exceptions in this paragraph and 
paragraph (b)(4), a party may file only one motion to reconsider and one 
motion to reopen proceedings. A motion to reconsider must be filed 
within 30 days of the date of entry of a final administrative order of 
removal, deportation, or exclusion, or on or before July 31, 1996, 
whichever is later. A motion to reopen must be filed within 90 days of 
the date of entry of a final administrative order of removal, 
deportation, or exclusion, or on or before September 30, 1996, whichever 
is later. A motion to reopen or to reconsider shall not be made by or on 
behalf of a person who is the subject of removal, deportation, or 
exclusion proceedings subsequent to his or her departure from the United 
States. Any departure from the United States, including the deportation 
or removal of a person who is the subject of exclusion, deportation, or 
removal proceedings, occurring after the filing of a

[[Page 887]]

motion to reopen or a motion to reconsider shall constitute a withdrawal 
of such motion. The time and numerical limitations set forth in this 
paragraph do not apply to motions by the Service in removal proceedings 
pursuant to section 240 of the Act. Nor shall such limitations apply to 
motions by the Service in exclusion or deportation proceedings, when the 
basis of the motion is fraud in the original proceeding or a crime that 
would support termination of asylum in accordance with Sec. 1208.22(e) 
of this chapter.
    (i) Form and contents of the motion. The motion shall be in writing 
and signed by the affected party or the attorney or representative of 
record, if any. The motion and any submission made in conjunction with 
it must be in English or accompanied by a certified English translation. 
Motions to reopen or reconsider shall state whether the validity of the 
exclusion, deportation, or removal order has been or is the subject of 
any judicial proceeding and, if so, the nature and date thereof, the 
court in which such proceeding took place or is pending, and its result 
or status. In any case in which an exclusion, deportation, or removal 
order is in effect, any motion to reopen or reconsider such order shall 
include a statement by or on behalf of the moving party declaring 
whether the subject of the order is also the subject of any pending 
criminal proceeding under the Act, and, if so, the current status of 
that proceeding.
    (ii) Filing. Motions to reopen or reconsider a decision of an 
Immigration Judge must be filed with the Immigration Court having 
administrative control over the Record of Proceeding. A motion to reopen 
or a motion to reconsider shall include a certificate showing service on 
the opposing party of the motion and all attachments. If the moving 
party is not the Service, service of the motion shall be made upon the 
Office of the District Counsel for the district in which the case was 
completed. If the moving party, other than the Service, is represented, 
a Form EOIR-28, Notice of Appearance as Attorney or Representative 
Before an Immigration Judge must be filed with the motion. The motion 
must be filed in duplicate with the Immigration Court, accompanied by a 
fee receipt.
    (iii) Assignment to an Immigration Judge. If the Immigration Judge 
is unavailable or unable to adjudicate the motion to reopen or 
reconsider, the Chief Immigration Judge or his or her delegate shall 
reassign such motion to another Immigration Judge.
    (iv) Replies to motions; decision. The Immigration Judge may set and 
extend time limits for replies to motions to reopen or reconsider. A 
motion shall be deemed unopposed unless timely response is made. The 
decision to grant or deny a motion to reopen or a motion to reconsider 
is within the discretion of the Immigration Judge.
    (v) Stays. Except in cases involving in absentia orders, the filing 
of a motion to reopen or a motion to reconsider shall not stay the 
execution of any decision made in the case. Execution of such decision 
shall proceed unless a stay of execution is specifically granted by the 
Immigration Judge, the Board, or an authorized officer of the Service.
    (2) Motion to reconsider. A motion to reconsider shall state the 
reasons for the motion by specifying the errors of fact or law in the 
Immigration Judge's prior decision and shall be supported by pertinent 
authority. Such motion may not seek reconsideration of a decision 
denying previous motion to reconsider.
    (3) Motion to reopen. A motion to reopen proceedings shall state the 
new facts that will be proven at a hearing to be held if the motion is 
granted and shall be supported by affidavits and other evidentiary 
material. Any motion to reopen for the purpose of acting on an 
application for relief must be accompanied by the appropriate 
application for relief and all supporting documents. A motion to reopen 
will not be granted unless the Immigration Judge is satisfied that 
evidence sought to be offered is material and was not available and 
could not have been discovered or presented at the former hearing. A 
motion to reopen for the purpose of providing the alien an opportunity 
to apply for any form of discretionary relief will not be granted if it 
appears that the alien's right to apply for such relief was fully 
explained to him or her

[[Page 888]]

by the Immigration Judge and an opportunity to apply therefore was 
afforded at the hearing, unless the relief is sought on the basis of 
circumstances that have arisen subsequent to the hearing. Pursuant to 
section 240A(d)(1) of the Act, a motion to reopen proceedings for 
consideration or further consideration of an application for relief 
under section 240A(a) (cancellation of removal for certain permanent 
residents) or 240A(b) (cancellation of removal and adjustment of status 
for certain nonpermanent residents) may be granted only if the alien 
demonstrates that he or she was statutorily eligible for such relief 
prior to the service of a notice to appear, or prior to the commission 
of an offense referred to in section 212(a)(2) of the Act that renders 
the alien inadmissible or removable under sections 237(a)(2) of the Act 
or (a)(4), whichever is earliest. The Immigration Judge has discretion 
to deny a motion to reopen even if the moving party has established a 
prima facie case for relief.
    (4) Exceptions to filing deadlines--(i) Asylum and withholding of 
removal. The time and numerical limitations set forth in paragraph 
(b)(1) of this section shall not apply if the basis of the motion is to 
apply for asylum under section 208 of the Act or withholding of removal 
under section 241(b)(3) of the Act or withholding of removal under the 
Convention Against Torture, and is based on changed country conditions 
arising in the country of nationality or the country to which removal 
has been ordered, if such evidence is material and was not available and 
could not have been discovered or presented at the previous proceeding. 
The filing of a motion to reopen under this section shall not 
automatically stay the removal of the alien. However, the alien may 
request a stay and, if granted by the Immigration Judge, the alien shall 
not be removed pending disposition of the motion by the Immigration 
Judge. If the original asylum application was denied based upon a 
finding that it was frivolous, then the alien is ineligible to file 
either a motion to reopen or reconsider, or for a stay of removal.
    (ii) Order entered in absentia or removal proceedings. An order of 
removal entered in absentia or in removal proceedings pursuant to 
section 240(b)(5) of the Act may be rescinded only upon a motion to 
reopen filed within 180 days after the date of the order of removal, if 
the alien demonstrates that the failure to appear was because of 
exceptional circumstances as defined in section 240(e)(1) of the Act. An 
order entered in absentia pursuant to section 240(b)(5) may be rescinded 
upon a motion to reopen filed at any time if the alien demonstrates that 
he or she did not receive notice in accordance with sections 239(a)(1) 
or (2) of the Act, or the alien demonstrates that he or she was in 
Federal or state custody and the failure to appear was through no fault 
of the alien. However, in accordance with section 240(b)(5)(B) of the 
Act, no written notice of a change in time or place of proceeding shall 
be required if the alien has failed to provide the address required 
under section 239(a)(1)(F) of the Act. The filing of a motion under this 
paragraph shall stay the removal of the alien pending disposition of the 
motion by the Immigration Judge. An alien may file only one motion 
pursuant to this paragraph.
    (iii) Order entered in absentia in deportation or exclusion 
proceedings. (A) An order entered in absentia in deportation proceedings 
may be rescinded only upon a motion to reopen filed:
    (1) Within 180 days after the date of the order of deportation if 
the alien demonstrates that the failure to appear was because of 
exceptional circumstances beyond the control of the alien (e.g., serious 
illness of the alien or serious illness or death of an immediate 
relative of the alien, but not including less compelling circumstances); 
or
    (2) At any time if the alien demonstrates that he or she did not 
receive notice or if the alien demonstrates that he or she was in 
federal or state custody and the failure to appear was through no fault 
of the alien.
    (B) A motion to reopen exclusion hearings on the basis that the 
Immigration Judge improperly entered an order of exclusion in absentia 
must be supported by evidence that the alien had reasonable cause for 
his failure to appear.
    (C) The filing of a motion to reopen under paragraph (b)(4)(iii)(A) 
of this

[[Page 889]]

section shall stay the deportation of the alien pending decision on the 
motion and the adjudication of any properly filed administrative appeal.
    (D) The time and numerical limitations set forth in paragraph (b)(1) 
of this section shall not apply to a motion to reopen filed pursuant to 
the provisions of paragraph (b)(4)(iii)(A) of this section.
    (iv) Jointly filed motions. The time and numerical limitations set 
forth in paragraph (b)(1) of this section shall not apply to a motion to 
reopen agreed upon by all parties and jointly filed.

[52 FR 2936, Jan. 29, 1987, as amended at 55 FR 30680, July 27, 1990. 
Redesignated at 57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, 
June 30, 1995; 61 FR 18908, Apr. 29, 1996; 61 FR 19976, May 3, 1996; 61 
FR 21228, May 9, 1996; 62 FR 10332, Mar. 6, 1997; 62 FR 15362, Apr. 1, 
1997; 62 FR 17048, Apr. 9, 1997; 64 FR 8487, Feb. 19, 1999]



Sec. 1003.24  Fees pertaining to matters within the jurisdiction of an 

immigration judge.

    (a) Generally. All fees for the filing of motions and applications 
in connection with proceedings before the immigration judges are paid to 
the Department of Homeland Security in accordance with 8 CFR 103.7, 
including fees for applications published by the Executive Office for 
Immigration Review. The immigration court does not collect fees.
    (b) Motions to reopen or reconsider--(1) When a fee is required. 
Except as provided in paragraph (b)(2) of this section, a filing fee 
prescribed in 8 CFR 1103.7, or a fee waiver request pursuant to 
paragraph (d) of this section, is required in connection with the filing 
of a motion to reopen or a motion to reconsider.
    (2) When a fee is not required. A filing fee is not required in the 
following instances:
    (i) A motion to reopen that is based exclusively on an application 
for relief that does not require a fee;
    (ii) A motion to reconsider that is based exclusively on a prior 
application for relief that did not require a fee;
    (iii) A motion filed while proceedings are already pending before 
the immigration court;
    (iv) A motion requesting only a stay of removal, deportation, or 
exclusion;
    (v) A motion to reopen a deportation or removal order entered in 
absentia if the motion is filed pursuant to section 242B(c)(3)(B) of the 
Act (8 U.S.C. 1252b(c)(3)(B)), as it existed prior to April 1, 1997, or 
section 240(b)(5)(C)(ii) of the Act (8 U.S.C. 1229a(b)(5)(C)(ii)), as 
amended;
    (vi) Any motion filed by the Department of Homeland Security;
    (vii) A motion that is agreed upon by all parties and is jointly 
filed; or
    (viii) A motion filed under a law, regulation, or directive that 
specifically does not require a filing fee.
    (c) Applications for relief--(1) When filed during proceedings. When 
an application for relief is filed during the course of proceedings, the 
fee for that application must be paid in advance to the Department of 
Homeland Security in accordance with 8 CFR 103.7. The fee receipt must 
accompany the application when it is filed with the immigration court.
    (2) When submitted with a motion to reopen. When a motion to reopen 
is based upon an application for relief, the fee for the motion to 
reopen shall be paid to the Department of Homeland Security and the fee 
receipt shall accompany the motion. Payment of the fee for the 
application for relief must be paid to the Department of Homeland 
Security within the time specified by the immigration judge.
    (d) Fee waivers. The immigration judge has the discretion to waive a 
fee for a motion or application for relief upon a showing that the 
filing party is unable to pay the fee. The request for a fee waiver must 
be accompanied by a properly executed affidavit or unsworn declaration 
made pursuant to 28 U.S.C. 1746 substantiating the filing party's 
inability to pay the fee. If the request for a fee waiver is denied, the 
application or motion will not be deemed properly filed.

[69 FR 44906, July 28, 2004]



Sec. 1003.25  Form of the proceeding.

    (a) Waiver of presence of the parties. The Immigration Judge may, 
for good cause, and consistent with section 240(b) of the Act, waive the 
presence of the alien at a hearing when the alien is represented or when 
the alien is a

[[Page 890]]

minor child at least one of whose parents or whose legal guardian is 
present. When it is impracticable by reason of an alien's mental 
incompetency for the alien to be present, the presence of the alien may 
be waived provided that the alien is represented at the hearing by an 
attorney or legal representative, a near relative, legal guardian, or 
friend.
    (b) Stipulated request for order; waiver of hearing. An Immigration 
Judge may enter an order of deportation, exclusion or removal stipulated 
to by the alien (or the alien's representative) and the Service. The 
Immigration Judge may enter such an order without a hearing and in the 
absence of the parties based on a review of the charging document, the 
written stipulation, and supporting documents, if any. If the alien is 
unrepresented, the Immigration Judge must determine that the alien's 
waiver is voluntary, knowing, and intelligent. The stipulated request 
and required waivers shall be signed on behalf of the government and by 
the alien and his or her attorney or representative, if any. The 
attorney or representative shall file a Notice of Appearance in 
accordance with Sec. 1003.16(b). A stipulated order shall constitute a 
conclusive determination of the alien's deportability or removability 
from the United States. The stipulation shall include:
    (1) An admission that all factual allegations contained in the 
charging document are true and correct as written;
    (2) A concession of deportability or inadmissibility as charged;
    (3) A statement that the alien makes no application for relief under 
the Act;
    (4) A designation of a country for deportation or removal under 
section 241(b)(2)(A)(i) of the Act;
    (5) A concession to the introduction of the written stipulation of 
the alien as an exhibit to the Record of Proceeding;
    (6) A statement that the alien understands the consequences of the 
stipulated request and that the alien enters the request voluntarily, 
knowingly, and intelligently;
    (7) A statement that the alien will accept a written order for his 
or her deportation, exclusion or removal as a final disposition of the 
proceedings; and
    (8) A waiver of appeal of the written order of deportation or 
removal.
    (c) Telephonic or video hearings. An Immigration Judge may conduct 
hearings through video conference to the same extent as he or she may 
conduct hearings in person. An Immigration Judge may also conduct a 
hearing through a telephone conference, but an evidentiary hearing on 
the merits may only be conducted through a telephone conference with the 
consent of the alien involved after the alien has been advised of the 
right to proceed in person or, where available, through a video 
conference, except that credible fear determinations may be reviewed by 
the Immigration Judge through a telephone conference without the consent 
of the alien.

[62 FR 10334, Mar. 6, 1997]



Sec. 1003.26  In absentia hearings.

    (a) In any exclusion proceeding before an Immigration Judge in which 
the applicant fails to appear, the Immigration Judge shall conduct an in 
absentia hearing if the Immigration Judge is satisfied that notice of 
the time and place of the proceeding was provided to the applicant on 
the record at a prior hearing or by written notice to the applicant or 
to the applicant's counsel of record on the charging document or at the 
most recent address in the Record of Proceeding.
    (b) In any deportation proceeding before an Immigration Judge in 
which the respondent fails to appear, the Immigration Judge shall order 
the respondent deported in absentia if: (1) The Service establishes by 
clear, unequivocal and convincing evidence that the respondent is 
deportable; and (2) the Immigration Judge is satisfied that written 
notice of the time and place of the proceedings and written notice of 
the consequences of failure to appear, as set forth in section 242B(c) 
of the Act (8 U.S.C. 1252b(c)), were provided to the respondent in 
person or were provided to the respondent or the respondent's counsel of 
record, if any, by certified mail.
    (c) In any removal proceeding before an Immigration Judge in which 
the alien fails to appear, the Immigration Judge shall order the alien 
removed in absentia if:

[[Page 891]]

    (1) The Service establishes by clear, unequivocal, and convincing 
evidence that the alien is removable; and
    (2) The Service establishes by clear, unequivocal, and convincing 
evidence that written notice of the time and place of proceedings and 
written notice of the consequences of failure to appear were provided to 
the alien or the alien's counsel of record.
    (d) Written notice to the alien shall be considered sufficient for 
purposes of this section if it was provided at the most recent address 
provided by the alien. If the respondent fails to provide his or her 
address as required under Sec. 1003.15(d), no written notice shall be 
required for an Immigration Judge to proceed with an in absentia 
hearing. This paragraph shall not apply in the event that the 
Immigration Judge waives the appearance of an alien under Sec. 1003.25.

[59 FR 1899, Jan. 13, 1994, as amended at 62 FR 10334, Mar. 6, 1997; 62 
FR 15362, Apr. 1, 1997]



Sec. 1003.27  Public access to hearings.

    All hearings, other than exclusion hearings, shall be open to the 
public except that:
    (a) Depending upon physical facilities, the Immigration Judge may 
place reasonable limitations upon the number in attendance at any one 
time with priority being given to the press over the general public;
    (b) For the purpose of protecting witnesses, parties, or the public 
interest, the Immigration Judge may limit attendance or hold a closed 
hearing.
    (c) In any proceeding before an Immigration Judge concerning an 
abused alien spouse, the hearing and the Record of Proceeding shall be 
closed to the public unless the abused spouse agrees that the hearing 
and the Record of Proceeding shall be open to the public. In any 
proceeding before an Immigration Judge concerning an abused alien child, 
the hearing and the Record of Proceeding shall be closed to the public.
    (d) Proceedings before an Immigration Judge shall be closed to the 
public if information subject to a protective order under Sec. 1003.46, 
which has been filed under seal pursuant to Sec. 1003.31(d), may be 
considered.

[52 FR 2936, Jan. 29, 1987. Redesignated and amended at 57 FR 11571, 
11572, Apr. 6, 1992; 62 FR 10334, Mar. 6, 1997; 67 FR 36802, May 28, 
2002]



Sec. 1003.28  Recording equipment.

    The only recording equipment permitted in the proceeding will be the 
equipment used by the Immigration Judge to create the official record. 
No other photographic, video, electronic, or similar recording device 
will be permitted to record any part of the proceeding.

[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992]



Sec. 1003.29  Continuances.

    The Immigration Judge may grant a motion for continuance for good 
cause shown.

[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992]



Sec. 1003.30  Additional charges in deportation or removal hearings.

    At any time during deportation or removal proceedings, additional or 
substituted charges of deportability and/or factual allegations may be 
lodged by the Service in writing. The alien shall be served with a copy 
of these additional charges and/or allegations and the Immigration Judge 
shall read them to the alien. The Immigration Judge shall advise the 
alien, if he or she is not represented by counsel, that the alien may be 
so represented. The alien may be given a reasonable continuance to 
respond to the additional factual allegations and charges. Thereafter, 
the provision of Sec. 1240.10(b) of this chapter relating to pleading 
shall apply to the additional factual allegations and charges.

[62 FR 10335, Mar. 6, 1997]



Sec. 1003.31  Filing documents and applications.

    (a) All documents and applications that are to be considered in a 
proceeding before an Immigration Judge must be filed with the 
Immigration Court having administrative control over the Record of 
Proceeding.

[[Page 892]]

    (b) Except as provided in 8 CFR 1240.11(f), all documents or 
applications requiring the payment of a fee must be accompanied by a fee 
receipt from the Service or by an application for a waiver of fees 
pursuant to 8 CFR 3.24. Except as provided in Sec. 1003.8(a) and (c), 
any fee relating to Immigration Judge proceedings shall be paid to, and 
accepted by, any Service office authorized to accept fees for other 
purposes pursuant to Sec. 1103.7(a) of this chapter.
    (c) The Immigration Judge may set and extend time limits for the 
filing of applications and related documents and responses thereto, if 
any. If an application or document is not filed within the time set by 
the Immigration Judge, the opportunity to file that application or 
document shall be deemed waived.
    (d) The Service may file documents under seal by including a cover 
sheet identifying the contents of the submission as containing 
information which is being filed under seal. Documents filed under seal 
shall not be examined by any person except pursuant to authorized access 
to the administrative record.

[57 FR 11572, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 61 
FR 18908, Apr. 29, 1996; 61 FR 19976, May 3, 1996; 61 FR 21228, May 9, 
1996; 61 FR 46374, Sept. 3, 1996; 62 FR 45149, Aug. 26, 1997; 67 FR 
36802, May 28, 2002]



Sec. 1003.32  Service and size of documents.

    (a) Except in in absentia hearings, a copy of all documents 
(including proposed exhibits or applications) filed with or presented to 
the Immigration Judge shall be simultaneously served by the presenting 
party on the opposing party or parties. Such service shall be in person 
or by first class mail to the most recent address contained in the 
Record of Proceeding. A certification showing service on the opposing 
party or parties on a date certain shall accompany any filing with the 
Immigration Judge unless service is made on the record during the 
hearing. Any documents or applications not containing such certification 
will not be considered by the Immigration Judge unless service is made 
on the record during a hearing.
    (b) Unless otherwise permitted by the Immigration Judge, all written 
material presented to Immigration Judges including offers of evidence, 
correspondence, briefs, memoranda, or other documents must be submitted 
on 8\1/2\x11 size paper. The Immigration Judge may 
require that exhibits and other written material presented be indexed, 
paginated, and that a table of contents be provided.

[52 FR 2936, Jan. 29, 1987. Redesignated and amended at 57 FR 11571, 
11572, Apr. 6, 1992]



Sec. 1003.33  Translation of documents.

    Any foreign language document offered by a party in a proceeding 
shall be accompanied by an English language translation and a 
certification signed by the translator that must be printed legibly or 
typed. Such certification must include a statement that the translator 
is competent to translate the document, and that the translation is true 
and accurate to the best of the translator's abilities.

[59 FR 1900, Jan. 13, 1994]



Sec. 1003.34  Testimony.

    Testimony of witnesses appearing at the hearing shall be under oath 
or affirmation.

[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992]



Sec. 1003.35  Depositions and subpoenas.

    (a) Depositions. If an Immigration Judge is satisfied that a witness 
is not reasonably available at the place of hearing and that said 
witness' testimony or other evidence is essential, the Immigration Judge 
may order the taking of deposition either at his or her own instance or 
upon application of a party. Such order shall designate the official by 
whom the deposition shall be taken, may prescribe and limit the content, 
scope, or manner of taking the deposition, and may direct the production 
of documentary evidence.
    (b) Subpoenas issued subsequent to commencement of proceedings--(1) 
General. In any proceeding before an Immigration Judge, other than under 
8 CFR part 335, the Immigration Judge shall have exclusive jurisdiction 
to issue subpoenas requiring the attendance of witnesses or for the 
production of

[[Page 893]]

books, papers and other documentary evidence, or both. An Immigration 
Judge may issue a subpoena upon his or her own volition or upon 
application of the Service or the alien.
    (2) Application for subpoena. A party applying for a subpoena shall 
be required, as a condition precedent to its issuance, to state in 
writing or at the proceeding, what he or she expects to prove by such 
witnesses or documentary evidence, and to show affirmatively that he or 
she has made diligent effort, without success, to produce the same.
    (3) Issuance of subpoena. Upon being satisfied that a witness will 
not appear and testify or produce documentary evidence and that the 
witness' evidence is essential, the Immigration Judge shall issue a 
subpoena. The subpoena shall state the title of the proceeding and shall 
command the person to whom it is directed to attend and to give 
testimony at a time and place specified. The subpoena may also command 
the person to whom it is directed to produce the books, papers, or 
documents specified in the subpoena.
    (4) Appearance of witness. If the witness is at a distance of more 
than 100 miles from the place of the proceeding, the subpoena shall 
provide for the witness' appearance at the Immigration Court nearest to 
the witness to respond to oral or written interrogatories, unless there 
is no objection by any party to the witness' appearance at the 
proceeding.
    (5) Service. A subpoena issued under this section may be served by 
any person over 18 years of age not a party to the case.
    (6) Invoking aid of court. If a witness neglects or refuses to 
appear and testify as directed by the subpoena served upon him or her in 
accordance with the provisions of this section, the Immigration Judge 
issuing the subpoena shall request the United States Attorney for the 
district in which the subpoena was issued to report such neglect or 
refusal to the United States District Court and to request such court to 
issue an order requiring the witness to appear and testify and to 
produce the books, papers or documents designated in the subpoena.

[62 FR 10335, Mar. 6, 1997]



Sec. 1003.36  Record of proceeding.

    The Immigration Court shall create and control the Record of 
Proceeding.

[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992, 
as amended at 60 FR 34089, June 30, 1995]



Sec. 1003.37  Decisions.

    (a) A decision of the Immigration Judge may be rendered orally or in 
writing. If the decision is oral, it shall be stated by the Immigration 
Judge in the presence of the parties and a memorandum summarizing the 
oral decision shall be served on the parties. If the decision is in 
writing, it shall be served on the parties by first class mail to the 
most recent address contained in the Record of Proceeding or by personal 
service.
    (b) A written copy of the decision will not be sent to an alien who 
has failed to provide a written record of an address.

[57 FR 11573, Apr. 6, 1992, as amended at 59 FR 1900, Jan. 13, 1994]



Sec. 1003.38  Appeals.

    (a) Decisions of Immigration Judges may be appealed to the Board of 
Immigration Appeals as authorized by 8 CFR 3.1(b).
    (b) The Notice of Appeal to the Board of Immigration Appeals of 
Decision of Immigration Judge (Form EOIR-26) shall be filed directly 
with the Board of Immigration Appeals within 30 calendar days after the 
stating of an Immigration Judge's oral decision or the mailing of an 
Immigration Judge's written decision. If the final date for filing falls 
on a Saturday, Sunday, or legal holiday, this appeal time shall be 
extended to the next business day. A Notice of Appeal (Form EOIR-26) may 
not be filed by any party who has waived appeal.
    (c) The date of filing of the Notice of Appeal (Form EOIR-26) shall 
be the date the Notice is received by the Board.
    (d) A Notice of Appeal (Form EOIR-26) must be accompanied by the 
appropriate fee or by an Appeal Fee Waiver Request (Form EOIR-26A). If 
the fee is not paid or the Appeal Fee Waiver Request (Form EOIR-26A) is 
not filed

[[Page 894]]

within the specified time period indicated in paragraph(b) of this 
section, the appeal will not be deemed properly filed and the decision 
of the Immigration Judge shall be final to the same extent as though no 
appeal had been taken.
    (e) Within five working days of any change of address, an alien must 
provide written notice of the change of address on Form EOIR-33 to the 
Board. Where a party is represented, the representative should also 
provide to the Board written notice of any change in the 
representative's business mailing address.
    (f) Briefs may be filed by both parties pursuant to 8 CFR 3.3(c).
    (g) In any proceeding before the Board wherein the respondent/
applicant is represented, the attorney or representative shall file a 
notice of appearance on the appropriate form. Withdrawal or substitution 
of an attorney or representative may be permitted by the Board during 
proceedings only upon written motion submitted without fee.

[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992, 
as amended at 60 FR 34089, June 30, 1995; 61 FR 18908, Apr. 29, 1996]



Sec. 1003.39  Finality of decision.

    Except when certified to the Board, the decision of the Immigration 
Judge becomes final upon waiver of appeal or upon expiration of the time 
to appeal if no appeal is taken whichever occurs first.

[52 FR 2936, Jan. 29, 1987. Redesignated and amended at 57 FR 11571, 
11573, Apr. 6, 1992]



Sec. 1003.40  Local operating procedures.

    An Immigration Court having administrative control over Records of 
Proceedings may establish local operating procedures, provided that:
    (a) Such operating procedure(s) shall not be inconsistent with any 
provision of this chapter;
    (b) A majority of the judges of the local Immigration Court shall 
concur in writing therein; and
    (c) The Chief Immigration Judge has approved the proposed operating 
procedure(s) in writing.

[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992, 
as amended at 60 FR 34090, June 30, 1995]



Sec. 1003.41  Evidence of criminal conviction.

    In any proceeding before an Immigration Judge,
    (a) Any of the following documents or records shall be admissible as 
evidence in proving a criminal conviction:
    (1) A record of judgment and conviction;
    (2) A record of plea, verdict and sentence;
    (3) A docket entry from court records that indicates the existence 
of a conviction;
    (4) Minutes of a court proceeding or a transcript of a hearing that 
indicates the existence of a conviction;
    (5) An abstract of a record of conviction prepared by the court in 
which the conviction was entered, or by a state official associated with 
the state's repository of criminal justice records, that indicates the 
following: The charge or section of law violated, the disposition of the 
case, the existence and date of conviction, and the sentence;
    (6) Any document or record prepared by, or under the direction of, 
the court in which the conviction was entered that indicates the 
existence of a conviction.
    (b) Any document or record of the types specified in paragraph (a) 
of this section may be submitted if it complies with the requirement of 
Sec. 287.6(a) of this chapter, or a copy of any such document or record 
may be submitted if it is attested in writing by an immigration officer 
to be a true and correct copy of the original.
    (c) Any record of conviction or abstract that has been submitted by 
electronic means to the Service from a state or court shall be 
admissible as evidence to prove a criminal conviction if it:
    (1) Is certified by a state official associated with the state's 
repository of criminal justice records as an official record from its 
repository or by a court

[[Page 895]]

official from the court in which conviction was entered as an official 
record from its repository. Such certification may be by means of a 
computer-generated signature and statement of authenticity; and,
    (2) Is certified in writing by a Service official as having been 
received electronically from the state's record repository or the 
court's record repository.
    (d) Any other evidence that reasonably indicates the existence of a 
criminal conviction may be admissible as evidence thereof.

[58 FR 38953, July 21, 1993]



Sec. 1003.42  Review of credible fear determination.

    (a) Referral. Jurisdiction for an Immigration Judge to review an 
adverse credible fear finding by an asylum officer pursuant to section 
235(b)(1)(B) of the Act shall commence with the filing by the Service of 
Form I-863, Notice of Referral to Immigration Judge. The Service shall 
also file with the notice of referral a copy of the written record of 
determination as defined in section 235(b)(1)(B)(iii)(II) of the Act, 
including a copy of the alien's written request for review, if any.
    (b) Record of proceeding. The Immigration Court shall create a 
Record of Proceeding for a review of an adverse credible fear 
determination. This record shall not be merged with any later proceeding 
pursuant to section 240 of the Act involving the same alien.
    (c) Procedures and evidence. The Immigration Judge may receive into 
evidence any oral or written statement which is material and relevant to 
any issue in the review. The testimony of the alien shall be under oath 
or affirmation administered by the Immigration Judge. If an interpreter 
is necessary, one will be provided by the Immigration Court. The 
Immigration Judge shall determine whether the review shall be in person, 
or through telephonic or video connection (where available). The alien 
may consult with a person or persons of the alien's choosing prior to 
the review.
    (d) Standard of review. The immigration judge shall make a de novo 
determination as to whether there is a significant possibility, taking 
into account the credibility of the statements made by the alien in 
support of the alien's claim and such other facts as are known to the 
immigration judge, that the alien could establish eligibility for asylum 
under section 208 of the Act or withholding under section 241(b)(3) of 
the Act or withholding under the Convention Against Torture.
    (e) Timing. The Immigration Judge shall conclude the review to the 
maximum extent practicable within 24 hours, but in no case later than 7 
days after the date the supervisory asylum officer has approved the 
asylum officer's negative credible fear determination issued on Form I-
869, Record of Negative Credible Fear Finding and Request for Review.
    (f) Decision. If an immigration judge determines that an alien has a 
credible fear of persecution or torture, the immigration judge shall 
vacate the order entered pursuant to section 235(b)(1)(B)(iii)(I) of the 
Act. Subsequent to the order being vacated, the Service shall issue and 
file Form I-862, Notice to Appear, with the Immigration Court to 
commence removal proceedings. The alien shall have the opportunity to 
apply for asylum and withholding of removal in the course of removal 
proceedings pursuant to section 240 of the Act. If an immigration judge 
determines that an alien does not have a credible fear of persecution or 
torture, the immigration judge shall affirm the asylum officer's 
determination and remand the case to the Service for execution of the 
removal order entered pursuant to section 235(b)(1)(B)(iii)(I) of the 
Act. No appeal shall lie from a review of an adverse credible fear 
determination made by an immigration judge.
    (g) Custody. An Immigration Judge shall have no authority to review 
an alien's custody status in the course of a review of an adverse 
credible fear determination made by the Service.
    (h) Safe third country agreement--(1) Arriving alien. An immigration 
judge has no jurisdiction to review a determination by an asylum officer 
that an arriving alien is not eligible to apply for asylum pursuant to a 
bilateral or multilateral agreement (the Agreement) under section 
208(a)(2)(A) of the Act and should be returned to a safe

[[Page 896]]

third country to pursue his or her claims for asylum or other protection 
under the laws of that country. See 8 CFR 208.30(e)(6). However, in any 
case where an asylum officer has found that an arriving alien qualifies 
for an exception to the Agreement, an immigration judge does have 
jurisdiction to review a negative credible fear finding made thereafter 
by the asylum officer as provided in this section.
    (2) Aliens in transit. An immigration judge has no jurisdiction to 
review any determination by DHS that an alien being removed from Canada 
in transit through the United States should be returned to Canada to 
pursue asylum claims under Canadian law, under the terms of a safe third 
country agreement with Canada.

[62 FR 10335, Mar. 6, 1997, as amended at 64 FR 8487, Feb. 19, 1999; 69 
FR 69496, Nov. 29, 2004]



Sec. 1003.43  Motions to reopen for suspension of deportation and cancellation 

of removal pursuant to section 203(c) of NACARA and section 1505(c) of the 

LIFE Act Amendments.

    (a) Standard for Adjudication. Except as provided in this section, a 
motion to reopen proceedings under section 309(g) or (h) of the Illegal 
Immigration Reform and Immigrant Responsibility Act (Pub. L. 104-208) 
(IIRIRA), as amended by section 203(c) of the Nicaraguan Adjustment and 
Central American Relief Act (Pub. L. 105-100) (NACARA) and by section 
1505(c) of the Legal Immigration Family Equity Act Amendments (Pub. L. 
106-554) (LIFE Act Amendments), respectively, will be adjudicated under 
applicable statutes and regulations governing motions to reopen.
    (b) Aliens eligible to reopen proceedings under section 203 of 
NACARA. A motion to reopen proceedings to apply for suspension of 
deportation or cancellation of removal under the special rules of 
section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, must 
establish that the alien:
    (1) Is prima facie eligible for suspension of deportation pursuant 
to former section 244(a) of the Act (as in effect prior to April 1, 
1997) or the special rule for cancellation of removal pursuant to 
section 309(f) of IIRIRA, as amended by section 203(b) of NACARA;
    (2) Was or would be ineligible:
    (i) For suspension of deportation by operation of section 309(c)(5) 
of IIRIRA (as in effect prior to November 19, 1997); or
    (ii) For cancellation of removal pursuant to section 240A of the 
Act, but for operation of section 309(f) of IIRIRA, as amended by 
section 203(b) of NACARA;
    (3) Has not been convicted at any time of an aggravated felony; and
    (4) Is within one of the six classes of aliens described in 
paragraphs (d)(1) through (d)(6) of this section.
    (c) Aliens eligible to reopen proceedings under section 1505(c) of 
the LIFE Act Amendments. A motion to reopen proceedings to apply for 
suspension of deportation or cancellation of removal under the special 
rules of section 309(h) of IIRIRA, as amended by section 1505(c) of the 
LIFE Act Amendments, must establish that the alien:
    (1) Is prima facie eligible for suspension of deportation pursuant 
to former section 244(a) of the Act (as in effect prior to April 1, 
1997) or cancellation of removal pursuant to section 240A(b) of the Act 
and section 309(f) of IIRIRA, as amended by section 203(b) of NACARA;
    (2) Was or would be ineligible, by operation of section 241(a)(5) of 
the Act, for suspension of deportation pursuant to former section 244(a) 
of the Act (as in effect prior to April 1, 1997) or cancellation of 
removal pursuant to section 240A(b) of the Act and section 309(f) of 
IIRIRA, as amended by section 203(b) of NACARA, but for enactment of 
section 1505(c) of the LIFE Act Amendments;
    (3) Has not been convicted at any time of an aggravated felony; and
    (4) Is within one of the eight classes of aliens described in 
paragraph (d) of this section.
    (d) Classes of Eligible Aliens--(1) Class 1. A national of El 
Salvador who:
    (i) First entered the United States on or before September 19, 1990;
    (ii) Registered for benefits pursuant to the settlement agreement in 
American Baptist Churches, et al. v. Thornburgh, 760 F. Supp. 796 (N.D. 
Cal. 1991) (ABC) on or before October 31,

[[Page 897]]

1991, or applied for Temporary Protected Status (TPS) on or before 
October 31, 1991; and
    (iii) Was not apprehended after December 19, 1990, at time of entry.
    (2) Class 2. A national of Guatemala who:
    (i) First entered the United States on or before October 1, 1990;
    (ii) Registered for ABC benefits on or before December 31, 1991; and
    (iii) Was not apprehended after December 19, 1990, at time of entry.
    (3) Class 3. A national of Guatemala or El Salvador who applied for 
asylum with the Service on or before April 1, 1990.
    (4) Class 4. An alien who:
    (i) Entered the United States on or before December 31, 1990;
    (ii) Applied for asylum on or before December 31, 1991; and
    (iii) At the time of filing such application for asylum was a 
national of the Soviet Union, Russia, any republic of the former Soviet 
Union, Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania, 
Hungary, Bulgaria, Albania, East Germany, Yugoslavia, or any state of 
the former Yugoslavia.
    (5) Class 5. The spouse or child of a person who is described in 
paragraphs (d)(1) through (d)(4) of this section and such person is 
prima facie eligible for and has applied for suspension of deportation 
or special rule cancellation of removal under section 203 of NACARA.
    (6) Class 6. An unmarried son or daughter of a person who is 
described in paragraphs (d)(1) through (d)(4) of this section and such 
person is prima facie eligible for and has applied for suspension of 
deportation or special rule cancellation of removal under section 203 of 
NACARA. If the son or daughter is 21 years of age or older, the son or 
daughter must have entered the United States on or before October 1, 
1990.
    (7) Class 7. An alien who was issued an Order to Show Cause or was 
in deportation proceedings before April 1, 1997, and who applied for 
suspension of deportation as a battered alien under former section 
244(a)(3) of the Act (as in effect before September 30, 1996).
    (8) Class 8. An alien:
    (i) Who is or was the spouse or child of a person described in 
paragraphs (d)(1) through (d)(4) of this section:
    (A) At the time a decision is rendered to suspend deportation or 
cancel removal of that person;
    (B) At the time that person filed an application for suspension of 
deportation or cancellation of removal; or
    (C) At the time that person registered for ABC benefits, applied for 
TPS, or applied for asylum; and
    (ii) Who has been battered or subjected to extreme cruelty (or the 
spouse described in paragraph (d)(8)(i) of this section has a child who 
has been battered or subjected to extreme cruelty) by the person 
described in paragraphs (d)(1) through (d)(4) of this section.
    (e) Motion to reopen under section 203 of NACARA. (1) An alien 
filing a motion to reopen proceedings pursuant to section 309(g) of 
IIRIRA, as amended by section 203(c) of NACARA, may initially file a 
motion to reopen without an application for suspension of deportation or 
cancellation of removal and supporting documents, but the motion must be 
filed no later than September 11, 1998. An alien may file only one 
motion to reopen pursuant to section 309(g) of IIRIRA. In such motion to 
reopen, the alien must address each of the four requirements for 
eligibility described in paragraph (b) of this section and establish 
that the alien satisfies each requirement.
    (2) A motion to reopen filed pursuant to paragraph (b) of this 
section shall be considered complete at the time of submission of an 
application for suspension of deportation or special rule cancellation 
of removal and accompanying documents. Such application must be 
submitted no later than November 18, 1999. Aliens described in 
paragraphs (d)(5) or (d)(6) of this section must include, as part of 
their submission, proof that their parent or spouse is prima facie 
eligible and has applied for relief under section 203 of NACARA.
    (3) The Service shall have 45 days from the date the alien serves 
the Immigration Court with either the Form EOIR-40 or the Form I-881 
application for suspension of deportation or special rule cancellation 
of removal to respond to that completed motion. If the alien

[[Page 898]]

fails to submit the required application on or before November 18, 1999, 
the motion will be denied as abandoned.
    (f) Motion to reopen under section 1505(c) of the LIFE Act 
Amendments. (1) An alien filing a motion to reopen proceedings pursuant 
to section 309(h) of IIRIRA, as amended by section 1505(c) of the LIFE 
Act Amendments, must file a motion to reopen with an application for 
suspension of deportation or cancellation of removal and supporting 
documents, on or before October 16, 2001. An alien may file only one 
motion to reopen proceedings pursuant to section 309(h) of IIRIRA. In 
such motion to reopen, the alien must address each of the four 
requirements for eligibility described in paragraph (c) of this section 
and establish that the alien satisfies each requirement.
    (2) A motion to reopen and the accompanying application and 
supporting documents filed pursuant to paragraph (c) of this section 
must be submitted on or before October 16, 2001. Aliens described in 
paragraphs (d)(5) and (d)(6) of this section must include, as part of 
their submission, proof that their parent or spouse is prima facie 
eligible and has applied for relief under section 203 of NACARA.
    (3) The Service shall have 45 days from the date the alien serves 
the Immigration Court to respond to that motion to reopen.
    (g) Fee for motion to reopen waived. No filing fee is required for a 
motion to reopen to apply for suspension of deportation or cancellation 
of removal under the special rules of section 309(g) or (h) of IIRIRA, 
as amended by section 203(c) of NACARA and by section 1505(c) of the 
LIFE Act Amendments, respectively.
    (h) Jurisdiction over motions to reopen under section 203 of NACARA 
and remand of appeals. (1) Notwithstanding any other provisions, any 
motion to reopen filed pursuant to the special rules of section 309(g) 
of IIRIRA, as amended by section 203(c) of NACARA, shall be filed with 
the Immigration Court, even if the Board of Immigration Appeals (Board) 
issued an order in the case. The Immigration Court that last had 
jurisdiction over the proceedings will adjudicate the motion.
    (2) The Board will remand to the Immigration Court any presently 
pending appeal in which the alien appears eligible to apply for 
suspension of deportation or cancellation of removal under the special 
rules of section 309(g) of IIRIRA, as amended by section 203 of NACARA, 
and appears prima facie eligible for that relief. The alien will then 
have the opportunity to apply for suspension or cancellation under the 
special rules of NACARA before the Immigration Court.
    (i) Jurisdiction over motions to reopen under section 1505(c) of the 
LIFE Act Amendments and remand of appeals. (1) Notwithstanding any other 
provisions, any motion to reopen filed pursuant to paragraph (f) of this 
section to apply for suspension of deportation or cancellation of 
removal under section 1505(c) of the LIFE Act Amendments shall be filed 
with the Immigration Court or the Board, whichever last held 
jurisdiction over the case. Only an alien with a reinstated final order, 
or an alien with a newly issued final order that was issued based on the 
alien having reentered the United States illegally after having been 
removed or having departed voluntarily under a prior order of removal 
that was subject to reinstatement under section 241(a)(5) of the Act, 
may file a motion to reopen with the Immigration Court or the Board 
pursuant to this section. An alien whose final order has not been 
reinstated and as to whom a newly issued final order, as described in 
this section, has not been issued may apply for suspension of 
deportation or special rule cancellation of removal before the Service 
pursuant to section 309(h)(1) of IIRIRA, as amended by section 1505(c) 
of the LIFE Act Amendments, according to the jurisdictional provisions 
for applications before the Service set forth in 8 CFR 240.62(a) or 
before the Immigration Court as set forth in 8 CFR 240.62(b).
    (2) If the Immigration Court has jurisdiction and grants only the 
motion to reopen filed pursuant to paragraph (f) of this section, the 
scope of the reopened proceeding shall be limited to a determination of 
the alien's eligibility for suspension of deportation or cancellation of 
removal pursuant to section 309(h)(1) of IIRIRA, as amended by

[[Page 899]]

section 1505(c) of the LIFE Act Amendments.
    (3) If the Board has jurisdiction and grants only the motion to 
reopen filed pursuant to paragraph (f) of this section, it shall remand 
the case to the Immigration Court solely for adjudication of the 
application for suspension of deportation or cancellation of removal 
pursuant to section 309(h)(1) of IIRIRA, as amended by section 1505(c) 
of the LIFE Act Amendments.
    (4) Nothing in this section shall be interpreted to preclude or 
restrict the applicability of any other exceptions regarding motions to 
reopen that are provided for in 8 CFR 3.2(c)(3) and 3.23(b).

[66 FR 37123, July 17, 2001]



Sec. 1003.44  Special motion to seek section 212(c) relief for aliens who 

pleaded guilty or nolo contendere to certain crimes before April 1, 1997.

    (a) Standard for adjudication. This section applies to certain 
aliens who formerly were lawful permanent residents, who are subject to 
an administratively final order of deportation or removal, and who are 
eligible to apply for relief under former section 212(c) of the Act and 
8 CFR 1212.3 with respect to convictions obtained by plea agreements 
reached prior to a verdict at trial prior to April 1, 1997. A special 
motion to seek relief under section 212(c) of the Act will be 
adjudicated under the standards of this section and 8 CFR 1212.3. This 
section is not applicable with respect to any conviction entered after 
trial.
    (b) General eligibility. The alien has the burden of establishing 
eligibility for relief, including the date on which the alien and the 
prosecution agreed on the plea of guilt or nolo contendere. Generally, a 
special motion under this section to seek section 212(c) relief must 
establish that the alien:
    (1) Was a lawful permanent resident and is now subject to a final 
order of deportation or removal;
    (2) Agreed to plead guilty or nolo contendere to an offense 
rendering the alien deportable or removable, pursuant to a plea 
agreement made before April 1, 1997;
    (3) Had seven consecutive years of lawful unrelinquished domicile in 
the United States prior to the date of the final administrative order of 
deportation or removal; and
    (4) Is otherwise eligible to apply for section 212(c) relief under 
the standards that were in effect at the time the alien's plea was made, 
regardless of when the plea was entered by the court.
    (c) Aggravated felony definition. For purposes of eligibility to 
apply for section 212(c) relief under this section and 8 CFR 1212.3, the 
definition of aggravated felony in section 101(a)(43) of the Act is that 
in effect at the time the special motion or the application for section 
212(c) relief is adjudicated under this section. An alien shall be 
deemed to be ineligible for section 212(c) relief if he or she has been 
charged and found deportable or removable on the basis of a crime that 
is an aggravated felony, except as provided in 8 CFR 1212.3(f)(4).
    (d) Effect of prior denial of section 212(c) relief. A motion under 
this section will not be granted with respect to any conviction where an 
alien has previously been denied section 212(c) relief by an immigration 
judge or by the Board on discretionary grounds.
    (e) Scope of proceedings. Proceedings shall be reopened under this 
section solely for the purpose of adjudicating the application for 
section 212(c) relief, but if the immigration judge or the Board grants 
a motion by the alien to reopen the proceedings on other applicable 
grounds under 8 CFR 1003.2 or 1003.23 of this chapter, all issues 
encompassed within the reopened proceedings may be considered together, 
as appropriate.
    (f) Procedure for filing a special motion to seek section 212(c) 
relief. An eligible alien shall file a special motion to seek section 
212(c) relief with the immigration judge or the Board, whichever last 
held jurisdiction over the case. An eligible alien must submit a copy of 
the Form I-191 application, and supporting documents, with the special 
motion. The motion must contain the notation ``special motion to seek 
section 212(c) relief.'' The Department of Homeland Security (DHS) shall 
have 45 days from the date of filing of the special motion to respond. 
In the event the DHS does

[[Page 900]]

not respond to the motion, the DHS retains the right in the proceedings 
to contest any and all issues raised.
    (g) Relationship to motions to reopen or reconsider on other 
grounds. (1) Other pending motions to reopen or reconsider. An alien who 
has previously filed a motion to reopen or reconsider that is still 
pending before an immigration judge or the Board, other than a motion 
for section 212(c) relief, must file a separate special motion to seek 
section 212(c) relief pursuant to this section. The new motion shall 
specify any other motions currently pending before an immigration judge 
or the Board. An alien who has previously filed a motion to reopen under 
8 CFR 1003.2 or 1003.23 based on INS v. St. Cyr is not required to file 
a new special motion under this section, but he or she may supplement 
the previous motion if it is still pending. Any motion for section 
212(c) relief described in this section pending before the Board or an 
immigration judge on the effective date of this rule that would be 
barred by the time or number limitations on motions shall be deemed to 
be a motion filed pursuant to this section, and shall not count against 
the number restrictions for other motions to reopen.
    (2) Motions previously filed pursuant to prior provision. If an 
alien previously filed a motion to apply for section 212(c) relief with 
an immigration judge or the Board pursuant to the prior provisions of 
this section, as in effect before October 28, 2004, and the motion is 
still pending, the motion will be adjudicated pursuant to the standards 
of this section, both as revised and as previously in effect, and the 
alien does not need to file a new special motion pursuant to paragraph 
(g)(1) of this section. However, if a motion filed under the prior 
provisions of this section was denied because the alien did not satisfy 
the requirements contained therein, the alien must file a new special 
motion pursuant to this section, if eligible, in order to apply for 
section 212(c) relief based on the requirements established in this 
section.
    (3) Effect of a prior denial of a motion to reopen or motion to 
reconsider filed after the St. Cyr decision. A motion under this section 
will not be granted where an alien has previously submitted a motion to 
reopen or motion to reconsider based on the St. Cyr decision and that 
motion was denied by an immigration judge or the Board (except on 
account of time or number limitations for such motions).
    (4) Limitations for motions. The filing of a special motion under 
this section has no effect on the time and number limitations for 
motions to reopen or reconsider that may be filed on grounds unrelated 
to section 212(c).
    (h) Deadline to file a special motion to seek section 212(c) relief 
under this section. An alien subject to a final administrative order of 
deportation or removal must file a special motion to seek section 212(c) 
relief on or before April 26, 2005. An eligible alien may file one 
special motion to seek section 212(c) relief under this section.
    (i) Fees. No filing fee is required at the time the alien files a 
special motion to seek section 212(c) relief under this section. 
However, if the special motion is granted, and the alien has not 
previously filed an application for section 212(c) relief, the alien 
will be required to submit the appropriate fee receipt at the time the 
alien files the Form I-191 with the immigration court.
    (j) Remands of appeals. If the Board has jurisdiction and grants the 
motion to apply for section 212(c) relief pursuant to this section, it 
shall remand the case to the immigration judge solely for adjudication 
of the section 212(c) application.
    (k) Limitations on eligibility under this section. This section does 
not apply to:
    (1) Aliens who have departed the United States and are currently 
outside the United States;
    (2) Aliens issued a final order of deportation or removal who then 
illegally returned to the United States; or
    (3) Aliens who have not been admitted or paroled.

[69 FR 57833, Sept. 28, 2004]



Sec. 1003.46  Protective orders, sealed submissions in Immigration Courts.

    (a) Authority. In any immigration or bond proceeding, Immigration 
Judges may, upon a showing by the Service of a substantial likelihood 
that specific information submitted under seal or to

[[Page 901]]

be submitted under seal will, if disclosed, harm the national security 
(as defined in section 219(c)(2) of the Act) or law enforcement 
interests of the United States, issue a protective order barring 
disclosure of such information.
    (b) Motion by the service. The Service may at any time after filing 
a Notice to Appear, or other charging document, file with the 
Immigration Judge, and serve upon the respondent, a motion for an order 
to protect specific information it intends to submit or is submitting 
under seal. The motion shall describe, to the extent practical, the 
information that the Service seeks to protect from disclosure. The 
motion shall specify the relief requested in the protective order. The 
respondent may file a response to the motion within ten days after the 
motion is served.
    (c) Sealed annex to motion. In the Service's discretion, the Service 
may file the specific information as a sealed annex to the motion, which 
shall not be served upon the respondent. If the Service files a sealed 
annex, or the Immigration Judge, in his or her discretion, instructs 
that the information be filed as a sealed annex in order to determine 
whether to grant or deny the motion, the Immigration Judge shall 
consider the information only for the purpose of determining whether to 
grant or deny the motion.
    (d) Due deference. The Immigration Judge shall give appropriate 
deference to the expertise of senior officials in law enforcement and 
national security agencies in any averments in any submitted affidavit 
in determining whether the disclosure of information will harm the 
national security or law enforcement interests of the United States.
    (e) Denied motions. If the motion is denied, any sealed annex shall 
be returned to the Service, and the Immigration Judge shall give no 
weight to such information. The Service may immediately appeal denial of 
the motion to the Board, which shall have jurisdiction to hear the 
appeal, by filing a Notice of Appeal and the sealed annex with the 
Board. The Immigration Judge shall hold any further proceedings in 
abeyance pending resolution of the appeal by the Board.
    (f) Granted motions. If the motion is granted, the Immigration Judge 
shall issue an appropriate protective order.
    (1) The Immigration Judge shall ensure that the protective order 
encompasses such witnesses as the respondent demonstrates are reasonably 
necessary to the presentation of his case. If necessary, the Immigration 
Judge may impose the requirements of the protective order on any witness 
before the Immigration Judge to whom such information may be disclosed.
    (2) The protective order may require that the respondent, and his or 
her attorney or accredited representative, if any:
    (i) Not divulge any of the information submitted under the 
protective order, or any information derived therefrom, to any person or 
entity, other than authorized personnel of the Executive Office for 
Immigration Review, the Service, or such other persons approved by the 
Service or the Immigration Judge;
    (ii) When transmitting any information under a protective order, or 
any information derived therefrom, to the Executive Office for 
Immigration Review or the Service, include a cover sheet identifying the 
contents of the submission as containing information subject to a 
protective order under this section;
    (iii) Store any information under a protective order, or any 
information derived therefrom, in a reasonably secure manner, and return 
all copies of such information to the Service upon completion of 
proceedings, including judicial review; and
    (iv) Such other requirements as the Immigration Judge finds 
necessary to protect the information from disclosure.
    (3) Upon issuance of such protective order, the Service shall serve 
the respondent with the protective order and the sealed information. A 
protective order issued under this section shall remain in effect until 
vacated by the Immigration Judge.
    (4) Further review of the protective order before the Board shall 
only be had pursuant to review of an order of the Immigration Judge 
resolving all issues of removability and any applications for relief 
pending in the matter

[[Page 902]]

pursuant to 8 CFR 3.1(b). Notwithstanding any other provision of this 
section, the Immigration Judge shall retain jurisdiction to modify or 
vacate a protective order upon motion of the Service or the respondent. 
An Immigration Judge may not grant a motion by the respondent to modify 
or vacate a protective order until either: the Service files a response 
to such motion or 10 days after service of such motion on the Service.
    (g) Admissibility as evidence. The issuance of a protective order 
shall not prejudice the respondent's right to challenge the 
admissibility of the information subject to a protective order. The 
Immigration Judge may not find the information inadmissible solely 
because it is subject to a protective order.
    (h) Seal. Any submission to the Immigration Judge, including any 
briefs, referring to information subject to a protective order shall be 
filed under seal. Any information submitted subject to a protective 
order under this paragraph shall remain under seal as part of the 
administrative record.
    (i) Administrative enforcement. If the Service establishes that a 
respondent, or the respondent's attorney or accredited representative, 
has disclosed information subject to a protective order, the Immigration 
Judge shall deny all forms of discretionary relief, except bond, unless 
the respondent fully cooperates with the Service or other law 
enforcement agencies in any investigation relating to the noncompliance 
with the protective order and disclosure of the information; and 
establishes by clear and convincing evidence either that extraordinary 
and extremely unusual circumstances exist or that failure to comply with 
the protective order was beyond the control of the respondent and his or 
her attorney or accredited representative. Failure to comply with a 
protective order may also result in the suspension of an attorney's or 
an accredited representative's privilege of appearing before the 
Executive Office for Immigration Review or before the Service pursuant 
to 8 CFR part 3, subpart G.

[67 FR 36802, May 28, 2002]



Sec. 1003.47  Identity, law enforcement, or security investigations or 

examinations relating to applications for immigration relief, protection, or 

restriction on removal.

    (a) In general. The procedures of this section are applicable to any 
application for immigration relief, protection, or restriction on 
removal that is subject to the conduct of identity, law enforcement, or 
security investigations or examinations as described in paragraph (b) of 
this section, in order to ensure that DHS has completed the appropriate 
identity, law enforcement, or security investigations or examinations 
before the adjudication of the application.
    (b) Covered applications. The requirements of this section apply to 
the granting of any form of immigration relief in immigration 
proceedings which permits the alien to reside in the United States, 
including but not limited to the following forms of relief, protection, 
or restriction on removal to the extent they are within the authority of 
an immigration judge or the Board to grant:
    (1) Asylum under section 208 of the Act.
    (2) Adjustment of status to that of a lawful permanent resident 
under sections 209 or 245 of the Act, or any other provision of law.
    (3) Waiver of inadmissibility or deportability under sections 
209(c), 212, or 237 of the Act, or any provision of law.
    (4) Permanent resident status on a conditional basis or removal of 
the conditional basis of permanent resident status under sections 216 or 
216A of the Act, or any other provision of law.
    (5) Cancellation of removal or suspension of deportation under 
section 240A or former section 244 of the Act, or any other provision of 
law.
    (6) Relief from removal under former section 212(c) of the Act.
    (7) Withholding of removal under section 241(b)(3) of the Act or 
under the Convention Against Torture.
    (8) Registry under section 249 of the Act.
    (9) Conditional grants relating to the above, such as for 
applications seeking asylum pursuant to section 207(a)(5) of

[[Page 903]]

the Act or cancellation of removal in light of section 240A(e) of the 
Act.
    (c) Completion of applications for immigration relief, protection, 
or restriction on removal. Failure to file necessary documentation and 
comply with the requirements to provide biometrics and other 
biographical information in conformity with the applicable regulations, 
the instructions to the applications, the biometrics notice, and 
instructions provided by DHS, within the time allowed by the immigration 
judge's order, constitutes abandonment of the application and the 
immigration judge may enter an appropriate order dismissing the 
application unless the applicant demonstrates that such failure was the 
result of good cause. Nothing in this section shall be construed to 
affect the provisions in 8 CFR 1208.4 regarding the timely filing of 
asylum applications or the determination of a respondent's compliance 
with any other deadline for initial filing of an application, including 
the consequences of filing under the Child Status Protection Act.
    (d) Biometrics and other biographical information. At any hearing at 
which a respondent expresses an intention to file or files an 
application for relief for which identity, law enforcement, or security 
investigations or examinations are required under this section, unless 
DHS advises the immigration judge that such information is unnecessary 
in the particular case, DHS shall notify the respondent of the need to 
provide biometrics and other biographical information and shall provide 
a biometrics notice and instructions to the respondent for such 
procedures. The immigration judge shall specify for the record when the 
respondent receives the biometrics notice and instructions and the 
consequences for failing to comply with the requirements of this 
section. Whenever required by DHS, the applicant shall make arrangements 
with an office of DHS to provide biometrics and other biographical 
information (including for any other person covered by the same 
application who is required to provide biometrics and other biographical 
information) before or as soon as practicable after the filing of the 
application for relief in the immigration proceedings. Failure to 
provide biometrics or other biographical information of the applicant or 
any other covered individual within the time allowed will constitute 
abandonment of the application or of the other covered individual's 
participation unless the applicant demonstrates that such failure was 
the result of good cause. DHS is responsible for obtaining biometrics 
and other biographical information with respect to any alien in 
detention.
    (e) Conduct of investigations or examinations. DHS shall endeavor to 
initiate all relevant identity, law enforcement, or security 
investigations or examinations concerning the alien or beneficiaries 
promptly, to complete those investigations or examinations as promptly 
as is practicable (considering, among other things, increased demands 
placed upon such investigations), and to advise the immigration judge of 
the results in a timely manner, on or before the date of a scheduled 
hearing on any application for immigration relief filed in the 
proceedings. The immigration judges, in scheduling hearings, shall allow 
a period of time for DHS to undertake the necessary identity, law 
enforcement, or security investigations or examinations prior to the 
date that an application is scheduled for hearing and disposition, with 
a view to minimizing the number of cases in which hearings must be 
continued.
    (f) Continuance for completion of investigations or examinations. If 
DHS has not reported on the completion and results of all relevant 
identity, law enforcement, or security investigations or examinations 
for an applicant and his or her beneficiaries by the date that the 
application is scheduled for hearing and disposition, after the time 
allowed by the immigration judge pursuant to paragraph (e) of this 
section, the immigration judge may continue proceedings for the purpose 
of completing the investigations or examinations, or hear the case on 
the merits. DHS shall attempt to give reasonable notice to the 
immigration judge of the fact that all relevant identity, law 
enforcement, or security investigations or examinations have not been 
completed and the

[[Page 904]]

amount of time DHS anticipates is required to complete those 
investigations or examinations.
    (g) Adjudication after completion of investigations or examinations. 
In no case shall an immigration judge grant an application for 
immigration relief that is subject to the conduct of identity, law 
enforcement, or security investigations or examinations under this 
section until after DHS has reported to the immigration judge that the 
appropriate investigations or examinations have been completed and are 
current as provided in this section and DHS has reported any relevant 
information from the investigations or examinations to the immigration 
judge.
    (h) Adjudication upon remand from the Board. In any case remanded 
pursuant to 8 CFR 1003.1(d)(6), the immigration judge shall consider the 
results of the identity, law enforcement, or security investigations or 
examinations subject to the provisions of this section. If new 
information is presented, the immigration judge may hold a further 
hearing if necessary to consider any legal or factual issues, including 
issues relating to credibility, if relevant. The immigration judge shall 
then enter an order granting or denying the immigration relief sought.
    (i) Procedures when immigration relief granted. At the time that the 
immigration judge or the Board grants any relief under this section that 
would entitle the respondent to a new document evidencing such relief, 
the decision granting such relief shall include advice that the 
respondent will need to contact an appropriate office of DHS. 
Information concerning DHS locations and local procedures for document 
preparation shall be routinely provided to EOIR and updated by DHS. Upon 
respondent's presentation of a final order from the immigration judge or 
the Board granting such relief and submission of any biometric and other 
information necessary, DHS shall prepare such documents in keeping with 
section 264 of the Act and regulations thereunder and other relevant 
law.
    (j) Voluntary departure. The procedures of this section do not apply 
to the granting of voluntary departure prior to the conclusion of 
proceedings pursuant to 8 CFR 1240.26(b) or at the conclusion of 
proceedings pursuant to 8 CFR 1240.26(c). If DHS seeks a continuance in 
order to complete pending identity, law enforcement, or security 
investigations or examinations, the immigration judge may grant 
additional time in the exercise of discretion, and the 30-day period for 
the immigration judge to grant voluntary departure, as provided in Sec. 
1240.26(b)(1)(ii), shall be extended accordingly.
    (k) Custody hearings. The foregoing provisions of this section do 
not apply to proceedings seeking the redetermination of conditions of 
custody of an alien during the pendency of immigration proceedings under 
section 236 of the Act. In scheduling an initial custody redetermination 
hearing, the immigration judge shall, to the extent practicable 
consistent with the expedited nature of such cases, take account of the 
brief initial period of time needed for DHS to conduct the automated 
portions of its identity, law enforcement, or security investigations or 
examinations with respect to aliens detained in connection with 
immigration proceedings. If at the time of the custody hearing DHS seeks 
a brief continuance in an appropriate case based on unresolved identity, 
law enforcement, or security investigations or examinations, the 
immigration judge in the exercise of discretion may grant one or more 
continuances for a limited period of time which is reasonable under the 
circumstances.

[70 FR 4753, Jan. 31, 2005]

Subpart D [Reserved]



             Subpart E_List of Free Legal Services Providers

    Source: 62 FR 9073, Feb. 28, 1997, unless otherwise noted.



Sec. 1003.61  List.

    (a) The Chief Immigration Judge shall maintain a current list of 
organizations and attorneys qualified under this subpart which provide 
free legal services. This list, which shall be updated not less than 
quarterly, shall be provided to aliens in immigration proceedings. The 
Chief Immigration Judge

[[Page 905]]

may designate an employee or employees to carry out his or her 
responsibilities under this subpart. Organizations and attorneys may be 
included on the list of free legal services providers if they qualify 
under one of the following categories:
    (1) Organizations recognized under Sec. 1292.2 of this chapter that 
meet the qualifications set forth in Sec. 1003.62(a) and whose 
representatives, if any, are authorized to practice before the Board and 
Immigration Courts;
    (2) Organizations not recognized under Sec. 1292.2 of this chapter 
that meet the qualifications set forth in Sec. 1003.62(b);
    (3) Bar associations that meet the qualifications set forth in Sec. 
1003.62(c); and
    (4) Attorneys, as defined in Sec. 1001.1(f) of this chapter, who 
meet the qualifications set forth in Sec. 1003.62(d).
    (b) The listing of an organization qualified under this subpart is 
not equivalent to recognition under Sec. 292.2 of this chapter.



Sec. 1003.62  Qualifications.

    (a) Organizations recognized under Sec. 1292.2. An organization 
that is recognized under Sec. 1292.2 of this chapter that seeks to have 
its name appear on the list of free legal services providers maintained 
by the Chief Immigration Judge must have on its staff:
    (1) An attorney, as defined in Sec. 1001.1(f) of this chapter; or
    (2) At least one accredited representative, as defined in Sec. 
1292.1(a)(4) of this chapter, who is authorized to practice before the 
Board and Immigration Courts.
    (b) Organizations not recognized under Sec. 1292.2. An organization 
that is not recognized under Sec. 1292.2 of this chapter that seeks to 
have its name appear on the list of free legal services providers 
maintained by the Chief Immigration Judge must declare that:
    (1) It is established in the United States;
    (2) It provides free legal services to indigent aliens; and
    (3) It has on its staff, or retains at no expense to the alien, an 
attorney, as defined in Sec. 1001.1(f) of this chapter, who is 
available to render such free legal services by representation in 
immigration proceedings.
    (c) Bar associations. A bar association that provides a referral 
service of attorneys who render pro bono assistance to aliens in 
immigration proceedings may apply to have its name appear on the list of 
free legal services providers maintained by the Chief Immigration Judge. 
Any other organization that provides such a referral service may also 
apply to have its name appear on the list of free legal services 
providers, and may, in the sole discretion of the Chief Immigration 
Judge, be included on the list.
    (d) Attorneys. An attorney, as defined in Sec. 1001.1(f) of this 
chapter, who seeks to have his or her name appear on the list of free 
legal services providers maintained by the Chief Immigration Judge must 
declare in his or her application that he or she provides free legal 
services to indigent aliens and that he or she is willing to represent 
indigent aliens in immigration proceedings pro bono. An attorney under 
this section may not receive any direct or indirect remuneration from 
indigent aliens for representation in immigration proceedings, although 
the attorney may be regularly compensated by the firm or organization 
with which he or she is associated.



Sec. 1003.63  Applications.

    (a) Generally. In order to qualify to appear on the list of free 
legal services providers maintained by the Chief Immigration Judge under 
this subpart, an organization or attorney must file an application 
requesting to be placed on the list. This application must be filed with 
the Office of the Chief Immigration Judge, along with proof of service 
on the Court Administrator of the Immigration Court having jurisdiction 
over each locality where the organization or attorney provides free 
legal services. Each submission must be identified by the notation 
``Application for Free Legal Services Providers List'' on the envelope, 
and must also indicate if the organization or attorney is willing to 
represent indigent aliens in asylum proceedings.
    (b) Organizations recognized under Sec. 292.2. An organization that 
is recognized under Sec. 292.2 of this chapter must

[[Page 906]]

submit a declaration signed by an authorized officer of the organization 
which states that the organization complies with all of the 
qualifications set forth in Sec. 1003.62(a).
    (c) Organizations not recognized under Sec. 292.2. An organization 
that is not recognized under Sec. 292.2 of this chapter must submit a 
declaration signed by an authorized officer of the organization which 
states that the organization complies with all of the qualifications set 
forth in Sec. 1003.62(b).
    (d) Attorneys. An attorney must:
    (1) Submit a declaration that states that:
    (i) He or she provides free legal services to indigent aliens;
    (ii) He or she is willing to represent indigent aliens in 
immigration proceedings pro bono; and
    (iii) He or she is not under any order of any court suspending, 
enjoining, restraining, disbarring, or otherwise restricting him or her 
in the practice of law; and
    (2) Include the attorney's bar number, if any, from each bar of the 
highest court of the state, possession, territory, or commonwealth in 
which he or she is admitted to practice law.
    (e) Changes in addresses or status. Organizations and attorneys 
referred to in this subpart are under a continuing obligation to notify 
the Chief Immigration Judge, in writing, within ten business days, of 
any change of address, telephone number, or qualifying or professional 
status. Failure to notify the Chief Immigration Judge of any such change 
may result in the name of the organization or attorney being removed 
from the list.



Sec. 1003.64  Approval and denial of applications.

    The Court Administrator of the Immigration Court having jurisdiction 
over each locality where an organization or attorney provides free legal 
services shall forward a recommendation for approval or denial of each 
application submitted by the organization or attorney, and the reasons 
therefor, to the Chief Immigration Judge. The Chief Immigration Judge 
shall have the authority to approve or deny an application submitted by 
an organization or an attorney pursuant to Sec. 1003.63. If an 
application is denied, the organization or attorney shall be notified of 
the decision in writing, at the organization's or attorney's last known 
address, and shall be given a written explanation of the grounds for 
such denial. A denial must be based on the failure of the organization 
or attorney to meet the qualifications and/or to comply with the 
procedures set forth in this subpart. The organization or attorney shall 
be advised of its, his or her right to appeal this decision to the Board 
of Immigration Appeals in accordance with Sec. 1003.1(b) and Sec. 
1103.3(a)(1)(ii) of this chapter.



Sec. 1003.65  Removal of an organization or attorney from list.

    (a) Involuntary removal. If the Chief Immigration Judge believes 
that an organization or attorney included on the list of free legal 
services providers no longer meets the qualifications set forth in this 
subpart, he or she shall promptly notify the organization or attorney in 
writing, at the organization's or attorney's last known address, of his 
or her intention to remove the name of the organization or attorney from 
the list. The organization or attorney may submit an answer within 30 
days from the date the notice is served. The organization or attorney 
must establish by clear, unequivocal, and convincing evidence that the 
organization's or attorney's name should not be removed from the list. 
If, after consideration of any answer submitted by the organization or 
attorney, the Chief Immigration Judge determines that the organization 
or attorney no longer meets the qualifications set forth in this 
subpart, the Chief Immigration Judge shall promptly remove the name of 
the organization or attorney from the list of free legal service 
providers, the removal of which will be reflected in the next quarterly 
update, and shall notify the organization or attorney of such removal in 
writing, at the organization's or attorney's last known address. 
Organizations and attorneys shall be advised of their right to appeal 
this decision to the Board of Immigration Appeals in accordance with 
Sec. 1003.1(b) and Sec. 1103.3(a)(1)(ii) of this chapter.
    (b) Voluntary removal. Any organization or attorney qualified under 
this

[[Page 907]]

subpart may, at any time, submit a written request to have its, his or 
her name removed from the list of free legal service providers. Such a 
request shall be honored, and the name of the organization or attorney 
shall promptly be removed from the list, the removal of which will be 
reflected in the next quarterly update.

Subpart F [Reserved]



  Subpart G_Professional Conduct for Practitioners_Rules and Procedures

    Source: 65 FR 39526, June 27, 2000, unless otherwise noted.



Sec. 1003.101  General provisions.

    (a) Authority to sanction. An adjudicating official or the Board of 
Immigration Appeals (the Board) may impose disciplinary sanctions 
against any practitioner if it finds it to be in the public interest to 
do so. It will be in the public interest to impose disciplinary 
sanctions against a practitioner who is authorized to practice before 
the Board and the Immigration Courts when such person has engaged in 
criminal, unethical, or unprofessional conduct, or in frivolous 
behavior, as set forth in Sec. 1003.102. In accordance with the 
disciplinary proceedings set forth in this subpart and outlined below, 
an adjudicating official or the Board may impose any of the following 
disciplinary sanctions:
    (1) Expulsion, which is permanent, from practice before the Board 
and the Immigration Courts or the Immigration and Naturalization Service 
(the Service), or before all three authorities;
    (2) Suspension, including immediate suspension, from practice before 
the Board and the Immigration Courts or the Service, or before all three 
authorities;
    (3) Public or private censure; or
    (4) Such other disciplinary sanctions as the adjudicating official 
or the Board deems appropriate.
    (b) Persons subject to sanctions. Persons subject to sanctions 
include any practitioner. A practitioner is any attorney as defined in 
Sec. 1001.1(f) of this chapter who does not represent the federal 
government, or any representative as defined in Sec. 1001.1(j) of this 
chapter. Attorneys employed by the Department of Justice shall be 
subject to discipline pursuant to Sec. 1003.109. Nothing in this 
regulation shall be construed as authorizing persons who do not meet the 
definition of practitioner to represent individuals before the Board and 
the Immigration Courts or the Service.

    Effective Date Note: At 73 FR 76923, Dec. 18, 2008, Sec. 1003.101 
was amended by removing from paragraph (a)(1) the words ``Immigration 
and Naturalization Service (the Service)'' and adding in its place 
``DHS''; removing from paragraph (a)(2) the words ``the Service'' and 
adding in its place ``DHS''; and removing from paragraph (b) the words 
``the Service'' and adding in its place ``DHS'', effective Jan. 20, 
2009.



Sec. 1003.102  Grounds.

    It is deemed to be in the public interest for an adjudicating 
official or the Board to impose disciplinary sanctions against any 
practitioner who falls within one or more of the categories enumerated 
in this section, but these categories do not constitute the exclusive 
grounds for which disciplinary sanctions may be imposed in the public 
interest. Nothing in this regulation should be read to denigrate the 
practitioner's duty to represent zealously his or her client within the 
bounds of the law. A practitioner who falls within one of the following 
categories shall be subject to disciplinary sanctions in the public 
interest if he or she:
    (a) Charges or receives, either directly or indirectly:
    (1) In the case of an attorney, any fee or compensation for specific 
services rendered for any person that shall be deemed to be grossly 
excessive. The factors to be considered in determining whether a fee or 
compensation is grossly excessive include the following: The time and 
labor required, the novelty and difficulty of the questions involved, 
and the skill requisite to perform the legal service properly; the 
likelihood, if apparent to the client, that the acceptance of the 
particular employment will preclude other employment by the attorney; 
the fee customarily charged in the locality for similar legal services; 
the amount involved and the results obtained; the

[[Page 908]]

time limitations imposed by the client or by the circumstances; the 
nature and length of the professional relationship with the client; and 
the experience, reputation, and ability of the attorney or attorneys 
performing the services,
    (2) In the case of an accredited representative as defined in Sec. 
1292.1(a)(4) of this chapter, any fee or compensation for specific 
services rendered for any person, except that an accredited 
representative may be regularly compensated by the organization of which 
he or she is an accredited representative, or
    (3) In the case of a law student or law graduate as defined in Sec. 
1292.1(a)(2) of this chapter, any fee or compensation for specific 
services rendered for any person, except that a law student or law 
graduate may be regularly compensated by the organization or firm with 
which he or she is associated as long as he or she is appearing without 
direct or indirect remuneration from the client he or she represents;
    (b) Bribes, attempts to bribe, coerces, or attempts to coerce, by 
any means whatsoever, any person (including a party to a case or an 
officer or employee of the Department of Justice) to commit any act or 
to refrain from performing any act in connection with any case;
    (c) Knowingly or with reckless disregard makes a false statement of 
material fact or law, or willfully misleads, misinforms, threatens, or 
deceives any person (including a party to a case or an officer or 
employee of the Department of Justice), concerning any material and 
relevant matter relating to a case, including knowingly or with reckless 
disregard offering false evidence. If a practitioner has offered 
material evidence and comes to know of its falsity, the practitioner 
shall take appropriate remedial measures;
    (d) Solicits professional employment, through in-person or live 
telephone contact or through the use of runners, from a prospective 
client with whom the practitioner has no family or prior professional 
relationship, when a significant motive for the practitioner's doing so 
is the practitioner's pecuniary gain. If the practitioner has no family 
or prior professional relationship with the prospective client known to 
be in need of legal services in a particular matter, the practitioner 
must include the words ``Advertising Material'' on the outside of the 
envelope of any written communication and at the beginning and ending of 
any recorded communication. Such advertising material or similar 
solicitation documents may not be distributed by any person in or around 
the premises of any building in which an Immigration Court is located;
    (e) Is subject to a final order of disbarment or suspension, or has 
resigned with an admission of misconduct.
    (1) In the jurisdiction of any state, possession, territory, 
commonwealth, or the District of Columbia, or in any Federal court in 
which the practitioner is admitted to practice, or
    (2) Before any executive department, board, commission, or other 
governmental unit;
    (f) Knowingly or with reckless disregard makes a false or misleading 
communication about his or her qualifications or services. A 
communication is false or misleading if it:
    (1) Contains a material misrepresentation of fact or law, or omits a 
fact necessary to make the statement considered as a whole not 
materially misleading, or,
    (2) Contains an assertion about the practitioner or his or her 
qualifications or services that cannot be substantiated. A practitioner 
shall not state or imply that he or she has been recognized or certified 
as a specialist in immigration and/or nationality law unless such 
certification is granted by the appropriate state regulatory authority 
or by an organization that has been approved by the appropriate state 
regulatory authority to grant such certification;
    (g) Engages in contumelious or otherwise obnoxious conduct, with 
regard to a case in which he or she acts in a representative capacity, 
which would constitute contempt of court in a judicial proceeding;
    (h) Has been found guilty of, or pleaded guilty or nolo contendere 
to, a serious crime, in any court of the United States, or of any state, 
possession, territory, commonwealth, or the District of Columbia. A 
serious crime includes any felony and also includes any lesser

[[Page 909]]

crime, a necessary element of which, as determined by the statutory or 
common law definition of such crime in the jurisdiction where the 
judgment was entered, involves interference with the administration of 
justice, false swearing, misrepresentation, fraud, willful failure to 
file income tax returns, deceit, dishonesty, bribery, extortion, 
misappropriation, theft, or an attempt, or a conspiracy or solicitation 
of another, to commit a serious crime. A plea or verdict of guilty or a 
conviction after a plea of nolo contendere is deemed to be a conviction 
within the meaning of this section;
    (i) Knowingly or with reckless disregard falsely certifies a copy of 
a document as being a true and complete copy of an original;
    (j) Engages in frivolous behavior in a proceeding before an 
Immigration Court, the Board, or any other administrative appellate body 
under title II of the Immigration and Nationality Act, provided:
    (1) A practitioner engages in frivolous behavior when he or she 
knows or reasonably should have known that his or her actions lack an 
arguable basis in law or in fact, or are taken for an improper purpose, 
such as to harass or to cause unnecessary delay. Actions that, if taken 
improperly, may be subject to disciplinary sanctions include, but are 
not limited to, the making of an argument on any factual or legal 
question, the submission of an application for discretionary relief, the 
filing of a motion, or the filing of an appeal. The signature of a 
practitioner on any filing, application, motion, appeal, brief, or other 
document constitutes certification by the signer that the signer has 
read the filing, application, motion, appeal, brief, or other document 
and that, to the best of the signer's knowledge, information, and 
belief, formed after inquiry reasonable under the circumstances, the 
document is well-grounded in fact and is warranted by existing law or by 
a good faith argument for the extension, modification, or reversal of 
existing law or the establishment of new law, and is not interposed for 
any improper purpose.
    (2) The imposition of disciplinary sanctions for frivolous behavior 
under this section in no way limits the authority of the Board to 
dismiss an appeal summarily pursuant to Sec. 1003.1(d)(1-a);
    (k) Engages in conduct that constitutes ineffective assistance of 
counsel, as previously determined in a finding by the Board or an 
Immigration Judge in an immigration proceeding, and a disciplinary 
complaint is filed within one year of the finding;
    (l) Repeatedly fails to appear for scheduled hearings in a timely 
manner without good cause; or
    (m) Assists any person, other than a practitioner as defined in 
Sec. 1003.101(b), in the performance of activity that constitutes the 
unauthorized practice of law.



  1003.102, Nt.--Table of Contents




    Effective Date Note: At 73 FR 76923, Dec. 18, 2008, Sec. 1003.102 
was amended by removing from paragraph (j)(2) the citation ``Sec. 
1003.1(d)(1-a)'' and adding in its place the citation ``Sec. 
1003.1(d)''; revising paragraphs (e), (k), (l), and (m); and by adding 
paragraphs (n) through (t), effective Jan. 20, 2009. For the convenience 
of the user, the added and revised text is set forth as follows:



Sec. 1003.102  Grounds.

                                * * * * *

    (e) Is subject to a final order of disbarment or suspension, or has 
resigned while a disciplinary investigation or proceeding is pending;

                                * * * * *

    (k) Engages in conduct that constitutes ineffective assistance of 
counsel, as previously determined in a finding by the Board, an 
immigration judge in an immigration proceeding, or a Federal court judge 
or panel, and a disciplinary complaint is filed within one year of the 
finding;
    (l) Repeatedly fails to appear for pre-hearing conferences, 
scheduled hearings, or case-related meetings in a timely manner without 
good cause;
    (m) Assists any person, other than a practitioner as defined in 
Sec. 1003.101(b), in the performance of activity that constitutes the 
unauthorized practice of law. The practice of law before EOIR means 
engaging in practice or preparation as those terms are defined in 
Sec. Sec. 1001.1(i) and (k);

[[Page 910]]

    (n) Engages in conduct that is prejudicial to the administration of 
justice or undermines the integrity of the adjudicative process. Conduct 
that will generally be subject to sanctions under this ground includes 
any action or inaction that seriously impairs or interferes with the 
adjudicative process when the practitioner should have reasonably known 
to avoid such conduct;
    (o) Fails to provide competent representation to a client. Competent 
representation requires the legal knowledge, skill, thoroughness, and 
preparation reasonably necessary for the representation. Competent 
handling of a particular matter includes inquiry into and analysis of 
the factual and legal elements of the problem, and use of methods and 
procedures meeting the standards of competent practitioners;
    (p) Fails to abide by a client's decisions concerning the objectives 
of representation and fails to consult with the client as to the means 
by which they are to be pursued, in accordance with paragraph (r) of 
this section. A practitioner may take such action on behalf of the 
client as is impliedly authorized to carry out the representation;
    (q) Fails to act with reasonable diligence and promptness in 
representing a client.
    (1) A practitioner's workload must be controlled and managed so that 
each matter can be handled competently.
    (2) A practitioner has the duty to act with reasonable promptness. 
This duty includes, but shall not be limited to, complying with all time 
and filing limitations. This duty, however, does not preclude the 
practitioner from agreeing to a reasonable request for a postponement 
that will not prejudice the practitioner's client.
    (3) A practitioner should carry through to conclusion all matters 
undertaken for a client, consistent with the scope of representation as 
previously determined by the client and practitioner, unless the client 
terminates the relationship or the practitioner obtains permission to 
withdraw in compliance with applicable rules and regulations. If a 
practitioner has handled a proceeding that produced a result adverse to 
the client and the practitioner and the client have not agreed that the 
practitioner will handle the matter on appeal, the practitioner must 
consult with the client about the client's appeal rights and the terms 
and conditions of possible representation on appeal;
    (r) Fails to maintain communication with the client throughout the 
duration of the client-practitioner relationship. It is the obligation 
of the practitioner to take reasonable steps to communicate with the 
client in a language that the client understands. A practitioner is only 
under the obligation to attempt to communicate with his or her client 
using addresses or phone numbers known to the practitioner. In order to 
properly maintain communication, the practitioner should:
    (1) Promptly inform and consult with the client concerning any 
decision or circumstance with respect to which the client's informed 
consent is reasonably required;
    (2) Reasonably consult with the client about the means by which the 
client's objectives are to be accomplished. Reasonable consultation with 
the client includes the duty to meet with the client sufficiently in 
advance of a hearing or other matter to ensure adequate preparation of 
the client's case and compliance with applicable deadlines;
    (3) Keep the client reasonably informed about the status of the 
matter, such as significant developments affecting the timing or the 
substance of the representation; and
    (4) Promptly comply with reasonable requests for information, except 
that when a prompt response is not feasible, the practitioner, or a 
member of the practitioner's staff, should acknowledge receipt of the 
request and advise the client when a response may be expected;
    (s) Fails to disclose to the adjudicator legal authority in the 
controlling jurisdiction known to the practitioner to be directly 
adverse to the position of the client and not disclosed by opposing 
counsel;
    (t) Fails to submit a signed and completed Notice of Entry of 
Appearance as Attorney or Representative in compliance with applicable 
rules and regulations when the practitioner:
    (1) Has engaged in practice or preparation as those terms are 
defined in Sec. Sec. 1001.1(i) and (k), and
    (2) Has been deemed to have engaged in a pattern or practice of 
failing to submit such forms, in compliance with applicable rules and 
regulations. Notwithstanding the foregoing, in each case where the 
respondent is represented, every pleading, application, motion, or other 
filing shall be signed by the practitioner of record in his or her 
individual name; or
    (u) Repeatedly files notices, motions, briefs, or claims that 
reflect little or no attention to the specific factual or legal issues 
applicable to a client's case, but rather rely on boilerplate language 
indicative of a substantial failure to competently and diligently 
represent the client.

                                * * * * *



Sec. 1003.103  Immediate suspension and summary disciplinary proceedings; duty 

of practitioner to notify EOIR of conviction or discipline.

    (a) Immediate suspension--(1) Petition. The Office of the General 
Counsel of EOIR shall file a petition with the

[[Page 911]]

Board to suspend immediately from practice before the Board and the 
Immigration Courts any practitioner who has been found guilty of, or 
pleaded guilty or nolo contendere to, a serious crime, as defined in 
Sec. 1003.102(h), or any practitioner who has been disbarred or 
suspended on an interim or final basis by, or has resigned with an 
admission of misconduct from, the highest court of any state, 
possession, territory, commonwealth, or the District of Columbia, or any 
Federal court. A copy of the petition shall be forwarded to the Office 
of the General Counsel of the Service, which may submit a written 
request to the Board that entry of any order immediately suspending a 
practitioner before the Board or the Immigration Courts also apply to 
the practitioner's authority to practice before the Service. Proof of 
service on the practitioner of the Service's request to broaden the 
scope of any immediate suspension must be filed with the Board.
    (2) Immediate suspension. Upon the filing of a petition for 
immediate suspension by the Office of the General Counsel of EOIR, 
together with a certified copy of a court record finding that a 
practitioner has been so found guilty of a serious crime, or has been so 
disciplined or has so resigned, the Board shall forthwith enter an order 
immediately suspending the practitioner from practice before the Board, 
the Immigration Courts, and/or the Service, notwithstanding the pendency 
of an appeal, if any, of the underlying conviction or discipline, 
pending final disposition of a summary disciplinary proceeding as 
provided in paragraph (b) of this section. Such immediate suspension 
will continue until imposition of a final administrative decision. Upon 
good cause shown, the Board may set aside such order of immediate 
suspension when it appears in the interest of justice to do so. If a 
final administrative decision includes the imposition of a period of 
suspension, time spent by the practitioner under immediate suspension 
pursuant to this paragraph may be credited toward the period of 
suspension imposed under the final administrative decision.
    (b) Summary disciplinary proceedings. The Office of the General 
Counsel of EOIR shall promptly initiate summary disciplinary proceedings 
against any practitioner described in paragraph (a) of this section. 
Summary proceedings shall be initiated by the issuance of a Notice of 
Intent to Discipline, accompanied by a certified copy of the order, 
judgment, and/or record evidencing the underlying criminal conviction, 
discipline, or resignation. Summary proceedings shall be conducted in 
accordance with the provisions set forth in Sec. Sec. 1003.105 and 
1003.106. Any such summary proceeding shall not be concluded until all 
direct appeals from an underlying criminal conviction shall have been 
completed.
    (1) In matters concerning criminal convictions, a certified copy of 
the court record, docket entry, or plea shall be conclusive evidence of 
the commission of the crime in any summary disciplinary proceeding based 
thereon.
    (2) In the case of a summary proceeding based upon a final order of 
disbarment or suspension, or a resignation with an admission of 
misconduct, (i.e., reciprocal discipline), a certified copy of a 
judgment or order of discipline shall establish a rebuttable presumption 
of the professional misconduct. Disciplinary sanctions shall follow in 
such a proceeding unless the attorney can rebut the presumption by 
demonstrating by clear, unequivocal, and convincing evidence that:
    (i) The underlying disciplinary proceeding was so lacking in notice 
or opportunity to be heard as to constitute a deprivation of due 
process;
    (ii) There was such an infirmity of proof establishing the 
attorney's professional misconduct as to give rise to the clear 
conviction that the adjudicating official could not, consistent with his 
or her duty, accept as final the conclusion on that subject; or
    (iii) The imposition of discipline by the adjudicating official 
would result in grave injustice.
    (c) Duty of practitioner to notify EOIR of conviction or discipline. 
Any practitioner who has been found guilty of, or pleaded guilty or nolo 
contendere to, a serious crime, as defined in Sec. 1003.102(h), or who 
has been disbarred or suspended by, or who has resigned with an 
admission of misconduct from, the highest

[[Page 912]]

court of any state, possession, territory, commonwealth, or the District 
of Columbia, or by any Federal court, must notify the Office of the 
General Counsel of EOIR of any such conviction or disciplinary action 
within 30 days of the issuance of the initial order, even if an appeal 
of the conviction or discipline is pending. Failure to do so may result 
in immediate suspension as set forth in paragraph (a) of this section 
and other final discipline. This duty to notify applies only to 
convictions for serious crimes and to orders imposing discipline for 
professional misconduct entered on or after August 28, 2000.

    Effective Date Note: At 73 FR 76923, Dec. 18, 2008, Sec. 1003.103 
was amended by revising the first sentence in paragraph (a)(1); the 
first and second sentences in paragraph (a)(2); the first and second 
sentences in paragraph (b) introductory text; revising paragraph (b)(2) 
introductory text; and the first sentence of paragraph (c). Section 
1003.103 was also amended by adding a new sentence after the second 
sentence in paragraph (a)(2). These amendments became effective on Jan. 
20, 2009. For the convenience of the user, the added and revised text is 
set forth as follows:



Sec. 1003.103  Immediate suspension and summary disciplinary 

proceedings; duty of practitioner to notify EOIR of conviction 

or discipline.

    (a) Immediate Suspension--
    (1) Petition. The EOIR disciplinary counsel shall file a petition 
with the Board to suspend immediately from practice before the Board and 
the Immigration Courts any practitioner who has been found guilty of, or 
pleaded guilty or nolo contendere to, a serious crime, as defined in 
Sec. 1003.102(h), or any practitioner who has been suspended or 
disbarred by, or while a disciplinary investigation or proceeding is 
pending has resigned from, the highest court of any State, possession, 
territory, or Commonwealth of the United States, or the District of 
Columbia, or any Federal court, or who has been placed on an interim 
suspension pending a final resolution of the underlying disciplinary 
matter. A copy of the petition shall be forwarded to DHS, which may 
submit a written request to the Board that entry of any order 
immediately suspending a practitioner before the Board or the 
Immigration Courts also apply to the practitioner's authority to 
practice before DHS. Proof of service on the practitioner of DHS's 
request to broaden the scope of any immediate suspension must be filed 
with the Board.
    (2) Immediate suspension. Upon the filing of a petition for 
immediate suspension by the EOIR disciplinary counsel, together with a 
certified copy of a court record finding that a practitioner has been 
found guilty of, or pleaded guilty or nolo contendere to, a serious 
crime, or has been disciplined or has resigned, as described in 
paragraph (a)(1) of this section, the Board shall forthwith enter an 
order immediately suspending the practitioner from practice before the 
Board, the Immigration Courts, and/or DHS, notwithstanding the pendency 
of an appeal, if any, of the underlying disciplinary proceeding, pending 
final disposition of a summary disciplinary proceeding as provided in 
paragraph (b) of this section. Such immediate suspension will continue 
until imposition of a final administrative decision. If an immediate 
suspension is imposed upon a practitioner, the Board may require that 
notice of such suspension be posted at the Board, the Immigration 
Courts, or DHS. * * *

                                * * * * *

    (b) Summary disciplinary proceedings. The EOIR disciplinary counsel 
shall promptly initiate summary disciplinary proceedings against any 
practitioner described in paragraph (a) of this section by the issuance 
of a Notice of Intent to Discipline, upon receipt of a certified copy of 
the order, judgment, and/or record evidencing the underlying criminal 
conviction, discipline, or resignation, and accompanied by a certified 
copy of such document. However, delays in initiation of summary 
disciplinary proceedings under this section will not impact an immediate 
suspension imposed pursuant to paragraph (a) of this section. * * *

                                * * * * *

    (2) In the case of a summary proceeding based upon a final order of 
disbarment or suspension, or a resignation while a disciplinary 
investigation or proceeding is pending (i.e., reciprocal discipline), a 
certified copy of a judgment or order of discipline shall establish a 
rebuttable presumption of the professional misconduct. Disciplinary 
sanctions shall follow in such a proceeding unless the attorney can 
rebut the presumption by demonstrating clear and convincing evidence 
that:

                                * * * * *

    (c) Duty of practitioner to notify EOIR of conviction or discipline. 
Any practitioner who has been found guilty of, or pleaded guilty or nolo 
contendere to, a serious crime, as defined in Sec. 1003.102(h), or who 
has been disbarred or suspended by, or while a disciplinary 
investigation or proceeding is pending has resigned from, the highest 
court of any State, possession, territory, or Commonwealth of the United 
States, or the District

[[Page 913]]

of Columbia, or any Federal court, must notify the EOIR disciplinary 
counsel of any such conviction or disciplinary action within 30 days of 
the issuance of the initial order, even if an appeal of the conviction 
or discipline is pending.* * *

                                * * * * *

    Effective Date Note: At 74 FR 201, Jan. 5, 2009, Sec. 1003.103 was 
amended by correcting instruction 7a which was printed at 73 FR 76923 in 
the issue of Dec. 18, 2008. Instruction 7a. is corrected to read as 
follows: ``Amend Sec. 1003.103 by revising paragraph (a)(1).''. This 
correction applies to the above Dec. 18th amendment which became 
effective on Jan. 20, 2009.



Sec. 1003.104  Filing of complaints; preliminary inquiries; resolutions; 

referral of complaints.

    (a) Filing of complaints--(1) Practitioners authorized to practice 
before the Board and the Immigration Courts. Complaints of criminal, 
unethical, or unprofessional conduct, or of frivolous behavior by a 
practitioner who is authorized to practice before the Board and the 
Immigration Courts, shall be filed with the Office of the General 
Counsel of EOIR. Disciplinary complaints must be submitted in writing 
and must state in detail the information that supports the basis for the 
complaint, including, but not limited to, the names and addresses of the 
complainant and the practitioner, the date(s) of the conduct or 
behavior, the nature of the conduct or behavior, the individuals 
involved, the harm or damages sustained by the complainant, and any 
other relevant information. Any individual may file a complaint with the 
Office of the General Counsel of EOIR using the Form EOIR-44. The Office 
of the General Counsel of EOIR shall notify the Office of the General 
Counsel of the Service of any disciplinary complaint that pertains, in 
whole or in part, to a matter involving the Service.
    (2) Practitioners authorized to practice before the Service. 
Complaints of criminal, unethical, or unprofessional conduct, or of 
frivolous behavior by a practitioner who is authorized to practice 
before the Service, shall be filed with the Office of the General 
Counsel of the Service pursuant to the procedures set forth in Sec. 
292.3(d) of this chapter.
    (b) Preliminary inquiry. Upon receipt of a disciplinary complaint or 
on its own initiative, the Office of the General Counsel of EOIR will 
initiate a preliminary inquiry. If a complaint is filed by a client or 
former client, the complainant thereby waives the attorney-client 
privilege and any other applicable privilege, to the extent necessary to 
conduct a preliminary inquiry and any subsequent proceedings based 
thereon. If the Office of the General Counsel of EOIR determines that a 
complaint is without merit, no further action will be taken. The Office 
of the General Counsel of EOIR may, in its discretion, close a 
preliminary inquiry if the complainant fails to comply with reasonable 
requests for assistance, information, or documentation. The complainant 
and the practitioner shall be notified of any such determination in 
writing.
    (c) Resolutions reached prior to the issuance of a Notice of Intent 
to Discipline. The Office of the General Counsel of EOIR, in its 
discretion, may issue warning letters and admonitions, and may enter 
into agreements in lieu of discipline, prior to the issuance of a Notice 
of Intent to Discipline.
    (d) Referral of complaints of criminal conduct. If the Office of the 
General Counsel of EOIR receives credible information or allegations 
that a practitioner has engaged in criminal conduct, the Office of the 
General Counsel of EOIR shall refer the matter to the Inspector General 
and, if appropriate, to the Federal Bureau of Investigation. In such 
cases, in making the decision to pursue disciplinary sanctions, the 
Office of the General Counsel of EOIR shall coordinate in advance with 
the appropriate investigative and prosecutorial authorities within the 
Department to ensure that neither the disciplinary process nor criminal 
prosecutions are jeopardized.

    Effective Date Note: At 73 FR 76924, Dec. 18, 2008, Sec. 1003.104 
was amended by revising paragraph (a); the first, third, and fourth 
sentences in paragraph (b); paragraph (c); and paragraph (d), effective 
Jan. 20, 2009. For the convenience of the user, the revised text is set 
forth as follows:



Sec. 1003.104  Referral of Complaints

    (a) Filing complaints--(1) Practitioners authorized to practice 
before the Board and the

[[Page 914]]

Immigration Courts. Complaints of criminal, unethical, or unprofessional 
conduct, or of frivolous behavior by a practitioner who is authorized to 
practice before the Board and the Immigration Courts shall be filed with 
the EOIR disciplinary counsel. Disciplinary complaints must be submitted 
in writing and must state in detail the information that supports the 
basis for the complaint, including, but not limited to, the names and 
addresses of the complainant and the practitioner, the date(s) of the 
conduct or behavior, the nature of the conduct or behavior, the 
individuals involved, the harm or damages sustained by the complainant, 
and any other relevant information. Any individual may file a complaint 
with the EOIR disciplinary counsel using the Form EOIR-44. The EOIR 
disciplinary counsel shall notify DHS of any disciplinary complaint that 
pertains, in whole or part, to a matter before DHS.
    (2) Practitioners authorized to practice before DHS. Complaints of 
criminal, unethical, or unprofessional conduct, or frivolous behavior by 
a practitioner who is authorized to practice before DHS shall be filed 
with DHS pursuant to the procedures set forth in Sec. 292.3(d) of this 
chapter.
    (b) Preliminary inquiry. Upon receipt of a disciplinary complaint or 
on its own initiative, the EOIR disciplinary counsel will initiate a 
preliminary inquiry. * * * If the EOIR disciplinary counsel determines 
that a complaint is without merit, no further action will be taken. The 
EOIR disciplinary counsel may, in its discretion, close a preliminary 
inquiry if the complainant fails to comply with reasonable requests for 
assistance, information, or documentation. * * *
    (c) Resolution reached prior to the issuance of a Notice of Intent 
to Discipline. The EOIR disciplinary counsel, in its discretion, may 
issue warning letters and admonitions, and may enter into agreements in 
lieu of discipline, prior to the issuance of a Notice of Intent to 
Discipline.
    (d) Referral of complaints of criminal conduct. If the EOIR 
disciplinary counsel receives credible information or allegations that a 
practitioner has engaged in criminal conduct, the EOIR disciplinary 
counsel shall refer the matter to DHS or the appropriate United States 
Attorney and, if appropriate, to the Inspector General, the Federal 
Bureau of Investigation, or other law enforcement agency. In such cases, 
in making the decision to pursue disciplinary sanctions, the EOIR 
disciplinary counsel shall coordinate in advance with the appropriate 
investigative and prosecutorial authorities within the Department to 
ensure that neither the disciplinary process nor criminal prosecutions 
are jeopardized.

                                * * * * *



Sec. 1003.105  Notice of Intent to Discipline.

    (a) Issuance of Notice to practitioner. If, upon completion of the 
preliminary inquiry, the Office of the General Counsel of EOIR 
determines that sufficient prima facie evidence exists to warrant 
charging a practitioner with professional misconduct as set forth in 
Sec. 1003.102, it will issue a Notice of Intent to Discipline to the 
practitioner named in the complaint. This notice will be served upon the 
practitioner by personal service as defined in Sec. 103.5a of 8 CFR 
chapter I. Such notice shall contain a statement of the charge(s), a 
copy of the preliminary inquiry report, the proposed disciplinary 
sanctions to be imposed, the procedure for filing an answer or 
requesting a hearing, and the mailing address and telephone number of 
the Board.
    (b) Copy of Notice to the Service; reciprocity of disciplinary 
sanctions. A copy of the Notice of Intent to Discipline shall be 
forwarded to the Office of the General Counsel of the Service. The 
Office of the General Counsel of the Service may submit a written 
request to the Board or the adjudicating official requesting that any 
discipline imposed upon a practitioner which restricts his or her 
authority to practice before the Board or the Immigration Courts also 
apply to the practitioner's authority to practice before the Service. 
Proof of service on the practitioner of any request to broaden the scope 
of the proposed discipline must be filed with the adjudicating official.
    (c) Answer--(1) Filing. The practitioner shall file a written answer 
to the Notice of Intent to Discipline with the Board within 30 days of 
the date of service of the Notice of Intent to Discipline unless, on 
motion to the Board, an extension of time to answer is granted for good 
cause. A motion for an extension of time to answer must be received by 
the Board no later than three (3) working days before the time to answer 
has expired. A copy of the answer and any such motion shall be served by 
the practitioner on the Office of the General Counsel of EOIR (or the 
Office of the General Counsel of the Service with respect to a Notice of 
Intent to Discipline issued by the Service).

[[Page 915]]

    (2) Contents. The answer shall contain a statement of facts which 
constitute the grounds of defense and shall specifically admit or deny 
each allegation set forth in the Notice of Intent to Discipline. Every 
allegation in the Notice of Intent to Discipline which is not denied in 
the answer shall be deemed to be admitted and may be considered as 
proved, and no further evidence in respect of such allegation need be 
adduced. The practitioner may also state affirmatively special matters 
of defense and may submit supporting documents, including affidavits or 
statements, along with the answer.
    (3) Request for hearing. The practitioner shall also state in the 
answer whether he or she requests a hearing on the matter. If no such 
request is made, the opportunity for a hearing will be deemed waived.
    (d) Failure to file an answer. (1) Failure to file an answer within 
the time period prescribed in the Notice of Intent to Discipline, except 
where the time to answer is extended by the Board, shall constitute an 
admission of the allegations in the Notice of Intent to Discipline and 
no further evidence with respect to such allegations need be adduced.
    (2) Upon such a default by the practitioner, the Office of the 
General Counsel shall submit to the Board proof of personal service of 
the Notice of Intent to Discipline. The practitioner shall be precluded 
thereafter from requesting a hearing on the matter. The Board shall 
issue a final order adopting the recommended disciplinary sanctions in 
the Notice of Intent to Discipline unless to do so would foster a 
tendency toward inconsistent dispositions for comparable conduct, or 
would otherwise be unwarranted or not in the interest of justice. Any 
final order imposing discipline shall not become effective sooner than 
15 days from the date of the order to provide the practitioner 
opportunity to comply with the terms of such order, including, but not 
limited to, withdrawing from pending immigration matters and notifying 
immigration clients of the imposition of any sanction. A practitioner 
may file a motion to set aside a final order of discipline issued 
pursuant to this paragraph, with service of such motion on the Office of 
the General Counsel of EOIR, provided:
    (i) Such a motion is filed within 15 days of the date of service of 
the final order; and
    (ii) His or her failure to file an answer was due to exceptional 
circumstances (such as serious illness of the practitioner or death of 
an immediate relative of the practitioner, but not including less 
compelling circumstances) beyond the control of the practitioner.



  1003.105, Nt.--Table of Contents




    Effective Date Note: At 73 FR 76925, Dec. 18, 2008, Sec. 1003.105 
was amended by revising paragraph (a); the first and second sentences of 
paragraph (b); the third sentence of paragraph (c)(1); and paragraph 
(d)(2) introductory text, effective Jan. 20, 2009. For the convenience 
of the user, the revised text is set forth as follows:



Sec. 1003.105  Notice of Intent to Discipline.

    (a) Issuance of Notice to practitioner. (1) If, upon completion of 
the preliminary inquiry, the EOIR disciplinary counsel determines that 
sufficient prima facie evidence exists to warrant charging a 
practitioner with professional misconduct as set forth in Sec. 
1003.102, he or she will file with the Board and issue to the 
practitioner who was the subject of the preliminary inquiry a Notice of 
Intent to Discipline. Service of this notice will be made upon the 
practitioner by either certified mail to his or her last known address, 
as defined in paragraph (a)(2) of this section, or by personal delivery. 
Such notice shall contain a statement of the charge(s), a copy of the 
preliminary inquiry report, the proposed disciplinary sanctions to be 
imposed, the procedure for filing an answer or requesting a hearing, and 
the mailing address and telephone number of the Board. In summary 
disciplinary proceedings brought pursuant to Sec. 1003.103(b), a 
preliminary inquiry report is not required to be filed with the Notice 
of Intent to Discipline.
    (2) For the purposes of this section, the last known address of a 
practitioner is the practitioner's address as it appears in EOIR's case 
management system if the practitioner is actively representing a party 
before EOIR on the date that the EOIR disciplinary counsel issues the 
Notice of Intent to Discipline. If the practitioner does not have a 
matter pending before EOIR on the date of the issuance of a Notice of 
Intent to Discipline, then the last known address for a practitioner 
will be as follows:
    (i) Attorneys in the United States: the attorney's address that is 
on record with a

[[Page 916]]

state jurisdiction that licensed the attorney to practice law.
    (ii) Accredited representatives: the address of a recognized 
organization with which the accredited representative is affiliated.
    (iii) Accredited officials: the address of the embassy of the 
foreign government that employs the accredited official.
    (iv) All other practitioners: the address for the practitioner that 
appears in EOIR's case management system for the most recent matter on 
which the practitioner represented a party.
    (b) Copy of Notice to DHS; reciprocity of disciplinary sanctions. A 
copy of the Notice of intent to Discipline shall be forwarded to DHS. 
DHS may submit a written request to the Board or the adjudicating 
official requesting that any discipline imposed upon a practitioner 
which restricts his or her authority to practice before the Board or the 
Immigration Courts also apply to the practitioner's authority to 
practice before DHS. * * *
    (c) * * *
    (1) * * * A copy of the answer and any such motion shall be served 
by the practitioner on the counsel for the government.

                                * * * * *

    (d) * * *

                                * * * * *

    (2) Upon such a default by the practitioner, the counsel for the 
government shall submit to the Board proof of service of the Notice of 
Intent to Discipline. The practitioner shall be precluded thereafter 
from requesting a hearing on the matter. The Board shall issue a final 
order adopting the proposed disciplinary sanctions in the Notice of 
Intent to Discipline unless to do so would foster a tendency toward 
inconsistent dispositions for comparable conduct or would otherwise be 
unwarranted or not in the interests of justice. With the exception of 
cases in which the Board has already imposed an immediate suspension 
pursuant to Sec. 1003.103, any final order imposing discipline shall 
not become effective sooner than 15 days from the date of the order to 
provide the practitioner opportunity to comply with the terms of such 
order, including, but not limited to, withdrawing from any pending 
immigration matters and notifying immigration clients of the imposition 
of any sanction. A practitioner may file a motion to set aside a final 
order of discipline issued pursuant to this paragraph, with service of 
such motion on the EOIR disciplinary counsel, provided:

                                * * * * *



Sec. 1003.106  Hearing and disposition.

    (a) Hearing--(1) Procedure. (i) The Chief Immigration Judge shall, 
upon the filing of an answer, appoint an Immigration Judge as an 
adjudicating official. At the request of the Chief Immigration Judge or 
in the interest of efficiency, the Director of EOIR may appoint an 
Administrative Law Judge as an adjudicating official. An Immigration 
Judge or Administrative Law Judge shall not serve as the adjudicating 
official in any case in which he or she is also the complainant. An 
Immigration Judge shall not serve as the adjudicating official in any 
case involving a practitioner who regularly appears before him or her.
    (ii) Upon the practitioner's request for a hearing, the adjudicating 
official shall designate the time and place of the hearing with due 
regard to the location of the practitioner's practice or residence, the 
convenience of witnesses, and any other relevant factors. Such notice 
shall be served upon the practitioner by personal service as defined in 
Sec. 103.5a of 8 CFR chapter I. The practitioner shall be afforded 
adequate time to prepare his or her case in advance of the hearing. Pre-
hearing conferences may be scheduled at the discretion of the 
adjudicating official in order to narrow issues, to obtain stipulations 
between the parties, to exchange information voluntarily, and otherwise 
to simplify and organize the proceeding. Settlement agreements reached 
after the issuance of a Notice of Intent to Discipline are subject to 
final approval by the adjudicating official or if the practitioner has 
not filed an answer, subject to final approval by the Board.
    (iii) The practitioner may be represented at the hearing by counsel 
at no expense to the government. Counsel for the practitioner shall file 
a Notice of Entry of Appearance on Form EOIR-28 in accordance with the 
procedures set forth in this Part 3. At the hearing, the practitioner 
shall have a reasonable opportunity to examine and object to evidence 
presented by the government, to present evidence on his or her own 
behalf, and to cross-examine witnesses presented by the government.

[[Page 917]]

    (iv) In rendering a decision, the adjudicating official shall 
consider the following: the complaint, the preliminary inquiry report, 
the Notice of Intent to Discipline, the answer and any supporting 
documents, and any other evidence presented at the hearing (or, if the 
practitioner files an answer but does not request a hearing, any 
pleading, brief, or other materials submitted by counsel for the 
government). Counsel for the government shall bear the burden of proving 
the grounds for disciplinary sanctions enumerated in the Notice of 
Intent to Discipline by clear, unequivocal, and convincing evidence.
    (v) The record of the hearing, regardless of whether the hearing is 
held before an Immigration Judge or an Administrative Law Judge, shall 
conform to the requirements of 8 CFR part 3, subpart C and 8 CFR 1240.9. 
Disciplinary hearings shall be conducted in the same manner as 
Immigration Court proceedings as is appropriate, and shall be open to 
the public, except that:
    (A) Depending upon physical facilities, the adjudicating official 
may place reasonable limitations upon the number of individuals in 
attendance at any one time, with priority being given to the press over 
the general public, and
    (B) For the purposes of protecting witnesses, parties, or the public 
interest, the adjudicating official may limit attendance or hold a 
closed hearing.
    (2) Failure to appear at the hearing. If the practitioner fails to 
appear at the hearing, the adjudicating official shall then proceed and 
decide the case in the absence of the practitioner, in accordance with 
paragraph (b) of this section, based upon the available record, 
including any additional evidence or arguments presented by EOIR or the 
Service at the hearing. In such a proceeding, the Office of the General 
Counsel of EOIR or the Office of the General Counsel of the Service 
shall submit to the adjudicating official proof of personal service of 
the Notice of Intent to Discipline as well as the Notice of the Hearing. 
The practitioner shall be precluded thereafter from participating 
further in the proceedings. Any final order imposing discipline entered 
in absentia shall be a final order, but shall not become effective 
sooner than 15 days from the date of the order to provide the 
practitioner opportunity to comply with the terms of such order, 
including, but not limited to, withdrawing from pending immigration 
matters and notifying immigration clients of the imposition of any 
sanction. A final order of discipline issued pursuant to this paragraph 
shall not be subject to further review, except that the practitioner may 
file a motion to set aside the order, with service of such motion on the 
Office of the General Counsel of EOIR (or the Office of the General 
Counsel of the Service), provided:
    (i) Such a motion is filed within 15 days of the date of issuance of 
the final order; and
    (ii) His or her failure to appear at the hearing was due to 
exceptional circumstances (such as serious illness of the practitioner 
or death of an immediate relative of the practitioner, but not including 
less compelling circumstances) beyond the control of the practitioner.
    (b) Decision. The adjudicating official shall consider the entire 
record, including any testimony and evidence presented at the hearing, 
and, as soon as practicable after the hearing, render a decision. If the 
adjudicating official finds that one or more of the grounds for 
disciplinary sanctions enumerated in the Notice of Intent to Discipline 
have been established by clear, unequivocal, and convincing evidence, he 
or she shall rule that the disciplinary sanctions set forth in the 
Notice of Intent to Discipline be adopted, modified, or otherwise 
amended. If the adjudicating official determines that the practitioner 
should be suspended, the time period for such suspension shall be 
specified. Any grounds for disciplinary sanctions enumerated in the 
Notice of Intent to Discipline that have not been established by clear, 
unequivocal, and convincing evidence shall be dismissed. Except as 
provided in paragraph (a)(2) of this section, the adjudicating 
official's decision becomes final only upon waiver of appeal or 
expiration of the time for appeal to the Board, whichever comes first, 
nor does it take effect during the pendency of an appeal to the Board as 
provided in Sec. 1003.6.

[[Page 918]]

    (c) Appeal. Upon the issuance of a decision by the adjudicating 
official, either party or both parties may appeal to the Board to 
conduct a de novo review of the record. Parties must comply with all 
pertinent provisions for appeals to the Board, including provisions 
relating to forms and fees, as set forth in this Part 3, and must use 
the Form EOIR-45. The decision of the Board is a final administrative 
order as provided in Sec. 1003.1(d)(2), and shall be served upon the 
practitioner by personal service as defined in Sec. 103.5a of 8 CFR 
chapter I. Any final order imposing discipline shall not become 
effective sooner than 15 days from the date of the order to provide the 
practitioner opportunity to comply with the terms of such order, 
including, but not limited to, withdrawing from any pending immigration 
matters and notifying immigration clients of the imposition of any 
sanction. A copy of the final administrative order of the Board shall be 
served upon the Office of the General Counsel of EOIR and the Office of 
the General Counsel of the Service. If disciplinary sanctions are 
imposed against a practitioner (other than a private censure), the Board 
may require that notice of such sanctions be posted at the Board, the 
Immigration Courts, or the Service for the period of time during which 
the sanctions are in effect, or for any other period of time as 
determined by the Board.
    (d) Referral. In addition to, or in lieu of, initiating disciplinary 
proceedings against a practitioner, the Office of the General Counsel of 
EOIR may notify any appropriate Federal and/or state disciplinary or 
regulatory authority of any complaint filed against a practitioner. Any 
final administrative decision imposing sanctions against a practitioner 
(other than a private censure) shall be reported to any such 
disciplinary or regulatory authority in every jurisdiction where the 
disciplined practitioner is admitted or otherwise authorized to 
practice. In addition, the Office of the General Counsel of EOIR shall 
transmit notice of all public discipline imposed under this rule to the 
National Lawyer Regulatory Data Bank maintained by the American Bar 
Association.

    Effective Date Note: At 73 FR 76925, Dec. 18, 2008, Sec. 1003.106 
was amended by revising the section heading; the heading of paragraph 
(a); the first and second sentences of newly redesignated paragraph 
(a)(2)(ii); paragraphs (a)(2)(iii) and (a)(2)(iv); the first sentence of 
paragraph (a)(2)(v) introductory text; paragraph (a)(3) introductory 
text; paragraph (a)(3)(ii); paragraphs (b) and (c); the first and third 
sentences of paragraph (d). Sec. 1003.106 is also amended by 
redesignating paragraphs (a)(1) and (a)(2) as paragraphs (a)(2) and 
(a)(3); and adding a new paragraph (a)(1). All these amendments became 
effective Jan. 20, 2009. For the convenience of the user, the added and 
revised text is set forth as follows:







Sec. 1003.106  Right to be heard and disposition.

    (a) Right to be heard--(1) Summary disciplinary proceedings. If a 
practitioner who is subject to summary disciplinary proceedings pursuant 
to Sec. 1003.103(b) requests a hearing, he or she must make a prima 
facie showing to the Board in his or her answer that there is a material 
issue of fact in dispute with regard to the basis for summary 
disciplinary proceedings, or with one or more of the exceptions set 
forth in Sec. 1003.103(b)(2)(i)-(iii). If the Board determines that 
there is a material issue of fact in dispute with regard to the basis 
for summary disciplinary proceedings, or with one or more of the 
exceptions set forth in Sec. 1003.103(b)(2)(i)-(iii), then the Board 
shall refer the case to the Chief Immigration Judge for the appointment 
of an adjudicating official. Failure to make such a prima facie showing 
shall result in the denial of a request for a hearing. The Board shall 
retain jurisdiction over the case and issue a final order.
    (2) * * *
    (ii) Except as provided in Sec. 1003.105(c)(3), upon the 
practitioner's request for a hearing, the adjudicating official may 
designate the time and place of the hearing with due regard to the 
location of the practitioner's practice or residence, the convenience of 
witnesses, and any other relevant factors. When designating the time and 
place of a hearing, the adjudicating official shall provide for the 
service of a notice of hearing, as the term ``service'' is defined in 8 
CFR 1003.13, on the practitioner and the counsel for the government. * * 
*
    (iii) The practitioner may be represented by counsel at no expense 
to the government. Counsel for the practitioner shall file a Notice of 
Entry of Appearance on Form EOIR-28 in accordance with the procedures 
set forth in this part. Each party shall have a reasonable opportunity 
to examine and object to evidence presented by the other party, to 
present evidence on his or her own

[[Page 919]]

behalf, and to cross-examine witnesses presented by the other party. If 
a practitioner files an answer but does not request a hearing, then the 
adjudicating official shall provide the parties with the opportunity to 
submit briefs and evidence to support or refute any of the charges or 
affirmative defenses.
    (iv) In rendering a decision, the adjudicating official shall 
consider the following: The complaint, the preliminary inquiry report, 
the Notice of Intent to Discipline, the answer, any supporting 
documents, and any other evidence, including pleadings, briefs, and 
other materials. Counsel for the government shall bear the burden of 
proving the grounds for disciplinary sanctions enumerated in the Notice 
of Intent to Discipline by clear and convincing evidence.
    (v) The record of proceedings, regardless of whether an immigration 
judge or an administrative law judge is the adjudicating official, shall 
conform to the requirements of 8 CFR part 1003, subpart C and 8 CFR 
1240.9. * * *

                                * * * * *

    (3) Failure to appear in proceedings. If the practitioner requests a 
hearing as provided in section 1003.105(c)(3) but fails to appear, the 
adjudicating official shall then proceed and decide the case in the 
absence of the practitioner, in accordance with paragraph (b) of this 
section, based upon the available record, including any additional 
evidence or arguments presented by the counsel for the government at the 
hearing. In such a proceeding, the counsel for the government shall 
submit to the adjudicating official proof of service of the Notice of 
Intent to Discipline as well as the Notice of the Hearing. The 
practitioner shall be precluded thereafter from participating further in 
the proceedings. A final order of discipline issued pursuant to this 
paragraph shall not be subject to further review, except that the 
practitioner may file a motion to set aside the order, with service of 
such motion on the counsel for the government, provided:

                                * * * * *

    (ii) His or her failure to appear was due to exceptional 
circumstances (such as serious illness of the practitioner or death of 
an immediate relative of the practitioner, but not including less 
compelling circumstances) beyond the control of the practitioner.
    (b) Decision. The adjudicating official shall consider the entire 
record and, as soon as practicable, render a decision. If the 
adjudicating official finds that one or more of the grounds for 
disciplinary sanctions enumerated in the Notice of Intent to Discipline 
have been established by clear and convincing evidence, he or she shall 
rule that the disciplinary sanctions set forth in the Notice of Intent 
to Discipline be adopted, modified, or otherwise amended. If the 
adjudicating official determines that the practitioner should be 
suspended, the time period for such suspension shall be specified. Any 
grounds for disciplinary sanctions enumerated in the Notice of Intent to 
Discipline that have not been established by clear and convincing 
evidence shall be dismissed. The adjudicating official shall provide for 
the service of a written decision or a memorandum summarizing an oral 
decision, as the term ``service'' is defined in 8 CFR 1003.13, on the 
practitioner and the counsel for the government. Except as provided in 
paragraph (a)(2) of this section, the adjudicating official's decision 
becomes final only upon waiver of appeal or expiration of the time for 
appeal to the Board, whichever comes first, nor does it take effect 
during the pendency of an appeal to the Board as provided in Sec. 
1003.6.
    (c) Appeal. Upon the issuance of a decision by the adjudicating 
official, either party or both parties may appeal to the Board to 
conduct a review pursuant to Sec. 1003.1(d)(3). Parties must comply 
with all pertinent provisions for appeals to the Board, including 
provisions relating to forms and fees, as set forth in Part 1003, and 
must use the Form EOIR-45. The decision of the Board is a final 
administrative order as provided in Sec. 1003.1(d)(7), and shall be 
served upon the practitioner as provided in 8 CFR 1003.1(f). With the 
exception of cases in which the Board has already imposed an immediate 
suspension pursuant to Sec. 1003.103, any final order imposing 
discipline shall not become effective sooner than 15 days from the date 
of the order to provide the practitioner opportunity to comply with the 
terms of such order, including, but not limited to, withdrawing from any 
pending immigration matters and notifying immigration clients of the 
imposition of any sanction. A copy of the final administrative order of 
the Board shall be served upon the counsel for the government. If 
disciplinary sanctions are imposed against a practitioner (other than a 
private censure), the Board may require that notice of such sanctions be 
posted at the Board, the Immigration Courts, or DHS for the period of 
time during which the sanctions are in effect, or for any other period 
of time as determined by the Board.
    (d) Referral. In addition to, or in lieu of, initiating disciplinary 
proceedings against a practitioner, the EOIR disciplinary counsel may 
notify an appropriate Federal or state disciplinary or regulatory 
authority of any complaint filed against a practitioner. * * * In 
addition, the EOIR disciplinary counsel shall transmit notice of all 
public discipline

[[Page 920]]

imposed under this rule to the National Lawyer Regulatory Data Bank 
maintained by the American Bar Association.

                                * * * * *



Sec. 1003.107  Reinstatement after expulsion or suspension.

    (a) Expiration of suspension. Upon notice to the Board, a 
practitioner who has been suspended will be reinstated to practice 
before the Board and the Immigration Courts or the Service, or before 
all three authorities, once the period of suspension has expired, 
provided that he or she meets the definition of attorney or 
representative as set forth in Sec. 1001.1(f) and (j), respectively, of 
this chapter. If a practitioner cannot meet the definition of attorney 
or representative, the Board shall decline to reinstate the 
practitioner.
    (b) Petition for reinstatement. A practitioner who has been expelled 
or who has been suspended for one year or more may file a petition for 
reinstatement directly with the Board after one-half of the suspension 
period has expired or one year has passed, whichever is greater, 
provided that he or she meets the definition of attorney or 
representative as set forth in Sec. 1001.1(f) and (j), respectively, of 
this chapter. A copy of such petition shall be served on the Office of 
the General Counsel of EOIR. In matters in which the practitioner was 
ordered expelled or suspended from practice before the Service, a copy 
of such petition shall be served on the Office of the General Counsel of 
the Service.
    (1) The practitioner shall have the burden of demonstrating by 
clear, unequivocal, and convincing evidence that he or she possesses the 
moral and professional qualifications required to appear before the 
Board and the Immigration Courts or the Service, or before all three 
authorities, and that his or her reinstatement will not be detrimental 
to the administration of justice. The Office of the General Counsel of 
EOIR, and in matters in which the practitioner was ordered expelled or 
suspended from practice before the Service, the Office of the General 
Counsel of the Service, may reply within 30 days of service of the 
petition in the form of a written response to the Board, which may 
include documentation of any complaints filed against the expelled or 
suspended practitioner subsequent to his or her expulsion or suspension.
    (2) If a practitioner cannot meet the definition of attorney or 
representative as set forth in Sec. 1001.1(f) and (j), respectively, of 
this chapter, the Board shall deny the petition for reinstatement 
without further consideration. If the petition for reinstatement is 
found to be otherwise inappropriate or unwarranted, the petition shall 
be denied. Any subsequent petitions for reinstatement may not be filed 
before the end of one year from the date of the Board's previous denial 
of reinstatement. If the petition for reinstatement is determined to be 
timely, the practitioner meets the definition of attorney or 
representative, and the petitioner has otherwise set forth by the 
requisite standard of proof that he or she possesses the qualifications 
set forth herein, and that reinstatement will not be detrimental to the 
administration of justice, the Board shall grant the petition and 
reinstate the practitioner. The Board, in its discretion, may hold a 
hearing to determine if the practitioner meets all of the requirements 
for reinstatement.

    Effective Date Note: At 73 FR 76926, Dec. 18, 2008, Sec. 1003.107 
was amended by revising the second and third sentences of paragraph (b) 
introductory text; paragraph (b)(1); and adding a new paragraph (c), 
effective Jan. 20, 2009. For the convenience of the user, the added and 
revised text is set forth as follows:



Sec. 1003.107  Reinstatement after expulsion or suspension.

                                * * * * *

    (b) Petition for reinstatement. * * * A copy of such a petition 
shall be served on the EOIR disciplinary counsel. In matters in which 
the practitioner was ordered expelled or suspended from practice before 
DHS, a copy of such petition shall be served on DHS.
    (1) The practitioner shall have the burden of demonstrating by clear 
and convincing evidence that he or she possess the moral and 
professional qualifications required to appear before the Board and the 
Immigration Courts or DHS, or before all three authorities, and that his 
or her reinstatement will not be detrimental to the administration of 
justice. The EOIR disciplinary counsel and,

[[Page 921]]

in matters in which the practitioner was ordered expelled or suspended 
from practice before DHS, DHS may reply within 30 days of service of the 
petition in the form of a written response to the Board, which may 
include documentation of any complaints filed against the expelled or 
suspended practitioner subsequent to his or her expulsion or suspension.

                                * * * * *

    (c) Appearance after reinstatement. A practitioner who has been 
reinstated to practice by the Board must file a new Notice of Entry of 
Appearance of Attorney or Representative in each case on the form 
required by applicable rules and regulations, even if the reinstated 
practitioner previously filed such a form in a proceeding before the 
practitioner was disciplined.

                                * * * * *



Sec. 1003.108  Confidentiality.

    (a) Complaints and preliminary inquiries. Except as otherwise 
provided by law or regulation, information concerning complaints or 
preliminary inquiries is confidential. A practitioner whose conduct is 
the subject of a complaint or preliminary inquiry, however, may waive 
confidentiality, except that the Office of the General Counsel of EOIR 
may decline to permit a waiver of confidentiality if it is determined 
that an ongoing preliminary inquiry may be substantially prejudiced by 
public disclosure before the filing of a Notice of Intent to Discipline.
    (1) Disclosure of information for the purpose of protecting the 
public. The Office of the General Counsel of EOIR may disclose 
information concerning a complaint or preliminary inquiry for the 
protection of the public when the necessity for disclosing information 
outweighs the necessity for preserving confidentiality in circumstances 
including, but not limited to, the following:
    (i) A practitioner has caused, or is likely to cause, harm to 
client(s), the public, or the administration of justice, such that the 
public or specific individuals should be advised of the nature of the 
allegations. If disclosure of information is made pursuant to this 
paragraph, the Office of the General Counsel of EOIR may define the 
scope of information disseminated and may limit the disclosure of 
information to specified individuals or entities;
    (ii) A practitioner has committed criminal acts or is under 
investigation by law enforcement authorities;
    (iii) A practitioner is under investigation by a disciplinary or 
regulatory authority, or has committed acts or made omissions that may 
reasonably result in investigation by such authorities;
    (iv) A practitioner is the subject of multiple disciplinary 
complaints and the Office of the General Counsel of EOIR has determined 
not to pursue all of the complaints. The Office of the General Counsel 
of EOIR may inform complainants whose allegations have not been pursued 
of the status of any other preliminary inquiries or the manner in which 
any other complaint(s) against the practitioner have been resolved.
    (2) Disclosure of information for the purpose of conducting a 
preliminary inquiry. The Office of the General Counsel of EOIR, in the 
exercise of discretion, may disclose documents and information 
concerning complaints and preliminary inquiries to the following 
individuals or entities:
    (i) To witnesses or potential witnesses in conjunction with a 
complaint or preliminary inquiry;
    (ii) To other governmental agencies responsible for the enforcement 
of civil or criminal laws;
    (iii) To agencies and other jurisdictions responsible for 
disciplinary or regulatory investigations and proceedings;
    (iv) To the complainant or a lawful designee;
    (v) To the practitioner who is the subject of the complaint or 
preliminary inquiry or the practitioner's counsel of record.
    (b) Resolutions reached prior to the issuance of a Notice of Intent 
to Discipline. Resolutions, such as warning letters, admonitions, and 
agreements in lieu of discipline, reached prior to the issuance of a 
Notice of Intent to Discipline, will remain confidential. However, such 
resolutions may become part of the public record if the practitioner 
becomes subject to a subsequent Notice of Intent to Discipline.

[[Page 922]]

    (c) Notices of Intent to Discipline and action subsequent thereto. 
Notices of Intent to Discipline and any action that takes place 
subsequent to their issuance, except for the imposition of private 
censures, may be disclosed to the public, except that private censures 
may become part of the public record if introduced as evidence of a 
prior record of discipline in any subsequent disciplinary proceeding. 
Settlement agreements reached after the issuance of a Notice of Intent 
to Discipline may be disclosed to the public upon final approval by the 
adjudicating official or the Board. Disciplinary hearings are open to 
the public, except as noted in Sec. 1003.106(a)(1)(v).

    Effective Date Note: At 73 FR 76927, Dec. 18, 2008, Sec. 1003.108 
was amended by revising the second sentence of paragraph (a) 
introductory text; paragraph (a)(1) introductory text; the second 
sentence of paragraph (a)(1)(i); paragraph (a)(1)(iv); and paragraph 
(a)(2), effective Jan. 20, 2009. For the convenience of the user, the 
revised text is set forth as follows:



Sec. 1003.108  Confidentiality.

    (a) Complaints and preliminary inquiries. * * * A practitioner whose 
conduct is the subject of a complaint or preliminary inquiry, however, 
may waive confidentiality, except that the EOIR disciplinary counsel may 
decline to permit a waiver of confidentiality if it is determined that 
an ongoing preliminary inquiry may be substantially prejudiced by public 
disclosure before the filing of a Notice of Intent to Discipline.
    (1) Disclosure of information for the purpose of protecting the 
public. The EOIR disciplinary counsel may disclose information 
concerning a complaint or preliminary inquiry for the protection of the 
public when the necessity for disclosing information outweighs the 
necessity for preserving confidentiality in circumstances including, but 
not limited to, the following:

                                * * * * *

    (i) * * * If disclosure of information is made pursuant to this 
paragraph, the EOIR disciplinary counsel may define the scope of 
information disseminated and may limit the disclosure of information to 
specified individuals and entities;

                                * * * * *

    (iv) A practitioner is the subject of multiple disciplinary 
complaints and the EOIR disciplinary counsel has determined not to 
pursue all of the complaints. The EOIR disciplinary counsel may inform 
complainants whose allegations have not been pursued of the status of 
any other preliminary inquiries or the manner in which any other 
complaint(s) against the practitioner have been resolved.
    (2) Disclosure of information for the purpose of conducting a 
preliminary inquiry. The EOIR disciplinary counsel, in the exercise of 
discretion, may disclose documents and information concerning complaints 
and preliminary inquiries to the following individuals and entities: * * 
*

                                * * * * *



Sec. 1003.109  Discipline of government attorneys.

    Complaints regarding the conduct or behavior of Department 
attorneys, Immigration Judges, or Board Members shall be directed to the 
Office of Professional Responsibility, United States Department of 
Justice. If disciplinary action is warranted, it shall be administered 
pursuant to the Department's attorney discipline procedures.

[[Page 923]]



                  SUBCHAPTER B_IMMIGRATION REGULATIONS



PART 1101_PRESUMPTION OF LAWFUL ADMISSION--Table of Contents




Sec.
1101.1 Presumption of lawful admission.
1101.2 Presumption of lawful admission; entry under erroneous name or 
          other errors.
1101.3 Creation of record of lawful permanent resident status for person 
          born under diplomatic status in the United States.
1101.4 Registration procedure.
1101.5 Special immigrant status for certain G-4 nonimmigrants.

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

    Source: Duplicated from part 101 at 68 FR 9832, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1101 appear at 68 FR 
9846, Feb. 28, 2003.



Sec. 1101.1  Presumption of lawful admission.

    A member of the following classes shall be presumed to have been 
lawfully admitted for permanent residence even though a record of his 
admission cannot be found, except as otherwise provided in this section, 
unless he abandoned his lawful permanent resident status or subsequently 
lost that status by operation of law:
    (a) Prior to June 30, 1906. An alien who establishes that he entered 
the United States prior to June 30, 1906.
    (b) United States land borders. An alien who establishes that, while 
a citizen of Canada or Newfoundland, he entered the United States across 
the Canadian border prior to October 1, 1906; an alien who establishes 
that while a citizen of Mexico he entered the United States across the 
Mexican border prior to July 1, 1908; an alien who establishes that, 
while a citizen of Mexico, he entered the United States at the port of 
Presidio, Texas, prior to October 21, 1918, and an alien for whom a 
record of his actual admission to the United States does not exist but 
who establishes that he gained admission to the United States prior to 
July 1, 1924, pursuant to preexamination at a United States immigration 
station in Canada and that a record of such preexamination exists.
    (c) Virgin Islands. An alien who establishes that he entered the 
Virgin Islands of the United States prior to July 1, 1938, even though a 
record of his admission prior to that date exists as a non-immigrant 
under the Immigration Act of 1924.
    (d) Asiatic barred zone. An alien who establishes that he is of a 
race indigenous to, and a native of a country within, the Asiatic zone 
defined in section 3 of the Act of February 5, 1917, as amended, that he 
was a member of a class of aliens exempted from exclusion by the 
provisions of that section, and that he entered the United States prior 
to July 1, 1924, provided that a record of his admission exists.
    (e) Chinese and Japanese aliens--(1) Prior to July 1, 1924. A 
Chinese alien for whom there exists a record of his admission to the 
United States prior to July 1, 1924, under the laws and regulations 
formerly applicable to Chinese and who establishes that at the time of 
his admission he was a merchant, teacher, or student, and his son or 
daughter under 21 or wife accompanying or following to join him; a 
traveler for curiosity or pleasure and his accompanying son or daughter 
under 21 or accompanying wife; a wife of a United States citizen; a 
returning laborer; and a person erroneously admitted as a United States 
citizen under section 1993 of the Revised Statutes of the United States, 
as amended, his father not having resided in the United States prior to 
his birth.
    (2) On or after July 1, 1924. A Chinese alien for whom there exists 
a record of his admission to the United States as a member of one of the 
following classes; an alien who establishes that he was readmitted 
between July 1, 1924, and December 16, 1943, inclusive, as a returning 
Chinese laborer who acquired 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

[[Page 924]]

June 30, 1924, under section 4 (b) or (d) of the Immigration Act of 
1924; an alien wife of a United States citizen admitted between June 13, 
1930, and December 16, 1943, inclusive, under section 4(a) of the 
Immigration Act of 1924; an alien admitted on or after December 17, 
1943, under section 4(f) of the Immigration Act of 1924; an alien 
admitted on or after December 17, 1943, under section 317(c) of the 
Nationality Act of 1940, as amended; an alien admitted on or after 
December 17, 1943, as a preference or nonpreference quota immigrant 
pursuant to section 2 of that act; and a Chinese or Japanese alien 
admitted to the United States between July 1, 1924, and December 23, 
1952, both dates inclusive, as the wife or minor son or daughter of a 
treaty merchant admitted before July 1, 1924, if the husband-father was 
lawfully admitted to the United States as a treaty merchant before July 
1, 1924, or, while maintaining another status under which he was 
admitted before that date, and his status changed to that of a treaty 
merchant or treaty trader after that date, and was maintaining the 
changed status at the time his wife or minor son or daughter entered the 
United States.
    (f) Citizens of the Philippine Islands--(1) Entry prior to May 1, 
1934. An alien who establishes that he entered the United States prior 
to May 1, 1934, and that he was on the date of his entry a citizen of 
the Philippine Islands, provided that for the purpose of petitioning for 
naturalization he shall not be regarded as having been lawfully admitted 
for permanent residence unless he was a citizen of the Commonwealth of 
the Philippines on July 2, 1946.
    (2) Entry between May 1, 1934, and July 3, 1946. An alien who 
establishes that he entered Hawaii between May 1, 1934, and July 3, 
1946, inclusive, under the provisions of the last sentence of section 
8(a)(1) of the Act of March 24, 1934, as amended, that he was a citizen 
of the Philippine Islands when he entered, and that a record of such 
entry exists.
    (g) Temporarily admitted aliens. The following aliens who when 
admitted expressed an intention to remain in the United States 
temporarily or to pass in transit through the United States, for whom 
records of admission exist, but who remained in the United States: An 
alien admitted prior to June 3, 1921, except if admitted temporarily 
under the 9th proviso to section 3 of the Immigration Act of 1917, or as 
an accredited official of a foreign government, his suite, family, or 
guest, or as a seaman in pursuit of his calling; an alien admitted under 
the Act of May 19, 1921, as amended, who was admissible for permanent 
residence under that Act notwithstanding the quota limitation's thereof 
and his accompanying wife or unmarried son or daughter under 21 who was 
admissible for permanent residence under that Act notwithstanding the 
quota limitations thereof; and an alien admitted under the Act of May 
19, 1921, as amended, who was charged under that Act to the proper quota 
at the time of his admission or subsequently and who remained so 
charged.
    (h) Citizens of the Trust Territory of the Pacific Islands who 
entered Guam prior to December 24, 1952. An alien who establishes that 
while a citizen of the Trust Territory of the Pacific Islands he entered 
Guam prior to December 24, 1952, by records, such as Service records 
subsequent to June 15, 1952, records of the Guamanian Immigration 
Service, records of the Navy or Air Force, or records of contractors of 
those agencies, and was residing in Guam on December 24, 1952.
    (i) Aliens admitted to Guam. An alien who establishes that he was 
admitted to Guam prior to December 24, 1952, by records such as Service 
records subsequent to June 15, 1952, records of the Guamanian 
Immigration Service, records of the Navy or Air Force, or records of 
contractors of those agencies; that he was not excludable under the Act 
of February 5, 1917, as amended; and that he continued to reside in Guam 
until December 24, 1952, and thereafter was not admitted or readmitted 
into Guam as a nonimmigrant, provided that the provisions of this 
paragraph shall not apply 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

[[Page 925]]

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. 1101.2  Presumption of lawful admission; entry under erroneous name or 

other errors.

    An alien who entered the United States as either an immigrant or 
nonimmigrant under any of the following circumstances shall be regarded 
as having been lawfully admitted in such status, except as otherwise 
provided in this part: An alien otherwise admissible whose entry was 
made and recorded under other than his full true and correct name or 
whose entry record contains errors in recording sex, names of relatives, 
or names of foreign places of birth or residence, provided that he 
establishes by clear, unequivocal, and convincing evidence that the 
record of the claimed admission relates to him, and, if entry occurred 
on or after May 22, 1918, if under other than his full, true and correct 
name that he also establishes that the name was not adopted for the 
purpose of concealing his identity when obtaining a passport or visa, or 
for the purpose of using the passport or visa of another person or 
otherwise evading any provision of the immigration laws, and that the 
name used at the time of entry was one by which he had been known for a 
sufficient length of time prior to making application for a passport or 
visa to have permitted the issuing authority or authorities to have made 
any necessary investigation concerning him or that his true identity was 
known to such officials.

[32 FR 9622, July 4, 1967]



Sec. 1101.3  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

[[Page 926]]

United States citizen under the Fourteenth Amendment to the 
Constitution. Such a person may be considered a lawful permanent 
resident at birth.
    (2) Definition of foreign diplomatic officer. Foreign diplomatic 
officer means a person listed in the State Department Diplomatic List, 
also known as the Blue List. It includes ambassadors, ministers, 
charg[eacute]s d'affaires, counselors, secretaries and attach[eacute]s 
of embassies and legations as well as members of the Delegation of the 
Commission of the European Communities. The term also includes 
individuals with comparable diplomatic status and immunities who are 
accredited to the United Nations or to the Organization of American 
States, and other individuals who are also accorded comparable 
diplomatic status.
    (b) Child born subject to the jurisdiction of the United States. A 
child born in the United States is born subject to the jurisdiction of 
the United States and is a United States citizen if the parent is not a 
``foreign diplomatic officer'' as defined in paragraph (a)(2) of this 
section. This includes, for example, a child born in the United States 
to one of the following foreign government officials or employees:
    (1) Employees of foreign diplomatic missions whose names appear in 
the State Department list entitled ``Employees of Diplomatic Missions 
Not Printed in the Diplomatic List,'' also known as the White List; 
employees of foreign diplomatic missions accredited to the United 
Nations or the Organization of American States; or foreign diplomats 
accredited to other foreign states. The majority of these individuals 
enjoy certain diplomatic immunities, but they are not ``foreign 
diplomatic officers'' as defined in paragraph (a)(2) of this section. 
The immunities, if any, of their family members are derived from the 
status of the employees or diplomats.
    (2) Foreign government employees with limited or no diplomatic 
immunity such as consular officials named on the State Department list 
entitled ``Foreign Consular Officers in the United States'' and their 
staffs.
    (c) Voluntary registration as lawful permanent resident of person 
born to foreign diplomat. Since a person born in the United States to a 
foreign diplomatic officer is not subject to the jurisdiction of the 
United States, his/her registration as a lawful permanent resident of 
the United States is voluntary. The provisions of section 262 of the Act 
do not apply to such a person unless and until that person ceases to 
have the rights, privileges, exemptions, or immunities which may be 
claimed by a foreign diplomatic officer.
    (d) Retention of lawful permanent residence. To be eligible for 
lawful permanent resident status under paragraph (a) of this section, an 
alien must establish that he/she has not abandoned his/her residence in 
the United States. One of the tests for retention of lawful permanent 
resident status is continuous residence, not continuous physical 
presence, in the United States. Such a person will not be considered to 
have abandoned his/her residence in the United States solely by having 
been admitted to the United States in a nonimmigrant classification 
under paragraph (15)(A) or (15)(G) of section 101(a) of the Act after a 
temporary stay in a foreign country or countries on one or several 
occasions.

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

[47 FR 940, Jan. 8, 1982]



Sec. 1101.4  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. 1101.1 or Sec. 1101.2 or for lawful permanent 
residence as a person born in the United States to a foreign diplomatic 
officer under Sec. 1101.3 is described in Sec. 264.2 of 8 CFR chapter 
1.

(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; 68 
FR 10351, Mar. 5, 2003]



Sec. 1101.5  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

[[Page 927]]

shall be made on Form I-485. The application date of the I-485 shall be 
the date of acceptance by the Service as properly filed. If the 
application date is other than the fee receipt date it must be noted and 
initialed by a Service officer. The date of application for adjustment 
of status is the closing date for computing the residence and physical 
presence requirement. The applicant must have complied with all 
requirements as of the date of application.
    (b) Documentation. All documents must be submitted in accordance 
with Sec. 103.2(b) of this chapter. The application shall be 
accompanied by documentary evidence establishing the aggregate residence 
and physical presence required. Documentary evidence may include 
official employment verification, records of official or personnel 
transactions or recordings of events occurring during the period of 
claimed residence and physical presence. Affidavits of credible 
witnesses may also be accepted. Persons unable to furnish evidence in 
their own names may furnish evidence in the names of parents or other 
persons with whom they have been living, if affidavits of the parents or 
other persons are submitted attesting to the claimed residence and 
physical presence. The claimed family relationship to the principle G-4 
international organization officer or employee must be substantiated by 
the submission of verifiable civil documents.
    (c) Residence and physical presence requirements. All applicants 
applying under sections 101(a)(27)(I) (i), (ii), and (iii) of the INA 
must have resided and been physically present in the United States for a 
designated period of time.
    For purposes of this section only, an absence from the United States 
to conduct official business on behalf of the employing organization, or 
approved customary leave shall not be subtracted from the aggregated 
period of required residence or physical presence for the current or 
former G-4 officer or employee or the accompanying spouse and unmarried 
sons or daughters of such officer or employee, provided residence in the 
United States is maintained during such absences, and the duty station 
of the principle G-4 nonimmigrant continues to be in the United States. 
Absence from the United States by the G-4 spouse or unmarried son or 
daughter without the principle G-4 shall not be subtracted from the 
aggregate period of residence and physical presence if on customary 
leave as recognized by the international organization employer. Absence 
by the unmarried son or daughter while enrolled in a school outside the 
United States will not be counted toward the physical presence 
requirement.
    (d) Maintenance of nonimmigrant status. Section 101(a)(27)(I) (i), 
and (ii) requires the applicant to accrue the required period of 
residence and physical presence in the United States while maintaining 
status as a G-4 or N nonimmigrant. Section 101(a)(27)(I)(iii) requires 
such time accrued only in G-4 nonimmigrant status.
    Maintaining G-4 status for this purpose is defined as maintaining 
qualified employment with a ``G'' international organization or 
maintaining the qualifying family relationship with the G-4 
international organization officer or employee. Maintaining status as an 
N nonimmigrant for this purpose requires the qualifying family 
relationship to remain in effect. Unauthorized employment will not 
remove an otherwise eligible alien from G-4 status for residence and 
physical presence requirements, provided the qualifying G-4 status is 
maintained.

[54 FR 5927, Feb. 7, 1989]



PART 1103_APPEALS, RECORDS, AND FEES--Table of Contents




Sec.
1103.3 Denials, appeals, and precedent decisions.
1103.4 Certifications.
1103.7 Fees.

    Authority: 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; 28 
U.S.C. 509, 510.

    Source: 40 FR 44481, Sept. 26, 1975, unless otherwise noted. 
Duplicated from part 103 at 68 FR 9833, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1103 appear at 68 FR 
9846, Feb. 28, 2003, and at 68 FR 10351, Mar. 5, 2003.

[[Page 928]]



Sec. 1103.3  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. 1003.1(b) of this chapter. Decisions 
under the appellate jurisdiction of the Associate Commissioner, 
Examinations, are listed in Sec. 1103.1(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. 1103.4 of this part and 103.5 of 8 CFR chapter I, 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 1292 of this chapter.
    (C) Record of proceeding. An appeal and any cross-appeal or briefs 
become part of the record of proceeding.
    (D) Appeal filed by Service officer in case within jurisdiction of 
Board. If an appeal is filed by a Service officer, a copy must be served 
on the affected party.
    (iv) Function of Administrative Appeals Unit (AAU). The AAU is the 
appellate body which considers cases under the appellate jurisdiction of 
the Associate Commissioner, Examinations.
    (v) Summary dismissal. An officer to whom an appeal is taken shall 
summarily dismiss any appeal when the party concerned fails to identify 
specifically any erroneous conclusion of law or statement of fact for 
the appeal. The filing by an attorney or representative accredited under 
8 CFR 1292.2(d) of an appeal which is summarily dismissed under this 
section may constitute frivolous behavior as defined in 8 CFR 
1292.3(a)(15). Summary dismissal of an appeal under Sec. 
1103.3(a)(1)(v) in no way limits the other grounds and procedures for 
disciplinary action against attorneys or representatives provided in 8 
CFR 1292.2 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. 1103.7 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 8 CFR chapter I 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

[[Page 929]]

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 8 CFR chapter I, make a new decision favorable to the 
affected party without notifying the attorney or representative.
    (iii) When favorable action not warranted. If the reviewing official 
decides favorable action is not warranted with respect to an otherwise 
properly filed appeal, that official shall ask the attorney or 
representative to submit Form G-28 directly to the AAU. The official 
shall also forward the appeal and the relating record of proceeding to 
the AAU. The appeal may be considered properly filed as of its original 
filing date if the attorney or representative submits a properly 
executed Form G-28 entitling that person to file the appeal.
    (B) Untimely appeal--(1) Rejection without refund of filing fee. An 
appeal which is not filed within the time allowed must be rejected as 
improperly filed. In such a case, any filing fee the Service has 
accepted will not be refunded.
    (2) Untimely appeal treated as motion. If an untimely appeal meets 
the requirements of a motion to reopen as described in Sec. 103.5(a)(2) 
of this part or a motion to reconsider as described in Sec. 103.5(a)(3) 
of this part, the appeal must be treated as a motion, and a decision 
must be made on the merits of the case.
    (vi) Brief. The affected party may submit a brief with Form I-290B.
    (vii) Additional time to submit a brief. The affected party may make 
a written request to the AAU for additional time to submit a brief. The 
AAU may, for good cause shown, allow the affected party additional time 
to submit one.
    (viii) Where to submit supporting brief if additional time is 
granted. If the AAU grants additional time, the affected party shall 
submit the brief directly to the AAU.
    (ix) Withdrawal of appeal. The affected party may withdraw the 
appeal, in writing, before a decision is made.
    (x) Decision on appeal. The decision must be in writing. A copy of 
the decision must be served on the affected party and the attorney or 
representative of record, if any.
    (3) Denials and appeals of special agricultural worker and 
legalization applications and termination of lawful temporary resident 
status under sections 210 and 245A. (i) Whenever an application for 
legalization or special agricultural worker status is denied or the 
status of a lawful temporary resident is terminated, the alien shall be 
given written notice setting forth the specific reasons for the denial 
on Form I-692, Notice of Denial. Form I-692 shall also contain advice to 
the applicant that he or she may appeal the decision and that such 
appeal must be taken within 30 days after service of the notification of 
decision accompanied by any additional new evidence, and a supporting 
brief if desired. The Form I-692 shall additionally provide a notice to 
the 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

[[Page 930]]

copy of the decision shall be served upon the applicant and his or her 
attorney or representative of record. No further administrative appeal 
shall lie from this decision, nor may the application be filed or 
reopened before an immigration judge or the Board of Immigration Appeals 
during exclusion or deportation proceedings.
    (iv) Any appeal which is filed that:
    (A) Fails to state the reason for appeal;
    (B) Is filed solely on the basis of a denial for failure to file the 
application for adjustment of status under section 210 or 245A in a 
timely manner; or
    (C) Is patently frivolous; will be summarily dismissed. An appeal 
received after the thirty (30) day period has tolled will not be 
accepted for processing.
    (4) Denials and appeal of Replenishment Agricultural Worker 
petitions and waivers and termination of lawful temporary resident 
status under section 210A. (i) Whenever a petition for Replenishment 
Agricultural Worker status, or a request for a waiver incident to such 
filing, is denied in accordance with the provisions of part 210a of this 
title, the alien shall be given written notice setting forth the 
specific reasons for the denial on Form I-692, Notice of Denial. Form I-
692 shall also contain advice to the alien that he or she may appeal the 
decision and that such appeal must be taken within thirty (30) days 
after service of the notification of decision accompanied by any 
additional new evidence, and a supporting brief if desired. The Form I-
692 shall additionally provide a notice to the alien that if he or she 
fails to file an appeal from the decision, the Form I-692 shall serve as 
a final notice of ineligibility.
    (ii) Form I-694, Notice of Appeal, in triplicate, shall be used to 
file the appeal, and must be accompanied by the appropriate fee. Form I-
694 shall be furnished with the notice of denial at the time of service 
on the alien.
    (iii) Upon receipt of an appeal, the administrative record will be 
forwarded to the Administrative Appeals Unit as provided by Sec. 
103.1(f)(2) of this part for review and decision. The decision on the 
appeal shall be in writing, and if the appeal is dismissed, shall 
include a final notice of ineligibility. A copy of the decision shall be 
served upon the petitioner and his or her attorney or representative of 
record. No further administrative appeal shall lie from this decision, 
nor may the petition be filed or reopened before an immigration judge or 
the Board of Immigration Appeals during exclusion or deportation 
proceedings.
    (iv) Any appeal which is filed that: Fails to state the reason for 
the appeal; is filed solely on the basis of a denial for failure to file 
the petition for adjustment of status under part 210a of this title in a 
timely manner; or is patently frivolous, will be summarily dismissed. An 
appeal received after the thirty (30) day period has tolled will not be 
accepted for processing.
    (b) Oral argument regarding appeal before AAU--(1) Request. If the 
affected party desires oral argument, the affected party must explain in 
writing specifically why oral argument is necessary. For such a request 
to be considered, it must be submitted within the time allowed for 
meeting other requirements.
    (2) Decision about oral argument. The Service has sole authority to 
grant or deny a request for oral argument. Upon approval of a request 
for oral argument, the AAU shall set the time, date, place, and 
conditions of oral argument.
    (c) Service precedent decisions. The Secretary of Homeland Security, 
or specific officials of the Department of Homeland Security designated 
by the Secretary with the concurrence of the 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

[[Page 931]]

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. 1103.4  Certifications.

    (a) Certification of other than special agricultural worker and 
legalization cases--(1) General. The Commissioner or the Commissioner's 
delegate may direct that any case or class of cases be certified to 
another Service official for decision. In addition, regional 
commissioners, regional service center directors, district directors, 
officers in charge in districts 33 (Bangkok, Thailand), 35 (Mexico City, 
Mexico), and 37 (Rome, Italy), and the Director, National Fines Office, 
may certify their decisions to the appropriate appellate authority (as 
designated in this chapter) when the case involves an unusually complex 
or novel issue of law or fact.
    (2) Notice to affected party. When a case is certified to a Service 
officer, the official certifying the case shall notify the affected 
party using a Notice of Certification (Form I-290C). The affected party 
may submit a brief to the officer to whom the case is certified within 
30 days after service of the notice. If the affected party does not wish 
to submit a brief, the affected party may waive the 30-day period.
    (3) Favorable action. The Service officer to whom a case is 
certified may suspend the 30-day period for submission of a brief if 
that officer takes action favorable to the affected party.
    (4) Initial decision. A case within the appellate jurisdiction of 
the Associate Commissioner, Examinations, or for which there is no 
appeal procedure may be certified only after an initial decision is 
made.
    (5) Certification to AAU. A case described in paragraph (a)(4) of 
this section may be certified to the AAU.
    (6) Appeal to Board. In a case within the Board's appellate 
jurisdiction, an unfavorable decision of the Service official to whom 
the case is certified (whether made initially or upon review) is the 
decision which may be appealed to the Board under Sec. 1003.1(b) of 
this chapter.
    (7) Other applicable provisions. The provisions of Sec. 
1103.3(a)(2)(x) of this part also apply to decisions on certified cases. 
The provisions of Sec. 1103.3(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. 1103.7  Fees.

    (a) Remittances--(1) In general. Fees shall be submitted in 
connection with any formal appeal, motion, or application prescribed in 
this chapter in the amount prescribed by law or regulation. Payment of 
any fee under this section does not constitute filing of the appeal, 
motion, or application with the Board of Immigration Appeals or with the 
immigration court.
    (2) Board of Immigration Appeals. The fee for filing an appeal or a 
motion with the Board of Immigration Appeals shall be paid pursuant to 
the provisions of 8 CFR 1003.8 when a fee is required.
    (3) All other fees payable in connection with immigration 
proceedings. Except as provided in 8 CFR 1003.8, the Executive Office 
for Immigration Review does not accept the payment of any fee relating 
to Executive Office for Immigration Review proceedings. Instead, such 
fees, when required, shall be paid to, and accepted by, an office of the 
Department of Homeland Security authorized to accept fees, as provided 
in 8 CFR 103.7(a)(1). The Department of Homeland Security shall return 
to the payer, at the time of payment, a receipt for any fee paid, and 
shall also return to the payer any documents, submitted

[[Page 932]]

with the fee, relating to any immigration proceeding. The fee receipt 
and the application or motion shall then be submitted to the Executive 
Office for Immigration Review. Remittances to the Department of Homeland 
Security for applications, motions, or forms filed in connection with 
immigration proceedings shall be payable subject to the provisions of 8 
CFR 103.7(a)(2).
    (b) Amounts of fees--(1) Appeals. For filing an appeal to the Board 
of Immigration Appeals, when a fee is required pursuant to 8 CFR 1003.8, 
as follows:

    Form EOIR-26. For filing an appeal from a decision of an immigration 
judge--$110.
    Form EOIR-29. For filing an appeal from a decision of an officer of 
the Department of Homeland Security--$110.
    Form EOIR-45. For filing an appeal from a decision of an 
adjudicating official in a practitioner disciplinary case--$110.

    (2) Motions. For filing a motion to reopen or a motion to 
reconsider, when a fee is required pursuant to 8 CFR 1003.8 or 1003.24--
$110.
    (3) Multiple parties. When an appeal or motion is filed on behalf of 
two or more aliens and the aliens are covered by one decision, only one 
fee is required.
    (4) Applications for Relief--(i) Forms published by the Executive 
Office for Immigration Review. Fees for applications for relief shall be 
paid in accordance with 8 CFR 1003.8(b) and 1003.24(c) as follows:

    Form EOIR-40. Application for Suspension of Deportation--$100.
    Form EOIR-42A. Application for Cancellation of Removal for Certain 
Permanent Residents--$100.
    Form EOIR-42B. Application for Cancellation of Removal and 
Adjustment of Status for Certain Nonpermanent Residents--$100.

    (ii) Forms published by the Department of Homeland Security. The 
fees for applications published by the Department of Homeland Security 
and used in immigration proceedings are governed by 8 CFR 103.7.
    (c) Fee waivers. For provisions relating to the authority of the 
Board or the immigration judges to waive any of the fees prescribed in 
paragraph (b) of this section, see 8 CFR 1003.8 and 1003.24. No waiver 
may be granted with respect to the fee prescribed for a Department of 
Homeland Security form or action that is identified as non-waivable in 
regulations of the Department of Homeland Security.
    (d) Requests for records under the Freedom of Information Act. Fees 
for production or disclosure of records under 5 U.S.C. 552 may be waived 
or reduced in accordance with 28 CFR 16.11.

[69 FR 44907, July 28, 2004]



PART 1204_IMMIGRANT PETITIONS--Table of Contents




    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a, 1255, 
1641; 8 CFR part 2.



Sec. 1204.1  Single level of appellate review.

    The decision of the Board of Immigration Appeals concerning the 
denial of a relative visa petition under 8 CFR chapter I, part 204 
because the petitioner failed to establish eligibility for the bona fide 
marriage exemption contained in that part will constitute the single 
level of appellate review established by statute.

[68 FR 9833, Feb. 28, 2003]



PART 1205_REVOCATION OF APPROVAL OF PETITIONS--Table of Contents




Sec.
1205.1 Automatic revocation.
1205.2 Revocation on notice.

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182, and 
1186a.

    Source: Duplicated from part 205 at 68 FR 9833, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1205 appear at 68 FR 
9846, Feb. 28, 2003.



Sec. 1205.1  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 8 CFR chapter I 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

[[Page 933]]

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, except as provided for in 8 
CFR 205.1(a)(3)(i)(C).
    (D) Upon the legal termination of the marriage when a citizen or 
lawful permanent resident of the United States has petitioned to accord 
his or her spouse immediate relative or family-sponsored preference 
immigrant classification under section 201(b) or section 203(a)(2) of 
the Act. The approval of a spousal self-petition based on the 
relationship to an abusive citizen or lawful permanent resident of the 
United States filed under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) 
of the Act, however, will not be revoked solely because of the 
termination of the marriage to the abuser.
    (E) Upon the remarriage of the spouse of an abusive citizen or 
lawful permanent resident of the United States when the spouse has self-
petitioned under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the 
Act for immediate relative classification under section 201(b) of the 
Act or for preference classification under section 203(a)(2) of the Act.
    (F) Upon a child reaching the age of 21, when he or she has been 
accorded immediate relative status under section 201(b) of the Act. A 
petition filed on behalf of a child under section 204(a)(1)(A)(i) of the 
Act or a self-petition filed by a child of an abusive United States 
citizen under section 204(a)(1)(A)(iv) of the Act, however, will remain 
valid for the duration of the relationship to accord preference status 
under section 203(a)(1) of the Act if the beneficiary remains unmarried, 
or to accord preference status under section 203(a)(3) of the Act if he 
or she marries.
    (G) Upon the marriage of a child, when he or she has been accorded 
immediate relative status under section 201(b) of the Act. A petition 
filed on behalf of the child under section 204(a)(1)(A)(i) of the Act or 
a self-petition filed by a child of an abusive United States citizen 
under section 204(a)(1)(A)(iv) of the Act, however, will remain valid 
for the duration of the relationship to accord preference status under 
section 203(a)(3) of the Act if he or she marries.
    (H) Upon the marriage of a person accorded preference status as a 
son or daughter of a United States citizen under section 203(a)(1) of 
the Act. A petition filed on behalf of the son or daughter, however, 
will remain valid for the duration of the relationship to accord 
preference status under section 203(a)(3) of the Act.
    (I) Upon the marriage of a person accorded status as a son or 
daughter of a lawful permanent resident alien under section 203(a)(2) of 
the Act.
    (J) Upon legal termination of the petitioner's status as an alien 
admitted for lawful permanent residence in the United States unless the 
petitioner became a United States citizen. The provisions of 8 CFR 
204.2(i)(3) shall apply if the petitioner became a United States 
citizen.
    (ii) Petition for Pub. L. 97-359 Amerasian. (A) Upon formal notice 
of withdrawal filed by the petitioner with the officer who approved the 
petition.
    (B) Upon the death of the beneficiary.
    (C) Upon the death or bankruptcy of the sponsor who executed Form I-
361, Affidavit of Financial Support and Intent to Petition for Legal 
Custody for Pub. L. 97-359 Amerasian. In that event, a new petition may 
be filed in the beneficiary's behalf with the documentary evidence 
relating to sponsorship and, in the case of a beneficiary under 18 years 
of age, placement. If the new petition is approved, it will be given the 
priority date of the previously approved petition.

[[Page 934]]

    (D) Upon the death or substitution of the petitioner if other than 
the beneficiary or sponsor. However, if the petitioner dies or no longer 
desires or is able to proceed with the petition, and another person 18 
years of age or older, an emancipated minor, or a corporation 
incorporated in the United States desires to be substituted for the 
deceased or original petitioner, a written request may be submitted to 
the Service or American consular office where the petition is located to 
reinstate the petition and restore the original priority date.
    (E) Upon the beneficiary's reaching the age of 21 when the 
beneficiary has been accorded classification under section 201(b) of the 
Act. Provided that all requirements of section 204(f) of the Act 
continue to be met, however, the petition is to be considered valid for 
purposes of according the beneficiary preference classification under 
section 203(a)(1) of the Act if the beneficiary remains unmarried or 
under section 203(a)(3) if the beneficiary marries.
    (F) Upon the beneficiary's marriage when the beneficiary has been 
accorded classification under section 201(b) or section 203(a)(1) of the 
Act. Provided that all requirements of section 204(f) of the Act 
continue to be met, however, the petition is to be considered valid for 
purposes of according the beneficiary preference classification under 
section 203(a)(3) of the Act.
    (iii) Petitions under section 203(b), other than special immigrant 
juvenile petitions. (A) Upon invalidation pursuant to 20 CFR Part 656 of 
the labor certification in support of the petition.
    (B) Upon the death of the petitioner or beneficiary.
    (C) Upon written notice of withdrawal filed by the petitioner, in 
employment-based preference cases, with any officer of the Service who 
is authorized to grant or deny petitions.
    (D) Upon termination of the employer's business in an employment-
based preference case under section 203(b)(1)(B), 203(b)(1)(C), 
203(b)(2), or 203(b)(3) of the Act.
    (iv) Special immigrant juvenile petitions. Unless the beneficiary 
met all of the eligibility requirements as of November 29, 1990, and the 
petition requirements as of November 29, 1990, and the petition for 
classification as a special immigrant juvenile was filed before June 1, 
1994, or unless the change in circumstances resulted from the 
beneficiary's adoption or placement in a guardianship situation:
    (A) Upon the beneficiary reaching the age of 21;
    (B) Upon the marriage of the beneficiary;
    (C) Upon the termination of the beneficiary's dependency upon the 
juvenile court;
    (D) Upon the termination of the beneficiary's eligibility for long-
term foster care; or
    (E) Upon the determination in administrative or judicial proceedings 
that it is in the beneficiary's best interest to be returned to the 
country of nationality or last habitual residence of the beneficiary or 
of his or her parent or parents.
    (b) Notice. When it shall appear to the director that the approval 
of a petition has been automatically revoked, he or she shall cause a 
notice of such revocation to be sent promptly to the consular office 
having jurisdiction over the visa application and a copy of such notice 
to be mailed to the petitioner's last known address.

[61 FR 13077, Mar. 26, 1996, as amended at 68 FR 10352, Mar. 5, 2003; 71 
FR 35757, June 21, 2006]



Sec. 1205.2  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. 1205.1 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-

[[Page 935]]

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 
1003 of this chapter, unless the Associate Commissioner for Examinations 
exercises appellate jurisdiction over the revocation under part 103 of 8 
CFR chapter I. 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; 68 FR 10352, Mar. 5, 2003]



PART 1207_ADMISSION OF REFUGEES--Table of Contents




    Authority: 8 U.S.C. 1101, 1103, 1151, 1157, 1159, 1182; 8 CFR part 
2.



Sec. 1207.3  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. Duplicated from Sec. 207.3 at 68 FR 9833, 
Feb. 28, 2003]



PART 1208_PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL--Table of Contents




               Subpart A_Asylum and Withholding of Removal

Sec.
1208.1 General.
1208.2 Jurisdiction.
1208.3 Form of application.
1208.4 Filing the application.
1208.5 Special duties toward aliens in custody of the Service.
1208.6 Disclosure to third parties.
1208.7 Employment authorization.
1208.8 Limitations on travel outside the United States.
1208.9 Procedure for interview before an asylum officer.
1208.10 Failure to appear at a scheduled hearing before an immigration 
          judge; failure to follow requirements for biometrics and other 
          biographical information processing.
1208.11 Comments from the Department of State.
1208.12 Reliance on information compiled by other sources.
1208.13 Establishing asylum eligibility.
1208.14 Approval, denial, referral, or dismissal of application.
1208.15 Definition of ``firm resettlement.''
1208.16 Withholding of removal under section 241(b)(3)(B) of the Act and 
          withholding of removal under the Convention Against Torture.
1208.17 Deferral of removal under the Convention Against Torture.
1208.18 Implementation of the Convention Against Torture.
1208.19 Decisions.
1208.20 Determining if an asylum application is frivolous.
1208.21 Admission of the asylee's spouse and children.
1208.22 Effect on exclusion, deportation, and removal proceedings.
1208.23 Restoration of status.
1208.24 Termination of asylum or withholding of removal or deportation.
1208.25-1208.29 [Reserved]

                 Subpart B_Credible Fear of Persecution

1208.30 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.

[[Page 936]]

1208.31 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, 1225, 1231, 1282.

    Source: 62 FR 10337, Mar. 6, 1997, unless otherwise noted. 
Duplicated from part 208 at 68 FR 9834, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1208 appear at 68 FR 
9846, Feb. 28, 2003, and at 68 FR 10352, Mar. 5, 2003.



               Subpart A_Asylum and Withholding of Removal



Sec. 1208.1  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 withholding of deportation under 
section 243(h) of the Act, as it appeared prior to April 1, 1997, except 
as provided in Sec. 1208.16(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 1003 and 1103, 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. 1208.2  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. 1208.30 and 
reasonable fear determinations under Sec. 1208.31.
    (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

[[Page 937]]

Sec. 1208.31, and credible fear determinations referred to the 
Immigration Court under Sec. 1208.30.
    (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;
    (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 1240, 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;

[[Page 938]]

    (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. 1208.3  Form of application.

    (a) An asylum applicant must file Form I-589, Application for Asylum 
and for Withholding of Removal, together with any additional supporting 
evidence in accordance with the instructions on the form. The 
applicant's spouse and children shall be listed on the application and 
may be included in the request for asylum if they are in the United 
States. One additional copy of the principal applicant's Form I-589 must 
be submitted for each dependent included in the principal's application.
    (b) An asylum application shall be deemed to constitute at the same 
time an application for withholding of removal, unless adjudicated in 
deportation or exclusion proceedings commenced prior to April 1, 1997. 
In such instances, the asylum application shall be deemed to constitute 
an application for withholding of deportation under section 243(h) of 
the Act, as that section existed prior to April 1, 1997. Where a 
determination is made that an applicant is ineligible to apply for 
asylum under section 208(a)(2) of the Act, an asylum application shall 
be construed as an application for withholding of removal.
    (c) Form I-589 shall be filed under the following conditions and 
shall have the following consequences:
    (1) If the application was filed on or after January 4, 1995, 
information provided in the application may be used as a basis for the 
initiation of removal proceedings, or to satisfy any burden of proof in 
exclusion, deportation, or removal proceedings;
    (2) The applicant and anyone other than a spouse, parent, son, or 
daughter of the applicant who assists the applicant in preparing the 
application must sign the application under penalty of perjury. The 
applicant's signature establishes a presumption that the applicant is 
aware of the contents of the application. A person other than a relative 
specified in this paragraph who assists the applicant in preparing the 
application also must provide his or her full mailing address;
    (3) An asylum application that does not include a response to each 
of the questions contained in the Form I-589, is unsigned, or is 
unaccompanied by the required materials specified in paragraph (a) of 
this section is incomplete. The filing of an incomplete application 
shall not commence the 150-day period after which the applicant may file 
an application for employment authorization in accordance with Sec. 
1208.7. 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. 1208.20.

[62 FR 10337, Mar. 6, 1997, as amended at 65 FR 76131, Dec. 6, 2000]



Sec. 1208.4  Filing the application.

    Except as prohibited in paragraph (a) of this section, asylum 
applications

[[Page 939]]

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. 1208.16. If an applicant files an asylum application and it 
appears that one or more of the prohibitions contained in section 
208(a)(2) of the Act apply, an asylum officer, in an interview, or an 
immigration judge, in a hearing, shall review the application and give 
the applicant the opportunity to present any relevant and useful 
information bearing on any prohibitions on filing to determine if the 
application should be rejected. For the purpose of making determinations 
under section 208(a)(2) of the Act, the following rules shall apply:
    (1) Authority. Only an asylum officer, an immigration judge, or the 
Board of Immigration Appeals is authorized to make determinations 
regarding the prohibitions contained in section 208(a)(2)(B) or (C) of 
the Act.
    (2) One-year filing deadline. (i) For purposes of section 
208(a)(2)(B) of the Act, an applicant has the burden of proving:
    (A) By clear and convincing evidence that the application has been 
filed within 1 year of the date of the alien's arrival in the United 
States, or
    (B) To the satisfaction of the asylum officer, the immigration 
judge, or the Board that he or she qualifies for an exception to the 1-
year deadline.
    (ii) The 1-year period shall be calculated from the date of the 
alien's last arrival in the United States or April 1, 1997, whichever is 
later. When the last day of the period so computed falls on a Saturday, 
Sunday, or legal holiday, the period shall run until the end of the next 
day that is not a Saturday, Sunday, or legal holiday. For the purpose of 
making determinations under section 208(a)(2)(B) of the Act only, an 
application is considered to have been filed on the date it is received 
by the Service, pursuant to Sec. 103.2(a)(7) of 8 CFR chapter I. 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. 1003.13 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. The failure to have provided required biometrics and other 
biographical information does not prevent the ``filing'' of an asylum 
application for purposes of the one-year filing rule of section 
208(a)(2)(B) of the Act. See 8 CFR 1003.47.
    (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

[[Page 940]]

    (C) In the case of an alien who had previously been included as a 
dependent in another alien's pending asylum application, the loss of the 
spousal or parent-child relationship to the principal applicant through 
marriage, divorce, death, or attainment of age 21.
    (ii) The applicant shall file an asylum application within a 
reasonable period given those ``changed circumstances.'' If the 
applicant can establish that he or she did not become aware of the 
changed circumstances until after they occurred, such delayed awareness 
shall be taken into account in determining what constitutes a 
``reasonable period.''
    (5) The term ``extraordinary circumstances'' in section 208(a)(2)(D) 
of the Act shall refer to events or factors directly related to the 
failure to meet the 1-year deadline. Such circumstances may excuse the 
failure to file within the 1-year period as long as the alien filed the 
application within a reasonable period given those circumstances. The 
burden of proof is on the applicant to establish to the satisfaction of 
the asylum officer, the immigration judge, or the Board of Immigration 
Appeals that the circumstances were not intentionally created by the 
alien through his or her own action or inaction, that those 
circumstances were directly related to the alien's failure to file the 
application within the 1-year period, and that the delay was reasonable 
under the circumstances. Those circumstances may include but are not 
limited to:
    (i) Serious illness or mental or physical disability, including any 
effects of persecution or violent harm suffered in the past, during the 
1-year period after arrival;
    (ii) Legal disability (e.g., the applicant was an unaccompanied 
minor or suffered from a mental impairment) during the 1-year period 
after arrival;
    (iii) Ineffective assistance of counsel, provided that:
    (A) The alien files an affidavit setting forth in detail the 
agreement that was entered into with counsel with respect to the actions 
to be taken and what representations counsel did or did not make to the 
respondent in this regard;
    (B) The counsel whose integrity or competence is being impugned has 
been informed of the allegations leveled against him or her and given an 
opportunity to respond; and
    (C) The alien indicates whether a complaint has been filed with 
appropriate disciplinary authorities with respect to any violation of 
counsel's ethical or legal responsibilities, and if not, why not;
    (iv) The applicant maintained Temporary Protected Status, lawful 
immigrant or nonimmigrant status, or was given parole, until a 
reasonable period before the filing of the asylum application;
    (v) The applicant filed an asylum application prior to the 
expiration of the 1-year deadline, but that application was rejected by 
the Service as not properly filed, was returned to the applicant for 
corrections, and was refiled within a reasonable period thereafter; and
    (vi) The death or serious illness or incapacity of the applicant's 
legal representative or a member of the applicant's immediate family.
    (6) Safe third country agreement. Immigration judges have authority 
to consider issues under section 208(a)(2)(A) of the Act, relating to 
the determination of whether an alien is ineligible to apply for asylum 
and should be removed to a safe third country pursuant to a bilateral or 
multilateral agreement, only with respect to aliens whom DHS has chosen 
to place in removal proceedings under section 240 of the Act, as 
provided in 8 CFR 1240.11(g). For DHS regulations relating to 
determinations by asylum officers on this subject, see 8 CFR 
208.30(e)(6).
    (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

[[Page 941]]

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 1003 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. 1208.2(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. 1003.2 and 1003.8 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 1003. 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. 1208.2(c)(1) and prior to the service on 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. 1208.7(a).

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 64 
FR 13881, Mar. 23, 1999; 65 FR 76131, Dec. 6, 2000; 69 FR 69497, Nov. 
29, 2004; 70 FR 4754, Jan. 31, 2005]



Sec. 1208.5  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. 1208.30 or a 
reasonable fear determination pursuant to Sec. 1208.31. 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. 1208.30 or Sec. 1208.31, 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

[[Page 942]]

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. 1208.30.
    (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. 1208.4(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. 1212.5 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. 
1208.4(b)(3)(iii) shall not stay execution of a final exclusion, 
deportation, or removal order unless such stay is specifically granted 
by the Board of Immigration Appeals or the immigration judge having 
jurisdiction over the motion.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65 
FR 76132, Dec. 6, 2000]



Sec. 1208.6  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. 1208.30, and records pertaining to any 
reasonable fear determination conducted pursuant to Sec. 1208.31, 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. 1208.30 
or Sec. 1208.31;
    (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

[[Page 943]]

    (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. 1208.30 or Sec. 1208.31; 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. 1208.7  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. 1274a.12(c)(8) and 1274a.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. 1208.3 and 1208.4 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. 
1208.3(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 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. 1208.3 and 1208.4. 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 8 CFR chapter I 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. 1274a.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,

[[Page 944]]

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. 1208.8  Limitations on travel outside the United States.

    (a) An applicant who leaves the United States without first 
obtaining advance parole under Sec. 212.5(f) of this chapter shall be 
presumed to have abandoned his or her application under this section.
    (b) An applicant who leaves the United States pursuant to advance 
parole under Sec. 1212.5(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. 1208.9  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. 1208.3(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,

[[Page 945]]

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. 1208.7(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. 
1208.14(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. 1208.7 for the filing and 
adjudication of any employment authorization application.
    (f) The asylum application, all supporting information provided by 
the applicant, any comments submitted by the Department of State or by 
the Service, and any other information specific to the applicant's case 
and considered by the asylum officer shall comprise the record.
    (g) An applicant unable to proceed with the interview in English 
must provide, at no expense to the Service, a competent interpreter 
fluent in both English and the applicant's native language or any other 
language in which the applicant is fluent. The interpreter must be at 
least 18 years of age. Neither the applicant's attorney or 
representative of record, a witness testifying on the applicant's 
behalf, nor a representative or employee of the applicant's country of 
nationality, or if stateless, country of last habitual residence, may 
serve as the applicant's interpreter. Failure without good cause to 
comply with this paragraph may be considered a failure to appear for the 
interview for purposes of Sec. 1208.10.

[62 FR 10337, Mar. 6, 1997, as amended at 65 FR 76133, Dec. 6, 2000]



Sec. 1208.10  Failure to appear at a scheduled hearing before an immigration 

judge; failure to follow requirements for biometrics and other biographical 

information processing.

    Failure to appear for a scheduled immigration hearing without prior 
authorization may result in dismissal of the application and the entry 
of an order of deportation or removal in absentia. Failure to comply 
with processing requirements for biometrics and other biographical 
information within the time allowed will result in dismissal of the 
application, unless the applicant demonstrates that such failure was the 
result of good cause. DHS is responsible for obtaining biometrics and 
other biographical information with respect to any alien in custody.

[70 FR 4754, Jan. 31, 2005]



Sec. 1208.11  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.

[[Page 946]]

    (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. 1208.12  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. 
1208.30 of this part, or a reasonable fear of persecution or torture 
pursuant to Sec. 1208.31, 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 28 CFR part 16.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65 
FR 76133, Dec. 6, 2000]



Sec. 1208.13  Establishing asylum eligibility.

    (a) Burden of proof. The burden of proof is on the applicant for 
asylum to establish that he or she is a refugee as defined in section 
101(a)(42) of the Act. The testimony of the applicant, if credible, may 
be sufficient to sustain the burden of proof without corroboration. The 
fact that the applicant previously established a credible fear of 
persecution for purposes of section 235(b)(1)(B) of the Act does not 
relieve the alien of the additional burden of establishing eligibility 
for asylum.
    (b) Eligibility. The applicant may qualify as a refugee either 
because he or she has suffered past persecution or because he or she has 
a well-founded fear of future persecution.
    (1) Past persecution. An applicant shall be found to be a refugee on 
the basis of past persecution if the applicant can establish that he or 
she has suffered persecution in the past in the applicant's country of 
nationality or, if stateless, in his or her country of last habitual 
residence, on account of race, religion, nationality, membership in a 
particular social group, or political opinion, and is unable or 
unwilling to return to, or avail himself or herself of the protection 
of, that country owing to such persecution. An applicant who has been 
found to have established such past persecution shall also be presumed 
to have a well-founded fear of persecution on the basis of the original 
claim. That presumption may be rebutted if an asylum officer or 
immigration judge makes one of the findings described in paragraph 
(b)(1)(i) of this section. If the applicant's fear of future persecution 
is unrelated to the past persecution, the applicant bears the burden of 
establishing that the fear is well-founded.
    (i) Discretionary referral or denial. Except as provided in 
paragraph (b)(1)(iii) of this section, an asylum officer shall, in the 
exercise of his or her discretion, refer or deny, or an immigration 
judge, in the exercise of his or her discretion, shall deny the asylum 
application of an alien found to be a refugee on the basis of past 
persecution if any of the following is found by a preponderance of the 
evidence:
    (A) There has been a fundamental change in circumstances such that 
the applicant no longer has a well-founded fear of persecution in the 
applicant's country of nationality or, if stateless, in the applicant's 
country of last habitual residence, on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion; or
    (B) The applicant could avoid future persecution by relocating to 
another

[[Page 947]]

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

[[Page 948]]

    (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. 1208.15;
    (C) Can reasonably be regarded as a danger to the security of the 
United States;
    (D) Has been convicted of an aggravated felony, as defined in 
section 101(a)(43) of the Act; or
    (E) Ordered, incited, assisted, or otherwise participated in the 
persecution of any person on account of race, religion, nationality, 
membership in a particular social group, or political opinion.
    (ii) If the evidence indicates that one of the above grounds apply 
to the applicant, he or she shall have the burden of proving by a 
preponderance of the evidence that he or she did not so act.
    (F) Is described within section 212(a)(3)(B)(i)(I),(II), and (III) 
of the Act as it existed prior to April 1, 1997, and as amended by the 
Anti-terrorist and Effective Death Penalty Act of 1996 (AEDPA), unless 
it is determined that there are no reasonable grounds to believe that 
the individual is a danger to the security of the United States.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65 
FR 76133, Dec. 6, 2000]



Sec. 1208.14  Approval, denial, referral, or dismissal of application.

    (a) By an immigration judge. Unless otherwise prohibited in Sec. 
1208.13(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. In no case shall an immigration judge 
grant asylum without compliance with the requirements of Sec. 1003.47 
concerning identity, law enforcement, or security investigations or 
examinations.
    (b) Approval by an asylum officer. In any case within the 
jurisdiction of the Office of International Affairs, unless otherwise 
prohibited in Sec. 1208.13(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. 1208.9, or if, as provided in Sec. 
1208.10, 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.

[[Page 949]]

    (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. 
1212.5(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. 1235.3(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. 1235.3(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. 
1208.30. 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. 1208.30(b).
    (B) Inadmissible on other grounds. In the case of an applicant who 
was paroled into the United States on or after April 1, 1997, and will 
be charged as inadmissible to the United States under provisions of the 
Act other than, or in addition to, sections 212(a)(6)(C) or 212(a)(7), 
the asylum officer shall refer the application to an immigration judge 
for adjudication in removal proceedings.
    (d) Applicability of Sec. 103.2(b) of this chapter. No application 
for asylum or withholding of deportation shall be subject to denial 
pursuant to Sec. 103.2(b) of this chapter.
    (e) Duration. If the applicant is granted asylum, the grant will be 
effective for an indefinite period, subject to termination as provided 
in Sec. 1208.24.
    (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; 70 FR 4754, Jan. 31, 
2005]

[[Page 950]]



Sec. 1208.15  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. 1208.16  Withholding of removal under section 241(b)(3)(B) of the Act and 

withholding of removal under the Convention Against Torture.

    (a) Consideration of application for withholding of removal. An 
asylum officer shall not decide whether the exclusion, deportation, or 
removal of an alien to a country where the alien's life or freedom would 
be threatened must be withheld, except in the case of an alien who is 
otherwise eligible for asylum but is precluded from being granted such 
status due solely to section 207(a)(5) of the Act. In exclusion, 
deportation, or removal proceedings, an immigration judge may adjudicate 
both an asylum claim and a request for withholding of removal whether or 
not asylum is granted.
    (b) Eligibility for withholding of removal under section 241(b)(3) 
of the Act; burden of proof. The burden of proof is on the applicant for 
withholding of removal under section 241(b)(3) of the Act to establish 
that his or her life or freedom would be threatened in the proposed 
country of removal on account of race, religion, nationality, membership 
in a particular social group, or political opinion. The testimony of the 
applicant, if credible, may be sufficient to sustain the burden of proof 
without corroboration. The evidence shall be evaluated as follows:
    (1) Past threat to life or freedom. (i) If the applicant is 
determined to have suffered past persecution in the proposed country of 
removal on account of race, religion, nationality, membership in a 
particular social group, or political opinion, it shall be presumed that 
the applicant's life or freedom would be threatened in the future in the 
country of removal on the basis of the original claim. This presumption 
may be rebutted if an asylum officer or immigration judge finds by a 
preponderance of the evidence:
    (A) There has been a fundamental change in circumstances such that 
the applicant's life or freedom would not be threatened on account of 
any of the five grounds mentioned in this paragraph upon the applicant's 
removal to that country; or
    (B) The applicant could avoid a future threat to his or her life or 
freedom by relocating to another part of the proposed country of removal 
and, under all the circumstances, it would be reasonable to expect the 
applicant to do so.
    (ii) In cases in which the applicant has established past 
persecution, the Service shall bear the burden of establishing by a 
preponderance of the evidence the requirements of paragraphs 
(b)(1)(i)(A) or (b)(1)(i)(B) of this section.
    (iii) If the applicant's fear of future threat to life or freedom is 
unrelated to the past persecution, the applicant bears the burden of 
establishing that it is more likely than not that he or she would suffer 
such harm.
    (2) Future threat to life or freedom. An applicant who has not 
suffered past

[[Page 951]]

persecution may demonstrate that his or her life or freedom would be 
threatened in the future in a country if he or she can establish that it 
is more likely than not that he or she would be persecuted on account of 
race, religion, nationality, membership in a particular social group, or 
political opinion upon removal to that country. Such an applicant cannot 
demonstrate that his or her life or freedom would be threatened if the 
asylum officer or immigration judge finds that the applicant could avoid 
a future threat to his or her life or freedom by relocating to another 
part of the proposed country of removal and, under all the 
circumstances, it would be reasonable to expect the applicant to do so. 
In evaluating whether it is more likely than not that the applicant's 
life or freedom would be threatened in a particular country on account 
of race, religion, nationality, membership in a particular social group, 
or political opinion, the asylum officer or immigration judge shall not 
require the applicant to provide evidence that he or she would be 
singled out individually for such persecution if:
    (i) The applicant establishes that in that country there is a 
pattern or practice of persecution of a group of persons similarly 
situated to the applicant on account of race, religion, nationality, 
membership in a particular social group, or political opinion; and
    (ii) The applicant establishes his or her own inclusion in and 
identification with such group of persons such that it is more likely 
than not that his or her life or freedom would be threatened upon return 
to that country.
    (3) Reasonableness of internal relocation. For purposes of 
determinations under paragraphs (b)(1) and (b)(2) of this section, 
adjudicators should consider, among other things, whether the applicant 
would face other serious harm in the place of suggested relocation; any 
ongoing civil strife within the country; administrative, economic, or 
judicial infrastructure; geographical limitations; and social and 
cultural constraints, such as age, gender, health, and social and 
familial ties. These factors may or may not be relevant, depending on 
all the circumstances of the case, and are not necessarily determinative 
of whether it would be reasonable for the applicant to relocate.
    (i) In cases in which the applicant has not established past 
persecution, the applicant shall bear the burden of establishing that it 
would not be reasonable for him or her to relocate, unless the 
persecutor is a government or is government-sponsored.
    (ii) In cases in which the persecutor is a government or is 
government-sponsored, or the applicant has established persecution in 
the past, it shall be presumed that internal relocation would not be 
reasonable, unless the Service establishes by a preponderance of the 
evidence that under all the circumstances it would be reasonable for the 
applicant to relocate.
    (c) Eligibility for withholding of removal under the Convention 
Against Torture. (1) For purposes of regulations under Title II of the 
Act, ``Convention Against Torture'' shall refer to the United Nations 
Convention Against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment, subject to any reservations, understandings, 
declarations, and provisos contained in the United States Senate 
resolution of ratification of the Convention, as implemented by section 
2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (Pub. 
L. 105-277, 112 Stat. 2681, 2681-821). The definition of torture 
contained in Sec. 1208.18(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:

[[Page 952]]

    (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. 
1208.17(a).
    (d) Approval or denial of application--(1) General. Subject to 
paragraphs (d)(2) and (d)(3) of this section, an application for 
withholding of deportation or removal to a country of proposed removal 
shall be granted if the applicant's eligibility for withholding is 
established pursuant to paragraphs (b) or (c) of this section.
    (2) Mandatory denials. Except as provided in paragraph (d)(3) of 
this section, an application for withholding of removal under section 
241(b)(3) of the Act or under the Convention Against Torture shall be 
denied if the applicant falls within section 241(b)(3)(B) of the Act or, 
for applications for withholding of deportation adjudicated in 
proceedings commenced prior to April 1, 1997, within section 243(h)(2) 
of the Act as it appeared prior to that date. For purposes of section 
241(b)(3)(B)(ii) of the Act, or section 243(h)(2)(B) of the Act as it 
appeared prior to April 1, 1997, an alien who has been convicted of a 
particularly serious crime shall be considered to constitute a danger to 
the community. If the evidence indicates the applicability of one or 
more of the grounds for denial of withholding enumerated in the Act, the 
applicant shall have the burden of proving by a preponderance of the 
evidence that such grounds do not apply.
    (3) Exception to the prohibition on withholding of deportation in 
certain cases. Section 243(h)(3) of the Act, as added by section 413 of 
Pub. L. 104-132 (110 Stat. 1214), shall apply only to applications 
adjudicated in proceedings commenced before April 1, 1997, and in which 
final action had not been taken before April 24, 1996. The discretion 
permitted by that section to override section 243(h)(2) of the Act shall 
be exercised only in the case of an applicant convicted of an aggravated 
felony (or felonies) where he or she was sentenced to an aggregate term 
of imprisonment of less than 5 years and the immigration judge 
determines on an individual basis that the crime (or crimes) of which 
the applicant was convicted does not constitute a particularly serious 
crime. Nevertheless, it shall be presumed that an alien convicted of an 
aggravated felony has been convicted of a particularly serious crime. 
Except in the cases specified in this paragraph, the grounds for denial 
of withholding of deportation in section 243(h)(2) of the Act as it 
appeared prior to April 1, 1997, shall be deemed to comply with the 
Protocol Relating to the Status of Refugees, Jan. 31, 1967, T.I.A.S. No. 
6577.
    (e) Reconsideration of discretionary denial of asylum. In the event 
that an applicant is denied asylum solely in the exercise of discretion, 
and the applicant is subsequently granted withholding of deportation or 
removal under this section, thereby effectively precluding admission of 
the applicant's spouse or minor children following to join him or her, 
the denial of asylum shall be reconsidered. Factors to be considered 
will include the reasons for the denial and reasonable alternatives

[[Page 953]]

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. 
1208.17 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. 1208.17  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. 1208.16(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. 
1208.16(d)(2) or (d)(3), shall be granted deferral of removal to the 
country where he or she is more likely than not to be tortured.
    (b) Notice to alien. (1) After an immigration judge orders an alien 
described in paragraph (a) of this section removed, the immigration 
judge shall inform the alien that his or her removal to the country 
where he or she is more likely than not to be tortured shall be deferred 
until such time as the deferral is terminated under this section. The 
immigration judge shall inform the alien that deferral of removal:
    (i) Does not confer upon the alien any lawful or permanent 
immigration status in the United States;
    (ii) Will not necessarily result in the alien being released from 
the custody of the Service if the alien is subject to such custody;
    (iii) Is effective only until terminated; and
    (iv) Is subject to review and termination if the immigration judge 
determines that it is not likely that the alien would be tortured in the 
country to which removal has been deferred, or if the alien requests 
that deferral be terminated.
    (2) The immigration judge shall also inform the alien that removal 
has been deferred only to the country in which it has been determined 
that the alien is likely to be tortured, and that the alien may be 
removed at any time to another country where he or she is not likely to 
be tortured.
    (c) Detention of an alien granted deferral of removal under this 
section. Nothing in this section shall alter the authority of the 
Service to detain an alien whose removal has been deferred under this 
section and who is otherwise subject to detention. In the case of such 
an alien, decisions about the alien's release shall be made according to 
part 241 of this chapter.
    (d) Termination of deferral of removal. (1) At any time while 
deferral of removal is in effect, the INS District Counsel for the 
District with jurisdiction over an alien whose removal has been deferred 
under paragraph (a) of this section may file a motion with the 
Immigration Court having administrative control pursuant to Sec. 
1003.11 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. 1208.11 of this part.

[[Page 954]]

    (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. 1208.16(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. 
1003.11 of this chapter to terminate the deferral order. If satisfied on 
the basis of the written submission that the alien's request is knowing 
and voluntary, the immigration judge shall terminate the order of 
deferral and the alien may be removed.
    (2) If necessary the immigration judge may calendar a hearing for 
the sole purpose of determining whether the alien's request is knowing 
and voluntary. If the immigration judge determines that the alien's 
request is knowing and voluntary, the order of deferral shall be 
terminated. If the immigration judge determines that the alien's request 
is not knowing and voluntary, the alien's request shall not serve as the 
basis for terminating the order of deferral.
    (f) Termination pursuant to Sec. 1208.18(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. 
1208.18(c).

[64 FR 8489, Feb. 19, 1999]



Sec. 1208.18  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

[[Page 955]]

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. 1208.16(c) and 1208.17(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. 1208.16(c), and, 
if applicable, may be considered for deferral of removal under Sec. 
1208.17(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. 1208.16(c). Such motions shall be governed by 
Sec. Sec. 1003.23 and 1003.2 of this chapter, except that the time and 
numerical limitations on motions to reopen shall not apply and the alien 
shall not be required to demonstrate that the evidence sought to be 
offered was unavailable and could not have been discovered or presented 
at the former hearing. The motion to reopen shall not be granted unless:
    (i) The motion is filed within June 21, 1999; and
    (ii) The evidence sought to be offered establishes a prima facie 
case that the applicant's removal must be withheld or deferred under 
Sec. Sec. 1208.16(c) or 1208.17(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. 1208.16(c) or 1208.17(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. 1208.16(c) or 1208.17(a) shall not be 
subject to the requirements for reopening in Sec. Sec. 1003.2 and 
1003.23 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

[[Page 956]]

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. 1208.16(c) or deferral of removal under Sec. 
1208.17(a) will be considered under Sec. 1208.31.
    (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. 1208.18(d) 
and 1235.8(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. 1208.16(c), unless the alien is subject to 
mandatory denial of withholding of removal under Sec. 1208.16(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. 1208.16(c) and 
deferral of removal under Sec. 1208.17(a).
    (c) Diplomatic assurances against torture obtained by the Secretary 
of State. (1) The Secretary of State may forward to the Attorney General 
assurances that the Secretary has obtained from the government of a 
specific country that an alien would not be tortured there if the alien 
were removed to that country.
    (2) If the Secretary of State forwards assurances described in 
paragraph (c)(1) of this section to the Attorney General for 
consideration by the Attorney General or her delegates under this 
paragraph, the Attorney General shall determine, in consultation with 
the Secretary of State, whether the assurances are sufficiently reliable 
to allow the alien's removal to that country consistent with Article 3 
of the Convention Against Torture. The Attorney General's authority 
under this paragraph may be exercised by the Deputy Attorney General or 
by the Commissioner, Immigration and Naturalization Service, but may not 
be further delegated.
    (3) Once assurances are provided under paragraph (c)(2) of this 
section, the alien's claim for protection under the Convention Against 
Torture shall not be considered further by an immigration judge, the 
Board of Immigration Appeals, or an asylum officer.
    (d) Cases involving aliens ordered removed under section 235(c) of 
the Act. With respect to an alien terrorist or other alien subject to 
administrative removal under section 235(c) of the Act who requests 
protection under Article 3 of the Convention Against Torture, the 
Service will assess the applicability of Article 3 through the removal 
process to ensure that a removal order will not be executed under 
circumstances that would violate the obligations of the United States 
under Article 3. In such cases, the provisions of Part 208 relating to 
consideration or review by an immigration judge, the Board of 
Immigration Appeals, or an asylum officer shall not apply.
    (e) Judicial review of claims for protection from removal under 
Article 3 of the Convention Against Torture. (1) Pursuant to the 
provisions of section 2242(d) of the Foreign Affairs Reform and 
Restructuring Act of 1998, there shall be

[[Page 957]]

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. 1208.19  Decisions.

    The decision of an asylum officer to grant or to deny asylum or to 
refer an asylum application, in accordance with Sec. 1208.14(b) or (c), 
shall be communicated in writing to the applicant. Pursuant to Sec. 
1208.9(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. 1208.20  Determining if an asylum application is frivolous.

    For applications filed on or after April 1, 1997, an applicant is 
subject to the provisions of section 208(d)(6) of the Act only if a 
final order by an immigration judge or the Board of Immigration Appeals 
specifically finds that the alien knowingly filed a frivolous asylum 
application. For purposes of this section, an asylum application is 
frivolous if any of its material elements is deliberately fabricated. 
Such finding shall only be made if the immigration judge or the Board is 
satisfied that the applicant, during the course of the proceedings, has 
had sufficient opportunity to account for any discrepancies or 
implausible aspects of the claim. For purposes of this section, a 
finding that an alien filed a frivolous asylum application shall not 
preclude the alien from seeking withholding of removal.

[64 FR 8492, Feb. 19, 1999. Redesignated at 65 FR 76136, Dec. 6, 2000]



Sec. 1208.21  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. 1208.13(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,

[[Page 958]]

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 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 8 CFR chapter I. 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

[[Page 959]]

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. 1208.22  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. 1208.24. 
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. 1208.24 or deferral is 
terminated pursuant to Sec. 1208.17(d) or (e).

[64 FR 8492, Feb. 19, 1999. Revised at 65 FR 76136, Dec. 6, 2000]



Sec. 1208.23  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. 1208.24  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
    (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. 1208.13(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

[[Page 960]]

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. 1208.24(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. 1208.24 and is inadmissible, the Service shall issue a notice of 
intent to terminate asylum and initiate removal proceedings under 
section 240 of the Act. The alien shall present his or her response to 
the intent to terminate during proceedings before the immigration judge.

[62 FR 10337, Mar. 6, 1997. Redesignated at 64 FR 8490, Feb. 19, 1999 
and futher redesignated and amended at 65 FR 76136, Dec. 6, 2000]



Sec. Sec. 1208.25-1208.29  [Reserved]



                 Subpart B_Credible Fear of Persecution



Sec. 1208.30  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), asylum officers have exclusive jurisdiction to 
make credible fear determinations, and the immigration judges have 
exclusive jurisdiction to review such determinations.
    (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)--(d) [Reserved]
    (e) Determination. For the standards and procedures for asylum 
officers in conducting credible fear interviews and in making positive 
and negative credible fear determinations, see 8 CFR 208.30. The 
immigration judges will review such determinations as provided in 
paragraph (g)(2) of this section and 8 CFR 1003.42.
    (f) [Reserved]
    (g) Procedures for a negative credible fear finding.
    (1) [Reserved]
    (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

[[Page 961]]

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.
    (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. 1003.27.
    (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. 1208.4(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. 1208.4(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, as amended at 69 FR 69497, Nov. 29, 2004]



Sec. 1208.31  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. 1241.8(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

[[Page 962]]

accredited representative at the interview, at no expense to the 
Government, and may present evidence, if available, relevant to the 
possibility of persecution or torture. The alien's representative may 
present a statement at the end of the interview. The asylum officer, in 
his or her discretion, may place reasonable limits on the number of 
persons who may be present at the interview and the length of the 
statement. If the alien is unable to proceed effectively in English, and 
if the asylum officer is unable to proceed competently in a language 
chosen by the alien, the asylum officer shall arrange for the assistance 
of an interpreter in conducting the interview. The interpreter may not 
be a representative or employee of the applicant's country or 
nationality, or if the applicant is stateless, the applicant's country 
of last habitual residence. The asylum officer shall create a summary of 
the material facts as stated by the applicant. At the conclusion of the 
interview, the officer shall review the summary with the alien and 
provide the alien with an opportunity to correct errors therein. The 
asylum officer shall create a written record of his or her 
determination, including a summary of the material facts as stated by 
the applicant, any additional facts relied on by the officers, and the 
officer's determination of whether, in light of such facts, the alien 
has established a reasonable fear of persecution or torture. The alien 
shall be determined to have a reasonable fear of persecution or torture 
if the alien establishes a reasonable possibility that he or she would 
be persecuted on account of his or her race, religion, nationality, 
membership in a particular social group or political opinion, or a 
reasonable possibility that he or she would be tortured in the country 
of removal. For purposes of the screening determination, the bars to 
eligibility for withholding of removal under section 241(b)(3)(B) of the 
Act shall not be considered.
    (d) Authority. Asylum officers conducting screening determinations 
under this section shall have the authority described in Sec. 
1208.9(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. 1208.16. 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

[[Page 963]]

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. 1208.16 and shall 
determine whether the alien's removal to the country of removal must be 
withheld or deferred.
    (ii) Appeal of the immigration judge's decision whether removal must 
be withheld or deferred lies to the Board of Immigration Appeals. If the 
alien or the Service appeals the immigration judge's decision, the Board 
shall review only the immigration judge's decision regarding the alien's 
eligibility for withholding or deferral of removal under Sec. 1208.16.

[64 FR 8493, Feb. 19, 1999; 64 FR 13881, Mar. 23, 1999]



PART 1209_ADJUSTMENT OF STATUS OF REFUGEES AND ALIENS GRANTED ASYLUM--Table of 

Contents




Sec.
1209.1 Adjustment of status of refugees.
1209.2 Adjustment of status of alien granted asylum.

    Authority: 8 U.S.C. 1101, 1103, 1157, 1158, 1159, 1228, 1252, 1282; 
8 CFR part 2.

    Source: Duplicated from part 209 at 68 FR 9835, Feb. 28, 2003

    Editorial Note: Nomenclature changes to part 1209 appear at 68 FR 
9846, Feb. 28, 2003.



Sec. 1209.1  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) of chapter I, 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

[[Page 964]]

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 States. An alien admitted for lawful permanent 
residence will be issued Form I-551, Alien Registration Receipt Card.

[63 FR 30109, June 3, 1998, as amended at 68 FR 10353, Mar. 5, 2003]



Sec. 1209.2  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

[[Page 965]]

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 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 1211_DOCUMENTARY REQUIREMENTS: IMMIGRANTS; WAIVERS--Table of Contents




    Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257; 8 CFR 
part 2.

    Editorial Note: Nomenclature changes to part 1211 appear at 68 FR 
9846, Feb. 28, 2003.



Sec. 1211.4  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

[[Page 966]]

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.

[62 FR 10346, Mar. 6, 1997. Duplicated from Sec. 211.4 at 68 FR 9835, 
Feb. 28, 2003]



PART 1212_DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF 

CERTAIN INADMISSIBLE ALIENS; PAROLE--Table of Contents




Sec.
1212.1 Documentary requirements for nonimmigrants.
1212.2 Consent to reapply for admission after deportation, removal or 
          departure at Government expense.
1212.3 Application for the exercise of discretion under former section 
          212(c).
1212.4 Applications for the exercise of discretion under section 
          212(d)(1) and 212(d)(3).
1212.5 Parole of aliens into the United States.
1212.6 Border crossing identification cards.
1212.7 Waiver of certain grounds of inadmissibility.
1212.8 Certification requirement of section 212(a)(14).
1212.9 Applicability of section 212(a)(32) to certain derivative third 
          and sixth preference and nonpreference immigrants.
1212.10 Section 212(k) waiver.
1212.11 Controlled substance convictions.
1212.12 Parole determinations and revocations respecting Mariel Cubans.
1212.13 [Reserved]
1212.14 Parole determinations for alien witnesses and informants for 
          whom a law enforcement authority (``LEA'') will request S 
          classification.
1212.15 Certificates for foreign health care workers.
1212.16 Applications for exercise of discretion relating to T 
          nonimmigrant status.

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

    Source: 17 FR 11484, Dec. 19, 1952, unless otherwise noted. 
Duplicated from part 212 at 68 FR 9535, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1212 appear at 68 FR 
9846, Feb. 28, 2003, and at 68 FR 10353, Mar. 5, 2003.



Sec. 1212.1  Documentary requirements for nonimmigrants.

    A valid unexpired visa and an unexpired passport, valid for the 
period set forth in section 212(a)(26) of the Act, shall be presented by 
each arriving nonimmigrant alien except that the passport validity 
period for an applicant for admission who is a member of a class 
described in section 102 of the Act is not required to extend beyond the 
date of his application for admission if so admitted, and except as 
otherwise provided in the Act, this chapter, and for the following 
classes:
    (a) Canadian nationals, and aliens having a common nationality with 
nationals of Canada or with British subjects in Bermuda, Bahamian 
nationals or British subjects resident in Bahamas, Cayman Islands, and 
Turks and Caicos Islands. A visa is not required of a Canadian national 
in any case. A passport is not required of such national except after a 
visit outside of the Western Hemisphere. A visa is not required of an 
alien having a common nationality with Canadian nationals or with 
British subjects in Bermuda, who has his or her residence in Canada or 
Bermuda. A passport is not required of such alien except after a visit 
outside of the Western Hemisphere. A visa and a passport are required of 
a Bahamian national or a British subject who has his residence in the 
Bahamas except that a visa is not required of such an alien who, prior 
to or at the time of embarkation for the United States on a vessel or 
aircraft, satisfied the examining U.S. immigration officer at the 
Bahamas, that he is clearly and beyond a doubt entitled to admission in 
all other respects. A visa is not required of a British subject who has 
his residence in, and arrives directly from, the Cayman Islands or the 
Turks and Caicos Islands and who presents a current certificate from the 
Clerk of Court of the Cayman Islands or the Turks and Caicos Islands 
indicating no criminal record.
    (b) 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,

[[Page 967]]

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 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.

[[Page 968]]

    (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 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

[[Page 969]]

Western Samoa. The provision that flights transporting residents of 
Taiwan to Guam may stop at a territory of the United States enroute may 
be rescinded whenever the number of inadmissible passengers arriving in 
Guam who have transited a territory of the United States enroute to Guam 
exceeds 20 percent of all the inadmissible passengers arriving in Guam 
within any consecutive two-month period. Such rescission will be 
published in the Federal Register.
    (ii) For the purposes of this section, the term citizen of a country 
as used in 8 CFR 212.1(e)(1) when applied to Taiwan refers only to 
residents of Taiwan who are in possession of Taiwan National Identity 
Cards and a valid Taiwan passport with a valid re-entry permit issued by 
the Taiwan Ministry of Foreign Affairs. It does not refer to any other 
holder of a Taiwan passport or a passport issued by the People's 
Republic of China.
    (4) Admission under this section renders an alien ineligible for:
    (i) Adjustment of status to that of a temporary resident or, except 
under the provisions of section 245(i) of the Act, to that of a lawful 
permanent resident;
    (ii) Change of nonimmigrant status; or
    (iii) Extension of stay.
    (5) A transportation line bringing any alien to Guam pursuant to 
this section shall:
    (i) Enter into a contract on Form I-760, made by the Commissioner of 
the Immigration and Naturalization Service in behalf of the government;
    (ii) Transport only an alien who is a citizen and in possession of a 
valid passport of a country enumerated in paragraph (e)(3) of this 
section;
    (iii) Transport only an alien in possession of a round-trip, 
nontransferable transportation ticket:
    (A) Bearing a confirmed departure date not exceeding fifteen days 
from the date of admission to Guam,
    (B) Valid for a period of not less than one year,
    (C) Nonrefundable except in the country in which issued or in the 
country of the alien's nationality or residence,
    (D) Issued by a carrier which has entered into an agreement 
described in part (5)(i) of this section, and
    (E) Which the carrier will unconditionally honor when presented for 
return passage; and
    (iv) Transport only an alien in possession of a completed and signed 
Visa Waiver Information Form I-736.
    (f) Direct transits--(1) Transit without visa. A passport and visa 
are not required of an alien who is being transported in immediate and 
continuous transit through the United States in accordance with the 
terms of an agreement entered into between the transportation line and 
the Service under the provisions of section 238(d) of the Act on Form I-
426 to insure such immediate and continuous transit through, and 
departure from, the United States en route to a specifically designated 
foreign country: Provided, That such alien is in possession of a travel 
document or documents establishing his/her identity and nationality and 
ability to enter some country other than the United States.
    (2) Unavailability to transit. This waiver of passport and visa 
requirement is not available to an alien who is a citizen of 
Afghanistan, Angola, Bangladesh, Belarus, Bosnia-aherzegovina, Burma, 
Burundi, Central African Republic, People's Republic of China, Colombia, 
Congo (Brazzaville), Cuba, India, Iran, Iraq, Libya, Nigeria, North 
Korea, Pakistan, Serbia, Sierra Leone, Somalia, Sri Lanka, and Sudan.
    (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

[[Page 970]]

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) 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]

[[Page 971]]


    Editorial Note: For Federal Register citations affecting Sec. 
1212.1, see the List of CFR Sections Affected, which appears in the 
Finding Aids section in the printed volume and on GPO Access.



Sec. 1212.2  Consent to reapply for admission after deportation, removal or 

departure at Government expense.

    (a) Evidence. Any alien who has been deported or removed from the 
United States is inadmissible to the United States unless the alien has 
remained outside of the United States for five consecutive years since 
the date of deportation or removal. If the alien has been convicted of 
an aggravated felony, he or she must remain outside of the United States 
for twenty consecutive years from the deportation date before he or she 
is eligible to re-enter the United States. Any alien who has been 
deported or removed from the United States and is applying for a visa, 
admission to the United States, or adjustment of status, must present 
proof that he or she has remained outside of the United States for the 
time period required for re-entry after deportation or removal. The 
examining consular or immigration officer must be satisfied that since 
the alien's deportation or removal, the alien has remained outside the 
United States for more than five consecutive years, or twenty 
consecutive years in the case of an alien convicted of an aggravated 
felony as defined in section 101(a)(43) of the Act. Any alien who does 
not satisfactorily present proof of absence from the United States for 
more than five consecutive years, or twenty consecutive years in the 
case of an alien convicted of an aggravated felony, to the consular or 
immigration officer, and any alien who is seeking to enter the United 
States prior to the completion of the requisite five- or twenty-year 
absence, must apply for permission to reapply for admission to the 
United States as provided under this part. A temporary stay in the 
United States under section 212(d)(3) of the Act does not interrupt the 
five or twenty consecutive year absence requirement.
    (b) Alien applying to consular officer for nonimmigrant visa or 
nonresident alien border crossing card. (1) An alien who is applying to 
a consular officer for a nonimmigrant visa or a nonresident alien border 
crossing card, must request permission to reapply for admission to the 
United States if five years, or twenty years if the alien's deportation 
was based upon a conviction for an aggravated felony, have not elapsed 
since the date of deportation or removal. This permission shall be 
requested in the manner prescribed through the consular officer, and may 
be granted only in accordance with sections 212(a)(17) and 212(d)(3)(A) 
of the Act and Sec. 1212.4 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

[[Page 972]]

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 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 8 CFR chapter I 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 8 CFR chapter I 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

[[Page 973]]

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]



Sec. 1212.3  Application for the exercise of discretion under former section 

212(c).

    (a) Jurisdiction. An application by an eligible alien for the 
exercise of discretion under former section 212(c) of the Act (as in 
effect prior to April 1, 1997), if made in the course of proceedings 
under section 240 of the Act, or under former sections 235, 236, or 242 
of the Act (as in effect prior to April 1, 1997), shall be submitted to 
the immigration judge by filing Form I-191, Application for Advance 
Permission to Return to Unrelinquished Domicile.
    (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 or circumstances that 
the applicant knows or believes apply to the grounds of excludability, 
deportability, or removability must be described in the application. The 
applicant must also submit all available documentation relating to such 
grounds.
    (c) [Reserved]
    (d) Validity. Once an application is approved, that approval is 
valid indefinitely. However, the approval covers only those specific 
grounds of excludability, deportability, or removability that were 
described in the application. An applicant who failed to describe any 
other grounds of excludability, deportability, or removability, or 
failed to disclose material facts existing at the time of the approval 
of the application, remains excludable, deportable, or removable under 
the previously unidentified grounds. If the applicant is excludable, 
deportable, or removable based upon any previously unidentified grounds 
a new application must be filed.
    (e) Filing or renewal of applications before an immigration judge. 
(1) An eligible alien may renew or submit an application for the 
exercise of discretion under former section 212(c) of the Act in 
proceedings before an immigration judge under section 240 of the Act, or 
under former sections 235, 236, or 242 of the Act (as it existed prior 
to April 1, 1997), 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 
relief under section 212(c), in the exercise of discretion, unless such 
relief is prohibited by paragraph (f) of this section or as otherwise 
provided by law.
    (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. 1003.38 of 
this chapter.
    (f) Limitations on discretion to grant an application under section 
212(c) of the Act. An application for relief under former section 212(c) 
of the Act shall be denied if:
    (1) The alien has not been lawfully admitted for permanent 
residence;
    (2) The alien has not maintained lawful domicile in the United 
States, as either a lawful permanent resident or a lawful temporary 
resident pursuant to section 245A or section 210 of the Act, for at 
least seven consecutive years immediately preceding the filing of the 
application;
    (3) The alien is subject to inadmissibility or exclusion from the 
United States under paragraphs (3)(A), (3)(B), (3)(C), (3)(E), or 
(10)(C) of section 212(a) of the Act;
    (4) The alien has been charged and found to be deportable or 
removable on the basis of a crime that is an aggravated felony, as 
defined in section

[[Page 974]]

101(a)(43) of the Act (as in effect at the time the application for 
section 212(c) relief is adjudicated), except as follows:
    (i) An alien whose convictions for one or more aggravated felonies 
were entered pursuant to plea agreements made on or after November 29, 
1990, but prior to April 24, 1996, is ineligible for section 212(c) 
relief only if he or she has served a term of imprisonment of five years 
or more for such aggravated felony or felonies, and
    (ii) An alien is not ineligible for section 212(c) relief on account 
of an aggravated felony conviction entered pursuant to a plea agreement 
that was made before November 29, 1990; or
    (5) The alien is deportable under former section 241 of the Act or 
removable under section 237 of the Act on a ground which does not have a 
statutory counterpart in section 212 of the Act.
    (g) Relief for certain aliens who were in deportation proceedings 
before April 24, 1996. Section 440(d) of Antiterrorism and Effective 
Death Penalty Act of 1996 (AEDPA) shall not apply to any applicant for 
relief under this section whose deportation proceedings were commenced 
before the Immigration Court before April 24, 1996.
    (h) Availability of section 212(c) relief for aliens who pleaded 
guilty or nolo contendere to certain crimes. For purposes of this 
section, the date of the plea agreement will be considered the date the 
plea agreement was agreed to by the parties. Aliens are not eligible to 
apply for section 212(c) relief under the provisions of this paragraph 
with respect to convictions entered after trial.
    (1) Pleas before April 24, 1996. Regardless of whether an alien is 
in exclusion, deportation, or removal proceedings, an eligible alien may 
apply for relief under former section 212(c) of the Act, without regard 
to the amendment made by section 440(d) of the Antiterrorism and 
Effective Death Penalty Act of 1996, with respect to a conviction if the 
alien pleaded guilty or nolo contendere and the alien's plea agreement 
was made before April 24, 1996.
    (2) Pleas between April 24, 1996 and April 1, 1997. Regardless of 
whether an alien is in exclusion, deportation, or removal proceedings, 
an eligible alien may apply for relief under former section 212(c) of 
the Act, as amended by section 440(d) of the Antiterrorism and Effective 
Death Penalty Act of 1996, with respect to a conviction if the alien 
pleaded guilty or nolo contendere and the alien's plea agreement was 
made on or after April 24, 1996, and before April 1, 1997.
    (3) Please on or after April 1, 1997. Section 212(c) relief is not 
available with respect to convictions arising from plea agreements made 
on or after April 1, 1997.

[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; 69 FR 57834, Sept. 
28, 2004]



Sec. 1212.4  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

[[Page 975]]

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. 1212.4(c) of 
this chapter. Any recommendation which is not clearly approvable shall, 
and any recommendation may, be presented to the appropriate official of 
the Immigration and Naturalization Service for a determination.
    (b) Applications under section 212(d)(3)(B). An application for the 
exercise of discretion under section 212(d)(3)(B) of the Act shall be 
submitted on Form I-192 to the district director in charge of the 
applicant's intended port of entry prior to the applicant's arrival in 
the United States. (For Department of State procedure when a visa is 
required, see 22 CFR 41.95 and paragraph (a) of this section.) If the 
application is made because the applicant may be inadmissible due to 
present or past membership in or affiliation with any Communist or other 
totalitarian party or organization, there shall be attached to the 
application a written statement of the history of the applicant's 
membership or affiliation, including the period of such membership or 
affiliation, whether the applicant held any office in the organization, 
and whether his membership or affiliation was voluntary or involuntary. 
If the applicant alleges that his membership or affiliation was 
involuntary, the statement shall include the 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

[[Page 976]]

the Provisions of part 1003 of this chapter. If denied, the denial shall 
be without prejudice to renewal of the application in the course of 
proceedings before a special inquiry officer under sections 235 and 236 
of the Act and this chapter. When an appeal may not be taken from a 
decision of a special inquiry officer excluding an alien but the alien 
has applied for the exercise of discretion under section 212(d)(3)(B) of 
the Act, the alien may appeal to the Board from a denial of such 
application in accordance with the provisions of Sec. 236.5(b) of this 
chapter.
    (c) Terms of authorization--(1) General. Except as provided in 
paragraph (c)(2) of this section, each authorization under section 
212(d)(3)(A) or (B) of the Act shall specify:
    (i) Each section of law under which the alien is inadmissible;
    (ii) The intended date of each arrival, unless the applicant is a 
bona fide crewman. However, if the authorization is valid for multiple 
entries rather than for a specified number of entries, this information 
shall be specified only with respect to the initial entry;
    (iii) The length of each stay authorized in the United States, which 
shall not exceed the period justified and shall be subject to 
limitations specified in 8 CFR part 214. However, if the authorization 
is valid for multiple entries rather than for a specified number of 
entries, this information shall be specified only with respect to the 
initial entry;
    (iv) The purpose of each stay;
    (v) The number of entries for which the authorization is valid;
    (vi) Subject to the conditions set forth in paragraph (c)(2) of this 
section, the dates on or between which each application for admission at 
POEs in the United States is valid;
    (vii) The justification for exercising the authority contained in 
section 212(d)(3) of the Act; and
    (viii) That the authorization is subject to revocation at any time.
    (2) Conditions of admission. (i) For aliens issued an authorization 
for temporary admission in accordance with this section, admissions 
pursuant to section 212(d)(3) of the Act shall be subject to the terms 
and conditions set forth in the authorization.
    (ii) The period for which the alien's admission is authorized 
pursuant to this section shall not exceed the period justified, or the 
limitations specified, in 8 CFR part 214 for each class of nonimmigrant, 
whichever is less.
    (3) Validity. (i) Authorizations granted to crew members may be 
valid for a maximum period of 2 years for application for admission at 
U.S. POEs and may be valid for multiple entries.
    (ii) An authorization issued in conjunction with an application for 
a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, issued by the DOS 
shall be valid for a period not to exceed the validity of the biometric 
BCC for applications for admission at U.S. POEs and shall be valid for 
multiple entries.
    (iii) A multiple entry authorization for a person other than a crew 
member or applicant for a Form DSP-150 may be made valid for a maximum 
period of 5 years for applications for admission at U.S. POEs.
    (iv) An authorization that was previously issued in conjunction with 
Form I-185, Nonresident Alien Canadian Border Crossing Card, and that is 
noted on the card may remain valid. Although the waiver may remain 
valid, the non-biometric border crossing card portion of this document 
is not valid after that date. This waiver authorization shall cease if 
otherwise revoked or voided.
    (v) A single-entry authorization to apply for admission at a U.S. 
POE shall not be valid for more than 6 months from the date the 
authorization is issued.
    (vi) An authorization may not be revalidated. Upon expiration of the 
authorization, a new application and authorization are required.
    (d) Admission of groups inadmissible under section 212(a)(28) for 
attendance at international conferences. When the Secretary of State 
recommends that a group of nonimmigrant aliens and their accompanying 
family members be admitted to attend international conferences 
notwithstanding their inadmissibility under section 212(a)(28) of the 
Act, the Deputy Commissioner, may enter an order pursuant to the 
authority contained in section 212(d)(3)(A) of the Act specifying the

[[Page 977]]

terms and conditions of their admission and stay.
    (e) Inadmissibility under section 212(a)(1). Pursuant to the 
authority contained in section 212(d)(3) of the Act, the temporary 
admission of a nonimmigrant visitor is authorized notwithstanding 
inadmissibility under section 212(a)(1) of the Act, if such alien is 
accompanied by a member of his/her family, or a guardian who will be 
responsible for him/her during the period of admission authorized.
    (f) Action upon alien's arrival. Upon admitting an alien who has 
been granted the benefits of section 212(d)(3)(A) of the Act, the 
immigration officer shall be guided by the conditions and limitations 
imposed in the authorization and noted by the consular officer in the 
alien's passport. When admitting any alien who has been granted the 
benefits of section 212(d)(3)(B) of the Act, the Immigration officer 
shall note on the arrival-departure record, Form I-94, or crewman's 
landing permit, Form I-95, issued to the alien, the conditions and 
limitations imposed in the authorization.
    (g) Authorizations issued to crewmen without limitation as to period 
of validity. When a crewman who has a valid section 212(d)(3) 
authorization without any time limitation comes to the attention of the 
Service, his travel document shall be endorsed to show that the validity 
of his section 212(d)(3) authorization expires as of a date six months 
thereafter, and any previously-issued Form I-184 shall be lifted and 
Form I-95 shall be issued in its place and similarly endorsed.
    (h) Revocation. The Deputy Commissioner or the district director may 
at any time revoke a waiver previously authorized under section 
212(d)(3) of the Act and shall notify the nonimmigrant in writing to 
that effect.
    (i) Alien witnesses and informants--(1) Waivers under section 
212(d)(1) of the Act. Upon the application of a federal or state law 
enforcement authority (``LEA''), which shall include a state or federal 
court or United States Attorney's Office, pursuant to the filing of Form 
I-854, Inter-Agency Alien Witness and Informant Record, for nonimmigrant 
classification described in section 101(a)(15)(S) of the Act, the 
Commissioner shall determine whether a ground of exclusion exists with 
respect to the alien for whom classification is sought and, if so, 
whether it is in the national interest to exercise the discretion to 
waive the ground of excludability, other than section 212(a)(3)(E) of 
the Act. The Commissioner may at any time revoke a waiver previously 
authorized under section 212(d)(1) of the Act. In the event the 
Commissioner decides to revoke a previously authorized waiver for an S 
nonimmigrant, the Assistant Attorney General, Criminal Division, and the 
relevant LEA shall be notified in writing to that effect. The Assistant 
Attorney General, Criminal Division, shall concur in or object to the 
decision. Unless the Assistant Attorney General, Criminal Division, 
objects within 7 days, he or she shall be deemed to have concurred in 
the decision. In the event of an objection by the Assistant Attorney 
General, Criminal Division, the matter will be expeditiously referred to 
the Deputy Attorney General for a final resolution. In no circumstances 
shall the alien or the relevant LEA have a right of appeal from any 
decision to revoke.
    (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

[[Page 978]]

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. 1212.5  Parole of aliens into the United States.

    Procedures and standards for the granting of parole by the 
Department of Homeland Security can be found at 8 CFR 212.5.

[69 FR 69497, Nov. 29, 2004]



Sec. 1212.6  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. 
1212.4 may be admitted on the basis of the waiver, provided the waiver 
has not expired or otherwise been revoked or voided. Although the waiver 
may remain valid on or after October 1, 2002, the non-biometric border 
crossing card portion of the document is not valid after that date.
    (ii) A Canadian resident who presents a combination B-1/B-2 visa and 
border crossing card (or similar stamp in a passport) issued by the DOS 
prior to April 1, 1998, that does not contain a machine-readable 
biometric identifier, may be admitted on the basis of the nonimmigrant 
visa only, provided it has not expired and the alien remains otherwise 
admissible.
    (2) Application for admission by a national of Mexico--Form DSP-150 
issued by the DOS; DOS-issued combination B-1/B-2 visa and border 
crossing card (or similar stamp in a passport). (i) The rightful holder 
of a Form DSP-150 issued by the DOS may be admitted under Sec. 
1235.1(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

[[Page 979]]

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. 1292.2 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 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. 1212.7  Waiver of certain grounds of inadmissibility.

    (a) General--(1) Filing procedure--(i) Immigrant visa or K 
nonimmigrant visa

[[Page 980]]

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. 1245.15(t). An 
applicant for parole authorization under Sec. 1245.15(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. 1245.13(k)(2) of 
this chapter. An applicant for parole authorization under Sec. 
1245.13(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, 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

[[Page 981]]

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. 1245.15(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. 1245.13(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 
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.

[[Page 982]]

    (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 8 CFR 
chapter I.
    (c) Section 212(e). (1) An alien who was admitted to the United 
States as an exchange visitor, or who acquired that status after 
admission, is subject to the foreign residence requirement of section 
212(e) of the Act if his or her participation in an exchange program was 
financed in whole or in part, directly or indirectly, by a United States 
government agency or by the government of the country of his or her 
nationality or last foreign residence.
    (2) An alien is also subject to the foreign residence requirement of 
section 212(e) of the Act if at the time of admission to the United 
States as an exchange visitor or at the time of acquisition of exchange 
visitor status after admission to the United States, the alien was a 
national or lawful permanent resident of a country which the Director of 
the United States Information Agency had designated, through public 
notice in the Federal Register, as clearly requiring the services of 
persons engaged in the field of specialized knowledge or skill in which 
the alien was to engage in his or her exchange visitor program.
    (3) An alien is also subject to the foreign residence requirement of 
section 212(e) of the Act if he or she was admitted to the United States 
as an exchange visitor on or after January 10, 1977 to receive graduate 
medical education or training, or following admission, acquired such 
status on or after that date for that purpose. However, an exchange 
visitor already participating in an exchange program of graduate medical 
education or training as of January 9, 1977 who was not then subject to 
the foreign residence requirement of section 212(e) and who proceeds or 
has proceeded abroad temporarily and is returning to the United States 
to participate in the same program, continues to be exempt from the 
foreign residence requirement.
    (4) A spouse or child admitted to the United States or accorded 
status under section 101(a)(15)(J) of the Act to accompany or follow to 
join an exchange visitor who is subject to the foreign residence 
requirement of section 212(e) of the Act is also subject to that 
requirement.
    (5) An alien who is subject to the foreign residence requirement and 
who believes that compliance therewith would impose exceptional hardship 
upon his/her spouse or child who is a citizen of the United States or a 
lawful permanent resident alien, or that he or she cannot return to the 
country of his or her nationality or last residence because he or she 
will be subject to persecution on account of race, religion, or 
political opinion, may apply for a waiver on 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

[[Page 983]]

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 8 CFR 
chapter I. An application based upon exceptional hardship shall be 
supported by a statement, dated and signed by the applicant, giving a 
detailed explanation of the basis for his or her belief that his or her 
compliance with the foreign residence requirement of section 212(e) of 
the Act, as amended, would impose exceptional hardship upon his or her 
spouse or child who is a citizen of the United States or a lawful 
permanent resident thereof. The statement shall include all pertinent 
information concerning the incomes and savings of the applicant and 
spouse. If exceptional hardship is claimed upon medical grounds, the 
applicant shall submit a medical certificate from a qualified physician 
setting forth in terms understandable to a layman the nature and effect 
of the illness and prognosis as to the period of time the spouse or 
child will require care or treatment.
    (8) An application based upon the applicant's belief that he or she 
cannot return to the country of his or her nationality or last residence 
because the applicant would be subject to persecution on account of 
race, religion, or political opinion, must be supported by a statement, 
dated and signed by the applicant, setting forth in detail why the 
applicant believes he or she would be subject to persecution.
    (9) Waivers under Pub. L. 103-416 based on a request by a State 
Department of Public Health (or equivalent). In accordance with section 
220 of Pub. L. 103-416, an alien admitted to the United States as a 
nonimmigrant under section 101(a)(15)(J) of the Act, or who acquired 
status under section 101(a)(15)(J) of the Act after admission to the 
United States, to participate in an exchange program of graduate medical 
education or training (as of January 9, 1977), may apply for a waiver of 
the 2-year home country residence and physical presence requirement (the 
``2-year requirement'') under section 212(e)(iii) of the Act based on a 
request by a State Department of Pubic Health, or its equivalent. To 
initiate the application for a waiver under Pub. L. 103-416, the 
Department of Public Health, or its equivalent, or the State in which 
the foreign medical graduate seeks to practice medicine, must request 
the Director of USIA to recommend a waiver to the Service. The waiver 
may be granted only if the Director of USIA provides the Service with a 
favorable waiver recommendation. Only the Service, however, may grant or 
deny the waiver application. If granted, such a waiver shall be subject 
to the terms and conditions imposed under section 214(l) of the Act (as 
redesignated by section 671(a)(3)(A) of Pub. L. 104-208). Although the 
alien is not required to submit a separate waiver application to the 
Service, the burden rests on the alien to establish eligibility for the 
waiver. If the Service approves a waiver request made under Pub. L. 103-
416, the foreign medical graduate (and accompanying dependents) may 
apply for change of nonimmigrant status, from J-1 to H-1B and, in the 
case of dependents of such a foreign medical graduate, from J-2 to H-4. 
Aliens receiving waivers under section 220 of Pub. L. 103-416 are 
subject, in all cases, to the provisions of section 214(g)(1)(A) of the 
Act.
    (i) Eligiblity criteria. J-1 foreign medical graduates (with 
accompanying J-2 dependents) are eligible to apply for a waiver of the 
2-year requirement under Pub. L. 103-416 based on a request by a State 
Department of Public Health (or its equivalent) if:
    (A) They were admitted to the United States under section 
101(a)(15)(J) of the Act, or acquired J nonimmigrant status before June 
1, 2002, to pursue graduate medical education or training in the United 
States.
    (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

[[Page 984]]

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 1103. However, no appeal shall lie where the basis for 
denial is that the number of waivers granted to the State in which the 
foreign medical graduate will be employed would exceed 20 for that 
fiscal year.
    (iii) Conditions. The foreign medical graduate must agree to 
commence employment for the health care facility specified in the waiver 
application within 90 days of receipt of the waiver under Pub. L. 103-
416. The foreign medical graduate may only fulfill the requisite 3-year 
employment contract as an H-1B nonimmigrant. A foreign medical graduate 
who receives a waiver under Pub. L. 103-416 based on a request by a 
State Department of Public Health (or equivalent), and changes his or 
her nonimmigrant classification from J-1 to H-1B, may not apply for 
permanent residence or for any other change of nonimmigrant 
classification unless he or she has fulfilled the 3-year employment 
contract with the health care facility and in the specified HHS-
designated shortage area named in the waiver application.
    (iv) Failure to fulfill the three-year employment contract due to 
extenuating circumstances. A foreign medical graduate who fails to meet 
the terms and conditions imposed on the waiver under section 214(l) of 
the Act and this paragraph will once again become subject to the 2-year 
requirement under section 212(e) of the Act.
    Under section 214(l)(1)(B) of the Act, however, the Service, in the 
exercise of discretion, may excuse early termination of the foreign 
medical graduate's 3-year period of employment with the health care 
facility named in the waiver application due to extenuating 
circumstances. Extenuating circumstances may include, but are not 
limited to, closure of the health care facility or hardship to the 
alien. In determining whether to excuse such early termination of 
employment, the Service shall base its decision on the specific facts of 
each case. In all cases, the burden of establishing eligibility for a 
favorable exercise of discretion rests with the foreign medical 
graduate. Depending on the circumstances, closure of the health care 
facility named in the waiver application may, but need not, be 
considered an extenuating circumstance excusing early termination 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

[[Page 985]]

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 8 CFR chapter I.
    (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 8 CFR chapter I, 
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 8 CFR chapter I. 
Although a new waiver application need not be filed, the new H-1B 
petition shall be accompanied by the documentary evidence generally 
required under Sec. 214.2(h) of this chapter, and the following 
additional documents:
    (1) A copy of 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

[[Page 986]]

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 8 CFR chapter I. 
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 8 CFR chapter I; or establish continued 
eligibility for the waiver and H-1B status, shall (together with their 
dependents) again become subject to the 2-year requirement. Such foreign 
medical graduates and their accompanying H-4 dependents also become 
subject to deportation under section 241(a)(1)(C)(i) of the Act.
    (10) The applicant and his or her spouse may be interviewed by an 
immigration officer in connection with the application and consultation 
may be had with the Director, United States Information Agency and the 
sponsor of any exchange program in which the applicant has been a 
participant.
    (11) The applicant shall be notified of the decision, and if the 
application is denied, of the reasons therefor and of the right of 
appeal in accordance with the provisions of part 103 of this chapter. 
However, no appeal shall lie from the denial of an application for lack 
of a favorable recommendation from the Secretary of State. When an 
interested United States Government agency requests a waiver of the two-
year foreign-residence requirement and the Director, United States 
Information Agency had made a favorable recommendation, the interested 
agency shall be notified of the decision on its request and, if the 
request is denied, of the reasons thereof, and of the right of appeal. 
If the foreign country of the alien's nationality or last residence has 
furnished statement in writing that it has no objection to his/her being 
granted a waiver of the foreign residence requirement and the Director, 
United States Information Agency has made a favorable recommendation, 
the Director shall be notified of the decision and, if the foreign 
residence requirement is not waived, of the reasons therefor and of the 
foregoing right of appeal. However, this ``no objection'' provision is 
not applicable to the exchange visitor admitted to the United States on 
or after January 10, 1977 to receive graduate medical education or 
training, or who acquired such status on or after that date for such 
purpose; except that the alien who commenced a program before January 
10, 1977 and who was readmitted to the United States on or after that 
date to continue participation in the same program, is eligible for the 
``no objection'' waiver.
    (d) Criminal grounds of inadmissibility involving violent or 
dangerous crimes. The Attorney General, in general, will not favorably 
exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 
1182(h)(2)) to consent to an application or reapplication for a visa, or 
admission to the United States, or adjustment of status, with respect to 
immigrant aliens who are inadmissible 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

[[Page 987]]

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. 
1212.7, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 1212.8  Certification requirement of section 212(a)(14).

    (a) General. The certification requirement of section 212(a)(14) of 
the Act applies to aliens seeking admission to the United States or 
adjustment of status under section 245 of the Act for the purpose of 
performing skilled or unskilled labor, who are preference immigrants as 
described in section 203(a) (3) or (6) of the Act, or who are 
nonpreference immigrants as described in section 203(a)(8). The 
certification requirement shall not be applicable to a nonpreference 
applicant for admission to the United States or to a nonpreference 
applicant for adjustment of status under section 245 who establishes 
that he will not perform skilled or unskilled labor. A native of the 
Western Hemisphere who established a priority date with a consular 
officer prior to January 1, 1977 and who was found to be entitled to an 
exemption from the labor certification requirement of section 212(a)(14) 
of the Act under the law in effect prior to January 1, 1977 as the 
parent, spouse or child of a United States citizen or lawful permanent 
resident alien shall continue to be exempt from that requirement for so 
long as the relationship upon which the exemption is based continues to 
exist.
    (b) Aliens not required to obtain labor certifications. The 
following persons are not considered to be within the purview of section 
212(a)(14) of the Act and do not require a labor certification: (1) A 
member of the Armed Forces of the United States; (2) a spouse or child 
accompanying or following to join his spouse or parent who either has a 
labor certification or is a nondependent alien who does not require such 
a certification; (3) a female alien who intends to marry a citizen or 
alien lawful permanent resident of the United States, who establishes 
satisfactorily that she does not intend to seek employment in the United 
States and whose fiance has guaranteed her support; (4) an alien who 
establishes on Form I-526 that he has invested, or is actively in the 
process of investing, capital totaling at least $40,000 in an enterprise 
in the United States of which he will be a principal manager and that 
the enterprise will employ a person or persons in the United States of 
which he will be a principal manager and that the enterprise will employ 
a person or persons in the United States who are United States citizens 
or aliens lawfully admitted for permnanent residence, exclusive of the 
alien, his spouse and children. A copy of a document submitted in 
support of Form I-526 may be accepted though unaccompanied by the 
original, if the copy bears a certification by an attorney, typed or 
rubber-stamped in the language set forth in Sec. 204.2(j) of 8 CFR 
chapter I. 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. 1212.9  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

[[Page 988]]

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. 1212.10  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 
1236 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. 1212.11  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. 1212.12  Parole determinations and revocations respecting Mariel Cubans.

    (a) Scope. This section applies to any native of Cuba who last came 
to the United States between April 15, 1980, and October 20, 1980 
(hereinafter referred to as Mariel Cuban) and who is being detained by 
the Immigration and Naturalization Service (hereinafter referred to as 
the Service) pending his or her exclusion hearing, or pending his or her 
return to Cuba or to another country. It covers Mariel Cubans who have 
never been paroled as well as those Mariel Cubans whose previous parole 
has been revoked by the Service. It also applies to any Mariel Cuban, 
detained under the authority of the Immigration and Nationality Act in 
any facility, who has not been approved for release or who is currently 
awaiting movement to a Service or Bureau Of Prisons (BOP) facility. In 
addition, it covers the revocation of parole for those Mariel Cubans who 
have been released on parole at any time.
    (b) Parole authority and decision. The authority to grant parole 
under section 212(d)(5) of the Act to a detained Mariel Cuban shall be 
exercised by the Commissioner, acting through the Associate Commissioner 
for Enforcement, as follows:
    (1) Parole decisions. The Associate Commissioner for Enforcement 
may, in the exercise of discretion, grant parole to a detained Mariel 
Cuban for emergent reasons or for reasons deemed strictly in the public 
interest. A decision to retain in custody shall briefly set forth the 
reasons for the continued detention. A decision to release on parole may 
contain such special conditions as are considered appropriate. A copy of 
any decision to parole or to detain, with an attached copy translated 
into Spanish, shall be provided to the detainee. Parole documentation 
for Mariel Cubans shall be issued by the district director having 
jurisdiction over the alien, in accordance with the parole determination 
made by the Associate Commissioner for Enforcement.
    (2) Additional delegation of authority. All references to the 
Commissioner and Associate Commissioner for Enforcement in this section 
shall be deemed to include any person or persons (including a committee) 
designated in writing by the Commissioner or Associate Commissioner for 
Enforcement to exercise powers under this section.
    (c) Review Plan Director. The Associate Commissioner for Enforcement

[[Page 989]]

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

[[Page 990]]

forwarded to the Associate Commissioner for Enforcement, to be 
considered in the exercise of discretion pursuant to Sec. 1212.12(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. 1212.12(b), unless a shorter interval is specified by the 
Director.
    (3) Discretionary reviews. The Cuban Review Plan Director, in his 
discretion, may schedule a review of a detainee at any time when the 
Director deems such a review to be warranted.
    (h) Revocation of parole. The Associate Commissioner for Enforcement 
shall have authority, in the exercise of discretion, to revoke parole in 
respect to Mariel Cubans. A district director may also revoke parole 
when, in the district director's opinion, revocation is in the public 
interest and circumstances do not reasonably permit referral of the case 
to the Associate Commissioner. Parole may be revoked in the exercise of 
discretion when, in the opinion of the revoking official:
    (1) The purposes of parole have been served;
    (2) The Mariel Cuban violates any condition of parole;
    (3) It is appropriate to enforce an order of exclusion or to 
commence proceedings against a Mariel Cuban; or
    (4) The period of parole has expired without being renewed.

[52 FR 48802, Dec. 28, 1987, as amended at 59 FR 13870, Mar. 24, 1994; 
65 FR 80294, Dec. 21, 2000]



Sec. 1212.13  [Reserved]



Sec. 1212.14  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;

[[Page 991]]

    (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. 1235.3 of this chapter.
    (2) Authorization. (i) Upon approval of the request for parole, the 
Commissioner shall notify the Assistant Attorney General, Criminal 
Division, of the approval.
    (ii) Upon notification of approval of a request for parole, the LEA 
will advise the Commissioner of the date, time, and place of the arrival 
of the alien. The Commissioner will coordinate the arrival of the alien 
in parole status with the port director prior to the time of arrival.
    (iii) Parole will be authorized for a period of thirty (30) days to 
commence upon the alien's arrival in the United States in order for the 
LEA to submit a completed Form I-854 to the Assistant Attorney General, 
Criminal Division. Upon the submission to the Assistant Attorney General 
of the Form I-854 requesting S classification, the period of parole will 
be automatically extended while the request is being reviewed. The 
Assistant Attorney General, Criminal Division, will notify the 
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 an alien witness 
or informant authorized under the terms of this paragraph, the Assistant 
Attorney General, Criminal Division, and the relevant LEA shall be 
notified in writing to that effect. The Assistant Attorney General, 
Criminal Division, shall concur in or object to that decision. Unless 
the Assistant Attorney General, Criminal Division, objects within 7 
days, he or she shall be deemed to have concurred in the decision. In 
the event of an objection by

[[Page 992]]

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. 1212.15  Certificates for foreign health care workers.

    (a) Inadmissible aliens. With the exception of the aliens described 
in paragraph (b) of this section, any alien coming to the United States 
for the primary purpose of performing labor in a health care occupation 
listed in paragraph (c) of this section is inadmissible to the United 
States unless the alien presents a certificate as described in paragraph 
(f) of this section.
    (b) Inapplicability of the ground of inadmissibility. The following 
aliens are not subject to this ground of inadmissibility:
    (1) Aliens seeking admission to the United States to perform 
services in a non-clinical health care occupation. A non-clinical 
health-care occupation is one where 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, managers of health care facilities, and medical consultants 
to the insurance industry;
    (2) The spouse and dependent children of any immigrant alien who is 
seeking to immigrate in order to accompany or follow to join the 
principal alien; and
    (3) Any alien applying for adjustment of status to that of a 
permanent resident under any provision of law other than an alien who is 
seeking to immigrate on the basis of an employment-based immigrant visa 
petition which was filed for the purpose of obtaining the alien's 
services in a health care occupation described in paragraph (c) of this 
section.
    (c) Occupations affected by this provision. With the exception of 
the aliens described in paragraph (b) of this section, any alien seeking 
admission to the United States as an immigrant or any alien applying for 
adjustment of status to a permanent resident to perform labor in one of 
the following health care occupations, regardless of where he or she 
received his or her education or training, is subject to this provision:
    (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.

[[Page 993]]

    (7) Medical Technicians (Clinical Laboratory Technicians).
    (d) Presentation of the certificate. An alien described in paragraph 
(a) of this section who is applying for admission as an immigrant 
seeking to perform labor in a health care occupation as described in 
this section must present a certificate to a consular officer at the 
time of visa issuance and to the Service at the time of admission or 
adjustment of status. The certificate must be valid at the time of visa 
issuance and admission at a port-of-entry, or, if applicable, at the 
time of adjustment of status.
    (e) Organizations approved by the Service to issue certificates for 
health care workers. (1) The Commission on Graduates of Foreign Nursing 
Schools may issue certificates pursuant to 8 U.S.C. 1182(a)(5)(C), and 
section 212(a)(5)(C) of the Act for the occupations of nurse (licensed 
practical nurse, licensed vocational nurse, and registered nurse), 
physical therapist, occupational therapist, speech-language pathologist 
and audiologist, medical technologist (clinical laboratory scientist), 
physician assistant, and medical technician (clinical laboratory 
technician).
    (2) The National Board for Certification in Occupational Therapy is 
authorized by the Service to issue certificates under section 343 for 
the occupation of occupational therapist.
    (3) The Foreign Credentialing Commission on Physical Therapy is 
authorized by the Service to issue certificates under section 343 for 
the occupation of physical therapist.
    (f) Contents of the certificate. A certificate must contain the 
following information:
    (1) The name and address of the certifying organization;
    (2) A point of contact where the organization may be contacted in 
order to verify the validity of the certificate;
    (3) The date of the certificate was issued;
    (4) The occupation for which the certificate was issued;
    (5) The alien's name, and date and place of birth;
    (6) Verification that the alien's education, training, license, and 
experience are comparable with that required for an American health care 
worker of the same type;
    (7) Verification that the alien's education, training, license, and 
experience are authentic and, in the case of a license, unencumbered;
    (8) Verification that the alien's education, training, license, and 
experience meet all applicable statutory and regulatory requirements for 
admission into the United States as an immigrant under section 203(b) of 
the Act. This verification is not binding on the Service; and
    (9) Verification 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 certificate is issued, or that the alien has 
passed the occupation's licensing or certification examination.
    (g) English testing requirement. (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 Health and Human Services has determined 
that an alien must have a passing score on one of the two tests listed 
in paragraph (g)(3) of this section before he or she can be granted a 
certificate.
    (2) Aliens exempt from the English language requirement. Aliens who 
have graduated from a college, university, or professional training 
school located in Australia, Canada (except Quebec), Ireland, New 
Zealand, the United Kingdom, and the United States are exempt from the 
English language requirement.
    (3) Approved testing services. (i) Michigan English Language 
Assessment Battery (MELAB). Effective June 30, 2000, the MELAB Oral 
Interview Speaking Test is no longer being given overseas and is only 
being administered in the United States and Canada. Applicants may take 
MELAB Parts 1, 2, and 3, plus the Test of Spoken English offered by the 
Educational Testing Service.
    (ii) Test of English as a Foreign Language, Educational Testing 
Service (ETS).
    (4) Passing scores for various occupations--(i) Occupational and 
physical

[[Page 994]]

therapists. An alien seeking to perform labor in the United States as an 
occupational therapist 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. Certifying 
organizations shall not accept the results of the MELAB for the 
occupation of occupational therapist or physical therapist. Aliens 
seeking to obtain a certificate to work as an occupational or physical 
therapist must take the test offered by the ETS. The MELAB scores are 
not acceptable for these occupations.
    (ii) Registered nurses. An alien coming to the United States to 
perform labor as a registered nurse must obtain the following scores to 
obtain a certificate: ETS: TOEFL: Paper-Based 540, Computer-Based 207; 
TWE: 4.0; TSE: 50; MELAB: Final Score 79; Oral Interview: 3+.
    (iii) Licensed practical nurses and licensed vocational nurses. An 
alien coming to the United States to perform labor as a licensed 
practical nurse or licensed vocational nurse must have the following 
scores to be issued a certificate: ETS: TOEFL: Paper-Based 530, 
Computer-Based 197; TWE: 4.0; TSE: 50; MELAB: Final Score 77; Oral 
Interview: 3+.
    (iv) Speech-language pathologists and Audiologists, medical 
technologists (clinical laboratory scientists), and physician 
assistants. An alien coming to the United States to perform labor as a 
speech-language pathologist and audiologist, a medical technologist 
(clinical laboratory scientist), or a physician assistant must have the 
following scores to be issued a certificate: ETS: TOEFL: Paper-Based 
540, Computer-Based 207; TWE: 4.0; TSE: 50; MELAB: Final Score 79; Oral 
Interview: 3+.
    (v) Medical technicians (clinical laboratory technicians). An alien 
coming to the United States to perform labor as a medical technician 
(clinical laboratory technician) must have the following scores to be 
issued a certificate: ETS: TOEFL: Paper-Based 530, Computer-Based 197; 
TWE: 4.0; TSE: 50; MELAB: Final Score 77; Oral Interview: 3+.

[63 FR 55011, Oct. 14, 1998, as amended at 64 FR 23177, Apr. 30, 1999; 
66 FR 3444, Jan. 16, 2001]



Sec. 1212.16  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

[[Page 995]]

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 1214_REVIEW OF NONIMMIGRANT CLASSES--Table of Contents




Sec.
1214.1 Review of requirements for admission, extension, and maintenance 
          of status.
1214.2 Review of alien victims of severe forms of trafficking in 
          persons; aliens in pending immigration proceedings.
1214.3 Certain spouses and children of lawful permanent residents; 
          aliens in proceedings; V visas.

    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.

    Source: 68 FR 9835, Feb. 28, 2003, unless otherwise noted.



Sec. 1214.1  Review of requirements for admission, extension, and maintenance 

of status.

    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.



Sec. 1214.2  Review of alien victims of severe forms of trafficking in 

persons; aliens in pending immigration proceedings.

    (a) Applications for T visas while in 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

[[Page 996]]

Service counsel, a victim of a severe form of trafficking in persons in 
proceedings before an immigration judge or the Board of Immigration 
Appeals 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 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.
    (b) 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 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.



Sec. 1214.3  Certain spouses and children of lawful permanent residents; 

aliens in proceedings; V visas.

    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 of Immigration 
Appeals, 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.



PART 1215_CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES--Table of 

Contents




Sec.
1215.1 Definitions.
1215.2 Authority of departure-control officer to prevent alien's 
          departure from the United States.
1215.3 Alien whose departure is deemed prejudicial to the interests of 
          the United States.
1215.4 Procedure in case of alien prevented from departing from the 
          United States.
1215.5 Hearing procedure before special inquiry officer.
1215.6 Departure from the Canal Zone, the Trust Territory of the Pacific 
          Islands, or outlying possessions of the United States.
1215.7 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. 
Duplicated from part 215 at 68 FR 9836, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1215 appear at 68 FR 
9846, Feb. 28, 2003.

[[Page 997]]



Sec. 1215.1  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. 1215.2  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. 1215.3. 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. 1215.3 
shall temporarily prevent the departure of such alien from the United 
States and shall serve him with a written temporary order directing him 
not to depart, or attempt to depart, from the United States until 
notified of the revocation of the order.
    (b) The written order temporarily preventing an alien, other than an 
enemy alien, from departing from the United States shall become final 15 
days after the date of service thereof upon the alien, unless prior 
thereto the

[[Page 998]]

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. 1215.4. 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. 1215.3  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 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

[[Page 999]]

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. 1215.4  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. 1215.2, 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.



Sec. 1215.5  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. 1215.4.
    (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

[[Page 1000]]

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, 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

[[Page 1001]]

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. 1215.1 to 1215.7, 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. 1215.6  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. 1215.4 
and 1215.5.
    (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. 1215.7  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. 1215.2 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. 1215.2 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 1216_CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS--Table of 

Contents




Sec.
1216.1 Definition of conditional permanent resident.
1216.2 Notification requirements.
1216.3 Termination of conditional resident status.
1216.4 Joint petition to remove conditional basis of lawful permanent 
          resident status for alien spouse.
1216.5 Waiver of requirement to file joint petition to remove conditions 
          by alien spouse.
1216.6 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. 
Duplicated from part 216 at 68 FR 9837, Feb. 28, 2003.

[[Page 1002]]


    Editorial Note: Nomenclature changes to part 1216 appear at 68 FR 
9846, Feb. 28, 2003, and at 68 FR 10353, Mar. 5, 2003.



Sec. 1216.1  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. 1216.2  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. 1216.3  Termination of conditional resident status.

    (a) During the two-year conditional period. The director shall send 
a formal written notice to the conditional permanent resident of the 
termination of the alien's conditional permanent resident status if the 
director determines that any of the conditions set forth in section 
216(b)(1) or 216A(b)(1) of the Act, whichever is applicable, are true, 
or it becomes known to the government that an alien entrepreneur who was 
admitted pursuant to section 203(b)(5) of the Act obtained his or her 
investment capital through other than legal means (such as through the 
sale

[[Page 1003]]

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 8 CFR chapter I. 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 1239. 
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. 1216.4  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 8 CFR chapter I 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. 1216.5 of this part. Upon receipt of a 
properly filed Form I-751, the alien's conditional permanent resident 
status shall be extended automatically, if necessary, until such time as 
the director has adjudicated the petition.
    (2) Dependent children. Dependent children of a conditional 
permanent resident who acquired conditional permanent resident status 
concurrently with the parent may be included in the joint petition filed 
by the parent and the parent's petitioning spouse. A child shall be 
deemed to have acquired conditional residence status concurrently with 
the parent if the child's residence was acquired on the same date or 
within 90 days thereafter. Children who cannot be included in a joint 
petition

[[Page 1004]]

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. 1211.1(b)(1) of this 
chapter, provided the alien and the petitioning spouse comply with the 
interview requirements described in Sec. 1216.4(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. 1235.11 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. 1239.2 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, then the regional service center director shall forward the 
petition to the district director having jurisdiction over the place of 
the alien's residence

[[Page 1005]]

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 1239. 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

[[Page 1006]]

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. 1216.5  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 8 CFR chapter I.
    (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
    (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

[[Page 1007]]

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 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

[[Page 1008]]

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. 1216.6  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 8 CFR chapter I, 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. 1211.1(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. 1235.11 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.
    (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

[[Page 1009]]

``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 8 CFR chapter I. 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 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

[[Page 1010]]

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. 1216.6(a)(5), 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. 
1216.6(a)(5). 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.
    (2) Denial. If, after initial review or after the interview, the 
director denies the petition, he or she shall provide

[[Page 1011]]

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 1235_INSPECTION OF PERSONS APPLYING FOR ADMISSION--Table of Contents




Sec.
1235.1 Scope of examination.
1235.2 Parole for deferred inspection.
1235.3 Inadmissible aliens and expedited removal.
1235.4 Withdrawal of application for admission.
1235.5 Preinspection.
1235.6 Referral to immigration judge.
1235.8 Inadmissibility on security and related grounds.
1235.9 Northern Marianas identification card.
1235.10 U.S. Citizen Identification Card.
1235.11 Admission of conditional permanent residents.

    Authority: 8 U.S.C. 1101 and note; 1103; 1183; 1201; 1224; 1225; 
1226; 1228.

    Source: Duplicated from part 235 at 68 FR 9837, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1235 appear at 68 FR 
9846, Feb. 28, 2003, and at 68 FR 10354, Mar. 5, 2003.



Sec. 1235.1  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 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

[[Page 1012]]

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. 1208.30 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. 1208.2(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 or lawful permanent resident of 
the United States, a Canadian national or landed immigrant of Canada 
having a common nationality with nationals of Canada, or a landed 
immigrant of Canada who is a national of a country listed in Sec. 
217.2(a), may, if in possession of a valid, unexpired, Canadian Border 
Boat Landing Permit (Form I-68) or evidence of enrollment in any other 
Service Alternaitve 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. Landed immigrants of Canada who do not share a common 
nationality with nationals of Canada, but who are nationals of a 
designated country listed in Sec. 217.2(a) of this chapter (Visa Waiver 
Pilot Program) must be in possession of a valid, unexpired passport 
issued by his or her country of nationality, and an unexpired multiple 
entry Form I-94 or I-94W, Nonimmigrant Visa Waiver Arrival/Departure 
Form, and a valid unexpired United States visa (if the alien is not in 
possession of a valid unexpired Form I-94W). When an entry to the United 
States is made by a person who is a Canadian citizen or a landed 
immigrant of Canada, entry may be made under this program only for a 
purpose as described in section 101(a)(15)(B)(ii) of the Act. Persons 
seeking to enter the United States for any other purpose must do so at a 
staffed Port-of-Entry. 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 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 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

[[Page 1013]]

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 8 CFR chapter I.
    (iv) A copy of any previously approved Form I-68.
    (v) A landed immigrant of Canada who does not have a common 
nationality with nationals of Canada, but who is a national of a 
designated country listed in Sec. 217.2(a) of 8 CFR chapter I (Visa 
Waiver Pilot Program) must also present his or her passport, a valid 
unexpired multiple entry Form I-94 or I-94W and valid, unexpired 
nonimmigrant visa if he or she is not in possession of a valid, 
unexpired multiple entry Form I-94W. Such a landed immigrant of Canada 
may apply for admission simultaneously with the 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 8 CFR chapter I, 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

[[Page 1014]]

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 agency. Participants 
who are landed immigrants of Canada and do not have a common nationality 
with nationals of Canada, but who are nationals of a designated country 
listed in Sec. 217.2(a) of 8 CFR chapter I 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

[[Page 1015]]

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. 1212.1(a) of this 
chapter and 22 CFR 41.33 who is admitted as a visitor for business or 
pleasure or admitted to proceed in direct transit through the United 
States;
    (ii) Any nonimmigrant alien residing in the British Virgin Islands 
who was 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. 1212.1(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. 1212.1(c) of this chapter; or
    (v) Any Mexican national who is exempt from a visa and passport 
pursuant to Sec. 1212.1(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]



Sec. 1235.2  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]



Sec. 1235.3  Inadmissible aliens and expedited removal.

    (a) Detention prior to inspection. All persons arriving at a port-
of-entry in the United States by vessel or aircraft

[[Page 1016]]

shall be detained aboard the vessel or at the airport of arrival by the 
owner, agent, master, commanding officer, person in charge, purser, or 
consignee of such vessel or aircraft until admitted or otherwise 
permitted to land by an officer of the Service. Notice or order to 
detain shall not be required. The owner, agent, master, commanding 
officer, person in charge, purser, or consignee of such vessel or 
aircraft shall deliver every alien requiring examination to an 
immigration officer for inspection or to a medical officer for 
examination. The Service will not be liable for any expenses related to 
such detention or presentation or for any expenses of a passenger who 
has not been presented for inspection and for whom a determination has 
not been made concerning admissibility by a Service officer.
    (b) Expedited removal--(1) Applicability. The expedited removal 
provisions shall apply to the following classes of aliens who are 
determined to be inadmissible under section 212(a)(6)(C) or (7) of the 
Act:
    (i) Arriving aliens, as defined in Sec. 1001.1(q) of this chapter, 
except for citizens of Cuba arriving at a United States port-of-entry by 
aircraft;
    (ii) As specifically designated by the Commissioner, aliens who 
arrive in, attempt to enter, or have entered the United States without 
having been admitted or paroled following inspection by an immigration 
officer at a designated port-of-entry, and who have not established to 
the satisfaction of the immigration officer that they have been 
physically present in the United States continuously for the 2-year 
period immediately prior to the date of determination of 
inadmissibility. The Commissioner shall have the sole discretion to 
apply the provisions of section 235(b)(1) of the Act, at any time, to 
any class of aliens described in this section. The Commissioner's 
designation shall become effective upon publication of a notice in the 
Federal Register. However, if the Commissioner determines, in the 
exercise of discretion, that the delay caused by publication would 
adversely affect the interests of the United States or the effective 
enforcement of the immigration laws, the Commissioner's designation 
shall become effective immediately upon issuance, and shall be published 
in the Federal Register as soon as practicable thereafter. When these 
provisions are in effect for aliens who enter without inspection, the 
burden of proof rests with the alien to affirmatively show that he or 
she has the required continuous physical presence in the United States. 
Any absence from the United States shall serve to break the period of 
continuous physical presence. An alien who was not inspected and 
admitted or paroled into the United States but who establishes that he 
or she has been continuously physically present in the United States for 
the 2-year period immediately prior to the date of determination of 
inadmissibility shall be detained in accordance with section 235(b)(2) 
of the Act for a proceeding under section 240 of the Act.
    (2) Determination of inadmissibility--(i) Record of proceeding. An 
alien who is arriving in the United States, or other alien as designated 
pursuant to paragraph (b)(1)(ii) of this section, who is determined to 
be inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act 
(except an alien for whom documentary requirements are waived under 
Sec. 1211.1(b)(3) or Sec. 1212.1 of this chapter), shall be ordered 
removed from the United States in accordance with section 235(b)(1) of 
the Act. In every case in which the expedited removal provisions will be 
applied and before removing an alien from the United States pursuant to 
this section, the examining immigration officer shall create a record of 
the facts of the case and statements made by the alien. This shall be 
accomplished by means of a sworn statement using Form I-867AB, Record of 
Sworn Statement in Proceedings under Section 235(b)(1) of the Act. The 
examining immigration officer shall read (or have read) to the alien all 
information contained on Form I-867A. Following questioning and 
recording of the alien's statement regarding identity, alienage, and 
inadmissibility, the examining immigration officer shall record the 
alien's response to the questions contained on Form I-867B, and have the 
alien read (or have read to him or her) the statement, and the alien 
shall sign and initial each page of the statement and

[[Page 1017]]

each correction. The examining immigration officer shall advise the 
alien of the charges against him or her on Form I-860, Notice and Order 
of Expedited Removal, and the alien shall be given an opportunity to 
respond to those charges in the sworn statement. After obtaining 
supervisory concurrence in accordance with paragraph (b)(7) of this 
section, the examining immigration official shall serve the alien with 
Form I-860 and the alien shall sign the reverse of the form 
acknowledging receipt. Interpretative assistance shall be used if 
necessary to communicate with the alien.
    (ii) No entitlement to hearings and appeals. Except as otherwise 
provided in this section, such alien is not entitled to a hearing before 
an immigration judge in proceedings conducted pursuant to section 240 of 
the Act, or to an appeal of the expedited removal order to the Board of 
Immigration Appeals.
    (iii) Detention and parole of alien in expedited removal. An alien 
whose inadmissibility is being considered under this section or who has 
been ordered removed pursuant to this section shall be detained pending 
determination and removal, except that parole of such alien, in 
accordance with section 212(d)(5) of the Act, 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.
    (3) Additional charges of inadmissibility. In the expedited removal 
process, the Service may not charge an alien with any additional grounds 
of inadmissibility other than section 212(a)(6)(C) or 212(a)(7) of the 
Act. If an alien appears to be inadmissible under other grounds 
contained in section 212(a) of the Act, and if the Service wishes to 
pursue such additional grounds of inadmissibility, the alien shall be 
detained and referred for a removal hearing before an immigration judge 
pursuant to sections 235(b)(2) and 240 of the Act for inquiry into all 
charges. Once the alien is in removal proceedings under section 240 of 
the Act, the Service is not precluded from lodging additional charges 
against the alien. Nothing in this paragraph shall preclude the Service 
from pursuing such additional grounds of inadmissibility against the 
alien in any subsequent attempt to reenter the United States, provided 
the additional grounds of inadmissibility still exist.
    (4) Claim of asylum or fear of persecution or torture. (i) The DHS 
regulations at 8 CFR 235.3(b)(4) provide for referring an alien to an 
asylum officer if the alien indicates an intention to apply for asylum 
or expresses a fear of persecution or torture or a fear of return to his 
or her country.
    (i) Referral. The referring officer shall provide the alien with a 
written disclosure on Form M-444, Information About Credible Fear 
Interview, describing:
    (A) The purpose of the referral and description of the credible fear 
interview process;
    (B) The right to consult with other persons prior to the interview 
and any review thereof at no expense to the United States Government;
    (C) The right to request a review by an immigration judge of the 
asylum officer's credible fear determination; and
    (D) The consequences of failure to establish a credible fear of 
persecution or torture.
    (ii) Detention pending credible fear interview. Pending the credible 
fear determination by an asylum officer and any review of that 
determination by an immigration judge, the alien shall be detained. 
Parole of such alien in accordance with section 212(d)(5) of the Act 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. Prior to the 
interview, the alien shall be given time to contact and consult with any 
person or persons of his or her choosing. Such consultation shall be 
made available in accordance with the policies and procedures of the 
detention facility where the alien is detained, shall be at no expense 
to the government, and shall not unreasonably delay the process.
    (5) Claim to lawful permanent resident, refugee, or asylee status or 
U.S. citizenship--(i) Verification of status. If an applicant for 
admission who is subject to expedited removal pursuant to section 
235(b)(1) of the Act claims to have been

[[Page 1018]]

lawfully admitted for permanent residence, admitted as a refugee under 
section 207 of the Act, granted asylum under section 208 of the Act, or 
claims to be a U.S. citizen, the immigration officer shall attempt to 
verify the alien's claim. Such verification shall include a check of all 
available Service data systems and any other means available to the 
officer. An alien whose claim to lawful permanent resident, refugee, 
asylee status, or U.S. citizen status cannot be verified will be advised 
of the penalties for perjury, and will be placed under oath or allowed 
to make a declaration as permitted under 28 U.S.C. 1746, concerning his 
or her lawful admission for permanent residence, admission as a refugee 
under section 207 of the Act, grant of asylum status under section 208 
of the Act, or claim to U.S. citizenship. A written statement shall be 
taken from the alien in the alien's own language and handwriting, 
stating that he or she declares, certifies, verifies, or states that the 
claim is true and correct. The immigration officer shall issue an 
expedited order of removal under section 235(b)(1)(A)(i) of the Act and 
refer the alien to the immigration judge for review of the order in 
accordance with paragraph (b)(5)(iv) of this section and Sec. 
1235.6(a)(2)(ii). The person shall be detained pending review of the 
expedited removal order under this section. Parole of such person, in 
accordance with section 212(d)(5) of the Act, 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.
    (ii) Verified lawful permanent residents. If the claim to lawful 
permanent resident status is verified, and such status has not been 
terminated in exclusion, deportation, or removal proceedings, the 
examining immigration officer shall not order the alien removed pursuant 
to section 235(b)(1) of the Act. The examining immigration officer will 
determine in accordance with section 101(a)(13)(C) of the Act whether 
the alien is considered to be making an application for admission. If 
the alien is determined to be seeking admission and the alien is 
otherwise admissible, except that he or she is not in possession of the 
required documentation, a discretionary waiver of documentary 
requirements may be considered in accordance with section 211(b) of the 
Act and Sec. 1211.1(b)(3) of this chapter or the alien's inspection may 
be deferred to an onward office for presentation of the required 
documents. If the alien appears to be inadmissible, the immigration 
officer may initiate removal proceedings against the alien under section 
240 of the Act.
    (iii) Verified refugees and asylees. If a check of Service records 
or other means indicates that the alien has been granted refugee status 
or asylee status, and such status has not been terminated in 
deportation, exclusion, or removal proceedings, the immigration officer 
shall not order the alien removed pursuant to section 235(b)(1) of the 
Act. If the alien is not in possession of a valid, unexpired refugee 
travel document, the examining immigration officer may accept an 
application for a refugee travel document in accordance with Sec. 
223.2(b)(2)(ii) of 8 CFR chapter I. If accepted, the immigration officer 
shall readmit the refugee or asylee in accordance with Sec. 
223.3(d)(2)(i) of 8 CFR chapter I. If the alien is determined not to be 
eligible to file an application for a refugee travel document the 
immigration officer may initiate removal proceedings against the alien 
under section 240 of the Act.
    (iv) Review of order for claimed lawful permanent residents, 
refugees, asylees, or U.S. citizens. A person whose claim to U.S. 
citizenship has been verified may not be ordered removed. When an alien 
whose status has not been verified but who is claiming under oath or 
under penalty of perjury to be a lawful permanent resident, refugee, 
asylee, or U.S. citizen is ordered removed pursuant to section 235(b)(1) 
of the Act, the case will be referred to an immigration judge for review 
of the expedited removal order under section 235(b)(1)(C) of the Act and 
Sec. 1235.6(a)(2)(ii). If the immigration judge determines that the 
alien has never been admitted as a lawful permanent resident or as a 
refugee, granted asylum status, or is not a U.S. citizen, the order 
issued by the immigration officer will be affirmed and the Service will 
remove the alien. There is

[[Page 1019]]

no appeal from the decision of the immigration judge. If the immigration 
judge determines that the alien was once so admitted as a lawful 
permanent resident or as a refugee, or was granted asylum status, or is 
a U.S. citizen, and such status has not been terminated by final 
administrative action, the immigration judge will terminate proceedings 
and vacate the expedited removal order. The Service may initiate removal 
proceedings against such an alien, but not against a person determined 
to be a U.S. citizen, in proceedings under section 240 of the Act. 
During removal proceedings, the immigration judge may consider any 
waivers, exceptions, or requests for relief for which the alien is 
eligible.
    (6) Opportunity for alien to establish that he or she was admitted 
or paroled into the United States. If the Commissioner determines that 
the expedited removal provisions of section 235(b)(1) of the Act shall 
apply to any or all aliens described in paragraph (b)(2)(ii) of this 
section, such alien will be given a reasonable opportunity to establish 
to the satisfaction of the examining immigration officer that he or she 
was admitted or paroled into the United States following inspection at a 
port-of-entry. The alien will be allowed to present evidence or provide 
sufficient information to support the claim. Such evidence may consist 
of documentation in the possession of the alien, the Service, or a third 
party. The examining immigration officer will consider all such evidence 
and information, make further inquiry if necessary, and will attempt to 
verify the alien's status through a check of all available Service data 
systems. The burden rests with the alien to satisfy the examining 
immigration officer of the claim of lawful admission or parole. If the 
alien establishes that he or she was lawfully admitted or paroled, the 
case will be examined to determine if grounds of deportability under 
section 237(a) of the Act are applicable, or if paroled, whether such 
parole has been, or should be, terminated, and whether the alien is 
inadmissible under section 212(a) of the Act. An alien who cannot 
satisfy the examining officer that he or she was lawfully admitted or 
paroled will be ordered removed pursuant to section 235(b)(1) of the 
Act.
    (7) Review of expedited removal orders. Any removal order entered by 
an examining immigration officer pursuant to section 235(b)(1) of the 
Act must be reviewed and approved by the appropriate supervisor before 
the order is considered final. Such supervisory review shall not be 
delegated below the level of the second line supervisor, or a person 
acting in that capacity. The supervisory review shall include a review 
of the sworn statement and any answers and statements made by the alien 
regarding a fear of removal or return. The supervisory review and 
approval of an expedited removal order for an alien described in section 
235(b)(1)(A)(iii) of the Act must include a review of any claim of 
lawful admission or parole and any evidence or information presented to 
support such a claim, prior to approval of the order. In such cases, the 
supervisor may request additional information from any source and may 
require further interview of the alien.
    (8) Removal procedures relating to expedited removal. An alien 
ordered removed pursuant to section 235(b)(1) of the Act shall be 
removed from the United States in accordance with section 241(c) of the 
Act and 8 CFR part 1241.
    (9) Waivers of documentary requirements. Nothing in this section 
limits the discretionary authority of the Attorney General, including 
authority under sections 211(b) or 212(d) of the Act, to waive the 
documentary requirements for arriving aliens.
    (10) Applicant for admission under section 217 of the Act. The 
provisions of Sec. 1235.3(b) do not apply to an applicant for admission 
under section 217 of the Act.
    (c) Arriving aliens placed in proceedings under section 240 of the 
Act. Except as otherwise provided in this chapter, any arriving alien 
who appears to the inspecting officer to be inadmissible, and who is 
placed in removal proceedings pursuant to section 240 of the Act shall 
be detained in accordance with section 235(b) of the Act. Parole of such 
alien shall only be considered in accordance with Sec. 1212.5(b) of 
this chapter. This paragraph shall also apply to any alien who arrived 
before April 1, 1997, and

[[Page 1020]]

who was placed in exclusion proceedings.
    (d) Service custody. The Service will assume custody of any alien 
subject to detention under paragraph (b) or (c) of this section. In its 
discretion, the Service may require any alien who appears inadmissible 
and who arrives at a land border port-of-entry from Canada or Mexico, to 
remain in that country while awaiting a removal hearing. Such alien 
shall be considered detained for a proceeding within the meaning of 
section 235(b) of the Act and may be ordered removed in absentia by an 
immigration judge if the alien fails to appear for the hearing.
    (e) Detention in non-Service facility. Whenever an alien is taken 
into Service custody and detained at a facility other than at a Service 
Processing Center, the public or private entities contracted to perform 
such service shall have been approved for such use by the Service's Jail 
Inspection Program or shall be performing such service under contract in 
compliance with the Standard Statement of Work for Contract Detention 
Facilities. Both programs are administered by the Detention and 
Deportation section having jurisdiction over the alien's place of 
detention. Under no circumstances shall an alien be detained in 
facilities not meeting the four mandatory criteria for usage. These are:
    (1) 24-Hour supervision,
    (2) Conformance with safety and emergency codes,
    (3) Food service, and
    (4) Availability of emergency medical care.
    (f) Privilege of communication. The mandatory notification 
requirements of consular and diplomatic officers pursuant to Sec. 
1236.1(e) of this chapter apply when an inadmissible alien is detained 
for removal proceedings, including for purpose of conducting the 
credible fear determination.

[62 FR 10355, Mar. 6, 1997, as amended at 64 FR 8494, Feb. 19, 1999; 65 
FR 82256, Dec. 28, 2000; 69 FR 69497, Nov. 29, 2004]



Sec. 1235.4  Withdrawal of application for admission.

    The Attorney General may, in his or her discretion, permit any alien 
applicant for admission to withdraw his or her application for admission 
in lieu of removal proceedings under section 240 of the Act or expedited 
removal under section 235(b)(1) of the Act. The alien's decision to 
withdraw his or her application for admission must be made voluntarily, 
but nothing in this section shall be construed as to give an alien the 
right to withdraw his or her application for admission. Permission to 
withdraw an application for admission should not normally be granted 
unless the alien intends and is able to depart the United States 
immediately. An alien permitted to withdraw his or her application for 
admission shall normally remain in carrier or Service custody pending 
departure, unless the district director determines that parole of the 
alien is warranted in accordance with Sec. 1212.5(b) of this chapter.

[62 FR 10358, Mar. 6, 1997; 62 FR 15363, Apr. 1, 1997; 65 FR 82256, Dec. 
28, 2000]



Sec. 1235.5  Preinspection.

    (a) In United States territories and possessions. In the case of any 
aircraft proceeding from Guam, Puerto Rico, or the United States Virgin 
Islands destined directly and without touching at a foreign port or 
place, to any other of such places, or to one of the States of the 
United States or the District of Columbia, the examination of the 
passengers and crew required by the Act may be made prior to the 
departure of the aircraft, and in such event, final determination of 
admissibility shall be made immediately prior to such departure. The 
examination shall be conducted in accordance with sections 232, 235, and 
240 of the Act and 8 CFR parts 235 and 1240. If it appears to the 
examining immigration officer that any person in the United States being 
examined under this section is prima facie removable from the United 
States, further action with respect to his or her examination shall be 
deferred and further proceedings regarding removability conducted as 
provided in section 240 of the Act and 8 CFR part 1240. When the 
foregoing inspection procedure is applied to any aircraft, persons 
examined and found admissible shall be placed aboard the aircraft, or 
kept at the airport separate and apart from the general public until 
they are permitted to board the aircraft. No other person

[[Page 1021]]

shall be permitted to depart on such aircraft until and unless he or she 
is found to be admissible as provided in this section.
    (b) In foreign territory. In the case of any aircraft, vessel, or 
train proceeding directly, without stopping, from a port or place in 
foreign territory to a port-of-entry in the United States, the 
examination and inspection of passengers and crew required by the Act 
and final determination of admissibility may be made immediately prior 
to such departure at the port or place in the foreign territory and 
shall have the same effect under the Act as though made at the destined 
port-of-entry in the United States.

[62 FR 10358, Mar. 6, 1997]



Sec. 1235.6  Referral to immigration judge.

    (a) Notice--(1) Referral by Form I-862, Notice to Appear. An 
immigration officer or asylum officer will sign and deliver a Form I-862 
to an alien in the following cases:
    (i) If, in accordance with the provisions of section 235(b)(2)(A) of 
the Act, the examining immigration officer detains an alien for a 
proceeding before an immigration judge under section 240 of the Act; or
    (ii) If an asylum officer determines that an alien in expedited 
removal proceedings has a credible fear of persecution or torture and 
refers the case to the immigration judge for consideration of the 
application for asylum.
    (iii) If the immigration judge determines that an alien in expedited 
removal proceedings has a credible fear of persecution or torture and 
vacates the expedited removal order issued by the asylum officer.
    (iv) If an immigration officer verifies that an alien subject to 
expedited removal under section 235(b)(1) of the Act has been admitted 
as a lawful permanent resident refugee, or asylee, or upon review 
pursuant to Sec. 1235.3(b)(5)(iv) an immigration judge determines that 
the alien was once so admitted, provided that such status has not been 
terminated by final administrative action, and the Service initiates 
removal proceedings against the alien under section 240 of the Act.
    (2) Referral by Form I-863, Notice of Referral to Immigration Judge. 
An immigration officer will sign and deliver a Form I-863 to an alien in 
the following cases:
    (i) If an asylum officer determines that an alien does not have a 
credible fear of persecution or torture, and the alien requests a review 
of that determination by an immigration judge; or
    (ii) If, in accordance with section 235(b)(1)(C) of the Act, an 
immigration officer refers an expedited removal order entered on an 
alien claiming to be a lawful permanent resident, refugee, asylee, or 
U.S. citizen for whom the officer could not verify such status to an 
immigration judge for review of the order.
    (iii) If an immigration officer refers an applicant described in 
Sec. 1208.2(b)(1) of this chapter to an immigration judge for an asylum 
hearing under Sec. 208.2(b)(2) of this chapter.
    (b) Certification for mental condition; medical appeal. An alien 
certified under sections 212(a)(1) and 232(b) of the Act shall be 
advised by the examining immigration officer that he or she may appeal 
to a board of medical examiners of the United States Public Health 
Service pursuant to section 232 of the Act. If such appeal is taken, the 
district director shall arrange for the convening of the medical board.

[62 FR 10358, Mar. 6, 1997, as amended at 64 FR 8494, Feb. 19, 1999]



Sec. 1235.8  Inadmissibility on security and related grounds.

    (a) Report. When an immigration officer or an immigration judge 
suspects that an arriving alien appears to be inadmissible under section 
212(a)(3)(A) (other than clause (ii)), (B), or (C) of the Act, the 
immigration officer or immigration judge shall order the alien removed 
and report the action promptly to the district director who has 
administrative jurisdiction over the place where the alien has arrived 
or where the hearing is being held. The immigration officer shall, if 
possible, take a brief sworn question-and-answer statement from the 
alien, and the alien shall be notified by personal service of Form I-
147, Notice of Temporary Inadmissibility, of the action taken and the 
right to submit a written statement and additional information for 
consideration by the Attorney General. The

[[Page 1022]]

district director shall forward the report to the regional director for 
further action as provided in paragraph (b) of this section.
    (b) Action by regional director. (1) In accordance with section 
235(c)(2)(B) of the Act, the regional director may deny any further 
inquiry or hearing by an immigration judge and order the alien removed 
by personal service of Form I-148, Notice of Permanent Inadmissibility, 
or issue any other order disposing of the case that the regional 
director considers appropriate.
    (2) If the regional director concludes that the case does not meet 
the criteria contained in section 235(c)(2)(B) of the Act, the regional 
director may direct that:
    (i) An immigration officer shall conduct a further examination of 
the alien, concerning the alien's admissibility; or,
    (ii) The alien's case be referred to an immigration judge for a 
hearing, or for the continuation of any prior hearing.
    (3) The regional director's decision shall be in writing and shall 
be signed by the regional director. Unless the written decision contains 
confidential information, the disclosure of which would be prejudicial 
to the public interest, safety, or security of the United States, the 
written decision shall be served on the alien. If the written decision 
contains such confidential information, the alien shall be served with a 
separate written order showing the disposition of the case, but with the 
confidential information deleted.
    (4) The Service shall not execute a removal order under this section 
under circumstances that violate section 241(b)(3) of the Act or Article 
3 of the Convention Against Torture. The provisions of part 1208 of this 
chapter relating to consideration or review by an immigration judge, the 
Board of Immigration Appeals, or an asylum officer shall not apply.
    (c) Finality of decision. The regional director's decision under 
this section is final when it is served upon the alien in accordance 
with paragraph (b)(3) of this section. There is no administrative appeal 
from the regional director's decision.
    (d) Hearing by immigration judge. If the regional director directs 
that an alien subject to removal under this section be given a hearing 
or further hearing before an immigration judge, the hearing and all 
further proceedings in the matter shall be conducted in accordance with 
the provisions of section 240 of the Act and other applicable sections 
of the Act to the same extent as though the alien had been referred to 
an immigration judge by the examining immigration officer. In a case 
where the immigration judge ordered the alien removed pursuant to 
paragraph (a) of this section, the Service shall refer the case back to 
the immigration judge and proceedings shall be automatically reopened 
upon receipt of the notice of referral. If confidential information, not 
previously considered in the matter, is presented supporting the 
inadmissibility of the alien under section 212(a)(3)(A) (other than 
clause (ii)), (B) or (C) of the Act, the disclosure of which, in the 
discretion of the immigration judge, may be prejudicial to the public 
interest, safety, or security, the immigration judge may again order the 
alien removed under the authority of section 235(c) of the Act and 
further action shall be taken as provided in this section.
    (e) Nonapplicability. The provisions of this section shall apply 
only to arriving aliens, as defined in Sec. 1001.1(q) of this chapter. 
Aliens present in the United States who have not been admitted or 
paroled may be subject to proceedings under Title V of the Act.

[62 FR 10358, Mar. 6, 1997, as amended at 64 FR 8494, Feb. 19, 1999]



Sec. 1235.9  Northern Marianas identification card.

    During the two-year period that ended July 1, 1990, the Service 
issued Northern Marianas Identification Cards to aliens who acquired 
United States citizenship when the Covenant to Establish a Commonwealth 
of the Northern Mariana Islands in Political Union with the United 
States entered into force on November 3, 1986. These cards remain valid 
as evidence of United States citizenship. Although the Service no longer 
issues these cards, a United States citizen to whom a card was issued 
may file Form I-777, Application for Issuance or Replacement of Northern 
Marianas Card, to

[[Page 1023]]

obtain replacement of a lost, stolen, or mutilated Northern Marianas 
Identification Card.

[62 FR 10359, Mar. 6, 1997]



Sec. 1235.10  U.S. Citizen Identification Card.

    (a) General. Form I-197, U.S. Citizen Identification Card, is no 
longer issued by the Service but valid existing cards will continue to 
be acceptable documentation of U.S. citizenship. Possession of the 
identification card is not mandatory for any purpose. A U.S. Citizen 
Identification Card remains the property of the United States. Because 
the identification card is no longer issued, there are no provisions for 
replacement cards.
    (b) Surrender and voidance--(1) Institution of proceeding under 
section 240 or 342 of the Act. A U.S. Citizen Identification Card must 
be surrendered provisionally to a Service office upon notification by 
the district director that a proceeding under section 240 or 342 of the 
Act is being instituted against the person to whom the card was issued. 
The card shall be returned to the person if the final order in the 
proceeding does not result in voiding the card under this paragraph. A 
U.S. Citizen Identification Card is automatically void if the person to 
whom it was issued is determined to be an alien in a proceeding 
conducted under section 240 of the Act, or if a certificate, document, 
or record relating to that person is canceled under section 342 of the 
Act.
    (2) Investigation of validity of identification card. A U.S. Citizen 
Identification Card must be surrendered provisionally upon notification 
by a district director that the validity of the card is being 
investigated. The card shall be returned to the person who surrendered 
it if the investigation does not result in a determination adverse to 
his or her claim to be a United States citizen. When an investigation 
results in a tentative determination adverse to the applicant's claim to 
be a United States citizen, the applicant shall be notified by certified 
mail directed to his or her last known address. The notification shall 
inform the applicant of the basis for the determination and of the 
intention of the district director to declare the card void unless 
within 30 days the applicant objects and demands an opportunity to see 
and rebut the adverse evidence. Any rebuttal, explanation, or evidence 
presented by the applicant must be included in the record of proceeding. 
The determination whether the applicant is a United States citizen must 
be based on the entire record and the applicant shall be notified of the 
determination. If it is determined that the applicant is not a United 
States citizen, the applicant shall be notified of the reasons, and the 
card deemed void. There is no appeal from the district director's 
decision.
    (3) Admission of alienage. A U.S. Citizen Identification Card is 
void if the person to whom it was issued admits in a statement signed 
before an immigration officer that he or she is an alien and consents to 
the voidance of the card. Upon signing the statement the card must be 
surrendered to the immigration officer.
    (4) Surrender of void card. A void U.S. Citizen Identification Card 
which has not been returned to the Service must be surrendered without 
delay to an immigration officer or to the issuing office of the Service.
    (c) U.S. Citizen Identification Card previously issued on Form I-
179. A valid Form I-179, U.S. Citizen Identification Card, continues to 
be valid subject to the provisions of this section.

[62 FR 10359, Mar. 6, 1997]



Sec. 1235.11  Admission of conditional permanent residents.

    (a) General--(1) Conditional residence based on family relationship. 
An alien seeking admission to the United States with an immigrant visa 
as the spouse or son or daughter of a United States citizen or lawful 
permanent resident shall be examined to determine whether the conditions 
of section 216 of the Act apply. If so, the alien shall be admitted 
conditionally for a period of 2 years. At the time of admission, the 
alien shall be notified that the alien and his or her petitioning spouse 
must file a Form I-751, Petition to Remove the Conditions on Residence, 
within the 90-day period immediately preceding the second anniversary of 
the alien's admission for permanent residence.

[[Page 1024]]

    (2) Conditional residence based on entrepreneurship. An alien 
seeking admission to the United States with an immigrant visa as an 
alien entrepreneur (as defined in section 216A(f)(1) of the Act) or the 
spouse or unmarried minor child of an alien entrepreneur shall be 
admitted conditionally for a period of 2 years. At the time of 
admission, the alien shall be notified that the principal alien 
(entrepreneur) must file a Form I-829, Petition by Entrepreneur to 
Remove Conditions, within the 90-day period immediately preceding the 
second anniversary of the alien's admission for permanent residence.
    (b) Correction of endorsement on immigrant visa. If the alien is 
subject to the provisions of section 216 of the Act, but the 
classification endorsed on the immigrant visa does not so indicate, the 
endorsement shall be corrected and the alien shall be admitted as a 
lawful permanent resident on a conditional basis, if otherwise 
admissible. Conversely, if the alien is not subject to the provisions of 
section 216 of the Act, but the visa classification endorsed on the 
immigrant visa indicates that the alien is subject thereto (e.g., if the 
second anniversary of the marriage upon which the immigrant visa is 
based occurred after the issuance of the visa and prior to the alien's 
application for admission) the endorsement on the visa shall be 
corrected and the alien shall be admitted as a lawful permanent resident 
without conditions, if otherwise admissible.
    (c) Expired conditional permanent resident status. The lawful 
permanent resident alien status of a conditional resident automatically 
terminates if the conditional basis of such status is not removed by the 
Service through approval of a Form I-751, Petition to Remove the 
Conditions on Residence or, in the case of an alien entrepreneur (as 
defined in section 216A(f)(1) of the Act), Form I-829, Petition by 
Entrepreneur to Remove Conditions. Therefore, an alien who is seeking 
admission as a returning resident subsequent to the second anniversary 
of the date on which conditional residence was obtained (except as 
provided in Sec. 1211.1(b)(1) of this chapter) and whose conditional 
basis of such residence has not been removed pursuant to section 216(c) 
or 216A(c) of the Act, whichever is applicable, shall be placed under 
removal proceedings. However, in a case where conditional residence was 
based on a marriage, removal proceedings may be terminated and the alien 
may be admitted as a returning resident if the required Form I-751 is 
filed jointly, or by the alien alone (if appropriate), and approved by 
the Service. In the case of an alien entrepreneur, removal proceedings 
may be terminated and the alien admitted as a returning resident if the 
required Form I-829 is filed by the alien entrepreneur and approved by 
the Service.

[62 FR 10360, Mar. 6, 1997]



PART 1236_APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE ALIENS; 

REMOVAL OF ALIENS ORDERED REMOVED--Table of Contents




         Subpart A_Detention of Aliens Prior to Order of Removal

Sec.
1236.1 Apprehension, custody, and detention.
1236.2 Confined aliens, incompetents, and minors.
1236.3 Detention and release of juveniles.
1236.4 Removal of S-5, S-6, and S-7 nonimmigrants.
1236.5 Fingerprints and photographs.
1236.6 Information regarding detainees.
1236.7-1236.9 [Reserved]

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1224, 1225, 
1226, 1227, 1231, 1362; 18 U.S.C. 4002, 4013(c)(4); 8 CFR part 2.

    Source: 62 FR 10360, Mar. 6, 1997, unless otherwise noted. 
Duplicated from part 236 at 68 FR 9838, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1236 appear at 68 FR 
9846, Feb. 28, 2003, and at 68 FR 10354, Mar. 5, 2003.



         Subpart A_Detention of Aliens Prior to Order of Removal



Sec. 1236.1  Apprehension, custody, and detention.

    (a) Detainers. The issuance of a detainer under this section shall 
be governed by the provisions of Sec. 287.7 of 8 CFR chapter I.
    (b) Warrant of arrest--(1) In general. At the time of issuance of 
the notice to appear, or at any time thereafter and

[[Page 1025]]

up to the time removal proceedings are completed, the respondent may be 
arrested and taken into custody under the authority of Form I-200, 
Warrant of Arrest. A warrant of arrest may be issued only by those 
immigration officers listed in Sec. 287.5(e)(2) of 8 CFR chapter I and 
may be served only by those immigration officers listed in Sec. 
287.5(e)(3) of 8 CFR chapter I.
    (2) If, after the issuance of a warrant of arrest, a determination 
is made not to serve it, any officer authorized to issue such warrant 
may authorize its cancellation.
    (c) Custody issues and release procedures--(1) In general. (i) After 
the expiration of the Transition Period Custody Rules (TPCR) set forth 
in section 303(b)(3) of Div. C of Pub. L. 104-208, no alien described in 
section 236(c)(1) of the Act may be released from custody during removal 
proceedings except pursuant to section 236(c)(2) of the Act.
    (ii) Paragraph (c)(2) through (c)(8) of this section shall govern 
custody determinations for aliens subject to the TPCR while they remain 
in effect. For purposes of this section, an alien ``subject to the 
TPCR'' is an alien described in section 303(b)(3)(A) of Div. C of Pub. 
L. 104-208 who is in deportation proceedings, subject to a final order 
of deportation, or in removal proceedings. The TPCR do not apply to 
aliens in exclusion proceedings under former section 236 of the Act, 
aliens in expedited removal proceedings under section 235(b)(1) of the 
Act, or aliens subject to a final order of removal.
    (2) Aliens not lawfully admitted. Subject to paragraph (c)(6)(i) of 
this section, but notwithstanding any other provision within this 
section, an alien subject to the TPCR who is not lawfully admitted is 
not eligible to be considered for release from custody.
    (i) An alien who remains in status as an alien lawfully admitted for 
permanent residence, conditionally admitted for permanent residence, or 
lawfully admitted for temporary residence is ``lawfully admitted'' for 
purposes of this section.
    (ii) An alien in removal proceedings, in deportation proceedings, or 
subject to a final order of deportation, and not described in paragraph 
(c)(2)(i) of this section, is not ``lawfully admitted'' for purposes of 
this section unless the alien last entered the United States lawfully 
and is not presently an applicant for admission to the United States.
    (3) Criminal aliens eligible to be considered for release. Except as 
provided in this section, or otherwise provided by law, an alien subject 
to the TPCR may be considered for release from custody if lawfully 
admitted. Such an alien must first demonstrate, by clear and convincing 
evidence, that release would not pose a danger to the safety of other 
persons or of property. If an alien meets this burden, the alien must 
further demonstrate, by clear and convincing evidence, that the alien is 
likely to appear for any scheduled proceeding (including any appearance 
required by the Service or EOIR) in order to be considered for release 
in the exercise of discretion.
    (4) Criminal aliens ineligible to be considered for release except 
in certain special circumstances. An alien, other than an alien lawfully 
admitted for permanent residence, subject to section 303(b)(3)(A) (ii) 
or (iii) of Div. C. of Pub. L. 104-208 is ineligible to be considered 
for release if the alien:
    (i) Is described in section 241(a)(2)(C) of the Act (as in effect 
prior to April 1, 1997), or has been convicted of a crime described in 
section 101(a)(43)(B), (E)(ii) or (F) of the Act (as in effect on April 
1, 1997);
    (ii) Has been convicted of a crime described in section 
101(a)(43)(G) of the Act (as in effect on April 1, 1997) or a crime or 
crimes involving moral turpitude related to property, and sentenced 
therefor (including in the aggregate) to at least 3 years' imprisonment;
    (iii) Has failed to appear for an immigration proceeding without 
reasonable cause or has been subject to a bench warrant or similar legal 
process (unless quashed, withdrawn, or cancelled as improvidently 
issued);
    (iv) Has been convicted of a crime described in section 
101(a)(43)(Q) or (T) of the Act (as in effect on April 1, 1997);
    (v) Has been convicted in a criminal proceeding of a violation of 
section 273, 274, 274C, 276, or 277 of the Act, or has admitted the 
factual elements of such a violation;

[[Page 1026]]

    (vi) Has overstayed a period granted for voluntary departure;
    (vii) Has failed to surrender or report for removal pursuant to an 
order of exclusion, deportation, or removal;
    (viii) Does not wish to pursue, or is statutorily ineligible for, 
any form of relief from exclusion, deportation, or removal under this 
chapter or the Act; or
    (ix) Is described in paragraphs (c)(5)(i)(A), (B), or (C) of this 
section but has not been sentenced, including in the aggregate but not 
including any portions suspended, to at least 2 years' imprisonment, 
unless the alien was lawfully admitted and has not, since the 
commencement of proceedings and within the 10 years prior thereto, been 
convicted of a crime, failed to comply with an order to surrender or a 
period of voluntary departure, or been subject to a bench warrant or 
similar legal process (unless quashed, withdrawn, or cancelled as 
improvidently issued). An alien eligible to be considered for release 
under this paragraph must meet the burdens described in paragraph (c)(3) 
of this section in order to be released from custody in the exercise of 
discretion.
    (5) Criminal aliens ineligible to be considered for release. (i) A 
criminal alien subject to section 303(b)(3)(A)(ii) or (iii) of Div. C of 
Pub. L. 104-208 is ineligible to be considered for release if the alien 
has been sentenced, including in the aggregate but not including any 
portions suspended, to at least 2 years' imprisonment, and the alien
    (A) Is described in section 237(a)(2)(D)(i) or (ii) of the Act (as 
in effect on April 1, 1997), or has been convicted of a crime described 
in section 101(a)(43)(A), (C), (E)(i), (H), (I), (K)(iii), or (L) of the 
Act (as in effect on April 1, 1997);
    (B) Is described in section 237(a)(2)(A)(iv) of the Act; or
    (C) Has escaped or attempted to escape from the lawful custody of a 
local, State, or Federal prison, agency, or officer within the United 
States.
    (ii) Notwithstanding paragraph (c)(5)(i) of this section, a 
permanent resident alien who has not, since the commencement of 
proceedings and within the 15 years prior thereto, been convicted of a 
crime, failed to comply with an order to surrender or a period of 
voluntary departure, or been subject to a bench warrant or similar legal 
process (unless quashed, withdrawn, or cancelled as improvidently 
issued), may be considered for release under paragraph (c)(3) of this 
section.
    (6) Unremovable aliens and certain long-term detainees. (i) If the 
district director determines that an alien subject to section 
303(b)(3)(A)(ii) or (iii) of Div. C of Pub. L. 104-208 cannot be removed 
from the United States because the designated country of removal or 
deportation will not accept the alien's return, the district director 
may, in the exercise of discretion, consider release of the alien from 
custody upon such terms and conditions as the district director may 
prescribe, without regard to paragraphs (c)(2), (c)(4), and (c)(5) of 
this section.
    (ii) The district director may also, notwithstanding paragraph 
(c)(5) of this section, consider release from custody, upon such terms 
and conditions as the district director may prescribe, of any alien 
described in paragraph (c)(2)(ii) of this section who has been in the 
Service's custody for six months pursuant to a final order of 
deportation terminating the alien's status as a lawful permanent 
resident.
    (iii) The district director may release an alien from custody under 
this paragraph only in accordance with the standards set forth in 
paragraph (c)(3) of this section and any other applicable provisions of 
law.
    (iv) The district director's custody decision under this paragraph 
shall not be subject to redetermination by an immigration judge, but, in 
the case of a custody decision under paragraph (c)(6)(ii) of this 
section, may be appealed to the Board of Immigration Appeals pursuant to 
paragraph (d)(3)(iii) of this section.
    (7) Construction. A reference in this section to a provision in 
section 241 of the Act as in effect prior to April 1, 1997, shall be 
deemed to include a reference to the corresponding provision in section 
237 of the Act as in effect on April 1, 1997. A reference in this 
section to a ``crime'' shall be considered to include a reference to a 
conspiracy or attempt to commit such a crime. In calculating the 10-year 
period specified in

[[Page 1027]]

paragraph (c)(4) of this section and the 15-year period specified in 
paragraph (c)(5) of this section, no period during which the alien was 
detained or incarcerated shall count toward the total. References in 
paragraph (c)(6)(i) of this section to the ``district director'' shall 
be deemed to include a reference to any official designated by the 
Commissioner to exercise custody authority over aliens covered by that 
paragraph. Nothing in this part shall be construed as prohibiting an 
alien from seeking reconsideration of the Service's determination that 
the alien is within a category barred from release under this part.
    (8) Any officer authorized to issue a warrant of arrest may, in the 
officer's discretion, release an alien not described in section 
236(c)(1) of the Act, under the conditions at section 236(a)(2) and (3) 
of the Act; provided that the alien must demonstrate to the satisfaction 
of the officer that such release would not pose a danger to property or 
persons, and that the alien is likely to appear for any future 
proceeding. Such an officer may also, in the exercise of discretion, 
release an alien in deportation proceedings pursuant to the authority in 
section 242 of the Act (as designated prior to April 1, 1997), except as 
otherwise provided by law.
    (9) When an alien who, having been arrested and taken into custody, 
has been released, such release may be revoked at any time in the 
discretion of the district director, acting district director, deputy 
district director, assistant district director for investigations, 
assistant district director for detention and deportation, or officer in 
charge (except foreign), in which event the alien may be taken into 
physical custody and detained. If detained, unless a breach has 
occurred, any outstanding bond shall be revoked and canceled.
    (10) The provisions of Sec. 103.6 of 8 CFR chapter I shall apply to 
any bonds authorized. Subject to the provisions of this section, the 
provisions of Sec. 1003.19 of this chapter shall govern availability to 
the respondent of recourse to other administrative authority for release 
from custody.
    (11) An immigration judge may not exercise the authority provided in 
this section, and the review process described in paragraph (d) of this 
section shall not apply, with respect to any alien beyond the custody 
jurisdiction of the immigration judge as provided in Sec. 1003.19(h) of 
this chapter.
    (d) Appeals from custody decisions--(1) Application to immigration 
judge. After an initial custody determination by the district director, 
including the setting of a bond, the respondent may, at any time before 
an order under 8 CFR part 1240 becomes final, request amelioration of 
the conditions under which he or she may be released. Prior to such 
final order, and except as otherwise provided in this chapter, the 
immigration judge is authorized to exercise the authority in section 236 
of the Act (or section 242(a)(1) of the Act as designated prior to April 
1, 1997 in the case of an alien in deportation proceedings) to detain 
the alien in custody, release the alien, and determine the amount of 
bond, if any, under which the respondent may be released, as provided in 
Sec. 1003.19 of this chapter. If the alien has been released from 
custody, an application for amelioration of the terms of release must be 
filed within 7 days of release.
    (2) Application to the district director. After expiration of the 7-
day period in paragraph (d)(1) of this section, the respondent may 
request review by the district director of the conditions of his or her 
release.
    (3) Appeal to the Board of Immigration Appeals. An appeal relating 
to bond and custody determinations may be filed to the Board of 
Immigration Appeals in the following circumstances:
    (i) In accordance with Sec. 1003.38 of this chapter, the alien or 
the Service may appeal the decision of an immigration judge pursuant to 
paragraph (d)(1) of this section.
    (ii) The alien, within 10 days, may appeal from the district 
director's decision under paragraph (d)(2)(i) of this section.
    (4) Effect of filing an appeal. The filing of an appeal from a 
determination of an immigration judge or district director under this 
paragraph shall not operate to delay compliance with the order (except 
as provided in Sec. 1003.19(i)), nor stay the administrative 
proceedings or removal.

[[Page 1028]]

    (e) Privilege of communication. Every detained alien shall be 
notified that he or she may communicate with the consular or diplomatic 
officers of the country of his or her nationality in the United States. 
Existing treaties with the following countries require immediate 
communication with appropriate consular or diplomatic officers whenever 
nationals of the following countries are detained in removal 
proceedings, whether or not requested by the alien and even if the alien 
requests that no communication be undertaken in his or her behalf. When 
notifying consular or diplomatic officials, Service officers shall not 
reveal the fact that any detained alien has applied for asylum or 
withholding of removal.

Albania \1\
---------------------------------------------------------------------------

    \1\ Arrangements with these countries provide that U.S. authorities 
shall notify responsible representatives within 72 hours of the arrest 
or detention of one of their nationals.
---------------------------------------------------------------------------

Antigua
Armenia
Azerbaijan
Bahamas
Barbados
Belarus
Belize
Brunei
Bulgaria
China (People's Republic of) \2\
---------------------------------------------------------------------------

    \2\ When Taiwan nationals (who carry ``Republic of China'' 
passports) are detained, notification should be made to the nearest 
office of the Taiwan Economic and Cultural Representative's Office, the 
unofficial entity representing Taiwan's interests in the United States.
---------------------------------------------------------------------------

Costa Rica
Cyprus
Czech Republic
Dominica
Fiji
Gambia, The
Georgia
Ghana
Grenada
Guyana
Hungary
Jamaica
Kazakhstan
Kiribati
Kuwait
Kyrgyzstan
Malaysia
Malta
Mauritius
Moldova
Mongolia
Nigeria
Philippines
Poland
Romania
Russian Federation
St. Kitts/Nevis
St. Lucia
St. Vincent/Grenadines
Seychelles
Sierra Leone
Singapore
Slovak Republic
South Korea
Tajikistan
Tanzania
Tonga
Trinidad/Tobago
Turkmenistan
Tuvalu
Ukraine
United Kingdom \3\
---------------------------------------------------------------------------

    \3\ British dependencies are also covered by this agreement. They 
are: Anguilla, British Virgin Islands, Hong Kong, Bermuda, Montserrat, 
and the Turks and Caicos Islands. Their residents carry British 
passports.
---------------------------------------------------------------------------

U.S.S.R. \4\
---------------------------------------------------------------------------

    \4\ All U.S.S.R. successor states are covered by this agreement. 
They are: Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, 
Moldova, Russian Federation, Tajikistan, Turkmenistan, Ukraine, and 
Uzbekistan.
---------------------------------------------------------------------------

Uzbekistan
Zambia

    (f) Notification to Executive Office for Immigration Review of 
change in custody status. The Service shall notify the Immigration Court 
having administrative control over the Record of Proceeding of any 
change in custody location or of release from, or subsequent taking 
into, Service custody of a respondent/applicant pursuant to Sec. 
1003.19(g) of this chapter.

[62 FR 10360, Mar. 6, 1997; 62 FR 15363, Apr. 1, 1997, as amended at 63 
FR 27449, May 19, 1998; 65 FR 80294, Dec. 21, 2000]



Sec. 1236.2  Confined aliens, incompetents, and minors.

    (a) Service. If the respondent is confined, or if he or she is an 
incompetent, or a minor under the age of 14, the notice to appear, and 
the warrant of arrest, if issued, shall be served in the manner 
prescribed in Sec. 1239.1 of this chapter upon the person or persons 
specified by Sec. 103.5a(c) of 8 CFR chapter I.

[[Page 1029]]

    (b) Service custody and cost of maintenance. An alien confined 
because of physical or mental disability in an institution or hospital 
shall not be accepted into physical custody by the Service until an 
order of removal has been entered and the Service is ready to remove the 
alien. When such an alien is an inmate of a public or private 
institution at the time of the commencement of the removal proceedings, 
expenses for the maintenance of the alien shall not be incurred by the 
Government until he or she is taken into physical custody by the 
Service.



Sec. 1236.3  Detention and release of juveniles.

    (a) Juveniles. A juvenile is defined as an alien under the age of 18 
years.
    (b) Release. Juveniles for whom bond has been posted, for whom 
parole has been authorized, or who have been ordered released on 
recognizance, shall be released pursuant to the following guidelines:
    (1) Juveniles shall be released, in order of preference, to:
    (i) A parent;
    (ii) Legal guardian; or
    (iii) An adult relative (brother, sister, aunt, uncle, grandparent) 
who is not presently in Service detention, unless a determination is 
made that the detention of such juvenile is required to secure his or 
her timely appearance before the Service or the Immigration Court or to 
ensure the juvenile's safety or that of others. In cases where the 
parent, legal guardian, or adult relative resides at a location distant 
from where the juvenile is detained, he or she may secure release at a 
Service office located near the parent, legal guardian, or adult 
relative.
    (2) If an individual specified in paragraphs (b)(1)(i) through (iii) 
of this section cannot be located to accept custody of a juvenile, and 
the juvenile has identified a parent, legal guardian, or adult relative 
in Service detention, simultaneous release of the juvenile and the 
parent, legal guardian, or adult relative shall be evaluated on a 
discretionary case-by-case basis.
    (3) In cases where the parent or legal guardian is in Service 
detention or outside the United States, the juvenile may be released to 
such person as is designated by the parent or legal guardian in a sworn 
affidavit, executed before an immigration officer or consular officer, 
as capable and willing to care for the juvenile's well-being. Such 
person must execute an agreement to care for the juvenile and to ensure 
the juvenile's presence at all future proceedings before the Service or 
an immigration judge.
    (4) In unusual and compelling circumstances and in the discretion of 
the Director of the Office of Juvenile Affairs, a juvenile may be 
released to an adult, other than those identified in paragraphs 
(b)(1)(i) through (b)(1)(iii) of this section, who executes an agreement 
to care for the juvenile's well-being and to ensure the juvenile's 
presence at all future proceedings before the Service or an immigration 
judge.
    (c) Juvenile coordinator. The case of a juvenile for whom detention 
is determined to be necessary should be referred to the ``Juvenile 
Coordinator,'' whose responsibilities should include, but not be limited 
to, finding suitable placement of the juvenile in a facility designated 
for the occupancy of juveniles. These may include juvenile facilities 
contracted by the Service, state or local juvenile facilities, or other 
appropriate agencies authorized to accommodate juveniles by the laws of 
the state or locality.
    (d) Detention. In the case of a juvenile for whom detention is 
determined to be necessary, for such interim period of time as is 
required to locate suitable placement for the juvenile, whether such 
placement is under paragraph (b) or (c) of this section, the juvenile 
may be temporarily held by Service authorities or placed in any Service 
detention facility having separate accommodations for juveniles.
    (e) Refusal of release. If a parent of a juvenile detained by the 
Service can be located, and is otherwise suitable to receive custody of 
the juvenile, and the juvenile indicates a refusal to be released to his 
or her parent, the parent(s) shall be notified of the juvenile's refusal 
to be released to the parent(s), and they shall be afforded the 
opportunity to present their views to the district director, chief 
patrol agent, Director of the Office of Juvenile Affairs

[[Page 1030]]

or immigration judge before a custody determination is made.
    (f) Notice to parent of application for relief. If a juvenile seeks 
release from detention, voluntary departure, parole, or any form of 
relief from removal, where it appears that the grant of such relief may 
effectively terminate some interest inherent in the parent-child 
relationship and/or the juvenile's rights and interests are adverse with 
those of the parent, and the parent is presently residing in the United 
States, the parent shall be given notice of the juvenile's application 
for relief, and shall be afforded an opportunity to present his or her 
views and assert his or her interest to the district director, Director 
of the Office of Juvenile Affairs or immigration judge before a 
determination is made as to the merits of the request for relief.
    (g) Voluntary departure. Each juvenile, apprehended in the immediate 
vicinity of the border, who resides permanently in Mexico or Canada, 
shall be informed, prior to presentation of the voluntary departure form 
or being allowed to withdraw his or her application for admission, that 
he or she may make a telephone call to a parent, close relative, a 
friend, or to an organization found on the free legal services list. A 
juvenile who does not reside in Mexico or Canada who is apprehended 
shall be provided access to a telephone and must in fact communicate 
either with a parent, adult relative, friend, or with an organization 
found on the free legal services list prior to presentation of the 
voluntary departure form. If such juvenile, of his or her own volition, 
asks to contact a consular officer, and does in fact make such contact, 
the requirements of this section are satisfied.
    (h) Notice and request for disposition. When a juvenile alien is 
apprehended, he or she must be given a Form I-770, Notice of Rights and 
Disposition. If the juvenile is less than 14 years of age or unable to 
understand the notice, the notice shall be read and explained to the 
juvenile in a language he or she understands. In the event a juvenile 
who has requested a hearing pursuant to the notice subsequently decides 
to accept voluntary departure or is allowed to withdraw his or her 
application for admission, a new Form I-770 shall be given to, and 
signed by the juvenile.

[62 FR 10360, Mar. 6, 1997, as amended at 67 FR 39258, June 7, 2002]



Sec. 1236.4  Removal of S-5, S-6, and S-7 nonimmigrants.

    (a) Condition of classification. As a condition of classification 
and continued stay in classification pursuant to section 101(a)(15)(S) 
of the Act, nonimmigrants in S classification must have executed Form I-
854, Part B, Inter-agency Alien Witness and Informant Record, certifying 
that they have knowingly waived their right to a removal hearing and 
right to contest, other than on the basis of an application for 
withholding of deportation or removal, any removal action, including 
detention pending deportation or removal, instituted before lawful 
permanent resident status is obtained.
    (b) Determination of deportability. (1) A determination to remove a 
deportable alien classified pursuant to section 101(a)(15)(S) of the Act 
shall be made by the district director having jurisdiction over the 
place where the alien is located.
    (2) A determination to remove such a deportable alien shall be based 
on one or more of the grounds of deportability listed in section 237 of 
the Act based on conduct committed after, or conduct or a condition not 
disclosed to the Service prior to, the alien's classification as an S 
nonimmigrant under section 101(a)(15)(S) of the Act, or for a violation 
of, or failure to adhere to, the particular terms and conditions of 
status in S nonimmigrant classification.
    (c) Removal procedures. (1) A district director who determines to 
remove an alien witness or informant in S nonimmigrant classification 
shall notify the Commissioner, the Assistant Attorney General, Criminal 
Division, and the relevant law enforcement agency in writing to that 
effect. The Assistant Attorney General, Criminal Division, shall concur 
in or object to that decision. Unless the Assistant Attorney General, 
Criminal Division, objects within 7 days, he or she shall be deemed to 
have concurred in the decision. In the event of an objection by

[[Page 1031]]

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 law 
enforcement agency have a right of appeal from any decision to remove.
    (2) A district director who has provided notice as set forth in 
paragraph (c)(1) of this section and who has been advised by the 
Commissioner that the Assistant Attorney General, Criminal Division, has 
not objected shall issue a Warrant of Removal. The alien shall 
immediately be arrested and taken into custody by the district director 
initiating the removal. An alien classified under the provisions of 
section 101(a)(15)(S) of the Act who is determined, pursuant to a 
warrant issued by a district director, to be deportable from the United 
States shall be removed from the United States to his or her country of 
nationality or last residence. The agency that requested the alien's 
presence in the United States shall ensure departure from the United 
States and so inform the district director in whose jurisdiction the 
alien has last resided. The district director, if necessary, shall 
oversee the alien's departure from the United States and, in any event, 
shall notify the Commissioner of the alien's departure.
    (d) Withholding of removal. An alien classified pursuant to section 
101(a)(15)(S) of the Act who applies for withholding of removal shall 
have 10 days from the date the Warrant of Removal is served upon the 
alien to file an application for such relief with the district director 
initiating the removal order. The procedures contained in Sec. Sec. 
1208.2 and 1208.16 of this chapter shall apply to such an alien who 
applies for withholding of removal.
    (e) Inadmissibility. An alien who applies for admission under the 
provisions of section 101(a)(15)(S) of the Act who is determined by an 
immigration officer not to be eligible for admission under that section 
or to be inadmissible to the United States under one or more of the 
grounds of inadmissibility listed in section 212 of the Act and which 
have not been previously waived by the Commissioner will be taken into 
custody. The district director having jurisdiction over the port-of-
entry shall follow the notification procedures specified in paragraph 
(c)(1) of this section. A district director who has provided such notice 
and who has been advised by the Commissioner that the Assistant Attorney 
General, Criminal Division, has not objected shall remove the alien 
without further hearing. An alien may not contest such removal, other 
than by applying for withholding of removal.



Sec. 1236.5  Fingerprints and photographs.

    Every alien 14 years of age or older against whom proceedings based 
on deportability under section 237 of the Act are commenced under this 
part by service of a notice to appear shall be fingerprinted and 
photographed. Such fingerprints and photographs shall be made available 
to Federal, State, and local law enforcement agencies upon request to 
the district director or chief patrol agent having jurisdiction over the 
alien's record. Any such alien, regardless of his or her age, shall be 
photographed and/or fingerprinted if required by any immigration officer 
authorized to issue a notice to appear. Every alien 14 years of age or 
older who is found to be inadmissible to the United States and ordered 
removed by an immigration judge shall be fingerprinted, unless during 
the preceding year he or she has been fingerprinted at an American 
consular office.



Sec. 1236.6  Information regarding detainees.

    No person, including any state or local government entity or any 
privately operated detention facility, that houses, maintains, provides 
services to, or otherwise holds any detainee on behalf of the Service 
(whether by contract or otherwise), and no other person who by virtue of 
any official or contractual relationship with such person obtains 
information relating to any detainee, shall disclose or otherwise permit 
to be made public the name of, or other information relating to, such 
detainee. Such information shall be under the control of the Service and 
shall be subject to public disclosure only pursuant to the provisions of 
applicable federal laws, regulations

[[Page 1032]]

and executive orders. Insofar as any documents or other records contain 
such information, such documents shall not be public records. This 
section applies to all persons and information identified or described 
in it, regardless of when such persons obtained such information, and 
applies to all requests for public disclosure of such information, 
including requests that are the subject of proceedings pending as of 
April 17, 2002.

[67 FR 19511, Apr. 22, 2002]



Sec. Sec. 1236.7-1236.9  [Reserved]



PART 1238_EXPEDITED REMOVAL OF AGGRAVATED FELONS--Table of Contents




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



Sec. 1238.1  Proceedings under section 238(b) of the Act.

    (a) Definitions. As used in this part the term:
    Deciding Service officer means a district director, chief patrol 
agent, or another immigration officer designated by a district director, 
chief patrol agent, the Deputy Executive Associate Commissioner for 
Detention and Removal, or the Director of the Office of Juvenile 
Affairs, so long as that person is not the same person as the Issuing 
Service Officer.
    Issuing Service officer means any Service officer listed in Sec. 
1239.1 of this chapter as authorized to issue notices to appear.
    (b) Preliminary consideration and Notice of Intent to Issue a Final 
Administrative Deportation Order; commencement of proceedings--(1) Basis 
of Service charge. An issuing Service officer shall cause to be served 
upon an alien a Form I-851, Notice of Intent to Issue a Final 
Administrative Deportation Order (Notice of Intent), if the officer is 
satisfied that there is sufficient evidence, based upon questioning of 
the alien by an immigration officer and upon any other evidence 
obtained, to support a finding that the individual:
    (i) Is an alien;
    (ii) Has not been lawfully admitted for permanent residence, or has 
conditional permanent resident status under section 216 of the Act;
    (iii) Has been convicted (as defined in section 101(a)(48) of the 
Act and as demonstrated by any of the documents or records listed in 
Sec. 1003.41 of this chapter) of an aggravated felony and such 
conviction has become final; and
    (iv) Is deportable under section 237(a)(2)(A)(iii) of the Act, 
including an alien who has neither been admitted nor paroled, but who is 
conclusively presumed deportable under section 237(a)(2)(A)(iii) by 
operation of section 238(c) of the Act (``Presumption of 
Deportability'').
    (2) Notice. (i) Removal proceedings under section 238(b) of the Act 
shall commence upon personal service of the Notice of Intent upon the 
alien, as prescribed by Sec. Sec. 103.5a(a)(2) and 103.5a(c)(2) of 8 
CFR chapter I. The Notice of Intent shall set forth the preliminary 
determinations and inform the alien of the Service's intent to issue a 
Form I-851A, Final Administrative Removal Order, without a hearing 
before an immigration judge. The Notice of Intent shall constitute the 
charging document. The Notice of Intent shall include allegations of 
fact and conclusions of law. It shall advise that the alien: has the 
privilege of being represented, at no expense to the government, by 
counsel of the alien's choosing, as long as counsel is authorized to 
practice in removal proceedings; may request withholding of removal to a 
particular country if he or she fears persecution or torture in that 
country; may inspect the evidence supporting the Notice of Intent; may 
rebut the charges within 10 calendar days after service of such Notice 
(or 13 calendar days if service of the Notice was by mail).
    (ii) The Notice of Intent also shall advise the alien that he or she 
may designate in writing, within the rebuttal period, the country to 
which he or she chooses to be deported in accordance with section 241 of 
the Act, in the event that a Final Administrative Removal Order is 
issued, and that the Service will honor such designation only to the 
extent permitted under the terms, limitations, and conditions of section 
241 of the Act.
    (iii) The Service must determine that the person served with the 
Notice of Intent is the person named on the notice.

[[Page 1033]]

    (iv) The Service shall provide the alien with a list of available 
free legal services programs qualified under 8 CFR part 1003 and 
organizations recognized pursuant to 8 CFR part 1292, located within the 
district or sector where the Notice of Intent is issued.
    (v) The Service must either provide the alien with a written 
translation of the Notice of Intent or explain the contents of the 
Notice of Intent to the alien in the alien's native language or in a 
language that the alien understands.
    (c) Alien's response--(1) Time for response. The alien will have 10 
calendar days from service of the Notice of Intent or 13 calendar days 
if service is by mail, to file a response to the Notice of Intent. In 
the response, the alien may: designate his or her choice of country for 
removal; submit a written response rebutting the allegations supporting 
the charge and/or requesting the opportunity to review the Government's 
evidence; and/or submit a statement indicating an intention to request 
withholding of removal under 8 CFR 1208.16 of this chapter, and/or 
request in writing an extension of time for response, stating the 
specific reasons why such an extension is necessary.
    (2) Nature of rebuttal or request to review evidence. (i) If an 
alien chooses to rebut the allegations contained in the Notice of 
Intent, the alien's written response must indicate which finding(s) are 
being challenged and should be accompanied by affidavit(s), documentary 
information, or other specific evidence supporting the challenge.
    (ii) If an alien's written response requests the opportunity to 
review the Government's evidence, the Service shall serve the alien with 
a copy of the evidence in the record of proceeding upon which the 
Service is relying to support the charge. The alien may, within 10 
calendar days following service of the Government's evidence (13 
calendar days if service is by mail), furnish a final response in 
accordance with paragraph (c)(1) of this section. If the alien's final 
response is a rebuttal of the allegations, such a final response should 
be accompanied by affidavit(s), documentary information, or other 
specific evidence supporting the challenge.
    (d) Determination by deciding Service officer--(1) No response 
submitted or concession of deportability. If the deciding Service 
officer does not receive a timely response and the evidence in the 
record of proceeding establishes deportability by clear, convincing, and 
unequivocal evidence, or if the alien concedes deportability, then the 
deciding Service officer shall issue and cause to be served upon the 
alien a Final Administrative Removal Order that states the reasons for 
the deportation decision. The alien may, in writing, waive the 14-day 
waiting period before execution of the final order of removal provided 
in a paragraph (f) of this section.
    (2) Response submitted--(i) Insufficient rebuttal; no genuine issue 
of material fact. If the alien timely submits a rebuttal to the 
allegations, but the deciding Service officer finds that deportability 
is established by clear, convincing, and unequivocal evidence in the 
record of proceeding, the deciding Service officer shall issue and cause 
to be served upon the alien a Final Administrative Removal Order that 
states the reasons for the decision of deportability.
    (ii) Additional evidence required. (A) If the deciding Service 
officer finds that the record of proceeding, including the alien's 
timely rebuttal, raises a genuine issue of material fact regarding the 
preliminary findings, the deciding Service officer may either obtain 
additional evidence from any source, including the alien, or cause to be 
issued a notice to appear to initiate removal proceedings under section 
240 of the Act. The deciding Service officer may also obtain additional 
evidence from any source, including the alien, if the deciding Service 
officer deems that such additional evidence may aid the officer in the 
rendering of a decision.
    (B) If the deciding Service officer considers additional evidence 
from a source other than the alien, that evidence shall be made a part 
of the record of proceeding, and shall be provided to the alien. If the 
alien elects to submit a response to such additional evidence, such 
response must be filed with the Service within 10 calendar days of 
service of the additional evidence (or 13 calendar days if service is

[[Page 1034]]

by mail). If the deciding Service officer finds, after considering all 
additional evidence, that deportability is established by clear, 
convincing, and unequivocal evidence in the record of proceeding, the 
deciding Service officer shall issue and cause to be served upon the 
alien a Final Administrative Removal Order that states the reasons for 
the decision of deportability.
    (iii) Conversion to proceedings under section 240 of the Act. If the 
deciding Service officer finds that the alien is not amenable to removal 
under section 238 of the Act, the deciding Service officer shall 
terminate the expedited proceedings under section 238 of the Act and 
shall, where appropriate, cause to be issued a notice to appear for the 
purpose of initiating removal proceedings before an immigration judge 
under section 240 of the Act.
    (3) Termination of proceedings by deciding Service officer. Only the 
deciding Service officer may terminate proceedings under section 238 of 
the Act, in accordance with this section.
    (e) Proceedings commenced under section 240 of the Act. In any 
proceeding commenced under section 240 of the Act which is based on 
deportability under section 237 of the Act, if it appears that the 
respondent alien is subject to removal pursuant to section 238 of the 
Act, the immigration judge may, upon the Service's request, terminate 
the case and, upon such termination, the Service may commence 
administrative proceedings under section 238 of the Act. However, in the 
absence of any such request, the immigration judge shall complete the 
proceeding commenced under section 240 of the Act.
    (f) Executing final removal order of deciding Service officer--(1) 
Time of execution. Upon the issuance of a Final Administrative Removal 
Order, the Service shall issue a Warrant of Removal in accordance with 
Sec. 1241.2 of this chapter; such warrant shall be executed no sooner 
than 14 calendar days after the date the Final Administrative Removal 
Order is issued, unless the alien knowingly, voluntarily, and in writing 
waives the 14-day period.
    (2) Country to which alien is to be removed. The deciding Service 
officer shall designate the country of removal in the manner prescribed 
by section 241 of the Act.
    (3) Withholding of removal. If the alien has requested withholding 
of removal under Sec. 1208.16 of this chapter, the deciding officer 
shall, upon issuance of a Final Administrative Removal Order, 
immediately refer the alien's case to an asylum officer to conduct a 
reasonable fear determination in accordance with Sec. 1208.31 of this 
chapter.
    (g) Arrest and detention. At the time of issuance of a Notice of 
Intent or at any time thereafter and up to the time the alien becomes 
the subject of a Warrant of Removal, the alien may be arrested and taken 
into custody under the authority of a Warrant of Arrest issued by an 
officer listed in Sec. 287.5(e)(2) of 8 CFR chapter I. The decision of 
the Service concerning custody or bond shall not be administratively 
appealable during proceedings initiated under section 238 of the Act and 
this part.
    (h) Record of proceeding. The Service shall maintain a record of 
proceeding for judicial review of the Final Administrative Removal Order 
sought by any petition for review. The record of proceeding shall 
include, but not necessarily be limited to: the charging document 
(Notice of Intent); the Final Administrative Removal Order (including 
any supplemental memorandum of decision); the alien's response, if any; 
all evidence in support of the charge; and any admissible evidence, 
briefs, or documents submitted by either party respecting deportability. 
The executed duplicate of the Notice of Intent in the record of 
proceedings shall be retained as evidence that the individual upon whom 
the notice for the proceeding was served was, in fact, the alien named 
in the notice.

[62 FR 10365, Mar. 6, 1997, as amended at 64 FR 8494, Feb. 19, 1999; 67 
FR 39258, June 7, 2002. Duplicated from Sec. 238.1 at 68 FR 9838, Feb. 
28, 2003, as amended at 68 FR 10355, Mar. 3, 2003]



PART 1239_INITIATION OF REMOVAL PROCEEDINGS--Table of Contents




Sec.
1239.1 Notice to appear.
1239.2 Cancellation of notice to appear.
1239.3 Effect of filing notice to appear.

    Authority: 8 U.S.C. 1103, 1221, 1229.

[[Page 1035]]


    Source: 62 FR 10366, Mar. 6, 1997, unless otherwise noted. 
Duplicated from part 239 at 68 FR 9838, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1239 appear at 68 FR 
9846, Feb. 28, 2003, and at 68 FR 10355, Mar. 3, 2003.



Sec. 1239.1  Notice to appear.

    (a) Commencement. Every removal proceeding conducted under section 
240 of the Act (8 U.S.C. 1229a) to determine the deportability or 
inadmissibility of an alien is commenced by the filing of a notice to 
appear with the immigration court. For provisions relating to the 
issuance of a notice to appear by an immigration officer, or supervisor 
thereof, see 8 CFR 239.1(a).
    (b) Service of notice to appear. Service of the notice to appear 
shall be in accordance with section 239 of the Act.

[62 FR 10366, Mar. 6, 1997, as amended at 67 FR 39258, June 7, 2002; 69 
FR 44907, July 28, 2004]



Sec. 1239.2  Cancellation of notice to appear.

    (a) Prior to commencement of proceedings. For provisions relating to 
the authority of an immigration officer to cancel a notice to appear 
prior to the vesting of jurisdiction with the immigration judge, see 8 
CFR 239.2(a) and (b).
    (b) [Reserved]
    (c) Motion to dismiss. After commencement of proceedings pursuant to 
8 CFR 1003.14, government counsel or an officer enumerated in 8 CFR 
239.1(a) may move for dismissal of the matter on the grounds set out 
under 8 CFR 239.2(a). Dismissal of the matter shall be without prejudice 
to the alien or the Department of Homeland Security.
    (d) Motion for remand. After commencement of the hearing, government 
counsel or an officer enumerated in 8 CFR 239.1(a) may move for remand 
of the matter to the Department of Homeland Security on the ground that 
the foreign relations of the United States are involved and require 
further consideration. Remand of the matter shall be without prejudice 
to the alien or the Department of Homeland Security.
    (e) Warrant of arrest. When a notice to appear is canceled or 
proceedings are terminated under this section any outstanding warrant of 
arrest is canceled.
    (f) Termination of removal proceedings by immigration judge. An 
immigration judge may terminate removal proceedings to permit the alien 
to proceed to a final hearing on a pending application or petition for 
naturalization when the alien has established prima facie eligibility 
for naturalization and the matter involves exceptionally appealing or 
humanitarian factors; in every other case, the removal hearing shall be 
completed as promptly as possible notwithstanding the pendency of an 
application for naturalization during any state of the proceedings.

[62 FR 10366, Mar. 6, 1997. Duplicated from part 239 at 68 FR 9838, Feb. 
28, 2003, as amended at 69 FR 44907, July 28, 2004]



Sec. 1239.3  Effect of filing notice to appear.

    The filing of a notice to appear shall have no effect in determining 
periods of unlawful presence as defined in section 212(a)(9)(B) of the 
Act.



PART 1240_PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED 

STATES--Table of Contents




                      Subpart A_Removal Proceedings

Sec.
1240.1 Immigration judges.
1240.2 Service counsel.
1240.3 Representation by counsel.
1240.4 Incompetent respondents.
1240.5 Interpreter.
1240.6 Postponement and adjournment of hearing.
1240.7 Evidence in removal proceedings under section 240 of the Act.
1240.8 Burdens of proof in removal proceedings.
1240.9 Contents of record.
1240.10 Hearing.
1240.11 Ancillary matters, applications.
1240.12 Decision of the immigration judge.
1240.13 Notice of decision.
1240.14 Finality of order.
1240.15 Appeals.
1240.16 Application of new procedures or termination of proceedings in 
          old proceedings pursuant to section 309(c) of Public Law 104-
          208.
1240.17-1240.19 [Reserved]

[[Page 1036]]

                    Subpart B_Cancellation of Removal

1240.20 Cancellation of removal and adjustment of status under section 
          240A of the Act.
1240.21 Suspension of deportation and adjustment of status under section 
          244(a) of the Act (as in effect before April 1, 1997) and 
          cancellation of removal and adjustment of status under section 
          240A(b) of the Act for certain nonpermanent residents.
1240.22-1240.24 [Reserved]

                      Subpart C_Voluntary Departure

1240.26 Voluntary departure--authority of the Executive Office for 
          Immigration Review.
1240.27-1240.29 [Reserved]

Subpart D_Exclusion of Aliens (for Proceedings Commenced Prior to April 
                                1, 1997)

1240.30 Proceedings prior to April 1, 1997.
1240.31 Authority of immigration judges.
1240.32 Hearing.
1240.33 Applications for asylum or withholding of deportation.
1240.34 Renewal of application for adjustment of status under section 
          245 of the Act.
1240.35 Decision of the immigration judge; notice to the applicant.
1240.36 Finality of order.
1240.37 Appeals.
1240.38 Fingerprinting of excluded aliens.
1240.39 [Reserved]

Subpart E_Proceedings To Determine Deportability of Aliens in the United 
States: Hearing and Appeal (for Proceedings Commenced Prior to April 1, 
                                  1997)

1240.40 Proceedings commenced prior to April 1, 1997.
1240.41 Immigration judges.
1240.42 Representation by counsel.
1240.43 Incompetent respondents.
1240.44 Interpreter.
1240.45 Postponement and adjournment of hearing.
1240.46 Evidence.
1240.47 Contents of record.
1240.48 Hearing.
1240.49 Ancillary matters, applications.
1240.50 Decision of the immigration judge.
1240.51 Notice of decision.
1240.52 Finality of order.
1240.53 Appeals.
1240.54 [Reserved]

    Subpart F_Suspension of Deportation and Voluntary Departure (for 
              Proceedings Commenced Prior to April 1, 1997)

1240.55 Proceedings commenced prior to April 1, 1997.
1240.56 Application.
1240.57 Extension of time to depart.
1240.58 Extreme hardship.

Subpart G--Civil Penalties for Failure to Depart [Reserved]

  Subpart H_Applications for Suspension of Deportation or Special Rule 
      Cancellation of Removal Under Section 203 of Pub. L. 105	100

1240.60 Definitions.
1240.61 Aplicability.
1240.62 Jurisdiction.
1240.63 Application process.
1240.64 Eligibility--general.
1240.65 Eligibility for suspension of deportation.
1240.66 Eligibility for special rule cancellation of removal.
1240.67 Procedure for interview before an asylum officer.
1240.68 Failure to appear at an interview before an asylum officer or 
          failure to follow requirements for fingerprinting.
1240.69 Reliance on information compiled by other sources.
1240.70 Decision by the Service.

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 1251, 
1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-100 (111 
Stat. 2160, 2193); sec. 902, Pub. L. 105-277, (112 Stat. 2681).

    Source: 62 FR 10367, Mar. 6, 1997, unless otherwise noted. 
Redesignated in part and duplicated in part from part 240 at 68 FR 9838, 
9840, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1240 appear at 68 FR 
9846, Feb. 28, 2003, and at 68 FR 10355, Mar. 3, 2003.



                      Subpart A_Removal Proceedings



Sec. 1240.1  Immigration judges.

    (a) Authority. (1) In any removal proceeding pursuant to section 240 
of the Act, the immigration judge shall have the authority to:
    (i) Determine removability pursuant to section 240(a)(1) of the Act; 
to make decisions, including orders of removal as provided by section 
240(c)(1)(A) of the Act;

[[Page 1037]]

    (ii) To determine applications under sections 208, 212(a)(2)(F), 
212(a)(6)(F)(ii), 212(a)(9)(B)(v), 212(d)(11), 212(d)(12), 212(g), 
212(h), 212(i), 212(k), 237(a)(1)(E)(iii), 237(a)(1)(H), 
237(a)(3)(C)(ii), 240A(a) and (b), 240B, 245, and 249 of the Act, 
section 202 of Pub. L. 105-100, section 902 of Pub. L. 105-277, and 
former section 212(c) of the Act (as it existed prior to April 1, 1997);
    (iii) To order withholding of removal pursuant to section 241(b)(3) 
of the Act and pursuant to the Convention Against Torture; and
    (iv) To take any other action consistent with applicable law and 
regulations as may be appropriate.
    (2) An immigration judge may certify his or her decision in any case 
under section 240 of the Act to the Board of Immigration Appeals when it 
involves an unusually complex or novel question of law or fact. Nothing 
contained in this part shall be construed to diminish the authority 
conferred on immigration judges under sections 101(b)(4) and 103 of the 
Act.
    (b) Withdrawal and substitution of immigration judges. The 
immigration judge assigned to conduct the hearing shall at any time 
withdraw if he or she deems himself or herself disqualified. If an 
immigration judge becomes unavailable to complete his or her duties, 
another immigration judge may be assigned to complete the case. The new 
immigration judge shall familiarize himself or herself with the record 
in the case and shall state for the record that he or she has done so.
    (c) Conduct of hearing. The immigration judge shall receive and 
consider material and relevant evidence, rule upon objections, and 
otherwise regulate the course of the hearing.
    (d) Withdrawal of application for admission. An immigration judge 
may allow only an arriving alien to withdraw an application for 
admission. Once the issue of inadmissibility has been resolved, 
permission to withdraw an application for admission should ordinarily be 
granted only with the concurrence of the Service. An immigration judge 
shall not allow an alien to withdraw an application for admission unless 
the alien, in addition to demonstrating that he or she possesses both 
the intent and the means to depart immediately from the United States, 
establishes that factors directly relating to the issue of 
inadmissibility indicate that the granting of the withdrawal would be in 
the interest of justice. During the pendency of an appeal from the order 
of removal, permission to withdraw an application for admission must be 
obtained from the immigration judge or the Board.

[62 FR 10367, Mar. 6, 1997; 62 FR 15363, Apr. 1, 1997, as amended at 63 
FR 27829, May 21, 1998; 64 FR 8495, Feb. 19, 1999; 64 FR 25766, May 12, 
1999; 69 FR 57835, Sept. 28, 2004; 72 FR 53678, Sept. 20, 2007]



Sec. 1240.2  Service counsel.

    (a) Authority. Service counsel shall present on behalf of the 
government evidence material to the issues of deportability or 
inadmissibility and any other issues that may require disposition by the 
immigration judge. The duties of the Service counsel include, but are 
not limited to, the presentation of evidence and the interrogation, 
examination, and cross-examination of the respondent or other witnesses. 
Nothing contained in this subpart diminishes the authority of an 
immigration judge to conduct proceedings under this part. The Service 
counsel is authorized to appeal from a decision of the immigration judge 
pursuant to Sec. 1003.38 of this chapter and to move for reopening or 
reconsideration pursuant to Sec. 1003.23 of this chapter.
    (b) Assignment. In a removal proceeding, the Service shall assign an 
attorney to each case within the provisions of Sec. 1240.10(d), and to 
each case in which an unrepresented respondent is incompetent or is 
under 18 years of age, and is not accompanied by a guardian, relative, 
or friend. In a case in which the removal proceeding would result in an 
order of removal, the Service shall assign an attorney to each case in 
which a respondent's nationality is in issue. A Service attorney shall 
be assigned in every case in which the Commissioner approves the 
submission of non-record information under Sec. 1240.11(a)(3). In his 
or her discretion, whenever he or she deems such assignment necessary or 
advantageous, the General Counsel may assign a Service attorney to any 
other case at any stage of the proceeding.

[[Page 1038]]



Sec. 1240.3  Representation by counsel.

    The respondent may be represented at the hearing by an attorney or 
other representative qualified under 8 CFR part 1292.



Sec. 1240.4  Incompetent respondents.

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



Sec. 1240.5  Interpreter.

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



Sec. 1240.6  Postponement and adjournment of hearing.

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



Sec. 1240.7  Evidence in removal proceedings under section 240 of the Act.

    (a) Use of prior statements. The immigration judge may receive in 
evidence any oral or written statement that is material and relevant to 
any issue in the case previously made by the respondent or any other 
person during any investigation, examination, hearing, or trial.
    (b) Testimony. Testimony of witnesses appearing at the hearing shall 
be under oath or affirmation administered by the immigration judge.
    (c) Depositions. The immigration judge may order the taking of 
depositions pursuant to Sec. 1003.35 of this chapter.



Sec. 1240.8  Burdens of proof in removal proceedings.

    (a) Deportable aliens. A respondent charged with deportability shall 
be found to be removable if the Service proves by clear and convincing 
evidence that the respondent is deportable as charged.
    (b) Arriving aliens. In proceedings commenced upon a respondent's 
arrival in the Untied States or after the revocation or expiration of 
parole, the respondent must prove that he or she is clearly and beyond a 
doubt entitled to be admitted to the United States and is not 
inadmissible as charged.
    (c) Aliens present in the United States without being admitted or 
paroled. In the case of a respondent charged as being in the United 
States without being admitted or paroled, the Service must first 
establish the alienage of the respondent. Once alienage has been 
established, unless the respondent demonstrates by clear and convincing 
evidence that he or she is lawfully in the United States pursuant to a 
prior admission, the respondent must prove that he or she is clearly and 
beyond a doubt entitled to be admitted to the United States and is not 
inadmissible as charged.
    (d) Relief from removal. The respondent shall have the burden of 
establishing that he or she is eligible for any requested benefit or 
privilege and that it should be granted in the exercise of discretion. 
If the evidence indicates that one or more of the grounds for mandatory 
denial of the application for relief may apply, the alien shall have the 
burden of proving by a preponderance of the evidence that such grounds 
do not apply.



Sec. 1240.9  Contents of record.

    The hearing before the immigration judge, including the testimony, 
exhibits, applications, proffers, and requests, the immigration judge's 
decision, and all written orders, motions, appeals, briefs, and other 
papers filed in the proceedings shall constitute the record in the case. 
The hearing shall be recorded verbatim except for statements made off 
the record with the permission of the immigration judge. In his or her 
discretion, the immigration judge

[[Page 1039]]

may exclude from the record any arguments made in connection with 
motions, applications, requests, or objections, but in such event the 
person affected may submit a brief.



Sec. 1240.10  Hearing.

    (a) Opening. In a removal proceeding, the immigration judge shall:
    (1) Advise the respondent of his or her right to representation, at 
no expense to the government, by counsel of his or her own choice 
authorized to practice in the proceedings and require the respondent to 
state then and there whether he or she desires representation;
    (2) Advise the respondent of the availability of free legal services 
provided by organizations and attorneys qualified under 8 CFR part 1003 
and organizations recognized pursuant to Sec. 1292.2 of this chapter, 
located in the district where the removal hearing is being held;
    (3) Ascertain that the respondent has received a list of such 
programs, and a copy of appeal rights;
    (4) Advise the respondent that he or she will have a reasonable 
opportunity to examine and object to the evidence against him or her, to 
present evidence in his or her own behalf and to cross-examine witnesses 
presented by the government (but the respondent shall not be entitled to 
examine such national security information as the government may proffer 
in opposition to the respondent's admission to the United States or to 
an application by the respondent for discretionary relief);
    (5) Place the respondent under oath;
    (6) Read the factual allegations and the charges in the notice to 
appear to the respondent and explain them in non-technical language; and
    (7) Enter the notice to appear as an exhibit in the Record of 
Proceeding.
    (b) Public access to hearings. Removal hearings shall be open to the 
public, except that the immigration judge may, in his or her discretion, 
close proceedings as provided in Sec. 1003.27 of this chapter.
    (c) Pleading by respondent. The immigration judge shall require the 
respondent to plead to the notice to appear by stating whether he or she 
admits or denies the factual allegations and his or her removability 
under the charges contained therein. If the respondent admits the 
factual allegations and admits his or her removability under the charges 
and the immigration judge is satisfied that no issues of law or fact 
remain, the immigration judge may determine that removability as charged 
has been established by the admissions of the respondent. The 
immigration judge shall not accept an admission of removability from an 
unrepresented respondent who is incompetent or under the age of 18 and 
is not accompanied by an attorney or legal representative, a near 
relative, legal guardian, or friend; nor from an officer of an 
institution in which a respondent is an inmate or patient. When, 
pursuant to this paragraph, the immigration judge does not accept an 
admission of removability, he or she shall direct a hearing on the 
issues.
    (d) Issues of removability. When removability is not determined 
under the provisions of paragraph (c) of this section, the immigration 
judge shall request the assignment of an Service counsel, and shall 
receive evidence as to any unresolved issues, except that no further 
evidence need be received as to any facts admitted during the pleading. 
The alien shall provide a court certified copy of a Judicial 
Recommendation Against Deportation (JRAD) to the immigration judge when 
such recommendation will be the basis of denying any charge(s) brought 
by the Service in the proceedings against the alien. No JRAD is 
effective against a charge of deportability under former section 
241(a)(11) of the Act or if the JRAD was granted on or after November 
29, 1990.
    (e) Additional charges in removal hearings. At any time during the 
proceeding, additional or substituted charges of inadmissibility and/or 
deportability and/or factual allegations may be lodged by the Service in 
writing. The alien in removal proceedings shall be served with a copy of 
these additional charges and allegations. The immigration judge shall 
read the additional factual allegations and charges to the alien and 
explain them to him or

[[Page 1040]]

her. The immigration judge shall advise the alien, if he or she is not 
represented by counsel, that the alien may be so represented, and that 
he or she may be given a reasonable continuance to respond to the 
additional factual allegations and charges. Thereafter, the provision of 
Sec. 1240.6(b) relating to pleading shall apply to the additional 
factual allegations and charges.
    (f) Country of removal. With respect to an arriving alien covered by 
section 241(b)(1) of the Act, the country, or countries in the 
alternative, to which the alien may be removed will be determined 
pursuant to section 241(b)(1) of the Act. In any other case, the 
immigration judge shall notify the respondent that if he or she is 
finally ordered removed, the country of removal will in the first 
instance be the country designated by the respondent, except as 
otherwise provided under section 241(b)(2) of the Act, and shall afford 
him or her an opportunity then and there to make such designation. The 
immigration judge shall also identify for the record a country, or 
countries in the alternative, to which the alien's removal may be made 
pursuant to section 241(b)(2) of the Act if the country of the alien's 
designation will not accept him or her into its territory, or fails to 
furnish timely notice of acceptance, or if the alien declines to 
designate a country. In considering alternative countries of removal, 
acceptance or the existence of a functioning government is not required 
with respect to an alternative country described in section 
241(b)(1)(C)(i)-(iii) of the Act or a removal country described in 
section 241(b)(2)(E)(i)-(iv) of the Act. See 8 CFR 241.15.

[62 FR 10367, Mar. 6, 1997. Redesignated in part and duplicated in part 
from part 240 at 68 FR 9838, 9840, Feb. 28, 2003; 70 FR 674, Jan. 5, 
2005]



Sec. 1240.11  Ancillary matters, applications.

    (a) Creation of the status of an alien lawfully admitted for 
permanent residence. (1) In a removal proceeding, an alien may apply to 
the immigration judge for cancellation of removal under section 240A of 
the Act, adjustment of status under section 1 of the Act of November 2, 
1966 (as modified by section 606 of Pub. L. 104-208), section 101 or 104 
of the Act of October 28, 1977, section 202 of Pub. L. 105-100, or 
section 902 of Pub. L. 105-277, or for the creation of a record of 
lawful admission for permanent residence under section 249 of the Act. 
The application shall be subject to the requirements of Sec. 1240.20, 
and 8 CFR parts 1245 and 1249. The approval of any application made to 
the immigration judge under section 245 of the Act by an alien spouse 
(as defined in section 216(g)(1) of the Act) or by an alien entrepreneur 
(as defined in section 216A(f)(1) of the Act) shall result in the 
alien's obtaining the status of lawful permanent resident on a 
conditional basis in accordance with the provisions of section 216 or 
216A of the Act, whichever is applicable. However, the Petition to 
Remove the Conditions on Residence required by section 216(c) of the 
Act, or the Petition by Entrepreneur to Remove Conditions required by 
section 216A(c) of the Act shall be made to the director in accordance 
with 8 CFR part 1216.
    (2) In conjunction with any application for creation of status of an 
alien lawfully admitted for permanent residence made to an immigration 
judge, if the alien is inadmissible under any provision of section 
212(a) of the Act, and believes that he or she meets the eligibility 
requirements for a waiver of the ground of inadmissibility, he or she 
may apply to the immigration judge for such waiver. The immigration 
judge shall inform the alien of his or her apparent eligibility to apply 
for any of the benefits enumerated in this chapter and shall afford the 
alien an opportunity to make application during the hearing, in 
accordance with the provisions of Sec. 1240.8(d). In a relevant case, 
the immigration judge may adjudicate the sufficiency of an Affidavit of 
Support Under Section 213A (Form I-864), executed on behalf of an 
applicant for admission or for adjustment of status, in accordance with 
the provisions of section 213A of the Act and 8 CFR part 213a.
    (3) In exercising discretionary power when considering an 
application for status as a permanent resident under this chapter, the 
immigration judge may consider and base the decision on information not 
contained in the

[[Page 1041]]

record and not made available for inspection by the alien, provided the 
Commissioner has determined that such information is relevant and is 
classified under the applicable Executive Order as requiring protection 
from unauthorized disclosure in the interest of national security. 
Whenever the immigration judge believes that he or she can do so while 
safeguarding both the information and its source, the immigration judge 
should inform the alien of the general nature of the information in 
order that the alien may have an opportunity to offer opposing evidence. 
A decision based in whole or in part on such classified information 
shall state that the information is material to the decision.
    (b) Voluntary departure. The alien may apply to the immigration 
judge for voluntary departure in lieu of removal pursuant to section 
240B of the Act and subpart C of this part.
    (c) Applications for asylum and withholding of removal. (1) If the 
alien expresses fear of persecution or harm upon return to any of the 
countries to which the alien might be removed pursuant to Sec. 
1240.10(f), and the alien has not previously filed an application for 
asylum or withholding of removal that has been referred to the 
immigration judge by an asylum officer in accordance with Sec. 1208.14 
of this chapter, the immigration judge shall:
    (i) Advise the alien that he or she may apply for asylum in the 
United States or withholding of removal to those countries;
    (ii) Make available the appropriate application forms; and
    (iii) Advise the alien of the privilege of being represented by 
counsel at no expense to the government and of the consequences, 
pursuant to section 208(d)(6) of the Act, of knowingly filing a 
frivolous application for asylum. The immigration judge shall provide to 
the alien a list of persons who have indicated their availability to 
represent aliens in asylum proceedings on a pro bono basis.
    (2) An application for asylum or withholding of removal must be 
filed with the Immigration Court, pursuant to Sec. 1208.4(c) of this 
chapter. Upon receipt of an application that has not been referred by an 
asylum officer, the Immigration Court shall forward a copy to the 
Department of State pursuant to Sec. 1208.11 of this chapter and shall 
calendar the case for a hearing. The reply, if any, from the Department 
of State, unless classified under the applicable Executive Order, shall 
be given to both the alien and to the Service counsel representing the 
government.
    (3) Applications for asylum and withholding of removal so filed will 
be decided by the immigration judge pursuant to the requirements and 
standards established in 8 CFR part 1208 of this chapter after an 
evidentiary hearing to resolve factual issues in dispute. An evidentiary 
hearing extending beyond issues related to the basis for a mandatory 
denial of the application pursuant to Sec. 1208.14 or Sec. 1208.16 of 
this chapter is not necessary once the immigration judge has determined 
that such a denial is required.
    (i) Evidentiary hearings on applications for asylum or withholding 
of removal will be open to the public unless the alien expressly 
requests that the hearing be closed pursuant to Sec. 3.27 of this 
chapter. The immigration judge shall inquire whether the alien requests 
such closure.
    (ii) Nothing in this section is intended to limit the authority of 
the immigration judge to properly control the scope of any evidentiary 
hearing.
    (iii) During the removal hearing, the alien shall be examined under 
oath on his or her application and may present evidence and witnesses in 
his or her own behalf. The alien has the burden of establishing that he 
or she is a refugee as defined in section 101(a)(42) of the Act pursuant 
to the standards set forth in Sec. 1208.13 of this chapter.
    (iv) Service counsel may call witnesses and present evidence for the 
record, including information classified under the applicable Executive 
Order, provided the immigration judge or the Board has determined that 
such information is relevant to the hearing. When the immigration judge 
receives such classified information, he or she shall inform the alien. 
The agency that provides the classified information to the immigration 
judge may provide an unclassified summary of the information for release 
to the alien, whenever it determines it can do so consistently

[[Page 1042]]

with safeguarding both the classified nature of the information and its 
sources. The summary should be as detailed as possible, in order that 
the alien may have an opportunity to offer opposing evidence. A decision 
based in whole or in part on such classified information shall state 
whether such information is material to the decision.
    (4) The decision of an immigration judge to grant or deny asylum or 
withholding of removal shall be communicated to the alien and to the 
Service counsel. An adverse decision shall state why asylum or 
withholding of removal was denied.
    (d) Application for relief under sections 237(a)(1)(H) and 
237(a)(1)(E)(iii) of the Act. The respondent may apply to the 
immigration judge for relief from removal under sections 237(a)(1)(H) 
and 237(a)(1)(E)(iii) of the Act.
    (e) General. An application under this section shall be made only 
during the hearing and shall not be held to constitute a concession of 
alienage or deportability in any case in which the respondent does not 
admit his or her alienage or deportability. However, nothing in this 
section shall prohibit the Service from using information supplied in an 
application for asylum or withholding of deportation or removal 
submitted to the Service on or after January 4, 1995, as the basis for 
issuance of a charging document or to establish alienage or 
deportability in a case referred to an immigration judge under Sec. 
1208.14(b) of this chapter. The alien shall have the burden of 
establishing that he or she is eligible for any requested benefit or 
privilege and that it should be granted in the exercise of discretion. 
Nothing contained in this section is intended to foreclose the 
respondent from applying for any benefit or privilege that he or she 
believes himself or herself eligible to receive in proceedings under 
this part. Nothing in this section is intended to limit the Attorney 
General's authority to remove an alien to any country permitted by 
section 241(b) of the Act.
    (f) Fees. The alien shall not be required to pay a fee on more than 
one application within paragraphs (a) and (c) of this section, provided 
that the minimum fee imposed when more than one application is made 
shall be determined by the cost of the application with the highest fee. 
When a motion to reopen or reconsider is made concurrently with an 
application for relief seeking one of the immigration benefits set forth 
in paragraphs (a) and (c) of this section, only the fee set forth in 
Sec. 103.7(b)(1) of 8 CFR chapter I for the motion must accompany the 
motion and application for relief. If such a motion is granted, the 
appropriate fee for the application for relief, if any, set forth in 8 
CFR 103.7(b)(1), must be paid within the time specified in order to 
complete the application.
    (g) Safe third country agreement. (1) The immigration judge has 
authority to apply section 208(a)(2)(A) of the Act, relating to a 
determination that an alien may be removed to a safe third country 
pursuant to a bilateral or multilateral agreement (Agreement), in the 
case of an alien who is subject to the terms of the Agreement and is 
placed in proceedings pursuant to section 240 of the Act. In an 
appropriate case, the immigration judge shall determine whether under 
the Agreement the alien should be returned to the safe third country, or 
whether the alien should be permitted to pursue asylum or other 
protection claims in the United States.
    (2) An alien described in paragraph (g)(1) of this section is 
ineligible to apply for asylum, pursuant to section 208(a)(2)(A) of the 
Act, unless the immigration judge determines, by preponderance of the 
evidence, that:
    (i) The Agreement does not apply to the alien or does not preclude 
the alien from applying for asylum in the United States; or
    (ii) The alien qualifies for an exception to the Agreement as set 
forth in paragraph (g)(3) of this section.
    (3) The immigration judge shall apply the applicable regulations in 
deciding whether the alien qualifies for any exception under the 
Agreement that would permit the United States to exercise authority over 
the alien's asylum claim. The exceptions under the Agreement are 
codified at 8 CFR 208.30(e)(6)(iii). The immigration judge shall not 
review, consider, or decide any issues pertaining to any discretionary 
determination on whether the alien should be permitted to pursue an

[[Page 1043]]

asylum claim in the United States notwithstanding the general terms of 
the Agreement, as such discretionary public interest determinations are 
reserved to DHS. However, an alien in removal proceedings who is 
otherwise ineligible to apply for asylum under the Agreement may apply 
for asylum if DHS files a written notice in the proceedings before the 
immigration judge that it has decided in the public interest to allow 
the alien to pursue claims for asylum or withholding of removal in the 
United States.
    (4) An alien who is found to be ineligible to apply for asylum under 
section 208(a)(2)(A) of the Act is ineligible to apply for withholding 
of removal pursuant to section 241(b)(3) of the Act and the Convention 
against Torture. However, the alien may apply for any other relief from 
removal for which the alien may be eligible. If an alien who is subject 
to section 208(a)(2)(A) of the Act is ordered removed, the alien shall 
be ordered removed to the safe third country in which the alien will be 
able to pursue his or her claims for asylum or protection against 
persecution or torture under the laws of that country.

[62 FR 10367, Mar. 6, 1997, as amended at 62 FR 45150, Aug. 26, 1997; 63 
FR 27829, May 21, 1998; 64 FR 25766, May 12, 1999; 69 FR 69497, Nov. 29, 
2004; 71 FR 35757, June 21, 2006]

    Effective Date Note: At 73 FR 76937, Dec. 18, 2008, Sec. 1240.11 
was amended by adding a new sentence at the end of paragraph (b), 
effective Jan. 20, 2009. For the convenience of the user, the added text 
is set forth as follows:



Sec. 1240.11  Ancillary matters, applications.

                                * * * * *

    (b) * * * The immigration judge shall advise the alien of the 
consequences of filing a post-decision motion to reopen or reconsider 
prior to the expiration of the time specified by the immigration judge 
for the alien to depart voluntarily.

                                * * * * *



Sec. 1240.12  Decision of the immigration judge.

    (a) Contents. The decision of the immigration judge may be oral or 
written. The decision of the immigration judge shall include a finding 
as to inadmissibility or deportability. The formal enumeration of 
findings is not required. The decision shall also contain reasons for 
granting or denying the request. The decision shall be concluded with 
the order of the immigration judge.
    (b) Summary decision. Notwithstanding the provisions of paragraph 
(a) of this section, in any case where inadmissibility or deportability 
is determined on the pleadings pursuant to Sec. 1240.10(b) and the 
respondent does not make an application under Sec. 1240.11, the alien 
is statutorily ineligible for relief, or the respondent applies for 
voluntary departure only and the immigration judge grants the 
application, the immigration judge may enter a summary decision or, if 
voluntary departure is granted, a summary decision with an alternate 
order of removal.
    (c) Order of the immigration judge. The order of the immigration 
judge shall direct the respondent's removal from the United States, or 
the termination of the proceedings, or other such disposition of the 
case as may be appropriate. The immigration judge is authorized to issue 
orders in the alternative or in combination as he or she may deem 
necessary.
    (d) Removal. When a respondent is ordered removed from the United 
States, the immigration judge shall identify a country, or countries in 
the alternative, to which the alien's removal may in the first instance 
be made, pursuant to the provisions of section 241(b) of the Act. In the 
event that the Department of Homeland Security is unable to remove the 
alien to the specified or alternative country or countries, the order of 
the immigration judge does not limit the authority of the Department of 
Homeland Security to remove the alien to any other country as permitted 
by section 241(b) of the Act.

[62 FR 10367, Mar. 6, 1997. Redesignated in part and duplicated in part 
from part 240 at 68 FR 9838, 9840, Feb. 28, 2003; 70 FR 674, Jan. 5, 
2005]



Sec. 1240.13  Notice of decision.

    (a) Written decision. A written decision shall be served upon the 
respondent and the Service counsel, together with the notice referred to 
in Sec. 1003.3 of

[[Page 1044]]

this chapter. Service by mail is complete upon mailing.
    (b) Oral decision. An oral decision shall be stated by the 
immigration judge in the presence of the respondent and the Service 
counsel, if any, at the conclusion of the hearing. A copy of the summary 
written order shall be furnished at the request of the respondent or the 
Service counsel.
    (c) Summary decision. When the immigration judge renders a summary 
decision as provided in Sec. 1240.12(b), he or she shall serve a copy 
thereof upon the respondent and the Service counsel at the conclusion of 
the hearing.
    (d) Decision to remove. If the immigration judge decides that the 
respondent is removable and orders the respondent to be removed, the 
immigration judge shall advise the respondent of such decision, and of 
the consequences for failure to depart under the order of removal, 
including civil and criminal penalties described at sections 274D and 
243 of the Act. Unless appeal from the decision is waived, the 
respondent shall be furnished with Form EOIR-26, Notice of Appeal, and 
advised of the provisions of Sec. 1240.15.



Sec. 1240.14  Finality of order.

    The order of the immigration judge shall become final in accordance 
with Sec. 1003.39 of this chapter.



Sec. 1240.15  Appeals.

    Pursuant to 8 CFR part 1003, an appeal shall lie from a decision of 
an immigration judge to the Board of Immigration Appeals, except that no 
appeal shall lie from an order of removal entered in absentia. The 
procedures regarding the filing of a Form EOIR 26, Notice of Appeal, 
fees, and briefs are set forth in Sec. Sec. 1003.3, 1003.31, and 
1003.38 of this chapter. An appeal shall be filed within 30 calendar 
days after the mailing of a written decision, the stating of an oral 
decision, or the service of a summary decision. The filing date is 
defined as the date of receipt of the Notice of Appeal by the Board of 
Immigration Appeals. The reasons for the appeal shall be stated in the 
Notice of Appeal in accordance with the provisions of Sec. 1003.3(b) of 
this chapter. Failure to do so may constitute a ground for dismissal of 
the appeal by the Board pursuant to Sec. 1003.1(d)(2) of this chapter.

[62 FR 10367, Mar. 6, 1997, as amended at 66 FR 6446, Jan. 22, 2001]



Sec. 1240.16  Application of new procedures or termination of proceedings in 

old proceedings pursuant to section 309(c) of Public Law 104-208.

    The Attorney General shall have the sole discretion to apply the 
provisions of section 309(c) of Public Law 104-208, which provides for 
the application of new removal procedures to certain cases in exclusion 
or deportation proceedings and for the termination of certain cases in 
exclusion or deportation proceedings and initiation of new removal 
proceedings. The Attorney General's application of the provisions of 
section 309(c) shall become effective upon publication of a notice in 
the Federal Register. However, if the Attorney General determines, in 
the exercise of his or her discretion, that the delay caused by 
publication would adversely affect the interests of the United States or 
the effective enforcement of the immigration laws, the Attorney 
General's application shall become effective immediately upon issuance, 
and shall be published in the Federal Register as soon as practicable 
thereafter.



Sec. Sec. 1240.17-1240.19  [Reserved]



                    Subpart B_Cancellation of Removal



Sec. 1240.20  Cancellation of removal and adjustment of status under section 

240A of the Act.

    (a) Jurisdiction. An application for the exercise of discretion 
under section 240A of the Act shall be submitted on Form EOIR-42, 
Application for Cancellation of Removal, to the Immigration Court having 
administrative control over the Record of Proceeding of the underlying 
removal proceeding under section 240 of the Act. The application must be 
accompanied by payment of the filing fee as set forth in Sec. 103.7(b) 
of 8 CFR chapter I or a request for a fee waiver.
    (b) Filing the application. The application may be filed only with 
the Immigration Court after jurisdiction has

[[Page 1045]]

vested pursuant to Sec. 1003.14 of this chapter.
    (c) For cases raised under section 240A(b)(2) of the Act, extreme 
hardship shall be determined as set forth in Sec. 1240.58 of this part.

[62 FR 10367, Mar. 6, 1997, as amended at 64 FR 27875, May 21, 1999]



Sec. 1240.21  Suspension of deportation and adjustment of status under section 

244(a) of the Act (as in effect before April 1, 1997) and cancellation of 

removal and adjustment of status under section 240A(b) of the 

Act for certain nonpermanent residents.

    (a) Applicability of annual cap on suspension of deportation or 
cancellation of removal. (1) As used in this section, the term cap means 
the numerical limitation of 4,000 grants of suspension of deportation or 
cancellation of removal in any fiscal year (except fiscal year 1998, 
which has a limitation of 8,000 grants) pursuant to section 240A(e) of 
the Act.
    (2) The provisions of this section apply to grants of suspension of 
deportation pursuant to section 244(a) of the Act (as in effect before 
April 1, 1997) or cancellation of removal pursuant to section 240A(b) of 
the Act that are subject to a numerical limitation in section 240A(e) of 
the Act for any fiscal year. This section does not apply to grants of 
suspension of deportation or cancellation of removal to aliens described 
in section 309(c)(5)(C)(i) of the Illegal Immigration Reform and 
Immigrant Responsibility Act (IIRIRA), as amended by section 203(a)(1) 
of the Nicaraguan Adjustment and Central American Relief Act (NACARA), 
or aliens in deportation proceedings prior to April 1, 1997, who apply 
for suspension of deportation pursuant to section 244(a)(3) of the Act 
(as in effect prior to April 1, 1997). The Immigration Court and the 
Board shall no longer issue conditional grants of suspension of 
deportation or cancellation of removal as provided in 8 CFR 240.21 (as 
in effect prior to September 30, 1998).
    (b) Conditional grants of suspension of deportation or cancellation 
of removal in fiscal year 1998 cases--(1) Conversion to grants. Except 
with respect to cases described in paragraphs (b)(2) and (b)(3) of this 
section, EOIR shall grant suspension of deportation or cancellation of 
removal without condition prior to October 1, 1998, to the first 8,000 
aliens given conditional grants of suspension of deportation or 
cancellation of removal (as determined by the date of the immigration 
judge's order or, if the order was appealed to the Board, the date such 
order was entered by the Board.)
    (2) Treatment of certain nationals of Nicaragua and Cuba who 
received conditional grants of suspension of deportation or cancellation 
of removal on or before September 30, 1998--(i) NACARA adjustment 
request. An application for suspension of deportation or cancellation of 
removal filed by a national of Nicaragua or Cuba that was granted on a 
conditional basis on or before September 30, 1998, shall be deemed to be 
a request for adjustment of status pursuant to section 202 of NACARA 
(``NACARA adjustment'') for the period starting September 30, 1998 and 
ending December 31, 1998. The Service shall provide the applicant with 
notice of the date, time, and place at which the applicant must appear 
before a Service officer to perfect the request for NACARA adjustment. 
Such notice shall include an attestation form, Attestation of Alien and 
Memorandum of Creation of Record of Lawful Permanent Residence, Form I-
895, regarding the applicant's eligibility for NACARA adjustment.
    (ii) Submission of documentation. To perfect the request for NACARA 
adjustment, the applicant must appear before a Service officer on the 
date scheduled with the following documentation:
    (A) The order granting suspension of deportation or cancellation of 
removal on a conditional basis issued on or before September 30, 1998;
    (B) A completed, but unsigned Form I-895, which the applicant shall 
be required to sign and to attest to the veracity of the information 
contained therein in the presence of a Service officer;
    (C) Any applicable applications for waiver of inadmissibility; and
    (D) Two ``ADIT-style'' photographs; meeting the specifications in 
the instructions attached to Form I-895.
    (iii) Waiver of documentation and fees. The provisions of Sec. 
1245.13(e) and (f) of

[[Page 1046]]

this chapter relating to documentary requirements for NACARA adjustment 
are waived with respect to an alien seeking to perfect a request for 
adjustment of status pursuant to paragraph (b)(2) of this section. In 
addition, the fees for the NACARA adjustment and for any applications 
for waivers of inadmissibility submitted in conjunction with perfecting 
a request for NACARA adjustment shall be waived.
    (iv) NACARA adjustment determination. In determining an applicant's 
eligibility for NACARA adjustment under the provisions of paragraph 
(b)(2) of this section, unless the Service officer before whom the 
applicant appears is not satisfied that the applicant is admissible to 
the United States in accordance with section 202(a)(1)(B) of NACARA, and 
has continuously resided in the United States from December 1, 1995, 
through the date of appearance before the Service officer (not counting 
an absence or absences from the United States totaling 180 days or less 
or any absences that occurred pursuant to advance authorization for 
parole (Form I-512 issued by the Service)), the Service officer shall 
accept an alien's attestation of admissibility and/or continuous 
physical presence as sufficient evidence that the applicant has met the 
admissibility and/or continuous physical presence requirement for NACARA 
adjustment. If the Service officer grants NACARA adjustment, then the 
Service officer shall create a record of lawful permanent residence and 
the prior order granting suspension of deportation or cancellation of 
removal on a conditional basis shall be automatically vacated and the 
deportation or removal proceedings shall be automatically terminated. 
The Service officer (whose decision in this regard is not subject to 
appeal) shall not adjust the applicant to lawful permanent resident 
status pursuant to section 202 of NACARA if:
    (A) The Service officer is not satisfied that the applicant is 
eligible for NACARA adjustment and so indicates on the attestation form; 
or
    (B) The applicant indicates on the attestation form that he or she 
does not wish to receive NACARA adjustment.
    (v) Automatic conversion. If the Service officer does not adjust the 
applicant to lawful permanent resident status pursuant to section 202 of 
NACARA, the applicant's conditional grant of suspension of deportation 
or cancellation of removal shall be automatically converted to a grant 
of suspension of deportation or cancellation of removal. Upon such a 
conversion, the Service shall create a record of lawful permanent 
residence based upon the grant of suspension of deportation or 
cancellation of removal.
    (vi) Failure to appear. An alien who fails to appear to perfect his 
or her request for NACARA adjustment shall have his or her conditional 
grant of suspension of deportation or cancellation of removal 
automatically converted by the Immigration Court or the Board to a grant 
of suspension of deportation or cancellation of removal effective 
December 31, 1998.
    (3) Conditional grants not converted in fiscal year 1998. The 
provisions of paragraphs (b)(1) and (b)(2) of this section for granting 
relief shall not apply with respect to:
    (i) Any case in which a conditional grant of suspension of 
deportation or cancellation of removal is pending on appeal before the 
Board as of September 30, 1998 or, if the right to appeal to the Board 
has not been waived, the time for an appeal has not expired. After the 
Board issues its decision or the time for appeal has expired, the 
conditional grant shall be converted to a grant when a grant is 
available.
    (ii) Any other conditional grant not described in paragraphs (b)(1), 
(b)(2) or (b)(3)(i) of this section, which was not converted to a grant 
in fiscal year 1998. Such a conditional grant shall be converted to a 
grant when a grant is available.
    (4) Motion to reopen. The Service may file a motion to reopen within 
90 days after the alien is issued a grant of suspension of deportation 
or cancellation of removal pursuant to paragraphs (b)(1), (b)(2), or 
(b)(3) of this section, if after the issuance of a conditional grant by 
the Immigration Court or the Board the applicant committed an act that 
would have rendered him or her ineligible for suspension of deportation 
or cancellation or removal at the time of the conversion.

[[Page 1047]]

    (5) Travel for aliens conditionally granted suspension of 
deportation or cancellation of removal. If the Immigration Court or the 
Board granted suspension of deportation or cancellation of removal on a 
conditional basis or, if the conditional grant by the Immigration Court 
was appealed to the Board and the Board issued such a conditional grant, 
the alien shall retain the conditional grant of suspension of 
deportation or cancellation of removal upon return to the United States 
following a temporary absence abroad and be permitted to resume 
completion of his or her case, provided that:
    (i) The alien departed on or before September 30, 1998 with or 
without a grant of advance parole from the District Director; or
    (ii) The alien, prior to his or her departure from the United States 
after September 30, 1998, obtained a grant of advance parole from the 
District Director in accordance with section 212(d)(5) of the Act and 
Sec. 1212.5 of this chapter and complied with the terms and conditions 
of the advance parole.
    (c) Grants of suspension of deportation or cancellation of removal 
in fiscal years subsequent to fiscal year 1998. On and after October 1, 
1998, the Immigration Court and the Board may grant applications for 
suspension of deportation and adjustment of status under section 244(a) 
of the Act (as in effect prior to April 1, 1997) or cancellation of 
removal and adjustment of status under section 240A(b) of the Act that 
meet the statutory requirements for such relief and warrant a favorable 
exercise of discretion until the annual numerical limitation has been 
reached in that fiscal year. The awarding of such relief shall be 
determined according to the date the order granting such relief becomes 
final as defined in Sec. Sec. 1003.1(d)(3) and 1003.39 of this chapter.
    (1) Applicability of the annual cap. When grants are no longer 
available in a fiscal year, further decisions to grant or deny such 
relief shall be reserved until such time as a grant becomes available 
under the annual limitation in a subsequent fiscal year. Immigration 
judges and the Board may deny without reserving decision or may 
pretermit those suspension of deportation or cancellation of removal 
applications in which the applicant has failed to establish statutory 
eligibility for relief. The basis of such denial or pretermission may 
not be based on an unfavorable exercise of discretion, a finding of no 
good moral character on a ground not specifically noted in section 
101(f) of the Act, a failure to establish exceptional or extremely 
unusual hardship to a qualifying relative in cancellation cases, or a 
failure to establish extreme hardship to the applicant and/or qualifying 
relative in suspension cases.
    (2) Aliens applying for additional forms of relief. Whether or not 
the cap has been reached, the Immigration Court or the Board shall 
adjudicate concurrently all other forms of relief for which the alien 
has applied. Applications for suspension of deportation or cancellation 
of removal shall be denied in the exercise of discretion if the alien is 
granted asylum or adjustment of status, including pursuant to section 
202 of NACARA, while the suspension of deportation or cancellation of 
removal application is pending. Where an appeal of a decision granting 
asylum or adjustment is sustained by the Board, a decision to deny as a 
matter of discretion an application for suspension of deportation or 
cancellation of removal on this basis shall be reconsidered.

[63 FR 52138, Sept. 30, 1998, as amended at 66 FR 6446, Jan. 22, 2001]



Sec. Sec. 1240.22-1240.24  [Reserved]



                      Subpart C_Voluntary Departure



Sec. 1240.26  Voluntary departure--authority of the Executive Office for 

Immigration Review.

    (a) Eligibility: general. An alien previously granted voluntary 
departure under section 240B of the Act, including by the Service under 
Sec. 240.25, and who fails to depart voluntarily within the time 
specified, shall thereafter be ineligible, for a period of ten years, 
for voluntary departure or for relief under sections 240A, 245, 248, and 
249 of the Act.
    (b) Prior to completion of removal proceedings--(1) Grant by the 
immigration judge. (i) An alien may be granted voluntary departure by an 
immigration

[[Page 1048]]

judge pursuant to section 240B(a) of the Act only if the alien:
    (A) Makes such request prior to or at the master calendar hearing at 
which the case is initially calendared for a merits hearing;
    (B) Makes no additional requests for relief (or if such requests 
have been made, such requests are withdrawn prior to any grant of 
voluntary departure pursuant to this section);
    (C) Concedes removability;
    (D) Waives appeal of all issues; and
    (E) Has not been convicted of a crime described in section 
101(a)(43) of the Act and is not deportable under section 237(a)(4).
    (ii) The judge may not grant voluntary departure under section 
240B(a) of the Act beyond 30 days after the master calendar hearing at 
which the case is initially calendared for a merits hearing, except 
pursuant to a stipulation under paragraph (b)(2) of this section.
    (2) Stipulation. At any time prior to the completion of removal 
proceedings, the Service counsel may stipulate to a grant of voluntary 
departure under section 240B(a) of the Act.
    (3) Conditions. (i) The judge may impose such conditions as he or 
she deems necessary to ensure the alien's timely departure from the 
United States, including the posting of a voluntary departure bond to be 
canceled upon proof that the alien has departed the United States within 
the time specified. The alien shall be required to present to the 
Service, for inspection and photocopying, his or her passport or other 
travel documentation sufficient to assure lawful entry into the country 
to which the alien is departing, unless:
    (A) A travel document is not necessary to return to his or her 
native country or to which country the alien is departing; or
    (B) The document is already in the possession of the Service.
    (ii) The Service may hold the passport or documentation for 
sufficient time to investigate its authenticity. If such documentation 
is not immediately available to the alien, but the immigration judge is 
satisfied that the alien is making diligent efforts to secure it, 
voluntary departure may be granted for a period not to exceed 120 days, 
subject to the condition that the alien within 60 days must secure such 
documentation and present it to the Service. The Service in its 
discretion may extend the period within which the alien must provide 
such documentation. If the documentation is not presented within the 60-
day period or any extension thereof, the voluntary departure order shall 
vacate automatically and the alternate order of removal will take 
effect, as if in effect on the date of issuance of the immigration judge 
order.
    (c) At the conclusion of the removal proceedings--(1) Required 
findings. An immigration judge may grant voluntary departure at the 
conclusion of the removal proceedings under section 240B(b) of the Act, 
if he or she finds that:
    (i) The alien has been physically present in the United States for 
period of at least one year preceding the date the Notice to Appear was 
served under section 239(a) of the Act;
    (ii) The alien is, and has been, a person of good moral character 
for at least five years immediately preceding the application;
    (iii) The alien has not been convicted of a crime described in 
section 101(a)(43) of the Act and is not deportable under section 
237(a)(4); and
    (iv) The alien has established by clear and convincing evidence that 
the alien has the means to depart the United States and has the 
intention to do so.
    (2) Travel documentation. Except as otherwise provided in paragraph 
(b)(3) of this section, the clear and convincing evidence of the means 
to depart shall include in all cases presentation by the alien of a 
passport or other travel documentation sufficient to assure lawful entry 
into the country to which the alien is departing. The Service shall have 
full opportunity to inspect and photocopy the documentation, and to 
challenge its authenticity or sufficiency before voluntary departure is 
granted.
    (3) Conditions. The judge may impose such conditions as he or she 
deems necessary to ensure the alien's timely departure from the United 
States. In all cases under section 240B(b) of the Act, the alien shall 
be required to post a

[[Page 1049]]

voluntary departure bond, in an amount necessary to ensure that the 
alien departs within the time specified, but in no case less than $500. 
The voluntary departure bond shall be posted with the district director 
within 5 business days of the immigration judge's order granting 
voluntary departure, and the district director may, at his or her 
discretion, hold the alien in custody until the bond is posted. If the 
bond is not posted within 5 business days, the voluntary departure order 
shall vacate automatically and the alternate order of removal will take 
effect on the following day. In order for the bond to be canceled, the 
alien must provide proof of departure to the district director.
    (d) Alternate order of removal. Upon granting a request made for 
voluntary departure either prior to the completion of proceedings or at 
the conclusion of proceedings, the immigration judge shall also enter an 
alternate order or removal.
    (e) Periods of time. If voluntary departure is granted prior to the 
completion of removal proceedings, the immigration judge may grant a 
period not to exceed 120 days. If voluntary departure is granted at the 
conclusion of proceedings, the immigration judge may grant a period not 
to exceed 60 days.
    (f) Extension of time to depart. Authority to extend the time within 
which to depart voluntarily specified initially by an immigration judge 
or the Board is only within the jurisdiction of the district director, 
the Deputy Executive Associate Commissioner for Detention and Removal, 
or the Director of the Office of Juvenile Affairs. An immigration judge 
or the Board may reinstate voluntary departure in a removal proceeding 
that has been reopened for a purpose other than solely making an 
application for voluntarily departure if reopening was granted prior to 
the expiration of the original period of voluntary departure. In no 
event can the total period of time, including any extension, exceed 120 
days or 60 days as set forth in section 240B of the Act.
    (g) Administrative Appeals. No appeal shall lie regarding the length 
of a period of voluntary departure (as distinguished from issues of 
whether to grant voluntary departure).
    (h) Reinstatement of voluntary departure. An immigration judge or 
the Board may reinstate voluntary departure in a removal proceeding that 
has been reopened for a purpose other than solely making application for 
voluntary departure, if reopening was granted prior to the expiration of 
the original period of voluntary departure. In no event can the total 
period of time, including any extension, exceed 120 days or 60 days as 
set forth in section 240B of the Act and paragraph (a) of this section.

[62 FR 10367, Mar. 6, 1997, as amended at 67 FR 39258, June 7, 2002]



Nt.--Table of Contents




    Effective Date Note: At 73 FR 76937, Dec. 18, 2008, Sec. 1240.26 
was amended by adding new paragraphs (b)(3)(iii) and (b)(3)(iv); new 
paragraphs (c)(4), (e)(1), and (e)(2); a new sentence at the end of 
paragraph (f); adding new paragraphs (i) and (j); and revising paragraph 
(c)(3), effective Jan. 20, 2009. For the convenience of the user, the 
added and revised text is set forth as follows:



Sec. 1240.26  Voluntary Departure--authority of the Executive Office 

for Immigration Review.

                                * * * * *

    (b) * * *
    (3) * * *
    (iii) If the alien files a post-decision motion to reopen or 
reconsider during the period allowed for voluntary departure, the grant 
of voluntary departure shall be terminated automatically, and the 
alternate order of removal will take effect immediately. The penalties 
for failure to depart voluntarily under section 240B(d) of the Act shall 
not apply if the alien has filed a post-decision motion to reopen or 
reconsider during the period allowed for voluntary departure. Upon the 
granting of voluntary departure, the immigration judge shall advise the 
alien of the provisions of this paragraph (b)(3)(iii).
    (iv) The automatic termination of a grant of voluntary departure and 
the effectiveness of the alternative order of removal shall not affect, 
in any way, the date that the order of the immigration judge or the 
Board became administratively final, as determined under the provisions 
of the applicable regulations in this chapter.
    (c) * * *
    (3) Conditions. The immigration judge may impose such conditions as 
he or she deems

[[Page 1050]]

necessary to ensure the alien's timely departure from the United States. 
The immigration judge shall advise the alien of the conditions set forth 
in this paragraph (c)(3)(i)-(iii). If the immigration judge imposes 
conditions beyond those specifically enumerated below, the immigration 
judge shall advise the alien of such conditions before granting 
voluntary departure. Upon the conditions being set forth, the alien 
shall be provided the opportunity to accept the grant of voluntary 
departure or decline voluntary departure if he or she is unwilling to 
accept the amount of the bond or other conditions. In all cases under 
section 240B(b) of the Act:
    (i) The alien shall be required to post a voluntary departure bond, 
in an amount necessary to ensure that the alien departs within the time 
specified, but in no case less than $500. Before granting voluntary 
departure, the immigration judge shall advise the alien of the specific 
amount of the bond to be set and the duty to post the bond with the ICE 
Field Office Director within 5 business days of the immigration judge's 
order granting voluntary departure.
    (ii) An alien who has been granted voluntary departure shall, within 
30 days of filing of an appeal with the Board, submit sufficient proof 
of having posted the required voluntary departure bond. If the alien 
does not provide timely proof to the Board that the required voluntary 
departure bond has been posted with DHS, the Board will not reinstate 
the period of voluntary departure in its final order.
    (iii) Upon granting voluntary departure, the immigration judge shall 
advise the alien that if the alien files a post-order motion to reopen 
or reconsider during the period allowed for voluntary departure, the 
grant of voluntary departure shall terminate automatically and the 
alternate order of removal will take effect immediately.
    (iv) The automatic termination of an order of voluntary departure 
and the effectiveness of the alternative order of removal shall not 
impact, in any way, the date that the order of the immigration judge or 
the Board became administratively final, as determined under the 
provisions of the applicable regulations in this chapter.
    (v) If, after posting the voluntary departure bond the alien 
satisfies the condition of the bond by departing the United States prior 
to the expiration of the period granted for voluntary departure, the 
alien may apply to the ICE Field Office Director for the bond to be 
canceled, upon submission of proof of the alien's timely departure by 
such methods as the ICE Field Office Director may prescribe.
    (vi) The voluntary departure bond may be canceled by such methods as 
the ICE Field Office Director may prescribe if the alien is subsequently 
successful in overturning or remanding the immigration judge's decision 
regarding removability.
    (4) Provisions relating to bond. The voluntary departure bond shall 
be posted with the ICE Field Office Director within 5 business days of 
the immigration judge's order granting voluntary departure, and the ICE 
Field Office Director may, at his or her discretion, hold the alien in 
custody until the bond is posted. Because the purpose of the voluntary 
departure bond is to ensure that the alien does depart from the United 
States, as promised, the failure to post the bond, when required, within 
5 business days may be considered in evaluating whether the alien should 
be detained based on risk of flight, and also may be considered as a 
negative discretionary factor with respect to any discretionary form of 
relief. The alien's failure to post the required voluntary departure 
bond within the time required does not terminate the alien's obligation 
to depart within the period allowed or exempt the alien from the 
consequences for failure to depart voluntarily during the period 
allowed. However, if the alien had waived appeal of the immigration 
judge's decision, the alien's failure to post the required voluntary 
departure bond within the period allowed means that the alternate order 
of removal takes effect immediately pursuant to 8 CFR 1241.1(f), except 
that an alien granted the privilege of voluntary departure under 8 CFR 
1240.26(c) will not be deemed to have departed under an order of removal 
if the alien:
    (i) Departs the United States no later than 25 days following the 
failure to post bond;
    (ii) Provides to DHS such evidence of his or her departure as the 
ICE Field Office Director may require; and
    (iii) Provides evidence DHS deems sufficient that he or she remains 
outside of the United States.

                                * * * * *

    (e) * * *
    (1) Motion to reopen or reconsider filed during the voluntary 
departure period. The filing of a motion to reopen or reconsider prior 
to the expiration of the period allowed for voluntary departure has the 
effect of automatically terminating the grant of voluntary departure, 
and accordingly does not toll, stay, or extend the period allowed for 
voluntary departure under this section. See paragraphs (b)(3)(iii) and 
(c)(3)(ii) of this section. If the alien files a post-order motion to 
reopen or reconsider during the period allowed for voluntary departure, 
the penalties for failure to depart voluntarily under section 240B(d) of 
the Act shall not apply. The Board shall advise the alien of the 
condition provided in this paragraph in writing if it reinstates the 
immigration judge's grant of voluntary departure.

[[Page 1051]]

    (2) Motion to reopen or reconsider filed after the expiration of the 
period allowed for voluntary departure. The filing of a motion to reopen 
or a motion to reconsider after the time allowed for voluntary departure 
has already expired does not in any way impact the period of time 
allowed for voluntary departure under this section. The granting of a 
motion to reopen or reconsider that was filed after the penalties under 
section 240B(d) of the Act had already taken effect, as a consequence of 
the alien's prior failure voluntarily to depart within the time allowed, 
does not have the effect of vitiating or vacating those penalties, 
except as provided in section 240B(d)(2) of the Act.
    (f) * * * The filing of a motion to reopen or reconsider does not 
toll, stay, or extend the period allowed for voluntary departure. The 
filing of a petition for review has the effect of automatically 
terminating the grant of voluntary departure, and accordingly also does 
not toll, stay, or extend the period allowed for voluntary departure.

                                * * * * *

    (i) Effect of filing a petition for review. If, prior to departing 
the United States, the alien files a petition for review pursuant to 
section 242 of the Act (8 U.S.C. 1252) or any other judicial challenge 
to the administratively final order, any grant of voluntary departure 
shall terminate automatically upon the filing of the petition or other 
judicial challenge and the alternate order of removal entered pursuant 
to paragraph (d) of this section shall immediately take effect, except 
that an alien granted the privilege of voluntary departure under 8 CFR 
1240.26(c) will not be deemed to have departed under an order of removal 
if the alien departs the United States no later than 30 days following 
the filing of a petition for review, provides to DHS such evidence of 
his or her departure as the ICE Field Office Director may require, and 
provides evidence DHS deems sufficient that he or she remains outside of 
the United States. The Board shall advise the alien of the condition 
provided in this paragraph in writing if it reinstates the immigration 
judge's grant of voluntary departure. The automatic termination of a 
grant of voluntary departure and the effectiveness of the alternative 
order of removal shall not affect, in any way, the date that the order 
of the immigration judge or the Board became administratively final, as 
determined under the provisions of the applicable regulations in this 
chapter. Since the grant of voluntary departure is terminated by the 
filing of the petition for review, the alien will be subject to the 
alternate order of removal, but the penalties for failure to depart 
voluntarily under section 240B(d) of the Act shall not apply to an alien 
who files a petition for review, and who remains in the United States 
while the petition for review is pending.
    (j) Penalty for failure to depart. There shall be a rebuttable 
presumption that the civil penalty for failure to depart, pursuant to 
section 240B(d)(1)(A) of the Act, shall be set at $3,000 unless the 
immigration judge specifically orders a higher or lower amount at the 
time of granting voluntary departure within the permissible range 
allowed by law. The immigration judge shall advise the alien of the 
amount of this civil penalty at the time of granting voluntary 
departure.

                                * * * * *



Sec. Sec. 1240.27-1240.29  [Reserved]



Subpart D_Exclusion of Aliens (for Proceedings Commenced Prior to April 
                                1, 1997)



Sec. 1240.30  Proceedings prior to April 1, 1997.

    Subpart D of 8 CFR part 240 applies to exclusion proceedings 
commenced prior to April 1, 1997, pursuant to the former section 236 of 
the Act. An exclusion proceeding is commenced by the filing of Form I-
122 with the Immigration Court, and an alien is considered to be in 
exclusion proceedings only upon such filing. All references to the Act 
contained in this subpart are references to the Act in effect prior to 
April 1, 1997.



Sec. 1240.31  Authority of immigration judges.

    In determining cases referred for further inquiry as provided in 
section 235 of the Act, immigration judges shall have the powers and 
authority conferred upon them by the Act and this chapter, including the 
adjudication of applications for adjustment of status pursuant to 
section 202 of Pub. L. 105-100, or section 902 of Pub. L. 105-277. 
Subject to any specific limitation prescribed by the Act and this 
chapter, immigration judges shall also exercise the discretion and 
authority conferred upon the Attorney General by the Act as is 
appropriate and necessary for the disposition of such cases.

[62 FR 10367, Mar. 6, 1997, as amended at 63 FR 27829, May 21, 1998; 64 
FR 25766, May 12, 1999]

[[Page 1052]]



Sec. 1240.32  Hearing.

    (a) Opening. Exclusion hearings shall be closed to the public, 
unless the alien at his or her own instance requests that the public, 
including the press, be permitted to attend; in that event, the hearing 
shall be open, provided that the alien states for the record that he or 
she is waiving the requirement in section 236 of the Act that the 
inquiry shall be kept separate and apart from the public. When the 
hearing is to be open, depending upon physical facilities, reasonable 
limitation may be placed upon the number in attendance at any one time, 
with priority being given to the press over the general public. The 
immigration judge shall ascertain whether the applicant for admission is 
the person to whom Form I-122 was previously delivered by the examining 
immigration officer as provided in 8 CFR part 1235; enter a copy of such 
form in evidence as an exhibit in the case; inform the applicant of the 
nature and purpose of the hearing; advise him or her of the privilege of 
being represented by an attorney of his or her own choice at no expense 
to the Government, and of the availability of free legal services 
programs qualified under 8 CFR part 1003 and organizations recognized 
pursuant to Sec. 1292.2 of this chapter located in the district where 
his or her exclusion hearing is to be held; and shall ascertain that the 
applicant has received a list of such programs; and request him or her 
to ascertain then and there whether he or she desires representation; 
advise him or her that he or she will have a reasonable opportunity to 
present evidence in his or her own behalf, to examine and object to 
evidence against him or her, and to cross-examine witnesses presented by 
the Government; and place the applicant under oath.
    (b) Procedure. The immigration judge shall receive and adduce 
material and relevant evidence, rule upon objections, and otherwise 
regulate the course of the hearing.
    (c) Attorney for the Service. The Service shall assign an attorney 
to each case in which an applicant's nationality is in issue and may 
assign an attorney to any case in which such assignment is deemed 
necessary or advantageous. The duties of the Service counsel include, 
but are not limited to, the presentation of evidence and the 
interrogation, examination, and cross-examination of the applicant and 
other witnesses. Nothing contained in this section diminishes the 
authority of an immigration judge to conduct proceedings under this 
part.
    (d) Depositions. The procedures specified in Sec. 1240.48(e) shall 
apply.
    (e) Record. The hearing before the immigration judge, including the 
testimony, exhibits, applications, proffers, and requests, the 
immigration judge's decision, and all written orders, motions, appeals, 
and other papers filed in the proceeding shall constitute the record in 
the case. The hearing shall be recorded verbatim except for statements 
made off the record with the permission of the immigration judge.



Sec. 1240.33  Applications for asylum or withholding of deportation.

    (a) If the alien expresses fear of persecution or harm upon return 
to his or her country of origin or to a country to which the alien may 
be deported after a determination of excludability from the United 
States pursuant to this subpart, and the alien has not been referred to 
the immigration judge by an asylum officer in accordance with Sec. 
1208.14(b) of this chapter, the immigration judge shall:
    (1) Advise the alien that he or she may apply for asylum in the 
United States or withholding of deportation to that other country; and
    (2) Make available the appropriate application forms.
    (b) An application for asylum or withholding of deportation must be 
filed with the Immigration Court, pursuant to Sec. 1208.4(c) of this 
chapter. Upon receipt of an application that has not been referred by an 
asylum officer, the Immigration Court shall forward a copy to the 
Department of State pursuant to Sec. 1208.11 of this chapter and shall 
calendar the case for a hearing. The reply, if any, from the Department 
of State, unless classified under the applicable Executive Order, shall 
be given to both the applicant and to the Service counsel representing 
the government.
    (c) Applications for asylum or withholding of deportation so filed 
will be

[[Page 1053]]

decided by the immigration judge pursuant to the requirements and 
standards established in 8 CFR part 1208 after an evidentiary hearing 
that is necessary to resolve material factual issues in dispute. An 
evidentiary hearing extending beyond issues related to the basis for a 
mandatory denial of the application pursuant to Sec. 1208.13(c) of this 
chapter is not necessary once the immigration judge has determined that 
such denial is required.
    (1) Evidentiary hearings on applications for asylum or withholding 
of deportation will be closed to the public unless the applicant 
expressly requests that it be open pursuant to Sec. 1236.3 of this 
chapter.
    (2) Nothing in this section is intended to limit the authority of 
the immigration judge properly to control the scope of any evidentiary 
hearing.
    (3) During the exclusion hearing, the applicant shall be examined 
under oath on his or her application and may present evidence and 
witnesses on his or her own behalf. The applicant has the burden of 
establishing that he or she is a refugee as defined in section 
101(a)(42) of the Act pursuant to the standard set forth in Sec. 
1208.13 of this chapter.
    (4) The Service counsel for the government may call witnesses and 
present evidence for the record, including information classified under 
the applicable Executive Order, provided the immigration judge or the 
Board has determined that such information is relevant to the hearing. 
The applicant shall be informed when the immigration judge receives such 
classified information. The agency that provides the classified 
information to the immigration judge may provide an unclassified summary 
of the information for release to the applicant whenever it determines 
it can do so consistently with safeguarding both the classified nature 
of the information and its source. The summary should be as detailed as 
possible, in order that the applicant may have an opportunity to offer 
opposing evidence. A decision based in whole or in part on such 
classified information shall state that such information is material to 
the decision.
    (d) The decision of an immigration judge to grant or deny asylum or 
withholding of deportation shall be communicated to the applicant and to 
the Service counsel for the government. An adverse decision will state 
why asylum or withholding of deportation was denied.



Sec. 1240.34  Renewal of application for adjustment of status under section 

245 of the Act.

    An adjustment application by an alien paroled under section 
212(d)(5) of the Act, which has been denied by the district director, 
may be renewed in exclusion proceedings under section 236 of the Act (as 
in effect prior to April 1, 1997) before an immigration judge under the 
following two conditions: first, the denied application must have been 
properly filed subsequent to the applicant's earlier inspection and 
admission to the United States; and second, the applicant's later 
absence from and return to the United States must have been under the 
terms of an advance parole authorization on Form I-512 granted to permit 
the applicant's absence and return to pursue the previously filed 
adjustment application. In a relevant case, the immigration judge may 
adjudicate the sufficiency of an Affidavit of Support Under Section 213A 
(Form I-864), executed on behalf of an applicant for admission or for 
adjustment of status, in accordance with the provisions of section 213A 
of the Act and 8 CFR part 213a.

[62 FR 10367, Mar. 6, 1997, unless otherwise noted. Redesignated in part 
and duplicated in part from part 240 at 68 FR 9838, 9840, Feb. 28, 2003, 
as amended at 71 FR 35757, June 21, 2006]



Sec. 1240.35  Decision of the immigration judge; notice to the applicant.

    (a) Decision. The immigration judge shall inform the applicant of 
his or her decision in accordance with Sec. 1003.37 of this chapter.
    (b) Advice to alien ordered excluded. An alien ordered excluded 
shall be furnished with Form I-296, Notice to Alien Ordered Excluded by 
Immigration Judge, at the time of an oral decision by the immigration 
judge or upon service of a written decision.
    (c) Holders of refugee travel documents. Aliens who are the holders 
of valid unexpired refugee travel documents may

[[Page 1054]]

be ordered excluded only if they are found to be inadmissible under 
section 212(a)(2), 212(a)(3), or 212(a)(6)(E) of the Act, and it is 
determined that on the basis of the acts for which they are inadmissible 
there are compelling reasons of national security or public order for 
their exclusion. If the immigration judge finds that the alien is 
inadmissible but determines that there are no compelling reasons of 
national security or public order for exclusion, the immigration judge 
shall remand the case to the district director for parole.



Sec. 1240.36  Finality of order.

    The decision of the immigration judge shall become final in 
accordance with Sec. 1003.37 of this chapter.



Sec. 1240.37  Appeals.

    Except for temporary exclusions under section 235(c) of the Act, an 
appeal from a decision of an Immigration Judge under this part may be 
taken by either party pursuant to Sec. 1003.38 of this chapter.



Sec. 1240.38  Fingerprinting of excluded aliens.

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



Sec. 1240.39  [Reserved]



Subpart E_Proceedings To Determine Deportability of Aliens in the United 

States: Hearing and Appeal (for Proceedings Commenced Prior to April 1, 

                                  1997)



Sec. 1240.40  Proceedings commenced prior to April 1, 1997.

    Subpart E of 8 CFR part 1240 applies only to deportation proceedings 
commenced prior to April 1, 1997. A deportation proceeding is commenced 
by the filing of Form I-221 (Order to Show Cause) with the Immigration 
Court, and an alien is considered to be in deportation proceedings only 
upon such filing, except in the case of an alien admitted to the United 
States under the provisions of section 217 of the Act. All references to 
the Act contained in this subpart pertain to the Act as in effect prior 
to April 1, 1997.



Sec. 1240.41  Immigration judges.

    (a) Authority. In any proceeding conducted under this part the 
immigration judge shall have the authority to determine deportability 
and to make decisions, including orders of deportation, as provided by 
section 242(b) and 242B of the Act; to reinstate orders of deportation 
as provided by section 242(f) of the Act; to determine applications 
under sections 208, 212(k), 241(a)(1)(E)(iii), 241(a)(1)(H), 244, 245 
and 249 of the Act, section 202 of Pub. L. 105-100, and section 902 of 
Pub. L. 105-277; to determine the country to which an alien's 
deportation will be directed in accordance with section 243(a) of the 
Act; to order temporary withholding of deportation pursuant to section 
243(h) of the Act; and to take any other action consistent with 
applicable law and regulations as may be appropriate. An immigration 
judge may certify his or her decision in any case to the Board of 
Immigration Appeals when it involves an unusually complex or novel 
question of law or fact. Nothing contained in this part shall be 
construed to diminish the authority conferred on immigration judges 
under section 103 of the Act.
    (b) Withdrawal and substitution of immigration judges. The 
immigration judge assigned to conduct the hearing shall at any time 
withdraw if he or she deems himself or herself disqualified. If an 
immigration judge becomes unavailable to complete his or her duties 
within a reasonable time, or if at any time the respondent consents to a 
substitution, another immigration judge may be assigned to complete the 
case. The new immigration judge shall familiarize himself or herself 
with the record in the case and shall state for the record that he or 
she has done so.

[62 FR 10367, Mar. 6, 1997, as amended at 63 FR 27829, May 21, 1998; 63 
FR 39121, July 21, 1998; 64 FR 25767, May 12, 1999]

[[Page 1055]]



Sec. 1240.42  Representation by counsel.

    The respondent may be represented at the hearing by an attorney or 
other representative qualified under 8 CFR part 1292.



Sec. 1240.43  Incompetent respondents.

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



Sec. 1240.44  Interpreter.

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



Sec. 1240.45  Postponement and adjournment of hearing.

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



Sec. 1240.46  Evidence.

    (a) Sufficiency. A determination of deportability shall not be valid 
unless it is found by clear, unequivocal, and convincing evidence that 
the facts alleged as grounds for deportation are true.
    (b) Use of prior statements. The immigration judge may receive in 
evidence any oral or written statement that is material and relevant to 
any issue in the case previously made by the respondent or any other 
person during any investigation, examination, hearing, or trial.
    (c) Testimony. Testimony of witnesses appearing at the hearing shall 
be under oath or affirmation administered by the immigration judge.
    (d) Depositions. The immigration judge may order the taking of 
depositions pursuant to Sec. 1003.35 of this chapter.



Sec. 1240.47  Contents of record.

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



Sec. 1240.48  Hearing.

    (a) Opening. The immigration judge shall advise the respondent of 
his or her right to representation, at no expense to the Government, by 
counsel of his or her own choice authorized to practice in the 
proceedings and require him or her to state then and there whether he or 
she desires representation; advise the respondent of the availability of 
free legal services programs qualified under 8 CFR part 1003 and 
organizations recognized pursuant to Sec. 1292.2 of this chapter, 
located in the district where the deportation hearing is being held; 
ascertain that the respondent has received a list of such programs, and 
a copy of Form I-618, Written Notice of Appeal Rights; advise the 
respondent that he or she will have a reasonable opportunity to examine 
and object to the evidence against him or her, to present evidence in 
his or her own behalf and to cross-examine witnesses presented by the 
Government; place the respondent under oath; read the factual 
allegations and the charges in the order to show cause to the respondent 
and explain them in nontechnical language, and enter the order to show 
cause as an exhibit in the record. Deportation hearings shall be open to 
the public, except that the immigration judge may, in his or her 
discretion and for the purpose of protecting witnesses, respondents, or 
the public interest, direct

[[Page 1056]]

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



Sec. 1240.49  Ancillary matters, applications.

    (a) Creation of the status of an alien lawfully admitted for 
permanent residence. The respondent may apply to the immigration judge 
for suspension of deportation under section 244(a) of the Act; for 
adjustment of status under section 245 of the Act, or under section 1 of 
the Act of November 2, 1966, or under section 101 or 104 of the Act of 
October 28, 1977; or for the creation of a record of lawful admission 
for permanent residence under section 249 of the Act. The application 
shall be subject to the requirements of 8 CFR parts 1240, 1245, and 
1249. The approval of any application made to the immigration judge 
under section 245 of the Act by an alien spouse (as defined in section 
216(g)(1) of the Act) or by an alien entrepreneur (as defined in section 
216A(f)(1) of the Act), shall result in the alien's obtaining the status 
of lawful permanent resident on a conditional basis in accordance with 
the provisions of section 216 or 216A of the Act, whichever is 
applicable. However, the Petition to Remove the Conditions on Residence 
required by section 216(c) of the Act or the Petition by Entrepreneur to 
Remove Conditions required by section 216A(c) of the Act shall be made 
to the director in accordance with 8 CFR part 1216. In conjunction with 
any application for creation of status of an alien

[[Page 1057]]

lawfully admitted for permanent residence made to an immigration judge, 
if the respondent is inadmissible under any provision of section 212(a) 
of the Act and believes that he or she meets the eligibility 
requirements for a waiver of the ground of inadmissibility, he or she 
may apply to the immigration judge for such waiver. The immigration 
judge shall inform the respondent of his or her apparent eligibility to 
apply for any of the benefits enumerated in this paragraph and shall 
afford the respondent an opportunity to make application therefor during 
the hearing. In a relevant case, the immigration judge may adjudicate 
the sufficiency of an Affidavit of Support Under Section 213A (Form I-
864), executed on behalf of an applicant for admission or for adjustment 
of status, in accordance with the provisions of section 213A of the Act 
and 8 CFR part 213a. In exercising discretionary power when considering 
an application under this paragraph, the immigration judge may consider 
and base the decision on information not contained in the record and not 
made available for inspection by the respondent, provided the 
Commissioner has determined that such information is relevant and is 
classified under the applicable Executive Order as requiring protection 
from unauthorized disclosure in the interest of national security. 
Whenever the immigration judge believes that he or she can do so while 
safeguarding both the information and its source, the immigration judge 
should inform the respondent of the general nature of the information in 
order that the respondent may have an opportunity to offer opposing 
evidence. A decision based in whole or in part on such classified 
information shall state that the information is material to the 
decision.
    (b) Voluntary departure. The respondent may apply to the immigration 
judge for voluntary departure in lieu of deportation pursuant to section 
244(e) of the Act and Sec. 1240.56.
    (c) Applications for asylum or withholding of deportation. (1) The 
immigration judge shall notify the respondent that if he or she is 
finally ordered deported, his or her deportation will in the first 
instance be directed pursuant to section 243(a) of the Act to the 
country designated by the respondent and shall afford him or her an 
opportunity then and there to make such designation. The immigration 
judge shall then specify and state for the record the country, or 
countries in the alternative, to which respondent's deportation will be 
directed pursuant to section 243(a) of the Act if the country of his or 
her designation will not accept him or her into its territory, or fails 
to furnish timely notice of acceptance, or if the respondent declines to 
designate a country.
    (2) If the alien expresses fear of persecution or harm upon return 
to any of the countries to which the alien might be deported pursuant to 
paragraph (c)(1) of this section, and the alien has not previously filed 
an application for asylum or withholding of deportation that has been 
referred to the immigration judge by an asylum officer in accordance 
with Sec. 1208.14(b) of this chapter, the immigration judge shall:
    (i) Advise the alien that he or she may apply for asylum in the 
United States or withholding of deportation to those countries; and
    (ii) Make available the appropriate application forms.
    (3) An application for asylum or withholding of deportation must be 
filed with the Immigration Court, pursuant to Sec. 1208.4(b) of this 
chapter. Upon receipt of an application that has not been referred by an 
asylum officer, the Immigration Court shall forward a copy to the 
Department of State pursuant to Sec. 1208.11 of this chapter and shall 
calendar the case for a hearing. The reply, if any, of the Department of 
State, unless classified under the applicable Executive Order, shall be 
given to both the applicant and to the Service counsel representing the 
government.
    (4) Applications for asylum or withholding of deportation so filed 
will be decided by the immigration judge pursuant to the requirements 
and standards established in 8 CFR part 1208 after an evidentiary 
hearing that is necessary to resolve factual issues in dispute. An 
evidentiary hearing extending beyond issues related to the basis for a 
mandatory denial of the application pursuant to Sec. 1208.13 or Sec. 
1208.16 of this chapter is not necessary

[[Page 1058]]

once the immigration judge has determined that such a denial is 
required.
    (i) Evidentiary hearings on applications for asylum or withholding 
of deportation will be open to the public unless the applicant expressly 
requests that it be closed.
    (ii) Nothing in this section is intended to limit the authority of 
the immigration judge properly to control the scope of any evidentiary 
hearing.
    (iii) During the deportation hearing, the applicant shall be 
examined under oath on his or her application and may present evidence 
and witnesses in his or her own behalf. The applicant has the burden of 
establishing that he or she is a refugee as defined in section 
101(a)(42) of the Act pursuant to the standard set forth in Sec. 
1208.13 of this chapter.
    (iv) The Service counsel for the government may call witnesses and 
present evidence for the record, including information classified under 
the applicable Executive Order, provided the immigration judge or the 
Board has determined that such information is relevant to the hearing. 
When the immigration judge receives such classified information he or 
she shall inform the applicant. The agency that provides the classified 
information to the immigration judge may provide an unclassified summary 
of the information for release to the applicant, whenever it determines 
it can do so consistently with safeguarding both the classified nature 
of the information and its source. The summary should be as detailed as 
possible, in order that the applicant may have an opportunity to offer 
opposing evidence. A decision based in whole or in part on such 
classified information shall state whether such information is material 
to the decision.
    (5) The decision of an immigration judge to grant or deny asylum or 
withholding of deportation shall be communicated to the applicant and to 
the Service counsel for the government. An adverse decision will state 
why asylum or withholding of deportation was denied.
    (d) Application for relief under sections 241(a)(1)(H) and 
241(a)(1)(E)(iii) of the Act. The respondent may apply to the 
immigration judge for relief from deportation under sections 
241(a)(1)(H) and 241(a)(1)(E)(iii) of the Act.
    (e) General. An application under this section shall be made only 
during the hearing and shall not be held to constitute a concession of 
alienage or deportability in any case in which the respondent does not 
admit his alienage or deportability. However, nothing in this section 
shall prohibit the Service from using information supplied in an 
application for asylum or withholding of deportation submitted to an 
asylum officer pursuant to Sec. 1208.2 of this chapter on or after 
January 4, 1995, as the basis for issuance of an order to show cause or 
a notice to appear to establish alienage or deportability in a case 
referred to an immigration judge under Sec. 1208.14(b) of this chapter. 
The respondent shall have the burden of establishing that he or she is 
eligible for any requested benefit or privilege and that it should be 
granted in the exercise of discretion. The respondent shall not be 
required to pay a fee on more than one application within paragraphs (a) 
and (c) of this section, provided that the minimum fee imposed when more 
than one application is made shall be determined by the cost of the 
application with the highest fee. Nothing contained in this section is 
intended to foreclose the respondent from applying for any benefit or 
privilege which he or she believes himself or herself eligible to 
receive in proceedings under this part.

[62 FR 10367, Mar. 6, 1997, unless otherwise noted. Redesignated in part 
and duplicated in part from part 240 at 68 FR 9838, 9840, Feb. 28, 2003, 
as amended at 71 FR 35757, June 21, 2006]



Sec. 1240.50  Decision of the immigration judge.

    (a) Contents. The decision of the immigration judge may be oral or 
written. Except when deportability is determined on the pleadings 
pursuant to Sec. 1240.48(b), the decision of the immigration judge 
shall include a finding as to deportability. The formal enumeration of 
findings is not required. The decision shall also contain the reasons 
for granting or denying the request. The decision shall be concluded 
with the order of the immigration judge.

[[Page 1059]]

    (b) Summary decision. Notwithstanding the provisions of paragraph 
(a) of this section, in any case where deportability is determined on 
the pleadings pursuant to Sec. 1240.48(b) and the respondent does not 
make an application under Sec. 1240.49, or the respondent applies for 
voluntary departure only and the immigration judge grants the 
application, the immigration judge may enter a summary decision on Form 
EOIR-7, Summary Order of Deportation, if deportation is ordered, or on 
Form EOIR-6, Summary Order of Voluntary Departure, if voluntary 
departure is granted with an alternate order of deportation.
    (c) Order of the immigration judge. The order of the immigration 
judge shall direct the respondent's deportation, or the termination of 
the proceedings, or such other disposition of the case as may be 
appropriate. When deportation is ordered, the immigration judge shall 
specify the country, or countries in the alternate, to which 
respondent's deportation shall be directed. The immigration judge is 
authorized to issue orders in the alternative or in combination as he or 
she may deem necessary.



Sec. 1240.51  Notice of decision.

    (a) Written decision. A written decision shall be served upon the 
respondent and the Service counsel, together with the notice referred to 
in Sec. 1003.3 of this chapter. Service by mail is complete upon 
mailing.
    (b) Oral decision. An oral decision shall be stated by the 
immigration judge in the presence of the respondent and the trail 
attorney, if any, at the conclusion of the hearing. Unless appeal from 
the decision is waived, the respondent shall be furnished with Form 
EOIR-26, Notice of Appeal, and advised of the provisions of Sec. 
1240.53. A printed copy of the oral decision shall be furnished at the 
request of the respondent or the Service counsel.
    (c) Summary decision. When the immigration judge renders a summary 
decision as provided in Sec. 1240.51(b), he or she shall serve a copy 
thereof upon the respondent at the conclusion of the hearing. Unless 
appeal from the decision is waived, the respondent shall be furnished 
with Form EOIR-26, Notice of Appeal, and advised of the provisions of 
Sec. 1240.54.



Sec. 1240.52  Finality of order.

    The decision of the immigration judge shall become final in 
accordance with Sec. 1003.39 of this chapter.



Sec. 1240.53  Appeals.

    (a) Pursuant to 8 CFR part 1003, an appeal shall lie from a decision 
of an immigration judge to the Board, except that no appeal shall lie 
from an order of deportation entered in absentia. The procedures 
regarding the filing of a Form EOIR-26, Notice of Appeal, fees, and 
briefs are set forth in Sec. Sec. 1003.3, 1003.31, and 1003.38 of this 
chapter. An appeal shall be filed within 30 calendar days after the 
mailing of a written decision, the stating of an oral decision, or the 
service of a summary decision. The filing date is defined as the date of 
receipt of the Notice of Appeal by the Board. The reasons for the appeal 
shall be stated in the Form EOIR-26, Notice of Appeal, in accordance 
with the provisions of Sec. 1003.3(b) of this chapter. Failure to do so 
may constitute a ground for dismissal of the appeal by the Board 
pursuant to Sec. 1003.1(d)(2) of this chapter.
    (b) Prohibited appeals; legalization or applications. An alien 
respondent defined in Sec. 245a.2(c)(6) or (7) of this chapter who 
fails to file an application for adjustment of status to that of a 
temporary resident within the prescribed period(s), and who is 
thereafter found to be deportable by decision of an immigration judge, 
shall not be permitted to appeal the finding of deportability based 
solely on refusal by the immigration judge to entertain such an 
application in deportation proceedings.

[62 FR 10367, Mar. 6, 1997, as amended at 66 FR 6446, Jan. 22, 2001]

[[Page 1060]]



Sec. 1240.54  [Reserved]



    Subpart F_Suspension of Deportation and Voluntary Departure (for 

              Proceedings Commenced Prior to April 1, 1997)



Sec. 1240.55  Proceedings commenced prior to April 1, 1997.

    Subpart F of 8 CFR part 1240 applies to deportation proceedings 
commenced prior to April 1, 1997. A deportation proceeding is commenced 
by the filing of Form I-221 (Order to Show Cause) with the Immigration 
Court, and an alien is considered to be in deportation proceedings only 
upon such filing, except in the case of an alien admitted to the United 
States under the provisions of section 217 of the Act. All references to 
the Act contained in this subpart are references to the Act in effect 
prior to April 1, 1997.



Sec. 1240.56  Application.

    Notwithstanding any other provision of this chapter, an alien who is 
deportable because of a conviction on or after November 18, 1988, for an 
aggravated felony as defined in section 101(a)(43) of the Act, shall not 
be eligible for voluntary departure as prescribed in 8 CFR part 1240 and 
section 244 of the Act. Pursuant to subpart F of this part and section 
244 of the Act, an immigration judge may authorize the suspension of an 
alien's deportation; or, if the alien establishes that he or she is 
willing and has the immediate means with which to depart promptly from 
the United States, an immigration judge may authorize the alien to 
depart voluntarily from the United States in lieu of deportation within 
such time as may be specified by the immigration judge when first 
authorizing voluntary departure, and under such conditions as the 
district director shall direct. An application for suspension of 
deportation shall be made on Form EOIR-40.



Sec. 1240.57  Extension of time to depart.

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



Sec. 1240.58  Extreme hardship.

    (a) To be eligible for suspension of deportation under former 
section 244(a)(1) of the Act, as in effect prior to April 1, 1997, the 
alien must meet the requirements set forth in the Act, which include a 
showing that deportation would result in extreme hardship to the alien 
or to the alien's spouse, parent, or child, who is a citizen of the 
United States, or an alien lawfully admitted for permanent residence. 
Extreme hardship is evaluated on a case-by-case basis, taking into 
account the particular facts and circumstances of each case. Applicants 
are encouraged to cite and document all applicable factors in their 
applications, as the presence or absence of any one factor may not be 
determinative in evaluating extreme hardship. Adjudicators should weigh 
all relevant factors presented and consider them in light of the 
totality of the circumstances, but are not required to offer an 
independent analysis of each listed factor when rendering a decision. 
Evidence of an extended stay in the United States without fear of 
deportation and with the benefit of work authorization, when present in 
a particular case, shall be considered relevant to the determination of 
whether deportation will result in extreme hardship.
    (b) To establish extreme hardship, an applicant must demonstrate 
that deportation would result in a degree of hardship beyond that 
typically associated with deportation. Factors that may be considered in 
evaluating whether deportation would result in extreme hardship to the 
alien or to the alien's qualified relative include, but are not limited 
to, the following:

[[Page 1061]]

    (1) The age of the alien, both at the time of entry to the United 
States and at the time of application for suspension of deportation;
    (2) The age, number, and immigration status of the alien's children 
and their ability to speak the native language and to adjust to life in 
the country of return;
    (3) The health condition of the alien or the alien's children, 
spouse, or parents and the availability of any required medical 
treatment in the country to which the alien would be returned;
    (4) The alien's ability to obtain employment in the country to which 
the alien would be returned;
    (5) The length of residence in the United States;
    (6) The existence of other family members who are or will be legally 
residing in the United States;
    (7) The financial impact of the alien's departure;
    (8) The impact of a disruption of educational opportunities;
    (9) The psychological impact of the alien's deportation;
    (10) The current political and economic conditions in the country to 
which the alien would be returned;
    (11) Family and other ties to the country to which the alien would 
be returned;
    (12) Contributions to and ties to a community in the United States, 
including the degree of integration into society;
    (13) Immigration history, including authorized residence in the 
United States; and
    (14) The availability of other means of adjusting to permanent 
resident status.
    (c) For cases raised under section 244(a)(3) of the Act, the 
following factors should be considered in addition to, or in lieu of, 
the factors listed in paragraph (b) of this section.
    (1) The nature and extent of the physical or psychological 
consequences of abuse;
    (2) The impact of loss of access to the United States courts and 
criminal justice system (including, but not limited to, the ability to 
obtain and enforce orders of protection, criminal investigations and 
prosecutions, and family law proceedings or court orders regarding child 
support, maintenance, child custody, and visitation);
    (3) The likelihood that the batterer's family, friends, or others 
acting on behalf of the batterer in the home country would physically or 
psychologically harm the applicant or the applicant's child(ren);
    (4) The applicant's needs and/or needs of the applicant's child(ren) 
for social, medical, mental health or other supportive services for 
victims of domestic violence that are unavailable or not reasonably 
accessible in the home country;
    (5) The existence of laws and social practices in the home country 
that punish the applicant or the applicant's child(ren) because they 
have been victims of domestic violence or have taken steps to leave an 
abusive household; and
    (6) The abuser's ability to travel to the home country and the 
ability and willingness of authorities in the home country to protect 
the applicant and/or the applicant's children from future abuse.
    (d) Nothing in Sec. 1240.58 shall be construed as creating any 
right, interest, or entitlement that is legally enforceable by or on 
behalf of any party against the United States or its agencies, officers, 
or any other person.

[64 FR 27875, May 21, 1999]

Subpart G--Civil Penalties for Failure to Depart [Reserved]



  Subpart H_Applications for Suspension of Deportation or Special Rule 

      Cancellation of Removal Under Section 203 of Pub. L. 105	100

    Source: 64 FR 27876, May 21, 1999, unless otherwise noted.



Sec. 1240.60  Definitions.

    As used in this subpart the term:
    ABC means American Baptist Churches v. Thornburgh, 760 F. Supp. 796 
(N.D. Cal. 1991).
    ABC class member refers to:
    (1) Any Guatemalan national who first entered the United States on 
or before October 1, 1990; and

[[Page 1062]]

    (2) Any Salvadoran national who first entered the United States on 
or before September 19, 1990.
    Asylum application pending adjudication by the Service means any 
asylum application for which the Service has not served the applicant 
with a final decision or which has not been referred to the Immigration 
Court.
    Filed an application for asylum means the proper filing of a 
principal asylum application or filing a derivative asylum application 
by being properly included as a dependent spouse or child in an asylum 
application pursuant to the regulations and procedures in effect at the 
time of filing the principal or derivative asylum application.
    IIRIRA means the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996, enacted as Pub. L. 104-208 (110 Stat. 3009-
625).
    NACARA means the Nicaraguan Adjustment and Central American Relief 
Act (NACARA), enacted as title II of Pub. L. 105-100 (111 Stat. 2160, 
2193), as amended by the Technical Corrections to the Nicaraguan 
Adjustment and Central American Relief Act, Pub. L. 105-139 (111 Stat. 
2644).
    Registered ABC class member means an ABC class member who:
    (1) In the case of an ABC class member who is a national of El 
Salvador, properly submitted an ABC registration form to the Service on 
or before October 31, 1991, or applied for temporary protected status on 
or before October 31, 1991; or
    (2) In the case of an ABC class member who is a national of 
Guatemala, properly submitted an ABC registration form to the Service on 
or before December 31, 1991.



Sec. 1240.61  Applicability.

    (a) Except as provided in paragraph (b) of this section, this 
subpart H applies to the following aliens:
    (1) A registered ABC class member who has not been apprehended at 
the time of entry after December 19, 1990;
    (2) A Guatemalan or Salvadoran national who filed an application for 
asylum with the Service on or before April 1, 1990, either by filing an 
application with the Service or filing the application with the 
Immigration Court and serving a copy of that application on the Service.
    (3) An alien who entered the United States on or before December 31, 
1990, filed an application for asylum on or before December 31, 1991, 
and, at the time of filing the application, was a national of the Soviet 
Union, Russia, any republic of the former Soviet Union, Latvia, Estonia, 
Lithuania, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, Albania, 
East Germany, Yugoslavia, or any state of the former Yugoslavia;
    (4) An alien who is the spouse or child of an individual described 
in paragraph (a)(1), (a)(2), or (a)(3) of this section at the time a 
decision is made to suspend the deportation, or cancel the removal, of 
the individual described in paragraph (a)(1), (a)(2), or (a)(3) of this 
section;
    (5) An alien who is:
    (i) The unmarried son or unmarried daughter of an individual 
described in paragraph (a)(1), (a)(2), or (a)(3) of this section and is 
21 years of age or older at the time a decision is made to suspend the 
deportation, or cancel the removal, of the parent described in paragraph 
(a)(1), (a)(2), or (a)(3) of this section; and
    (ii) Entered the United States on or before October 1, 1990.
    (b) This subpart H does not apply to any alien who has been 
convicted at any time of an aggravated felony, as defined in section 
101(a)(43) of the Act.



Sec. 1240.62  Jurisdiction.

    (a) Office of International Affairs. Except as provided in paragraph 
(b) of this section, the Office of International Affairs shall have 
initial jurisdiction to grant or refer to the Immigration Court or Board 
an application for suspension of deportation or special rule 
cancellation of removal filed by an alien described in Sec. 1240.61, 
provided:
    (1) In the case of a national of El Salvador described in Sec. 
1240.61(a)(1), the alien filed a complete asylum application on or 
before January 31, 1996 (with an administrative grace period extending 
to February 16, 1996), or otherwise met the asylum application filing 
deadline pursuant to the ABC settlement agreement, and the application 
is still pending adjudication by the Service;

[[Page 1063]]

    (2) In the case of a national of Guatemala described in Sec. 
1240.61(a)(1), the alien filed a complete asylum application on or 
before January 3, 1995, or otherwise met the asylum application filing 
deadline pursuant to the ABC settlement agreement, and the application 
is still pending adjudication by the Service;
    (3) In the case of an individual described in Sec. 1240.61(a)(2) or 
(3), the individual's asylum application is pending adjudication by the 
Service;
    (4) In the case of an individual described in Sec. 1240.61(a)(4) or 
(5), the individual's parent or spouse has an application pending with 
the Service under this subpart H or has been granted relief by the 
Service under this subpart.
    (b) Immigration Court. The Immigration Court shall have exclusive 
jurisdiction over an application for suspension of deportation or 
special rule cancellation of removal filed pursuant to section 
309(f)(1)(A) or (B) of IIRIRA, as amended by NACARA, by an alien who has 
been served Form I-221, Order to Show Cause, or Form I-862, Notice to 
Appear, after a copy of the charging document has been filed with the 
Immigration Court, unless the alien is covered by one of the following 
exceptions:
    (1) Certain ABC class members. (i) The alien is a registered ABC 
class member for whom proceedings before the Immigration Court or the 
Board have been administratively closed or continued (including those 
aliens who had final orders of deportation or removal who have filed and 
been granted a motion to reopen as required under 8 CFR 1003.43);
    (ii) The alien is eligible for benefits of the ABC settlement 
agreement and has not had a de novo asylum adjudication pursuant to the 
settlement agreement; and
    (iii) The alien has not moved for and been granted a motion to 
recalendar proceedings before the Immigration Court or the Board to 
request suspension of deportation.
    (2) Spouses, children, unmarried sons, and unmarried daughters. (i) 
The alien is described in Sec. 1240.61(a) (4) or (5);
    (ii) The alien's spouse or parent is described in Sec. 
1240.61(a)(1), (a)(2), or (a)(3) and has a Form I-881 pending with the 
Service; and
    (iii) The alien's proceedings before the Immigration Court have been 
administratively closed, or the alien's proceedings before the Board 
have been continued, to permit the alien to file an application for 
suspension of deportation or special rule cancellation of removal with 
the Service.



Sec. 1240.63  Application process.

    (a) Form and fees. Except as provided in paragraph (b) of this 
section, the application must be made on a Form I-881, Application for 
Suspension of Deportation or Special Rule Cancellation of Removal 
(pursuant to section 203 of Public Law 105-100 (NACARA)), and filed in 
accordance with the instructions for that form. An applicant who 
submitted to EOIR a completed Form EOIR-40, Application for Suspension 
of Deportation, before the effective date of the Form I-881 may apply 
with the Service by submitting the completed Form EOIR-40 attached to a 
completed first page of the Form I-881. Each application must be filed 
with the filing and fingerprint fees as provided in Sec. 1103.7(b)(1) 
of this chapter, or a request for fee waiver, as provided in Sec. 
1103.7(c) of this chapter. The fact that an applicant has also applied 
for asylum does not exempt the applicant from the fingerprinting fees 
associated with the Form I-881.
    (b) Applications filed with EOIR. If jurisdiction rests with the 
Immigration Court under Sec. 260.62(b), the application must be made on 
the Form I-881, if filed subsequent to June 21, 1999. The application 
form, along with any supporting documents, must be filed with the 
Immigration Court and served on the Service's district counsel in 
accordance with the instructions on or accompanying the form. 
Applications for suspension of deportation or special rule cancellation 
of removal filed prior to June 21, 1999 shall be filed on Form EOIR-40.
    (c) Applications filed with the Service. If jurisdiction rests with 
the Service under Sec. 1240.62(a), the Form I-881 and supporting 
documents must be filed at the appropriate Service Center in accordance 
with the instructions on or accompanying the form.

[[Page 1064]]

    (d) Conditions and consequences of filing. Applications filed under 
this section shall be filed under the following conditions and shall 
have the following consequences:
    (1) The 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 application that does not include a response to each of the 
questions contained in the application, is unsigned, or is unaccompanied 
by the required materials specified in the instructions to the 
application is incomplete and shall be returned by mail to the applicant 
within 30 days of receipt of the application by the Service; and
    (4) Knowing placement of false information on the application may 
subject the person supplying that information to criminal penalties 
under title 18 of the United States Code and to civil penalties under 
section 274C of the Act.



Sec. 1240.64  Eligibility--general.

    (a) Burden and standard of proof. The burden of proof is on the 
applicant to establish by a preponderance of the evidence that he or she 
is eligible for suspension of deportation or special rule cancellation 
of removal and that discretion should be exercised to grant relief.
    (b) Calculation of continuous physical presence and certain breaks 
in presence. For purposes of calculating continuous physical presence 
under this section, section 309(c)(5)(A) of IIRIRA and section 
240A(d)(1) of the Act shall not apply to persons described in Sec. 
1240.61. For purposes of this subpart H, a single absence of 90 days or 
less or absences which in the aggregate total no more than 180 days 
shall be considered brief.
    (1) For applications for suspension of deportation made under former 
section 244 of the Act, as in effect prior to April 1, 1997, the burden 
of proof is on the applicant to establish that any breaks in continuous 
physical presence were brief, casual, and innocent and did not 
meaningfully interrupt the period of continuous physical presence in the 
United States. For purposes of evaluating whether an absence is brief, 
single absences in excess of 90 days, or absences that total more than 
180 days in the aggregate will be evaluated on a case-by-case basis. An 
applicant must establish that any absence from the United States was 
casual and innocent and did not meaningfully interrupt the period of 
continuous physical presence.
    (2) For applications for special rule cancellation of removal made 
under section 309(f)(1) of IIRIRA, as amended by NACARA, the applicant 
shall be considered to have failed to maintain continuous physical 
presence in the United States if he or she has departed from the United 
States for any period in excess of 90 days or for any periods in the 
aggregate exceeding 180 days. The applicant must establish that any 
period of absence less than 90 days was casual and innocent and did not 
meaningfully interrupt the period of continuous physical presence in the 
United States.
    (3) For all applications made under this subpart, a period of 
continuous physical presence is terminated whenever an alien is removed 
from the United States under an order issued pursuant to any provision 
of the Act or the alien has voluntarily departed under the threat of 
deportation or when the departure is made for purposes of committing an 
unlawful act.
    (4) The requirements of continuous physical presence in the United 
States under this subpart shall not apply to an alien who:
    (i) Has served for a minimum period of 24 months in an active-duty 
status in the Armed Forces of the United States and, if separated from 
such service, was separated under honorable conditions, and

[[Page 1065]]

    (ii) At the time of the alien's enlistment or induction, was in the 
United States.
    (c) Factors relevant to extreme hardship. Except as described in 
paragraph (d) of this section, extreme hardship shall be determined as 
set forth in Sec. 1240.58.
    (d) Rebuttable presumption of extreme hardship for certain classes 
of aliens--(1) Presumption of extreme hardship. An applicant described 
in paragraphs (a)(1) or (a)(2) of Sec. 1240.61 who has submitted a 
completed Form I-881 or Form EOIR-40 to either the Service or the 
Immigration Court, in accordance with Sec. 1240.63, shall be presumed 
to have established that deportation or removal from the United States 
would result in extreme hardship to the applicant or to his or her 
spouse, parent, or child, who is a citizen of the United States or an 
alien lawfully admitted for permanent residence.
    (2) Rebuttal of presumption. A presumption of extreme hardship as 
described in paragraph (d)(1) of this section shall be rebutted if the 
evidence in the record establishes that it is more likely than not that 
neither the applicant nor a qualified relative would suffer extreme 
hardship if the applicant were deported or removed from the United 
States. In making such a determination, the adjudicator shall consider 
relevant factors, including those listed in Sec. 1240.58.
    (3) Burden of proof. In those cases where a presumption of extreme 
hardship applies, the burden of proof shall be on the Service to 
establish that it is more likely than not that neither the applicant nor 
a qualified relative would suffer extreme hardship if the applicant were 
deported or removed from the United States.
    (4) Effect of rebuttal. (i) A determination that it is more likely 
than not that neither the applicant nor a qualified relative would 
suffer extreme hardship if the applicant were deported or removed from 
the United States shall be grounds for referral to the Immigration Court 
or dismissal of an application submitted initially to the Service. The 
applicant is entitled to a de novo adjudication and will again be 
considered to have a presumption of extreme hardship before the 
Immigration Court.
    (ii) If the Immigration Court determines that extreme hardship will 
not result from deportation or removal from the United States, the 
application will be denied.

[64 FR 27876, May 21, 1999; 64 FR 33386, June 23, 1999]



Sec. 1240.65  Eligibility for suspension of deportation.

    (a) Applicable statutory provisions. To establish eligibility for 
suspension of deportation under this section, the applicant must be an 
individual described in Sec. 1240.61; must establish that he or she is 
eligible under former section 244 of the Act, as in effect prior to 
April 1, 1997; must not be subject to any bars to eligibility in former 
section 242B(e) of the Act, as in effect prior to April 1, 1997, or any 
other provisions of law; and must not have been convicted of an 
aggravated felony or be an alien described in former section 
241(a)(4)(D) of the Act, as in effect prior to April 1, 1997 (relating 
to Nazi persecution and genocide).
    (b) General rule. To establish eligibility for suspension of 
deportation under former section 244(a)(1) of the Act, as in effect 
prior to April 1, 1997, an alien must be deportable under any law of the 
United States, except the provisions specified in paragraph (c) of this 
section, and must establish:
    (1) The alien has been physically present in the United States for a 
continuous period of not less than 7 years immediately preceding the 
date the application was filed;
    (2) During all of such period the alien was and is a person of good 
moral character; and
    (3) The alien's deportation would, in the opinion of the Attorney 
General, result in extreme hardship to the alien or to the alien's 
spouse, parent, or child, who is a citizen of the United States or an 
alien lawfully admitted for permanent residence.
    (c) Aliens deportable on criminal or certain other grounds. To 
establish eligibility for suspension of deportation under former section 
244(a)(2) of the Act, as in effect prior to April 1, 1997, an alien who 
is deportable under former section 241(a) (2), (3), or (4) of

[[Page 1066]]

the Act, as in effect prior to April 1, 1997 (relating to criminal 
activity, document fraud, failure to register, and security threats), 
must establish that:
    (1) The alien has been physically present in the United States for a 
continuous period of not less than 10 years immediately following the 
commission of an act, or the assumption of a status constituting a 
ground for deportation;
    (2) The alien has been and is a person of good moral character 
during all of such period; and
    (3) The alien's deportation would, in the opinion of the Attorney 
General, result in exceptional and extremely unusual hardship to the 
alien, or to the alien's spouse, parent, or child, who is a citizen of 
the United States or an alien lawfully admitted for permanent residence.
    (d) Battered spouses and children. To establish eligibility for 
suspension of deportation under former section 244(a)(3) of the Act, as 
in effect prior to April 1, 1997, an alien must be deportable under any 
law of the United States, except under former section 241(a)(1)(G) of 
the Act, as in effect prior to April 1, 1997 (relating to marriage 
fraud), and except under the provisions specified in paragraph (c) of 
this section, and must establish that:
    (1) The alien has been physically present in the United States for a 
continuous period of not less than 3 years immediately preceding the 
date the application was filed;
    (2) The alien has been battered or subjected to extreme cruelty in 
the United States by a spouse or parent who is a United States citizen 
or lawful permanent resident (or is the parent of a child of a United 
States citizen or lawful permanent resident and the child has been 
battered or subjected to extreme cruelty in the United States by such 
citizen or permanent resident parent); and
    (3) During all of such time in the United States the alien was and 
is a person of good moral character; and
    (4) The alien's deportation would, in the opinion of the Attorney 
General, result in extreme hardship to the alien or the alien's parent 
or child.



Sec. 1240.66  Eligibility for special rule cancellation of removal.

    (a) Applicable statutory provisions. To establish eligibility for 
special rule cancellation of removal, the applicant must show he or she 
is eligible under section 309(f)(1) of IIRIRA, as amended by section 203 
of NACARA. The applicant must be described in Sec. 1240.61, must be 
inadmissible or deportable, must not be subject to any bars to 
eligibility in sections 240(b)(7), 240A(c), or 240B(d) of the Act, or 
any other provisions of law, and must not have been convicted of an 
aggravated felony or be an alien described in section 241(b)(3)(B)(I) of 
the Act (relating to persecution of others).
    (b) General rule. To establish eligibility for special rule 
cancellation of removal under section 309(f)(1)(A) of IIRIRA, as amended 
by section 203 of NACARA, the alien must establish that:
    (1) The alien is not inadmissible under section 212(a)(2) or (3) or 
deportable under section 237(a)(2), (3) or (4) of the Act (relating to 
criminal activity, document fraud, failure to register, and security 
threats);
    (2) The alien has been physically present in the United States for a 
continuous period of 7 years immediately preceding the date the 
application was filed;
    (3) The alien has been a person of good moral character during the 
required period of continuous physical presence; and
    (4) The alien's removal from the United States would result in 
extreme hardship to the alien, or to the alien's spouse, parent or child 
who is a United States citizen or an alien lawfully admitted for 
permanent residence.
    (c) Aliens inadmissible or deportable on criminal or certain other 
grounds. To establish eligibility for special rule cancellation of 
removal under section 309(f)(1)(B) of IIRIRA, as amended by section 203 
of NACARA, the alien must be described in Sec. 1240.61 and establish 
that:
    (1) The alien is inadmissible under section 212(a)(2) of the Act 
(relating to criminal activity), or deportable under paragraphs (a)(2) 
(other than section 237(a)(2)(A)(iii), relating to aggravated felony 
convictions), or (a)(3) of section

[[Page 1067]]

237 of the Act (relating to criminal activity, document fraud, and 
failure to register);
    (2) The alien has been physically present in the United States for a 
continuous period of not less than 10 years immediately following the 
commission of an act, or the assumption of a status constituting a 
ground for removal;
    (3) The alien has been a person of good moral character during the 
required period of continuous physical presence; and
    (4) The alien's removal from the United States would result in 
exceptional and extremely unusual hardship to the alien or to the 
alien's spouse, parent, or child, who is a United States citizen or an 
alien lawfully admitted for permanent residence.



Sec. 1240.67  Procedure for interview before an asylum officer.

    (a) Fingerprinting requirements. The Service will notify each 
applicant 14 years of age or older to appear for an interview only after 
the applicant has complied with fingerprinting requirements pursuant to 
Sec. 103.2(e) of 8 CFR chapter I, and the Service has received a 
definitive response from the FBI that a full criminal background check 
has been completed. A definitive response that a full criminal 
background check on an applicant has been completed includes:
    (1) Confirmation from the FBI that an applicant does not have an 
administrative or criminal record;
    (2) Confirmation from the FBI that an applicant has an 
administrative or a criminal record; or
    (3) Confirmation from the FBI that two properly prepared fingerprint 
cards (Form FD-258) have been determined unclassifiable for the purpose 
of conducting a criminal background check and have been rejected.
    (b) Interview. (1) The asylum officer shall conduct the interview in 
a non-adversarial 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 suspension of deportation or special rule 
cancellation of removal. If the applicant has an asylum application 
pending with the Service, the asylum officer may also elicit information 
relating to the application for asylum in accordance with Sec. 1208.9 
of this chapter. At the time of the interview, the applicant must 
provide complete information regarding the applicant's 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.
    (2) The applicant may have counsel or a representative present, may 
present witnesses, and may submit affidavits of witnesses and other 
evidence.
    (3) 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 a language in which the applicant is fluent. 
The interpreter must be at least 18 years of age. The following 
individuals may not serve as the applicant's interpreter: the 
applicant's attorney or representative of record; a witness testifying 
on the applicant's behalf; or, if the applicant also has an asylum 
application pending with the Service, a representative or employee of 
the applicant's country of nationality, or, if stateless, country of 
last habitual residence. Failure without good cause to comply with this 
paragraph may be considered a failure to appear for the interview for 
purposes of Sec. 1240.68.
    (4) 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.
    (5) 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 the 
officer's discretion, limit the length of such statement or comment and 
may require its submission in writing. Upon completion of the interview, 
and except as otherwise provided by the asylum officer, the applicant 
shall be informed of the requirement to appear in person to receive and 
to acknowledge receipt of the decision and any other accompanying 
material

[[Page 1068]]

at a time and place designated by the asylum officer.
    (6) The asylum officer shall consider evidence submitted by the 
applicant with the 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.



Sec. 1240.68  Failure to appear at an interview before an asylum officer or 

failure to follow requirements for fingerprinting.

    (a) Failure to appear for a scheduled interview without prior 
authorization may result in dismissal of the application or waiver of 
the right to an adjudication by an asylum officer. A written request to 
reschedule will be granted if it is an initial request and is received 
by the Asylum Office at least 2 days before the scheduled interview 
date. All other requests to reschedule the interview, including those 
submitted after the interview date, will be granted only if the 
applicant has a reasonable excuse for not appearing, and the excuse was 
received by the Asylum Office in writing within a reasonable time after 
the scheduled interview date.
    (b) Failure to comply with fingerprint processing requirements 
without reasonable excuse may result in dismissal of the application or 
waiver of the right to an adjudication by an asylum officer.
    (c) 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 Service regulations, unless 
the asylum officer determines that the applicant received reasonable 
notice of the interview or fingerprinting appointment.



Sec. 1240.69  Reliance on information compiled by other sources.

    In determining whether an applicant is eligible for suspension of 
deportation or special rule cancellation of removal, the asylum officer 
may rely on material described in Sec. 1208.12 of this chapter. Nothing 
in this subpart shall be construed to entitle the applicant to conduct 
discovery directed toward records, officers, agents, or employees of the 
Service, the Department of Justice, or the Department of State.



Sec. 1240.70  Decision by the Service.

    (a) Service of decision. Unless the asylum officer has granted the 
application for suspension of deportation or special rule cancellation 
of removal at the time of the interview or as otherwise provided by an 
Asylum Office, the applicant will be required to return to the Asylum 
Office to receive service of the decision on the applicant's 
application. If the applicant does not speak English fluently, the 
applicant shall bring an interpreter when returning to the office to 
receive service of the decision.
    (b) Grant of suspension of deportation. An asylum officer may grant 
suspension of deportation to an applicant eligible to apply for this 
relief with the Service who qualifies for suspension of deportation 
under former section 244(a)(1) of the Act, as in effect prior to April 
1, 1997, who is not an alien described in former section 241(a)(4)(D) of 
the Act, as in effect prior to April 1, 1997, and who admits 
deportability under any law of the United States, excluding former 
section 241(a)(2), (3), or (4) of the Act, as in effect prior to April 
1, 1997. If the Service has made a preliminary decision to grant the 
applicant suspension of deportation under this subpart, the applicant 
shall be notified of that decision and will be asked to sign an 
admission of deportability or inadmissibility. The applicant must sign 
the admission before the Service may grant the relief sought. If 
suspension of deportation is granted, the Service shall adjust the 
status of the alien to lawful permanent resident, effective as of the 
date that suspension of deportation is granted.
    (c) Grant of cancellation of removal. An asylum officer may grant 
cancellation of removal to an applicant who is eligible to apply for 
this relief with the Service, and who qualifies for cancellation of 
removal under section

[[Page 1069]]

309(f)(1)(A) of IIRIRA, as amended by section 203 of NACARA, and who 
admits deportability under section 237(a), excluding paragraphs (2), 
(3), and (4), of the Act, or inadmissibility under section 212(a), 
excluding paragraphs (2) or (3), of the Act. If the Service has made a 
preliminary decision to grant the applicant cancellation of removal 
under this subpart, the applicant shall be notified of that decision and 
asked to sign an admission of deportability or inadmissibility. The 
applicant must sign the concession before the Service may grant the 
relief sought. If the Service grants cancellation of removal, the 
Service shall adjust the status of the alien to lawful permanent 
resident, effective as of the date that cancellation of removal is 
granted.
    (d) Referral of the application. Except as provided in paragraphs 
(e) and (f) of this section, and unless the applicant is granted asylum 
or is in lawful immigrant or non-immigrant status, an asylum officer 
shall refer the application for suspension of deportation or special 
rule cancellation of removal to the Immigration Court for adjudication 
in deportation or removal proceedings, and will provide the applicant 
with written notice of the statutory or regulatory basis for the 
referral, if:
    (1) The applicant is not clearly eligible for suspension of 
deportation under former section 244(a)(1) of the Act as in effect prior 
to April 1, 1997, or for cancellation of removal under section 
309(f)(1)(A) of IIRIRA, as amended by NACARA;
    (2) The applicant does not appear to merit relief as a matter of 
discretion;
    (3) The applicant appears to be eligible for suspension of 
deportation or special rule cancellation of removal under this subpart, 
but does not admit deportability or inadmissibility; or
    (4) The applicant failed to appear for a scheduled interview with an 
asylum officer or failed to comply with fingerprinting processing 
requirements and such failure was not excused by the Service, unless the 
application is dismissed.
    (e) Dismissal of the application. An asylum officer shall dismiss 
without prejudice an application for suspension of deportation or 
special rule cancellation of removal submitted by an applicant who has 
been granted asylum, or who is in lawful immigrant or non-immigrant 
status. An asylum officer may also dismiss an application for failure to 
appear, pursuant to Sec. 1240.68. The asylum officer will provide the 
applicant written notice of the statutory or regulatory basis for the 
dismissal.
    (f) Special provisions for certain ABC class members whose 
proceedings before EOIR were administratively closed or continued. The 
following provisions shall apply with respect to an ABC class member who 
was in proceedings before the Immigration Court or the Board, and those 
proceedings were closed or continued pursuant to the ABC settlement 
agreement:
    (1) Suspension of deportation or asylum granted. If an asylum 
officer grants asylum or suspension of deportation, the previous 
proceedings before the Immigration Court or Board shall be terminated as 
a matter of law on the date relief is granted.
    (2) Asylum denied and application for suspension of deportation not 
approved. If an asylum officer denies asylum and does not grant the 
applicant suspension of deportation, the Service shall move to 
recalendar proceedings before the Immigration Court or resume 
proceedings before the Board, whichever is appropriate. The Service 
shall refer to the Immigration Court or the Board the application for 
suspension of deportation. In the case where jurisdiction rests with the 
Board, an application for suspension of deportation that is referred to 
the Board will be remanded to the Immigration Court for adjudication.
    (g) Special provisions for dependents whose proceedings before EOIR 
were administratively closed or continued. If an asylum officer grants 
suspension of deportation or special rule cancellation of removal to an 
applicant described in Sec. 1240.61(a)(4) or (a)(5), whose proceedings 
before EOIR were administratively closed or continued, those proceedings 
shall terminate as of the date the relief is granted. If suspension of 
deportation or special rule cancellation of removal is not granted, the 
Service shall move to recalendar proceedings before the Immigration 
Court or resume proceedings before the Board, whichever is appropriate. 
The Service

[[Page 1070]]

shall refer to the Immigration Court or the Board the application for 
suspension of deportation or special rule cancellation of removal. In 
the case where jurisdiction rests with the Board, an application for 
suspension of deportation or special rule cancellation of removal that 
is referred to the Board will be remanded to the Immigration Court for 
adjudication.
    (h) Special provisions for applicants who depart the United States 
and return under a grant of advance parole while in deportation 
proceedings. Notwithstanding paragraphs (f) and (g) of this section, for 
purposes of adjudicating an application for suspension of deportation or 
special rule cancellation of removal under this subpart, if an applicant 
departs and returns to the United States pursuant to a grant of advance 
parole while in deportation proceedings, including deportation 
proceedings administratively closed or continued pursuant to the ABC 
settlement agreement, the deportation proceedings will be considered 
terminated as of the date of applicant's departure from the United 
States. A decision on the NACARA application shall be issued in 
accordance with paragraph (a), and paragraphs (c) through (e) of this 
section.



PART 1241_APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED--Table of 

Contents




              Subpart A_Post-hearing Detention and Removal

Sec.
1241.1 Final order of removal.
1241.2 Warrant of removal; detention of aliens during removal period.
1241.3-1241.5 [Reserved]
1241.6 Administrative stay of removal.
1241.7 Self-removal.
1241.8 Reinstatement of removal orders.
1241.9-1241.13 [Reserved]
1241.14 Continued detention of removable aliens on account of special 
          circumstances.
1241.15 Lack of jurisdiction to review other country of removal.
1241.16-1241.19 [Reserved]

 Subpart B_Deportation of Excluded Aliens (for Hearings Commenced Prior 
                            to April 1, 1997)

1241.20 Aliens ordered excluded.
1241.21-1241.29 [Reserved]

   Subpart C_Deportation of Aliens in the United States (for Hearings 
                    Commenced Prior to April 1, 1997)

1241.30 Aliens ordered deported.
1241.31 Final order of deportation.
1241.32 Warrant of deportation.
1241.33 Expulsion.

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223, 1224, 
1225, 1226, 1227, 1231, 1251, 1253, 1255, 1330, 1362; 18 U.S.C. 4002, 
4013(c)(4).

    Source: 62 FR 10378, Mar. 6, 1997, unless otherwise noted. 
Duplicated from part 241 at 68 FR 9840, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1241 appear at 68 FR 
9846, Feb. 28, 2003, and 68 FR 10357, Mar. 5, 2003.



              Subpart A_Post-hearing Detention and Removal



Sec. 1241.1  Final order of removal.

    An order of removal made by the immigration judge at the conclusion 
of proceedings under section 240 of the Act shall become final:
    (a) Upon dismissal of an appeal by the Board of Immigration Appeals;
    (b) Upon waiver of appeal by the respondent;
    (c) Upon expiration of the time allotted for an appeal if the 
respondent does not file an appeal within that time;
    (d) If certified to the Board or Attorney General, upon the date of 
the subsequent decision ordering removal;
    (e) If an immigration judge orders an alien removed in the alien's 
absence, immediately upon entry of such order; or
    (f) If an immigration judge issues an alternate order of removal in 
connection with a grant of voluntary departure, upon overstay of the 
voluntary departure period except where the respondent has filed a 
timely appeal with the Board. In such a case, the order shall become 
final upon an order of removal by the Board or the Attorney

[[Page 1071]]

General, or upon overstay of any voluntary departure period granted or 
reinstated by the Board or the Attorney General.

    Effective Date Note: At 73 FR 76938, Dec. 18, 2008, Sec. 1241.1 was 
amended by revising paragraph (f), effective Jan. 20, 2009. For the 
convenience of the user, the revised text is set forth as follows:



Sec. 1241.1  Final order of removal.

                                * * * * *

    (f) If an immigration judge issues an alternate order of removal in 
connection with a grant of voluntary departure, upon overstay of the 
voluntary departure period, or upon the failure to post a required 
voluntary departure bond within 5 business days. If the respondent has 
filed a timely appeal with the Board, the order shall become final upon 
an order of removal by the Board or the Attorney General, or upon 
overstay of the voluntary departure period granted or reinstated by the 
Board or the Attorney General.



Sec. 1241.2  Warrant of removal; detention of aliens during removal period.

    For the regulations of the Department of Homeland Security with 
respect to the detention and removal of aliens who are subject to a 
final order of removal, see 8 CFR part 241.

[70 FR 674, Jan. 5, 2005]



Sec. Sec. 1241.3-1241.5  [Reserved]



Sec. 1241.6  Administrative stay of removal.

    (a) An alien under a final order of deportation or removal may seek 
a stay of deportation or removal from the Department of Homeland 
Security as provided in 8 CFR 241.6.
    (b) A denial of a stay by the Department of Homeland Security shall 
not preclude an immigration judge or the Board from granting a stay in 
connection with a previously filed motion to reopen or a motion to 
reconsider as provided in 8 CFR part 1003.
    (c) The Service shall take all reasonable steps to comply with a 
stay granted by an immigration judge or the Board. However, such a stay 
shall cease to have effect if granted (or communicated) after the alien 
has been placed aboard an aircraft or other conveyance for removal and 
the normal boarding has been completed.

[65 FR 80298, Dec. 21, 2000, as amended at 67 FR 39259, June 7, 2002; 70 
FR 674, Jan. 5, 2005]



Sec. 1241.7  Self-removal.

    Any alien who has departed from the United States while an order of 
deportation or removal is outstanding shall be considered to have been 
deported, excluded and deported, or removed, except that an alien who 
departed before the expiration of the voluntary departure period granted 
in connection with an alternate order of deportation or removal shall 
not be considered to be so deported or removed.

[67 FR 39260, June 7, 2002, as amended at 70 FR 674, Jan. 5, 2005]



Sec. 1241.8  Reinstatement of removal orders.

    (a) Applicability. An alien who illegally reenters the United States 
after having been removed, or having departed voluntarily, while under 
an order of exclusion, deportation, or removal shall be removed from the 
United States by reinstating the prior order. The alien has no right to 
a hearing before an immigration judge in such circumstances. In 
establishing whether an alien is subject to this section, the 
immigration officer shall determine the following:
    (1) Whether the alien has been subject to a prior order of removal. 
The immigration officer must obtain the prior order of exclusion, 
deportation, or removal relating to the alien.
    (2) The identity of the alien, i.e., whether the alien is in fact an 
alien who was previously removed, or who departed voluntarily while 
under an order of exclusion, deportation, or removal. In disputed cases, 
verification of identity shall be accomplished by a comparison of 
fingerprints between those of the previously excluded, deported, or 
removed alien contained in Service records and those of the subject 
alien. In the absence of fingerprints in a disputed case the alien shall 
not be removed pursuant to this paragraph.
    (3) Whether the alien unlawfully reentered the United States. In 
making this determination, the officer shall

[[Page 1072]]

consider all relevant evidence, including statements made by the alien 
and any evidence in the alien's possession. The immigration officer 
shall attempt to verify an alien's claim, if any, that he or she was 
lawfully admitted, which shall include a check of Service data systems 
available to the officer.
    (b) Notice. If an officer determines that an alien is subject to 
removal under this section, he or she shall provide the alien with 
written notice of his or her determination. The officer shall advise the 
alien that he or she may make a written or oral statement contesting the 
determination. If the alien wishes to make such a statement, the officer 
shall allow the alien to do so and shall consider whether the alien's 
statement warrants reconsideration of the determination.
    (c) Order. If the requirements of paragraph (a) of this section are 
met, the alien shall be removed under the previous order of exclusion, 
deportation, or removal in accordance with section 241(a)(5) of the Act.
    (d) Exception for applicants for benefits under section 902 of HRIFA 
or sections 202 or 203 of NACARA. If an alien who is otherwise subject 
to this section has applied for adjustment of status under either 
section 902 of Division A of Public Law 105-277, the Haitian Refugee 
Immigrant Fairness Act of 1998 (HRIFA), or section 202 of Pubic Law 105-
100, the Nicaraguan Adjustment and Central American Relief Act (NACARA), 
the provisions of section 241(a)(5) of the Immigration and Nationality 
Act shall not apply. The immigration officer may not reinstate the prior 
order in accordance with this section unless and until a final decision 
to deny the application for adjustment has been made. If the application 
for adjustment of status is granted, the prior order shall be rendered 
moot.
    (e) Exception for withholding of removal. If an alien whose prior 
order of removal has been reinstated under this section expresses a fear 
of returning to the country designated in that order, the alien shall be 
immediately referred to an asylum officer for an interview to determine 
whether the alien has a reasonable fear of persecution or torture 
pursuant to Sec. 1208.31 of this chapter.
    (f) Execution of reinstated order. Execution of the reinstated order 
of removal and detention of the alien shall be administered in 
accordance with this part.

[62 FR 10378, Mar. 6, 1997, as amended at 64 FR 8495, Feb. 19, 1999; 66 
FR 29451, May 31, 2001]



Sec. Sec. 1241.9-1241.13  [Reserved]



Sec. 1241.14  Continued detention of removable aliens on account of special 

circumstances.

    (a) Scope. This section provides for the review of determinations by 
the Department of Homeland Security to continue the detention of 
particular removable aliens found to be specially dangerous. See 8 CFR 
241.14.
    (1) Applicability. This section applies to the review of the 
continued detention of removable aliens because the Department of 
Homeland Security has determined that release of the alien would pose a 
special danger to the public, where there is no significant likelihood 
of removal in the reasonably foreseeable future. This section does not 
apply to aliens who are not subject to the special review provisions 
under 8 CFR 241.13.
    (2) Jurisdiction. The immigration judges and the Board have 
jurisdiction with respect to determinations as to whether release of an 
alien would pose a special danger to the public, as provided in 
paragraphs (f) through (k) of this section.
    (b)-(e) [Reserved]
    (f) Detention of aliens determined to be specially dangerous--(1) 
Standard for continued detention. Subject to the review procedures 
provided in this section, the Service shall continue to detain an alien 
if the release of the alien would pose a special danger to the public, 
because:
    (i) The alien has previously committed one or more crimes of 
violence as defined in 18 U.S.C. 16;
    (ii) Due to a mental condition or personality disorder and behavior 
associated with that condition or disorder, the alien is likely to 
engage in acts of violence in the future; and
    (iii) No conditions of release can reasonably be expected to ensure 
the safety of the public.

[[Page 1073]]

    (2) Determination by the Commissioner. The Service shall promptly 
initiate review proceedings under paragraph (g) of this section if the 
Commissioner has determined in writing that the alien's release would 
pose a special danger to the public, according to the standards of 
paragraph (f)(1) of this section.
    (3) Medical or mental health examination. Before making such a 
determination, the Commissioner shall arrange for a report by a 
physician employed or designated by the Public Health Service based on a 
full medical and psychiatric examination of the alien. The report shall 
include recommendations pertaining to whether, due to a mental condition 
or personality disorder and behavior associated with that condition or 
disorder, the alien is likely to engage in acts of violence in the 
future.
    (4) Detention pending review. After the Commissioner or Deputy 
Commissioner has made a determination under this paragraph, the Service 
shall continue to detain the alien, unless an immigration judge or the 
Board issues an administratively final decision dismissing the review 
proceedings under this section.
    (g) Referral to Immigration Judge. Jurisdiction for an immigration 
judge to review a determination by the Service pursuant to paragraph (f) 
of this section that an alien is specially dangerous shall commence with 
the filing by the Service of a Notice of Referral to the Immigration 
Judge (Form I-863) with the Immigration Court having jurisdiction over 
the place of the alien's custody. The Service shall promptly provide to 
the alien by personal service a copy of the Notice of Referral to the 
Immigration Judge and all accompanying documents.
    (1) Factual basis. The Service shall attach a written statement that 
contains a summary of the basis for the Commissioner's determination to 
continue to detain the alien, including a description of the evidence 
relied upon to reach the determination regarding the alien's special 
dangerousness. The Service shall attach copies of all relevant documents 
used to reach its decision to continue to detain the alien.
    (2) Notice of reasonable cause hearing. The Service shall attach a 
written notice advising the alien that the Service is initiating 
proceedings for the continued detention of the alien and informing the 
alien of the procedures governing the reasonable cause hearing, as set 
forth at paragraph (h) of this section.
    (3) Notice of alien's rights. The Service shall also provide written 
notice advising the alien of his or her rights during the reasonable 
cause hearing and the merits hearing before the Immigration Court, as 
follows:
    (i) The alien shall be provided with a list of free legal services 
providers, and may be represented by an attorney or other representative 
of his or her choice in accordance with 8 CFR part 1292, at no expense 
to the Government;
    (ii) The Immigration Court shall provide an interpreter for the 
alien, if necessary, for the reasonable cause hearing and the merits 
hearing.
    (iii) The alien shall have a reasonable opportunity to examine 
evidence against the alien, to present evidence in the alien's own 
behalf, and to cross-examine witnesses presented by the Service; and
    (iv) The alien shall have the right, at the merits hearing, to 
cross-examine the author of any medical or mental health reports used as 
a basis for the determination under paragraph (f) of this section that 
the alien is specially dangerous.
    (4) Record. All proceedings before the immigration judge under this 
section shall be recorded. The Immigration Court shall create a record 
of proceeding that shall include all testimony and documents related to 
the proceedings.
    (h) Reasonable cause hearing. The immigration judge shall hold a 
preliminary hearing to determine whether the evidence supporting the 
Service's determination is sufficient to establish reasonable cause to 
go forward with a merits hearing under paragraph (i) of this section. A 
finding of reasonable cause under this section will be sufficient to 
warrant the alien's continued detention pending the completion of the 
review proceedings under this section.
    (1) Scheduling of hearing. The reasonable cause hearing shall be 
commenced not later than 10 business days after

[[Page 1074]]

the filing of the Form I-863. The Immigration Court shall provide prompt 
notice to the alien and to the Service of the time and place of the 
hearing. The hearing may be continued at the request of the alien or his 
or her representative.
    (2) Evidence. The Service must show that there is reasonable cause 
to conduct a merits hearing under a merits hearing under paragraph (i) 
of this section. The Service may offer any evidence that is material and 
relevant to the proceeding. Testimony of witnesses, if any, shall be 
under oath or affirmation. The alien may, but is not required to, offer 
evidence on his or her own behalf.
    (3) Decision. The immigration judge shall render a decision, which 
should be in summary form, within 5 business days after the close of the 
record, unless that time is extended by agreement of both parties, by a 
determination from the Chief Immigration Judge that exceptional 
circumstances make it impractical to render the decision on a highly 
expedited basis, or because of delay caused by the alien. If the 
immigration judge determines that the Service has met its burden of 
establishing reasonable cause, the immigration judge shall advise the 
alien and the Service, and shall schedule a merits hearing under 
paragraph (i) of this section to review the Service's determination that 
the alien is specially dangerous. If the immigration judge determines 
that the Service has not met its burden, the immigration judge shall 
order that the review proceedings under this section be dismissed. The 
order and any documents offered shall be included in the record of 
proceedings, and may be relied upon in a subsequent merits hearing.
    (4) Appeal. If the immigration judge dismisses the review 
proceedings, the Service may appeal to the Board of Immigration Appeals 
in accordance with Sec. 1003.38 of this chapter, except that the 
Service must file the Notice of Appeal (Form EOIR-26) with the Board 
within 2 business days after the immigration judge's order. The Notice 
of Appeal should state clearly and conspicuously that it is an appeal of 
a reasonable cause decision under this section.
    (i) If the Service reserves appeal of a dismissal of the reasonable 
cause hearing, the immigration judge's order shall be stayed until the 
expiration of the time to appeal. Upon the Service's filing of a timely 
Notice of Appeal, the immigration judge's order shall remain in abeyance 
pending a final decision of the appeal. The stay shall expire if the 
Service fails to file a timely Notice of Appeal.
    (ii) The Board will decide the Service's appeal, by single Board 
Member review, based on the record of proceedings before the immigration 
judge. The Board shall expedite its review as far as practicable, as the 
highest priority among the appeals filed by detained aliens, and shall 
determine the issue within 20 business days of the filing of the notice 
of appeal, unless that time is extended by agreement of both parties, by 
a determination from the Chairman of the Board that exceptional 
circumstances make it impractical to render the decision on a highly 
expedited basis, or because of delay caused by the alien.
    (iii) If the Board determines that the Service has met its burden of 
showing reasonable cause under this paragraph (h), the Board shall 
remand the case to the immigration judge for the scheduling of a merits 
hearing under paragraph (i) of this section. If the Board determines 
that the Service has not met its burden, the Board shall dismiss the 
review proceedings under this section.
    (i) Merits hearing. If there is reasonable cause to conduct a merits 
hearing under this section, the immigration judge shall promptly 
schedule the hearing and shall expedite the proceedings as far as 
practicable. The immigration judge shall allow adequate time for the 
parties to prepare for the merits hearing, but, if requested by the 
alien, the hearing shall commence within 30 days. The hearing may be 
continued at the request of the alien or his or her representative, or 
at the request of the Service upon a showing of exceptional 
circumstances by the Service.
    (1) Evidence. The Service shall have the burden of proving, by clear 
and convincing evidence, that the alien should remain in custody because 
the alien's release would pose a special

[[Page 1075]]

danger to the public, under the standards of paragraph (f)(1) of this 
section. The immigration judge may receive into evidence any oral or 
written statement that is material and relevant to this determination. 
Testimony of witnesses shall be under oath or affirmation. The alien 
may, but is not required to, offer evidence on his or her own behalf.
    (2) Factors for consideration. In making any determination in a 
merits hearing under this section, the immigration judge shall consider 
the following non-exclusive list of factors:
    (i) The alien's prior criminal history, particularly the nature and 
seriousness of any prior crimes involving violence or threats of 
violence;
    (ii) The alien's previous history of recidivism, if any, upon 
release from either Service or criminal custody;
    (iii) The substantiality of the Service's evidence regarding the 
alien's current mental condition or personality disorder;
    (iv) The likelihood that the alien will engage in acts of violence 
in the future; and
    (v) The nature and seriousness of the danger to the public posed by 
the alien's release.
    (3) Decision. After the closing of the record, the immigration judge 
shall render a decision as soon as practicable. The decision may be oral 
or written. The decision shall state whether or not the Service has met 
its burden of establishing that the alien should remain in custody 
because the alien's release would pose a special danger to the public, 
under the standards of paragraph (f)(1) of this section. The decision 
shall also include the reasons for the decision under each of the 
standards of paragraph (f)(1) of this section, although a formal 
enumeration of findings is not required. Notice of the decision shall be 
served in accordance with Sec. 1240.13(a) or (b).
    (i) If the immigration judge determines that the Service has met its 
burden, the immigration judge shall enter an order providing for the 
continued detention of the alien.
    (ii) If the immigration judge determines that the Service has failed 
to meet its burden, the immigration judge shall order that the review 
proceedings under this section be dismissed.
    (4) Appeal. Either party may appeal an adverse decision to the Board 
of Immigration Appeals in accordance with Sec. 3.38 of this chapter, 
except that, if the immigration judge orders dismissal of the 
proceedings, the Service shall have only 5 business days to file a 
Notice of Appeal with the Board. The Notice of Appeal should state 
clearly and conspicuously that this is an appeal of a merits decision 
under this section.
    (i) If the Service reserves appeal of a dismissal, the immigration 
judge's order shall be stayed until the expiration of the time to 
appeal. Upon the Service's filing of a timely Notice of Appeal, the 
immigration judge's order shall remain in abeyance pending a final 
decision of the appeal. The stay shall expire if the Service fails to 
file a timely Notice of Appeal.
    (ii) The Board shall conduct its review of the appeal as provided in 
8 CFR part 3, but shall expedite its review as far as practicable, as 
the highest priority among the appeals filed by detained aliens. The 
decision of the Board shall be final as provided in Sec. 1003.1(d)(3) 
of this chapter.
    (j) Release of alien upon dismissal of proceedings. If there is an 
administratively final decision by the immigration judge or the Board 
dismissing the review proceedings under this section upon conclusion of 
the reasonable cause hearing or the merits hearing, the Service shall 
promptly release the alien on conditions of supervision, as determined 
by the Service, pursuant to Sec. 1241.13. The conditions of supervision 
shall not be subject to review by the immigration judge or the Board.
    (k) Subsequent review for aliens whose release would pose a special 
danger to the public--(1) Periodic review. In any case where the 
immigration judge or the Board has entered an order providing for the 
alien to remain in custody after a merits hearing pursuant to paragraph 
(i) of this section, the Service shall continue to provide an ongoing, 
periodic review of the alien's continued detention, according to Sec. 
1241.4 and paragraphs (f)(1)(ii) and (f)(1)(iii) of this section.
    (2) Alien's request for review. The alien may also request a review 
of his or her

[[Page 1076]]

custody status because of changed circumstances, as provided in this 
paragraph (k). The request shall be in writing and directed to the 
HQPDU.
    (3) Time for review. An alien may only request a review of his or 
her custody status under this paragraph (k) no earlier than six months 
after the last decision of the immigration judge under this section or, 
if the decision was appealed, the decision of the Board.
    (4) Showing of changed circumstances. The alien shall bear the 
initial burden to establish a material change in circumstances such that 
the release of the alien would no longer pose a special danger to the 
public under the standards of paragraph (f)(1) of this section.
    (5) Review by the Service. If the Service determines, upon 
consideration of the evidence submitted by the alien and other relevant 
evidence, that the alien is not likely to commit future acts of violence 
or that the Service will be able to impose adequate conditions of 
release so that the alien will not pose a special danger to the public, 
the Service shall release the alien from custody pursuant to the 
procedures in Sec. 1241.13. If the Service determines that continued 
detention is needed in order to protect the public, the Service shall 
provide a written notice to the alien stating the basis for the 
Service's determination, and provide a copy of the evidence relied upon 
by the Service. The notice shall also advise the alien of the right to 
move to set aside the prior review proceedings under this section.
    (6) Motion to set aside determination in prior review proceedings. 
If the Service denies the alien's request for release from custody, the 
alien may file a motion with the Immigration Court that had jurisdiction 
over the merits hearing to set aside the determination in the prior 
review proceedings under this section. The immigration judge shall 
consider any evidence submitted by the alien or relied upon by the 
Service and shall provide an opportunity for the Service to respond to 
the motion.
    (i) If the immigration judge determines that the alien has provided 
good reason to believe that, because of a material change in 
circumstances, releasing the alien would no longer pose a special danger 
to the public under the standards of paragraph (f)(1) of this section, 
the immigration judge shall set aside the determination in the prior 
review proceedings under this section and schedule a new merits hearing 
as provided in paragraph (i) of this section.
    (ii) Unless the immigration judge determines that the alien has 
satisfied the requirements under paragraph (k)(6)(i) of this section, 
the immigration judge shall deny the motion. Neither the immigration 
judge nor the Board may sua sponte set aside a determination in prior 
review proceedings. Notwithstanding 8 CFR 1003.23 or 1003.2 (motions to 
reopen), the provisions set forth in this paragraph (k) shall be the 
only vehicle for seeking review based on material changed circumstances.
    (iii) The alien may appeal an adverse decision to the Board in 
accordance with Sec. 1003.38 of this chapter. The Notice of Appeal 
should state clearly and conspicuously that this is an appeal of a 
denial of a motion to set aside a prior determination in review 
proceedings under this section.

[66 FR 56979, Nov. 14, 2001, as amended at 70 FR 674, Jan. 5, 2005]



Sec. 1241.15  Lack of jurisdiction to review other country of removal.

    The immigration judges and the Board of Immigration Appeals have no 
jurisdiction to review any determination by officers of the Department 
of Homeland Security under 8 CFR 241.15.

[70 FR 675, Jan. 5, 2005]



Sec. Sec. 1241.16-1241.19  [Reserved]



 Subpart B_Deportation of Excluded Aliens (for Hearings Commenced Prior 

                            to April 1, 1997)



Sec. 1241.20  Aliens ordered excluded.

    For the regulations of the Department of Homeland Security 
pertaining to the detention and deportation of excluded aliens, see 8 
CFR 241.20 through 241.25.

[70 FR 675, Jan. 5, 2005]

[[Page 1077]]



Sec. Sec. 1241.21-1241.29  [Reserved]



   Subpart C_Deportation of Aliens in the United States (for Hearings 

                    Commenced Prior to April 1, 1997)



Sec. 1241.30  Aliens ordered deported.

    For the regulations of the Department of Homeland Security 
pertaining to the detention and deportation of aliens ordered deported, 
see 8 CFR 241.30 through 241.33.

[70 FR 675, Jan. 5, 2005]



Sec. 1241.31  Final order of deportation.

    Except as otherwise required by section 242(c) of the Act for the 
specific purposes of that section, an order of deportation, including an 
alternate order of deportation coupled with an order of voluntary 
departure, made by the immigration judge in proceedings under 8 CFR part 
1240 shall become final upon dismissal of an appeal by the Board of 
Immigration Appeals, upon waiver of appeal, or upon expiration of the 
time allotted for an appeal when no appeal is taken; or, if such an 
order is issued by the Board or approved by the Board upon 
certification, it shall be final as of the date of the Board's decision.



Sec. 1241.32  Warrant of deportation.

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



Sec. 1241.33  Expulsion.

    (a) Execution of order. Except in the exercise of discretion by the 
district director, and for such reasons as are set forth in Sec. 
1212.5(b) of this chapter, once an order of deportation becomes final, 
an alien shall be taken into custody and the order shall be executed. 
For the purposes of this part, an order of deportation is final and 
subject to execution upon the date when any of the following occurs:
    (1) A grant of voluntary departure expires;
    (2) An immigration judge enters an order of deportation without 
granting voluntary departure or other relief, and the alien respondent 
waives his or her right to appeal;
    (3) The Board of Immigration Appeals enters an order of deportation 
on appeal, without granting voluntary departure or other relief; or
    (4) A Federal district or appellate court affirms an administrative 
order of deportation in a petition for review or habeas corpus action.
    (b) Service of decision. In the case of an order entered by any of 
the authorities enumerated above, the order shall be executed no sooner 
than 72 hours after service of the decision, regardless of whether the 
alien is in Service custody, provided that such period may be waived on 
the knowing and voluntary request of the alien. Nothing in this 
paragraph shall be construed, however, to preclude assumption of custody 
by the Service at the time of issuance of the final order.

[62 FR 10378, Mar. 6, 1997, as amended at 65 FR 82256, Dec. 28, 2000]



PART 1244_TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED STATES--Table 

of Contents




Sec.
1244.1 Definitions.
1244.2 Eligibility.
1244.3 Applicability of grounds of inadmissibility.
1244.4 Ineligible aliens.
1244.5 Temporary treatment benefits for eligible aliens.
1244.6 Application.
1244.7 Filing the application.
1244.8 Appearance.
1244.9 Evidence.
1244.10 Decision by the director or Administrative Appeals Unit (AAU).
1244.11 Renewal of application; appeal to the Board of Immigration 
          Appeals.
1244.12 Employment authorization.
1244.13 Termination of temporary treatment benefits.
1244.14 Withdrawal of Temporary Protected Status.
1244.15 Travel abroad.
1244.16 Confidentiality.
1244.17 Annual registration.

[[Page 1078]]

1244.18 Issuance of charging documents; detention.
1244.19 Termination of designation.
1244.20 Waiver of fees.

    Authority: 8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2.

    Source: Duplicated from part 244 at 68 FR 9841, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1244 appear at 68 FR 
9846, Feb. 28, 2003, and 68 FR 10357, Mar. 5, 2003.



Sec. 1244.1  Definitions.

    As used in this part:
    Brief, casual, and innocent absence means a departure from the 
United States that satisfies the following criteria:
    (1) Each such absence was of short duration and reasonably 
calculated to accomplish the purpose(s) for the absence;
    (2) The absence was not the result of an order of deportation, an 
order of voluntary departure, or an administrative grant of voluntary 
departure without the institution of deportation proceedings; and
    (3) The purposes for the absence from the United States or actions 
while outside of the United States were not contrary to law.
    Charging document means the written instrument which initiates a 
proceeding before an Immigration Judge. For proceedings initiated prior 
to April 1, 1997, these documents include an Order to Show Cause, a 
Notice to Applicant for Admission Detained for Hearing before 
Immigration Judge, and a Notice of Intention to Rescind and Request for 
Hearing by Alien. For proceedings initiated after April 1, 1997, these 
documents include a Notice to Appear, a Notice of Referral to 
Immigration Judge, and a Notice of Intention to Rescind and Request for 
Hearing by Alien.
    Continuously physically present means actual physical presence in 
the United States for the entire period specified in the regulations. An 
alien shall not be considered to have failed to maintain continuous 
physical presence in the United States by virtue of brief, casual, and 
innocent absences as defined within this section.
    Continuously resided means residing in the United States for the 
entire period specified in the regulations. An alien shall not be 
considered to have failed to maintain continuous residence in the United 
States by reason of a brief, casual and innocent absence as defined 
within this section or due merely to a brief temporary trip abroad 
required by emergency or extenuating circumstances outside the control 
of the alien.
    Felony means a crime committed in the United States, punishable by 
imprisonment for a term of more than one year, regardless of the term 
such alien actually served, if any, except: When the offense is defined 
by the State as a misdemeanor and the sentence actually imposed is one 
year or less regardless of the term such alien actually served. Under 
this exception for purposes of section 244 of the Act, the crime shall 
be treated as a misdemeanor.
    Foreign state means any foreign country or part thereof as 
designated by the Attorney General pursuant to section 244 of the Act.
    Misdemeanor means a crime committed in the United States, either:
    (1) Punishable by imprisonment for a term of one year or less, 
regardless of the term such alien actually served, if any, or
    (2) A crime treated as a misdemeanor under the term ``felony'' of 
this section.
    For purposes of this definition, any crime punishable by 
imprisonment for a maximum term of five days or less shall not be 
considered a felony or misdemeanor.
    Prima facie means eligibility established with the filing of a 
completed application for Temporary Protected Status containing factual 
information that if unrebutted will establish a claim of eligibility 
under section 244 of the Act.
    Register means to properly file, with the director, a completed 
application, with proper fee, for Temporary Protected Status during the 
registration period designated under section 244(b) of the Act.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991. 
Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 
63595, Nov. 16, 1998; 64 FR 4781, Feb. 1, 1999]

[[Page 1079]]



Sec. 1244.2  Eligibility.

    Except as provided in Sec. Sec. 1244.3 and 1244.4, an alien may in 
the discretion of the director be granted Temporary Protected Status if 
the alien establishes that he or she:
    (a) Is a national, as defined in section 101(a)(21) of the Act, of a 
foreign state designated under section 244(b) of the Act;
    (b) Has been continuously physically present in the United States 
since the effective date of the most recent designation of that foreign 
state;
    (c) Has continuously resided in the United States since such date as 
the Attorney General may designate;
    (d) Is admissible as an immigrant except as provided under Sec. 
1244.3;
    (e) Is not ineligible under Sec. 1244.4; and
    (f)(1) Registers for Temporary Protected Status during the initial 
registration period announced by public notice in the Federal Register, 
or
    (2) During any subsequent extension of such designation if at the 
time of the initial registration period:
    (i) The applicant is a nonimmigrant or has been granted voluntary 
departure status or any relief from removal;
    (ii) The applicant has an application for change of status, 
adjustment of status, asylum, voluntary departure, or any relief from 
removal which is pending or subject to further review or appeal;
    (iii) The applicant is a parolee or has a pending request for 
reparole; or
    (iv) The applicant is a spouse or child of an alien currently 
eligible to be a TPS registrant.
    (3) Eligibility for late initial registration in a currently 
designated foreign state shall also continue until January 15, 1999, for 
any applicant who would have been eligible to apply previously if 
paragraph (f)(2) of this section as revised had been in effect before 
November 16, 1998.
    (g) Has filed an application for late registration with the 
appropriate Service director within a 60-day period immediately 
following the expiration or termination of conditions described in 
paragraph (f)(2) of this section.

[63 FR 63595, Nov. 16, 1998]



Sec. 1244.3  Applicability of grounds of inadmissibility.

    (a) Grounds of inadmissibility not to be applied. Paragraphs (4), 
(5) (A) and (B), and (7)(A)(i) of section 212(a) of the Act shall not 
render an alien ineligible for Temporary Protected Status.
    (b) Waiver of grounds of inadmissibility. Except as provided in 
paragraph (c) of this section, the Service may waive any other provision 
of section 212(a) of the Act in the case of individual aliens for 
humanitarian purposes, to assure family unity, or when the granting of 
such a waiver is in the public interest. If an alien is inadmissible on 
grounds which may be waived as set forth in this paragraph, he or she 
shall be advised of the procedures for applying for a waiver of grounds 
of inadmissibility on Form I-601 (Application for waiver of grounds of 
excludability).
    (c) Grounds of inadmissibility that may not be waived. The Service 
may not waive the following provisions of section 212(a) of the Act:
    (1) Paragraphs (2)(A)(i), (2)(B), and (2)(C) (relating to criminals 
and drug offenses);
    (2) Paragraphs (3)(A), (3)(B), (3)(C), and (3)(D) (relating to 
national security); or
    (3) Paragraph (3)(E) (relating to those who assisted in the Nazi 
persecution).

[56 FR 619, Jan. 7, 1991, as amended at 58 FR 58937, Nov. 5, 1993. 
Redesignated at 62 FR 10367, 10382, Mar. 6, 1997]



Sec. 1244.4  Ineligible aliens.

    An alien is ineligible for Temporary Protected Status if the alien:
    (a) Has been convicted of any felony or two or more misdemeanors, as 
defined in Sec. 1244.1, committed in the United States, or
    (b) Is an alien described in section 243(h)(2) of the Act.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991. 
Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 
63596, Nov. 16, 1998]



Sec. 1244.5  Temporary treatment benefits for eligible aliens.

    (a) Prior to the registration period. Prior to the registration 
period established by the Attorney General, a national of a foreign 
state designated by the Attorney General shall be afforded

[[Page 1080]]

temporary treatment benefits upon the filing, after the effective date 
of such designation, of a completed application for Temporary Protected 
Status which establishes the alien's prima facie eligibility for 
benefits under section 244 of the Act. This application may be filed 
without fee. Temporary treatment benefits, if granted, shall terminate 
unless the registration fee is paid or a waiver is sought within the 
first thirty days of the registration period designated by the Attorney 
General. If the registration fee is paid or a waiver is sought within 
such thirty day period, temporary treatment benefits shall continue 
until terminated under Sec. 1244.13. The denial of temporary treatment 
benefits prior to the registration period designated by the Attorney 
General shall be without prejudice to the filing of an application for 
Temporary Protected Status during such registration period.
    (b) During the registration period. Upon the filing of an 
application for Temporary Protected Status, the alien shall be afforded 
temporary treatment benefits, if the application establishes the alien's 
prima facie eligibility for Temporary Protected Status. Such temporary 
treatment benefits shall continue until terminated under Sec. 1244.13.
    (c) Denied benefits. There shall be no appeal from the denial of 
temporary treatment benefits.

[56 FR 619, May 22, 1991, as amended at 56 FR 23497, May 22, 1991. 
Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 
63596, Nov. 16, 1998]



Sec. 1244.6  Application.

    An application for Temporary Protected Status must be made in 
accordance with Sec. 103.2 of this chapter except as provided in this 
section. Each application must be filed with the fee, as provided in 
Sec. 103.7 of this chapter by each individual seeking temporary 
protected status, except that the filing fee for the Form I-765 will be 
charged only for those applicants between the ages of 14 and 65 
(inclusive) who are requesting employment authorization. Each 
application must include a completed Form I-821, Application for 
Temporary Protected Status, Form I-765, Application for Employment 
Authorization, two identification photographs (1\1/2\x1\1/
2\), and supporting evidence as provided in Sec. 1244.9. 
Every applicant who is 14 years of age or older must be fingerprinted on 
Form FD-258, Applicant Card, as prescribed in Sec. 103.2(e) of this 
chapter.

[64 FR 4781, Feb. 1, 1999]



Sec. 1244.7  Filing the application.

    (a) An application for Temporary Protected Status shall be filed 
with the director having jurisdiction over the applicant's place of 
residence.
    (b) An application for Temporary Protected Status must be filed 
during the registration period established by the Attorney General, 
except in the case of an alien described in Sec. 1244.2(f)(2).
    (c) Each applicant must pay a fee, as determined at the time of the 
designation of the foreign state, except as provided in Sec. 1244.5(a).
    (d) If the alien has a pending deportation or exclusion proceeding 
before the immigration judge or Board of Immigration Appeals at the time 
a foreign state is designated under section 244(b) of the Act, the alien 
shall be given written notice concerning Temporary Protected Status. 
Such alien shall have the opportunity to submit an application for 
Temporary Protected Status to the director under paragraph (a) of this 
section during the published registration period unless the basis of the 
charging document, if established, would render the alien ineligible for 
Temporary Protected Status under Sec. 1244.3(c) or Sec. 1244.4. 
Eligibility for Temporary Protected Status in the latter instance shall 
be decided by the Executive Office for Immigration Review during such 
proceedings.

[63 FR 63596, Nov. 16, 1998]



Sec. 1244.8  Appearance.

    The applicant may be required to appear in person before an 
immigration officer. The applicant may be required to present 
documentary evidence to establish his or her eligibility. The applicant 
may have a representative as defined in Sec. 1292.1 of this chapter 
present during any examination. Such representative shall not directly 
participate in the examination; however, such

[[Page 1081]]

representative may consult with and provide advice to the applicant. The 
record of examination shall consist of the application, documents 
relating to the application, and the decision of the director.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991. 
Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 
63596, Nov. 16, 1998]



Sec. 1244.9  Evidence.

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

[[Page 1082]]

    (B) Passport entries;
    (C) Birth certificates of children born in the United States;
    (D) Bank books with dated transactions;
    (E) Correspondence between the applicant and other persons or 
organizations;
    (F) Social Security card;
    (G) Selective Service card;
    (H) Automobile license receipts, title, vehicle registration, etc;
    (I) Deeds, mortgages, contracts to which applicant has been a party;
    (J) Tax receipts;
    (K) Insurance policies, receipts, or letters; and/or
    (L) Any other relevant document.
    (3) Evidence of eligibility under section 244(c)(2) of the Act. An 
applicant has the burden of showing that he or she is eligible for 
benefits under this part.
    (4) Evidence of valid immigrant or nonimmigrant status. In the case 
of an alien described in Sec. 1244.2(f)(2), Form I-551 or Form I-94 
must be submitted by the applicant.
    (b) Sufficiency of evidence. The sufficiency of all evidence will be 
judged according to its relevancy, consistency, credibility, and 
probative value. To meet his or her burden of proof the applicant must 
provide supporting documentary evidence of eligibility apart from his or 
her own statements.
    (c) Failure to timely respond. Failure to timely respond to a 
request for information, or to appear for a scheduled interview, without 
good cause, will be deemed an abandonment of the application and will 
result in a denial of the application for lack of prosecution. Such 
failure shall be excused if the request for information, or the notice 
of the interview was not mailed to the applicant's most recent address 
provided to the Service.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991; 58 FR 
58937, Nov. 5, 1993. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, 
as amended at 63 FR 63596, Nov. 16. 1998]



Sec. 1244.10  Decision by the director or Administrative Appeals Unit (AAU).

    (a) Temporary treatment benefits. The director shall grant temporary 
treatment benefits to the applicant if the applicant establishes prima 
facie eligibility for Temporary Protected Status in accordance with 
Sec. 1244.5.
    (b) Temporary Protected Status. Upon review of the evidence 
presented, the director may approve or deny the application for 
Temporary Protected Status in the exercise of discretion, consistent 
with the standards for eligibility in Sec. Sec. 1244.2, 1244.3, and 
1244.4.
    (c) Denial by director. The decision of the director to deny 
Temporary Protected Status, a waiver of grounds of inadmissibility, or 
temporary treatment benefits shall be in writing served in person or by 
mail to the alien's most recent address provided to the Service and 
shall state the reason(s) for the denial. Except as otherwise provided 
in this section, the alien shall be given written notice of his or her 
right to appeal a decision denying Temporary Protected Status. To 
exercise such right, the alien shall file a notice of appeal, Form I-
290B, with the director who issued the denial. If an appeal is filed, 
the administrative record shall be forwarded to the AAU for review and 
decision, pursuant to authority delegated in Sec. 103.1(f)(2), except 
as otherwise provided in this section.
    (1) If the basis for the denial of the Temporary Protected Status 
constitutes a ground for deportability or excludability which renders 
the alien ineligible for Temporary Protected Status under Sec. 1244.4 
or inadmissible under Sec. 1244.3(c), the decision shall include a 
charging document which sets forth such ground(s).
    (2) If such a charging document is issued, the alien shall not have 
the right to appeal the director's decision denying Temporary Protected 
Status as provided in this subsection. The decision shall also apprise 
the alien of his or her right to a de novo determination of his or her 
eligibility for Temporary Protected Status in deportation or exclusion 
proceedings pursuant to Sec. Sec. 1240.11 and 1244.18.
    (d) Decision by AAU. The decision of the AAU shall be in writing 
served in person, or by mail to the alien's most recent address provided 
to the Service, and, if the appeal is dismissed, the decision shall 
state the reason(s) for the denial.
    (1) If the appeal is dismissed by the AAU under Sec. 1240.18(b), 
the decision

[[Page 1083]]

shall also apprise the alien of his or her right to a de novo 
determination of eligibility for Temporary Protected Status in 
deportation or exclusion proceedings.
    (2) If the appeal is dismissed by the AAU, the director may issue a 
charging document if no charging document is presently filed with the 
Immigration Court.
    (3) If a charging document has previously been filed or is pending 
before the Immigration Court, either party may move to recalendar the 
case after the decision by the AAU.
    (e) Grant of temporary treatment benefits. (1) Temporary treatment 
benefits shall be evidenced by the issuance of an employment 
authorization document. The alien shall be given, in English and in the 
language of the designated foreign state or a language that the alien 
understands, a notice of the registration requirements for Temporary 
Protected Status and a notice of the following benefits:
    (i) Temporary stay of deportation; and
    (ii) Temporary employment authorization.
    (2) Unless terminated under Sec. 1244.13, temporary treatment 
benefits shall remain in effect until a final decision has been made on 
the application for Temporary Protected Status.
    (f) Grant of temporary protected status. (1) The decision to grant 
Temporary Protected Status shall be evidenced by the issuance of an 
alien registration document. For those aliens requesting employment 
authorization, the employment authorization document will act as alien 
registration.
    (2) The alien shall be provided with a notice, in English and in the 
language of the designated foreign state or a language that the alien 
understands, of the following benefits:
    (i) The alien shall not be deported while maintaining Temporary 
Protected Status;
    (ii) Employment authorization;
    (iii) The privilege to travel abroad with the prior consent of the 
director as provided in Sec. 1244.15;
    (iv) For the purposes of adjustment of status under section 245 of 
the Act and change of status under section 248 of the Act, the alien is 
considered as being in, and maintaining, lawful status as a nonimmigrant 
while the alien maintains Temporary Protected Status.
    (v) An alien eligible to apply for Temporary Protected Status under 
Sec. 1244.2(f)(2), who was prevented from filing a late application for 
registration because the regulations failed to provide him or her with 
this opportunity, will be considered to have been maintaining lawful 
status as a nonimmigrant until the benefit is granted.
    (3) The benefits contained in the notice are the only benefits the 
alien is entitled to under Temporary Protected Status.
    (4) Such notice shall also advise the alien of the following:
    (i) The alien must remain eligible for Temporary Protected Status;
    (ii) The alien must register annually with the district office or 
service center having jurisdiction over the alien's place of residence; 
and
    (iii) The alien's failure to comply with paragraphs (f)(4) (i) or 
(ii) of this section will result in the withdrawal of Temporary 
Protected Status, including work authorization granted under this 
Program, and may result in the alien's deportation from the United 
States.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991; 58 FR 
58937, Nov. 5, 1993; 60 FR 34090, June 30, 1995. Redesignated at 62 FR 
10367, 10382, Mar. 6, 1997, as amended at 63 FR 63596, Nov. 16, 1998; 64 
FR 4782, Feb. 1, 1999]



Sec. 1244.11  Renewal of application; appeal to the Board of Immigration 

Appeals.

    If a charging document is served on the alien with a notice of 
denial or withdrawal of Temporary Protected Status, an alien may renew 
the application for Temporary Protected Status in deportation or 
exclusion proceedings. The decision of the immigration judge as to 
eligibility for Temporary Protected Status may be appealed to the Board 
of Immigration Appeals pursuant to Sec. 1003.3 of this chapter. The 
provisions of this section do not extend the benefits of Temporary

[[Page 1084]]

Protected Status beyond the termination of a foreign state's designation 
pursuant to Sec. 1244.19.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991. 
Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 
63596, Nov. 16, 1998]



Sec. 1244.12  Employment authorization.

    (a) Upon approval of an application for Temporary Protected Status, 
the INS shall grant an employment authorization document valid during 
the initial period of the foreign state's designation (and any 
extensions of such period).
    (b) If the alien's Temporary Protected Status is withdrawn under 
Sec. 1244.14, employment authorization expires upon notice of 
withdrawal or on the date stated on the employment authorization 
document, whichever occurs later.
    (c) If Temporary Protected Status is denied by the INS, employment 
authorization shall terminate upon notice of denial or at the expiration 
of the employment authorization document, whichever occurs later.
    (d) If the application is renewed or appealed in deportation or 
exclusion proceedings, or appealed to the Administrative Appeals Unit 
pursuant to Sec. 1244.18(b), employment authorization will be extended 
during the pendency of the renewal and/or appeal.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991; 60 FR 
21975, May 4, 1995. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as 
amended at 63 FR 63596, Nov. 16, 1998; 64 FR 4782, Feb. 1, 1999]



Sec. 1244.13  Termination of temporary treatment benefits.

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

[56 FR 619, Jan. 7, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 
1997, as amended at 63 FR 63596, Nov. 16, 1998]



Sec. 1244.14  Withdrawal of Temporary Protected Status.

    (a) Authority of director. The director may withdraw the status of 
an alien granted Temporary Protected Status under section 244 of the Act 
at any time upon the occurrence of any of the following:
    (1) The alien was not in fact eligible at the time such status was 
granted, or at any time thereafter becomes ineligible for such status;
    (2) The alien has not remained continuously physically present in 
the United States from the date the alien was first granted Temporary 
Protected Status under this part. For the purpose of this provision, an 
alien granted Temporary Protected Status under this part shall be deemed 
not to have failed to maintain continuous physical presence in the 
United States if the alien departs the United States after first 
obtaining permission from the district director to travel pursuant to 
Sec. 1244.15;
    (3) The alien fails without good cause to register with the Attorney 
General annually within thirty (30) days before the end of each 12-month 
period after the granting of Temporary Protected Status.
    (b) Decision by director. (1) Withdrawal of an alien's status under 
paragraph (a) of this section shall be in writing and served by personal 
service pursuant to Sec. 103.5(a) of this chapter. If the ground for 
withdrawal is Sec. 240.14(a)(3), the notice shall provide that the 
alien has thirty (30) days within which to provide evidence of good 
cause for failure to register. If the alien fails to respond within 
thirty (30) days, Temporary Protected Status shall be withdrawn without 
further notice.
    (2) Withdrawal of the alien's Temporary Protected Status under 
paragraph (b)(1) of this section may subject the applicant to exclusion 
or deportation proceedings under sections 235, 236, 237, 238, 240, or 
241 of the Act as appropriate.
    (3) If the basis for the withdrawal of Temporary Protected Status 
constitutes a ground of deportability or excludability which renders an 
alien ineligible for Temporary Protected Status under Sec. 1244.4 or 
inadmissible under Sec. 1244.3(c), the decision shall include a 
charging document which sets

[[Page 1085]]

forth such ground(s) with notice of the right of a de novo determination 
of eligibility for Temporary Protected Status in deportation or 
exclusion proceedings. If the basis for withdrawal does not constitute 
such a ground, the alien shall be given written notice of his or her 
right to appeal to the AAU. Upon receipt of an appeal, the 
administrative record will be forwarded to the AAU for review and 
decision pursuant to the authority delegated under Sec. 103.1(f)(2). 
Temporary Protected Status benefits will be extended during the pendency 
of an appeal.
    (c) Decision by AAU. If a decision to withdraw Temporary Protected 
Status is entered by the AAU, the AAU shall notify the alien of the 
decision and the right to a de novo determination of eligibility for 
Temporary Protected Status in deportation or exclusion proceedings, if 
the alien is then deportable or excludable, as provided by Sec. 
1244.10(d).

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991. 
Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 
63596, 63597, Nov. 16, 1998]



Sec. 1244.15  Travel abroad.

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

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991. 
Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as amended at 63 FR 
63597, Nov. 16, 1998; 64 FR 4782, Feb. 1, 1999]



Sec. 1244.16  Confidentiality.

    The information contained in the application and supporting 
documents submitted by an alien shall not be released in any form 
whatsoever to a third party requester without a court order, or the 
written consent of the alien. For the purpose of this provision, a third 
party requester means any requester other than the alien, his or her 
authorized representative, an officer of the Department of Justice, or 
any federal or State law enforcement agency. Any information provided 
under this part may be used for purposes of enforcement of the Act or in 
any criminal proceeding.

[56 FR 619, Jan. 7, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 
1997]



Sec. 1244.17  Annual registration.

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

[[Page 1086]]

person as part of the registration process. In such cases, failure to 
appear without good cause shall be deemed a failure to register under 
this chapter.
    (c) Failure to register without good cause will result in the 
withdrawal of the alien's Temporary Protected Status.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991; 60 FR 
21975, May 4, 1995. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, as 
amended at 63 FR 63597, Nov. 16, 1998]



Sec. 1244.18  Issuance of charging documents; detention.

    (a) A charging document may be issued against an alien granted 
Temporary Protected Status on grounds of deportability or excludability 
which would have rendered the alien statutorily ineligible for such 
status pursuant to Sec. Sec. 1244.3(c) and 244.4. Aliens shall not be 
deported for a particular offense for which the Service has expressly 
granted a waiver. If the alien is deportable on a waivable ground, and 
no such waiver for the charged offense has been previously granted, then 
the alien may seek such a waiver in deportation or exclusion 
proceedings. The charging document shall constitute notice to the alien 
that his or her status in the United States is subject to withdrawal. A 
final order of deportation or exclusion against an alien granted 
Temporary Protected Status shall constitute a withdrawal of such status.
    (b) The filing of the charging document by the Service with the 
Immigration Court renders inapplicable any other administrative, 
adjudication or review of eligibility for Temporary Protected Status. 
The alien shall have the right to a de novo determination of his or her 
eligibility for Temporary Protected Status in the deportation or 
exclusion proceedings. Review by the Board of Immigration Appeals shall 
be the exclusive administrative appellate review procedure. If an appeal 
is already pending before the Administrative Appeals Unit, the director 
shall notify the Administrative Appeals Unit of the filing of the 
charging document, in which case the pending appeal shall be dismissed 
and the record of proceeding returned to the jurisdiction where the 
charging document was filed.
    (c) Upon denial of Temporary Protected Status by the Administrative 
Appeals Unit, the Administrative Appeals Unit shall immediately forward 
the record of proceeding to the director having jurisdiction over the 
alien's place of residence. The director shall, as soon as practicable, 
file a charging document with the Immigration Court if the alien is then 
deportable or excludable under section 241(a) or section 212(a) of the 
Act, respectively.
    (d) An alien who is determined by the Service to be deportable or 
excludable upon grounds which would have rendered the alien ineligible 
for such status as provided in Sec. Sec. 1240.3(c) and 1240.4 may be 
detained under the provisions of this chapter pending deportation or 
exclusion proceedings. Such alien may be removed from the United States 
upon entry of a final order of deportation or exclusion.

[56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991; 60 FR 
34090, June 30, 1995. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997, 
as amended at 63 FR 63597, Nov. 16, 1998; 64 FR 4782, Feb. 1, 1999]



Sec. 1244.19  Termination of designation.

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

[56 FR 619, Jan. 7, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 
1997, as amended at 63 FR 63597, Nov. 16, 1998]



Sec. 1244.20  Waiver of fees.

    (a) Any of the fees prescribed in 8 CFR 103.7(b) which relate to 
applications to the district director or service center director for 
Temporary Protected Status may be waived if the applicant establishes 
that he or she is unable to pay the prescribed fee. The applicant will 
have established his or her inability to pay when the adjudicating 
officer concludes, on the basis of the

[[Page 1087]]

requisite affidavit and of any other information submitted, that it is 
more probable than not that:
    (1) The applicant's gross income from all sources for the three-
month period prior to the filing of the fee waiver request, including 
income received or earned by any dependent in the United States, was 
equaled or exceeded by essential expenditures for such three-month 
period; and
    (2) The applicant does not own, possess, or control assets 
sufficient to pay the fee without substantial hardship.
    (b) For purposes of this section, essential expenditures are limited 
to reasonable expenditures for rent, utilities, food, transportation to 
and from employment, and any essential extraordinary expenditures, such 
as essential medical expenses, or expenses for clothing, laundry, and 
child care, to the extent that the applicant can show that those 
expenditures made during the three-month period prior to the filing of 
the fee waiver request were reasonable and essential to his or her 
physical well-being or to earning a livelihood.
    (c) For purposes of this section, the TPS registration fee 
(including the fee for employment authorization, if applicable) shall be 
considered an essential expenditure. A fee waiver will be granted if the 
sum of the fees for TPS registration and employment authorization equals 
or exceeds income and assets that remain after deducting other essential 
expenditures.
    (d) If an adjudicating officer is satisfied that an applicant has 
established inability to pay, he or she shall not deny a fee waiver due 
to the cost of administering the TPS program.
    (e) For purposes of this section, the following documentation shall 
be required:
    (1) The applicant seeking a fee waiver must submit an affidavit, 
under penalty of perjury, setting forth information to establish that he 
or she satisfies the requirements of this section. The affidavit shall 
individually list:
    (i) The applicant's monthly gross income from each source for each 
of the three months prior to the filing of the fee waiver request;
    (ii) All assets owned, possessed, or controlled by the applicant or 
by his or her dependents;
    (iii) The applicant's essential monthly expenditures, itemized for 
each of the three months prior to the filing of the fee waiver request, 
including essential extraordinary expenditures; and
    (iv) The applicant's dependents in the United States, his or her 
relationship to those dependents, the dependents' ages, any income 
earned or received by those dependents, and the street address of each 
dependent's place of residence.
    (2) The applicant may also submit other documentation tending to 
substantiate his or her inability to pay.
    (f) If the adjudicating officer concludes based upon the totality of 
their circumstances that the information presented in the affidavit and 
in any other additional documentation is inaccurate or insufficient, the 
adjudicating officer may require that the applicant submit the following 
additional documents prior to the adjudication of a fee waiver:
    (1) The applicant's employment records, pay stubs, W-2 forms, 
letter(s) from employer(s), and proof of filing of a local, state, or 
federal income tax return. The same documents may also be required from 
the applicant's dependents in the United States.
    (2) The applicant's rent receipts, bills for essential utilities 
(for example, gas, electricity, telephone, water), food, medical 
expenses, and receipts for other essential expenditures.
    (3) Documentation to show all assets owned, possessed, or controlled 
by the applicant or by dependents of the applicant.
    (4) Evidence of the applicant's living arrangements in the United 
States (living with relative, living in his or her own house or 
apartment, etc.), and evidence of whether his or her spouse, children, 
or other dependents are residing in his or her household in the United 
States.
    (5) Evidence of the applicant's essential extraordinary expenditures 
or those of his or her dependents residing in the United States.

[[Page 1088]]

    (g) The adjudicating officer must consider the totality of the 
information submitted in each case before requiring additional 
information or rendering a final decision.
    (h) All documents submitted by the applicant or required by the 
adjudicating officer in support of a fee waiver request are subject to 
verification by the Service.
    (i) In requiring additional information, the adjudicating officer 
should consider that some applicants may have little or no documentation 
to substantiate their claims. An adjudicating officer may accept other 
evidence, such as an affidavit from a member of the community of good 
moral character, but only if the applicant provides an affidavit stating 
that more direct documentary evidence in unavailable.

[57 FR 34507, Aug. 5, 1992. Redesignated at 62 FR 10367, 10382, Mar. 6, 
1997]



PART 1245_ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT 

RESIDENCE--Table of Contents




Sec.
1245.1 Eligibility.
1245.2 Application.
1245.3 Adjustment of status under section 13 of the Act of September 11, 
          1957, as amended.
1245.4 Documentary requirements.
1245.5 Medical examination.
1245.6 Interview.
1245.7 Adjustment of status of certain Soviet and Indochinese parolees 
          under the Foreign Operations Appropriations Act for Fiscal 
          Year 1990 (Pub. L. 101-167).
1245.8 Adjustment of status as a special immigrant under section 
          101(a)(27)(K) of the Act.
1245.9 Adjustment of status of certain nationals of the People's 
          Republic of China under Public Law 102-404.
1245.10 Adjustment of status upon payment of additional sum under Public 
          Law 103-317.
1245.11 Adjustment of aliens in S nonimmigrant classification.
1245.12 What are the procedures for certain Polish and Hungarian 
          parolees who are adjusting status to that of permanent 
          resident under the Illegal Immigration Reform and Immigrant 
          Responsibility Act of 1996?
1245.13 Adjustment of status of certain nationals of Nicaragua and Cuba 
          under Public Law 105-100.
1245.14 Adjustment of status of certain health care workers.
1245.15 Adjustment of status of certain Haitian nationals under the 
          Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA).
1245.18 How can physicians (with approved Forms I-140) that are serving 
          in medically underserved areas or at a Veterans Affairs 
          facility adjust status?
1245.20 Adjustment of status of Syrian asylees under Public Law 106-378.
1245.21 Adjustment of status of certain nationals of Vietnam, Cambodia, 
          and Laos (section 586 of Public Law 106-429).
1245.22 Evidence to demonstrate an alien's physical presence in the 
          United States on a specific date.

    Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L. 105-
100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 2681; 8 
CFR part 2.

    Source: Duplicated from part 245 at 68 FR 9842, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1245 appear at 68 FR 
9846, Feb. 28, 2003, and 68 FR 10357, Mar. 5, 2003.



Sec. 1245.1  Eligibility.

    (a) General. Any alien who is physically present in the United 
States, except for an alien who is ineligible to apply for adjustment of 
status under paragraph (b) or (c) of this section, may apply for 
adjustment of status to that of a lawful permanent resident of the 
United States if the applicant is eligible to receive an immigrant visa 
and an immigrant visa is immediately available at the time of filing of 
the application. A special immigrant described under section 
101(a)(27)(J) of the Act shall be deemed, for the purpose of applying 
the adjustment to status provisions of section 245(a) of the Act, to 
have been paroled into the United States, regardless of the actual 
method of entry into the United States.
    (b) Restricted aliens. The following categories of aliens are 
ineligible to apply for adjustment of status to that of a lawful 
permanent resident alien under section 245 of the Act, unless the alien 
establishes eligibility under the provisions of section 245(i) of the 
Act and Sec. 1245.10, is not included in the categories of aliens 
prohibited from applying for adjustment of status listed in Sec. 
1245.1(c), is eligible to receive an immigrant visa, and has an 
immigrant visa immediately available at the time

[[Page 1089]]

of filing the application for adjustment of status:
    (1) Any alien who entered the United States in transit without a 
visa;
    (2) Any alien who, on arrival in the United States, was serving in 
any capacity on board a vessel or aircraft or was destined to join a 
vessel or aircraft in the United States to serve in any capacity 
thereon;
    (3) Any alien who was not admitted or paroled following inspection 
by an immigration officer;
    (4) Any alien who, on or after January 1, 1977, was employed in the 
United States without authorization prior to filing an application for 
adjustment of status. This restriction shall not apply to an alien who 
is:
    (i) An immediate relative as defined in section 201(b) of the Act;
    (ii) A special immigrant as defined in section 101(a)(27)(H) or (J) 
of the Act;
    (iii) Eligible for the benefits of Public Law 101-238 (the 
Immigration Nursing Relief Act of 1989) and files an application for 
adjustment of status on or before October 17, 1991; or
    (iv) Eligible for the benefits of Public Law 101-238 (the 
Immigration Nursing Relief Act of 1989), and has not entered into or 
continued in unauthorized employment on or after November 29, 1990.
    (5) Any alien who on or after November 6, 1986 is not in lawful 
immigration status on the date of filing his or her application for 
adjustment of status, except an applicant who is an immediate relative 
as defined in section 201(b) or a special immigrant as defined in 
section 101(a)(27) (H), (I), or (J).
    (6) Any alien who files an application for adjustment of status on 
or after November 6, 1986, who has failed (other than through no fault 
of his or her own or for technical reasons) to maintain continuously a 
lawful status since entry into the United States, except an applicant 
who is an immediate relative as defined in section 201(b) of the Act or 
a special immigrant as defined in section 101(a)(27) (H), (I), or (J) of 
the Act;
    (7) Any alien admitted as a visitor under the visa waiver provisions 
of Sec. 1212.1(e) of this chapter;
    (8) Any alien admitted as a Visa Waiver Pilot Program visitor under 
the provisions of section 217 of the Act and part 217 of 8 CFR chapter I 
other than an immediate relative as defined in section 201(b) of the 
Act;
    (9) Any alien who seeks adjustment of status pursuant to an 
employment-based immigrant visa petition under section 203(b) of the Act 
and who is not maintaining a lawful nonimmigrant status at the time he 
or she files an application for adjustment of status; and
    (10) Any alien who was ever employed in the United States without 
the authorization of the Service or who has otherwise at any time 
violated the terms of his or her admission to the United States as a 
nonimmigrant, except an alien who is an immediate relative as defined in 
section 201(b) of the Act or a special immigrant as defined in section 
101(a)(27)(H), (I), (J), or (K) of the Act. For purposes of this 
paragraph, an alien who meets the requirements of Sec. 1274a.12(c)(9) 
of this chapter shall not be deemed to have engaged in unauthorized 
employment during the pendency of his or her adjustment application.
    (c) Ineligible aliens. The following categories of aliens are 
ineligible to apply for adjustment of status to that of a lawful 
permanent resident alien under section 245 of the Act:
    (1) Any nonpreference alien who is seeking or engaging in gainful 
employment in the United States who is not the beneficiary of a valid 
individual or blanket labor certification issued by the Secretary of 
Labor or who is not exempt from certification requirements under Sec. 
1212.8(b) of this chapter;
    (2) Except for an alien who is applying for residence under the 
provisions of section 133 of the Immigration Act of 1990, any alien who 
has or had the status of an exchange visitor under section 101(a)(15)(J) 
of the Act and who is subject to the foreign residence requirement of 
section 212(e) of the Act, unless the alien has complied with the 
foreign residence requirement or has been granted a waiver of that 
requirement, under that section. An alien who has been granted a waiver 
under section 212(e)(iii) of the Act based on a request by a State 
Department of Health (or its equivalent) under Pub. L. 103-416 shall be 
ineligible to apply for adjustment of status under section 245 of the

[[Page 1090]]

Act if the terms and conditions specified in section 214(k) of the Act 
and Sec. 1212.7(c)(9) of this chapter have not been met;
    (3) Any alien who has nonimmigrant status under paragraph (15)(A), 
(15)(E), or (15)(G) of section 101(a) of the Act, or has an occupational 
status which would, if the alien were seeking admission to the United 
States, entitle the alien to nonimmigrant status under those paragraphs, 
unless the alien first executes and submits the written waiver required 
by section 247(b) of the Act and part 247 of 8 CFR chapter 1;
    (4) Any alien who claims immediate relative status under section 
201(b) or preference status under sections 203(a) or 203(b) of the Act, 
unless the applicant is the beneficiary of a valid unexpired visa 
petition filed in accordance with part 204 of 8 CFR chapter 1;
    (5) Any alien who is already an alien lawfully admitted to the 
United States for permanent residence on a conditional basis pursuant to 
section 216 or 216A of the Act, regardless of any other quota or non-
quota immigrant visa classification for which the alien may otherwise be 
eligible;
    (6) Any alien admitted to the United States as a nonimmigrant 
defined in section 101(a)(15)(K) of the Act, unless:
    (i) In the case of a K-1 fiance[eacute](e) under section 
101(a)(15)(K)(i) of the Act or the K-2 child of a fiance[eacute](e) 
under section 101(a)(15)(K)(iii) of the Act, the alien is applying for 
adjustment of status based upon the marriage of the K-1 
fiance[eacute](e) which was contracted within 90 days of entry with the 
United States citizen who filed a petition on behalf of the K-1 
fiance[eacute](e) pursuant to Sec. 214.2(k) of 8 CFR chapter 1;
    (ii) In the case of a K-3 spouse under section 101(a)(15)(K)(ii) of 
the Act or the K-4 child of a spouse under section 101(a)(15)(K)(iii) of 
the Act, the alien is applying for adjustment of status based upon the 
marriage of the K-3 spouse to the United States citizen who filed a 
petition on behalf of the K-3 spouse pursuant to Sec. 214.2(k) of 8 CFR 
chapter I;
    (7) A nonimmigrant classified pursuant to section 101(a)(15)(S) of 
the Act, unless the nonimmigrant is applying for adjustment of status 
pursuant to the request of a law enforcement authority, the provisions 
of section 101(a)(15)(S) of the Act, and 8 CFR 1245.11;
    (8) Any alien who seeks to adjust status based upon a marriage which 
occurred on or after November 10, 1986, and while the alien was in 
exclusion, deportation, or removal proceedings, or judicial proceedings 
relating thereto.
    (i) Commencement of proceedings. The period during which the alien 
is in deportation, exclusion, or removal proceedings or judicial 
proceedings relating thereto, commences:
    (A) With the issuance of the Form I-221, Order to Show Cause and 
Notice of Hearing prior to June 20, 1991;
    (B) With the filing of a Form I-221, Order to Show Cause and Notice 
of Hearing, issued on or after June 20, 1991, with the Immigration 
Court;
    (C) With the issuance of Form I-122, Notice to Applicant for 
Admission Detained for Hearing Before Immigration Judge, prior to April 
1, 1997,
    (D) With the filing of a Form I-862, Notice to Appear, with the 
Immigration Court, or
    (E) With the issuance and service of Form I-860, Notice and Order of 
Expedited Removal.
    (ii) Termination of proceedings. The period during which the alien 
is in exclusion, deportation, or removal proceedings, or judicial 
proceedings relating thereto, terminates:
    (A) When the alien departs from the United States while an order of 
exclusion, deportation, or removal is outstanding or before the 
expiration of the voluntary departure time granted in connection with an 
alternate order of deportation or removal;
    (B) When the alien is found not to be inadmissible or deportable 
from the United States;
    (C) When the Form I-122, I-221, I-860, or I-862 is canceled;
    (D) When proceedings are terminated by the immigration judge or the 
Board of Immigration Appeals; or
    (E) When a petition for review or an action for habeas corpus is 
granted by a Federal court on judicial review.
    (iii) Exemptions. This prohibition shall no longer apply if:
    (A) The alien is found not to be inadmissible or deportable from the 
United States;

[[Page 1091]]

    (B) Form I-122, I-221, I-860, or I-862, is canceled;
    (C) Proceedings are terminated by the immigration judge or the Board 
of Immigration Appeals;
    (D) A petition for review or an action for habeas corpus is granted 
by a Federal court on judicial review;
    (E) The alien has resided outside the United States for 2 or more 
years following the marriage; or
    (F) The alien establishes the marriage is bona fide by providing 
clear and convincing evidence that the marriage was entered into in good 
faith and in accordance with the laws of the place where the marriage 
took place, was not entered into for the purpose of procuring the 
alien's entry as an immigrant, and no fee or other consideration was 
given (other than to an attorney for assistance in preparation of a 
lawful petition) for the filing of a petition.
    (iv) Request for exemption. No application or fee is required to 
request the exemption under section 245(e) of the Act. The request must 
be made in writing and submitted with the Form I-485. Application for 
Permanent Residence. The request must state the basis for requesting 
consideration for the exemption and must be supported by documentary 
evidence establishing eligibility for the exemption.
    (v) Evidence to establish eligibility for the bona fide marriage 
exemption. Section 204(g) of the Act provides that certain visa 
petitions based upon marriages entered into during deportation, 
exclusion or related judicial proceedings may be approved only if the 
petitioner provides clear and convincing evidence that the marriage is 
bona fide. Evidence that a visa petition based upon the same marriage 
was approved under the bona fide marriage exemption to section 204(g) of 
the Act will be considered primary evidence of eligibility for the bona 
fide marriage exemption provided in this part. The applicant will not be 
required to submit additional evidence to qualify for the bona fide 
marriage exemption provided in this part, unless the district director 
determines that such additional evidence is needed. In cases where the 
district director notifies the applicant that additional evidence is 
required, the applicant must submit documentary evidence which clearly 
and convincingly establishes that the marriage was entered into in good 
faith and not entered into for the purpose of procuring the alien's 
entry as an immigrant. Such evidence may include:
    (A) Documentation showing joint ownership of property;
    (B) Lease showing joint tenancy of a common residence;
    (C) Documentation showing commingling of financial resources;
    (D) Birth certificates of children born to the applicant and his or 
her spouse;
    (E) Affidavits of third parties having knowledge of the bona fides 
of the marital relationship, or
    (F) Other documentation establishing that the marriage was not 
entered into in order to evade the immigration laws of the United 
States.
    (vi) Decision. An application for adjustment of status filed during 
the prohibited period shall be denied, unless the applicant establishes 
eligibility for an exemption from the general prohibition.
    (vii) Denials. The denial of an application for adjustment of status 
because the marriage took place during the prohibited period shall be 
without prejudice to the consideration of a new application or a motion 
to reopen a previously denied application, if deportation or exclusion 
proceedings are terminated while the alien is in the United States. The 
denial shall also be without prejudice to the consideration of a new 
application or motion to reopen the adjustment of status application, if 
the applicant presents clear and convincing evidence establishing 
eligibility for the bona fide marriage exemption contained in this part.
    (viii) Appeals. An application for adjustment of status to lawful 
permanent resident which is denied by the district director solely 
because the applicant failed to establish eligibility for the bona fide 
marriage exemption contained in this part may be appealed to the 
Associate Commissioner, Examinations, in accordance with 8 CFR part 103. 
The appeal to the Associate Commissioner, Examinations, shall be the 
single level of appellate review established by statute.

[[Page 1092]]

    (d) Definitions--(1) Lawful immigration status. For purposes of 
section 245(c)(2) of the Act, the term ``lawful immigration status'' 
will only describe the immigration status of an individual who is:
    (i) In lawful permanent resident status;
    (ii) An alien admitted to the United States in nonimmigrant status 
as defined in section 101(a)(15) of the Act, whose initial period of 
admission has not expired or whose nonimmigrant status has been extended 
in accordance with part 214 of 8 CFR chapter I;
    (iii) In refugee status under section 207 of the Act, such status 
not having been revoked;
    (iv) In asylee status under section 208 of the Act, such status not 
having been revoked;
    (v) In parole status which has not expired, been revoked or 
terminated; or
    (vi) Eligible for the benefits of Public Law 101-238 (the 
Immigration Nursing Relief Act of 1989) and files an application for 
adjustment of status on or before October 17, 1991.
    (2) No fault of the applicant or for technical reasons. The 
parenthetical phrase other than through no fault of his or her own or 
for technical reasons shall be limited to:
    (i) Inaction of another individual or organization designated by 
regulation to act on behalf of an individual and over whose actions the 
individual has no control, if the inaction is acknowledged by that 
individual or organization (as, for example, where a designated school 
official certified under Sec. 214.2(f) of 8 CFR chapter I or an 
exchange propram sponsor under Sec. 214.2(j) of 8 CFR chapter I did not 
provide required notification to the Service of continuation of status, 
or did not forward a request for continuation of status to the Service); 
or
    (ii) A technical violation resulting from inaction of the Service 
(as for example, where an applicant establishes that he or she properly 
filed a timely request to maintain status and the Service has not yet 
acted on that request). An individual whose refugee or asylum status has 
expired through passage of time, but whose status has not been revoked, 
will be considered to have gone out of status for a technical reason.
    (iii) A technical violation caused by the physical inability of the 
applicant to request an extension of nonimmigrant stay from the Service 
either in person or by mail (as, for example, an individual who is 
hospitalized with an illness at the time nonimmigrant stay expires). The 
explanation of such a technical violation shall be accompanied by a 
letter explaining the circumstances from the hospital or attending 
physician.
    (iv) A technical violation resulting from the Service's application 
of the maximum five/six year period of stay for certain H-1 nurses only 
if the applicant was subsequently reinstated to H-1 status in accordance 
with the terms of Public Law 101-656 (Immigration Amendments of 1988).
    (3) Effect of departure. The departure and subsequent reentry of an 
individual who was employed without authorization in the United States 
after January 1, 1977 does not erase the bar to adjustment of status in 
section 245(c)(2) of the Act. Similarly, the departure and subsequent 
reentry of an individual who has not maintained a lawful immigration 
status on any previous entry into the United States does not erase the 
bar to adjustment of status in section 245(c)(2) of the Act for any 
application filed on or after November 6, 1986.
    (e) Special categories--(1) Alien medical graduates. Any alien who 
is a medical graduate qualified for special immigrant classification 
under section 101(a)(27)(H) of the Act and is the beneficiary of an 
approved petition as required under section 204(a)(1)(E)(i) of the Act 
is eligible for adjustment of status. An accompanying spouse and 
children also may apply for adjustment of status under this section. 
Temporary absences from the United States for 30 days or less, during 
which the applicant was practicing or studying medicine, do not 
interrupt the continuous presence requirement. Temporary absences 
authorized under the Service's advance parole procedures will not be 
considered interruptive of continuous presence when the alien applies 
for adjustment of status.

[[Page 1093]]

    (2) Adjustment of certain nurses who were in H-1 nonimmigrant status 
on September 1, 1989 (Pub. L. 101-238)--(i) Eligibility. An alien is 
eligible to apply for adjustment of status without regard to the 
numerical limitations of sections 201 and 202 of the Act if:
    (A) The applicant was admitted to the United States in, or had been 
granted a change of status to, nonimmigrant status under section 
101(a)(15)(H)(i) of the Act on or before September 1, 1989, to perform 
services as a registered nurse (regardless of the date upon which the 
applicant's authorization to remain in the United States expired or will 
expire), and the applicant had not thereafter been granted a change to 
status to any other nonimmigrant classification prior to September 1, 
1989,
    (B) The applicant has been employed in the United States as a 
registered nurse for an aggregate of three years prior to the date of 
application for adjustment of status,
    (C) The applicant's continued employment as a registered nurse meets 
the standards established for certification described in section 
212(a)(5)(A)(i) of the Act,
    (D) The applicant is the beneficiary of:
    (1) A valid, unexpired visa petition filed prior to October 1, 1991, 
which has been approved to grant the applicant preference status under 
section 202(a) (3) or (6) of the Act (as in effect prior to October 1, 
1991), and is deemed by operation of the automatic conversion provisions 
of section 4 of Public Law 102-110 (the Armed Forces Immigration 
Adjustment Act of 1991), to be effective to grant the applicant 
preference status under section 203(b) (2) or (3) of the Act (as in 
effect on and after October 1, 1991) because of his or here occupation 
as a registered nurse, provided the application for adjustment of status 
is approved no later than October 1, 1993, or
    (2) A valid, unexpired visa petition filed on or after October 1, 
1991, which has been approved to grant the applicant preference, status 
under section 203(b) (1), (2), or (3) of this Act (as in effect on and 
after October 1, 1991) because of his or her occupation as a registered 
nurse, and
    (E) The applicant properly files an application for adjustment of 
status under the provisions of section 245 of the Act.
    (ii) Application period. To benefit from the provisions of Public 
Law 101-238, an alien must properly file an application for adjustments 
of status under section 245 of the Act on or before March 20, 1995.
    (iii) Application. An applicant for the benefits of Public Law 101-
238 must file an application for adjustment of status on Form I-485, 
accompanied by the fee and supporting documents described in Sec. 
1245.2 of this part. Beneficiaries of Public Law 101-238 must also 
submit:
    (A) Evidence that the applicant is the beneficiary of:
    (1) A valid, unexpired visa petition filed prior to October 1, 1991, 
which has been approved to grant the applicant preference status under 
section 203(a) (3) or (6) of the Act (as in effect prior to October 1, 
1991) and is deemed by operation of the automatic conversion provisions 
of section 4 of Public Law 101-110 to be effective to grant the 
applicant preference status under section 203(b) (2) or (3) of the Act 
(as in effect on and after October 1, 1991) because of his or her 
occupation as a registered nurse, provided the application for 
adjustment of status is approved no later than October 1, 1993, or
    (2) A valid, unexpired visa petition filed on or after October 1, 
1991, which has been approved to grant the applicant preference status 
under section 203(b) (1), (2), or (3) of the Act (as in effect on and 
after October 1, 1991) because of his or her occupation as a registered 
nurse, and
    (B) A request, made on Form ETA 750 submitted in duplicate, for a 
determination by the district director that the alien is qualified for 
and will engage in the occupation of registered nurse, as currently 
listed on Schedule A (20 CFR part 656),
    (C) Evidence showing that the applicant has been employed in the 
United States as a registered nurse for an aggregate of three years 
prior to the date the application for adjustment of status is filed, in 
the form of:
    (1) Letters from employers stating the beginning and ending dates of 
employment as a registered nurse, or

[[Page 1094]]

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

[[Page 1095]]

provided the applicant can establish that he or she engaged in 
qualifying employment for a total of three or more years. Qualifying 
employment may include periods when the applicant possessed a 
provisional, temporary, interim, or other permit or license authorizing 
the applicant to perform services as a registered nurse; provided the 
license or permit was issued or recognized by the State Board of Nursing 
of the state in which the employment was performed. Qualifying 
employment may not include periods when the applicant performed duties 
as a registered nurse in violation of any state law regulating the 
employment of registered nurses in that state.
    (vi) Effect of enactment on spouse or child--(A) Spouse or child 
accompanying principal alien. The accompanying spouse or child of an 
applicant for adjustment of status who benefits from Public Law 101-238, 
may also apply for adjustment of status. All benefits and limitations of 
this section, including those resulting from the implementation of the 
adjustment of status provisions of section 162(f) of Public Law 101-649, 
apply equally to the principal applicant and his or her accompanying 
spouse or child.
    (B) Spouse or child residing outside the United States or ineligible 
for adjustment of status. A spouse or child who is ineligible to apply 
for adjustment of status as an accompanying spouse or child is not 
immediately eligible for issuance of an immigrant visa under the 
provisions of Public Law 101-238. However, the spouse or child may be 
eligible for visa issuance under other provisions of the Act.
    (1) Existing relationship. A spouse or child acquired by the 
principal alien prior to the approval of the principal's adjustment of 
status application may be accorded the derivative priority date and 
preference category of the principal alien. The spouse or child may use 
the priority date and category when it becomes current, in accordance 
with existing limitations outlined in sections 201 and 202 of the Act. 
The priority date is not considered immediately available for these 
family members under Public Law 101-238.
    (2) Relationship entered into after adjustment of status is 
approved. An alien who acquires lawful permanent residence under the 
provisions of Public Law 101-238 may file a petition under section 204 
of the Act for an alien spouse, unmarried son or unmarried daughter in 
accordance with existing laws and regulations. The priority date is not 
considered immediately available for these family members under Public 
Law 101-238.
    (3) Special immigrant juveniles. Any alien qualified for special 
immigrant classification under section 101(a)(27)(J) of the Act shall be 
deemed, for the purpose of section 245(a) of the Act, to have been 
paroled into the United States, regardless of the alien's actual method 
of entry into the United States. Neither the provisions of section 
245(c)(2) nor the exclusion provisions of sections 212(a)(4), (5)(A), or 
(7)(A) of the Act shall apply to a qualified special immigrant under 
section 101(a)(27)(J) of the Act. The exclusion provisions of sections 
212(a)(2)(A), (2)(B), (2)(C) (except for so much of such paragraph as 
related to a single offense of simple possession of 30 grams or less of 
marijuana), (3)(A), (3)(B), (3)(C), or (3)(E) of the Act may not be 
waived. Any other exclusion provision may be waived on an individual 
basis for humanitarian purposes, family unity, or when it is otherwise 
in the public interest; however, the relationship between the alien and 
the alien's natural parents or prior adoptive parents shall not be 
considered a factor in a discretionary waiver determination.
    (f) Concurrent applications to overcome grounds of inadmissibility. 
Except as provided in 8 CFR parts 1235 and 1249, an application under 
this part shall be the sole method of requesting the exercise of 
discretion under sections 212(g), (h), (i), and (k) of the Act, as they 
relate to the inadmissibility of an alien in the United States. No fee 
is required for filing an application to overcome the grounds of 
inadmissibility of the Act if filed concurrently with an application for 
adjustment of status under the provisions of the Act of October 28, 
1977, and of this part.
    (g) Availability of immigrant visas under section 245 and priority 
dates--(1) Availability of immigrant visas under section 245. An alien 
is ineligible for the benefits of section 245 of the Act unless

[[Page 1096]]

an immigrant visa is immediately available to him or her at the time the 
application is filed. If the applicant is a preference alien, the 
current Department of State Bureau of Consular Affairs Visa Bulletin 
will be consulted to determine whether an immigrant visa is immediately 
available. An immigrant visa is considered available for accepting and 
processing the application Form I-485 is the preference category 
applicant has a priority date on the waiting list which is earlier than 
the date shown in the Bulletin (or the Bulletin shows that numbers for 
visa applicants in his or her category are current). An immigrant visa 
is also considered immediately available if the applicant establishes 
eligibility for the benefits of Public Law 101-238. Information 
concerning the immediate availability of an immigrant visa may be 
obtained at any Service office.
    (2) Priority dates. The priority date of an applicant who is seeking 
the allotment of an immigrant visa number under one of the preference 
classes specified in section 203(a) or 203(b) of the Act by virtue of a 
valid visa petition approved in his or her behalf shall be fixed by the 
date on which such approved petition was filed.
    (h) Conditional basis of status. Whenever an alien spouse (as 
defined in section 216(g)(1) of the Act), an alien son or daughter (as 
defined in section 216(g)(2) of the Act), an alien entrepreneur (as 
defined in section 216A(f)(1) of the Act), or an alien spouse or child 
(as defined in section 216A(f)(2) of the Act) is granted adjustment of 
status to that of lawful permanent residence, the alien shall be 
considered to have obtained such status on a conditional basis subject 
to the provisions of section 216 or 216A of the Act, as appropriate.
    (i) Adjustment of status from K-3/K-4 status. An alien admitted to 
the United States as a K-3 under section 101(a)(15)(K)(ii) of the Act 
may apply for adjustment of status to that of a permanent resident 
pursuant to section 245 of the Act at any time following the approval of 
the Form I-130 petition filed on the alien's behalf, by the same citizen 
who petitioned for the alien's K-3 status. An alien admitted to the 
United States as a K-4 under section 101(a)(15)(K)(iii) of the Act may 
apply for adjustment of status to that of permanent residence pursuant 
to section 245 of the Act at any time following the approval of the Form 
I-130 petition filed on the alien's behalf, by the same citizen who 
petitioned for the alien's parent's K-3 status. Upon approval of the 
application, the director shall record his or her lawful admission for 
permanent residence in accordance with that section and subject to the 
conditions prescribed in section 216 of the Act. An alien admitted to 
the U.S. as a K-3/K-4 alien may not adjust to that of permanent resident 
status in any way other than as a spouse or child of the U.S. citizen 
who originally filed the petition for that alien's K-3/K-4 status.

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

[30 FR 14778, Nov. 30, 1965]

    Editorial Note: For Federal Register citations affecting Sec. 
1245.1, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 1245.2  Application.

    (a) General--(1) Jurisdiction. (i) In General. In the case of any 
alien who has been placed in deportation proceedings or in removal 
proceedings (other than as an arriving alien), the immigration judge 
hearing the proceeding has exclusive jurisdiction to adjudicate any 
application for adjustment of status the alien may file.
    (ii) Arriving Aliens. In the case of an arriving alien who is placed 
in removal proceedings, the immigration judge does not have jurisdiction 
to adjudicate any application for adjustment of status filed by the 
arriving alien unless:
    (A) The alien properly filed the application for adjustment of 
status with USCIS while the arriving alien was in the United States;
    (B) The alien departed from and returned to the United States 
pursuant to the terms of a grant of advance parole to pursue the 
previously filed application for adjustment of status;

[[Page 1097]]

    (C) The application for adjustment of status was denied by USCIS; 
and
    (D) DHS placed the arriving alien in removal proceedings either upon 
the arriving alien's return to the United States pursuant to the grant 
of advance parole or after USCIS denied the application.
    (2) Proper filing of application--(i) Under section 245. (A) An 
immigrant visa must be immediately available in order for an alien to 
properly file an adjustment application under section 245 of the Act See 
Sec. 1245.1(g)(1) to determine whether an immigrant visa is immediately 
available.
    (B) If, at the time of filing, approval of a visa petition filed for 
classification under section 201(b)(2)(A)(i), section 203(a) or section 
203(b)(1), (2) or (3) of the Act would make a visa immediately available 
to the alien beneficiary, the alien beneficiary's adjustment application 
will be considered properly filed whether submitted concurrently with or 
subsequent to the visa petition, provided that it meets the filing 
requirements contained in parts 103 of 8 CFR chapter I and 1245 of this 
chapter. For any other classification, the alien beneficiary may file 
the adjustment application only after the Service has approved the visa 
petition.
    (C) A visa petition and an adjustment application are concurrently 
filed only if:
    (1) The visa petitioner and adjustment applicant each file their 
respective form at the same time, bundled together within a single 
mailer or delivery packet, with the proper filing fees on the same day 
and at the same Service office, or;
    (2) the visa petitioner filed the visa petition, for which a visa 
number has become immediately available, on, before or after July 31, 
2002, and the adjustment applicant files the adjustment application, 
together with the proper filing fee and a copy of the Form I-797, Notice 
of Action, establishing the receipt and acceptance by the Service of the 
underlying Form I-140 visa petition, at the same Service office at which 
the visa petitioner filed the visa petition, or;
    (3) The visa petitioner filed the visa petition, for which a visa 
number has become immediately available, on, before, or after July 31, 
2002, and the adjustment applicant files the adjustment application, 
together with proof of payment of the filing fee with the Service and a 
copy of the Form I-797 Notice of Action establishing the receipt and 
acceptance by the Service of the underlying Form I-140 visa petition, 
with the Immigration Court or the Board of Immigration Appeals when 
jurisdiction lies under paragraph (a)(1) of this section.
    (ii) Under the Act of November 2, 1966. An application for the 
benefits of section 1 of the Act of November 2, 1966 is not properly 
filed unless the applicant was inspected and admitted or paroled into 
the United States subsequent to January 1, 1959. An applicant is 
ineligible for the benefits of the Act of November 2, 1966 unless he or 
she has been physically present in the United States for one year 
(amended from two years by the Refugee Act of 1980).
    (3) Submission of documents--(i) General. A separate application 
shall be filed by each applicant for benefits under section 245, or the 
Act of November 2, 1966. Each application shall be accompanied by an 
executed Form G-325A, if the applicant has reached his or her 14th 
birthday. Form G-325A shall be considered part of the application. An 
application under this part shall be accompanied by the document 
specified in the instructions which are attached to the application.
    (ii) Under section 245. An application for adjustment of status is 
submitted on Form I-485, Application for Permanent Residence. The 
application must be accompanied by the appropriate fee as explained in 
the instructions to the application.
    (iii) Under section 245(i). An alien who seeks adjustment of status 
under the provisions of section 245(i) of the Act must file Form I-485, 
with the required fee. The alien must also file Supplement A to Form I-
485, with any required additional sum.
    (iv) Under the Act of November 2, 1966. An application for 
adjustment of status is made on Form I-485A. The application must be 
accompanied by Form I-643, Health and Human Services Statistical Data 
Sheet. The application must include a clearance from the local police 
jurisdiction for any area in the

[[Page 1098]]

United States when the applicant has lived for six months or more since 
his or her 14th birthday.
    (4) Effect of departure--(i) General. The effect of a departure from 
the United States is dependent upon the law under which the applicant is 
applying for adjustment.
    (ii) Under section 245 of the Act. (A) The departure from the United 
States of an applicant who is under exclusion, deportation, or removal 
proceedings shall be deemed an abandonment of the application 
constituting grounds for termination of the proceeding by reason of the 
departure. Except as provided in paragraph (a)(4)(ii)(B) and (C) of this 
section, the departure of an applicant who is not under exclusion, 
deportation, or removal proceedings shall be deemed an abandonment of 
the application constituting grounds for termination of any pending 
application for adjustment of status, unless the applicant was 
previously granted advance parole by the Service for such absences, and 
was inspected upon returning to the United States. If the adjustment 
application of an individual granted advance parole is subsequently 
denied the individual will be treated as an applicant for admission, and 
subject to the provisions of section 212 and 235 of the Act.
    (B) The travel outside of the United States by an applicant for 
adjustment who is not under exclusion, deportation, or removal 
proceedings shall not be deemed an abandonment of the application if he 
or she was previously granted advance parole by the Service for such 
absences, and was inspected and paroled upon returning to the United 
States. If the adjustment of status application of such individual is 
subsequently denied, he or she will be treated as an applicant for 
admission, and subject to the provisions of section 212 and 235 of the 
Act.
    (C) The travel outside of the United States by an applicant for 
adjustment of status who is not under exclusion, deportation, or removal 
proceeding and who is in lawful H-1 or L-1 status shall not be deemed an 
abandonment of the application if, upon returning to this country, the 
alien remains eligible for H or L status, is coming to resume employment 
with the same employer for whom he or she had previously been authorized 
to work as an H-1 or L-1 nonimmigrant, and, is in possession of a valid 
H or L visa (if required) and the original I-797 receipt notice for the 
application for adjustment of status. The travel outside of the United 
States by an applicant for adjustment of status who is not under 
exclusion, deportation, or removal proceeding and who is in lawful H-4 
or L-2 status shall not be deemed an abandonment of the application if 
the spouse or parent of such alien through whom the H-4 or L-2 status 
was obtained is maintaining H-1 or L-1 status and the alien remains 
otherwise eligible for H-4 or L-2 status, and, the alien is in 
possession of a valid H-4 or L-2 visa (if required) and the original 
copy of the I-797 receipt notice for the application for adjustment of 
status. The travel outside of the United States by an applicant for 
adjustment of status, who is not under exclusion, deportation, or 
removal proceeding and who is in lawful K-3 or K-4 status shall not be 
deemed an abandonment of the application if, upon returning to this 
country, the alien is in possession of a valid K-3 or K-4 visa and 
remains eligible for K-3 or K-4 status.
    (D) The travel outside of the United States by an applicant for 
adjustment of status who is not under exclusion, deportation, or removal 
proceeding and who is in lawful V status shall not be deemed an 
abandonment of the application if, upon returning to this country, the 
alien is admissible as a V nonimmigrant.
    (iii) Under the Act of November 2, 1966. If an applicant who was 
admitted or paroled subsequent to January 1, 1959, later departs from 
the United States temporarily with no intention of abandoning his or her 
residence, and is readmitted or paroled upon return, the temporary 
absence shall be disregarded for purposes of the applicant's ``last 
arrival'' into the United States in regard to cases filed under section 
1 of the Act of November 2, 1966.
    (5) Decision--(i) General. The applicant shall be notified of the 
decision of the director and, if the application is denied, the reasons 
for the denial.
    (ii) Under section 245 of the Act. If the application is approved, 
the applicant's permanent residence shall be recorded

[[Page 1099]]

as of the date of the order approving the adjustment of status. An 
application for adjustment of status, as a preference alien, shall not 
be approved until an immigrant visa number has been allocated by the 
Department of State, except when the applicant has established 
eligibility for the benefits of Public Law 101-238. No appeal lies from 
the denial of an application by the director, but the applicant, if not 
an arriving alien, retains the right to renew his or her application in 
proceedings under 8 CFR part 1240. Also, an applicant who is a parolee 
and meets the two conditions described in Sec. 1245.2(a)(1) may renew a 
denied application in proceedings under 8 CFR part 1240 to determine 
admissibility. At the time of renewal of the application, an applicant 
does not need to meet the statutory requirement of section 245(c) of the 
Act, or Sec. 1245.1(g), if, in fact, those requirements were met at the 
time the renewed application was initially filed with the director. 
Nothing in this section shall entitle an alien to proceedings under 
section 240 of the Act who is not otherwise so entitled.
    (iii) Under the Act of November 2, 1966. If the application is 
approved, the applicant's permanent residence shall be recorded in 
accordance with the provisions of section 1. No appeal lies from the 
denial of an application by the director, but the applicant, if not an 
arriving alien, retains the right to renew his or her application in 
proceedings under 8 CFR part 1240. Also, an applicant who is a parolee 
and meets the two conditions described in Sec. 1245.2(a)(1) may renew a 
denied application in proceedings under 8 CFR part 1240 to determine 
admissibility.
    (b) Application under section 2 of the Act of November 2, 1966. An 
application by a native or citizen of Cuba or by his spouse or child 
residing in the United States with him, who was lawfully admitted to the 
United States for permanent residence prior to November 2, 1966, and who 
desires such admission to be recorded as of an earlier date pursuant to 
section 2 of the Act of November 2, 1966, shall be made on Form I-485A. 
The application shall be accompanied by the Permanent Resident Card, 
Form I-151 or I-551, issued to the applicant in connection with his 
lawful admission for permanent residence, and shall be submitted to the 
director having jurisdiction over the applicant's place of residence in 
the United States. The decision on the application shall be made by the 
director. No appeal shall lie from his decision. If the application is 
approved, the applicant will be furnished with a replacement of his Form 
I-151 or I-551 bearing the new date as of which the lawful admission for 
permanent residence has been recorded.
    (c) Application under section 214(d) of the Act. An application for 
permanent resident status pursuant to section 214(d) of the Act shall be 
filed on Form I-485 with the director having jurisdiction over the 
applicant's place of residence. A separate application shall be filed by 
each applicant. If the application is approved, the director shall 
record the lawful admission of the applicant as of the date of approval. 
The applicant shall be notified of the decision and, if the application 
is denied, of the reasons therefor. No appeal shall lie from the denial 
of an application by the director but such denial shall be without 
prejudice to the alien's right to renew his or her application in 
proceedings under 8 CFR part 240.

[30 FR 14778, Nov. 30, 1965]

    Editorial Note: For Federal Register citations affecting Sec. 
1245.2, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 1245.3  Adjustment of status under section 13 of the Act of September 11, 

1957, as amended.

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

[[Page 1100]]

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

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

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



Sec. 1245.4  Documentary requirements.

    The provisions of part 1211 of this chapter relating to the 
documentary requirements for immigrants shall not apply to an applicant 
under this part.

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

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



Sec. 1245.5  Medical examination.

    Pursuant to section 232(b) of the Act, an applicant for adjustment 
of status shall be required to have a medical examination by a 
designated civil surgeon, whose report setting forth the findings of the 
mental and physical condition of the applicant, including compliance 
with section 212(a)(1)(A)(ii) of the Act, shall be incorporated into the 
record. A medical examination shall not be required of an applicant for 
adjustment of status who entered the United States as a nonimmigrant 
spouse, fiance[eacute], or fiancee[eacute] of a United States citizen or 
the child of such an alien as defined in section 101(a)(15)(K) of the 
Act and Sec. 214.2(k) of 8 CFR chapter I if the applicant was medically 
examined prior to, and as a condition of, the issuance of the 
nonimmigrant visa; provided that the medical examination must have 
occurred not more than 1 year prior the date of application for 
adjustment of status. Any applicant certified under paragraphs 
(1)(A)(ii) or (1)(A)(iii) of section 212(a) of the Act may appeal to a 
Board of Medical Officers of the U.S. Public Health Service as provided 
in section 234 of the Act and part 1235 of this chapter.

[56 FR 49841, Oct. 2, 1991, as amended at 62 FR 10384, Mar. 6, 1997; 66 
FR 42595, Aug. 14, 2001]



Sec. 1245.6  Interview.

    Each applicant for adjustment of status under this part shall be 
interviewed by an immigration officer. This interview may be waived in 
the case of a child under the age of 14; when the applicant is clearly 
ineligible under section 245(c) of the Act or Sec. 1245.1 of this 
chapter; or when it is determined by the Service that an interview is 
unnecessary.

[57 FR 49375, Nov. 2, 1992]



Sec. 1245.7  Adjustment of status of certain Soviet and Indochinese parolees 

under the Foreign Operations Appropriations Act for Fiscal Year 1990 (Pub. L. 

101-167).

    (a) Application. Each person applying for benefits under section 
599E of Public Law 101-167 (103 Stat. 1195, 1263) must file Form I-485, 
Application to Register Permanent Residence or Adjust Status, with the 
director having jurisdiction over the applicant's place of residence and 
must pay the appropriate filing and fingerprinting fee, as prescribed in 
Sec. 103.7 of this chapter. Each application shall be accompanied by 
Form I-643, Health and Human Services Statistical Data for Refugee/

[[Page 1101]]

Asylee Adjusting Status, and the results of a medical examination given 
in accordance with Sec. 1245.8. In addition, if the applicant has 
reached his or her 14th birthday but is not over 79 years of age, the 
application shall be accompanied by a completed Form G-325A, Biographic 
Information, and the applicant shall be fingerprinted on Form FD-258, 
Applicant Card, as prescribed in Sec. 103.2(e) of this chapter.
    (b) Aliens eligible to apply for adjustment. The benefits of this 
section shall only apply to an alien who:
    (1) Was a national of the Soviet Union, Vietnam, Laos, or Cambodia, 
and
    (2) Was inspected and granted parole into the United States during 
the period beginning on August 15, 1988, and ending on September 30, 
1990, after being denied refugee status.
    (c) Eligibility. Benefits under Section 599E of Public Law 101-167 
are limited to any alien described in paragraph (b) of this section who:
    (1) Applies for such adjustment,
    (2) Has been physically present in the United States for at least 
one year and is physically present in the United States on the date the 
application for such adjustment is filed,
    (3) Is admissible to the United States as an immigrant, except as 
provided in paragraph (d) of this section, and
    (4) Pays a fee for the processing of such application.
    (d) Waiver of certain grounds for inadmissibility. The provisions of 
paragraphs (14), (15), (20), (21), (25), (28) (other than subparagraph 
(F), and (32) of section 212(a) of the Act shall not apply to adjustment 
under this section. The Attorney General may waive any other provision 
of section 212(a) (other than paragraph (23)(B), (27), (29), or (33)) 
with respect to such an adjustment for humanitarian purposes, to assure 
family unity, or when it is otherwise in the public interest.
    (e) Date of approval. Upon approval of such an application for 
adjustment of status, the Attorney General shall create a record of the 
alien's admission as a lawful permanent resident as of the date of the 
alien's inspection and parole described in paragraph (b)(2) of this 
section.
    (f) No offset in number of visas available. When an alien is granted 
the status of having been lawfully admitted for permanent residence 
under this section, the Secretary of State shall not be required to 
reduce the number of immigrant visas authorized to be issued under the 
Immigration and Nationality Act.

[55 FR 24860, July 19, 1990. Redesingated at 56 FR 49841, Oct. 2, 1991, 
as amended at 59 FR 33905, July 1, 1994; 63 FR 12987, Mar. 17, 1998]



Sec. 1245.8  Adjustment of status as a special immigrant under section 

101(a)(27)(K) of the Act.

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

[[Page 1102]]

the applicant is immediately eligible for naturalization under section 
328 or 329 of the Act, the director shall advise the applicant that he 
or she is eligible to apply for naturalization on Form N-400, 
Application to File Petition for Naturalization. If the applicant wishes 
to apply for naturalization, the director shall instruct the applicant 
concerning the requirements for naturalization and provide him or her 
with the necessary forms.
    (d) Spouse or child outside the United States. When a spouse or 
child of an alien granted special immigrant status under section 
101(a)(27)(K) of the Act is outside the United States, the principal 
alien may file Form I-824, Application for Action on an Approved 
Application or Petition, with the office which approved the original 
application.
    (e) Removal provisions of section 237 of the Act. If the Service is 
made aware by notification from the appropriate executive department or 
by any other means that a section 101(a)(27)(K) special immigrant who 
has already been granted permanent residence fails to complete his or 
her total active duty service obligation for reasons other than an 
honorable discharge, the alien may become subject to the removal 
provisions of section 237 of the Act, provided the alien is in one or 
more of the classes of deportable aliens specified in section 237 of the 
Act. The Service shall obtain a current Form DD-214, Certificate of 
Release or Discharge from Active Duty, from the appropriate executive 
department for verification of the alien's failure to maintain 
eligibility.
    (f) Rescission proceedings under section 246 of the Act. If the 
Service determines that a military special immigrant under section 
101(a)(27)(K) of the Act was not in fact eligible for adjustment of 
status, the Service may pursue rescission proceedings under section 246 
of the Act.

[57 FR 33862, July 31, 1992, as amended at 58 FR 50836, Sept. 29, 1993; 
62 FR 10384, Mar. 6, 1997]



Sec. 1245.9  Adjustment of status of certain nationals of the People's 

Republic of China under Public Law 102-404.

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

[[Page 1103]]

of the Act) of an eligible national of the People's Republic of China as 
of April 11, 1990; and
    (2) The qualifying relationship continues to exist, or the family 
member is a son or daughter of an eligible national of the People's 
Republic of China and the family member was unmarried and under the age 
of 21 on April 11, 1990.
    (d) Waivers of inadmissibility under section 212(a) of the Act. An 
applicant for the benefits of the adjustment of status provisions of 
Pub. L. 102-404 is automatically exempted from compliance with the 
requirements of sections 212(a)(5) and 212(a)(7)(A) of the Act. A Pub. 
L. 102-404 applicant may also apply for one or more waivers of 
inadmissibility under section 212(a) of the Act, except for 
inadmissibility under section 212(a)(2)(C), 212(a)(3)(A), 212(a)(3)(B), 
212(a)(3)(C) or 212(a)(3)(E) of the Act.
    (e) Waiver of the two-year foreign residence requirement of section 
212(e). An applicant for the benefits of the adjustment of status 
provisions of Public Law 102-404 is automatically exempted from 
compliance with the two-year foreign residence requirement of section 
212(e) of the Act.
    (f) Waiver of section 245(c) of the Act. Public Law 102-404 provides 
that the provisions of section 245(c) of the Act shall not apply to 
persons applying for the adjustment of status benefits of Public Law 
102-404.
    (g) Application. Each applicant must file an application for 
adjustment of status on Form I-485, Application to Register Permanent 
Residence or Adjust Status, accompanied by the prescribed fee, and the 
supporting documents specified on the instructions to Form I-485 and 
described in Sec. 1245.2. Secondary evidence may be submitted if the 
applicant is unable to obtain the required primary evidence. Applicants 
who are nationals of the People's Republic of China should complete Part 
2 of Form I-485 by checking box ``h--other'' and writing ``CSPA--
Principal'' next to that block. Applicants who are not nationals of the 
People's Republic of China should complete Part 2 of Form I-485 by 
checking box ``h--other'' and writing ``CSPA--Qualified Family Member'' 
next to that block. Each applicant for the benefits of Public Law 102-
404 must also submit evidence of eligibility for the adjustment of 
status benefits of Public Law 102-404:
    (1) A photocopy of all pages of the applicant's most recent passport 
or an explanation of why the applicant does not have a passport;
    (2) An attachment on a plain piece of paper showing:
    (i) The date of the applicant's last arrival in the United States 
before or on April 11, 1990;
    (ii) The date of each departure the applicant made from the United 
States since that arrival (if the applicant did not depart the United 
States after the initial date of arrival, the applicant should write ``I 
was in the United States on April 11, 1990, and I have not departed the 
United States since April 11, 1990'');
    (iii) The reason for each departure; and
    (iv) The date of each return to the United States.
    (3) An attachment on a plain piece of paper showing:
    (i) The date the applicant arrived in the People's Republic of 
China; and
    (ii) The date the applicant left the People's Republic of China for 
each trip the applicant made to the People's Republic of China between 
April 11, 1990, and October 9, 1992 (if the applicant did not travel to 
the People's Republic of China, the applicant should write ``I was not 
in the People's Republic of China between April 11, 1990, and October 9, 
1992'');
    (4) A copy of evidence showing that the applicant was found eligible 
for benefits under E.O. 12711, such as deferred enforced departure 
(DED), employment authorization, and/or waiver of the two-year foreign 
residence requirement, if the applicant previously applied for benefits 
under E.O. 12711; and
    (5) Primary or secondary evidence of a qualifying family 
relationship to an eligible national of the People's Republic of China, 
such as a birth or marriage certificate, if the applicant is a qualified 
family member who is not a national of the People's Republic of China.
    (h) Secondary evidence. If any required primary evidence is 
unavailable,

[[Page 1104]]

church or school records, or other secondary evidence pertinent to the 
facts in issue, may be submitted. If such documents are unavailable, 
affidavits may be submitted. The applicant may submit as many types of 
secondary evidence as necessary to establish the birth, marriage, or 
other event. Documentary evidence establishing that primary evidence is 
unavailable need not accompany secondary evidence of birth or marriage 
in the People's Republic of China.
    (i) Filing. The application period begins on July 1, 1993. To 
benefit from the provisions of Public Law 102-404 (the Chinese Student 
Protection Act of 1992), an alien must properly file an application for 
adjustment of status under section 245 of the Act on or before June 30, 
1994. All applications for the benefits of Public Law 102-404 must be 
submitted by mail to the Service Center having jurisdiction over the 
applicant's place of residence in the United States. Pursuant to the 
deactivation clause of Public Law 102-404, if the President of the 
United States determines and certifies to Congress before July 1, 1993, 
that conditions in the People's Republic of China permit persons covered 
by Public Law 102-404 to safely return to the People's Republic of 
China, no applications for lawful permanent resident status under Public 
Law 102-404 will be processed or granted.
    (j) Immigrant classification and assignment of priority date. Public 
Law 102-404 provides eligible applicants with automatic classifications 
as immigrants under section 203(b)(3)(A)(i) of the Act. No immigrant 
visa petition is required and applicants need not meet the usual 
requirements for classification as skilled workers. The applicant's 
priority date shall be the date his or her application for adjustment of 
status under Public Law 102-404 is properly filed with the Service.
    (k) Effect of immigrant visa number limitations. Eligible Public Law 
102-404 applicants are exempt from the per-country immigrant visa number 
limitations of section 202(a)(2) of the Act. Eligible Public Law 102-404 
applicants may file an application for adjustment of status under Public 
Law 102-404 without regard to immigrant visa number limitations of 
sections 202(a)(2) and 203(b)(3)(A)(i) of the Act. However, the 
adjustment of status application may not be approved and adjustment of 
status to that of a lawful permanent resident of the United States may 
not be granted until a visa number becomes available for the applicant 
under the worldwide allocation of immigrant visa numbers for employment-
based aliens under section 203(b)(3)(A)(i) of the Act. The applicant may 
request initial or continued employment authorization during this period 
by filing Form I-765, Application for Employment Authorization. If the 
applicant needs to travel outside the United States during this period, 
he or she may file a request for advance parole on Form I-131, 
Application for Travel Document.
    (l) Decision. In the case of an application for adjustment of status 
filed pursuant to the provisions of Public Law 102-404, the authority 
conferred upon district directors in 8 CFR part 1245 to accept and 
adjudicate an application for adjustment of status under section 245 of 
the Act is delegated exclusively to the service center director having 
jurisdiction over the applicant's place of residence in the United 
States. If the service center director transfers the application to the 
district director, authority to adjudicate an application for adjustment 
of status filed pursuant to the provisions of Public Law 102-404 lies 
with the district director having jurisdiction over the applicant's 
place of residence.
    (m) Effect of enactment on family members other than qualified 
family members. The adjustment of status benefits and waivers provided 
by Public Law 102-404 do not apply to a spouse or child who is not a 
qualified family member as defined in paragraph (c) of this section. 
However, a spouse or child whose relationship to the principal alien was 
established prior to the approval of the principal's adjustment-of-
status application may be accorded the derivative priority date and 
preference category of the principal alien, in accordance with the 
provisions of section 203(d) of the Act. The spouse or child may use the 
priority date and category when it becomes current, in accordance with

[[Page 1105]]

the limitations set forth in sections 201 and 202 of the Act.

[58 FR 35838, July 1, 1993, as amended at 62 FR 10384, Mar. 6, 1997; 62 
FR 63254, Nov. 28, 1997]



Sec. 1245.10  Adjustment of status upon payment of additional sum under 

section 245(i).

    (a) Definitions. As used in this section the term:
    (1)(i) Grandfathered alien means an alien who is the beneficiary 
(including a spouse or child of the alien beneficiary if eligible to 
receive a visa under section 203(d) of the Act) of:
    (A) A petition for classification under section 204 of the Act which 
was properly filed with the Attorney General on or before April 30, 
2001, and which was approvable when filed; or
    (B) An application for labor certification under section 
212(a)(5)(A) of the Act that was properly filed pursuant to the 
regulations of the Secretary of Labor on or before April 30, 2001, and 
which was approvable when filed.
    (ii) If the qualifying visa petition or application for labor 
certification was filed after January 14, 1998, the alien must have been 
physically present in the United States on December 21, 2000. This 
requirement does not apply with respect to a spouse or child 
accompanying or following to join a principal alien who is a 
grandfathered alien as described in this section.
    (2) Properly filed means:
    (i) With respect to a qualifying immigrant visa petition, that the 
application was physically received by the Service on or before April 
30, 2001, or if mailed, was postmarked on or before April 30, 2001, and 
accepted for filing as provided in Sec. 103.2(a)(1) and (a)(2) of 8 CFR 
chapter ; and
    (ii) With respect to a qualifying application for labor 
certification, that the application was properly filed and accepted 
pursuant to the regulations of the Secretary of Labor, 20 CFR 656.21.
    (3) Approvable when filed means that, as of the date of the filing 
of the qualifying immigrant visa petition under section 204 of the Act 
or qualifying application for labor certification, the qualifying 
petition or application was properly filed, meritorious in fact, and 
non-frivolous (``frivolous'' being defined herein as patently without 
substance). This determination will be made based on the circumstances 
that existed at the time the qualifying petition or application was 
filed. A visa petition that was properly filed on or before April 30, 
2001, and was approvable when filed, but was later withdrawn, denied, or 
revoked due to circumstances that have arisen after the time of filing, 
will preserve the alien beneficiary's grandfathered status if the alien 
is otherwise eligible to file an application for adjustment of status 
under section 245(i) of the Act.
    (4) Circumstances that have arisen after the time of filing means 
circumstances similar to those outlined in Sec. 1205.1(a)(3)(i) or 
(a)(3)(ii) of this chapter.
    (b) Eligibility.An alien who is included in the categories of 
restricted aliens under Sec. 1245.1(b) and meets the definition of a 
``grandfathered alien'' may apply for adjustment of status under section 
245 of the Act if the alien meets the requirements of paragraphs (b)(1) 
through (b)(7) of this section:
    (1) Is physically present in the United States;
    (2) Is eligible for immigrant classification and has an immigrant 
visa number immediately available at the time of filing for adjustment 
of status;
    (3) Is not inadmissible from the United States under any provision 
of section 212 of the Act, or all grounds for inadmissibility have been 
waived;
    (4) Properly files Form I-485, Application to Register Permanent 
Residence or Adjust Status on or after October 1, 1994, with the 
required fee for that application;
    (5) Properly files Supplement A to Form I-485 on or after October 1, 
1994;
    (6) Pays an additional sum of $1,000, unless payment of the 
additional sum is not required under section 245(i) of the Act; and
    (7) Will adjust status under section 245 of the Act to that of 
lawful permanent resident of the United States on or after October 1, 
1994.
    (c) Payment of additional sum. An adjustment applicant filing under 
the provisions of section 245(i) of the Act must pay the standard 
adjustment application filing fee as specified in

[[Page 1106]]

Sec. 103.7(b)(1) of this chapter. Each application submitted under the 
provisions of section 245(i) of the Act must be submitted with an 
additional sum of $1,000. An applicant must submit the additional sum of 
$1,000 only once per application for adjustment of status submitted 
under the provisions of section 245(i) of the Act. However, an applicant 
filing under the provisions of section 245(i) of the Act is not required 
to pay the additional sum if, at the time the application for adjustment 
of status is filed, the alien is:
    (1) Unmarried and less than 17 years of age;
    (2) The spouse of a legalized alien, qualifies for and has properly 
filed Form I-817, Application for Voluntary Departure under the Family 
Unity Program, and submits a copy of his or her receipt or approval 
notice for filing Form I-817; or
    (3) The child of a legalized alien, is unmarried and less than 21 
years of age, qualifies for and has filed Form I-817, and submits a copy 
of his or her receipt or approval notice for filing Form I-817. Such an 
alien must pay the additional sum if he or she has reached the age of 21 
years at the time of filing for adjustment of status. Such an alien must 
meet all other conditions for adjustment of status contained in the Act 
and in this chapter.
    (d) Pending adjustment application with the Service or Executive 
Office for Immigration Review filed without Supplement A to Form I-485 
and additional sum. An alien who filed an adjustment of status 
application with the Service in accordance with Sec. 103.2 of 8 CFR 
chapter I will be allowed the opportunity to amend such an application 
to request consideration under the provisions of section 245(i) of the 
Act, if it appears that the alien is not otherwise ineligible for 
adjustment of status. The Service shall notify the applicant in writing 
of the Service's intent to deny the adjustment of status application, 
and any other requests for benefits that derive from the adjustment 
application, unless Supplement A to Form I-485 and any required 
additional sum is filed within 30 days of the date of the notice. If the 
application for adjustment of status is pending before the Executive 
Office for Immigration Review (EOIR), EOIR will allow the respondent an 
opportunity to amend an adjustment of status application filed in 
accordance with Sec. 103.2 of 8 CFR chapter I (to include Supplement A 
to Form I-485 and proof of remittance to the INS of the required 
additional sum) in order to request consideration under the provisions 
of section 245(i) of the Act.
    (e) Applications for Adjustment of Status filed before October 1, 
1994. The provisions of section 245(i) of the Act shall not apply to an 
application for adjustment of status that was filed before October 1, 
1994. The provisions of section 245(i) of the Act also shall not apply 
to a motion to reopen or reconsider an application for adjustment of 
status if the application for adjustment of status was filed before 
October 1, 1994. An applicant whose pre-October 1, 1994, application for 
adjustment of status has been denied may file a new application for 
adjustment of status pursuant to section 245(i) of the Act on or after 
October 1, 1994, provided that such new application is accompanied by: 
the required fee; Supplement A to Form I-485; the additional sum 
required by section 245(i) of the Act; and all other required initial 
and additional evidence.
    (f) Effect of section 245(i) on completed adjustment applications 
before the Service. (1) Any motion to reopen or reconsider before the 
Service alleging availability of section 245(i) of the Act must be filed 
in accordance with Sec. 103.5 of 8 CFR chapter I. If said motion to 
reopen with the Service is granted, the alien must remit to the Service 
Supplement A to Form I-485 and the additional sum required by section 
245(i) of the Act. If the alien had previously remitted Supplement A to 
Form I-485 and the additional sum with the application which is the 
subject of the motion to reopen, then no additional sum need be remitted 
upon such reopening.
    (2) An alien whose adjustment application was adjudicated and denied 
by the Service because of ineligibility under section 245(a) or (c) of 
the Act and now alleges eligibility due to the availability of section 
245(i) of the Act may file a new application for adjustment of status 
pursuant to section 245(i) of the Act, provided that such new 
application is accompanied by the

[[Page 1107]]

required fee for the application, Supplement A to Form I-485, additional 
sum required by section 245(i) of the Act and all other required and 
additional evidence.
    (g) Aliens deportable under section 237(a)(4)(B) of the Act are 
ineligible to adjust status. Section 237(a)(4)(B) of the Act renders any 
alien who has engaged, is engaged, or at any time after admission 
engages in any terrorist activity, as defined in section 
212(a)(3)(B)(iii) of the Act, deportable. Under section 245(c)(6) of the 
Act, persons who are deportable under section 237(a)(4)(B) of the Act 
are ineligible to adjust status under section 245(a) of the Act. Any 
person who is deportable under section 237(a)(4)(B) of the Act is also 
ineligible to adjust status under section 245(i) of the Act.
    (h) Asylum or diversity immigrant visa applications. An asylum 
application, diversity visa lottery application, or diversity visa 
lottery-winning letter does not serve to grandfather the alien for 
purposes of section 245(i) of the Act. However, an otherwise 
grandfathered alien may use winning a diversity visa as a basis for 
adjustment.
    (i) Denial, withdrawal, or revocation of the approval of a visa 
petition or application for labor certification. The denial, withdrawal, 
or revocation of the approval of a qualifying immigrant visa petition, 
or application for labor certification, that was properly filed on or 
before April 30, 2001, and that was approvable when filed, will not 
preclude its grandfathered alien (including the grandfathered alien's 
family members) from seeking adjustment of status under section 245(i) 
of the Act on the basis of another approved visa petition, a diversity 
visa, or any other ground for adjustment of status under the Act, as 
appropriate.
    (j) Substitution of a beneficiary on an application for a labor 
certification. Only the alien who was the beneficiary of the application 
for the labor certification on or before April 30, 2001, will be 
considered to have been grandfathered for purposes of filing an 
application for adjustment of status under section 245(i) of the Act. An 
alien who was previously the beneficiary of the application for the 
labor certification but was subsequently replaced by another alien on or 
before April 30, 2001, will not be considered to be a grandfathered 
alien. An alien who was substituted for the previous beneficiary of the 
application for the labor certification after April 30, 2001, will not 
be considered to be a grandfathered alien.
    (k) Changes in employment. An applicant for adjustment under section 
245(i) of the Act who is adjusting status through an employment-based 
category is not required to work for the petitioner who filed the 
petition that grandfathered the alien, unless he or she is seeking 
adjustment based on employment for that same petitioner.
    (l) Effects of grandfathering on an alien's nonimmigrant status . An 
alien's nonimmigrant status is not affected by the fact that he or she 
is a grandfathered alien. Lawful immigration status for a nonimmigrant 
is defined in Sec. 1245.1(d)(1)(ii).
    (m) Effect of grandfathering on unlawful presence under section 
212(a)(9)(B) and (c) of the Act. If the alien is not in a period of stay 
authorized by the Attorney General, the fact that he or she is a 
grandfathered alien does not prevent the alien from accruing unlawful 
presence under section 212(a)(9)(B) and (C) of the Act.
    (n) Evidentiary requirement to demonstrate physical presence on 
December 21, 2000. (1) Unless the qualifying immigrant visa petition or 
application for labor certification was filed on or before January 14, 
1998, a principal grandfathered alien must establish that he or she was 
physically present in the United States on December 21, 2000, to be 
eligible to apply to adjust status under section 245(i) of the Act. If 
no one document establishes the alien's physical presence on December 
21, 2000, he or she may submit several documents establishing his or her 
physical presence in the United States prior to, and after December 21, 
2000.
    (2) To demonstrate physical presence on December 21, 2000, the alien 
may submit Service documentation. Examples of acceptable Service 
documentation include, but are not limited to:
    (i) A photocopy of the Form I-94, Arrival-Departure Record, issued 
upon the alien's arrival in the United States;
    (ii) A photocopy of the Form I-862, Notice to Appear;

[[Page 1108]]

    (iii) A photocopy of the Form I-122, Notice to Applicant for 
Admission Detained for Hearing before Immigration Judge, issued by the 
Service on or prior to December 21, 2000, placing the applicant in 
exclusion proceedings under section 236 of the Act (as in effect prior 
to April 1, 1997);
    (iv) A photocopy of the Form I-221, Order to Show Cause, issued by 
the Service on or prior to December 21, 2000, placing the applicant in 
deportation proceedings under section 242 or 242A of the Act (as in 
effect prior to April 1, 1997);
    (v) A photocopy of any application or petition for a benefit under 
the Act filed by or on behalf of the applicant on or prior to December 
21, 2000, which establishes his or her presence in the United States, or 
a fee receipt issued by the Service for such application or petition.
    (3) To demonstrate physical presence on December 21, 2000, the alien 
may submit other government documentation. Other government 
documentation issued by a Federal, state, or local authority must bear 
the signature, seal, or other authenticating instrument of such 
authority (if the document normally bears such instrument), be dated at 
the time of issuance, and bear a date of issuance not later than 
December 21, 2000. For this purpose, the term Federal, state, or local 
authority includes any governmental, educational, or administrative 
function operated by Federal, state, county, or municipal officials. 
Examples of such other documentation include, but are not limited to:
    (i) A state driver's license;
    (ii) A state identification card;
    (iii) A county or municipal hospital record;
    (iv) A public college or public school transcript;
    (v) Income tax records;
    (vi) A certified copy of a Federal, state, or local governmental 
record which was created on or prior to December 21, 2000, shows that 
the applicant was present in the United States at the time, and 
establishes that the applicant sought on his or her own behalf, or some 
other party sought on the applicant's behalf, a benefit from the 
Federal, state, or local governmental agency keeping such record;
    (vii) A certified copy of a Federal, state, or local governmental 
record which was created on or prior to December 21, 2000, that shows 
that the applicant was present in the United States at the time, and 
establishes that the applicant submitted an income tax return, property 
tax payment, or similar submission or payment to the Federal, state, or 
local governmental agency keeping such record;
    (viii) A transcript from a private or religious school that is 
registered with, or approved or licensed by, appropriate State or local 
authorities, accredited by the State or regional accrediting body, or by 
the appropriate private school association, or maintains enrollment 
records in accordance with State or local requirements or standards.
    (4) To demonstrate physical presence on December 21, 2000, the alien 
may submit non-government documentation. Examples of documentation 
establishing physical presence on December 21, 2000, may include, but 
are not limited to:
    (i) School records;
    (ii) Rental receipts;
    (iii) Utility bill receipts;
    (iv) Any other dated receipts;
    (v) Personal checks written by the applicant bearing a bank 
cancellation stamp;
    (vi) Employment records, including pay stubs;
    (vii) Credit card statements showing the dates of purchase, payment, 
or other transaction;
    (viii) Certified copies of records maintained by organizations 
chartered by the Federal or State government, such as public utilities, 
accredited private and religious schools, and banks;
    (ix) If the applicant established that a family unit was in 
existence and cohabiting in the United States, documents evidencing the 
presence of another member of the same family unit; and
    (x) For applicants who have ongoing correspondence or other 
interaction with the Service, a list of the types and dates of such 
correspondence or other contact that the applicant knows to be

[[Page 1109]]

contained or reflected in Service records.
    (5)(i) The adjudicator will evaluate all evidence on a case-by-case 
basis and will not accept a personal affidavit attesting to physical 
presence on December 21, 2000, without requiring an interview or 
additional evidence to validate the affidavit.
    (ii) In all cases, any doubts as to the existence, authenticity, 
veracity, or accuracy of the documentation shall be resolved by the 
official government record, with records of the Service and the 
Executive Office for Immigration Review (EOIR) having precedence over 
the records of other agencies. Furthermore, determinations as to the 
weight to be given any particular document or item of evidence shall be 
solely within the discretion of the adjudicating authority (i.e., the 
Service or EOIR). It shall be the responsibility of the applicant to 
obtain and submit copies of the records of any other government agency 
that the applicant desires to be considered in support of his or her 
application.

[59 FR 51095, Oct. 7, 1994; 59 FR 53020, Oct. 20, 1994, as amended at 62 
FR 10384, Mar. 6, 1997; 62 FR 39424, July 23, 1997; 62 FR 55153, Oct. 
23, 1997; 66 FR 16388, Mar. 26, 2001]



Sec. 1245.11  Adjustment of aliens in S nonimmigrant classification.

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

[[Page 1110]]

notified in writing to that effect. The Assistant Attorney General, 
Criminal Division, shall concur in or object to that decision. Unless 
the Assistant Attorney General, Criminal Division, objects within 7 
days, he or she shall be deemed to have concurred in the decision. In 
the event of an objection by the Assistant Attorney General, Criminal 
Division, the matter will be expeditiously referred to the Deputy 
Attorney General for a final resolution. In no circumstances shall the 
alien or the relevant LEA have a right of appeal from any decision to 
deny.
    (ii) Upon approval of the request on Form I-854, the Commissioner 
shall forward a copy of the approved form to the Assistant Attorney 
General and the S nonimmigrant, notifying them that the S nonimmigrant 
may proceed to file Form I-485 and request adjustment of status to that 
of lawful permanent resident, and that, to be eligible for adjustment of 
status, the nonimmigrant must otherwise:
    (A) Meet the requirements of paragraph (b) of this section, if 
requesting adjustment as a qualified family member of the certified 
principal S nonimmigrant witness or informant;
    (B) Be admissible to the United States as an immigrant, unless the 
ground of inadmissibility has been waived;
    (C) Establish eligibility for adjustment of status under all 
provisions of section 245 of the Act, unless the basis for ineligibility 
has been waived; and
    (D) Properly file with his or her Form I-485, Application to 
Register Permanent Residence or Adjust Status, the approved Form I-854.
    (b) Family members--(1) Qualified family members. A qualified family 
member of an S nonimmigrant includes the spouse, married or unmarried 
son or daughter, or parent of a principal S nonimmigrant who meets the 
requirements of paragraph (a) of this section, provided that:
    (i) The family member qualified as the spouse, married or unmarried 
son or daughter, or parent (as defined in section 101(b) of the Act) of 
the principal S nonimmigrant when the family member was admitted as or 
granted a change of status to that of a nonimmigrant under section 
101(a)(15)(S) of the Act;
    (ii) The family member was admitted in S nonimmigrant classification 
to accompany, or follow to join, the principal S-5 or S-6 alien pursuant 
to the LEA's request;
    (iii) The family member is not inadmissible from the United States 
as a participant in Nazi persecution or genocide as described in section 
212(a)(3)(E) of the Act;
    (iv) The qualifying relationship continues to exist; and
    (v) The principal alien has adjusted status, has a pending 
application for adjustment of status or is concurrently filing an 
application for adjustment of status under section 101(a)(15)(S) of the 
Act.
    (vi) Paragraphs (b)(1)(iv) and (v) of this section do not apply if 
the alien witness or informant has died and, in the opinion of the 
Attorney General, was in compliance with the terms of his or her S 
classification under section 245(i) (1) and (2) of the Act.
    (2) Other family member. The adjustment provisions in this section 
do not apply to a family member who has not been classified as an S 
nonimmigrant pursuant to a request on Form I-854 or who does not 
otherwise meet the requirements of paragraph (b) of this section. 
However, a spouse or an unmarried child who is less than 21 years old, 
and whose relationship to the principal S nonimmigrant or qualified 
family member was established prior to the approval of the principal S 
nonimmigrant's adjustment of status application, may be accorded the 
priority date and preference category of the principal S nonimmigrant or 
qualified family member, in accordance with the provisions of section 
203(d) of the Act. Such a spouse or child:
    (i) May use the principal S nonimmigrant or qualified member's 
priority date and category when it becomes current, in accordance with 
the limitations set forth in sections 201 and 202 of the Act;
    (ii) May seek immigrant visa issuance abroad or adjustment of status 
to that of a lawful permanent resident of the United States when the 
priority date becomes current for the

[[Page 1111]]

spouse's or child's country of chargeability under the fourth 
employment-based preference classification;
    (iii) Must meet all the requirements for immigrant visa issuance or 
adjustment of status, unless those requirements have been waived;
    (iv) Is not applying for adjustment of status under 101(a)(15)(S) of 
the Act, is not required to file Form I-854, and is not required to 
obtain LEA certification; and
    (v) Will lose eligibility for benefits if the child marries or has 
his or her twenty-first birthday before being admitted with an immigrant 
visa or granted adjustment of status.
    (c) Waivers of inadmissibility. An alien seeking to adjust status 
pursuant to the provisions of section 101(a)(15)(S) of the Act may not 
be denied adjustment of status for conduct or a condition that:
    (1) Was disclosed to the Attorney General prior to admission; and
    (2) Was specifically waived pursuant to the waiver provisions set 
forth at section 212(d)(1) and 212(d)(3) of the Act.
    (d) Application. Each S nonimmigrant requesting adjustment of status 
under section 101(a)(15)(S) of the Act must:
    (1) File Form I-485, with the prescribed fee, accompanied by the 
approved Form I-854, and the supporting documents specified in the 
instructions to Form I-485 and described in 8 CFR 1245.2. Secondary 
evidence may be submitted if the nonimmigrant is unable to obtain the 
required primary evidence as provided in 8 CFR 103.2(b)(2). The S 
nonimmigrant applying to adjust must complete Part 2 of Form I-485 by 
checking box ``h-other'' and writing ``S'' or ``S-Qualified Family 
Member.'' Qualified family members must submit documentary evidence of 
the relationship to the principal S nonimmigrant witness or informant.
    (2) Submit detailed and inclusive evidence of eligibility for the 
adjustment of status benefits of S classification, which shall include:
    (i) A photocopy of all pages of the alien's most recent passport or 
an explanation of why the alien does not have a passport; or
    (ii) An attachment on a plain piece of paper showing the dates of 
all arrivals and departures from the United States in S nonimmigrant 
classification and the reason for each departure; and
    (iii) Primary evidence of a qualifying relationship to the principal 
S nonimmigrant, such as birth or marriage certificate. If any required 
primary evidence is unavailable, church or school records, or other 
secondary evidence may be submitted. If such documents are unavailable, 
affidavits may be submitted as provided in 8 CFR 103.2(b)(2).
    (e) Priority date. The S nonimmigrant's priority date shall be the 
date his or her application for adjustment of status as an S 
nonimmigrant is properly filed with the Service.
    (f) Visa number limitation. An adjustment of status application 
under section 101(a)(15)(S) of the Act may be filed regardless of the 
availability of immigrant visa numbers. The adjustment of status 
application may not, however, be approved and the alien's adjustment of 
status to that of lawful permanent resident of the United States may not 
be granted until a visa number becomes available for the alien under the 
worldwide allocation for employment-based immigrants under section 
201(d) and section 203(b)(4) of the Act. The alien may request initial 
or continued employment authorization while the adjustment application 
is pending by filing Form I-765, Application for Employment 
Authorization. If the alien needs to travel outside the United States 
during this period, he or she may file a request for advance parole on 
Form I-131, Application for Travel Document.
    (g) Filing and decision. An application for adjustment of status 
filed by an S nonimmigrant under section 101(a)(15)(S) of the Act shall 
be filed with the district director having jurisdiction over the alien's 
place of residence. Upon approval of adjustment of status under this 
section, the district director shall record the alien's lawful admission 
for permanent residence as of the date of such approval. The district 
director shall notify the Commissioner and the Assistant Attorney 
General, Criminal Division, of the adjustment.

[[Page 1112]]

    (h) Removal under section 237 of the Act. Nothing in this section 
shall prevent an alien adjusted pursuant to the terms of these 
provisions from being removed for conviction of a crime of moral 
turpitude committed within 10 years after being provided lawful 
permanent residence under this section or for any other ground under 
section 237 of the Act.
    (i) Denial of application. In the event the district director 
decides to deny an application on Form I-485 and an approved Form I-854 
to allow an S nonimmigrant to adjust status, the Assistant Attorney 
General, Criminal Division, and the relevant LEA shall be notified in 
writing to that effect. The Assistant Attorney General, Criminal 
Division, shall concur in or object to that decision. Unless the 
Assistant Attorney General, Criminal Division, objects within 7 days, he 
or she shall be deemed to have concurred in the decision. In the event 
of an objection by the Assistant Attorney General, Criminal Division, 
the matter will be expeditiously referred to the Deputy Attorney General 
for a final resolution. In no circumstances shall the alien or the 
relevant LEA have a right of appeal from any decision to deny. A denial 
of an adjustment application under this paragraph may not be renewed in 
subsequent removal proceedings.

[60 FR 44269, Aug. 25, 1995; 60 FR 52248, Oct. 5, 1995, as amended at 62 
FR 10384, Mar. 6, 1997]



Sec. 1245.12  What are the procedures for certain Polish and Hungarian 

parolees who are adjusting status to that of permanent resident under the 

Illegal Immigration Reform and Immigrant Responsibility Act of 1996?

    (a) How do I apply for adjustment of status under this section? (1) 
Each person applying for adjustment of status, under section 646(b) of 
Public Law 104-208, must file a completed Form I-485, Application to 
Register Permanent Residence or Adjust Status, with the correct filing 
fee, with the Service director having jurisdiction over the applicant's 
place of residence.
    (2) The application must include Form G-325A, Biographic Information 
and the results of the medical examination made according to Sec. 232.1 
of 8 CFR chapter I and Sec. 1245.5.
    (3) The application must include evidence to show the applicant was 
a national of Poland or Hungary who, after being denied refugee status, 
was inspected and granted parole into the United States between November 
1, 1989, and December 31, 1991.
    (4) The applicant must have been physically present in the United 
States for at least 1 year before filing a Form I-485.
    (5) After receiving the Form I-485, the adjudicating Service office 
will notify each applicant who is 14 years old or older of the time and 
location for the required fingerprinting.
    (b) How is my application for adjustment of status affected if I 
leave the United States while my application is still pending? The 
departure from the United States by an applicant for adjustment of 
status must be considered an abandonment of the application, as provided 
in Sec. 1245.2(a)(4)(ii), unless the applicant was previously granted 
advance parole for such absence, and was reinspected on returning to the 
United States.
    (c) Which grounds for inadmissibility do not apply or can be waived? 
The provisions of section 212(a) (4), (5), and (7)(A) of the Act will 
not apply to adjustment of status under Sec. 1245.12. In addition, the 
director may waive any other ground of inadmissibility except section 
212(a)(2)(C) or 212(a)(3)(A), (B), (C), or (E) of the Act, for 
humanitarian purposes, to ensure family unity, or when it is otherwise 
in the public interest.
    (d) If my application for adjustment of status is approved under 
Sec. 1245.12, what date will be recorded as my admission to permanent 
residence? On approval of the application for adjustment of status, the 
date of the applicant's admission to permanent resident status will be 
the date of the applicant's inspection and parole, as described in 
paragraph (a) of this section.

[65 FR 20070, Apr. 14, 2000]



Sec. 1245.13  Adjustment of status of certain nationals of Nicaragua and Cuba 

under Public Law 105-100.

    (a) Aliens eligible to apply for adjustment. An alien is eligible to 
apply for

[[Page 1113]]

adjustment of status under the provisions of section 202 of Pub. L. 105-
100 as amended and without regard to section 241(a)(5) of the Act, if 
the alien:
    (1) Is a national of Nicaragua or Cuba;
    (2) Except as provided in paragraph (o) of this section, has been 
physically present in the United States for a continuous period 
beginning not later than December 1, 1995, and ending not earlier that 
the date the application for adjustment is granted, excluding:
    (i) Any periods of absence from the United States not exceeding 180 
days in the aggregate; and
    (ii) Any periods of absence for which the applicant received an 
Advance Authorization for Parole (Form I-512) prior to his or her 
departure from the United States, provided the applicant returned to the 
United States in accordance with the conditions of such Advance 
Authorization for Parole;
    (3) Is not inadmissible to the United States for permanent residence 
under any provisions of section 212(a) of the Act, with the exception of 
paragraphs (4), (5), (6)(A), (7)(A) and (9)(B). If available, an 
applicant may apply for an individual waiver as provided in paragraph 
(c) of this section;
    (4) Is physically present in the United States at the time the 
application is filed; and
    (5) Properly files an application for adjustment of status in 
accordance with this section.
    (b) Qualified family members--(1) Existence of relationship at time 
of adjustment. The spouse, child, or unmarried son or daughter of an 
alien eligible for adjustment of status under the provisions of Pub. L. 
105-100 is eligible to apply for benefits as a dependent provided the 
qualifying relationship existed when the principal beneficiary was 
granted adjustment of status and the dependent meets all applicable 
requirements of sections 202(a) and (d) of Pub. L. 105-100.
    (2) Spouse and minor children. If physically present in the United 
States, the spouse or minor child of an alien who is eligible for 
permanent residence under the provisions of Pub. L. 105-100 may also 
apply for and receive adjustment of status under this section, provided 
such spouse or child meets the criteria established in paragraph (a) of 
this section, except for the requirement of continuous physical presence 
in the United States since December 1, 1995. Such application may be 
filed concurrently with or subsequent to the filing of the principal's 
application but may not be approved prior to approval of the principal's 
application.
    (3) Unmarried adult sons and daughters. An unmarried son or daughter 
of an alien who is eligible for permanent residence under the provisions 
of Pub. L. 105-100 may apply for and receive adjustment under this 
section, provided such son or daughter meets the criteria established in 
paragraph (a) of this section.
    (c) Applicability of inadmissibility grounds contained in section 
212(a)--(1) General. An applicant for the benefits of the adjustment of 
status provisions of section 202 of Pub. L. 105-100 need not establish 
admissibility under paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of 
section 212(a) of the Act in order to be able to adjust his or her 
status to that of permanent resident. An applicant under section 202 of 
Pub. L. 105-100 may also apply for one or more of the immigrant waivers 
of inadmissibility under section 212 of the Act, if applicable, in 
accordance with Sec. 1212.7 of this chapter.
    (2) Special rule for waiver of inadmissibility grounds for NACARA 
applicants under section 212(a)(9)(A) and 212(a)(9)(C) of the Act. An 
applicant for adjustment of status under section 202 of Public Law 105-
100 who is inadmissible under section 212(a)(9)(A) or 212(a)(9)(C) of 
the Act, may apply for a waiver of these grounds of inadmissibility 
while present in the United States. Such an alien must file a Form I-
601, Application for Waiver of Grounds of Excludability, with the 
director of the Texas Service Center if the application for adjustment 
is pending at that office, with the district director having 
jurisdiction over the application if the application for adjustment is 
pending at a district office, with the Immigration Judge having 
jurisdiction if the application for adjustment is pending before the 
Immigration Court, or with the Board of Immigration Appeals if the 
appeal is pending before the Board.

[[Page 1114]]

    (d) General--(1) Proceedings pending before an Immigration Court. 
Except as provided in paragraph (d)(3) of this section, while an alien 
is in exclusion, deportation, or removal proceedings pending before an 
immigration judge, or has a pending motion to reopen or motion to 
reconsider filed with an immigration judge on or before May 21, 1998, 
sole jurisdiction over an application for adjustment of status under 
section 202 of Public Law 105-100 shall lie with the immigration judge. 
If an alien who has a pending motion to reopen or motion to reconsider 
filed with an immigration judge on or before May 21, 1998 files an 
application for adjustment of status under section 202 of Pub. L. 105-
100, the immigration judge shall reopen the alien's proceedings for 
consideration of the adjustment application, unless the alien is clearly 
ineligible for adjustment of status under section 202 of Pub. L. 105-
100. All applications for adjustment of status under section 202 of Pub. 
L. 105-100 filed with an Immigration Court shall be subject to the 
requirements of Sec. Sec. 3.11 and 3.31 of this chapter.
    (2) Proceedings pending before the Board of Immigration Appeals. 
Except as provided in paragraph (d)(3) of this section, in cases where a 
motion to reopen or motion to reconsider filed with the Board on or 
before May 21, 1998, or an appeal, is pending, the Board shall remand, 
or reopen and remand, the proceedings to the Immigration Court for the 
sole purpose of adjudicating an application for adjustment of status 
under section 202 of Public Law 105-100, unless the alien is clearly 
ineligible for adjustment of status under section 202 of Public Law 105-
100. If the immigration judge denies, or the alien fails to file, the 
application for adjustment of status under section 202 of Public Law 
105-100, the immigration judge shall certify the decision to the Board 
for consideration in conjunction with the previously pending appeal or 
motion.
    (3) Administrative closure of pending exclusion, deportation, or 
removal proceedings. (i) In the case of an alien who is in exclusion, 
deportation, or removal proceedings, or has a pending motion to reopen 
or a motion to reconsider such proceedings filed on or before May 21, 
1998, and who appears to be eligible to file an application for 
adjustment of status under section 202 of Pub. L. 105-100, the 
Immigration Court having jurisdiction over such proceedings or motion, 
or if the matter is before the Board on appeal or by motion, the Board, 
shall, upon request of the alien and with the concurrence of the 
Service, administratively close the proceedings, or continue 
indefinitely the motion, to allow the alien to file such application 
with the Service as prescribed in paragraph (g) of this section.
    (ii) In any case not administratively closed in accordance with 
paragraph (d)(3)(i) of this section, the immigration judge having 
jurisdiction over the exclusion, deportation, or removal proceedings 
shall have jurisdiction to accept and adjudicate any application for 
adjustment of status under section 202 of Pub. L. 105-100 during the 
course of such proceedings.
    (4)(i) Aliens with final orders of exclusion, deportation, or 
removal. An alien who is subject to a final order of exclusion, 
deportation, or removal, and who has not been denied adjustment of 
status under section 202 of Public Law 105-100 by the immigration judge 
or the Board of Immigration Appeals, may apply to the Service for 
adjustment of status under section 202 of Pub. L. 105-100.
    (ii) An alien may file a motion to reopen with the Immigration Court 
or the Board of Immigration Appeals, whichever had jurisdiction last, if 
the alien is present in the United States and subject to a final order 
of exclusion, deportation, or removal and has been denied adjustment of 
status under section 202 of NACARA by an Immigration Court or the Board 
or who never applied for adjustment of status on or before March 31, 
2000, with either the Service, the Immigration Court or the Board, and 
who is now eligible for adjustment as a result of section 1505(a)(1) of 
the Legal Immigration Family Equity Act of 2000 (LIFE) and the LIFE 
amendments, Public Law 106-553 and Public Law 106-554, respectively. As 
provided by Sec. 1505(a)(2) of the LIFE Act and its amendments, such a 
motion to reopen must be filed on or before June 19, 2001.

[[Page 1115]]

    (5) Stay of final order of exclusion, deportation, or removal--(i) 
With the Service. The filing of an application for adjustment under 
section 202 of Public Law 105-100 with the Service shall not stay the 
execution of such final order unless the applicant has filed, and the 
Service has approved an Application for Stay of Removal (Form I-246) in 
accordance with section 241(c)(2) of the Act and Sec. 241.6 of this 
chapter. Absent evidence of the applicant's statutory ineligibility for 
adjustment of status under section 202 of Public Law 105-100 or 
significant negative discretionary factors, a Form I-246 filed by a bona 
fide applicant for adjustment under section 202 of Public Law 105-100 
shall be approved, and the removal of the applicant shall be stayed 
until such time as the application for adjustment has been adjudicated 
in accordance with this section.
    (ii) With EOIR. When the Service refers a decision to an immigration 
judge on a Notice of Certification (Form I-290C) in accordance with 
paragraph (m)(3) of this section, the referral shall not stay the 
execution of the final order. Execution of such final order shall 
proceed unless a stay of execution is specifically granted by the 
immigration judge, the Board, or an authorized Service officer.
    (6) Effect on applications for adjustment under other provisions of 
the law. Nothing in this section shall be deemed to allow any alien who 
is in either exclusion proceedings that commenced prior to April 1, 
1997, or removal proceedings as an inadmissible arriving alien that 
commenced on or after April 1, 1997, and who has not been paroled into 
the United States, to apply for adjustment of status under any provision 
of law other than section 202 of Pub. L. 105-100.
    (e) Application and supporting documents. Each applicant for 
adjustment of status must file a Form I-485, Application to Register 
Permanent Residence or Adjust Status. An applicant should complete Part 
2 of Form I-485 by checking box ``h--other'' and writing ``NACARA--
Principal'' or ``NACARA--Dependent'' next to that block. Each 
application must be accompanied by:
    (1) The fee prescribed in Sec. 103.7(b)(1) of 8 CFR chapter I;
    (2) If the applicant is 14 years of age or older, the fee for 
fingerprinting prescribed in Sec. 103.7(b)(1) of 8 CFR chapter I;
    (3) Evidence of commencement of physical presence in the United 
States at any time on or before December 1, 1995. Such evidence may 
relate to any time at or after entry and may consist of either:
    (i) Documentation evidencing one or more of the activities specified 
in section 202(b)(2)(A) of Public Law 105-100;
    (ii) A copy of the Form I-94, Record of Arrival and Departure, 
issued to the applicant at the time of his or her inspection and 
admission or parole;
    (iii) Other documentation issued by a Federal, State, or local 
authority provided such other documentation bears the signature, seal, 
or other authenticating instrument of such authority (if the document 
normally bears such instrument), was dated at the time of issuance, and 
bears a date of issuance not later than December 1, 1995. Examples of 
such other documentation include, but are not limited to:
    (A) A State driver's license;
    (B) A State identification card issued in lieu of a driver's license 
to a nondriver;
    (C) A county or municipal hospital record;
    (D) A public college or public school transcript; and
    (E) Income tax records;
    (iv) A copy of a petition on behalf of the applicant that was 
submitted to the Service on or before December 1, 1995, and that lists 
the applicant as being physically present in the United States;
    (v) A certified copy of a Federal, State, or local governmental 
record that was created on or prior to December 1, 1995, shows that the 
applicant was present in the United States at the time, and establishes 
that the applicant sought on his or her own behalf, or some other party 
sought on the applicant's behalf, a benefit from the Federal, State, or 
local governmental agency keeping such record;
    (vi) A certified copy of a Federal, State, or local governmental 
record that was created on or prior to December 1, 1995, shows that the 
applicant was present in the United States at the

[[Page 1116]]

time, and establishes that the applicant submitted an income tax return, 
property tax payment, or similar submission or payment to the Federal, 
State, or local governmental agency keeping such record; or
    (vii) In the case of an applicant who, while under the age of 21, 
attended a private or religious school in the United States on or prior 
to December 1, 1995, a transcript from such private or religious school, 
provided that the school:
    (A) Is registered with, approved by, or licensed by, appropriate 
State or local authorities;
    (B) Is accredited by the State or regional accrediting body, or by 
the appropriate private school association; or
    (C) Maintains enrollment records in accordance with State or local 
requirements or standards;
    (4) Evidence of continuity of physical presence in the United States 
since the last date on or prior to December 1, 1995, on which the 
applicant established commencement of physical presence in the United 
States. Such documentation may have been issued by any governmental or 
nongovernmental authority, provided such evidence bears the name of the 
applicant, was dated at the time it was issued, and bears the signature, 
seal, or other authenticating instrument of the issuing authority or its 
authorized representative, if the document would normally contain such 
authenticating instrument. Such documentation may include, but is not 
limited to:
    (i) School records;
    (ii) Rental receipts;
    (iii) Utility bill receipts;
    (iv) Any other dated receipts;
    (v) Personal checks written by the applicant bearing a dated bank 
cancellation stamp;
    (vi) Employment records, including pay stubs;
    (vii) Credit card statements showing the dates of purchase, payment, 
or other transaction;
    (viii) Certified copies of records maintained by organizations 
chartered by the government, such as public utilities, accredited 
private and parochial schools, and banks;
    (ix) If the applicant establishes that a family unit was in 
existence and cohabiting in the United States, documents evidencing the 
physical presence in the United States of another member of that same 
family unit; and
    (x) If the applicant has had correspondence or other interaction 
with the Service, a list of the types and dates of such correspondence 
or other contact that the applicant knows to be contained or reflected 
in Service records;
    (5) A copy of the applicant's birth certificate;
    (6) If the applicant is between 14 and 79 years of age, a completed 
Biographic Information Sheet (Form G-325A);
    (7) A report of medical examination, as specified in Sec. 1245.5;
    (8) Two photographs, as described in the instructions to Form I-485;
    (9) If the applicant is 14 years of age or older, a police clearance 
from each municipality where the alien has resided for 6 months or 
longer since arriving in the United States. If there are multiple local 
law enforcement agencies (e.g., city police and county sheriff) with 
jurisdiction over the alien's residence, the applicant may obtain a 
clearance from either agency. If the applicant resides or resided in a 
State where the State Police maintain a compilation of all local arrests 
and convictions, a statewide clearance is sufficient. If the applicant 
presents a letter from the local police agencies involved, or other 
evidence, to the effect that the applicant attempted to obtain such 
clearance but was unable to do so because of local or State policy, the 
director or immigration judge having jurisdiction over the application 
may waive the local police clearance. Furthermore, if such local police 
agency has provided the Service or the Immigration Court with a blanket 
statement that issuance of such police clearance is against local or 
state policy, the director or immigration judge having jurisdiction over 
the case may waive the local police clearance requirement regardless of 
whether the applicant individually submits a letter from that local 
police agency;
    (10) If the applicant is applying as the spouse of another Public 
Law 105-100 beneficiary, a copy of their certificate of marriage and 
copies of documents showing the legal termination of all

[[Page 1117]]

other marriages by the applicant or the other beneficiary;
    (11) If the applicant is applying as the child, unmarried son, or 
unmarried daughter of another (principal) beneficiary under section 202 
of Public Law 105-100 who is not the applicant's biological mother, 
copies of evidence (such as the applicant's parent's marriage 
certificate and documents showing the legal termination of all other 
marriages, an adoption decree, or other relevant evidence) to 
demonstrate the relationship between the applicant and the other 
beneficiary;
    (12) A copy of the Form I-94, Arrival-Departure Record, issued at 
the time of the applicant's arrival in the United States, if the alien 
was inspected and admitted or paroled; and
    (13) If the applicant has departed from and returned to the United 
States since December 1, 1995, an attachment on a plain piece of paper 
showing:
    (i) The date of the applicant's last arrival in the United States 
before or on December 1, 1995;
    (ii) The date of each departure from the United States since that 
arrival;
    (iii) The reason for each departure; and
    (iv) The date, manner, and place of each return to the United 
States.
    (f) Secondary evidence. If the primary evidence required in 
paragraph (e)(4), (e)(9) or (e)(10 of this section is unavailable, 
church or school records, or other secondary evidence pertinent to the 
facts in issue, may be submitted. If such documents are unavailable, 
affidavits may be submitted. The applicant may submit as many types of 
secondary evidence as necessary to establish the birth, marriage, or 
other event. Documentary evidence establishing that primary evidence is 
unavailable must accompany secondary evidence of birth or marriage in 
the home country. In adjudicating the application for adjustment of 
status under section 202 of Public Law 105-100, the Service or 
immigration judge shall determine the weight to be given such secondary 
evidence. Secondary evidence may not be submitted in lieu of the 
documentation specified in paragraphs (e)(2) and (e)(3) of this section. 
However, subject to verification by the Service, if the documentation 
specified in paragraphs (e)(2) and (e)(3) is already contained in the 
Service's file relating to the applicant, the applicant may submit an 
affidavit to that effect in lieu of the actual documentation.
    (g) Filing. The application period begins on June 22, 1998. To 
benefit from the provisions of section 202 of Public Law 105-100, an 
alien must properly file an application for adjustment of status before 
April 1, 2000. Except as provided in paragraph (d) of this section, all 
applications for the benefits of section 202 of Pub. L. 105-100 must be 
submitted by mail to: USINS Texas Service Center, P.O. Box 851804, 
Mesquite, TX 75185-1804. All applications must be accompanied by either 
the correct fee as specified in Sec. 103.7(b)(1) of 8 CFR chapter I; or 
a request for a fee waiver in accordance with Sec. 103.7(c) of 8 CFR 
chapter I. An application received by the Service or Immigration Court 
before April 1, 2000, that has been properly signed and executed and for 
which a waiver of the filing fee has been requested shall be regarded as 
having been filed before the statutory deadline regardless of whether 
the fee waiver request is denied provided that the applicant submits the 
required fee within 30 days of the date of any notice that the fee 
waiver request has been denied. In a case over which the Board has 
jurisdiction, an application received by the Board before April 1, 2000, 
that has been properly signed and executed shall be considered filed 
before the statutory deadline without payment of the fee or submission 
of a fee waiver request. Upon demand by the Board, the payment of the 
fee or a request for a fee waiver shall be made upon submission of the 
application to the Immigration Court in accordance with 8 CFR 
1240.11(f). If a request for a fee waiver is denied, the applicaion 
shall be considered as having been properly filed with the Immigration 
Court before the statutory deadline provided that the applicant submits 
the required fee within 30 days of the date of any notice that the fee 
waiver request has been denied. After proper filing of the application, 
the Service will notify the applicant to appear for fingerprinting as 
prescribed in Sec. 103.2(e) of 8 CFR chapter I.
    (h) Jurisdiction. Except as provide din paragraphs (d) and (i) of 
this section,

[[Page 1118]]

the director of the Texas Service Center shall have jurisdiction over 
all applications for adjustment of status under section 202 of Public 
Law 105-100.
    (i) Interview. (1) Except as provided in paragraphs (d), (i)(2), and 
(i)(3) of this section, all applicants for adjustment of status under 
section 202 of Pub. L. 105-100 must be personally interviewed by an 
immigration officer at a local office of the Service. In any case in 
which the director of the Texas Service Center determines that an 
interview of the applicant is necessary, that director shall forward the 
case to the appropriate local Service office for interview and 
adjudication.
    (2) In the case of an applicant who has submitted evidence of 
commencement of physical presence in the United States consisting of one 
or more of the documents specified in section 202(b)(2)(A)(i) through 
(v) or section 202(b)(2)(A)(vii) of Pub. L. 105-100 and upon examination 
of the application, including all other evidence submitted in support of 
the application, all relevant Service records and all other relevant law 
enforcement indices, if the director of the Texas Service Center 
determines that the alien is clearly eligible for adjustment of status 
under Pub. L. 105-100 and that an interview of the applicant is not 
necessary, the director may approve the application.
    (3) Upon examination of the application, all supporting 
documentation, all relevant Service records, and all other relevant law 
enforcement indices, if the director of the Texas Service Center 
determines that the alien is clearly ineligible for adjustment of status 
under Pub. L. 105-100 and that an interview of the applicant is not 
necessary, the director may deny the application.
    (j) Authorization to be employed in the United States while the 
application is pending--(1) Application. An applicant for adjustment of 
status under section 202 of Pub. L. 105-100 who wishes to obtain initial 
or continued employment authorization during the pendency of the 
adjustment application must file an Application for Employment 
authorization (Form I-765), with fee as set forth in Sec. 103.7(b)(1) 
of 8 CFR chapter I. The applicant may submit Form I-765 concurrently 
with, or subsequent to, the filing of the Form I-485.
    (2) Adjudication and issuance. In general, employment authorization 
may not be issued to an applicant for adjustment of status under section 
202 of Pub. L. 105-100 until the adjustment application has been pending 
for 180 days. However, if Service records contain one or more of the 
documents specified in section 202(b)(2)(A)(i) through (v) and (vii) of 
Pub. L. 105-100, evidence of the applicant's Nicaraguan or Cuban 
nationality, and no indication that the applicant is clearly ineligible 
for adjustment of status under section 202 of Pub. L. 105-100, the 
application for employment authorization may be approved, and the 
resulting document issued immediately upon verification that the Service 
record contains such information. If the Service fails to adjudicate the 
application for employment authorization upon expiration of the 180-day 
waiting period or within 90 days of the filing of application for 
employment authorization, whichever comes later, the alien shall be 
eligible for interim employment authorization in accordance with Sec. 
1274a.13(d) of this chapter. Nothing in this section shall preclude an 
applicant for adjustment of status under Pub. L. 105-100 from being 
granted an initial employment authorization or an extension of 
employment authorization under any other provision of law or regulation 
for which the alien may be eligible.
    (k) Parole authorization for purposes of travel--(1) Travel from and 
return to the United States while the application for adjustment of 
status is pending. If an applicant for benefits under section 202 of 
Pub. L. 105-100 desires to travel outside, and return to, the United 
States while the application for adjustment of status is pending, he or 
she must file a request for advance parole authorization on an 
Application for Travel Document (Form I-131), with fee as set forth in 
Sec. 103.7(b)(1) of 8 CFR chapter I and in accordance with the 
instructions on the form. If the alien is either in deportation or 
removal proceedings, or subject to a final order of deportation or 
removal, the Form I-131 must be submitted to the Assistant Commissioner 
for International Affairs; otherwise the Form I-131 must be submitted to 
the

[[Page 1119]]

director of the Texas Service Center, who shall have jurisdiction over 
such applications. Unless the applicant files an advance parole request 
prior to departing from the United States, and the Service approves such 
request, his or her application for adjustment of status under section 
202 of Public Law 105-100 is deemed to be abandoned as of the moment of 
his or her departure. Parole may only be authorized pursuant to the 
authority contained in, and the standards prescribed in, section 
212(d)(5) of the Act.
    (2) Parole authorization for the purpose of filing an application 
for adjustment of status under section 202 of Pub. L. 105-100. An 
otherwise eligible applicant who is outside the United States and wishes 
to come to the United States in order to apply for benefits under 
section 202 of Pub. L. 105-100 may request parole authorization for such 
purpose by filing an Application for Travel Document (Form I-131) with 
the Texas Service Center, at P.O. Box 851804, Mesquite, TX 75185-1804. 
Such application must be supported by a photocopy of the Form I-485 that 
the alien will file once he or she has been paroled into the United 
States. The applicant must include photocopies of all the supporting 
documentation listed in paragraph (e) of this section, except the filing 
fee, the medical report, the fingerprint card, and the local police 
clearances. If the director of the Texas Service Center is satisfied 
that the alien will be eligible for adjustment of status once the alien 
has been paroled into the United States and files the application, he or 
she may issue an Authorization for Parole of an Alien into the United 
States (Form I-512) to allow the alien to travel to, and be paroled 
into, the United States for a period of 60 days. The applicant shall 
have 60 days from the date of parole to file the application for 
adjustment of status. If the alien files the application for adjustment 
of status within that 60-day period, the Service may re-parole the alien 
for such time as is necessary for adjudication of the application. 
Failure to file such application for adjustment of status within 60 days 
shall result in the alien being returned to the custody of the Service 
and being examined as an arriving alien applying for admission. Such 
examination will be conducted in accordance with the provisions of 
section 235(b)(1) of the Act if the alien is inadmissible under section 
212(a)(6)(C) or 212(a)(7) of the Act, or section 240 of the Act if the 
alien is inadmissible under any other grounds. Parole may only be 
authorized pursuant to the authority contained in, and the standards 
prescribed in, section 212(d)(5) of the Act.
    (3) Effect of departure on an outstanding warrant of exclusion, 
deportation, or removal. If an alien who is the subject of an 
outstanding final order of exclusion, deportation, or removal departs 
from the United States, with or without an advance parole authorization, 
such final order shall be executed by the alien's departure. The 
execution of such final order shall not preclude the applicant from 
filing an Application for Permission to Reapply for Admission Into the 
United States After Deportation or Removal (Form I-212) in accordance 
with Sec. 1212.2 of this chapter.
    (l) Approval. If the director approves the application for 
adjustment of status under the provisions of section 202 of Pub. L. 105-
100, the director shall record the alien's lawful admission for 
permanent resident as of the date of such approval and notify the 
applicant accordingly. The director shall also advise the alien 
regarding the delivery of his or her Permanent Resident Card and of the 
process for obtaining temporary evidence of alien registration. If the 
alien had previously been issued a final order of exclusion, 
deportation, or removal, such order shall be deemed canceled as of the 
date of the director's approval of the application for adjustment of 
status. If the alien had been in exclusion, deportation, or removal 
proceedings that were administratively closed, such proceedings shall be 
deemed terminated as of the date of approval of the application for 
adjustment of status by the director. If an immigration judge grants or 
if the Board, upon appeal, grants an application for adjustment under 
the provisions of section 202 of Pub. L. 105-100, the alien's lawful 
admission for permanent residence shall be as of the date of such grant.

[[Page 1120]]

    (m) Denial and review of decision. (1) If the director denies the 
application for adjustment of status under the provisions of section 202 
of Public Law 105-100, the director shall notify the applicant of the 
decision. The director shall also:
    (i) In the case of an alien who is not maintaining valid 
nonimmigrant status and who had not previously been placed in exclusion, 
deportation or removal proceedings, initiate removal proceedings in 
accordance with Sec. 1239.1 of this chapter during which the alien may 
renew his or her application for adjustment of status under section 202 
of Public Law 105-100; or
    (ii) In the case of an alien whose previously initiated exclusion, 
deportation, or removal proceedings had been administratively closed or 
continued indefinitely under paragraph (d)(3) of this section, advise 
the Immigration Court that had administratively closed the proceedings, 
or the Board, as appropriate, of the denial of the application. Upon a 
motion to recalendar filed by the Service, the Immigration Court or the 
Board will then recalendar or reinstate the prior exclusion, deportation 
or removal proceedings, during which the alien may renew his or her 
application for adjustment under section 202 of Public Law 105-100; or
    (iii) In the case of an alien who is the subject of an outstanding 
final order of exclusion, deportation, or removal, refer the decision to 
deny the application by filing a Form I-290C, Notice of Certification, 
with the Immigration Court that issued the final order for consideration 
in accordance with paragraph (n) of this section.
    (2) Aliens who were denied adjustment of status by the director, but 
who are now eligible for such adjustment of status pursuant to section 
1505(a)(1) of the LIFE Act and amendments, and have not been referred to 
immigration proceedings as specified in paragraph (m)(1) of this section 
may file a motion to reopen with the Service. If an alien has been 
referred to the Immigration Court or has filed an appeal with the Board 
after an Immigration Court has denied the application for adjustment 
under NACARA section 202, and proceedings are pending, then the 
application for adjustment of status will be adjudicated in accordance 
with section 1505(a) of the LIFE Act and its amendments. An alien 
present in the United States subject to a final order of removal after 
his or her application was denied by an Immigration Court or the Board, 
but who was made eligible for adjustment pursuant to section 1505(a) of 
the LIFE Act and its amendments may file a motion to reopen with the 
Immigration Court or the Board, whichever had jurisdiction last. 
Pursuant to section 1505(a)(2) of the LIFE Act and its amendments, 
motions to reopen proceedings before the Immigration Court or the Board 
must be filed on or before June 19, 2001.
    (n) Action of immigration judge upon referral of decision by a 
Notice of Certification (Form I-290C)--(1) General. Upon the referral by 
a Notice of Certification (Form I-290C) of a decision to deny the 
application, in accordance with paragraph (m)(3) of this section, and 
under the authority contained in Sec. 1003.10 of this chapter, the 
immigration judge shall conduct a hearing to determine whether the alien 
is eligible for adjustment of status under section 202 of Public Law 
105-100. Such hearing shall be conducted under the same rules of 
procedure as proceedings conducted under part 1240 of this chapter, 
except the scope of review shall be limited to a determination on the 
alien's eligibility for adjustment of status under section 202 of Public 
Law 105-100. During such proceedings all parties are prohibited from 
raising or considering any other issues, including but not limited to 
issues of admissibility, deportability, removability, and eligibility 
for any form of relief other than adjustment of status under section 202 
of Public Law 105-100. Should the alien fail to appear for such hearing, 
the immigration judge shall deny the application for adjustment under 
section 202 of Public Law 105-100.
    (2) Appeal of immigration judge decision. Once the immigration judge 
issues his or her decision on the application, either the alien or the 
Service may appeal the decision to the Board. Such appeal must be filed 
pursuant to the requirements for appeals to the Board from an 
immigration judge decision set forth in Sec. Sec. 1003.3 and 1003.8 of 
this chapter.

[[Page 1121]]

    (3) Rescission of the decision of an immigration judge. The decision 
of an immigration judge under paragraph (n)(1) of this section denying 
an application for adjustment under section 202 of Public Law 105-100 
for failure to appear may be rescinded only:
    (i) Upon a motion to reopen filed within 180 days after the date of 
the denial if the alien demonstrates that the failure to appear was 
because of exceptional circumstances as defined in section 240(e)(1) of 
the Act;
    (ii) Upon a motion to reopen filed at any time if the alien 
demonstrates that the alien did not receive notice of the hearing in 
person (or, if personal service was not practicable, through service by 
mail to the alien or to the alien's counsel of record, if any) or the 
alien demonstrates that the alien was in Federal or State custody and 
the failure to appear was through no fault of the alien; or
    (iii) Upon a motion to reopen filed not later than June 19, 2001, by 
an alien present in the United States who became eligible for adjustment 
of status under section 202 of Public Law 105-100, as amended by section 
1505, Public Law 106-554.
    (o) Transition period provisions for tolling the physical presence 
in the United States provision for certain individuals--(1) Departure 
without advance authorization for parole. In the case of an otherwise 
eligible applicant who departed the United States on or before December 
31, 1997, the physical presence in the United States provision of 
section 202(b)(1) of Pub. L. 105-100 is tolled as of November 19, 1997, 
and until July 20, 1998.
    (2) Departure with advance authorization for parole. In the case of 
an alien who departed the United States after having been issued an 
Authorization for parole of an Alien into the United States (Form I-
512), and who returns to the United States in accordance with the 
conditions of that document, the physical presence in the United States 
requirement of section 202(b)(1) of Pub. L. 105-100 is tolled while the 
alien is outside the United States pursuant to the issuance of the Form 
I-512.
    (3) Request for parole authorization from outside the United States. 
In the case of an alien who is outside the United States and submits an 
application for parole authorization in accordance with paragraph (k)(2) 
of this section, and such application for parole authorization is 
granted by the Service, the physical presence in the United States 
provisions of section 202(b)(1) of Pub. L. 105-100 is tilled from the 
date the application is received at the Texas Service Center until the 
alien is paroled into the United States pursuant to the issuance of the 
Form I-512.

(Approved by the Office of Management and Budget under Control Number 
1115-0221)

[63 FR 27829, May 21, 1998, as amended at 65 FR 15854, Mar. 24, 2000; 66 
FR 29451, May 31, 2001]



Sec. 1245.14  Adjustment of status of certain health care workers.

    An alien applying for adjustment of status to perform labor in a 
health care occupation as described in 8 CFR 1212.15(c) must present 
evidence at the time he or she applies for adjustment of status, and, if 
applicable, at the time of the interview on the application, that he or 
she has a valid certificate issued by the Commission on Graduates of 
Foreign Nursing Schools or the National Board of Certification in 
Occupational Therapy.

[63 FR 55012, Oct. 14, 1998]



Sec. 1245.15  Adjustment of status of certain Haitian nationals under the 

Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA).

    (a) Definitions. As used in this section, the terms:
    Abandoned and abandonment mean that both parents have, or the sole 
or surviving parent has, or in the case of a child who has been placed 
into a guardianship, the child's guardian or guardians have, willfully 
forsaken all parental or guardianship rights, obligations, and claims to 
the child, as well as all control over and possession of the child, 
without intending to transfer these rights to any specific person(s).
    Guardian means a person lawfully invested (by order of a competent 
Federal, State, or local authority) with the power, and charged with the 
duty, of taking care of, including managing the property, rights, and 
affairs of, a child.
    Orphan and orphaned refer to the involuntary detachment or severance 
of

[[Page 1122]]

a child from his or her parents due to any of the following:
    (1) The death or disappearance of, desertion by, or separation or 
loss from both parents, as those terms are defined in Sec. 204.3(b) of 
8 CFR chapter I;
    (2) The irrevocable and written release of all parental rights by 
the sole parent, as that term is defined in Sec. 204.3(b) of 8 CFR 
chapter I, based upon the inability of that parent to provide proper 
care (within the meaning of that phrase in Sec. 204.3(b) of 8 CFR 
chapter I) for the child, provided that at the time of such irrevocable 
release such parent is legally obligated to provide such care; or
    (3) The death or disappearance, as that term is defined in Sec. 
204.3(b) of 8 CFR chapter I, of one parent and the irrevocable and 
written release of all parental rights by the sole remaining parent 
based upon the inability of that parent to provide proper care (within 
the meaning of that phrase in Sec. 204.3(b) of 8 CFR chapter I) for the 
child, provided that at the time of such irrevocable release such parent 
is legally obligated to provide such care.
    Parent, father, or mother means a parent, father, or mother only 
where the relationship exists by reason of any of the circumstances set 
forth in paragraphs (A) through (E) of section 101(b)(1) of the Act.
    Sole remaining parent means a person who is the child's only parent 
because:
    (1) The child's other parent has died; or
    (2) The child's other parent has been certified by competent Haitian 
authorities to be presumed dead as a result of his or her disappearance, 
within the meaning of that term as set forth in Sec. 204.3(b) of 8 CFR 
chapter I.
    (b) Applicability of provisions of section 902 of HRIFA in general. 
Section 902 of Division A of Pub. L. 105-277, the Haitian Refugee 
Immigrant Fairness Act of 1998 (HRIFA), provides special rules for 
adjustment of status for certain nationals of Haiti, and without regard 
to section 241(a)(5) of the Act, if they meet the other requirements of 
HRIFA.
    (1) Principal applicants. Section 902(b)(1) of HRIFA defines five 
categories of principal applicants who may apply for adjustment of 
status, if the alien was physically present in the United States on 
December 31, 1995:
    (i) An alien who filed for asylum before December 31, 1995;
    (ii) An alien who was paroled into the United States prior to 
December 31, 1995, after having been identified as having a credible 
fear of persecution, or paroled for emergent reasons or reasons deemed 
strictly in the public interest; or
    (iii) An alien who at the time of arrival in the United States and 
on December 31, 1995, was unmarried and under 21 years of age and who:
    (A) Arrived in the United States without parents in the United 
States and has remained, without parents, in the United States since his 
or her arrival;
    (B) Became orphaned subsequent to arrival in the United States; or
    (C) Was abandoned by parents or guardians prior to April 1, 1998, 
and has remained abandoned since such abandonment.
    (2) Dependents. Section 902(d) of HRIFA provides for certain Haitian 
nationals to apply for adjustment of status as the spouse, child, or 
unmarried son or daughter of a principal HRIFA beneficiary, even if the 
individual would not otherwise be eligible for adjustment under section 
902. The eligibility requirements for dependents are described further 
in paragraph (d) of this section.
    (c) Eligibility of principal HRIFA applicants. A Haitian national 
who is described in paragraph (b)(1) of this section is eligible to 
apply for adjustment of status under the provisions of section 902 of 
HRIFA if the alien meets the following requirements:
    (1) Physical presence. The alien is physically present in the United 
States at the time the application is filed;
    (2) Proper application. The alien properly files an application for 
adjustment of status in accordance with this section, including the 
evidence described in paragraphs (h), (i), (j), and (k) of this section. 
For purposes of Sec. 1245.15 of this chapter only, an Application to 
Register Permanent Residence or Adjust Status (Form I-485) submitted by 
a principal applicant for benefits under HRIFA may be considered to have 
been properly filed if it:

[[Page 1123]]

    (i) Is received not later than March 31, 2000, at the Nebraska 
Service Center, the Board, or the Immigration Court having jurisdiction;
    (ii) Has been properly completed and signed by the applicant;
    (iii) Identifies the provision of HRIFA under which the applicant is 
seeking adjustment of status; and
    (iv) Is accompanied by either:
    (A) The correct fee as specified in Sec. 103.7(b)(1) of this 
chapter; or
    (B) A request for a fee waiver in accordance with Sec. 103.7(c) of 
8 CFR chapter I, provided such fee waiver request is subsequently 
granted; however, if such a fee waiver request is subsequently denied 
and the applicant submits the require fee within 30 days of the date of 
any notice that the fee waiver request had been denied, the application 
shall be regarded as having been filed before the statutory deadline. In 
addition, in a case over which the Board has jurisdiction, an 
application received by the Board before April 1, 2000, that has been 
properly signed and executed shall be considered filed before the 
statutory deadline without payment of the fee or submission of a fee 
waiver request. Upon remand by the Board, the payment of the fee or a 
request for a fee waiver shall be made upon submission of the 
application to the Immigration Court in accordance with 8 CFR 
1240.11(f). If a request for a fee waiver is denied, the application 
shall be considered as having been properly filed with the Immigration 
Court before the statutory deadline provided that the applicant submits 
the required fee within 30 days of the date of any notice that the fee 
waiver request has been denied.
    (3) Admissibility. The alien is not inadmissible to the United 
States for permanent residence under any provisions of section 212(a) of 
the Act, except as provided in paragraph (e) of this section; and
    (4) Continuous physical presence. The alien has been physically 
present in the United States for a continuous period beginning on 
December 31, 1995, and ending on the date the application for adjustment 
is granted, except for the following periods of time:
    (i) Any period or periods of absence from the United States not 
exceeding 180 days in the aggregate; and
    (ii) Any periods of absence for which the applicant received an 
Advance Authorization for Parole (Form I-512) prior to his or her 
departure from the United States, provided the applicant returned to the 
United States in accordance with the conditions of such Advance 
Authorization for Parole.
    (iii) Any periods of absence from the United States occurring after 
October 21, 1998, and before July 12, 1999, provided the applicant 
departed the United States prior to December 31, 1998.
    (d) Eligibility of dependents of a principal HRIFA beneficiary. A 
Haitian national who is the spouse, child, or unmarried son or daughter 
of a principal beneficiary eligible for adjustment of status under the 
provisions of HRIFA is eligible to apply for benefits as a dependent, if 
the dependent alien meets the following requirements:
    (1) Physical presence. The alien is physically present in the United 
States at the time the application is filed;
    (2) Proper application. The alien properly files an application for 
adjustment of status as a dependent in accordance with this section, 
including the evidence described in paragraphs (h) and (l) of this 
section;
    (3) Admissibility. The alien is not inadmissible to the United 
States for permanent residence under any provisions of section 212(a) of 
the Act, except as provided in paragraph (e) of this section;
    (4) Relationship. The qualifying relationship to the principal alien 
must have existed at the time the principal was granted adjustment of 
status and must continue to exist at the time the dependent alien is 
granted adjustment of status. To establish the qualifying relationship 
to the principal alien, evidence must be submitted in accordance with 
Sec. 204.2 of this chapter. Such evidence should 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 8 CFR chapter I;
    (5) Continuous physical presence. If the alien is applying as the 
unmarried son or unmarried daughter of a principal HRIFA beneficiary, he 
or she must

[[Page 1124]]

have been physically present in the United States for a continuous 
period beginning not later than December 31, 1995, and ending on the 
date the application for adjustment is granted, as provided in 
paragraphs (c)(4) and (j) of this section.
    (e) Applicability of grounds of inadmissibility contained in section 
212(a)--(1) Certain grounds of inadmissibility inapplicable to HRIFA 
applicants. Paragraphs (4), (5), (6)(A), (7)(A) and (9)(B) of section 
212(a) of the Act are inapplicable to HRIFA principal applicants and 
their dependents. Accordingly, an applicant for adjustment of status 
under section 902 of HRIFA need not establish admissibility under those 
provisions in order to be able to adjust his or her status to that of 
permanent resident.
    (2) Availability of individual waivers. If a HRIFA applicant is 
inadmissible under any of the other provisions of section 212(a) of the 
Act for which an immigrant waiver is available, the applicant may apply 
for one or more of the immigrant waivers of inadmissibility under 
section 212 of the Act, in accordance with Sec. 1212.7 of this chapter. 
In considering an application for waiver under section 212(g) of the Act 
by an otherwise statutorily eligible applicant for adjustment of status 
under HRIFA who was paroled into the United States from the U.S. Naval 
Base at Guantanamo Bay, for the purpose of receiving treatment of an HIV 
or AIDS condition, the fact that his or her arrival in the United States 
was the direct result of a government decision to provide such treatment 
should be viewed as a significant positive factor when weighing 
discretionary factors. In considering an application for waiver under 
section 212(i) of the Act by an otherwise statutorily eligible applicant 
for adjustment of status under HRIFA who used counterfeit documents to 
travel from Haiti to the United States, the adjudicator shall, when 
weighing discretionary factors, take into consideration the general 
lawlessness and corruption which was widespread in Haiti at the time of 
the alien's departure, the difficulties in obtaining legitimate 
departure documents at that time, and other factors unique to Haiti at 
that time which may have induced the alien to commit fraud or make 
willful misrepresentations.
    (3) Special rule for waiver of inadmissibility grounds for HRIFA 
applicants under section 212(a)(9)(A) and 212(a)(9)(C) of the Act. An 
applicant for adjustment of status under HRIFA who is inadmissible under 
section 212(a)(9)(A) or 212(a)(9)(C) of the Act, may apply for a waiver 
of these grounds of inadmissibility while present in the United States. 
Such an alien must file Form I-601, Application for Waiver of Grounds of 
Excludability. If the application for adjustment is pending at the 
Nebraska Service Center, Form I-601 must be filed with the director of 
that office. If the application for adjustment is pending at a district 
office, Form I-601 must be filed with the district director having 
jurisdiction over the application. If the application for adjustment is 
pending before the immigration court, Form I-601 must be filed with the 
immigration judge having jurisdiction, or with the Board of Immigration 
Appeals if the appeal is pending before the Board.
    (f) Time for filing of applications--(1) Applications for HRIFA 
benefits by a principal HRIFA applicant. The application period begins 
on June 11, 1999. To benefit from the provisions of section 902 of 
HRIFA, an alien who is applying for adjustment as a principal applicant 
must properly file an application for adjustment of status before April 
1, 2000.
    (2) Applications by dependent aliens. The spouse, minor child, or 
unmarried son or daughter of an alien who is eligible for adjustment of 
status as a principal beneficiary under HRIFA may file an application 
for adjustment of status under this section concurrently with or 
subsequent to the filing of the application of the principal HRIFA 
beneficiary. An application filed by a dependent may not be approved 
prior to approval of the principal's application.
    (g) Jurisdiction for filing of applications--(1) Filing of 
applications with the Service. The Service has jurisdiction over all 
applications for the benefits of section 902 of HRIFA as a principal 
applicant or as a dependent under this section, except for applications 
filed by aliens who are in pending immigration proceedings as provided 
in paragraph

[[Page 1125]]

(g)(2) of this section. All applications filed with the Service for the 
benefits of section 902 of HRIFA must be submitted by mail to: USINS 
Nebraska Service Center, PO Box 87245, Lincoln, NE 68501-7245. After 
proper filing of the application, the Service will instruct the 
applicant to appear for fingerprinting as prescribed in Sec. 103.2(e) 
of this chapter. The Director of the Nebraska Service Center shall have 
jurisdiction over all applications filed with the Service for adjustment 
of status under section 902 of HRIFA, unless the Director refers the 
applicant for a personal interview at a local Service office as provided 
in paragraph (o)(1) of this section.
    (2) Filing of applications by aliens in pending exclusion, 
deportation, or removal proceedings. An alien who is in exclusion, 
deportation, or removal proceedings pending before the Immigration Court 
or the Board, or who has a pending motion to reopen or motion to 
reconsider filed with the Immigration Court or the Board on or before 
May 12, 1999, must apply for HRIFA benefits to the Immigration Court or 
the Board, as provided in paragraph (p)(1) of this section, rather than 
to the Service. However, an alien whose proceeding has been 
administratively closed (see paragraph (p)(4) of this section) may only 
apply for HRIFA benefits with the Service as provided in paragraph 
(g)(1) of this section.
    (3)(i) Filing of applications with the Service by aliens who are 
subject to a final order of exclusion, deportation, or removal. An alien 
who is subject to a final order of exclusion, deportation, or removal, 
and who has not been denied adjustment of status under section 902 of 
HRIFA by the Immigration Court or the Board, may only apply for HRIFA 
benefits with the Service as provided in paragraph (g)(1) of this 
section. This includes applications for HRIFA benefits filed by aliens 
who have filed a motion to reopen or motion to reconsider a final order 
after May 12, 1999.
    (ii) An alien present in the United States who is subject to a final 
order of exclusion, deportation, or removal and has been denied 
adjustment of status under section 902 of HRIFA by the Immigration Court 
or the Board, or who never applied for adjustment of status with the 
Service, an Immigration Court, or the Board on or before March 31, 2000, 
and who was made eligible for HRIFA benefits under the Legal Immigration 
Family Equity Act of 2000 (LIFE Act) and LIFE amendments, Public Law 
106-553 and Public Law 106-554, respectively, may file a motion to 
reopen with either the Immigration Court or the Board, whichever had 
jurisdiction last. As provided by the LIFE Act, motions to reopen must 
be filed on or before June 19, 2001.
    (iii) Stay of final order of exclusion, deportation, or removal. The 
filing of an application for adjustment under section 902 of HRIFA with 
the Service shall not stay the execution of such final order unless the 
applicant has requested and been granted a stay in connection with the 
HRIFA application. An alien who has filed a HRIFA application with the 
Service may file an Application for Stay of Removal (Form I-246) in 
accordance with section 241(c)(2) of the Act and Sec. 1241.6 of this 
chapter.
    (iv) Grant of stay. Absent evidence of the applicant's statutory 
ineligibility for adjustment of status under section 902 of HRIFA or 
significant negative discretionary factors, a Form I-246 filed by a bona 
fide applicant for adjustment under section 902 of HRIFA shall be 
approved and the removal of the applicant shall be stayed until such 
time as the Service has adjudicated the application for adjustment in 
accordance with this section.
    (h) Application and supporting documents. Each applicant for 
adjustment of status must file an Application to Register Permanent 
Residence or Adjust Status (Form I-485). An applicant should complete 
Part 2 of Form I-485 by checking box ``h--other'' and writing ``HRIFA--
Principal'' or ``HRIFA--Dependent'' next to that block. Each application 
must be accompanied by:
    (1) Application fee. The fee for Form I-485 prescribed in Sec. 
103.7(b)(1) of 8 CFR chapter I;
    (2) Fingerprinting fee. If the applicant is 14 years of age or 
older, the fee for fingerprinting prescribed in Sec. 103.7(b)(1) of 8 
CFR chapter I;
    (3) Identifying information. (i) A copy of the applicant's birth 
certificate or other record of birth as provided in paragraph (m) of 
this section;

[[Page 1126]]

    (ii) A completed Biographic Information Sheet (Form G-325A), if the 
applicant is between 14 and 79 years of age;
    (iii) A report of medical examination, as specified in Sec. 1245.5 
of this chapter; and
    (iv) Two photographs, as described in the instructions to Form I-
485;
    (4) Arrival-Departure Record. A copy of the Form I-94, Arrival-
Departure Record, issued at the time of the applicant's arrival in the 
United States, if the alien was inspected and admitted or paroled;
    (5) Police clearances. If the applicant is 14 years old or older, a 
police clearance from each municipality where the alien has resided for 
6 months or longer since arriving in the United States. If there are 
multiple local law enforcement agencies (e.g., city police and county 
sheriff) with jurisdiction over the alien's residence, the applicant may 
obtain a clearance from either agency. If the applicant resides or 
resided in a State where the State police maintain a compilation of all 
local arrests and convictions, a statewide clearance is sufficient. If 
the applicant presents a letter from the local police agencies involved, 
or other evidence, to the effect that the applicant attempted to obtain 
such clearance but was unable to do so because of local or State policy, 
the director or immigration judge having jurisdiction over the 
application may waive the local police clearance. Furthermore, if such 
local police agency has provided the Service or the Immigration Court 
with a blanket statement that issuance of such police clearance is 
against local or State policy, the director or immigration judge having 
jurisdiction over the case may waive the local police clearance 
requirement regardless of whether the applicant individually submits a 
letter from that local police agency;
    (6) Proof of Haitian nationality. If the applicant acquired Haitian 
nationality other than through birth in Haiti, a copy of the certificate 
of naturalization or certificate of citizenship issued by the Haitian 
government; and
    (7) Additional supporting evidence. Additional supporting evidence 
pertaining to the applicant as provided in paragraphs (i) through (l) of 
this section.
    (i) Evidence of presence in the United States on December 31, 1995. 
An alien seeking HRIFA benefits as a principal applicant must provide 
with the application evidence establishing the alien's presence in the 
United States on December 31, 1995. Such evidence may consist of the 
evidence listed in Sec. 1245.22.
    (j) Evidence of continuity of presence in the United States since 
December 31, 1995. An alien seeking HRIFA benefits as a principal 
applicant, or as the unmarried son or daughter of a principal applicant, 
must provide with the application evidence establishing continuity of 
the alien's physical presence in the United States since December 31, 
1995. (This requirement does not apply to a dependent seeking HRIFA 
benefits as the spouse or minor child of a principal applicant.)
    (1) Evidence establishing presence. Evidence establishing the 
continuity of the alien's physical presence in the United States since 
December 31, 1995, may consist of any documentation issued by any 
governmental or nongovernmental authority, provided such evidence bears 
the name of the applicant, was dated at the time it was issued, and 
bears the signature, seal, or other authenticating instrument of the 
authorized representative of the issuing authority, if the document 
would normally contain such authenticating instrument.
    (2) Examples. Documentation establishing continuity of physical 
presence may include, but is not limited to:
    (i) School records;
    (ii) Rental receipts;
    (iii) Utility bill receipts;
    (iv) Any other dated receipts;
    (v) Personal checks written by the applicant bearing a dated bank 
cancellation stamp;
    (vi) Employment records, including pay stubs;
    (vii) Credit card statements showing the dates of purchase, payment, 
or other transaction;
    (viii) Certified copies of records maintained by organizations 
chartered by the Federal or State government, such as public utilities, 
accredited private and religious schools, and banks;

[[Page 1127]]

    (ix) If the applicant establishes that a family unit was in 
existence and cohabiting in the United States, documents evidencing 
presence of another member of that same family unit; and
    (x) For applicants who have had ongoing correspondence or other 
interaction with the Service, a list of the types and dates of such 
correspondence or other contact that the applicant knows to be contained 
or reflected in Service records.
    (3) Evidence relating to absences from the United States since 
December 31, 1995. If the alien is applying as a principal applicant, or 
as the unmarried son or daughter of a principal applicant, and has 
departed from and returned to the United States since December 31, 1995, 
the alien must provide with the application an attachment on a plain 
piece of paper showing:
    (i) The date of the applicant's last arrival in the United States 
before December 31, 1995;
    (ii) The date of each departure (if any) from the United States 
since that arrival;
    (iii) The reason for each departure; and
    (iv) The date, manner, and place of each return to the United 
States.
    (k) Evidence establishing the alien's eligibility under section 
902(b) of HRIFA. An alien seeking HRIFA benefits as a principal 
applicant must provide with the application evidence establishing that 
the alien satisfies one of the eligibility standards described in 
paragraph (b)(1) of this section.
    (1) Applicant for asylum. If the alien is a principal applicant who 
filed for asylum before December 31, 1995, the applicant must provide 
with the application either:
    (i) A photocopy of the first page of the Application for Asylum and 
Withholding of Removal (Form I-589); or
    (ii) If the alien is not in possession of a photocopy of the first 
page of the Form I-589, a statement to that effect giving the date of 
filing and the location of the Service office or Immigration Court at 
which it was filed;
    (2) Parolee. If the alien is a principal applicant who was paroled 
into the United States prior to December 31, 1995, after having been 
identified as having a credible fear of persecution, or paroled for 
emergent reasons or reasons deemed strictly in the public interest, the 
applicant must provide with the application either:
    (i) A photocopy of the Arrival-Departure Record (Form I-94) issued 
when he or she was granted parole; or
    (ii) If the alien is not in possession of the original Form I-94, a 
statement to that effect giving the date of parole and the location of 
the Service port-of-entry at which parole was authorized.
    (3) Child without parents. If the alien is a principal applicant who 
arrived in the United States as a child without parents in the United 
States, the applicant must provide with the application:
    (i) Evidence, showing the date, location, and manner of his or her 
arrival in the United States, such as:
    (A) A photocopy of the Form I-94 issued at the time of the alien's 
arrival in the United States;
    (B) A copy of the airline or vessel records showing transportation 
to the United States;
    (C) Other similar documentation; or
    (D) If none of the documents in paragraphs (k)(3)(i)(A)-(C) of this 
section are available, a statement from the applicant, accompanied by 
whatever evidence the applicant is able to submit in support of that 
statement; and
    (ii) Evidence establishing the absence of the child's parents, which 
may include either:
    (A) Evidence showing the deaths of, or disappearance or desertion 
by, the applicant's parents; or
    (B) Evidence showing that the applicant's parents did not live in 
the United States with the applicant. Such evidence may include, but is 
not limited to, documentation or affidavits showing that the applicant's 
parents have been continuously employed outside the United States, are 
deceased, disappeared, or abandoned the applicant prior to the 
applicant's arrival, or were otherwise engaged in activities showing 
that they were not in the United States, or (if they have been in the 
United States) that the applicant and his or her parents did not reside 
together.
    (4) Orphaned child. If the alien is a principal applicant who is or 
was a child who became orphaned subsequent

[[Page 1128]]

to arrival in the United States, the applicant must provide with the 
application:
    (i) Evidence, showing the date, location, and manner of his or her 
arrival in the United States, such as:
    (A) A photocopy of the Form I-94 issued at the time of the alien's 
arrival in the United States;
    (B) A copy of the airline or vessel records showing transportation 
to the United States;
    (C) Other similar documentation; or
    (D) If none of the documents in paragraphs (k)(4)(i)(A)-(C) of this 
section are available, a statement from the applicant, accompanied by 
whatever evidence the applicant is able to submit in support of that 
statement; and
    (ii) Either:
    (A) The death certificates of both parents (or in the case of a 
child having only one parent, the death certificate of the sole parent) 
showing that the death or deaths occurred after the date of the 
applicant's arrival in the United States;
    (B) Evidence from a State, local, or other court or governmental 
authority having jurisdiction and authority to make decisions in matters 
of child welfare establishing the disappearance of, the separation or 
loss from, or desertion by, both parents (or, in the case of a child 
born out of wedlock who has not been legitimated, the sole parent); or
    (C) Evidence of:
    (1) Either:
    (i) The child having only a sole parent, as that term is defined in 
Sec. 204.3(b) of this chapter;
    (ii) The death of one parent; or
    (iii) Certification by competent Haitian authorities that one parent 
is presumed dead as a result of his or her disappearance, within the 
meaning of that term as set forth in Sec. 204.3(b) of this chapter; and
    (2) A copy of a written statement executed by the sole parent, or 
the sole remaining parent, irrevocably releasing all parental rights 
based upon the inability of that parent to provide proper care for the 
child.
    (5) Abandoned child. If the alien is a principal applicant who was 
abandoned by parents or guardians prior to April 1, 1998, and has 
remained abandoned since such abandonment, the applicant must provide 
with the application:
    (i) Evidence, showing the date, location, and manner of his or her 
arrival in the United States, such as:
    (A) A photocopy of the Form I-94 issued at the time of the alien's 
arrival in the United States;
    (B) A copy of the airline or vessel records showing transportation 
to the United States;
    (C) Other similar documentation; or
    (D) If none of the documents in paragraphs (k)(5)(i)(A)-(C) of this 
section are available, a statement from the applicant, accompanied by 
whatever evidence the applicant is able to submit in support of that 
statement; and
    (ii) Either:
    (A) Evidence from a State, local, or other court or governmental 
authority having jurisdiction and authority to make decisions in matters 
of child welfare establishing such abandonment; or
    (B) Evidence to establish that the applicant would have been 
considered to be abandoned according to the laws of the State where he 
or she resides, or where he or she resided at the time of the 
abandonment, had the issue been presented to the proper authorities.
    (l) Evidence relating to applications by dependents under section 
902(d) of HRIFA--(1) Evidence of spousal relationship. If the alien is 
applying as the spouse of a principal HRIFA beneficiary, the applicant 
must provide with the application a copy of their certificate of 
marriage and copies of documents showing the legal termination of all 
other marriages by the applicant or the other beneficiary.
    (2) Evidence of parent-child relationship. If the applicant is 
applying as the child, unmarried son, or unmarried daughter of a 
principal HRIFA beneficiary, and the principal beneficiary is not the 
applicant's biological mother, the applicant must provide with the 
application evidence to demonstrate the parent-child relationship 
between the principal beneficiary and the applicant. Such evidence may 
include copies of the applicant's parent's marriage certificate and 
documents showing the legal termination of all other marriages, an 
adoption decree, or other relevant evidence.

[[Page 1129]]

    (m) Secondary evidence. Except as otherwise provided in this 
paragraph, if the primary evidence required in this section is 
unavailable, church or school records, or other secondary evidence 
pertinent to the facts in issue, may be submitted. If such documents are 
unavailable, affidavits may be submitted. The applicant may submit as 
many types of secondary evidence as necessary to establish birth, 
marriage, or other relevant events. Documentary evidence establishing 
that primary evidence is unavailable must accompany secondary evidence 
of birth or marriage in the home country. The unavailability of such 
documents may be shown by submission of a copy of the written request 
for a copy of such documents which was sent to the official keeper of 
the records. In adjudicating the application for adjustment of status 
under section 902 of HRIFA, the Service or immigration judge shall 
determine the weight to be given such secondary evidence. Secondary 
evidence may not be submitted in lieu of the documentation specified in 
paragraphs (i) or (j) of this section. However, subject to verification 
by the Service, if the documentation specified in this paragraph or in 
paragraphs (h)(3)(i), (i), (j), (l)(1), and (l)(2) of this section is 
already contained in the Service's file relating to the applicant, the 
applicant may submit an affidavit to that effect in lieu of the actual 
documentation.
    (n) Authorization to be employed in the United States while the 
application is pending--(1) Application for employment authorization. An 
applicant for adjustment of status under section 902 of HRIFA who wishes 
to obtain initial or continued employment authorization during the 
pendency of the adjustment application must file an Application for 
Employment Authorization (Form I-765) with the Service, including the 
fee as set forth in Sec. 103.7(b)(1) of 8 CFR chapter I. The applicant 
may submit Form I-765 either concurrently with or subsequent to the 
filing of the application for HRIFA benefits on Form I-485.
    (2) Adjudication and issuance. Employment authorization may not be 
issued to an applicant for adjustment of status under section 902 of 
HRIFA until the adjustment application has been pending for 180 days, 
unless the Director of the Nebraska Service Center verifies that Service 
records contain evidence that the applicant meets the criteria set forth 
in section 902(b) or 902(d) of HRIFA, and determines that there is no 
indication that the applicant is clearly ineligible for adjustment of 
status under section 902 of HRIFA, in which case the Director may 
approve the application for employment authorization, and issue the 
resulting document, immediately upon such verification. If the Service 
fails to adjudicate the application for employment authorization upon 
expiration of the 180-day waiting period, or within 90 days of the 
filing of application for employment authorization, whichever comes 
later, the alien shall be eligible for interim employment authorization 
in accordance with Sec. 1274a.13(d) of this chapter. Nothing in this 
section shall preclude an applicant for adjustment of status under HRIFA 
from being granted an initial employment authorization or an extension 
of employment authorization under any other provision of law or 
regulation for which the alien may be eligible.
    (o) Adjudication of HRIFA applications filed with the Service--(1) 
Referral for interview. Except as provided in paragraphs (o)(2) and 
(o)(3) of this section, all aliens filing applications for adjustment of 
status with the Service under this section must be personally 
interviewed by an immigration officer at a local office of the Service. 
If the Director of the Nebraska Service Center determines that an 
interview of the applicant is necessary, the Director shall forward the 
case to the appropriate local Service office for interview and 
adjudication.
    (2) Approval without interview. Upon examination of the application, 
including all other evidence submitted in support of the application, 
all relevant Service records and all other relevant law enforcement 
indices, the Director may approve the application without an interview 
if the Director determines that:
    (i) The alien's claim to eligibility for adjustment of status under 
section 902 of HRIFA is verified through existing Service records; and

[[Page 1130]]

    (ii) The alien is clearly eligible for adjustment of status.
    (3) Denial without interview. If, upon examination of the 
application, all supporting documentation, all relevant Service records, 
and all other relevant law enforcement indices, the Director determines 
that the alien is clearly ineligible for adjustment of status under 
HRIFA and that an interview of the applicant is not necessary, the 
Director may deny the application.
    (p) Adjudication of HRIFA applications filed in pending exclusion, 
deportation, or removal proceedings--(1) Proceedings pending before an 
Immigration Court. Except as provided in paragraph (p)(4) of this 
section, the Immigration Court shall have sole jurisdiction over an 
application for adjustment of status under this section filed by an 
alien who is in exclusion, deportation, or removal proceedings pending 
before an immigration judge or the Board, or who has a pending motion to 
reopen or motion to reconsider filed with an immigration judge or the 
Board on or before May 12, 1999. The immigration judge having 
jurisdiction over the exclusion, deportation, or removal proceedings 
shall have jurisdiction to accept and adjudicate any application for 
adjustment of status under section 902 of HRIFA during the course of 
such proceedings. All applications for adjustment of status under 
section 902 of HRIFA filed with an Immigration Court shall be subject to 
the requirements of Sec. Sec. 1003.11 and 1003.31 of this chapter.
    (2) Motion to reopen or motion to reconsider. If an alien who has a 
pending motion to reopen or motion to reconsider timely filed with an 
immigration judge on or before May 12, 1999, files an application for 
adjustment of status under section 902 of HRIFA, the immigration judge 
shall reopen the alien's proceedings for consideration of the adjustment 
application, unless the alien is clearly ineligible for adjustment of 
status under section 902 of HRIFA.
    (3) Proceedings pending before the Board. Except as provided in 
paragraph (d)(4) of this section, in the case of an alien who either has 
a pending appeal with the Board or has a pending motion to reopen or 
motion to reconsider timely filed with the Board on or before May 12, 
1999, the Board shall remand, or reopen and remand, the proceedings to 
the Immigration Court for the sole purpose of adjudicating an 
application for adjustment of status under section 902 of HRIFA, unless 
the alien is clearly ineligible for adjustment of status under section 
902 of HRIFA. If the immigration judge denies, or the alien fails to 
file, the application for adjustment of status under section 902 of 
HRIFA, the immigration judge shall certify the decision to the Board for 
consideration in conjunction with the applicant's previously pending 
appeal or motion.
    (4) Administrative closure of exclusion, deportation, or removal 
proceedings. (i) An alien who is in exclusion, deportation, or removal 
proceedings, or who has a pending motion to reopen or a motion to 
reconsider such proceedings filed on or before May 12, 1999, may request 
that the proceedings be administratively closed, or that the motion be 
indefinitely continued, in order to allow the alien to file such 
application with the Service as prescribed in paragraph (g) of this 
section. If the alien appears to be eligible to file an application for 
adjustment of status under this section, the Immigration Court or the 
Board (whichever has jurisdiction) shall, with the concurrence of the 
Service, administratively close the proceedings or continue indefinitely 
the motion.
    (ii) In the case of an otherwise-eligible alien whose exclusion, 
deportation, or removal proceedings have been administratively closed 
for reasons not specified in this section, the alien may only apply 
before the Service for adjustment of status under this section.
    (q) Approval of HRIFA applications--(1) Applications approved by the 
Service. If the Service approves the application for adjustment of 
status under the provisions of section 902 of HRIFA, the director shall 
record the alien's lawful admission for permanent residence as of the 
date of such approval and notify the applicant accordingly. The director 
shall also advise the alien regarding the delivery of his or her 
Permanent Resident Card and of the process for obtaining temporary 
evidence of alien registration. If the alien had previously been issued 
a final order of exclusion,

[[Page 1131]]

deportation, or removal, such order shall be deemed canceled as of the 
date of the director's approval of the application for adjustment of 
status. If the alien had been in exclusion, deportation, or removal 
proceedings that were administratively closed, such proceedings shall be 
deemed terminated as of the date of approval of the application for 
adjustment of status by the director.
    (2) Applications approved by an immigration judge or the Board. If 
an immigration judge or (upon appeal) the Board grants an application 
for adjustment under the provisions of section 902 of HRIFA, the date of 
the alien's lawful admission for permanent residence shall be the date 
of such grant.
    (r) Review of decisions by the Service denying HRIFA applications--
(1)(i) Denial notification. If the Service denies the application for 
adjustment of status under the provisions of section 902 of HRIFA, the 
director shall notify the applicant of the decision and of any right to 
renew the application in proceedings before the Immigration Court.
    (ii) An alien made eligible for adjustment of status under HRIFA by 
the LIFE Act amendments and whose case has not been referred to EOIR 
under paragraphs (r)(2) or (r)(3) of this section, may file a motion to 
reopen with the Service.
    (2) Renewal of application for HRIFA benefits in removal, 
deportation, or exclusion proceedings. An alien who is not the subject 
of a final order of removal, deportation, or exclusion may renew his or 
her application for adjustment under section 902 of HRIFA during the 
course of such removal, deportation, or exclusion proceedings.
    (i) Initiation of removal proceedings. In the case of an alien who 
is not maintaining valid nonimmigrant status and who had not previously 
been placed in exclusion, deportation, or removal proceedings, the 
director shall initiate removal proceedings in accordance with Sec. 
1239.1 of this chapter.
    (ii) Recalendaring or reinstatement of prior proceedings. In the 
case of an alien whose previously initiated exclusion, deportation, or 
removal proceeding had been administratively closed or continued 
indefinitely under paragraph (p)(4) of this section, the director shall 
make a request for recalendaring or reinstatement to the Immigration 
Court that had administratively closed the proceeding, or the Board, as 
appropriate, when the application has been denied. The Immigration Court 
or the Board will then recalendar or reinstate the prior exclusion, 
deportation, or removal proceeding.
    (iii) Filing of renewed application. A principal alien may file a 
renewed application for HRIFA benefits with the Immigration Court either 
before or after March 31, 2000, if he or she had filed his or her 
initial application for such benefits with the Service on or before 
March 31, 2000. A dependent of a principal applicant may file such 
renewed application with the Immigration Court either before or after 
March 31, 2000, regardless of when he or she filed his or her initial 
application for HRIFA benefits with the Service.
    (3) Aliens with final orders. In the case of an alien who is the 
subject of an outstanding final order of exclusion, deportation, or 
removal, the Service shall refer the decision to deny the application by 
filing a Notice of Certification (Form I-290C) with the Immigration 
Court that issued the final order for consideration in accordance with 
paragraph (s) of this section.
    (4)(i) An alien whose case has been referred to the Immigration 
Court under paragraphs (r)(2) or (r)(3) of this section, or who filed an 
appeal with the Board after his or her application for adjustment of 
status under section 902 of HRIFA was denied, and whose proceedings are 
pending, and who is now eligible for adjustment of status under HRIFA as 
amended by section 1505(b) of the LIFE Act and its amendments, may renew 
the application for adjustment of status with either the Immigration 
Court or the Board, whichever has jurisdiction. The application will be 
adjudicated in accordance with section 1505(b) of the LIFE Act and its 
amendments.
    (ii) An alien present in the United States who is subject to a final 
order of exclusion, deportation or removal after his or her HRIFA 
adjustment application was denied by an Immigration Court or the Board, 
but who was made eligible for HRIFA adjustment as a result of section 
1505(b) of the LIFE Act

[[Page 1132]]

and its amendments, may file a motion to reopen with either the 
Immigration Court or the Board, whichever had jurisdiction last. Such 
motion to reopen must be filed on or before June 19, 2001.
    (s) Action on decisions referred to the Immigration Court by a 
Notice of Certification (Form I-290C)--(1) General. Upon the referral by 
a Notice of Certification (Form I-290C) of a decision to deny the 
application, in accordance with paragraph (r)(3) of this section, the 
immigration judge shall conduct a hearing, under the authority contained 
in Sec. 3.10 of this chapter, to determine whether the alien is 
eligible for adjustment of status under section 902 of HRIFA. Such 
hearing shall be conducted under the same rules of procedure as 
proceedings conducted under part 240 of this chapter, except the scope 
of review shall be limited to a determination of the alien's eligibility 
for adjustment of status under section 902 of HRIFA. During such 
proceedings, all parties are prohibited from raising or considering any 
unrelated issues, including, but not limited to, issues of 
admissibility, deportability, removability, and eligibility for any 
remedy other than adjustment of status under section 902 of HRIFA. 
Should the alien fail to appear for such hearing, the immigration judge 
shall deny the application for adjustment under section 902 of HRIFA.
    (2) Stay pending review. When the Service refers a decision to the 
Immigration Court on a Notice of Certification (Form I-290C) in 
accordance with paragraph (r)(3) of this section, the referral shall not 
stay the execution of the final order. Execution of such final order 
shall proceed unless a stay of execution is specifically granted by the 
immigration judge, the Board, or an authorized Service officer.
    (3) Appeal of Immigration Court decision. Once the immigration judge 
issues his or her decision on the application, either the alien or the 
Service may appeal the decision to the Board. Such appeal must be filed 
pursuant to the requirements for appeals to the Board from an 
Immigration Court decision set forth in Sec. Sec. 1003.3 and 1003.8 of 
this chapter.
    (4) Rescission or reopening of the decision of an Immigration Court. 
The decision of an Immigration Court under paragraph (s)(1) of this 
section denying an application for adjustment under section 902 of HRIFA 
for failure to appear may be rescinded or reopened only:
    (i) Upon a motion to reopen filed within 180 days after the date of 
the denial if the alien demonstrates that the failure to appear was 
because of exceptional circumstances as defined in section 240(e)(1) of 
the Act;
    (ii) Upon a motion to reopen filed at any time if the alien 
demonstrates that he or she did not receive notice of the hearing in 
person (or, if personal service was not practicable, through service by 
mail to the alien or to the alien's counsel of record, if any) or the 
alien demonstrates that he or she was in Federal or State custody and 
the failure to appear was through no fault of the alien; or
    (iii) Upon a motion to reopen filed not later than June 19, 2001, by 
an alien present in the United States who became eligible for adjustment 
of status under HRIFA, as amended by section 1505, of Public Law 106-
554.
    (t) Parole authorization for purposes of travel--(1) Travel from and 
return to the United States while the application for adjustment of 
status is pending. If an applicant for benefits under section 902 of 
HRIFA desires to travel outside, and return to, the United States while 
the application for adjustment of status is pending, he or she must file 
a request for advance parole authorization on an Application for Travel 
Document (Form I-131), with fee as set forth in Sec. 103.7(b)(1) of 8 
CFR chapter I and in accordance with the instructions on the form. If 
the alien is either in deportation or removal proceedings, or subject to 
a final order of deportation or removal, the Form I-131 must be 
submitted to the Director, Office of International Affairs; otherwise 
the Form I-131 must be submitted to the Director of the Nebraska Service 
Center, who shall have jurisdiction over such applications. Unless the 
applicant files an advance parole request prior to departing from the 
United States, and the Service approves such request, his or her 
application for adjustment of status under section 902 of HRIFA is 
deemed to be abandoned as of the moment of his or her departure. Parole

[[Page 1133]]

may only be authorized pursuant to the authority contained in, and the 
standards prescribed in, section 212(d)(5) of the Act.
    (2) Parole authorization for the purpose of filing an application 
for adjustment of status under section 902 of HRIFA. (i) An otherwise 
eligible applicant who is outside the United States and wishes to come 
to the United States in order to apply for benefits under section 902 of 
HRIFA may request parole authorization for such purpose by filing an 
Application for Travel Document (Form I-131) with the Nebraska Service 
Center, at P.O. Box 87245, Lincoln, NE 68501-7245. Such application must 
be supported by a photocopy of the Form I-485 that the alien will file 
once he or she has been paroled into the United States. The applicant 
must include photocopies of all the supporting documentation listed in 
paragraph (h) of this section, except the filing fee, the medical 
report, the fingerprint card, and the local police clearances.
    (ii) If the Director of the Nebraska Service Center is satisfied 
that the alien will be eligible for adjustment of status once the alien 
has been paroled into the United States and files the application, he or 
she may issue an Authorization for Parole of an Alien into the United 
States (Form I-512) to allow the alien to travel to, and be paroled 
into, the United States for a period of 60 days.
    (iii) The applicant shall have 60 days from the date of parole to 
file the application for adjustment of status. If the alien files the 
application for adjustment of status within that 60-day period, the 
Service may re-parole the alien for such time as is necessary for 
adjudication of the application. Failure to file such application for 
adjustment of status within 60 days shall result in the alien being 
returned to the custody of the Service and being examined as an arriving 
alien applying for admission. Such examination will be conducted in 
accordance with the provisions of section 235(b)(1) of the Act if the 
alien is inadmissible under section 212(a)(6)(C) or 212(a)(7) of the 
Act, or section 240 of the Act if the alien is inadmissible under any 
other grounds.
    (iv) Parole may only be authorized pursuant to the authority 
contained in, and the standards prescribed in, section 212(d)(5) of the 
Act. The authority of the Director of the Nebraska Service Center to 
authorize parole from outside the United States under this provision 
shall expire on March 31, 2000.
    (3) Effect of departure on an outstanding warrant of exclusion, 
deportation, or removal. If an alien who is the subject of an 
outstanding final order of exclusion, deportation, or removal departs 
from the United States, with or without an advance parole authorization, 
such final order shall be executed by the alien's departure. The 
execution of such final order shall not preclude the applicant from 
filing an Application for Permission to Reapply for Admission Into the 
United States After Deportation or Removal (Form I-212) in accordance 
with Sec. 1212.2 of this chapter.
    (u) Tolling the physical presence in the United States provision for 
certain individuals--(1) Departure with advance authorization for 
parole. In the case of an alien who departed the United States after 
having been issued an Authorization for Parole of an Alien into the 
United States (Form I-512), and who returns to the United States in 
accordance with the conditions of that document, the physical presence 
in the United States requirement of section 902(b)(1) of HRIFA is tolled 
while the alien is outside the United States pursuant to the issuance of 
the Form I-512.
    (2) Request for parole authorization from outside the United States. 
In the case of an alien who is outside the United States and submits an 
application for parole authorization in accordance with paragraph (t)(2) 
of this section, and such application for parole authorization is 
granted by the Service, the physical presence requirement contained in 
section 902(b)(1) of HRIFA is tolled from the date the application is 
received at the Nebraska Service Center until the alien is paroled into 
the United States pursuant to the issuance of the Form I-512.
    (3) Departure without advance authorization for parole. In the case 
of an otherwise-eligible applicant who departed the United States on or 
before December 31, 1998, the physical presence in the United States 
provision of section

[[Page 1134]]

902(b)(1) of HRIFA is tolled as of October 21, 1998, and until July 12, 
1999.
    (v) Judicial review of HRIFA adjustment of status determinations. 
Pursuant to the provisions of section 902(f) of HRIFA, there shall be no 
judicial appeal or review of any administrative determination as to 
whether the status of an alien should be adjusted under the provisions 
of section 902 of HRIFA.

[64 FR 25767, May 12, 1999, as amended at 65 FR 15844, Mar. 24, 2000; 66 
FR 29452, May 1, 2001; 67 FR 78673, Dec. 26, 2002]



Sec. 1245.18  How can physicians (with approved Forms I-140) that are serving 

in medically underserved areas or at a Veterans Affairs facility adjust 

status?

    (a) Which physicians are eligible for this benefit? Any alien 
physician who has been granted a national interest waiver under Sec. 
204.12 of 8 CFR chapter 1 may submit Form I-485 during the 6-year period 
following Service approval of a second preference employment-based 
immigrant visa petition.
    (b) Do alien physicians have special time-related requirements for 
adjustment? (1) Alien physicians who have been granted a national 
interest waiver under Sec. 204.12 of 8 CFR chapter I must meet all the 
adjustment of status requirements of this part.
    (2) The Service shall not approve an adjustment application filed by 
an alien physician who obtained a waiver under section 203(b)(2)(B)(ii) 
of the Act until the alien physician has completed the period of 
required service established in Sec. 204.12 of 8 CFR chapter I.
    (c) Are the filing procedures and documentary requirements different 
for these particular alien physicians? Alien physicians submitting 
adjustment applications upon approval of an immigrant petition are 
required to follow the procedures outlined within this part with the 
following modifications.
    (1) Delayed fingerprinting. Fingerprinting, as noted in the Form I-
485 instructions, will not be scheduled at the time of filing. 
Fingerprinting will be scheduled upon the physician's completion of the 
required years of service.
    (2) Delayed medical examination. The required medical examination, 
as specified in Sec. 1245.5, shall not be submitted with Form I-485. 
The medical examination report shall be submitted with the documentary 
evidence noting the physician's completion of the required years of 
service.
    (d) Are alien physicians eligible for Form I-766, Employment 
Authorization Document? (1) Once the Service has approved an alien 
physician's Form I-140 with a national interest waiver based upon full-
time clinical practice in an underserved area or at a Veterans Affairs 
facility, the alien physician should apply for adjustment of status to 
that of lawful permanent resident on Form I-485, accompanied by an 
application for an Employment Authorization Document (EAD), Form I-765, 
as specified in Sec. 274a.12(c)(9) of 8 CFR chapter I.
    (2) Since section 203(b)(2)(B)(ii) of the Act requires the alien 
physician to complete the required employment before the Service can 
approve the alien physician's adjustment application, an alien physician 
who was in lawful nonimmigrant status when he or she filed the 
adjustment application is not required to maintain a nonimmigrant status 
while the adjustment application remains pending. Even if the alien 
physician's nonimmigrant status expires, the alien physician shall not 
be considered to be unlawfully present, so long as the alien physician 
is practicing medicine in accordance with Sec. 204.5(k)(4)(iii) of 8 
CFR chapter I.
    (e) When does the Service begin counting the physician's 5-year or 
3-year medical practice requirement? Except as provided in this 
paragraph, the 6-year period during which a physician must provide the 
required 5 years of service begins on the date of the notice approving 
the Form I-140 and the national interest waiver. Alien physicians who 
have a 3-year medical practice requirement must complete their service 
within the 4-year period beginning on that date.
    (1) If the physician does not already have employment authorization 
and so must obtain employment authorization before the physician can 
begin working, then the period begins on the date the Service issues the 
employment authorization document.
    (2) If the physician formerly held status as a J-1 nonimmigrant, but 
obtained a waiver of the foreign residence

[[Page 1135]]

requirement and a change of status to that of an H-1B nonimmigrant, 
pursuant to section 214(1) of the Act, as amended by section 220 of 
Public Law 103-416, and Sec. 212.7(c)(9) of 8 CFR chapter I, the period 
begins on the date of the alien's change from J-1 to H-1B status. The 
Service will include the alien's compliance with the 3-year period of 
service required under section 214(l) in calculating the alien's 
compliance with the period of service required under section 
203(b)(2)(B)(ii)(II) of the Act and this section.
    (3) An alien may not include any time employed as a J-1 nonimmigrant 
physician in calculating the alien's compliance with the 5 or 3-year 
medical practice requirement. If an alien is still in J-1 nonimmigrant 
status when the Service approves a Form I-140 petition with a national 
interest job offer waiver, the aggregate period during which the medical 
practice requirement period must be completed will begin on the date the 
Service issues an employment authorization document.
    (f) Will the Service provide information to the physician about 
evidence and supplemental filings? The Service shall provide the 
physician with the information and the projected timetables for 
completing the adjustment process, as described in this paragraph. If 
the physician either files the Form I-485 concurrently with or waits to 
subsequently file the Form I-485 while the previously filed Form I-140 
is still pending, then the Service will given this information upon 
approval of the Form I-140. If the physician does not file the 
adjustment application until after approval of the Form I-140 visa 
petition, the Service shall provide this information upon receipt of the 
Form I-485 adjustment application.
    (1) The Service shall note the date that the medical service begins 
(provided the physician already had work authorization at the time the 
Form I-140 was filed) or the date that an employment authorization 
document was issued.
    (2) A list of the evidence necessary to satisfy the requirements of 
paragraphs (g) and (h) of this section.
    (3) A projected timeline noting the dates that the physician will 
need to submit preliminary evidence two years and 120 days into his or 
her medical service in an underserved area or VA facility, and a 
projected date six years and 120 days in the future on which the 
physician's final evidence of completed medical service will be due.
    (g) Will physicians be required to file evidence prior to the end of 
the 5 or 3-year period? (1) For physicians with a 5-year service 
requirement, no later than 120 days after the second anniversary of the 
approval of Petition for Immigrant Worker, Form I-140, the alien 
physician must submit to the Service Center having jurisdiction over his 
or her place of employment documentary evidence that proves the 
physician has in fact fulfilled at least 12 months of qualifying 
employment. This may be accomplished by submitting the following.
    (i) Evidence noted in paragraph (h) of this section that is 
available at the second anniversary of the I-140 approval.
    (ii) Documentation from the employer attesting to the fill-time 
medical practice and the date on which the physician began his or her 
medical service.
    (2) Physicians with a 3-year service requirement are not required to 
make a supplemental filing, and must only comply with the requirements 
of paragraph (h) of this section.
    (h) What evidence is needed to prove final compliance with the 
service requirement? No later than 120 days after completion of the 
service requirement established under Sec. 204.12(a) of this section, 
an alien physician must submit to the Service Center having jurisdiction 
over his or her place of employment documentary evidence that proves the 
physician has in fact satisfied the service requirement. Such evidence 
must include, but is not limited to:
    (1) Individual Federal income tax returns, including copies of the 
alien'sW-2 forms, for the entire 3-year period or the balance years of 
the 5-year period that follow the submission of the evidence required in 
paragraph (e) of this section;
    (2) Documentation from the employer attesting to the full-time 
medical service rendered during the required aggregate period. The 
documentation shall

[[Page 1136]]

address instances of breaks in employment, other than routine breaks 
such as paid vacations;
    (3) If the physician established his or her own practice, documents 
noting the actual establishment of the practice, including incorporation 
of the medical practice (if incorporated), the business license, and the 
business tax returns and tax withholding documents submitted for the 
entire 3 year period, or the balance years of the 5-year period that 
follow the submission of the evidence required in paragraph (e) of this 
section.
    (i) What if the physician does not comply with the requirements of 
paragraphs (f) and (g) of this section? If an alien physician does not 
submit (in accordance with paragraphs (f) and (g) of this section) proof 
that he or she has completed the service required under Sec. 204.12(a) 
of 8 CFR chapter I, the Service shall serve the alien physician with a 
written notice of intent to deny the alien physician's application for 
adjustment of status and, after the denial is finalized, to revoke 
approval of the Form I-140 and national interest waiver. The written 
notice shall require the alien physician to provide the evidence 
required by paragraph (f) or (g) of this section within 30 days of the 
date of the written notice. The Service shall not extend this 30-day 
period. If the alien physician fails to submit the evidence within the 
30-day period established by the written notice, the Service shall deny 
the alien physician's application for adjustment of status and shall 
revoke approval of the Form I-140 and of the national interest waiver.
    (j) Will a Service officer interview the physician? (1) Upon 
submission of the evidence noted in paragraph (h) of this section, the 
Service shall match the documentary evidence with the pending form I-485 
and schedule the alien physician for fingerprinting at an Application 
Support Center.
    (2) The local Service office shall schedule the alien for an 
adjustment interview with a Service officer, unless the Service waives 
the interview as provided in Sec. 1245.6. The local Service office 
shall also notify the alien if supplemental documentation should either 
be mailed to the office, or brought to the adjustment interview.
    (k) Are alien physicians allowed to travel outside the United States 
during the mandatory 3 or 5-year service period? An alien physician who 
has been granted a national interest waiver under Sec. 204.12 of this 
chapter and has a pending application for adjustment of status may 
travel outside of the United States during the required 3 or 5-year 
service period by obtaining advanced parole prior to traveling. Alien 
physicians may apply for advanced parole by submitting form I-131, 
Application for Travel Document, to the Service office having 
jurisdiction over the alien physician's place of business.
    (l) What if the Service denies the adjustment application? If the 
Service denies the adjustment application, the alien physician may renew 
the application in removal proceedings.

[65 FR 53895, Sept. 6, 2000; 65 FR 57861, Sept. 26, 2000; 65 FR 57944, 
Sept. 27, 2000; 67 FR 49563, July 31, 2002]



Sec. 1245.20  Adjustment of status of Syrian asylees under Public Law 106-378.

    (a) Eligibility. An alien is eligible to apply to adjust status 
under Public Law 106-378 if the alien is:
    (1) A Jewish national of Syria;
    (2) Arrived in the United States after December 31, 1991, after 
being permitted by the Syrian Government to depart from Syria;
    (3) Is physically present in the United States at the time of filing 
the application to adjust status;
    (4) Applies for adjustment of status no later than October 26, 2001, 
or has a pending application for adjustment of status under the Act that 
was filed with the Service before October 27, 2000;
    (5) Has been physically present in the United States for at least 1 
year after being granted asylum;
    (6) Has not firmly resettled in any foreign country; and
    (7) Is admissible as an immigrant under the Act at the time of 
examination for adjustment.
    (b) Qualified family members. The spouse, child, or unmarried son or 
daughter of an alien eligible for adjustment under Public Law 106-378 is 
eligible to apply for adjustment of status under this section if the 
alien meets

[[Page 1137]]

the criteria set forth in paragraphs (a)(4) through (a)(7) of this 
section.
    (c) Grounds not to be applied and waivers. The grounds of 
inadmissibility found at section 212(a)(4) of the Act, relating to 
public charge, and at section 212(a)(7)(A) of the Act, relating to 
documentation, do not apply to applicants for adjustment of status under 
Public Law 106-378. Applicants may also request the waivers found at 
sections 212(h), (i), and (k) of the Act, to the extent they are 
eligible.
    (d) Application.--(1) New applications. An applicant must submit 
From I-485, Application to Register Permanent Residence or Adjust 
Status, along with the appropriate application fee as stated in Sec. 
103.7(b)(1) of 8 CFR chapter I, to the Nebraska Service Center. The 
application must physically be received by the Nebraska Service Center 
no later than close of business on October 26, 2001. Applicants 14 years 
of age or older must also submit the fingerprinting service fee provided 
for in Sec. 103.7(b)(1) of this chapter. Each application filed must be 
accompanied by two photographs as described in the Form I-485 
instructions; a completed Biographic Information Sheet (Form G-325A) if 
the applicant is between 14 and 79 years of age; and a report of medical 
examination (Form I-693 and vaccination supplement) as specified in 8 
CFR 245.5. On Form I-485, Part 2, question ``h'', applicants must write 
``SYRIAN ASYLEE--P.L. 106-378'' to indicate that they are applying based 
on this provision.
    (2) Filing of requests to change the basis of a pending Form I-485--
(i) Request. An eligible Syrian national with a Form I-485 that is 
currently pending with the Service may request that the basis of his or 
her Form I-485 be changed to Public Law 106-378. The alien must submit 
this request in writing to the Nebraska Service Center. The request may 
only be granted if the 2,000 adjustment limit specified in paragraph (i) 
of this section has not yet been reached. The 2,000 adjustment limit 
includes both new and pending Form I-485 petitions. The applicant should 
clearly annotate ``SYRIAN ASYLEE P.L. 106-378'' on the envelope to 
identify the correspondence.
    (ii) Time limit. If the Form I-485 was filed before October 27, 
2000, there is no time limit for requesting a change of basis for 
adjustment of status. However, if the Form I-485 was filed on or after 
October 27, 2001, then the Service must receive the request for change 
of basis no later than October 27, 2001.
    (e) Evidence. Applicants must submit evidence that demonstrates they 
are eligible for adjustment of status under Public Law 106-378. Required 
evidence includes the following:
    (1) A copy of the alien's passport;
    (2) A copy of the applicant's Arrival-Departure Record (Form I-94) 
or other evidence of inspection and admission or parole into the United 
States after December 31, 1991;
    (3) Documentation including, but not limited to, those listed at 
Sec. 1245.15(j)(2) to establish physical presence in the United States 
for at least 1 year after being granted asylum;
    (4) If the applicant is the spouse of a principal alien applying for 
adjustment, he or she must submit a marriage certificate, if available, 
or other evidence to demonstrate the marriage; and
    (5) If the applicant is the child of a principal alien applying for 
adjustment of status, he or she must submit a birth certificate, if 
available, or other evidence to demonstrate the relationship.
    (f) Employment authorization. Applicants who want to obtain 
employment authorization based on a pending application for adjustment 
of status under Public Law 106-378 may submit Form I-765, Application 
for Employment Authorization, along with the application fee listed in 
Sec. 103.7(b)(1) of 8 CFR chapter I. If the Service approves the 
application for employment authorization, the applicant will be issued 
an employment authorization document.
    (g) Travel while an application to adjust status is pending. 
Applicants who wish to travel abroad and re-enter the United States 
while an application for adjustment of status is pending without being 
considered to have abandoned that application must obtain advance parole 
prior to departing the United States. To obtain advance parole, 
applicants must file Form I-131, Application for a Travel Document, 
along with the application fee listed in

[[Page 1138]]

Sec. 103.7(b)(1) of 8 CFR chapter I. If the Service approves Form I-
131, the alien will be issued Form I-512, Authorization for the Parole 
of an Alien into the United States.
    (h) Approval and date of admission as a lawful permanent resident. 
When the Service approves an application to adjust status to that of 
lawful permanent resident based on Public Law 106-378, the applicant 
will be notified in writing of the Service's decision. In addition, the 
record of the alien's admission as a lawful permanent resident will be 
recorded as of the date 1 year before the approval of the application.
    (i) Number of adjustments under Public Law 106-378. No more than 
2,000 aliens may have their status adjusted to that of lawful permanent 
resident under Public Law 106-378.
    (j) Notice of Denial--(1) General. When the Service denies an 
application to adjust status to that of lawful permanent resident based 
on Public Law 106-378, the applicant will be notified of the decision 
and the reason for the denial in writing.
    (2) Cases involving requests to change the basis of a pending Form 
I-485. If an applicant who requested that a pending Form I-485, be 
considered under Public Law 106-378, is found to be ineligible under 
Public Law 106-378, but he or she appears eligible for adjustment under 
the original section of the Act under which the Form I-485 was filed, 
the Service will provide the applicant with notice of this fact. 
Processing the Form I-485 under the original provision of law will 
resume as appropriate.
    (k) Administrative review. An alien whose application for adjustment 
of status under Public Law 106-378 is denied by the Service may not 
appeal the decision. However, the denial will be without prejudice to 
the alien's right to renew the application in proceedings under 8 CFR 
part 1240 provided that the 2,000 statutory limit on such adjustments 
has not yet been reached.

[66 FR 27448, May 17, 2001]



Sec. 1245.21  Adjustment of status of certain nationals of Vietnam, Cambodia, 

and Laos (section 586 of Public Law 106-429).

    (a) Eligibility. The Service may adjust the status to that of a 
lawful permanent resident, a native or citizen of Vietnam, Cambodia, or 
Laos who:
    (1) Was inspected and paroled into the United States before October 
1, 1997;
    (2) Was paroled into the United States from Vietnam under the 
auspices of the Orderly Departure Program (ODP), a refugee camp in East 
Asia, or a displaced person camp administered by the United Nations High 
Commissioner for Refugees (UNHCR) in Thailand;
    (3) Was physically present in the United States prior to and on 
October 1, 1997;
    (4) Files an application for adjustment of status in accordance with 
paragraph (b) of this section during the 3-year application period; and
    (5) Is otherwise eligible to receive an immigrant visa and is 
otherwise admissible as an immigrant to the United States except as 
provided in paragraphs (e) and (f) of this section.
    (b) Applying for benefits under section 586 of Public Law 106-429--
(1) Application period. The application period lasts from January 27, 
2003 until January 25, 2006. The Service will accept applications 
received after the end of the application period, but only if the 5,000 
limit on adjustments has not been reached prior to the end of the three-
year application period, and the application bears an official postmark 
dated on or before the final day of the application period. Postmarks 
will be evaluated in the following manner:
    (i) If the postmark is illegible or missing, the Service will 
consider the application to be timely filed if it is received on or 
before 3 business days after the end of the application period.
    (ii) In all instances, the burden of proof is on the applicant to 
establish timely filing of an application.
    (2) Application. An alien must be physically present in the United 
States to apply for adjustment of status under section 586 of Public Law 
106-429. An applicant must submit Form I-485, Application to Register 
Permanent Residence or Adjust Status, along with the appropriate 
application fee contained in Sec. 103.7(b)(1) of this chapter. 
Applicants who are 14 through 79 years of age must also submit the 
fingerprinting service fee provided for

[[Page 1139]]

in Sec. 103.7(b)(1) of this chapter. Each application filed must be 
accompanied by evidence establishing eligibility as provided in 
paragraph (g) of this section; two photographs as described in the Form 
I-485 instructions; a completed Biographic Information Sheet (Form G-
325A) if the applicant is between 14 and 79 years of age; a report of 
medical examination (Form I-693 and vaccination supplement) specified in 
Sec. 1245.5; and, if needed, an application for waiver of 
inadmissibility. Under Part 2, question h of Form I-485, applicants must 
write ``INDOCHINESE PAROLEE P.L. 106-429''. Applications must be sent 
to: INS Nebraska Service Center, P.O. Box 87485, Lincoln NE 68501-7485.
    (c) Applications from aliens in immigration proceedings. An alien in 
pending immigration proceedings who believes he or she is eligible for 
adjustment of status under section 586 of Public Law 106-429 must apply 
directly to the Service in accordance with paragraph (b) of this 
section. An immigration judge or the Board of Immigration Appeals may 
not adjudicate applications for adjustment of status under this section. 
An alien who is currently in immigration proceedings who alleges 
eligibility for adjustment of status under section 586 of Public Law 
106-429 may contact Service counsel after filing an application to 
request the consent of the Service to the filing of a joint motion for 
administrative closure. Unless the Service consents to such a motion, 
the immigration judge or the Board may not defer or dismiss the 
proceeding in connection with section 586 of Public Law 106-429.
    (d) Applications from aliens with final orders of removal, 
deportation, or exclusion. An alien with a final order of removal, 
deportation, or exclusion who believes he or she is eligible for 
adjustment of status under section 586 of Public Law 106-429 must apply 
directly to the Service in accordance with paragraph (b) of this 
section.
    (1) An application under this section does not automatically stay 
the order of removal, deportation, or exclusion. An alien who is 
eligible for adjustment of status under section 586 of Public Law 106-
429 may request that the district director with jurisdiction over the 
alien grant a stay of removal during the pendency of the application. 
The regulations governing such a request are found at 8 CFR 241.6.
    (2) The Service in general will exercise its discretion not to grant 
a stay of removal, deportation, or exclusion with respect to an alien 
who is inadmissible on any of the grounds specified in paragraph (m)(3) 
of this section, unless there is substantial reason to believe that the 
Service will grant the necessary waivers of inadmissibility.
    (3) An immigration judge or the Board may not grant a motion to re-
open or stay in connection with an application under this section.
    (4) If the Service approves the application, the approval will 
constitute the automatic re-opening of the alien's immigration 
proceedings, vacating of the final order of removal, deportation, or 
exclusion, and termination of the reopened proceedings.
    (e) Grounds of inadmissibility that do not apply. In making a 
determination of whether an applicant is otherwise eligible for 
admission to the United States for lawful permanent residence under the 
provisions of section 586 of Public Law 106-429, the grounds of 
inadmissibility under sections 212(a)(4), (a)(5), (a)(7)(A), and (a)(9) 
of the Act shall not apply.
    (f) Waiver of grounds of inadmissibility. In connection with an 
application for adjustment of status under this section, the alien may 
apply for a waiver of the grounds of inadmissibility under sections 
212(a)(1), (a)(6)(B), (a)(6)(C), (a)(6)(F), (a)(8)(A), (a)(10)(B), and 
(a)(10)(D) of the Act as provided in section 586(c) of Public Law 106-
429, if the alien demonstrates that a waiver is necessary to prevent 
extreme hardship to the alien, or to the alien's spouse, parent, son or 
daughter who is a U.S. citizen or an alien lawfully admitted for 
permanent residence. In addition, the alien may apply for any other 
waiver of inadmissibility under section 212 of the Act, if eligible. In 
order to obtain a waiver for any of these grounds, an applicant must 
submit Form I-601, Application for Waiver of Grounds of Excludability, 
with the application for adjustment.
    (g) Evidence. Applicants must submit evidence that demonstrates they 
are eligible for adjustment of status under

[[Page 1140]]

section 586 of Public Law 106-429. Such evidence shall include the 
following:
    (1) A birth certificate or other record of birth;
    (2) Documentation to establish that the applicant was physically 
present in the United States on October 1, 1997, under the standards set 
forth in Sec. 1245.22 of this chapter.
    (3) A copy of the applicant's Arrival-Departure Record (Form I-94) 
or other evidence that the alien was inspected or paroled into the 
United States prior to October 1, 1997, from one of the three programs 
listed in paragraph (a)(2) of this section. Subject to verification, 
documentation pertaining to paragraph (a)(2) of this section is already 
contained in Service files and the applicant may submit an affidavit to 
that effect in lieu of actual documentation.
    (h) Employment authorization. Applicants who want to obtain 
employment authorization based on a pending application for adjustment 
of status under this section may submit Form I-765, Application for 
Employment Authorization, along with the application fee listed in 8 CFR 
103.7(b)(1). If the Service approves the application for employment 
authorization, the applicant will be issued an employment authorization 
document.
    (i) Travel while an application to adjust status is pending. An 
alien may travel abroad while an application to adjust status is 
pending. Applicants must obtain advance parole in order to avoid the 
abandonment of their application to adjust status. An applicant may 
obtain advance parole by filing Form I-131, Application for a Travel 
Document, along with the application fee listed in 8 CFR 103.7(b)(1). If 
the Service approves Form I-131, the alien will be issued Form I-512, 
Authorization for the Parole of an Alien into the United States. Aliens 
granted advance parole will still be subject to inspection at a port-of-
entry.
    (j) Approval and date of admission as a lawful permanent resident. 
When the Service approves an application to adjust status to that of 
lawful permanent resident based on section 586 of Public Law 106-429, 
the applicant will be notified in writing of the Service's decision. In 
addition, the record of the alien's admission as a lawful permanent 
resident will be recorded as of the date of the alien's inspection and 
parole into the United States, as described in paragraph (a)(1) of this 
section.
    (k) Notice of denial. When the Service denies an application to 
adjust status to that of lawful permanent resident based on section 586 
of Public Law 106-429, the applicant will be notified of the decision in 
writing.
    (l) Administrative review. An alien whose application for adjustment 
of status under section 586 of Public Law 106-429 is denied by the 
Service may appeal the decision to the Administrative Appeals Office in 
accordance with 8 CFR 103.3(a)(2).
    (m) Number of adjustments permitted under this section--(1) Limit. 
No more than 5,000 aliens may have their status adjusted to that of a 
lawful permanent resident under section 586 of Public Law 106-429.
    (2) Counting procedures. Each alien granted adjustment of status 
under this section will count towards the 5,000 limit. The Service will 
assign a tracking number, ascending chronologically by filing date, to 
all applications properly filed in accordance with paragraphs (b) and 
(g) of this section. Except as described in paragraph (m)(3) of this 
section, the Service will adjudicate applications in that order until it 
reaches 5,000 approvals under this part. Applications initially denied 
but pending on administrative appeal will retain their place in the 
queue by virtue of their tracking number, pending the Service's 
adjudication of the appeal.
    (3) Applications submitted with a request for the waiver of a ground 
of inadmissibility. In the discretion of the Service, applications that 
do not require adjudication of a waiver of inadmissibility under section 
212(a)(2), (a)(6)(B), (a)(6)(F), (a)(8)(A), or (a)(10)(D) of the Act may 
be approved and assigned numbers within the 5,000 limit before those 
applications that do require a waiver of inadmissibility under any of 
those provisions. Applications requiring a waiver of any of those 
provisions will be assigned a tracking number chronologically by the 
date of

[[Page 1141]]

approval of the necessary waivers rather than the date of filing of the 
application.
    (4) Procedures when the 5,000 limit is reached. The Service will 
track the total number of adjustments and stop processing applications 
after the 5,000 limit has been reached. When the limit is reached, the 
Service will return any additional applications to applicants with a 
dated notice encouraging applicants to retain their application package 
and the notice in the event the 5,000 limit is expanded or eliminated 
and the alien wishes to apply again. The Service will keep an 
identifying chronological record of the application for purposes of 
processing applications under this section if the 5,000 limit 
subsequently is expanded or eliminated. If at the time the 5,000 limit 
is reached, it appears that Congress is about to pass legislation to 
expand or eliminate the cap, the Service retains the discretion to 
retain such applications and the related fees.

[67 FR 78673, Dec. 26, 2002]



Sec. 1245.22  Evidence to demonstrate an alien's physical presence in the 

United States on a specific date.

    (a) Evidence. Generally, an alien who is required to demonstrate his 
or her physical presence in the United States on a specific date in 
connection with an application to adjust status to that of an alien 
lawfully admitted for permanent residence should submit evidence 
according to this section. In cases where a more specific regulation 
relating to a particular adjustment of status provision has been issued 
in the 8 CFR, such regulation is controlling to the extent that it 
conflicts with this section.
    (b) The number of documents. If no one document establishes the 
alien's physical presence on the required date, he or she may submit 
several documents establishing his or her physical presence in the 
United States prior to and after that date.
    (c) Service-issued documentation. To demonstrate physical presence 
on a specific date, the alien may submit Service-issued documentation. 
Examples of acceptable Service documentation include, but are not 
limited to, photocopies of:
    (1) Form I-94, Arrival-Departure Record, issued upon the alien's 
arrival in the United States;
    (2) Form I-862, Notice to Appear, issued by the Service on or before 
the required date;
    (3) Form I-122, Notice to Applicant for Admission Detained for 
Hearing before Immigration Judge, issued by the Service on or prior to 
the required date, placing the applicant in exclusion proceedings under 
section 236 of the Act (as in effect prior to April 1, 1997);
    (4) Form I-221, Order to Show Cause, issued by the Service on or 
prior to the required date, placing the applicant in deportation 
proceedings under section 242 or 242A (redesignated as section 238) of 
the Act (as in effect prior to April 1, 1997); or
    (5) Any application or petition for a benefit under the Act filed by 
or on behalf of the applicant on or prior to the required date that 
establishes his or her presence in the United States, or a fee receipt 
issued by the Service for such application or petition.
    (d) Government-issued documentation. To demonstrate physical 
presence on the required date, the alien may submit other government 
documentation. Other government documentation issued by a Federal, 
State, or local authority must bear the signature, seal, or other 
authenticating instrument of such authority (if the document normally 
bears such instrument), be dated at the time of issuance, and bear a 
date of issuance not later than the required date. For this purpose, the 
term Federal, State, or local authority includes any governmental, 
educational, or administrative function operated by Federal, State, 
county, or municipal officials. Examples of such other documentation 
include, but are not limited to:
    (1) A state driver's license;
    (2) A state identification card;
    (3) A county or municipal hospital record;
    (4) A public college or public school transcript;
    (5) Income tax records;
    (6) A certified copy of a Federal, State, or local governmental 
record that was created on or prior to the required date, shows that the 
applicant was present in the United States at the

[[Page 1142]]

time, and establishes that the applicant sought in his or her own 
behalf, or some other party sought in the applicant's behalf, a benefit 
from the Federal, State, or local governmental agency keeping such 
record;
    (7) A certified copy of a Federal, State, or local governmental 
record that was created on or prior to the required date, that shows 
that the applicant was present in the United States at the time, and 
establishes that the applicant submitted an income tax return, property 
tax payment, or similar submission or payment to the Federal, State, or 
local governmental agency keeping such record; or
    (8) A transcript from a private or religious school that is 
registered with, or approved or licensed by, appropriate State or local 
authorities, accredited by the State or regional accrediting body, or by 
the appropriate private school association, or maintains enrollment 
records in accordance with State or local requirements or standards. 
Such evidence will only be accepted to document the physical presence of 
an alien who was in attendance and under the age of 21 on the specific 
date that physical presence in the United States is required.
    (e) Copies of records. It shall be the responsibility of the 
applicant to obtain and submit copies of the records of any other 
government agency that the applicant desires to be considered in support 
of his or her application. If the alien is not in possession of such a 
document or documents, but believes that a copy is already contained in 
the Service file relating to him or her, he or she may submit a 
statement as to the name and location of the issuing Federal, State, or 
local government agency, the type of document and the date on which it 
was issued.
    (f) Other relevant document(s) and evaluation of evidence. The 
adjudicator will consider any other relevant document(s) as well as 
evaluate all evidence submitted, on a case-by-case basis. The Service 
may require an interview when necessary.
    (g) Accuracy of documentation. In all cases, any doubts as to the 
existence, authenticity, veracity, or accuracy of the documentation 
shall be resolved by the official government record, with records of the 
Service having precedence over the records of other agencies. 
Furthermore, determinations as to the weight to be given any particular 
document or item of evidence shall be solely within the discretion of 
the adjudicating authority.

[67 FR 78674, Dec. 26, 2002]



PART 1246_RESCISSION OF ADJUSTMENT OF STATUS--Table of Contents




Sec.
1246.1 Notice.
1246.2 Allegations admitted; no answer filed; no hearing requested.
1246.3 Allegations contested or denied; hearing requested.
1246.4 Immigration judge's authority; withdrawal and substitution.
1246.5 Hearing.
1246.6 Decision and order.
1246.7 Appeals.
1246.8 [Reserved]
1246.9 Surrender of Form I-551.

    Authority: Authority: 8 U.S.C. 1103, 1254, 1255, 1256, 1259; 8 CFR 
part 2.

    Source: 62 FR 10385, Mar. 6, 1997, unless otherwise noted. 
Duplicated from part 246 at 68 FR 9842, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1246 appear at 68 FR 
9846, Feb. 28, 2003, and 68 FR 10359, Mar. 5, 2003.



Sec. 1246.1  Notice.

    If it appears to a district director that a person residing in his 
or her district was not in fact eligible for the adjustment of status 
made in his or her case, or it appears to an asylum office director that 
a person granted adjustment of status by an asylum officer pursuant to 8 
CFR 1240.70 was not in fact eligible for adjustment of status, a 
proceeding shall be commenced by the personal service upon such person 
of a notice of intent to rescind, which shall inform him or her of the 
allegations upon which it is intended to rescind the adjustment of his 
or her status. In such a proceeding the person shall be known as the 
respondent. The notice shall also inform the respondent that he or she 
may submit, within thirty days from the date of service of the notice, 
an answer in writing under oath setting forth reasons why such 
rescission shall not be made, and that he or she may, within such 
period, request a

[[Page 1143]]

hearing before an immigration judge in support of, or in lieu of, his or 
her written answer. The respondent shall further be informed that he or 
she may have the assistance of or be represented by counsel or 
representative of his or her choice qualified under part 292 of this 
chapter, at no expense to the Government, in the preparation of his or 
her answer or in connection with his or her hearing, and that he or she 
may present such evidence in his or her behalf as may be relevant to the 
rescission.

[62 FR 10385, Mar. 6, 1997, as amended at 64 FR 27881, May 21, 1999]



Sec. 1246.2  Allegations admitted; no answer filed; no hearing requested.

    If the answer admits the allegations in the notice, or if no answer 
is filed within the thirty-day period, or if no hearing is requested 
within such period, the district director or asylum office director 
shall rescind the adjustment of status previously granted, and no appeal 
shall lie from his decision.

[62 FR 10385, Mar. 6, 1997, as amended at 64 FR 27881, May 21, 1999]



Sec. 1246.3  Allegations contested or denied; hearing requested.

    If, within the prescribed time following service of the notice 
pursuant to Sec. 1246.1, the respondent has filed an answer which 
contests or denies any allegation in the notice, or a hearing is 
requested, a hearing pursuant to Sec. 1246.5 shall be conducted by an 
immigration judge, and the requirements contained in Sec. Sec. 1240.3, 
1240.4, 1240.5, 1240.6, 1240.7, and 1240.9 of this chapter shall be 
followed.



Sec. 1246.4  Immigration judge's authority; withdrawal and substitution.

    In any proceeding conducted under this part, the immigration judge 
shall have authority to interrogate, examine, and cross-examine the 
respondent and other witnesses, to present and receive evidence, to 
determine whether adjustment of status shall be rescinded, to make 
decisions thereon, including an appropriate order, and to take any other 
action consistent with applicable provisions of law and regulations as 
may be appropriate to the disposition of the case. Nothing contained in 
this part shall be construed to diminish the authority conferred on 
immigration judges by the Act. The immigration judge assigned to conduct 
a hearing shall, at any time, withdraw if he or she deems himself or 
herself disqualified. If a hearing has begun but no evidence has been 
adduced other than the notice and answer, if any, pursuant to Sec. Sec. 
1246.1 and 1246.2, or if an immigration judge becomes unavailable to 
complete his or her duties within a reasonable time, or if at any time 
the respondent consents to a substitution, another immigration judge may 
be assigned to complete the case. The new immigration judge shall 
familiarize himself or herself with the record in the case and shall 
state for the record that he or she is familiar with the record in the 
case.



Sec. 1246.5  Hearing.

    (a) Service counsel. The Government shall be represented at the 
hearing by a Service counsel who shall have authority to present 
evidence, and to interrogate, examine, and cross-examine the respondent 
and other witnesses. The Service counsel is authorized to appeal from a 
decision of the immigration judge pursuant to Sec. 1246.7 and to move 
for reopening or reconsideration pursuant to Sec. 1003.23 of this 
chapter.
    (b) Opening. The immigration judge shall advise the respondent of 
the nature of the proceeding and the legal authority under which it is 
conducted; advise the respondent of his or her right to representation, 
at no expense to the Government, by counsel or representative of his or 
her own choice qualified under part 1292 of this chapter and require him 
or her to state then and there whether he or she desires representation; 
advise the respondent that he or she will have a reasonable opportunity 
to examine and object to the evidence against him or her, to present 
evidence in his or her own behalf, and to cross-examine witnesses 
presented by the Government; place the respondent under oath; read the 
allegations in the notice to the respondent and explain them in 
nontechnical language, and enter the notice and respondent's answer, if 
any, as exhibits in the record.

[[Page 1144]]

    (c) Pleading by respondent. The immigration judge shall require the 
respondent to state for the record whether he or she admits or denies 
the allegations contained in the notice, or any of them, and whether he 
or she concedes that his or her adjustment of status should be 
rescinded. If the respondent admits all of the allegations and concedes 
that the adjustment of status in his or her case should be rescinded 
under the allegations set forth in the notice, and the immigration judge 
is satisfied that no issues of law or fact remain, he or she may 
determine that rescission as alleged has been established by the 
respondent's admissions. The allegations contained in the notice shall 
be taken as admitted when the respondent, without reasonable cause, 
fails or refuses to attend or remain in attendance at the hearing.



Sec. 1246.6  Decision and order.

    The decision of the immigration judge may be oral or written. The 
formal enumeration of findings is not required. The order shall direct 
either that the proceeding be terminated or that the adjustment of 
status be rescinded. Service of the decision and finality of the order 
of the immigration judge shall be in accordance with, and as stated in 
Sec. Sec. 1240.13 (a) and (b) and 1240.14 of this chapter.



Sec. 1246.7  Appeals.

    Pursuant to 8 CFR part 1003, an appeal shall lie from a decision of 
an immigration judge under this part to the Board of Immigration 
Appeals. An appeal shall be taken within 30 days after the mailing of a 
written decision or the stating of an oral decision. The reasons for the 
appeal shall be specifically identified in the Notice of Appeal (Form 
EOIR 26); failure to do so may constitute a ground for dismissal of the 
appeal by the Board.



Sec. 1246.8  [Reserved]



Sec. 1246.9  Surrender of Form I-551.

    A respondent whose status as a permanent resident has been rescinded 
in accordance with section 246 of the Act and this part, shall, upon 
demand, promptly surrender to the district director having 
administrative jurisdiction over the office in which the action under 
this part was taken, the Form I-551 issued to him or her at the time of 
the grant of permanent resident status.



PART 1249_CREATION OF RECORDS OF LAWFUL ADMISSION FOR PERMANENT RESIDENCE--

Table of Contents




Sec.
1249.1 Waiver of inadmissibility.
1249.2 Application.
1249.3 Reopening and reconsideration.

    Authority: 8 U.S.C. 1103, 1182, 1259; 8 CFR part 2.

    Source: Duplicated from part 249 at 68 FR 9843, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1249 appear at 68 FR 
9846, Feb. 28, 2003.



Sec. 1249.1  Waiver of inadmissibility.

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

[47 FR 44238, Oct. 7, 1982]



Sec. 1249.2  Application.

    (a) Jurisdiction. An application by an alien, other than an arriving 
alien, who has been served with a notice to appear or warrant of arrest 
shall be considered only in proceedings under 8 CFR part 1240. In any 
other case, an alien who believes he or she meets the eligibility 
requirements of section 249 of the Act shall apply to the district 
director having jurisdiction over his or her place of residence. The 
application shall be made on Form I-485 and shall be accompanied by Form 
G-325A, which shall be considered part of the application. The 
application shall also be accompanied by documentary evidence

[[Page 1145]]

establishing continuous residence in the United States since prior to 
January 1, 1972, or since entry and prior to July 1, 1924. All documents 
must be submitted in accordance with Sec. 103.2(b) of this chapter. 
Documentary evidence may include any records of official or personal 
transactions or recordings of events occurring during the period of 
claimed residence. Affidavits of credible witnesses may also be 
accepted. Persons unemployed and unable to furnish evidence in their own 
names may furnish evidence in the names of parents or other persons with 
whom they have been living, if affidavits of the parents or other 
persons are submitted attesting to the residence. The numerical 
limitations of sections 201 and 202 of the Act shall not apply.
    (b) Decision. The applicant shall be notified of the decision and, 
if the application is denied, of the reasons therefor. If the 
application is granted, a Form I-551, showing that the applicant has 
acquired the status of an alien lawfully admitted for permanent 
residence, shall not be issued until the applicant surrenders any other 
document in his or her possession evidencing compliance with the alien 
registration requirements of former or existing law. No appeal shall lie 
from the denial of an application by the district director. However, an 
alien, other than an arriving alien, may renew the denied application in 
proceedings under 8 CFR part 1240.

[52 FR 6322, Mar. 3, 1987, as amended at 62 FR 10386, Mar. 6, 1997; 68 
FR 10359, Mar. 5, 2003]



Sec. 1249.3  Reopening and reconsideration.

    An applicant who alleged entry and residence since prior to July 1, 
1924, but in whose case a record was created as of the date of approval 
of the application because evidence of continuous residence prior to 
July 1, 1924, was not submitted, may have his case reopened and 
reconsidered pursuant to Sec. 103.5 of 8 CFR chapter I. Upon the 
submission of satisfactory evidence, a record of admission as of the 
date of alleged entry may be created.

[29 FR 11494, Aug. 11, 1964, as amended at 68 FR 10359, Mar. 5, 2003]



PART 1270_PENALTIES FOR DOCUMENT FRAUD--Table of Contents




Sec.
1270.1 Definitions.
1270.2 Enforcement procedures.
1270.3 Penalties.

    Authority: 8 U.S.C. 1101, 1103, and 1324c; Pub. L. 101-410, 104 
Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.

    Source: 57 FR 33866, July 31, 1992, unless otherwise noted. 
Duplicated from part 270 at 68 FR 9843, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1270 appear at 68 FR 
9846, Feb. 28, 2003, and at 68 FR 10359, Mar. 5, 2003.



Sec. 1270.1  Definitions.

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



Sec. 1270.2  Enforcement procedures.

    (a) Procedures for the filing of complaints. Any person or entity 
having knowledge of a violation or potential violation of section 274C 
of the Act may submit a signed, written complaint to the Service office 
having jurisdiction over the business or residence of the potential 
violator or the location where the violation occurred. The signed, 
written complaint must contain sufficient information to identify both 
the complainant and the alleged violator, including their names and 
addresses. The complaint should also contain detailed factual 
allegations relating to the potential violation including the date, time 
and place of the alleged violation and the specific act or conduct 
alleged to constitute a violation of the Act. Written complaints may be 
delivered either by mail to the appropriate Service office or by

[[Page 1146]]

personally appearing before any immigration officer at a Service office.
    (b) Investigation. When the Service receives complaints from a third 
party in accordance with paragraph (a) of this section, it shall 
investigate only those complaints which, on their face, have a 
substantial probability of validity. The Service may also conduct 
investigations for violations on its own initiative, and without having 
received a written complaint. If it is determined after investigation 
that the person or entity has violated section 274C of the Act, the 
Service may issue and serve upon the alleged violator a Notice of Intent 
to Fine.
    (c) Issuance of a subpoena. Service officers shall have reasonable 
access to examine any relevant evidence of any person or entity being 
investigated. The Service may issue subpoenas pursuant to its authority 
under sections 235(a) and 287 of the Act, in accordance with the 
procedures set forth in Sec. 1287.4 of this chapter.
    (d) Notice of Intent to Fine. The proceeding to assess 
administrative penalties under section 274C of the Act is commenced when 
the Service issues a Notice of Intent to Fine. Service of this notice 
shall be accomplished by personal service pursuant to Sec. 103.5a(a)(2) 
of 8 CFR chapter I. Service is effective upon receipt, as evidenced by 
the certificate of service or the certified mail return receipt. The 
person or entity identified in the Notice of Intent to Fine shall be 
known as the respondent. The Notice of Intent to Fine may be issued by 
an officer defined in Sec. 242.1 of this chapter or by an INS port 
director designated by his or her district director.
    (e) Contents of the Notice of Intent to Fine. (1) The Notice of 
Intent to Fine shall contain the basis for the charge(s) against the 
respondent, the statutory provisions alleged to have been violated, and 
the monetary amount of the penalty the Service intends to impose.
    (2) The Notice of Intent to Fine shall provide the following 
advisals to the respondent:
    (i) That the person or entity has the right to representation by 
counsel of his or her own choice at no expense to the government;
    (ii) That any statement given may be used against the person or 
entity;
    (iii) That the person or entity has the right to request a hearing 
before an administrative law judge pursuant to 5 U.S.C. 554-557, and 
that such request must be filed with INS within 60 days from the service 
of the Notice of Intent to Fine; and
    (iv) That if a written request for a hearing is not timely filed, 
the Service will issue a final order from which there is no appeal.
    (f) Request for hearing before an administrative law judge. If a 
respondent contests the issuance of a Notice of Intent to Fine, the 
respondent must file with the INS, within 60 days of the Notice of 
Intent to Fine, a written request for a hearing before an administrative 
law judge. Any written request for a hearing submitted in a foreign 
language must be accompanied by an English language translation. A 
request for hearing is deemed filed when it is either received by the 
Service office designated in the Notice of Intent to Fine, or addressed 
to such office, stamped with the proper postage, and postmarked within 
the 60-day period. In computing the 60-day period prescribed by this 
section, the day of service of the Notice of Intent to Fine shall not be 
included. In the request for a hearing, the respondent may, but is not 
required to, respond to each allegation listed in the Notice of Intent 
to Fine. A respondent may waive the 60-day period in which to request a 
hearing before an administrative law judge and ask that the INS issue a 
final order from which there is no appeal. Prior to execution of the 
waiver, a respondent who is not a United States citizen will be advised 
that a waiver of a section 274C hearing will result in the issuance of a 
final order and that the respondent will be excludable and/or deportable 
from the United States pursuant to the Act.
    (g) Failure to file a request for hearing. If the respondent does 
not file a written request for a hearing within 60 days of service of 
the Notice of Intent to Fine, the INS shall issue a final order from 
which there shall be no appeal.
    (h) Issuance of the final order. A final order may be issued by an 
officer defined in Sec. 242.1 of 8 CFR chapter I, by an

[[Page 1147]]

INS port director designated by his or her district director, or by the 
Director of the INS National Fines Office.
    (i) Service of the final order--(1) Generally. Service of the final 
order shall be accomplished by personal service pursuant to Sec. 
103.5a(a)(2) of 8 CFR chapter I. Service is effective upon receipt, as 
evidenced by the certificate of service or the certified mail return 
receipt.
    (2) Alternative provisions for service in a foreign country. When 
service is to be effected upon a party in a foreign country, it is 
sufficient if service of the final order is made: (i) In the manner 
prescribed by the law of the foreign country for service in that country 
in an action in any of its courts of general jurisdiction; or
    (ii) As directed by the foreign authority in response to a letter 
rogatory, when service in either case is reasonably calculated to give 
actual notice; or
    (iii) When applicable, pursuant to Sec. 103.5a(a)(2) of 8 CFR 
chapter I.

Service is effective upon receipt of the final order. Proof of service 
may be made as prescribed by the law of the foreign country, or, when 
service is pursuant to Sec. 103.5a(a)(2) of 8 CFR chapter I, as 
evidenced by the certificate of service or the certified mail return 
receipt.
    (j) Declination to file charges for document fraud committed by 
refugees at the time of entry. The Service shall not issue a Notice of 
Intent to Fine for acts of document fraud committed by an alien pursuant 
to direct departure from a country in which the alien has a well-founded 
fear of persecution or from which there is a significant danger that the 
alien would be returned to a country in which the alien would have a 
well-founded fear of persecution, provided that the alien has presented 
himself or herself without delay to an INS officer and shown good cause 
for his or her illegal entry or presence. Other acts of document fraud 
committed by such an alien may result in the issuance of a Notice of 
Intent to Fine and the imposition of civil money penalties.



Sec. 1270.3  Penalties.

    (a) Criminal penalties. Nothing in section 274C of the Act shall be 
construed to diminish or qualify any of the penalties available for 
activities prohibited by this section but proscribed as well in title 
18, United States Code.
    (b) Civil penalties. A person or entity may face civil penalties for 
a violation of section 274C of the Act. Civil penalties may be imposed 
by the Service or by an administrative law judge for violations under 
section 274C of the Act. The Service may charge multiple violations of 
section 274C of the Act in a single Notice of Intent to Fine, and may 
impose separate penalties for each such unlawful act in a single 
proceeding or determination. However, in determining whether an offense 
is a first offense or a subsequent offense, a finding of more than one 
violation in the course of a single proceeding or determination will be 
counted as a single offense.
    (1) A respondent found by the Service or an administrative law judge 
to have violated section 274C of the Act shall be subject to an order:
    (i) To cease and desist from such behavior; and
    (ii) To pay a civil penalty as follows:
    (A) First offense. Not less than $250 and not exceeding $2,000 for 
each fraudulent document or each proscribed activity described in 
section 274C(a)(1) through (a)(4) of the Act before September 29, 1999, 
and not less than $275 and not exceeding $2,200, for each fraudulent 
document or each proscribed activity on or after September 29, 1999.
    (B) Subsequent offenses. Not less than $2,000 and not more than 
$5,000 for each fraudulent document or each proscribed activity 
described in section 274C(a)(1) through (a)(4) of the Act before 
September 29, 1999, and not less than $2,200 and not exceeding $5,500, 
for each fraudulent document or each proscribed activity occurring on or 
after September 29, 1999.
    (2) Where an order is issued to a respondent composed of distinct, 
physically separate subdivisions each of which provides separately for 
the hiring, recruiting, or referring for a fee for employment (without 
reference to the practices of, and not under the common control of or 
common control

[[Page 1148]]

with, another subdivision), each subdivision shall be considered a 
separate person or entity.

[57 FR 33866, July 31, 1992, as amended at 64 FR 47101, Aug. 30, 1999]



PART 1274a_CONTROL OF EMPLOYMENT OF ALIENS--Table of Contents




                     Subpart A_Employer Requirements

Sec.
1274a.1 Definitions.
1274a.2 Verification of employment eligibility.
1274a.3 Continuing employment of unauthorized aliens.
1274a.4 Good faith defense.
1274a.5 Use of labor through contract.
1274a.6 State employment agencies.
1274a.7 Pre-enactment provisions for employees hired prior to November 
          7, 1986.
1274a.8 Prohibition of indemnity bonds.
1274a.9 Enforcement procedures.
1274a.10 Penalties.
1274a.11 [Reserved]

                   Subpart B_Employment Authorization

1274a.12 Classes of aliens authorized to accept employment.
1274a.13 Application for employment authorization.
1274a.14 Termination of employment authorization.

    Authority: 8 U.S.C. 1101, 1103, 1324a.

    Source: 52 FR 16221, May 1, 1987, unless otherwise noted. Duplicated 
from part 274a at 68 FR 9844, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1274a appear at 68 FR 
9846, Feb. 28, 2003, and 68 FR 10359, Mar. 5, 2003.



                     Subpart A_Employer Requirements



Sec. 1274a.1  Definitions.

    For the purpose of this part--
    (a) The term unauthorized alien means, with respect to employment of 
an alien at a particular time, that the alien is not at that time 
either: (1) Lawfully admitted for permanent residence, or (2) authorized 
to be so employed by this Act or by the Attorney General;
    (b) The term entity means any legal entity, including but not 
limited to, a corporation, partnership, joint venture, governmental 
body, agency, proprietorship, or association;
    (c) The term hire means the actual commencement of employment of an 
employee for wages or other remuneration. For purposes of section 
274A(a)(4) of the Act and Sec. 1274a.5 of this part, a hire occurs when 
a person or entity uses a contract, subcontract or exchange entered 
into, renegotiated or extended after November 6, 1986, to obtain the 
labor of an alien in the United States, knowing that the alien is an 
unauthorized alien;
    (d) The term refer for a fee means the act of sending or directing a 
person or transmitting documentation or information to another, directly 
or indirectly, with the intent of obtaining employment in the United 
States for such person, for remuneration whether on a retainer or 
contingency basis; however, this term does not include union hiring 
halls that refer union members or non-union individuals who pay union 
membership dues;
    (e) The term recruit for a fee means the act of soliciting a person, 
directly or indirectly, and referring that person to another with the 
intent of obtaining employment for that person, for remuneration whether 
on a retainer or contingency basis; however, this term does not include 
union hiring halls that refer union members or non-union individuals who 
pay union membership dues;
    (f) The term employee means an individual who provides services or 
labor for an employer for wages or other remuneration but does not mean 
independent contractors as defined in paragraph (j) of this section or 
those engaged in casual domestic employment as stated in paragraph (h) 
of this section;
    (g) The term employer means a person or entity, including an agent 
or anyone acting directly or indirectly in the interest thereof, who 
engages the services or labor of an employee to be performed in the 
United States for wages or other remuneration. In the case of an 
independent contractor or contract labor or services, the term employer 
shall mean the independent contractor or contractor and not the person 
or entity using the contract labor;
    (h) The term employment means any service or labor performed by an 
employee for an employer within the

[[Page 1149]]

United States, including service or labor performed on a vessel or 
aircraft that has arrived in the United States and has been inspected, 
or otherwise included within the provisions of the Anti-Reflagging Act 
codified at 46 U.S.C. 8704, but not including duties performed by 
nonimmigrant crewmen defined in sections 101 (a)(10) and (a)(15)(D) of 
the Act. However, employment does not include casual employment by 
individuals who provide domestic service in a private home that is 
sporadic, irregular or intermittent;
    (i) The term State employment agency means any State government unit 
designated to cooperate with the United States Employment Service in the 
operation of the public employment service system;
    (j) The term independent contractor includes individuals or entities 
who carry on independent business, contract to do a piece of work 
according to their own means and methods, and are subject to control 
only as to results. Whether an individual or entity is an independent 
contractor, regardless of what the individual or entity calls itself, 
will be determined on a case-by-case basis. Factors to be considered in 
that determination include, but are not limited to, whether the 
individual or entity: supplies the tools or materials; makes services 
available to the general public; works for a number of clients at the 
same time; has an opportunity for profit or loss as a result of labor or 
services provided; invests in the facilities for work; directs the order 
or sequence in which the work is to be done and determines the hours 
during which the work is to be done. The use of labor or services of an 
independent contractor are subject to the restrictions in section 
274A(a)(4) of the Act and Sec. 1274a.5 of this part;
    (k) The term pattern or practice means regular, repeated, and 
intentional activities, but does not include isolated, sporadic, or 
accidental acts;
    (l)(1) The term knowing includes not only actual knowledge but also 
knowledge which may fairly be inferred through notice of certain facts 
and circumstances which would lead a person, through the exercise of 
reasonable care, to know about a certain condition. Constructive 
knowledge may include, but is not limited to, situations where an 
employer:
    (i) Fails to complete or improperly completes the Employment 
Eligibility Verification Form, I-9;
    (ii) Has information available to it that would indicate that the 
alien is not authorized to work, such as Labor Certification and/or an 
Application for Prospective Employer; or
    (iii) Acts with reckless and wanton disregard for the legal 
consequences of permitting another individual to introduce an 
unauthorized alien into its work force or to act on its behalf.
    (2) Knowledge that an employee is unauthorized may not be inferred 
from an employee's foreign appearance or accent. Nothing in this 
definition should be interpreted as permitting an employer to request 
more or different documents than are required under section 274(b) of 
the Act or to refuse to honor documents tendered that on their face 
reasonably appear to be genuine and to relate to the individual.

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



Sec. 1274a.2  Verification of employment eligibility.

    (a) General. This section states the requirements and procedures 
persons or entities must comply with when hiring, or when recruiting or 
referring for a fee, or when continuing to employ individuals in the 
United States. For purposes of complying with section 274A(b) of the Act 
and this section, all references to recruiters and referrers for a fee 
are limited to a person or entity who is either an agricultural 
association, agricultural employer, or farm labor contractor (as defined 
in section 3 of the Migrant and Seasonal Agricultural Worker Protection 
Act, 29 U.S.C. 1802). The Form I-9, Employment Eligibility Verification 
Form, has been designated by the Service as the form to be used in 
complying with the requirements of this section. The Form I-9 may be 
obtained in limited quantities at INS District Offices, or ordered from 
the Superintendent of Documents, Washington, DC 20402. Employers may 
electronically generate blank Forms I-9, provided that: the resulting 
form is legible; there is no change to the name,

[[Page 1150]]

content, or sequence of the data elements and instructions; no 
additional data elements or language are inserted; and the paper used 
meets the standards for retention and production for inspection 
specified under Sec. 1274a.2(b). When copying or printing the Form I-9, 
the text of the two-sided form may be reproduced by making either 
double-sided or single-sided copies. Employers need only complete the 
Form I-9 for individuals who are hired after November 6, 1986 and 
continue to be employed after May 31, 1987. Employers shall have until 
September 1, 1987 to complete the Form I-9 for individuals hired from 
November 7, 1986 through May 31, 1987. Recruiters and referrers for a 
fee need complete the Form I-9 only for those individuals who are 
recruited or referred and hired after May 31, 1987. In conjunction with 
completing the Form I-9, an employer or recruiter or referrer for a fee 
must examine documents that evidence the identity and employment 
eligibility of the individual. The employer or recruiter or referrer for 
a fee and the individual must each complete an attestation on the Form 
I-9 under penalty of perjury.
    (b) Employment verification requirements--(1) Examination of 
documents and completion of Form I-9. (i) A person or entity that hires 
or recruits or refers for a fee an individual for employment must ensure 
that the individual properly:
    (A) Complete section 1--``Employee Information and Verification''--
on the Form I-9 at the time of hire; or if an individual is unable to 
complete the Form I-9 or needs it translated, someone may assist him or 
her. The preparer or translator must read the Form to the individual, 
assist him or her in completing Section 1--``Employee Information and 
Verification,'' and have the individual sign or mark the Form in the 
appropriate place. The preparer or translator must then complete the 
``Preparer/Translator Certification'' portion of the Form I-9; and
    (B) Present to the employer or the recruiter or referrer for a fee 
documentation as set forth in paragraph (b)(1)(v) of this section 
establishing his or her identity and employment eligibility within the 
time limits set forth in paragraphs (b)(1)(ii) through (b)(1)(v) of this 
section.
    (ii) Except as provided in paragraph (b)(1)(viii) of this section, 
an employer, his or her agent, or anyone acting directly or indirectly 
in the interest thereof, must within three business days of the hire:
    (A) Physically examine the documentation presented by the individual 
establishing identity and employment eligibility as set forth in 
paragraph (b)(1)(v) of this section and ensure that the documents 
presented appear to be genuine and to relate to the individual; and
    (B) Complete section 2--``Employer Review and Verification''--of the 
Form I-9.
    (iii) An employer who hires an individual for employment for a 
duration of less than three business days must comply with paragraphs 
(b)(1)(ii)(A) and (b)(1)(ii)(B) of this section at the time of the hire. 
An employer may not accept a receipt, as described in paragraph 
(b)(1)(vi) of this section, in lieu of the required document if the 
employment is for less than three business days.
    (iv) A recruiter or referrer for a fee for employment must comply 
with paragraphs (b)(1)(ii)(A) and (b)(1)(ii)(B) of this section within 
three business days of the date the referred individual is hired by the 
employer. Recruiters and referrers may designate agents to complete the 
employment verification procedures on their behalf including but not 
limited to notaries, national associations, or employers. If a recruiter 
or referrer designates an employer to complete the employment 
verification procedures, the employer need only provide the recruiter or 
referrer with a photocopy of the Form I-9.
    (v) The individual may present either an original document which 
establishes both employment authorization and identity, or an original 
document which establishes employment authorization and a separate 
original document which establishes identity. The identification number 
and expiration date (if any) of all documents must be noted in the 
appropriate space provided on the Form I-9.

[[Page 1151]]

    (A) The following documents, so long as they appear to relate to the 
individual presenting the document, are acceptable to evidence both 
identity and employment eligibility:
    (1) United States passport (unexpired or expired);
    (2) Alien Registration Receipt Card or Permanent Resident Card, Form 
I-551;
    (3) An unexpired foreign passport that contains a temporary I-551 
stamp;
    (4) An unexpired Employment Authorization Document issued by the 
Immigration And Naturalization Service which contains a photograph, Form 
I-766; Form I-688, Form I-688A, or Form I-688B;
    (5) In the case of a nonimmigrant alien authorized to work for a 
specific employer incident to status, an unexpired foreign passport with 
an Arrival-Departure Record, Form I-94, bearing the same name as the 
passport and containing an endorsement of the alien's nonimmigrant 
status, so long as the period of endorsement has not yet expired and the 
proposed employment is not in conflict with any restrictions or 
limitations identified on the Form I-94.
    (B) The following documents are acceptable to establish identity 
only:
    (1) For individuals 16 years of age or older:
    (i) A driver's license or identification card containing a 
photograph, issued by a state (as defined in section 101(a)(36) of the 
Act) or an outlying possession of the United States (as defined by 
section 101(a)(29) of the Act). If the driver's license or 
identification card does not contain a photograph, identifying 
information shall be included such as: name, date of birth, sex, height, 
color of eyes, and address;
    (ii) School identification card with a photograph;
    (iii) Voter's registration card;
    (vi) U.S. military card or draft record;
    (v) Identification card issued by federal, state, or local 
government agencies or entities. If the identification card does not 
contain a photograph, identifying information shall be included such as: 
name, date of birth, sex, height, color of eyes, and address;
    (vi) Military dependent's identification card;
    (vii) Native American tribal documents;
    (viii) United States Coast Guard Merchant Mariner Card;
    (ix) Driver's license issued by a Canadian government authority;
    (2) For individuals under age 18 who are unable to produce a 
document listed in paragraph (b)(1)(v)(B)(1) of this section, the 
following documents are acceptable to establish identity only:
    (i) School record or report card;
    (ii) Clinic doctor or hospital record;
    (iii) Daycare or nursery school record.
    (3) Minors under the age of 18 who are unable to produce one of the 
identity documents listed in paragraph (b)(1)(v)(B) (1) or (2) of this 
section are exempt from producing one of the enumerated identity 
documents if:
    (i) The minor's parent or legal guardian completes on the Form I-9 
Section 1--``Employee Information and Verification'' and in the space 
for the minor's signature, the parent or legal guardian writes the 
words, ``minor under age 18.''
    (ii) The minor's parent or legal guardian completes on the Form I-9 
the ``Preparer/Translator certification.''
    (iii) The employer or the recruiter or referrer for a fee writes in 
Section 2--``Employer Review and Verification'' under List B in the 
space after the words ``Document Identification '' the words, 
``minor under age 18.''
    (4) Individuals with handicaps, who are unable to produce one of the 
identity documents listed in paragraph (b)(1)(v)(B) (1) or (2) of this 
section, who are being placed into employment by a nonprofit 
organization, association or as part of a rehabilitation program, may 
follow the procedures for establishing identity provided in this section 
for minors under the age of 18, substituting where appropriate, the term 
``special placement'' for ``minor under age 18'', and permitting, in 
addition to a parent or legal guardian, a representative from the 
nonprofit organization, association or rehabilitation program placing 
the individual into a position of employment, to fill out and sign in 
the appropriate section, the

[[Page 1152]]

Form I-9. For purposes of this section the term individual with 
handicaps means any person who
    (i) Has a physical or mental impairment which substantially limits 
one or more of such person's major life activities,
    (ii) Has a record of such impairment, or
    (iii) Is regarded as having such impairment.
    (C) The following are acceptable documents to establish employment 
authorization only:
    (1) A social security number card other than one which has printed 
on its face ``not valid for employment purposes'';
    (2) A Certification of Birth Abroad issued by the Department of 
State, Form FS-545;
    (3) A Certification of Birth Abroad issued by the Department of 
State, Form DS-1350;
    (4) An original or certified copy of a birth certificate issued by a 
State, county, municipal authority or outlying possession of the United 
States bearing an official seal;
    (5) Native American tribal document;
    (6) United States Citizen Identification Card, INS Form I-197;
    (7) Identification card for use of resident citizen in the United 
States, INS Form I-179;
    (8) An unexpired employment authorization document issued by the 
Immigration and Naturalization Service.
    (vi) Special rules for receipts. Except as provided in paragraph 
(b)(1)(iii) of this section, unless the individual indicates or the 
employer or recruiter or referrer for a fee has actual or constructive 
knowledge that the individual is not authorized to work, an employer or 
recruiter or referrer for a fee must accept a receipt for the 
application for a replacement document or a document described in 
paragraphs (b)(1)(vi)(B)((1) and (b)(1)(vi)(C)((1) of this section in 
lieu of the required document in order to comply with any requirement to 
examine documentation imposed by this section, in the following 
circumstances:
    (A) Application for a replacement document. The individual:
    (1) Is unable to provide the required document within the time 
specified in this section because the document was lost, stolen, or 
damaged;
    (2) Presents a receipt for the application for the replacement 
document within the time specified in this section; and
    (3) Presents the replacement document within 90 days of the hire or, 
in the case of reverification, the date employment authorization 
expires; or
    (B) Form I-94 indicating temporary evidence of permanent resident 
status. The individual indicates in section 1 of the Form I-9 that he or 
she is a lawful permanent resident and the individual:
    (1) Presents the arrival portion of Form I-94 containing an 
unexpired ``Temporary I-551'' stamp and photograph of the individual, 
which is designated for purposes of this section as a receipt for Form 
I-551; and
    (2) Presents the Form I-551 by the expiration date of the 
``Temporary I-551'' stamp or, if the stamp has no expiration date, 
within 1 year from the issuance date of the arrival portion of Form I-
94; or
    (C) Form I-94 indicating refugee status. The individual indicates in 
section 1 of the Form I-9 that he or she is an alien authorized to work 
and the individual:
    (1) Presents the departure portion of Form I-94 containing an 
unexpired refugee admission stamp, which is designated for purposes of 
this section as a receipt for the Form I-766, Form I-688B, or a social 
security account number card that contains no employment restrictions; 
and
    (2) Presents, within 90 days of the hire or, in the case of 
reverification, the date employment authorization expires, either an 
unexpired Form I-766 or Form I-688B, or a social security account number 
card that contains no employment restrictions, and a document described 
under paragraph (b)(1)(v)(B) of this section.
    (vii) If an individual's employment authorization expires, the 
employer, recruiter or referrer for a fee must reverify on the Form I-9 
to reflect that the individual is still authorized to work in the United 
States; otherwise the individual may no longer be employed, recruited, 
or referred. Reverification on the Form I-9 must occur not later than 
the date work authorization expires. In order to reverify

[[Page 1153]]

on the Form I-9, the employee or referred individual must present a 
document that either shows continuing employment eligibility or is a new 
grant of work authorization. The employer or the recruiter or referrer 
for a fee must review this document, and if it appears to be genuine and 
to relate to the individual, reverify by noting the document's 
identification number and expiration date on the Form I-9.
    (viii) An employer will not be deemed to have hired an individual 
for employment if the individual is continuing in his or her employment 
and has a reasonable expectation of employment at all times.
    (A) An individual is continuing in his or her employment in one of 
the following situations:
    (1) An individual takes approved paid or unpaid leave on account of 
study, illness or disability of a family member, illness or pregnancy, 
maternity or paternity leave, vacation, union business, or other 
temporary leave approved by the employer;
    (2) An individual is promoted, demoted, or gets a pay raise;
    (3) An individual is temporarily laid off for lack of work;
    (4) An individual is on strike or in a labor dispute;
    (5) An individual is reinstated after disciplinary suspension for 
wrongful termination, found unjustified by any court, arbitrator, or 
administrative body, or otherwise resolved through reinstatement or 
settlement;
    (6) An individual transfers from one distinct unit of an employer to 
another distinct unit of the same employer; the employer may transfer 
the individual's Form I-9 to the receiving unit;
    (7) An individual continues his or her employment with a related, 
successor, or reorganized employer, provided that the employer obtains 
and maintains from the previous employer records and Forms I-9 where 
applicable. For this purpose, a related, successor, or reorganized 
employer includes:
    (i) The same employer at another location;
    (ii) An employer who continues to employ some or all of a previous 
employer's workforce in cases involving a corporate reorganization, 
merger, or sale of stock or assets;
    (iii) An employer who continues to employ any employee of another 
employer's workforce where both employers belong to the same multi-
employer association and the employee continues to work in the same 
bargaining unit under the same collective bargaining agreement. For 
purposes of this subsection, any agent designated to complete and 
maintain the Form I-9 must record the employee's date of hire and/or 
termination each time the employee is hired and/or terminated by an 
employer of the multi-employer association; or
    (8) An individual is engaged in seasonal employment.
    (B) The employer who is claiming that an individual is continuing in 
his or her employment must also establish that the individual expected 
to resume employment at all times and that the individual's expectation 
is reasonable. Whether an individual's expectation is reasonable will be 
determined on a case-by-case basis taking into consideration several 
factors. Factors which would indicate that an individual has a 
reasonable expectation of employment include, but are not limited to, 
the following:
    (1) The individual in question was employed by the employer on a 
regular and substantial basis. A determination of a regular and 
substantial basis is established by a comparison of other workers who 
are similarly employed by the employer;
    (2) The individual in question complied with the employer's 
established and published policy regarding his or her absence;
    (3) The employer's past history of recalling absent employees for 
employment indicates a likelihood that the individual in question will 
resume employment with the employer within a reasonable time in the 
future;
    (4) The former position held by the individual in question has not 
been taken permanently by another worker;
    (5) The individual in question has not sought or obtained benefits 
during his or her absence from employment with the employer that are 
inconsistent with an expectation of resuming employment with the 
employer within a reasonable time in the future. Such

[[Page 1154]]

benefits include, but are not limited to, severance and retirement 
benefits;
    (6) The financial condition of the employer indicates the ability of 
the employer to permit the individual in question to resume employment 
within a reasonable time in the future; or
    (7) The oral and/or written communication between employer, the 
employer's supervisory employees and the individual in question 
indicates that it is reasonably likely that the individual in question 
will resume employment with the employer within a reasonable time in the 
future.
    (2) Retention and Inspection of Form I-9. (i) Form I-9 must be 
retained by an employer or a recruiter or referrer for a fee for the 
following time periods:
    (A) In the case of an employer, three years after the date of the 
hire or one year after the date the individual's employment is 
terminated, whichever is later; or
    (B) In the case of a recruiter or referrer for a fee, three years 
after the date of the hire.
    (ii) Any person or entity required to retain Forms I-9 in accordance 
with this section shall be provided with at least three days notice 
prior to an inspection of the Forms I-9 by officers of the Service, the 
Special Counsel for Immigration-Related Unfair Employment Practices, or 
the Departmet of Labor. At the time of inspection, Forms I-9 must be 
made available in their original form or on microfilm or microfiche at 
the location where the request for production was made. If Forms I-9 are 
kept at another location, the person or entity must inform the officer 
of the Service, the Special Counsel for Immigration-Related Unfair 
Employment Practices, or the Department of Labor of the location where 
the forms are kept and make arrangements for the inspection. Inspections 
may be performed at an INS office. A recruiter or referrer for a fee who 
has designated an employer to complete the employment verification 
procedures may present a photocopy of the Form I-9 in lieu of presenting 
the Form I-9 in its original form or on microfilm or microfiche, as set 
forth in paragraph (b)(1)(iv) of this section. Any refusal or delay in 
presentation of the Forms I-9 for inspection is a violation of the 
retention requirements as set forth in section 274A(b) (3) of the Act. 
No Subpoena or warrant shall be required for such inspection, but the 
use of such enforcement tools is not precluded. In addition, if the 
person or entity has not complied with a request to present the Forms I-
9, any Service officer listed in Sec. 287.4 of this chapter may compel 
production of the Forms I-9 and any other relevant documents by issuing 
a subpoena. Nothing in this section is intended to limit the Service's 
subpoena power under section 235(a) of the Act.
    (iii) The following standards shall apply to Forms I-9 presented on 
microfilm or microfiche submitted to an officer of the Service, the 
Special Counsel for Immigration-Related Unfair Employment Practices, or 
the Department of Labor: Microfilm, when displayed on a microfilm reader 
(viewer) or reproduced on paper must exhibit a high degree of legibility 
and readability. For this purpose, legibility is defined as the quality 
of a letter or numeral which enables the observer to positively and 
quickly identify it to the exclusion of all other letters or numerals. 
Readability is defined as the quality of a group of letters or numerals 
being recognizable as words or whole numbers. A detailed index of all 
microfilmed data shall be maintained and arranged in such a manner as to 
permit the immediate location of any particular record. It is the 
responsibility of the employer, recruiter or referrer for a fee:
    (A) To provide for the processing, storage and maintenace of all 
microfilm, and
    (B) To be able to make the contents thereof available as required by 
law. The person or entity presenting the microfilm will make available a 
reader-printer at the examination site for the ready reading, location 
and reproduction of any record or records being maintained on microfilm. 
Reader-printers made available to an officer of the Service, the Special 
Counsel for Immigration-Related Unfair Employment Practices, or the 
Department of Labor shall provide safety features and be in clean 
condition, properly maintained and in good working order. The reader-
printers must have the capacity

[[Page 1155]]

to display and print a complete page of information. A person or entity 
who is determined to have failed to comply with the criteria established 
by this regulation for the presentation of microfilm or microfiche to 
the Service, the Special Counsel for Immigration-Related Unfair 
Employment Practices, or the Department of Labor, and at the time of the 
inspection does not present a properly completed Form I-9 for the 
employee, is in violation of section 274A(a)(1)(B) of the Act and Sec. 
1274a.2(b)(2).
    (3) Copying of documentation. An employer, or a recruiter or 
referrer for a fee may, but is not required to, copy a document 
presented by an individual solely for the purpose of complying with the 
verification requirements of this section. If such a copy is made, it 
must be retained with the Form I-9. The retention requirements in 
paragraph (b)(2) of this section do not apply to the photocopies. The 
copying of any such document and retention of the copy does not relieve 
the employer from the requirement to fully complete section 2 of the 
Form I-9. An employer, recruiter or referrer for a fee should not, 
however, copy the documents only of individuals of certain national 
origins or citizenship statuses. To do so may violate section 274B of 
the Act.
    (4) Limitation on use of Form I-9. Any information contained in or 
appended to the Form I-9, including copies of documents listed in 
paragraph (c) of this section used to verify an individual's identity or 
employment eligibility, may be used only for enforcement of the Act and 
sections 1001, 1028, 1546, or 1621 of title 18, United States Code.
    (c) Employment verification requirements in the case of hiring an 
individual who was previously employed. (1) When an employer hires an 
individual whom that person or entity has previously employed, if the 
employer has previously completed the Form I-9 and complied with the 
verification requirements set forth in paragraph (b) of this section 
with regard to the individual, the employer may (in lieu of completing a 
new Form I-9) inspect the previously completed Form I-9 and:
    (i) If upon inspection of the Form I-9, the employer determines that 
the Form I-9 relates to the individual and that the individual is still 
eligible to work, that previously executed Form I-9 is sufficient for 
purposes of section 274A(b) of the Act if the individual is hired within 
three years of the date of the initial execution of the Form I-9 and the 
employer updates the Form I-9 to reflect the date of rehire; or
    (ii) If upon inspection of the Form I-9, the employer determines 
that the individual's employment authorization has expired, the employer 
must reverify on the Form I-9 in accordance with paragraph (b)(1)(vii); 
otherwise the individual may no longer be employed.
    (2) For purposes of retention of the Form I-9 by an employer for a 
previously employed individual hired pursuant to paragraph (c)(1) of 
this section, the employer shall retain the Form I-9 for a period of 
three years commencing from the date of the initial execution of the 
Form I-9 or one year after the individual's employment is terminated, 
whichever is later.
    (d) Employment verification requirements in the case of recruiting 
or referring for a fee an individual who was previously recruited or 
referred. (1) When a recruiter or referrer for a fee refers an 
individual for whom that recruiter or referrer for a fee has previously 
completed a Form I-9 and complied with the verification requirements set 
forth in paragraph (b) of this section with regard to the individual, 
the recruiter or referrer may (in lieu of completing a new Form I-9) 
inspect the previously completed Form I-9 and:
    (i) If upon inspection of the Form I-9, the recruiter or referrer 
for a fee determines that the Form I-9 relates to the individual and 
that the individual is still eligible to work, that previously executed 
Form I-9 is sufficient for purposes of section 274A(b) of the Act if the 
individual is referred within three years of the date of the initial 
execution of the Form I-9 and the recruiter or referrer for a fee 
updates the Form I-9 to reflect the date of rehire; or
    (ii) If upon inspection of the Form I-9, the recruiter or referrer 
determines that the individual's employment authorization has expired, 
the recruiter or referrer for a fee must reverify on

[[Page 1156]]

the Form I-9 in accordance with paragraph (b)(1)(vii) of this section; 
otherwise the individual may no longer be recruited or referred.
    (2) For purposes of retention of the Form I-9 by a recruiter or 
referrer for a previously recruited or referred individual pursuant to 
paragraph (d)(1) of this section, the recruiter or referrer shall retain 
the Form I-9 for a period of three years from the date of the rehire.

[52 FR 16221, May 1, 1987, as amended at 53 FR 8612, Mar. 16, 1988; 55 
FR 25932, June 25, 1990; 56 FR 41784-41786, Aug. 23, 1991; 58 FR 48780, 
Sept. 20, 1993; 61 FR 46537, Sept. 4, 1996; 61 FR 52236, Oct. 7, 1996; 
62 FR 51005, Sept. 30, 1997; 64 FR 6189, Feb. 9, 1999; 64 FR 11533, Mar. 
9, 1999]



Sec. 1274a.3  Continuing employment of unauthorized aliens.

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

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



Sec. 1274a.4  Good faith defense.

    An employer or a recruiter or referrer for a fee for employment who 
shows good faith compliance with the employment verification 
requirements of Sec. 1274a.2(b) of this part shall have established a 
rebuttable affirmative defense that the person or entity has not 
violated section 274A(a)(1)(A) of the Act with respect to such hiring, 
recruiting, or referral.



Sec. 1274a.5  Use of labor through contract.

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

[55 FR 25934, June 25, 1990]



Sec. 1274a.6  State employment agencies.

    (a) General. Pursuant to sections 274A(a)(5) and 274A(b) of the Act, 
a state employment agency as defined in Sec. 1274a.1 of this part may, 
but is not required to, verify identity and employment eligibility of 
individuals referred for employment by the agency. However, should a 
state employment agency choose to do so, it must:
    (1) Complete the verification process in accordance with the 
requirements of Sec. 1274a.2(b) of this part provided that the 
individual may not present receipts in lieu of documents in order to 
complete the verification process as otherwise permitted by Sec. 
1274a.2(b)(1)(vi) of this part; and
    (2) Complete the verification process prior to referral for all 
individuals for whom a certification is required to be issued pursuant 
to paragraph (c) of this section.
    (b) Compliance with the provisions of section 274A of the Act. A 
state employment agency which chooses to verify employment eligibility 
of individuals pursuant to Sec. 1274a.2(b) of this part shall comply 
with all provisions of section 274A of the Act and the regulations 
issued thereunder.
    (c) State employment agency certification. (1) A state employment 
agency which chooses to verify employment eligibility pursuant to 
paragraph (a) of this section shall issue to an employer who hires an 
individual referred for employment by the agency, a certification as set 
forth in paragraph (d) of this section. The certification shall be 
transmitted by the state employment agency directly to the employer, 
personally by an agency official, or by mail, so that it will be 
received by the employer within 21 business days of the date that the 
referred individual is hired. In no case shall the certification be 
transmitted to the employer from the state employment agency by the 
individual referred. During this period:
    (i) The job order or other appropriate referral form issued by the 
state employment agency to the employer, on behalf of the individual who 
is referred and hired, shall serve as evidence, with respect to that 
individual, of the employer's compliance with the provisions of section 
274A(a)(1)(B) of the Act and the regulations issued thereunder.

[[Page 1157]]

    (ii) In the case of a telephonically authorized job referral by the 
state employment agency to the employer, an appropriate annotation by 
the employer shall be made and shall serve as evidence of the job order. 
The employer should retain the document containing the annotation where 
the employer retains Forms I-9.
    (2) Job orders or other referrals, including telephonic 
authorizations, which are used as evidence of compliance pursuant to 
paragraph (c)(1)(i) of this section shall contain:
    (i) The name of the referred individual;
    (ii) The date of the referral;
    (iii) The job order number or other applicable identifying number 
relating to the referral;
    (iv) The name and title of the referring state employment agency 
official; and
    (v) The telephone number and address of the state employment agency.
    (3) A state employment agency shall not be required to verify 
employment eligibility or to issue a certification to an employer to 
whom the agency referred an individual if the individual is hired for a 
period of employment not to exceed 3 days in duration. Should a state 
agency choose to verify employment eligibility and to issue a 
certification to an employer relating to an individual who is hired for 
a period of employment not to exceed 3 days in duration, it must verify 
employment eligibility and issue certifications relating to all such 
individuals. Should a state employment agency choose not to verify 
employment eligibility or issue certifications to employers who hire, 
for a period not to exceed 3 days in duration, agency-referred 
individuals, the agency shall notify employers that, as a matter of 
policy, it does not perform verifications for individuals hired for that 
length of time, and that the employers must complete the identity and 
employment eligibility requirements pursuant to Sec. 1274a.2(b) of this 
part. Such notification may be incorporated into the job order or other 
referral form utilized by the state employment agency as appropriate.
    (4) An employer to whom a state employment agency issues a 
certification relating to an individual referred by the agency and hired 
by the employer, shall be deemed to have complied with the verification 
requirements of Sec. 1274a.2(b) of this part provided that the 
employer:
    (i) Reviews the identifying information contained in the 
certification to ensure that it pertains to the individual hired;
    (ii) Observes the signing of the certification by the individual at 
the time of its receipt by the employer as provided for in paragraph 
(d)(13) of this section;
    (iii) Complies with the provisions of Sec. 1274a.2(b)(1)(vii) of 
this part by either:
    (A) Updating the state employment agency certification in lieu of 
Form I-9, upon expiration of the employment authorization date, if any, 
which was noted on the certification issued by the state employment 
agency pursuant to paragraph (d)(11) of this section; or
    (B) By no longer employing an individual upon expiration of his or 
her employment authorization date noted on the certification;
    (iv) Retains the certification in the same manner prescribed for 
Form I-9 in Sec. 1274a.2(b)(2) of this part, to wit, three years after 
the date of the hire or one year after the date the individual's 
employment is terminated, whichever is later; and
    (v) Makes it available for inspection to officers of the Service or 
the Department of Labor, pursuant to the provisions of section 
274A(b)(3) of the Act, and Sec. 1274a.2(b)(2) of this part.
    (5) Failure by an employer to comply with the provisions of 
paragraph (c)(4)(iii) of this section shall constitute a violation of 
section 274A(a)(2) of the Act and shall subject the employer to the 
penalties contained in section 274A(e)(4) of the Act, and Sec. 1274a.10 
of this part.
    (d) Standards for state employment agency certifications. All 
certifications issued by a state employment agency pursuant to paragraph 
(c) of this section shall conform to the following standards. They must:
    (1) Be issued on official agency letterhead;
    (2) Be signed by an appropriately designated official of the agency;
    (3) Bear a date of issuance;

[[Page 1158]]

    (4) Contain the employer's name and address;
    (5) State the name and date of birth of the individual referred;
    (6) Identify the position or type of employment for which the 
individual is referred;
    (7) Bear a job order number relating to the position or type of 
employment for which the individual is referred;
    (8) Identify the document or documents presented by the individual 
to the state employment agency for the purposes of identity and 
employment eligibility verification;
    (9) State the identifying number or numbers of the document or 
documents described in paragraph (d)(8) of this section;
    (10) Certify that the agency has complied with the requirements of 
section 274A(b) of the Act concerning verification of the identity and 
employment eligibility of the individual referred, and has determined 
that, to the best of the agency's knowledge, the individual is 
authorized to work in the United States;
    (11) Clearly state any restrictions, conditions, expiration dates or 
other limitations which relate to the individual's employment 
eligibility in the United States, or contain an affirmative statement 
that the employment authorization of the referred individual is not 
restricted;
    (12) State that the employer is not required to verify the 
individual's identity or employment eligibility, but must retain the 
certification in lieu of Form I-9;
    (13) Contain a space or a line for the signature of the referred 
individual, requiring the individual under penalty of perjury to sign 
his or her name before the employer at the time of receipt of the 
certification by the employer; and
    (14) State that counterfeiting, falsification, unauthorized issuance 
or alteration of the certification constitutes a violation of federal 
law pursuant to title 18, U.S.C. 1546.
    (e) Retention of Form I-9 by state employment agencies. A Form I-9 
utilized by a state employment agency in verifying the identity and 
employment eligibility of an individual pursuant to Sec. 1274a.2(b) of 
this part must be retained by a state employment agency for a period of 
three years from the date that the individual was last referred by the 
agency and hired by an employer. A state employment agency may retain a 
Form I-9 either in its original form, or on microfilm or microfiche.
    (f) Retention of state employment agency certifications. A 
certification issued by a state employment agency pursuant to this 
section shall be retained:
    (1) By a state employment agency, for a period of three years from 
the date that the individual was last referred by the agency and hired 
by an employer, and in a manner to be determined by the agency which 
will enable the prompt retrieval of the information contained on the 
original certification for comparison with the relating Form I-9;
    (2) By the employer, in the original form, and in the same manner 
and location as the employer has designated for retention of Forms I-9, 
and for the period of time provided in paragraph (c)(4)(iv) of this 
section.
    (g) State employment agency verification requirements in the case of 
an individual who was previously referred and certified. When a state 
employment agency refers an individual for whom the verification 
requirements have been previously complied with and a Form I-9 
completed, the agency shall inspect the previously completed Form I-9:
    (1) If, upon inspection of the Form, the agency determines that the 
Form I-9 pertains to the individual and that the individual remains 
authorized to be employed in the United States, no additional 
verification need be conducted and no new Form I-9 need be completed 
prior to issuance of a new certification provided that the individual is 
referred by the agency within 3 years of the execution of the initial 
Form I-9.
    (2) If, upon inspection of the Form, the agency determines that the 
Form I-9 pertains to the individual but that the individual does not 
appear to be authorized to be employed in the United States based on 
restrictions, expiration dates or other conditions annotated on the Form 
I-9, the agency shall not issue a certification unless the agency 
follows the updating procedures pursuant to Sec. 1274a.2(b)(1)(vii) of 
this part;

[[Page 1159]]

otherwise the individual may no longer be referred for employment by the 
state employment agency.
    (3) For the purposes of retention of the Form I-9 by a state 
employment agency pursuant to paragraph (e) of this section, for an 
individual previously referred and certified, the state employment 
agency shall retain the Form for a period of 3 years from the date that 
the individual is last referred and hired.
    (h) Employer verification requirements in the case of an individual 
who was previously referred and certified. When an employer rehires an 
individual for whom the verification and certification requirements have 
been previously complied with by a state employment agency, the employer 
shall inspect the previously issued certification.
    (1) If, upon inspection of the certification, the employer 
determines that the certification pertains to the individual and that 
the individual remains authorized to be employed in the United States, 
no additional verification need be conducted and no new Form I-9 or 
certification need be completed provided that the individual is rehired 
by the employer within 3 years of the issuance of the initial 
certification, and that the employer follows the same procedures for the 
certification which pertain to Form I-9, as specified in Sec. 
1274a.2(c)(1)(i) of this part.
    (2) If, upon inspection of the certification, the employer 
determines that the certification pertains to the individual but that 
the certification reflects restrictions, expiration dates or other 
conditions which indicate that the individual no longer appears 
authorized to be employed in the United States, the employer shall 
verify that the individual remains authorized to be employed and shall 
follow the updating procedures for the certification which pertain to 
Form I-9, as specified in Sec. 1274a.2(c)(1)(ii) of this part; 
otherwise the individual may no longer be employed.
    (3) For the purposes of retention of the certification by an 
employer pursuant to this paragraph for an individual previously 
referred and certified by a state employment agency and rehired by the 
employer, the employer shall retain the certification for a period of 3 
years after the date that the individual is last hired, or one year 
after the date the individual's employment is terminated, whichever is 
later.

[52 FR 43053, Nov. 9, 1987]



Sec. 1274a.7  Pre-enactment provisions for employees hired prior to November 

7, 1986.

    (a) The penalty provisions set forth in section 274A (e) and (f) of 
the Act for violations of sections 274A(a)(1)(B) and 274A(a)(2) of the 
Act shall not apply to employees who were hired prior to November 7, 
1986, and who are continuing in their employment and have a reasonable 
expectation of employment at all times (as set forth in Sec. 
1274a.2(b)(1)(viii)), except those individuals described in section 
274a.2 (b)(1)(viii)(A)(7)(iii) and (b)(1)(viii)(A)(8).
    (b) For purposes of this section, an employee who was hired prior to 
November 7, 1986 shall lose his or her pre-enactment status if the 
employee:
    (1) Quits; or
    (2) Is terminated by the employer; the term termination shall 
include, but is not limited to, situations in which an employee is 
subject to seasonal employment; or
    (3) Is excluded or deported from the United States or departs the 
United States under a grant of voluntary departure; or
    (4) Is no longer continuing his or her employment (or does not have 
a reasonable expectation of employment at all times) as set forth in 
Sec. 1274a.2(b)(1)(viii).

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



Sec. 1274a.8  Prohibition of indemnity bonds.

    (a) General. It is unlawful for a person or other entity, in hiring 
or recruiting or referring for a fee for employment of an individual, to 
require the individual to post a bond or security, to pay or agree to 
pay an amount, or otherwise to provide a financial guarantee or 
indemnity, against any potential liability arising under this part 
relating to such hiring, recruiting, or referring of the individual. 
However, this prohibition does not apply to performance

[[Page 1160]]

clauses which are stipulated by agreement between contracting parties.
    (b) Penalty. Any person or other entity who requires any individual 
to post a bond or security as stated in this section shall, after notice 
and opportunity for an administrative hearing in accordance with section 
274A(e)(3)(B) of the Act, be subject to a civil monetary penalty of 
$1,000 for each violation before September 29, 1999, and $1,100 for each 
violation occurring on or after September 29, 1999, and to an 
administrative order requiring the return to the individual of any 
amounts received in violation of this section or, if the individual 
cannot be located, to the general fund of the Treasury.

[52 FR 16221, May 1, 1987, as amended at 64 FR 47101, Aug. 30, 1999]



Sec. 1274a.9  Enforcement procedures.

    (a) Procedures for the filing of complaints. Any person or entity 
having knowledge of a violation or potential violation of section 274A 
of the Act may submit a signed, written complaint in person or by mail 
to the Service office having jurisdiction over the business or residence 
of the potential violator. The signed, written complaint must contain 
sufficient information to identify both the complainant and the 
potential violator, including their names and addresses. The complaint 
should also contain detailed factual allegations relating to the 
potential violation including the date, time and place of the alleged 
violation and the specific act or conduct alleged to constitute a 
violation of the Act. Written complaints may be delivered either by mail 
to the appropriate Service office or by personally appearing before any 
immigration officer at a Service office.
    (b) Investigation. The Service may conduct investigations for 
violations on its own initiative and without having received a written 
complaint. When the Service receives a complaint from a third party, it 
shall investigate only those complaints that have a reasonable 
probability of validity. If it is determined after investigation that 
the person or entity has violated section 274A of the Act, the Service 
may issue and serve a Notice of Intent to Fine or a Warning Notice upon 
the alleged violator. Service officers shall have reasonable access to 
examine any relevant evidence of any person or entity being 
investigated.
    (c) Warning notice. The Service and/or the Department of Labor may 
in their discretion issue a Warning Notice to a person or entity alleged 
to have violated section 274A of the Act. This Warning Notice will 
contain a statement of the basis for the violations and the statutory 
provisions alleged to have been violated.
    (d) Notice of Intent to Fine. The proceeding to assess 
administrative penalties under section 274A of the Act is commenced when 
the Service issues a Notice of Intent to Fine on Form I-763. Service of 
this Notice shall be accomplished pursuant to part 103 of 8 CFR chapter 
I. The person or entity identified in the Notice of Intent to Fine shall 
be known as the respondent. The Notice of Intent to Fine may be issued 
by an officer defined in Sec. 242.1 of 8 CFR chapter I with concurrence 
of a Service attorney.
    (1) Contents of the Notice of Intent to Fine. (i) The Notice of 
Intent to Fine will contain the basis for the charge(s) against the 
respondent, the statutory provisions alleged to have been violated, and 
the penalty that will be imposed.
    (ii) The Notice of Intent to Fine will provide the following 
advisals to the respondent:
    (A) That the person or entity has the right to representation by 
counsel of his or her own choice at no expense to the government;
    (B) That any statement given may be used against the person or 
entity;
    (C) That the person or entity has the right to request a hearing 
before an Administrative Law Judge pursuant to 5 U.S.C. 554-557, and 
that such request must be made within 30 days from the service of the 
Notice of Intent to Fine;
    (D) That the Service will issue a final order in 45 days if a 
written request for a hearing is not timely received and that there will 
be no appeal of the final order.
    (2) [Reserved]
    (e) Request for Hearing Before an Administrative Law Judge. If a 
respondent contests the issuance of a Notice of Intent to Fine, the 
respondent must file with the INS, within thirty days of the

[[Page 1161]]

service of the Notice of Intent to Fine, a written request for a hearing 
before an Administrative Law Judge. Any written request for a hearing 
submitted in a foreign language must be accompanied by an English 
language translation. A request for a hearing is not deemed to be filed 
until received by the Service office designated in the Notice of Intent 
to Fine. In computing the thirty day period prescribed by this section, 
the day of service of the Notice of Intent to Fine shall not be 
included. If the Notice of Intent to Fine was served by ordinary mail, 
five days shall be added to the prescribed thirty day period. In the 
request for a hearing, the respondent may, but is not required to, 
respond to each allegation listed in the Notice of Intent to Fine.
    (f) Failure to file a request for hearing. If the respondent does 
not file a request for a hearing in writing within thirty days of the 
day of service of the Notice of Intent to Fine (thirty-five days if 
served by ordinary mail), the INS shall issue a final order from which 
there is no appeal.

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



Sec. 1274a.10  Penalties.

    The regulations pertaining to the imposition of penalties for 
violations of the provisions of section 274A of the Immigration and 
Nationality Act are contained in 8 CFR part 274a and 28 CFR part 68.

[73 FR 10136, Feb. 26, 2008]



Sec. 1274a.11  [Reserved]



                   Subpart B_Employment Authorization



Sec. 1274a.12  Classes of aliens authorized to accept employment.

    (a) Aliens authorized incident to status. Pursuant to the statutory 
or regulatory reference cited, the following classes of aliens are 
authorized to be employed in the United States without restrictions as 
to location or type of employment as a condition of their admission or 
subsequent change to one of the indicated classes. Any alien who is 
within a class of aliens described in paragraphs (a)(3) through (a)(8) 
or (a)(10) through (a)(16) of this section, and who seeks to be employed 
in the United States, must apply to the Service for a document 
evidencing such employment.
    (1) An alien who is a lawful permanent resident (with or without 
conditions pursuant to section 216 of the Act), as evidenced by Form I-
551 issued by the Service. An expiration date on the Form I-551 reflects 
only that the card must be renewed, not that the bearer's work 
authorization has expired;
    (2) An alien admitted to the United States as a lawful temporary 
resident pursuant to sections 245A or 210 of the Act, as evidenced by an 
employment authorization document issued by the Service;
    (3) An alien admitted to the United States as a refugee pursuant to 
section 207 of the Act for the period of time in that status, as 
evidenced by an employment authorization document issued by the Service;
    (4) An alien paroled into the United States as a refugee for the 
period of time in that status, as evidenced by an employment 
authorization document issued by the Service;
    (5) An alien granted asylum under section 208 of the Act for the 
period of time in that status, as evidenced by an employment 
authorization document issued by the Service;
    (6) An alien admitted to the United States as a nonimmigrant 
fianc[eacute] or fianc[eacute]e pursuant to section 101(a)(15)(K)(i) of 
the Act, or an alien admitted as a child of such alien, for the period 
of admission in that status, as evidenced by an employment authorization 
document issued by the Service;
    (7) An alien admitted as a parent (N-8) or dependent child (N-9) of 
an alien granted permanent residence under section 101(a)(27)(I) of the 
Act, as evidenced by an employment authorization document issued by the 
Service;
    (8) An alien admitted to the United States as a citizen of the 
Federated States of Micronesia (CFA/FSM) or of the Marshall Islands 
(CFA/MIS) pursuant to agreements between the United States and the 
former trust territories,

[[Page 1162]]

as evidenced by an employment authorization document issued by the 
Service;
    (9) Any alien admitted as a nonimmigrant spouse pursuant to section 
101(a)(15)(K)(ii) of the Act, or an alien admitted as a child of such 
alien, for the period of admission in that status, as evidenced by an 
employment authorization document, with an expiration date issued by the 
Service;
    (10) An alien granted withholding of deportation or removal for the 
period of time in that status, as evidenced by an employment 
authorization document issued by the Service;
    (11) An alien who has been granted extended voluntary departure by 
the Attorney General as a member of a nationality group pursuant to a 
request by the Secretary of State. Employment is authorized for the 
period of time in that status as evidenced by an employment 
authorization document issued by the Service;
    (12) An alien granted Temporary Protected Status under section 244 
of the Act for the period of time in that status, as evidenced by an 
employment authorization document issued by the Service;
    (13) An alien granted voluntary departure by the Attorney General 
under the Family Unity Program established by section 301 of the 
Immigration Act of 1990, as evidenced by an employment authorization 
document issued by the Service;
    (14) An alien granted Family Unity benefits under section 1504 of 
the Legal Immigrant Family Equity (LIFE) Act Amendments, Public Law 106-
554, and the provisions of 8 CFR part 245a, Subpart C of this chapter, 
as evidenced by an employment authorization document issued by the 
Service; or
    (15) Any alien in V nonimmigrant status as defined in section 
101(a)(15)(V) of the Act and 8 CFR 214.15. An employment authorization 
document issued under this paragraph will be valid for a period equal to 
the alien's period of authorized admission as a V nonimmigrant and, in 
any case, may not exceed 2 years;
    (16) An alien authorized to be admitted to or remain in the United 
States as a nonimmigrant alien victim of a severe form of trafficking in 
persons under section 101(a)(15)(T)(i) of the Act. Employment 
authorization granted under this paragraph shall expire upon the 
expiration of the underlying T-1 nonimmigrant status granted by the 
Service.
    (b) Aliens authorized for employment with a specific employer 
incident to status. The following classes of nonimmigrant aliens are 
authorized to be employed in the United States by the specific employer 
and subject to the restrictions described in the section(s) of this 
chapter indicated as a condition of their admission in, or subsequent 
change to, such classification. An alien in one of these classes is not 
issued an employment authorization document by the Service:
    (1) A foreign government official (A-1 or A-2), pursuant to Sec. 
214.2(a) of 8 CFR chapter I. An alien in this status may be employed 
only by the foreign government entity;
    (2) An employee of a foreign government official (A-3), pursuant to 
Sec. 214.2(a) of 8 CFR chapter I. An alien in this status may be 
employed only by the foreign government official;
    (3) A foreign government official in transit (C-2 or C-3), pursuant 
to Sec. 214.2(c) of 8 CFR chapter I. An alien in this status may be 
employed only by the foreign government entity;
    (4) [Reserved]
    (5) A nonimmigrant treaty trader (E-1) or treaty investor (E-2), 
pursuant to Sec. 214.2(e) of 8 CFR chapter I. An alien in this status 
may be employed only by the treaty-qualifying company through which the 
alien attained the status. Employment authorization does not extend to 
the dependents of the principal treaty trader or treaty investor (also 
designated ``E-1'' or ``E-2''), other than those specified in paragraph 
(c)(2) of this section;
    (6) A nonimmigrant (F-1) student who is in valid nonimmigrant 
student status and pursuant to 8 CFR 214.2(f) is seeking:
    (i) On-campus employment for not more than twenty hours per week 
when school is in session or full-time employment when school is not in 
session if the student intends and is eligible to register for the next 
term or session. Part-time on-campus employment is

[[Page 1163]]

authorized by the school and no specific endorsement by a school 
official or Service officer is necessary;
    (ii) [Reserved]
    (iii) Curricular practical training (internships, cooperative 
training programs, or work-study programs which are part of an 
established curriculum) after having been enrolled full-time in a 
Service approved institution for one full academic year. Curricular 
practical training (part-time or full-time) is authorized by the 
Designated School Official on the student's Form I-20. No Service 
endorsement is necessary.
    (7) A representative of an international organization (G-1, G-2, G-
3, or G-4), pursuant to Sec. 214.2(g) of 8 CFR chapter I. An alien in 
this status may be employed only by the foreign government entity or the 
international organization;
    (8) A personal employee of an official or representative of an 
international organization (G-5), pursuant to Sec. 214.2(g) of 8 CFR 
chapter I. An alien in this status may be employed only by the official 
or representative of the international organization;
    (9) A temporary worker or trainee (H-1, H-2A, H-2B, or H-3), 
pursuant to Sec. 214.2(h) of 8 CFR chapter I. An alien in this status 
may be employed only by the petitioner through whom the status was 
obtained. In the case of a professional H-2B 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 to petition for H-2B 
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's employment authorization will 
continue until the petition is adjudicated. If the new petition is 
denied, employment authorization will cease;
    (10) An information media representative (I), pursuant to Sec. 
214.2(i) of 8 CFR chapter I. An alien in this status may be employed 
only for the sponsoring foreign news agency or bureau. Employment 
authorization does not extend to the dependents of an information media 
representative (also designated ``I'');
    (11) An exchange visitor (J-1), pursuant to Sec. 214.2(j) of 8 CFR 
chapter I and 22 CFR part 62. An alien in this status may be employed 
only by the exchange visitor program sponsor or appropriate designee and 
within the guidelines of the program approved by the Department of State 
as set forth in the Form DS-2019, Certificate of Eligibility, issued by 
the program sponsor;
    (12) An intra-company transferee (L-1), pursuant to Sec. 214.2(1) 
of 8 CFR chapter I. An alien in this status may be employed only by the 
petitioner through whom the status was obtained;
    (13) An alien having extraordinary ability in the sciences, arts, 
education, business, or athletics (O-1), and an accompanying alien (O-
2), pursuant to Sec. 214.2(o) of 8 CFR chapter I. An alien in this 
status may be employed only by the petitioner through whom the status 
was obtained. 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 
the acquisition by the new organization, within which time the new 
organization is expected to file a new Form I-129 petition for O 
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's employment authorization will 
continue until the petition is adjudicated. If the new petition is 
denied, employment authorization will cease.
    (14) An athlete, artist, or entertainer (P-1, P-2, or P-3), pursuant 
to Sec. 214.2(p) of 8 CFR chapter I. An alien in this status may be 
employed only by the petitioner through whom the status was obtained. 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 the 
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,

[[Page 1164]]

employment authorization will cease. If a new Form I-129 is filed within 
30 days, the professional athlete's employment authorization will 
continue until the petition is adjudicated. If the new petition is 
denied, employment authorization will cease;
    (15) An international cultural exchange visitor (Q-1), according to 
Sec. 214.2(q)(1) of 8 CFR chapter I. An alien may only be employed by 
the petitioner through whom the status was obtained;
    (16) An alien having a religious occupation, pursuant to Sec. 
214.2(r) of 8 CFR chapter I. An alien in this status may be employed 
only by the religious organization through whom the status was obtained;
    (17) Officers and personnel of the armed services of nations of the 
North Atlantic Treaty Organization, and representatives, officials, and 
staff employees of NATO (NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 and 
NATO-6), pursuant to Sec. 214.2(o) of 8 CFR chapter I. An alien in this 
status may be employed only by NATO;
    (18) An attendant, servant or personal employee (NATO-7) of an alien 
admitted as a NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6, 
pursuant to Sec. 214.2(o) of 8 CFR chapter I. An alien admitted under 
this classification may be employed only by the NATO alien through whom 
the status was obtained;
    (19) A nonimmigrant pursuant to section 214(e) of the Act. An alien 
in this status must be engaged in business activities at a professional 
level in accordance with the provisions of Chapter 16 of the North 
American Free Trade Agreement (NAFTA); or
    (20) A nonimmigrant alien within the class of aliens described in 
paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12), 
(b)(13), (b)(14), (b)(16), and (b)(19) of this section whose status has 
expired but who has filed a timely application for an extension of such 
stay pursuant to Sec. Sec. 214.2 or 214.6 of 8 CFR chapter I. These 
aliens are authorized to continue employment with the same employer for 
a period not to exceed 240 days beginning on the date of the expiration 
of the authorized period of stay. Such authorization shall be subject to 
any conditions and limitations noted on the initial authorization. 
However, if the district director or service center director adjudicates 
the application prior to the expiration of this 240 day period and 
denies the application for extension of stay, the employment 
authorization under this paragraph shall automatically terminate upon 
notification of the denial decision.
    (c) Aliens who must apply for employment authorization. An alien 
within a class of aliens described in this section must apply for work 
authorization. If authorized, such an alien may accept employment 
subject to any restrictions stated in the regulations or cited on the 
employment authorization document:
    (1) An alien spouse or unmarried dependent child; son or daughter of 
a foreign government official (A-1 or A-2) pursuant to Sec. 214.2(a)(2) 
of 8 CFR chapter I and who presents a fully executed Form I-566 bearing 
the endorsement of an authorized representative of the Department of 
State;
    (2) An alien spouse or unmarried dependent son or daughter of an 
alien employee of the Coordination Council for North American Affairs 
(E-1) pursuant to Sec. 214.2(e) of 8 CFR chapter I;
    (3) A nonimmigrant (F-1) student who:
    (i) Is seeking employment for purposes of optional practical 
training pursuant to 8 CFR 214.2(f), provided the alien will be employed 
only in an occupation which is directly related to his or her area of 
studies and that he or she presents an I-20 ID endorsed by the 
designated school official;
    (ii) Has been offered employment under the sponsorship of an 
international organization within the meaning of the International 
Organization Immunities Act (59 Stat. 669) and who presents a written 
certification from the international organization that the proposed 
employment is within the scope of the organization's sponsorship. The F-
1 student must also present a Form I-20 ID or SEVIS Form I-20 with 
employment page completed by DSO certifying eligibility for employment; 
or
    (iii) Is seeking employment because of severe economic hardship 
pursuant to 8 CFR 214.2(f)(9)(ii)(C) and has filed the Form I-20 ID and 
Form I-538 (for

[[Page 1165]]

non-SEVIS schools), or SEVIS Form I-20 with employment page completed by 
the DSO certifying eligibility, and any other supporting materials such 
as affidavits which further detail the unforeseen economic circumstances 
that require the student to seek employment authorization. (9)(ii)(C) 
and has filed the Form I-20, Form I-538 and any other supporting 
materials such as affidavits which further detail the unforeseen 
economic circumstances that require the student to seek employment 
authorization and evidence the fact that the student has attempted to 
find employment under 8 CFR 214.2(f)(9)(ii)(B);
    (4) An alien spouse or unmarried dependent child; son or daughter of 
an officer of, representative to, or employee of an international 
organization (G-1, G-3 or G-4) pursuant to Sec. 214.2(g) of 8 CFR 
chapter I who presents a fully executed Form I-566 bearing the 
endorsement of an authorized representative of the Department of State;
    (5) An alien spouse or minor child of an exchange visitor (J-2) 
pursuant to Sec. 214.2(j) of 8 CFR chapter I;
    (6) A nonimmigrant (M-1) student seeking employment for practical 
training pursuant to 8 CFR 214.2(m) following completion of studies. The 
alien may be employed only in an occupation or vocation directly related 
to his or her course of study as recommended by the endorsement of the 
designated school official on the I-20 ID;
    (7) A dependent of an alien classified as NATO-1 through NATO-7 
pursuant to Sec. 214.2(n) of 8 CFR chapter I;
    (8) An alien who has filed a complete application for asylum or 
withholding of deportation or removal pursuant to 8 CFR part 1208, whose 
application:
    (i) Has not been decided, and who is eligible to apply for 
employment authorization under Sec. 1208.7 of this chapter because the 
150-day period set forth in that section has expired. Employment 
authorization may be granted according to the provisions of Sec. 1208.7 
of this chapter in increments to be determined by the Commissioner and 
shall expire on a specified date; or
    (ii) Has been recommended for approval, but who has not yet received 
a grant of asylum or withholding or deportation or removal;
    (9) An alien who has filed an application for adjustment of status 
to lawful permanent resident pursuant to part 245 of this chapter. 
Except as provided in Sec. Sec. 1245.13(j) and 1245.15(n) of this 
chapter, employment authorization shall be granted in increments not 
exceeding one year during the period the application is pending 
(including any period when an administrative appeal or judicial review 
is pending) and shall expire on a specified date. For purposes of 
section 245(c)(8) of the Act, an alien will not be deemed to be an 
``unauthorized alien'' as defined in section 274A(h)(3) of the Act while 
his or her properly filed Form I-485 application is pending final 
adjudication, if the alien has otherwise obtained permission from the 
Service pursuant to 8 CFR 274a.12 to engage in employment, or if the 
alien had been granted employment authorization prior to the filing of 
the adjustment application and such authorization does not expire during 
the pendency of the adjustment application. Upon meeting these 
conditions, the adjustment applicant need not file an application for 
employment authorization to continue employment during the period 
described in the preceding sentence;
    (10) An alien who has filed an application for suspension of 
deportation under section 244 of the Act (as it existed prior to April 
1, 1997), cancellation of removal pursuant to section 240A of the Act, 
or special rule cancellation of removal under section 309(f)(1) of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 
enacted as Pub. L. 104-208 (110 Stat. 3009-625) (as amended by the 
Nicaraguan Adjustment and Central American Relief Act (NACARA)), title 
II of Pub. L. 105-100 (111 Stat. 2160, 2193) and whose properly filed 
application has been accepted by the Service or EOIR. Employment 
authorization shall be granted in increments not exceeding one year 
during the period the application is pending (including any period when 
an administrative appeal or judicial review is pending) and shall expire 
on a specified date;
    (11) An alien paroled into the United States temporarily for 
emergency reasons or reasons deemed strictly in the

[[Page 1166]]

public interest pursuant to Sec. 212.5 of this chapter;
    (12)-(13) [Reserved]
    (14) An alien who has been granted deferred action, an act of 
administrative convenience to the government which gives some cases 
lower priority, if the alien establishes an economic necessity for 
employment;
    (15) [Reserved]
    (16) Any alien who has filed an application for creation of record 
of lawful admission for permanent residence pursuant to part 1249 of 
this chapter. Employment authorization shall be granted in increments 
not exceeding one year during the period the application is pending 
(including any period when an administrative appeal or judicial review 
is pending) and shall expire on a specific date;
    (17) A nonimmigrant visitor for business (B-1) who:
    (i) Is a personal or domestic servant who is accompanying or 
following to join an employer who seeks admission into, or is already 
in, the United States as a nonimmigrant defined under sections 
101(a)(15) (B), (E), (F), (H), (I), (J), (L) or section 214(e) of the 
Act. The personal or domestic servant shall have a residence abroad 
which he or she has no intention of abandoning and shall demonstrate at 
least one year's experience as a personal or domestic servant. The 
nonimmigrant's employer shall demonstrate that the employer/employee 
relationship has existed for at least one year prior to the employer's 
admission to the United States; or, if the employer/employee 
relationship existed for less than one year, that the employer has 
regularly employed (either year-round or seasonally) personal or 
domestic servants over a period of several years preceding the 
employer's admission to the United States;
    (ii) Is a domestic servant of a United States citizen accompanying 
or following to join his or her United States citizen employer who has a 
permanent home or is stationed in a foreign country, and who is visiting 
temporarily in the United States. The employer/employee relationship 
shall have existed prior to the commencement of the employer's visit to 
the United States; or
    (iii) Is an employee of a foreign airline engaged in international 
transportation of passengers freight, whose position with the foreign 
airline would otherwise entitle the employee to classification under 
section 101(a)(15)(E)(i) of the Immigration and Nationality Act, and who 
is precluded from such classification solely because the employee is not 
a national of the country of the airline's nationality or because there 
is no treaty of commerce and navigation in effect between the United 
States and the country of the airline's nationality.
    (18) An alien against whom a final order of deportation or removal 
exists and who is released on an order of supervision under the 
authority contained in section 241(a)(3) of the Act may be granted 
employment authorization in the discretion of the district director only 
if the alien cannot be removed due to the refusal of all countries 
designated by the alien or under section 241 of the Act to receive the 
alien, or because the removal of the alien is otherwise impracticable or 
contrary to the public interest. Additional factors which may be 
considered by the district director in adjudicating the application for 
employment authorization include, but are not limited to, the following:
    (i) The existence of economic necessity to be employed;
    (ii) The existence of a dependent spouse and/or children in the 
United States who rely on the alien for support; and
    (iii) The anticipated length of time before the alien can be removed 
from the United States.
    (19) An alien applying for Temporary Protected Status pursuant to 
section 244 of the Act shall apply for employment authorization only in 
accordance with the procedures set forth in part 244 of this chapter.
    (20) Any alien who has filed a completed legalization application 
pursuant to section 210 of the Act (and part 210 of 8 CFR chapter I). 
Employment authorization shall be granted in increments not exceeding 1 
year during the period the application is pending (including any period 
when an administrative appeal is pending) and shall expire on a 
specified date.
    (21) A principal nonimmigrant witness or informant in S 
classification,

[[Page 1167]]

and qualified dependent family members.
    (22) Any alien who has filed a completed legalization application 
pursuant to section 245A of the Act (and part 245a of 8 CFR chapter I). 
Employment authorization shall be granted in increments not exceeding 1 
year during the period the application is pending (including any period 
when an administrative appeal is pending) and shall expire on a 
specified date.
    (23) An Irish peace process cultural and training program visitor 
(Q-2), pursuant to Sec. 214.2(q)(15) of 8 CFR chapter I and 22 CFR 
41.57 and 22 CFR part 139. An alien in this status may only accept 
employment with the employer listed on the Certification Letter issued 
by the DOS' Program Administrator.
    (24) An alien who has filed an application for adjustment pursuant 
to section 1104 of the LIFE Act, Public Law 106-553, and the provisions 
of 8 CFR part 245a, Subpart B of this chapter. Employment authorization 
shall be granted in increments not exceeding 1 year during the period 
that the application is pending (including any period when an 
administrative appeal is pending) and shall expire on a specific date.
    (25) An immediate family member of a T-1 victim of a severe form of 
trafficking in persons designated as a T-2, T-3 or T-4 nonimmigrant 
pursuant to Sec. 214.11 of this chapter. Aliens in this status shall 
only be authorized to work for the duration of their T nonimmigrant 
status.
    (d) Basic criteria to establish economic necessity. Title 45--Public 
Welfare, Poverty Guidelines, 45 CFR 1060.2 should be used as the basic 
criteria to establish eligibility for employment authorization when the 
alien's economic necessity is identified as a factor. The alien shall 
submit an application for employment authorization listing his or her 
assets, income, and expenses as evidence of his or her economic need to 
work. Permission to work granted on the basis of the alien's application 
for employment authorization may be revoked under Sec. 1274a.14 of this 
chapter upon a showing that the information contained in the statement 
was not true and correct.

[52 FR 16221, May 1, 1987]

    Editorial Note: For Federal Register citations affecting Sec. 
1274a.12, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 1274a.13  Application for employment authorization.

    (a) General. Aliens authorized to be employed under Sec. 
1274a.12(a) (3)-(8) and (10)-(13) must file an Application for 
Employment Authorization (Form I-765) in order to obtain documentation 
evidencing this fact.
    (1) Aliens who may apply for employment authorization under Sec. 
1274a.12(c) of this part, except for those who may apply under Sec. 
1274a.12(c)(8), shall file a Form I-765 with the director having 
jurisdiction over applicant's residence, or the director having 
jurisdiction over the port of entry at which the alien applies, or with 
such other Service office as the Commissioner may designate. The 
approval of applications filed under Sec. 1274a.12(c) of this part, 
except for Sec. 1274a.12(c)(8), shall be within the discretion of the 
director or such other officer as the Commissioner may designate. Where 
economic necessity has been identified as a factor, the alien must 
provide information regarding his or her assets, income, and expenses in 
accordance with instructions on Form I-765.
    (2) An initial Application for Employment Authorization (Form I-765) 
for asylum applicants under 274a.12(c)(8) of this part shall be filed in 
accordance with instructions on or attached to Form I-765 with the 
appropriate Service Center or with such other Service office as the 
Commissioner may designate. The applicant also must submit a copy of the 
underlying application for asylum or withholding of deportation, 
together with evidence that the application has been filed in accordance 
with Sec. Sec. 208.3 and 208.4 of this chapter. An application for an 
initial employment authorization or for a renewal of employment 
authorization filed in relation to a pending claim for asylum shall be 
adjudicated in accordance with Sec. 208.7 of this chapter. An 
application for renewal or replacement of employment authorization 
submitted in relation to a pending claim for asylum, as provided in 
Sec. 208.7 of this chapter, shall be filed, with fee

[[Page 1168]]

or application for waiver of such fee, in accordance with the 
instructions on or attached to Form I-765 with the appropriate Service 
Center or with such other Service office as the Commissioner may 
designate.
    (b) Approval of application. If the application is granted, the 
alien shall be notified of the decision and issued an INS employment 
authorization document valid for a specific period and subject to any 
terms and conditions as noted.
    (c) Denial of application. If the application is denied, the 
applicant shall be notified in writing of the decision and the reasons 
for the denial. There shall be no appeal from the denial of the 
application.
    (d) Interim employment authorization. The district director shall 
adjudicate the application within 90 days from the date of receipt of 
the application by the INS, except in the case of an initial application 
for employment authorization under Sec. 1274a.12(c)(8), which is 
governed by paragraph (a)(2) of this section, and Sec. 1274a.12(c)(9) 
insofar as it is governed by Sec. Sec. 245.13(j) and 245.15(n) of this 
chapter. Failure to complete the adjudication within 90 days will result 
in the grant of an employment authorization document for a period not to 
exceed 240 days. Such authorization shall be subject to any conditions 
noted on the employment authorization document. However, if the director 
adjudicates the application prior to the expiration date of the interim 
employment authorization and denies the individual's employment 
authorization application, the interim employment authorization granted 
under this section shall automatically terminate as of the date of the 
director's adjudication and denial.

[52 FR 16221, May 1, 1987, as amended at 55 FR 25937, June 25, 1990; 56 
FR 41787, Aug. 23, 1991; 59 FR 33905, July 1, 1994; 59 FR 62303, Dec. 5, 
1994; 60 FR 21976, May 4, 1995; 63 FR 39121, July 21, 1998; 64 FR 25773, 
May 12, 1999; 65 FR 15846, Mar. 24, 2000]



Sec. 1274a.14  Termination of employment authorization.

    (a) Automatic termination of employment authorization. (1) 
Employment authorization granted under Sec. 1274a.12(c) of this chapter 
shall automatically terminate upon the occurrence of one of the 
following events:
    (i) The expiration date specified by the Service on the employment 
authorization document is reached;
    (ii) Exclusion or deportation proceedings are instituted (however, 
this shall not preclude the authorization of employment pursuant to 
Sec. 1274a.12(c) of this part where appropriate); or
    (iii) The alien is granted voluntary departure.
    (2) Termination of employment authorization pursuant to this 
paragraph does not require the service of a notice of intent to revoke; 
employment authorization terminates upon the occurrence of any event 
enumerated in paragraph (a)(1) of this section.
    However, automatic revocation under this section does not preclude 
reapplication for employment authorization under Sec. 274.12(c) of this 
part.
    (b) Revocation of employment authorization--(1) Basis for revocation 
of employment authorization. Employment authorization granted under 
Sec. 1274a.12(c) of this chapter may be revoked by the district 
director:
    (i) Prior to the expiration date, when it appears that any condition 
upon which it was granted has not been met or no longer exists, or for 
good cause shown; or
    (ii) Upon a showing that the information contained in the 
application is not true and correct.
    (2) Notice of intent to revoke employment authorization. When a 
district director determines that employment authorization should be 
revoked prior to the expiration date specified by the Service, he or she 
shall serve written notice of intent to revoke the employment 
authorization. The notice will cite the reasons indicating that 
revocation is warranted. The alien will be granted a period of fifteen 
days from the date of service of the notice within which to submit 
countervailing evidence. The decision by the district director shall be 
final and no appeal shall lie from the decision to revoke the 
authorization.
    (c) Automatic termination of temporary employment authorization 
granted prior to June 1, 1987. (1) Temporary employment authorization 
granted prior to June 1, 1987, pursuant to 8 CFR

[[Page 1169]]

274a.12(c) (Sec. 109.1(b) contained in the 8 CFR edition revised as of 
January 1, 1987), shall automatically terminate on the date specified by 
the Service on the document issued to the alien, or on December 31, 
1996, whichever is earlier. Automatic termination of temporary 
employment authorization does not preclude a subsequent application for 
temporary employment authorization.
    (2) A document issued by the Service prior to June 1, 1987, that 
authorized temporary employment authorization for any period beyond 
December 31, 1996, is null and void pursuant to paragraph (c)(1) of this 
section. The alien shall be issued a new employment authorization 
document upon application to the Service if the alien is eligible for 
temporary employment authorization pursuant to 274A.12(c).
    (3) No notice of intent to revoke is necessary for the automatic 
termination of temporary employment authorization pursuant to this part.

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



PART 1280_IMPOSITION AND COLLECTION OF FINES--Table of Contents




Sec.
1280.1 Notice of intention to fine; administrative proceedings not 
          exclusive.
1280.2 Special provisions relating to aircraft.
1280.3 Departure of vessel or aircraft prior to denial of clearance.
1280.4 Data concerning cost of transportation.
1280.5 Mitigation or remission of fines.
1280.6 Bond to obtain clearance; form.
1280.7 Approval of bonds or acceptance of cash deposit to obtain 
          clearance.
1280.11 Notice of intention to fine; procedure.
1280.12 Answer and request or order for interview.
1280.13 Disposition of case.
1280.14 Record.
1280.15 Notice of final decision to district director of customs.
1280.21 Seizure of aircraft.
1280.51 Application for mitigation or remission.
1280.52 Payment of fines.
1280.53 Civil monetary penalties inflation adjustment.

    Authority: 8 U.S.C. 1103, 1221, 1223, 1227, 1229, 1253, 1281, 1283, 
1284, 1285, 1286, 1322, 1323, and 1330; 66 Stat. 173, 195, 197, 201, 
203, 212, 219, 221-223, 226, 227, 230; Pub. L. 101-410, 104 Stat. 890, 
as amended by Pub. L. 104-134, 110 Stat. 1321.

    Source: 22 FR 9807, Dec. 6, 1957, unless otherwise noted. Duplicated 
from part 280 at 68 FR 9844, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1280 appear at 68 FR 
9846, Feb. 28, 2003.



Sec. 1280.1  Notice of intention to fine; administrative proceedings not 

exclusive.

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

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



Sec. 1280.2  Special provisions relating to aircraft.

    In any case in which the imposition of a fine is predicated upon an 
alleged violation of a regulation promulgated under authority of section 
239 of the Immigration and Nationality Act, the procedure prescribed in 
this part shall be followed and the aircraft involved shall not be 
granted clearance pending determination of the question of liability to 
the payment of any fine, or while the fine remains unpaid; but clearance 
may be granted prior to the determination of such question upon the 
deposit of a sum sufficient to cover such fine or of a bond with 
sufficient surety to secure the payment thereof, approved by the 
Commisioner. If the alleged violation was by the owner or person in 
command of the aircraft, the penalty provided for shall be a lien 
against the aircraft, which, except as provided in Sec. 1280.21, shall 
be seized by the district director or by an immigration officer 
designated by the district director, and

[[Page 1170]]

placed in the custody of the customs officer who is in charge of the 
port of entry or customs station nearest the place of seizure. If the 
owner or owners of the airport at which such aircraft is located are the 
owners of the seized aircraft, the aircraft shall be removed to another 
suitable place for storage if practicable.

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



Sec. 1280.3  Departure of vessel or aircraft prior to denial of clearance.

    If any vessel or aircraft which is subject to the imposition of a 
fine shall have departed from the United States prior to the denial of 
clearance by the district director of customs and such vessel or 
aircraft is subsequently found in the United States, a Notice of 
Intention to Fine, Form I-79, shall be served as provided in this part, 
if such form has not been previously served for the same violation. 
Clearance of such vessel or aircraft shall be withheld by the district 
director of customs, and the procedure prescribed in this part shall be 
followed to the same extent and in the same manner as though the vessel 
or aircraft had not departed from the United States. Aircraft subject to 
the provisions of Sec. 1280.2, which shall have departed from the 
United States prior to the time of seizure could be effected, shall be 
subject to all of the provisions of this part, if subsequently found in 
the United States, to the same extent as though it had not departed from 
the United States.

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



Sec. 1280.4  Data concerning cost of transportation.

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

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



Sec. 1280.5  Mitigation or remission of fines.

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

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



Sec. 1280.6  Bond to obtain clearance; form.

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

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



Sec. 1280.7  Approval of bonds or acceptance of cash deposit to obtain clearance.

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

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



Sec. 1280.11  Notice of intention to fine; procedure.

    Notice of Intention to Fine, Form I-79, shall be prepared in 
triplicate, with

[[Page 1171]]

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

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



Sec. 1280.12  Answer and request or order for interview.

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

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



Sec. 1280.13  Disposition of case.

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

[[Page 1172]]

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

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



Sec. 1280.14  Record.

    The record made under Sec. 1280.13 shall include the request for 
the interview or a reference to the order directing the interview; the 
medical certificate, if any; a copy of any record of hearing before a 
Board of Special Inquiry, Hearing Examiner, Hearing Officer, or Special 
Inquiry Officer which is relevant to the fine proceedings; the duplicate 
copy of the Notice of Intention to Fine; the evidence upon which such 
Notice was based; the duplicate of any notices to detain, deport, 
deliver, or remove aliens; notice to pay expenses; evidence as to 
whether any deposit was made or bond furnished in accordance with the 
Immigration and Nationality Act; reports of investigations conducted; 
documentary evidence and testimony adduced at the interview; the 
original of any affidavit or brief filed in opposition to the imposition 
of fine; the application for mitigation or remission; and any other 
relevant matter.



Sec. 1280.15  Notice of final decision to district director of customs.

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

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



Sec. 1280.21  Seizure of aircraft.

    Seizure of an aircraft under the authority of section 239 of the Act 
and Sec. 1280.2 will not be made if such aircraft is damaged to an 
extent that its value is less than the amount of the fine which may be 
imposed. If seizure of an aircraft for violation of section 239 of the 
Act is to be made, Form G-297 (Order to Seize Aircraft) and Form G-298 
(Public Notice of Seizure) shall be prepared in septuple and the 
originals furnished to the immigration officer who will effect the 
seizure. The original of Form G-297, properly endorsed as to date and 
place of seizure, shall be returned for retention in the relating file 
after seizure is effected. The original of Form G-298 shall be placed on 
the seized aircraft and a copy retained in the file. Copies of both 
forms shall be served upon the owner of the aircraft and the pilot if 
other than the owner. Copies shall also be furnished the district 
director of customs and the United States Attorney for the district in 
which the seizure was made. In addition, immediately upon the seizure of 
an aircraft, or prior thereto, if circumstances permit, a full report of 
the facts in the case shall be submitted by the district director to the 
United States Attorney for the district in which the seizure was made, 
together with copies of Form G-296 (Report of Violation) and Form I-79 
(Notice of Intention to Fine). The report shall include the cost 
incurred in seizing and guarding the aircraft and an estimate of the 
further additional cost likely to be incurred.

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

[[Page 1173]]



Sec. 1280.51  Application for mitigation or remission.

    (a) When application may be filed. An application for mitigation or 
remission of a fine may be filed as provided under Sec. 1280.12 of this 
part; or, within 30 days after the date of receipt of the district 
director's or the Associate Commissioner for Examinations, or the 
Director for the National Fines Office's decision to impose a fine 
whether or not the applicant responded to the Notice of Intention to 
Fine.
    (b) Form and contents of application. An application for mitigation 
or remission shall be filed in duplicate under oath and shall include 
information, supported by documentary evidence, as to the basis of the 
claim to mitigation or remission, and as to the action, if any, which 
may have been taken by the applicant, or as to the circumstances present 
in the case which, in the opinion of the applicant, justified the 
granting of his application.
    (c) Disposition of application. The application, if filed with the 
answer, shall be disposed of as provided in Sec. 1280.13. In any other 
case the application shall be considered and decided by the district 
director or the Associate Commissioner for Examinations, or the Director 
for the National Fines Office from whose decision an appeal may be taken 
to the Board within 15 days after the mailing of the notification of 
decision as provided in part 3 of this chapter.

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



Sec. 1280.52  Payment of fines.

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

[56 FR 26020, June 6, 1991]



Sec. 1280.53  Civil monetary penalties inflation adjustment.

    (a) In general. In accordance with the requirements of the Federal 
Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 101-410, 104 
Stat. 890, as amended by the Debt Collection Improvement Act of 1996, 
Pub. L. 104-34, 110 Stat. 1321, the civil monetary penalties provided by 
law within the jurisdiction of the Service and listed in paragraph (c) 
of this section are adjusted as set forth in this section, effective for 
violations occurring on or after September 29, 1999.
    (b) Calculation of adjustment. (1) The inflation adjustments 
described in paragraph (c) of this section were determined by increasing 
the maximum civil monetary penalty or the range of minimum and maximum 
civil monetary penalties, as applicable, for each civil monetary penalty 
assessed or enforced by the Service by the cost-of-living adjustment as 
that term is defined by the Federal Civil Penalties Inflation Adjustment 
Act of 1990, Pub. L. 101-410. Any increase so determined was rounded to 
the nearest--
    (i) Multiples of $10 in the case of penalties less than or equal to 
$100;
    (ii) Multiples of $100 in the case of penalties greater than $100 
but less than or equal to $1,000;
    (iii) Multiples of $1,000 in the case of penalties greater than 
$1,000 but less than or equal to $10,000;
    (iv) Multiples of $5,000 in the case of penalties greater than 
$10,000 but less than or equal to $100,000;
    (v) Multiples of $10,000 in the case of penalties greater than 
$100,000 but less than or equal to $200,000; and
    (vi) Multiples of $25,000 in the case of penalties greater than 
$200,000.
    (2) Notwithstanding the provisions of paragraph (b)(1) of this 
section, the initial adjustment for each penalty is capped at 10%.
    (c) Adjustment to penalties. The civil monetary penalties provided 
by law within the jurisdiction of the Service, as set forth in this 
paragraph (c)(1) through (9), are adjusted in accordance

[[Page 1174]]

with the inflation adjustment procedures prescribed in section 5 of the 
Federal Civil Monetary Penalties Inflation Adjustment Act of 1990, Pub. 
L. 101-410, effective on or after the September 29, 1999 as follows:
    (1) Section 231(d) of the Act, Lists of Aliens and Citizen 
Passengers Arriving or Departing; Record of Resident Aliens and Citizens 
Leaving Permanently for Foreign Country: from $300 to $330.
    (2) Section 234 of the Act, Designation of Ports of Entry for Aliens 
Arriving by Civil Aircraft: from $2,000 to $2,200.
    (3) Section 251(d) of the Act, List of Alien Crewmen; Reports of 
Illegal Landings: from $200 to $220 for each alien not reported in 
accordance with Sec. 251; and from $5,000 to $5,500 for use of alien 
crewman for longshore work in violation of section 251(d).
    (4) Section 254(a) of the Act, Control of Alien Crewman: from $500 
minimum/$3,000 maximum to $550 minimum/$3,300 maximum.
    (5) Section 255 of the Act, Employment on Passenger Vessels of 
Aliens Afflicted with Certain Disabilities: from $1,000 to $1,100.
    (6) Section 256 of the Act, Discharge of Alien Crewman: from $1,500 
minimum/$3,000 maximum to $1,500 minimum/$3,300 maximum.
    (7) Section 257 of the Act, Bringing Alien Crewmen Into United 
States with Intent to Evade Immigration Laws: from a $10,000 maximum to 
a $11,000 maximum.
    (8) Section 271(a) of the Act, Prevention of Unauthorized Landing of 
Aliens: from $3,000 to $3,300.
    (9) Section 272(a) of the Act, Bringing in Aliens Subject to 
Exclusion on a Health-Related Ground: from $3,000 to $3,300.
    (10) Section 273(b) of the Act, Unlawful Bringing of Aliens Into 
United States: from $3,000 to $3,300.
    (d) Identification of sections requiring no adjustment to penalties. 
The civil monetary penalties provided by law within the jurisdiction of 
the Service, as set forth below in paragraphs (d)(1) through (7) of this 
section require no adjustment:
    (1) Section 240B(d) of the Act, Voluntary Departure.
    (2) Section 243(c)(1)(A) and (B) of the Act, Penalties Related to 
Removal.
    (3) Section 274C(a)(5) and (a)(6) of the Act, Penalties for Document 
Fraud.
    (4) Section 274D of the Act, Penalties for Failure to Depart.
    (5) Section 275(b) of the Act, Entry of Alien at Improper Time or 
Place.

[64 FR 47102, Aug. 30, 1999]



PART 1287_FIELD OFFICERS; POWERS AND DUTIES--Table of Contents




Sec.
1287.4 Subpoena.
1287.6 Proof of official records.

    Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357.

    Source: Duplicated from part 287 at 68 FR 9845, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1287 appear at 68 FR 
9846, Feb. 28, 2003.



Sec. 1287.4  Subpoena.

    (a) Who may issue--(1) Criminal or civil investigations. For 
provisions relating to the authority of immigration officers to issue a 
subpoena requiring the production of records and evidence for use in 
criminal or civil investigations, see 8 CFR 287.4(a)(1).
    (2) Proceedings other than naturalization proceedings--(i) Prior to 
commencement of proceedings. For provisions relating to who may issue a 
subpoena requiring the attendance of witnesses or the production of 
documentary evidence, or both, for use in any proceeding under this 
title, other than under 8 CFR part 335, or any application made 
ancillary to the proceeding, see 8 CFR 287.4(a)(2)(i).
    (ii) Subsequent to commencement of any proceeding. (A) In any 
proceeding under this chapter and in any proceeding ancillary thereto, 
an immigration judge having jurisdiction over the matter may, upon his/
her own volition or upon application of government counsel, the alien, 
or other party affected, issue subpoenas requiring the attendance of 
witnesses or for the production of books, papers and other documentary 
evidence, or both.
    (B) Application for subpoena. A party applying for a subpoena shall 
be required, as a condition precedent to its issuance, to state in 
writing or at the

[[Page 1175]]

proceeding, what he/she expects to prove by such witnesses or 
documentary evidence, and to show affirmatively that he/she has made 
diligent effort, without success, to produce the same.
    (C) Issuance of subpoena. Upon being satisfied that a witness will 
not appear and testify or produce documentary evidence and that the 
witness' evidence is essential, the immigration judge shall issue a 
subpoena.
    (D) Appearance of witness. If the witness is at a distance of more 
than 100 miles from the place of the proceeding, the subpoena shall 
provide for the witnesses' appearance at the Service office nearest to 
the witness to respond to oral or written interrogatories, unless the 
Service indicates that there is no objection to bringing the witness the 
distance required to enable him/her to testify in person.
    (b) Form of subpoena. All subpoenas shall be issued on Form I-138.
    (1) Criminal or civil investigations. The subpoena shall command the 
person or entity to which it is addressed to attend and to give 
testimony at a time or place specified. A subpoena shall also command 
the person or entity to which it is addressed to produce the books, 
papers, or documents specified in the subpoena. A subpoena may direct 
the taking of a deposition before an officer of the Service.
    (2) Proceedings other than naturalization proceedings. Every 
subpoena issued under the provisions of this section shall state the 
title of the proceeding and shall command the person to whom it is 
directed to attend and to give testimony at a time and place specified. 
A subpoena shall also command the person to whom it is directed to 
produce the books, papers, or documents specified in the subpoena. A 
subpoena may direct the making of a deposition before an officer of the 
Service.
    (c) Service. For provisions relating to who may serve a subpoena 
issued under this section, see 8 CFR 287.4(c).
    (d) Invoking aid of court. If a witness neglects or refuses to 
appear and testify as directed by the subpoena served upon him or her in 
accordance with the provisions of this section, the immigration judge 
issuing the subpoena shall request the United States Attorney for the 
district in which the subpoena was issued to report such neglect or 
refusal to the United States District Court and to request such court to 
issue an order requiring the witness to appear and testify and to 
produce the books, papers, or documents designated in the subpoena.

[50 FR 30134, July 24, 1985; 50 FR 47205, Nov. 15, 1985, as amended at 
60 FR 56937, Nov. 13, 1995; 62 FR 10390, Mar. 6, 1997; 67 FR 39260, June 
7, 2002; 69 FR 44907, July 28, 2004]



Sec. 1287.6  Proof of official records.

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

[[Page 1176]]

(1) In any proceeding under this chapter, a public document or entry 
therein, when admissible for any purpose, may be evidenced by an 
official publication, or by a copy properly certified under the 
Convention. To be properly certified, the copy must be accompanied by a 
certificate in the form dictated by the Convention. This certificate 
must be signed by a foreign officer so authorized by the signatory 
country, and it must certify (i) the authenticity of the signature of 
the person signing the document; (ii) the capacity in which that person 
acted, and (iii) where appropriate, the identity of the seal or stamp 
which the document bears.
    (2) No certification is needed from an officer in the Foreign 
Service of public documents.
    (3) In accordance with the Convention, the following are deemed to 
be public documents:
    (i) Documents emanating from an authority or an official connected 
with the courts of tribunals of the state, including those emanating 
from a public prosecutor, a clerk of a court or a process server;
    (ii) Administrative documents;
    (iii) Notarial acts; and
    (iv) Official certificates which are placed on documents signed by 
persons in their private capacity, such as official certificates 
recording the registration of a document or the fact that it was in 
existence on a certain date, and official and notarial authentication of 
signatures.
    (4) In accordance with the Convention, the following are deemed not 
to be public documents, and thus are subject to the more stringent 
requirements of Sec. 1287.6(b) above:
    (i) Documents executed by diplomatic or consular agents; and
    (ii) Administrative documents dealing directly with commercial or 
customs operations.
    (d) Canada. In any proceedings under this chapter, an official 
record or entry therein, issued by a Canadian governmental entity within 
the geographical boundaries of Canada, when admissible for any purpose, 
shall be evidenced by a certified copy of the original record attested 
by the official having legal custody of the record or by an authorized 
deputy.

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



PART 1292_REPRESENTATION AND APPEARANCES--Table of Contents




Sec.
1292.1 Representation of others.
1292.2 Organizations qualified for recognition; requests for 
          recognition; withdrawal of recognition; accreditation of 
          representatives; roster.
1292.3 Professional conduct for practitioners--Rules and procedures.
1292.4 Appearances.
1292.5 Service upon and action by attorney or representative of record.
1292.6 Interpretation.

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

    Source: Duplicated from part 292 at 68 FR 9845, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1292 appear at 68 FR 
9846, Feb. 28, 2003, and 68 FR 10360, Mar. 5, 2003.



Sec. 1292.1  Representation of others.

    (a) A person entitled to representation may be represented by any of 
the following:
    (1) Attorneys in the United States. Any attorney as defined in Sec. 
1001.1(f) of this chapter.
    (2) Law students and law graduates not yet admitted to the bar. A 
law student who is enrolled in an accredited law school, or a law 
graduate who is not yet admitted to the bar, provided that:
    (i) He or she is appearing at the request of the person entitled to 
representation;
    (ii) In the case of a law student, he or she has filed a statement 
that he or she is participating, under the direct supervision of a 
faculty member, licensed attorney, or accredited representative, in a 
legal aid program or clinic conducted by a law school or non-profit 
organization, and that he or she is appearing without direct or indirect 
remuneration from the alien he or she represents;
    (iii) In the case of a law graduate, he or she has filed a statement 
that he or she is appearing under the supervision of a licensed attorney 
or accredited

[[Page 1177]]

representative and that he or she is appearing without direct or 
indirect remuneration from the alien he or she represents; and
    (iv) The law student's or law graduate's appearance is permitted by 
the official before whom he or she wishes to appear (namely an 
immigration judge, district director, officer-in-charge, regional 
director, the Commissioner, or the Board). The official or officials may 
require that a law student be accompanied by the supervising faculty 
member, attorney, or accredited representative.
    (3) Reputable individuals. Any reputable individual of good moral 
character, provided that:
    (i) He is appearing on an individual case basis, at the request of 
the person entitled to representation;
    (ii) He is appearing without direct or indirect renumeration and 
files a written declaration to that effect;
    (iii) He has a pre-existing relationship or connection with the 
person entitled to representation (e.g., as a relative, neighbor, 
clergyman, business associate or personal friend), provided that such 
requirement may be waived, as a matter of administrative discretion, in 
cases where adequate representation would not otherwise be available; 
and
    (iv) His appearance is permitted by the official before whom he 
wished to appear (namely, a special inquiry officer, district director, 
officer-in-charge, regional commissioner, the Commissioner, or the 
Board), provided that such permission shall not be granted with respect 
to any individual who regularly engages in immigration and 
naturalization practice or preparation, or holds himself out to the 
public as qualified to do so.
    (4) Accredited representatives. A person representing an 
organization described in Sec. 1292.2 of this chapter who has been 
accredited by the Board.
    (5) Accredited officials. An accredited official, in the United 
States, of the government to which an alien owes allegiance, if the 
official appears solely in his official capacity and with the alien's 
consent.
    (6) Attorneys outside the United States. An attorney other than one 
described in Sec. 1001.1(f) of this chapter who is licensed to practice 
law and is in good standing in a court of general jurisdiction of the 
country in which he/she resides and who is engaged in such practice. 
Provided that he/she represents persons only in matters outside the 
geographical confines of the United States as defined in section 
101(a)(38) of the Act, and that the Service official before whom he/she 
wishes to appear allows such representation as a matter of discretion.
    (b) Persons formerly authorized to practice. A person, other than a 
representative of an organization described in Sec. 1292.2 of this 
chapter, who on December 23, 1952, was authorized to practice before the 
Board and the Service may continue to act as a representative, subject 
to the provisions of Sec. 1292.3 of this chapter.
    (c) Former employees. No person previously employed by the 
Department of Justice shall be permitted to act as a representative in 
any case in violation of the provisions of 28 CFR 45.735-7.
    (d) Amicus curiae. The Board may grant permission to appear, on a 
case-by-case basis, as amicus curiae, to an attorney or to an 
organization represented by an attorney, if the public interest will be 
served thereby.
    (e) Except as set forth in this section, no other person or persons 
shall represent others in any case.

[40 FR 23271, May 29. 1975, as amended at 53 FR 7728, Mar. 10, 1988; 55 
FR 49251, Nov. 27, 1990; 61 FR 53610, Oct. 15, 1996; 62 FR 23635, May 1, 
1997]

    Effective Date Note: At 73 FR 76927, Dec. 18, 2008, Sec. 1292.1 was 
amended by removing paragraph (a)(6) and revising paragraph (a)(2) 
introductory text, effective Jan. 20, 2009. For the convenience of the 
user, the revised text is set forth as follows:



Sec. 1292.1  Representation of others.

    (a) * * *

                                * * * * *

    (2) Law students and law graduates not yet admitted to the bar. A 
law student who is enrolled in an accredited U.S. law school, or a 
graduate of an accredited U.S. law school who is not yet admitted to the 
bar, provided that:

                                * * * * *

[[Page 1178]]



Sec. 1292.2  Organizations qualified for recognition; requests for 

recognition; withdrawal of recognition; accreditation of representatives; 

roster.

    (a) Qualifications of organizations. A non-profit religious, 
charitable, social service, or similar organization established in the 
United States and recognized as such by the Board may designate a 
representative or representatives to practice before the Service alone 
or the Service and the Board (including practice before the Immigration 
Court). Such organization must establish to the satisfaction of the 
Board that:
    (1) It makes only nominal charges and assesses no excessive 
membership dues for persons given assistance; and
    (2) It has at its disposal adequate knowledge, information and 
experience.
    (b) Requests for recognition. An organization having the 
qualifications prescribed in paragraph (a) of this section may file an 
application for recognition on a Form G-27 directly with the Board, 
along with proof of service of a copy of the application on the district 
director having jurisdiction over the area in which the organization is 
located. The district director, within 30 days from the date of service, 
shall forward to the Board a recommendation for approval or disapproval 
of the application and the reasons therefor, or request a specified 
period of time in which to conduct an investigation or otherwise obtain 
relevant information regarding the applicant. The district director 
shall include proof of service of a copy of such recommendation or 
request on the organization. The organization shall have 30 days in 
which to file a response with the Board to a recommendation by a 
district director that is other than favorable, along with proof of 
service of a copy of such response on the district director. If the 
Board approves a request for time to conduct an investigation, or in its 
discretion remands the application to the district director for further 
information, the organization shall be advised of the time granted for 
such purpose. The Service shall promptly forward the results of any 
investigation or inquiry to the Board, along with its recommendations 
for approval or disapproval and the reasons therefor, and proof of 
service of a copy of the submission on the organization. The 
organization shall have 30 days from the date of such service to file a 
response with the Board to any matters raised therein, with proof of 
service of a copy of the response on the district director. Requests for 
extensions of filing times must be submitted in writing with the reasons 
therefor and may be granted by the Board in its discretion. Oral 
argument may be heard before the Board in its discretion at such date 
and time as the Board may direct. The organization and Service shall be 
informed by the Board of the action taken regarding an application. Any 
recognized organization shall promptly notify the Board of any changes 
in its name, address, or public telephone number.
    (c) Withdrawal of recognition. The Board may withdraw the 
recognition of any organization which has failed to maintain the 
qualifications required by Sec. 1292.2(a). Withdrawal of recognition 
may be accomplished in accordance with the following procedure:
    (1) The Service, by the district director within whose jurisdiction 
the organization is located, may conduct an investigation into any 
organization it believes no longer meets the standards for recognition.
    (2) If the investigation establishes to the satisfaction of the 
district director that withdrawal proceedings should be instituted, he 
shall cause a written statement of the grounds upon which withdrawal is 
sought to be served upon the organization, with notice to show cause why 
its recognition should not be withdrawn. The notice will call upon the 
organization to appear before a special inquiry officer for a hearing at 
a time and place stated, not less than 30 days after service of the 
notice.
    (3) The special inquiry officer shall hold a hearing, receive 
evidence, make findings of fact, state his recommendations, and forward 
the complete record to the Board.
    (4) The organization and the Service shall have the opportunity of 
appearing at oral argument before the Board at a time specified by the 
Board.
    (5) The Board shall consider the entire record and render its 
decision. The

[[Page 1179]]

order of the Board shall constitute the final disposition of the 
proceedings.
    (d) Accreditation of representatives. An organization recognized by 
the Board under paragraph (b) of this section may apply for 
accreditation of persons of good moral character as its representatives. 
An organization may apply to have a representative accredited to 
practice before the Service alone or the Service and the Board 
(including practice before immigration judges). An application for 
accreditation shall fully set forth the nature and extent of the 
proposed representative's experience and knowledge of immigration and 
naturalization law and procedure and the category of accreditation 
sought. No individual may submit an application on his or her own 
behalf. An application shall be filed directly with the Board, along 
with proof of service of a copy of the application on the district 
director having jurisdiction over the area in which the requesting 
organization is located. The district director, within 30 days from the 
date of service, shall forward to the Board a recommendation for 
approval or disapproval of the application and the reasons therefor, or 
request a specified period of time in which to conduct an investigation 
or otherwise obtain relevant information regarding the applicant. The 
district director shall include proof of service of a copy of such 
recommendation or request on the organization. The organization shall 
have 30 days in which to file a response with the Board to a 
recommendation by a distrct director that is other than favorable, with 
proof of service of a copy of such response on the district director. If 
the Board approves a request for time to conduct an investigation, or in 
its discretion remands the application to the district director for 
further information, the organization shall be advised of the time 
granted for such purpose. The district director shall promptly forward 
the results of any investigation or inquiry to the Board, along with a 
recommendation for approval or disapproval and the reasons therefor, and 
proof of service of a copy of the submission on the organization. The 
organization shall have 30 days from the date of service to file a 
response with the Board to any matters raised therein, with proof or 
service of a copy of the response on the district director. Requests for 
extensions of filing times must be submitted in writing with the reasons 
therefor and may be granted by the Board in its discretion. Oral 
argument may be heard before the Board in its discretion at such date 
and time as the Board may direct. The Board may approve or disapprove an 
application in whole or in part and shall inform the organization and 
the district director of the action taken with regard to an application. 
The accreditation of a representative shall be valid for a period of 
three years only; however, the accreditation shall remain valid pending 
Board consideration of an application for renewal of accreditation if 
the application is filed at least 60 days before the third anniversary 
of the date of the Board's prior accreditation of the representative. 
Accreditation terminates when the Board's recognition of the 
organization ceases for any reason or when the representative's 
employment or other connection with the organization ceases. The 
organization shall promptly notify the Board of such changes.
    (e) Roster. The Board shall maintain an alphabetical roster of 
recognized organizations and their accredited representatives. A copy of 
the roster shall be furnished to the Commissioner and he shall be 
advised from time to time of changes therein.

[40 FR 23272, May 29, 1975, as amended at 49 FR 44086, Nov. 2, 1984; 62 
FR 9075, Feb. 28, 1997]



Sec. 1292.3  Professional conduct for practitioners--Rules and procedures.

    (a) General provisions--(1) Authority to sanction. An adjudicating 
official or the Board of Immigration Appeals (the Board) may impose 
disciplinary sanctions against any practitioner if it finds it to be in 
the public interest to do so. It will be in the public interest to 
impose disciplinary sanctions against a practitioner who is authorized 
to practice before the Service when such person has engaged in criminal, 
unethical, or unprofessional conduct, or in frivolous behavior, as set 
forth in Sec. 1003.102 of this chapter. In accordance with the 
disciplinary proceedings set forth in part 1003 of this

[[Page 1180]]

chapter, an adjudicating official or the Board may impose any of the 
following disciplinary sanctions:
    (i) Expulsion, which is permanent, from practice before the Board 
and the Immigration Courts or the Service, or before all three 
authorities;
    (ii) Suspension, including immediate suspension, from practice 
before the Board and the Immigration Courts or the Service, or before 
all three authorities;
    (iii) Public or private censure; or
    (iv) Such other disciplinary sanctions as the adjudicating official 
or the Board deems appropriate.
    (2) Persons subject to sanctions. Persons subject to sanctions 
include any practitioner. A practitioner is any attorney as defined in 
Sec. 1001.1(f) of this chapter who does not represent the federal 
government, or any representative as defined in Sec. 1001.1(j) of this 
chapter. Attorneys employed by the Department of Justice shall be 
subject to discipline pursuant to paragraph (i) of this section.
    (b) Grounds of discipline as set forth in Sec. 1003.102 of this 
chapter. It is deemed to be in the public interest for the adjudicating 
official or the Board to impose disciplinary sanctions as described in 
paragraph (a)(1) of this section against any practitioner who falls 
within one or more of the categories enumerated in Sec. 1003.102 of 
this chapter, with the exception of paragraphs (k) and (l) of that 
section, but these categories do not constitute the exclusive grounds 
for which disciplinary sanctions may be imposed in the public interest. 
Nothing in this regulation should be read to denigrate the 
practitioner's duty to represent zealously his or her client within the 
bounds of the law.
    (c) Immediate suspension and summary disciplinary proceedings; duty 
of practitioner to notify the Service of conviction or discipline--(1) 
Petition. The Office of the General Counsel of the Service shall 
petition the Board to suspend immediately from practice before the 
Service any practitioner who has been found guilty of, or pleaded guilty 
or nolo contendere to, a serious crime, as defined in Sec. 1003.102(h) 
of this chapter, or who has been disbarred or suspended on an interim or 
final basis by, or has resigned with an admission of misconduct from, 
the highest court of any state, possession, territory, commonwealth, or 
the District of Columbia, or any Federal court. A copy of the petition 
shall be forwarded to the Office of the General Counsel of EOIR, which 
may submit a written request to the Board that entry of any order 
immediately suspending a practitioner before the Service also apply to 
the practitioner's authority to practice before the Board or the 
Immigration Courts. Proof of service on the practitioner of EOIR's 
request to broaden the scope of any immediate suspension must be filed 
with the Board.
    (2) Immediate suspension. Upon the filing of a petition for 
immediate suspension by the Office of the General Counsel of the 
Service, together with a certified copy of a court record finding that a 
practitioner has been so found guilty of a serious crime, or has been so 
disciplined or has so resigned, the Board shall forthwith enter an order 
immediately suspending the practitioner from practice before the Service 
and/or the Board and Immigration Courts, notwithstanding the pendency of 
an appeal, if any, of the underlying conviction or discipline, pending 
final disposition of a summary proceeding, as provided in paragraph 
(c)(3) of this section. Such immediate suspension will continue until 
imposition of a final administrative decision. Upon good cause shown, 
the Board may set aside such order of immediate suspension when it 
appears in the interest of justice to do so. If a final administrative 
decision includes the imposition of a period of suspension, time spent 
by the practitioner under immediate suspension pursuant to this 
paragraph may be credited toward the period of suspension imposed under 
the final administrative decision.
    (3) Summary disciplinary proceedings. The Office of the General 
Counsel of the Service shall promptly initiate summary disciplinary 
proceedings against any practitioner described in paragraph (c)(1) of 
this section. Summary proceedings shall be initiated by the issuance of 
a Notice of Intent to Discipline, accompanied by a certified copy of the 
order, judgment and/or record evidencing the underlying

[[Page 1181]]

criminal conviction or discipline. Summary proceedings shall be 
conducted in accordance with the provisions set forth in Sec. Sec. 
1003.105 and 1003.106 of this chapter. Any such proceeding shall not be 
concluded until all direct appeals from an underlying criminal 
conviction have been completed.
    (i) In matters concerning criminal convictions, a certified copy of 
the court record, docket entry, or plea shall be conclusive evidence of 
the commission of that crime in any summary disciplinary hearing based 
thereon.
    (ii) In the case of a summary proceeding based upon a final order of 
disbarment or suspension, or a resignation with an admission of 
misconduct, (i.e., reciprocal discipline), a certified copy of a 
judgment or order of discipline shall establish a rebuttable presumption 
of the professional misconduct. Disciplinary sanctions shall follow in 
such a proceeding unless the attorney can rebut the presumption by 
demonstrating by clear, unequivocal, and convincing evidence that:
    (A) The underlying disciplinary proceeding was so lacking in notice 
or opportunity to be heard as to constitute a deprivation of due 
process;
    (B) There was such an infirmity of proof establishing the 
practitioner's professional misconduct as to give rise to the clear 
conviction that the adjudicating official could not, consistent with his 
or her duty, accept as final the conclusion on that subject; or
    (C) The imposition of discipline by the adjudicating official would 
result in grave injustice.
    (4) Duty of practitioner to notify the Service of conviction or 
discipline. Any practitioner who has been found guilty of, or pleaded 
guilty or nolo contendere to, a serious crime, as defined in Sec. 
1003.102(h) of this chapter, or who has been disbarred or suspended by, 
or who has resigned with an admission of misconduct from, the highest 
court of any state, possession, territory, commonwealth, or the District 
of Columbia, or by any Federal court, must notify the Office of the 
General Counsel of the Service of any such conviction or disciplinary 
action within 30 days of the issuance of the initial order, even if an 
appeal of the conviction or discipline is pending. Failure to do so may 
result in immediate suspension as set forth in paragraph (c)(1) of this 
section. This duty to notify applies only to convictions for serious 
crimes or to orders imposing discipline for professional misconduct 
entered on or after July 27, 2000.
    (d) Filing of complaints; preliminary inquiries; resolutions; 
referral of complaints--(1) Filing of complaints--(i) Misconduct 
occurring before Service. Complaints of criminal, unethical, or 
unprofessional conduct, or of frivolous behavior before the Service by a 
practitioner shall be filed with the Office of the General Counsel of 
the Service. Disciplinary complaints must be submitted in writing and 
must state in detail the information that supports the basis for the 
complaint, including, but not limited to, the names and addresses of the 
complainant and the practitioner, the date(s) of the conduct or 
behavior, the nature of the conduct or behavior, the individuals 
involved, the harm or damages sustained by the complainant, and any 
other relevant information. Any individual may file a complaint with the 
Office of the General Counsel of the Service. The Office of the General 
Counsel of the Service shall notify the Office of the General Counsel of 
EOIR of any disciplinary complaint that pertains, in whole or in part, 
to a matter before the Board or the Immigration Courts.
    (ii) Misconduct occurring before the Board and the Immigration 
Courts. Complaints of criminal, unethical, or unprofessional conduct, or 
of frivolous behavior before the Board and the Immigration Courts by a 
practitioner shall be filed with the Office of the General Counsel of 
EOIR pursuant to the procedures set forth in Sec. 1003.104(a) of this 
chapter.
    (2) Preliminary inquiry. Upon receipt of a disciplinary complaint or 
on its own initiative, the Office of the General Counsel of the Service 
will initiate a preliminary inquiry. If a complaint is filed by a client 
or former client, the complainant thereby waives the attorney-client 
privilege and any other applicable privilege, to the extent necessary to 
conduct a preliminary inquiry and any subsequent proceeding

[[Page 1182]]

based thereon. If the Office of the General Counsel of the Service 
determines that a complaint is without merit, no further action will be 
taken. The Office of the General Counsel of the Service may, in its 
discretion, close a preliminary inquiry if the complainant fails to 
comply with reasonable requests for assistance, information, or 
documentation. The complainant and the practitioner shall be notified of 
any such determination in writing.
    (3) Resolutions reached prior to the issuance of a Notice of Intent 
to Discipline. The Office of the General Counsel of the Service, in its 
discretion, may issue warning letters and admonitions, and may enter 
into agreements in lieu of discipline, prior to the issuance of a Notice 
of Intent to Discipline.
    (4) Referral of complaints of criminal conduct. If the Office of the 
General Counsel of the Service receives credible information or 
allegations that a practitioner has engaged in criminal conduct, the 
Office of the General Counsel of the Service shall refer the matter to 
the Inspector General and, if appropriate, to the Federal Bureau of 
Investigation. In such cases, in making the decision to pursue 
disciplinary sanctions, the Office of the General Counsel of the Service 
shall coordinate in advance with the appropriate investigative and 
prosecutorial authorities within the Department to ensure that neither 
the disciplinary process nor criminal prosecutions are jeopardized.
    (e) Notice of Intent to Discipline--(1) Issuance of Notice to 
practitioner. If, upon completion of the preliminary inquiry, the Office 
of the General Counsel of the Service determines that sufficient prima 
facie evidence exists to warrant charging a practitioner with 
professional misconduct as set forth in Sec. 1003.102 of this chapter, 
it will issue a Notice of Intent to Discipline to the practitioner named 
in the complaint. This notice will be served upon the practitioner by 
personal service as defined in Sec. 103.5a of 8 CFR chapter I. Such 
notice shall contain a statement of the charge(s), a copy of the 
preliminary inquiry report, the proposed disciplinary sanctions to be 
imposed, the procedure for filing an answer or requesting a hearing, and 
the mailing address and telephone number of the Board.
    (2) Copy of Notice to EOIR; reciprocity of disciplinary sanctions. A 
copy of the Notice of Intent to Discipline shall be forwarded to the 
Office of the General Counsel of EOIR. The Office of the General Counsel 
of EOIR may submit a written request to the Board or the adjudicating 
official requesting that any discipline imposed upon a practitioner 
which restricts his or her authority to practice before the Service also 
apply to the practitioner's authority to practice before the Board and 
the Immigration Courts. Proof of service on the practitioner of any 
request to broaden the scope of the proposed discipline must be filed 
with the adjudicating official.
    (3) Answer--(i) Filing. The practitioner shall file a written answer 
to the Notice of Intent to Discipline with the Board as provided in 
Sec. 1003.105(c) of this chapter.
    (ii) Failure to file an answer. Failure to file an answer within the 
time period prescribed in the Notice of Intent to Discipline, except 
where the time to answer is extended by the Board, shall constitute an 
admission of the allegations in the Notice of Intent to Discipline and 
no further evidence with respect to such allegations need be adduced. 
Upon such a default by the practitioner, the Office of the General 
Counsel of the Service shall submit to the Board proof of personal 
service of the Notice of Intent to Discipline. The practitioner shall be 
precluded thereafter from requesting a hearing on the matter. The Board 
shall adopt the recommended disciplinary sanctions in the Notice of 
Intent to Discipline and issue a final order as provided in Sec. 
3.105(d) of this chapter. A practitioner may file a motion to set aside 
a final order of discipline issued pursuant to this paragraph, with 
service of such motion on the Office of the General Counsel of the 
Service, provided:
    (A) Such a motion is filed within 15 days of service of the final 
order; and
    (B) His or her failure to file an answer was due to exceptional 
circumstances (such as serious illness of the practitioner or death of 
an immediate relative of the practitioner, but

[[Page 1183]]

not including less compelling circumstances) beyond the control of the 
practitioner.
    (f) Hearing and disposition; appeal; reinstatement proceedings. Upon 
the filing of an answer, the matter shall be heard and decided according 
to the procedures set forth in Sec. 1003.106(a), (b), and (c) of this 
chapter. The Office of the General Counsel of the Service shall 
represent the government. Reinstatement proceedings shall be conducted 
according to the procedures set forth in Sec. 3.107 of this chapter.
    (g) Referral. In addition to, or in lieu of, initiating disciplinary 
proceedings against a practitioner, the Office of the General Counsel of 
the Service may notify any appropriate Federal and/or state disciplinary 
or regulatory authority of any complaint filed against a practitioner. 
Any final administrative decision imposing sanctions against a 
practitioner (other than a private censure) shall be reported to any 
such disciplinary or regulatory authority in every jurisdiction where 
the disciplined practitioner is admitted or otherwise authorized to 
practice. In addition, the Office of the General Counsel of the Service 
shall transmit notice of all public discipline imposed under this rule 
to the National Lawyer Regulatory Data Bank maintained by the American 
Bar Association.
    (h) Confidentiality--(1) Complaints and preliminary inquiries. 
Except as otherwise provided by law or regulation, information 
concerning complaints or preliminary inquiries is confidential. A 
practitioner whose conduct is the subject of a complaint or preliminary 
inquiry, however, may waive confidentiality, except that the Office of 
the General Counsel of the Service may decline to permit a waiver of 
confidentiality if it is determined that an ongoing preliminary inquiry 
may be substantially prejudiced by a public disclosure before the filing 
of a Notice of Intent to Discipline.
    (i) Disclosure of information for the purpose of protecting the 
public. The Office of the General Counsel of the Service may disclose 
information concerning a complaint or preliminary inquiry for the 
protection of the public when the necessity for disclosing information 
outweighs the necessity for preserving confidentiality in circumstances 
including, but not limited to, the following:
    (A) A practitioner has caused, or is likely to cause, harm to 
client(s), the public, or the administration of justice, such that the 
public or specific individuals should be advised of the nature of the 
allegations. If disclosure of information is made pursuant to this 
paragraph, the Office of the General Counsel of the Service may define 
the scope of information disseminated and may limit the disclosure of 
information to specified individuals or entities;
    (B) A practitioner has committed criminal acts or is under 
investigation by law enforcement authorities;
    (C) A practitioner is under investigation by a disciplinary or 
regulatory authority, or has committed acts or made omissions that may 
reasonably result in investigation by such an authority;
    (D) A practitioner is the subject of multiple disciplinary 
complaints and the Office of the General Counsel of the Service has 
determined not to pursue all of the complaints. The Office of the 
General Counsel of the Service may inform complainants whose allegations 
have not been pursued of the status of any other preliminary inquiries 
or the manner in which any other complaint(s) against the practitioner 
have been resolved.
    (ii) Disclosure of information for the purpose of conducting a 
preliminary inquiry. The Office of the General Counsel of the Service, 
in the exercise of discretion, may disclose documents and information 
concerning complaints and preliminary inquiries to the following 
individuals or entities:
    (A) To witnesses or potential witnesses in conjunction with a 
complaint or preliminary inquiry;
    (B) To other governmental agencies responsible for the enforcement 
of civil or criminal laws;
    (C) To agencies and other jurisdictions responsible for conducting 
disciplinary investigations or proceedings;
    (D) To the complainant or a lawful designee; and
    (E) To the practitioner who is the subject of the complaint or 
preliminary inquiry or the practitioner's counsel of record.

[[Page 1184]]

    (2) Resolutions reached prior to the issuance of a Notice of Intent 
to Discipline. Resolutions, such as warning letters, admonitions, and 
agreements in lieu of discipline, reached prior to the issuance of a 
Notice of Intent to Discipline, will remain confidential. However, such 
resolutions may become part of the public record if the practitioner 
becomes subject to a subsequent Notice of Intent to Discipline.
    (3) Notices of Intent to Discipline and action subsequent thereto. 
Notices of Intent to Discipline and any action that takes place 
subsequent to their issuance, except for the imposition of private 
censures, may be disclosed to the public, except that private censures 
may become part of the public record if introduced as evidence of a 
prior record of discipline in any subsequent disciplinary proceeding. 
Settlement agreements reached after the issuance of a Notice of Intent 
to Discipline may be disclosed to the public upon final approval by the 
adjudicating official or the Board. Disciplinary hearings are open to 
the public, except as noted in Sec. 3.106(a)(v) of this chapter.
    (i) Discipline of government attorneys. Complaints regarding the 
conduct or behavior of Department attorneys, Immigration Judges, or 
Board Members shall be directed to the Office of Professional 
Responsibility, United States Department of Justice. If disciplinary 
action is warranted, it shall be administered pursuant to the 
Department's attorney discipline procedures.

[65 FR 39531, June 27, 2000]



Sec. 1292.4  Appearances.

    (a) An appearance shall be filed on the appropriate form by the 
attorney or representative appearing in each case. During Immigration 
Judge or Board proceedings, withdrawal and/or substitution of counsel is 
permitted only in accordance with Sec. Sec. 1003.16 and 1003.36 
respectively. During proceedings before the Service, substitution may be 
permitted upon the written withdrawal of the attorney or representative 
of record, or upon notification of the new attorney or representative. 
When an appearance is made by a person acting in a representative 
capacity, his or her personal appearance or signature shall constitute a 
representation that under the provisions of this chapter he or she is 
authorized and qualified to represent. Further proof of authority to act 
in a representative capacity may be required. A notice of appearance 
entered in application or petition proceedings must be signed by the 
applicant or petitioner to authorize representation in order for the 
appearance to be recognized by the Service.
    (b) Availability of records. During the time a case is pending, and 
except as otherwise provided in Sec. 103.2(b) of 8 CFR chapter I, a 
party to a proceeding or his attorney or representative shall be 
permitted to examine the record of proceeding in a Service office. He 
may, in conformity with Sec. 103.10 of 8 CFR chapter I, obtain copies 
of Service records or information therefrom and copies of documents or 
transcripts of evidence furnished by him. Upon request, he may in 
addition, be loaned a copy of the testimony and exhibits contained in 
the record of proceeding upon giving his receipt for such copies and 
pledging that it will be surrendered upon final disposition of the case 
or upon demand. If extra copies of exhibits do not exist, they shall not 
be furnished free on loan; however, they shall be made available for 
copying or purchase of copies as provided in Sec. 103.10 of 8 CFR 
chapter I.

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



Sec. 1292.5  Service upon and action by attorney or representative of record.

    (a) Representative capacity. Whenever a person is required by any of 
the provisions of this chapter to give or be given notice; to serve or 
be served with any paper other than a warrant of arrest or a subpoena; 
to make a motion; to file or submit an application or other document; or 
to perform or waive the performance of any act, such notice, service, 
motion, filing, submission, performance, or waiver shall be given by or 
to, served by or upon, made by, or requested of the attorney or 
representative of record, or the person himself if unrepresented.
    (b) Right to representation. Whenever an examination is provided for 
in this chapter, the person involved shall have

[[Page 1185]]

the right to be represented by an attorney or representative who shall 
be permitted to examine or cross-examine such person and witnesses, to 
introduce evidence, to make objections which shall be stated succinctly 
and entered on the record, and to submit briefs. Provided, that nothing 
in this paragraph shall be construed to provide any applicant for 
admission in either primary or secondary inspection the right to 
representation, unless the applicant for admission has become the focus 
of a criminal investigation and has been taken into custody.

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



Sec. 1292.6  Interpretation.

    Interpretations of this part will be made by the Board of 
Immigration Appeals, subject to the provisions of part 1003 of this 
chapter.

[32 FR 9633, July 4, 1967]

[[Page 1187]]



                  SUBCHAPTER C_NATIONALITY REGULATIONS



PART 1299_IMMIGRATION REVIEW FORMS--Table of Contents




Sec.
1299.1 Use of immigration forms.
1299.2 Specific immigration review forms.

    Authority: 8 U.S.C. 1103, 1252, 1429, 1443; Homeland Security Act of 
2002, Pub. L. 107-296.

    Source: 68 FR 9845, Feb. 28, 2003, unless otherwise noted.



Sec. 1299.1  Use of immigration forms.

    In addition to forms prepared by the Executive Office for 
Immigration Review, the Executive Office for Immigration Review, 
immigration judges, the Board of Immigration Appeals, and administrative 
law judges use forms listed under 8 CFR chapter I, part 299.



Sec. 1299.2  Specific immigration review forms.

    The Director of the Executive Office for Immigration Review may 
designate the specific version of a form listed in 8 CFR chapter I, part 
299, which shall be utilized in filings before the immigration judges, 
the Board of Immigration Appeals, and administrative law judges.



PART 1337_OATH OF ALLEGIANCE--Table of Contents




Sec.
1337.1 Oath of allegiance.
1337.2 Oath administered by the Immigration and Naturalization Service 
          or an Immigration Judge.
1337.3 Expedited administration of oath of allegiance.
1337.4 When requests for change of name granted.
1337.5-1337.6 [Reserved]
1337.7 Information and assignment of individuals under exclusive 
          jurisdiction.
1337.8 Oath administered by the courts.
1337.9 Effective date of naturalization.
1337.10 Failure to appear for oath administration ceremony.

    Authority: 8 U.S.C. 1103, 1443, 1448; 8 CFR part 2.

    Source: Duplicated from part 337 at 68 FR 9845, Feb. 28, 2003.

    Editorial Note: Nomenclature changes to part 1337 appear at 68 FR 
9846, Feb. 28, 2003, and 68 FR 10360, Mar. 5, 2003.



Sec. 1337.1  Oath of allegiance.

    (a) Form of oath. Except as otherwise provided in the Act and after 
receiving notice from the district director that such applicant is 
eligible for naturalization pursuant to Sec. 335.3 of 8 CFR chapter I, 
an applicant for naturalization shall, before being admitted to 
citizenship, take in a public ceremony held within the United States the 
following oath of allegiance, to a copy of which the applicant shall 
affix his or her signature:

    I hereby declare, on oath, that I absolutely and entirely renounce 
and abjure all allegiance and fidelity to any foreign prince, potentate, 
state, or sovereignty, of whom or which I have heretofore been a subject 
or citizen; that I will support and defend the Constitution and laws of 
the United States of America against all enemies, foreign and domestic; 
that I will bear true faith and allegiance to the same; that I will bear 
arms on behalf of the United States when required by the law; that I 
will perform noncombatant service in the Armed Forces of the United 
States when required by the law; that I will perform work of national 
importance under civilian direction when required by the law; and that I 
take this obligation freely, without any mental reservation or purpose 
of evasion; so help me God.

    (b) Alteration of form of oath; affirmation in lieu of oath. In 
those cases in which a petitioner or applicant for naturalization is 
exempt from taking the oath prescribed in paragraph (a) of this section 
in its entirety, the inapplicable clauses shall be deleted and the oath 
shall be taken in such altered form. When a petitioner or applicant for 
naturalization, by reason of religious training and belief (or 
individual interpretation thereof), or for other reasons of good 
conscience, cannot take the oath prescribed in paragraph (a) of this 
section with the words ``on oath'' and ``so help me God'' included, the 
words ``and solemnly affirm'' shall be substituted for the words ``on 
oath,'' the words ``so help me God'' shall be deleted, and the oath 
shall be taken in such modified form. Any reference to

[[Page 1188]]

`oath of allegiance' in 8 CFR chapter I is understood to mean equally 
`affirmation of allegiance' as described in this paragraph.
    (c) Obligations of oath. A petitioner or applicant for 
naturalization shall, before being naturalized, establish that it is his 
or her intention, in good faith, to assume and discharge the obligations 
of the oath of allegiance, and that his or her attitude toward the 
Constitution and laws of the United States renders him or her capable of 
fulfilling the obligations of such oath.
    (d) Renunciation of title or order of nobility. A petitioner or 
applicant for naturalization who has borne any hereditary title or has 
been of any of the orders of nobility in any foreign state shall, in 
addition to taking the oath of allegiance prescribed in paragraph (a) of 
this section, make under oath or affirmation in public an express 
renunciation of such title or order of nobility, in the following form:
    (1) I further renounce the title of (give title or titles) which I 
have heretofore held; or
    (2) I further renounce the order of nobility (give the order of 
nobility) to which I have heretofore belonged.

[22 FR 9824, Dec. 6, 1957, as amended at 24 FR 2584, Apr. 3, 1959; 32 FR 
13756, Oct. 3, 1967; 56 FR 50499, Oct. 7, 1991]



Sec. 1337.2  Oath administered by the Immigration and Naturalization Service 

or an Immigration Judge.

    (a) Public ceremony. An applicant for naturalization who has elected 
to have his or her oath of allegiance administered by the Service or an 
Immigration Judge and is not subject to the exclusive oath 
administration authority of an eligible court pursuant to section 310(b) 
of the Act shall appear in person in a public ceremony, unless such 
appearance is specifically excused under the terms and conditions set 
forth in this part. Such ceremony shall be held at a time and place 
designated by the Service or the Executive Office for Immigration Review 
within the United States and within the jurisdiction where the 
application for naturalization was filed, or into which the application 
for naturalization was transferred pursuant to Sec. 335.9 of 8 CFR 
chapter I. Such ceremonies shall be conducted at regular intervals as 
frequently as necessary to ensure timely naturalization, but in all 
events at least once monthly where it is required to minimize 
unreasonable delays. Such ceremonies shall be presented in such a manner 
as to preserve the dignity and significance of the occasion. District 
directors shall ensure that ceremonies conducted by the Service in their 
districts, inclusive of those held by suboffice managers, are in keeping 
with the Model Plan for Naturalization Ceremonies. Organizations 
traditionally involved in activities surrounding the ceremony should be 
encouraged to participate in Service-administered ceremonies by local 
arrangement.
    (b) Authority to administer oath of allegiance. The authority of the 
Attorney General to administer the oath of allegiance shall be delegated 
to Immigration Judges and to the following officers of the Service: The 
Commissioner; district directors; deputy district directors; officers-
in-charge; assistant officers-in-charge; or persons acting in behalf of 
such officers due to their absence or because their positions are 
vacant. In exceptional cases where the district director or officer-in-
charge determines that it is appropriate for employees of a different 
rank to conduct ceremonies, the district director or officer-in-charge 
may make a request through the Commissioner to the Assistant 
Commissioner, Adjudications, for permission to delegate such authority. 
The request shall furnish the reasons for seeking exemption from the 
requirements of this paragraph. The Commissioner may delegate such 
authority to such other officers of the Service or the Department of 
Justice as he or she may deem appropriate.
    (c) Execution of questionnaire. Immediately prior to being 
administered the oath of allegiance, each applicant shall complete the 
questionnaire on Form N-445. Each completed Form N-445 shall be reviewed 
by an officer of the Service who may question the applicant regarding 
the information thereon. If derogatory information is revealed, the 
applicant's name shall be removed from the list of eligible persons as 
provided in Sec. 335.5 of 8 CFR chapter I and

[[Page 1189]]

he or she shall not be administered the oath.

[60 FR 37803, July 24, 1995]



Sec. 1337.3  Expedited administration of oath of allegiance.

    (a) An applicant may be granted an expedited oath administration 
ceremony by either the court or the Service upon demonstrating 
sufficient cause. In determining whether to grant an expedited oath 
administration ceremony, the court or the district director shall 
consider special circumstances of a compelling or humanitarian nature. 
Special circumstances may include but are not limited to:
    (1) The serious illness of the applicant or a member of the 
applicant's family;
    (2) Permanent disability of the applicant sufficiently 
incapacitating as to prevent the applicant's personal appearance at a 
scheduled ceremony;
    (3) The developmental disability or advanced age of the applicant 
which would make appearance at a scheduled ceremony inappropriate; or
    (4) Urgent or compelling circumstances relating to travel or 
employment determined by the court or the Service to be sufficiently 
meritorious to warrant special consideration.
    (b) Courts exercising exclusive authority may either hold an 
expedited oath administration ceremony or refer the applicant to the 
Service in order for either the Immigration Judge or the Service to 
conduct an oath administration ceremony, if an expedited judicial oath 
administration ceremony is impractical. The court shall inform the 
district director in writing of its decision to grant the applicant an 
expedited oath administration ceremony and that the court has 
relinquished exclusive jurisdiction as to that applicant.
    (c) All requests for expedited administration of the oath of 
allegiance shall be made in writing to either the court or the Service. 
Such requests shall contain sufficient information to substantiate the 
claim of special circumstances to permit either the court or the Service 
to properly exercise the discretionary authority to grant the relief 
sought. The court or the Service may seek verification of the validity 
of the information provided in the request. If the applicant submits a 
written request to the Service, but is awaiting an oath administration 
ceremony by a court pursuant to Sec. 1337.8, the Service promptly shall 
provide the court with a copy of the request without reaching a decision 
on whether to grant or deny the request.

[60 FR 37804, July 24, 1995]



Sec. 1337.4  When requests for change of name granted.

    When the court has granted the petitioner's change of name request, 
the petitioner shall subscribe his or her new name to the written oath 
of allegiance.

[56 FR 50500, Oct. 7, 1991]



Sec. Sec. 1337.5-1337.6  [Reserved]



Sec. 1337.7  Information and assignment of individuals under exclusive 

jurisdiction.

    (a) No later than at the time of the examination on the application 
pursuant to Sec. 335.2 of 8 CFR chapter I, an employee of the Service 
shall advise the applicant of his or her right to elect the site for the 
administration of the oath of allegiance, subject to the exclusive 
jurisdiction provision of Sec. 310.3(d) of 8 CFR chapter I. In order to 
assist the applicant in making an informed decision, the Service shall 
advise the applicant of the upcoming Immigration Judge or Service 
conducted and judicial ceremonies at which the applicant may appear, if 
found eligible for naturalization.
    (b) An applicant whose application has been approved by the Service 
who is subject to the exclusive jurisdiction of a court pursuant to 
Sec. 310.2(d) of 8 CFR chapter I, shall be advised of the next 
available court ceremony and provided with a written notice to appear at 
that ceremony. If the applicant is subject to the exclusive jurisdiction 
of more than one court exercising exclusive jurisdiction, the applicant 
will be informed of the upcoming ceremonies in each affected court. The 
applicant shall decide which court he or she

[[Page 1190]]

wishes to administer the oath of allegiance.

[58 FR 49915, Sept. 24, 1993, as amended at 60 FR 37804, July 24, 1995]



Sec. 1337.8  Oath administered by the courts.

    (a) Notification of election. An applicant for naturalization not 
subject to the exclusive jurisdiction of Sec. 310.2(d) of 8 CFR chapter 
I shall notify the Service at the time of the filing of, or no later 
than at the examination on, the application of his or her election to 
have the oath of allegiance administered in an appropriate court having 
jurisdiction over the applicant's place of residence.
    (b) Certification of eligibility--(1) Exclusive jurisdiction. In 
those instances falling within the exclusive jurisdiction provision of 
section 310(b)(1)(B) of the Act, the Service shall notify the court of 
the applicant's eligibility for admission to United States citizenship 
by submitting to the clerk of court Form N-646 within ten (10) days of 
the approval of the application.
    (2) Non-exclusive jurisdiction. In those instances in which the 
applicant has elected to have the oath administered in a court ceremony, 
the Service shall notify the clerk of court, in writing, using Form N-
646, that the applicant has been determined by the Attorney General to 
be eligible for admission to United States citizenship upon taking the 
requisite oath of allegiance and renunciation in a public ceremony. If a 
scheduled hearing date is not available at the time of the notification, 
Form N-646 shall indicate that the applicant has not been scheduled for 
a ceremony and the applicant shall be informed in writing that the 
application has been approved but no ceremony date is yet available.
    (c) Preparation of lists. (1) At or prior to the oath administration 
ceremony the representative attending the ceremony shall submit to the 
court on Form N-647, in duplicate, lists of persons to be administered 
the oath of allegiance and renunciation. After the ceremony, and after 
any required amendments and notations have been made therein, the clerk 
of court shall sign the lists.
    (2) The originals of all court lists specified in this section shall 
be filed permanently in the court, and the duplicates returned by the 
clerk of court to the appropriate Service office for retention by such 
office. The same disposition shall be made of any list presented to, but 
not approved by, the court.
    (d) Personal representation of the government at oath administration 
ceremonies. An oath administration ceremony shall be attended by a 
representative of the Service, who shall review each applicant's 
completed questionnaire Form N-445. If necessary, the Service 
representative shall question the applicant regarding the information 
thereon. If the questioning reveals derogatory information, the 
applicant's name shall be removed from the list of eligible persons as 
provided in Sec. 335.5 of 8 CFR chapter I and the court shall not 
administer the oath to such applicant.
    (e) Written report in lieu of personal representation. If it is 
impracticable for a Service representative to be present at a judicial 
oath administration ceremony, written notice of that fact shall be given 
by the Service to the court. The applicants to be administered the oath 
shall be listed on the appropriate forms prescribed in paragraph (d) of 
this section. The forms, memoranda, and certificates of naturalization 
shall be transmitted to the clerk of court, who shall submit the 
appropriate lists to the court.
    (f) Withdrawal from court. An applicant for naturalization not 
subject to the exclusive jurisdiction of Sec. 310.3(d) of 8 CFR chapter 
I, who has elected to have the oath administered in a court oath 
ceremony, may, for good cause shown, request that his or her name be 
removed from the list of persons eligible to be administered the oath at 
a court oath ceremony and request that the oath be administered in a 
ceremony conducted by an Immigration Judge or the Service. Such request 
shall be in writing to the Service office which granted the application 
and shall cite the reasons for the request. The district director or 
officer-in-charge shall consider the good cause

[[Page 1191]]

shown and the best interests of the applicant in making a decision. If 
it is determined that the applicant shall be permitted to withdraw his 
or her name from the court ceremony, the Service shall give written 
notice to the court of the applicant's withdrawal, and the applicant 
shall be scheduled for the next available oath ceremony, conducted by an 
Immigration Judge or the Service, as if he or she had never elected the 
court ceremony.

[58 FR 49915, Sept. 24, 1993, as amended at 60 FR 37804, July 24, 1995]



Sec. 1337.9  Effective date of naturalization.

    (a) An applicant for naturalization shall be deemed a citizen of the 
United States as of the date on which the applicant takes the prescribed 
oath of allegiance, administered either by the Service or an Immigration 
Judge in an administrative ceremony or in a ceremony conducted by an 
appropriate court under Sec. 1337.8 of 8 CFR chapter I.
    (b) [Reserved]

[56 FR 50500, Oct. 7, 1991, as amended at 60 FR 37804, July 24, 1995; 66 
FR 32147, June 13, 2001]



Sec. 1337.10  Failure to appear for oath administration ceremony.

    An applicant who fails to appear without good cause for more than 
one oath administration ceremony for which he or she was duly notified 
shall be presumed to have abandoned his or her intent to be naturalized. 
Such presumption shall be regarded as the receipt of derogatory 
information, and the procedures contained in Sec. 335.5 of 8 CFR 
chapter I shall be followed.

[58 FR 49916, Sept. 24, 1993]


[[Page 1193]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 1195]]



                    Table of CFR Titles and Chapters




                     (Revised as of January 1, 2009)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100--
                199)
        II  Office of Management and Budget Circulars and Guidance 
                (200--299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300-- 
                399)
        VI  Department of State (Parts 600--699)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1880--1899)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)

[[Page 1196]]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600-- 3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
      XXXV  Office of Personnel Management (Parts 4500--4599)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)

[[Page 1197]]

       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Parts 9900--9999)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)

[[Page 1198]]

       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)

[[Page 1199]]

      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)
         L  Rural Business-Cooperative Service, Rurual Housing 
                Service, and Rural Utilities Service, Department 
                of Agriculture (Parts 5000--5099)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts9400--9499)

[[Page 1200]]

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)

[[Page 1201]]

        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)

[[Page 1202]]

        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millenium Challenge Corporation (Parts 1300--1399)

[[Page 1203]]

       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                HousingCommissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)

[[Page 1204]]

         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)

[[Page 1205]]

      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)

[[Page 1206]]

            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)

[[Page 1207]]

            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvmeent, 
                Department of Education [Reserved]
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)

[[Page 1208]]

        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Chapters 62--100 [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
            Chapters 103--104 [Reserved]
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)

[[Page 1209]]

            Chapters 129--200 [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare

[[Page 1210]]

        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899) 
                [Reserved]
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)

[[Page 1211]]

       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)

[[Page 1212]]

        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)

[[Page 1213]]

        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 1215]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of January 1, 2009)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 1216]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 1217]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2

[[Page 1218]]

  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61

[[Page 1219]]

  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A,
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V

[[Page 1220]]

Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                2, XXVII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50

[[Page 1221]]

  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millenium Challenge Corporation                   22, XIII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Intelligence, Office of Director of      32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
   and Technology Policy
[[Page 1222]]

National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII, L
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII

[[Page 1223]]

Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
   Office of the Assistant Secretary for
[[Page 1224]]

Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 1225]]



List of CFR Secitons Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000,'' published in 
11 separate volumes.

                                  2001

8 CFR
                                                                   66 FR
                                                                    Page
Chapter I
3 Authority citation revised.........................37123, 54911, 56976
3.1 (d)(2)(iii) amended.............................................6445
    (a)(1) amended.................................................47380
    (a)(1) amended; (b)(14) added; interim.........................56976
3.3 (b) amended.....................................................6445
3.19 (i)(2) revised; interim.......................................54911
3.43 Revised; interim..............................................37123
3.44 Added..........................................................6445
    (f) corrected...................................................8149
100.4 (e) amended; interim.........................................29672
103 Authority citation revised.....................................32143
103.1 (f)(3)(iii)(MM) amended; (f)(3)(iii)(NN) added; interim......32144
    Regulation at 65 FR 67616 eff. date delayed to 10-1-02.........49514
103.2 (a)(7)(i) amended; intrim....................................29672
    (f) added; interim.............................................29685
103.7 (b)(1) amended; interim......................................29672
    (b)(1) amended; (c)(1) revised; interim........................29685
    Regulation at 65 FR 67616 eff. date delayed to 10-1-02.........49514
    (b)(1) amended; eff. 2-19-02...................................65816
103.12 Regulation at 65 FR 82255 eff. date delayed..................7863
204.13 Added; interim..............................................51821
208.8 Regulation at 65 FR 82255 eff. date delayed...................7863
210.4 Regulation at 65 FR 82255 eff. date delayed...................7863
212 Authority citation revised.......................................236
212.1 (e)(3)(i) amended; interim.....................................236
    (f)(2) removed; (f)(3) and (4) redesignated as new (f)(2) and 
(3); new (f)(2) revised.............................................1018
    Regulation at 66 FR 1018 eff. date delayed......................8743
    (f)(2) eff. 4-6-01) and (3) amended, interim...................17322
    (f)(2) amended; interim........................................32530
    (h) revised; interim...........................................42593
    Regulation at 66 FR 236 confirmed..............................51822
212.3 (g) added.....................................................6446
212.5 Regulation at 65 FR 82255 eff. date delayed...................7863
212.7 Heading, (a) heading and (1)(i) revised; interim.............42593
212.15 (c)(4) through (7), (g)(4)(iv) and (v) added; (e)(1) and 
        (g)(3)(i) revised; interim..................................3444
214 Authority citation revised.....................................46702
214.1 (a)(2) table and (c)(1) amended; interim.....................31112
    (a)(1)(v) revised; (a)(2) table and (c)(2) amended; interim....42593
    (a)(2) amended; interim........................................46702
    Regulation at 65 FR 67616 eff. date delayed to 10-1-02.........49514

[[Page 1226]]

214.2 (h)(1)(i), (ii)(A), (2)(i)(A), (D), (E), (3) heading, (iii) 
        introductory text, (A), (v)(B), (C), (4)(v)(A) and (D) 
        amended; (h)(2)(ii), (3)(i)(A), (B), (D), (iii)(B), (iv), 
        (v)(A), (B), (vi)(A), (8)(ii)(A), (13)(ii), (v), 
        (15)(ii)(A) and (16)(i) revised; (h)(3)(ii) and (v)(D) 
        removed; (h)(8)(ii)(A), (F) and (9)(iii)(D) added; interim
                                                                   31112
    (k) heading revised; (k)(1), (2), (5) and (6)(ii) amended; 
(k)(6)(i) removed; (k)(7) through (11) added; interim..............42593
    (u) and (v) added; interim.....................................46702
    Regulation at 65 FR 67616 eff. date delayed to 10-1-02.........49514
214.15 Added; interim..............................................46702
235.3 Regulation at 65 FR 82256 eff. date delayed...................7863
235.4 Regulation at 65 FR 82256 eff. date delayed...................7863
236.14 (a) amended; interim........................................29672
240.15 Amended......................................................6446
240.21 (c) amended..................................................6446
240.53 (a) amended..................................................6446
241 Authority citation revised.....................................29451
241.4 (g) heading amended; (g)(1) through (4) redesignated as 
        (g)(2) through (5); (b)(4), new (g)(1) and (i)(7) added; 
        new (g)(5) revised; interim................................56976
    (c)(1), (2), (h)(1), (k)(1)(i) and (ii) amended; interim.......56977
241.8 (d) and (e) redesignated as (e) and (f); new (d) added; 
        interim....................................................29451
241.13 Added; interim..............................................56977
241.14 Added; interim..............................................56979
241.33 Regulation at 65 FR 82256 eff. date delayed..................7863
244.1 Regulation at 64 FR 4781 confirmation delayed.................7863
244.6 Regulation at 64 FR 4781 confirmation delayed.................7863
244.10 Regulation at 64 FR 4782 confirmation delayed................7863
244.12 Regulation at 64 FR 4782 confirmation delayed................7863
244.15 Regulation at 64 FR 4782 confirmation delayed................7863
244.18 Regulation at 64 FR 4782 confirmation delayed................7863
245.1 (c)(6) revised; (i) added; interim...........................42594
245.2 (a)(4)(ii)(C) amended; interim...............................42594
    (a)(4)(ii)(D) amended; interim.................................46704
245.5 Amended; interim.............................................42595
245.10 (c) removed; heading, new (b) introductory text, (4), (5), 
        (7), (c) introductory text, (d), (e) and (f) revised; (a) 
        and (b) redesignated as (b) and (c); new (a), (h) through 
        (n) added; new (c)(3) amended; interim.....................16388
245.13 (a) introductory text, (n)(3)(i) and (ii) amended; (c) 
        existing text and (d)(4) existing text redesignated as 
        (c)(1) and (d)(4)(i); (c)(1) heading, (2), (d)(4)(ii) and 
        (n)(3)(iii) added; (d) heading and (m) revised; interim....29451
245.15 (b) introductory text, (s)(4)(i) and (ii) amended; (g)(3) 
        introductory text, (i) and (ii) redesignated as (g)(3)(i), 
        (iii) and (iv); (r)(1) text designated as (r)(1)(i); 
        (e)(3), new (g)(3)(ii), (r)(1)(ii), (4) and (s)(4)(iii) 
        added; interim.............................................29452
245.20 Added; interim..............................................27448
245a.1--245a.5 (Subpart A) Designated as Subpart A; Heading added; 
        interim....................................................29673
245a.2 Regulation at 65 FR 82256 eff.date delayed...................7863
245a.4 Regulation at 65 FR 82256 eff. date delayed..................7863
245a.10--245a.29 (Subpart B) Added; interim........................29673
245a.30--245a.37 (Subpart C) Added; interim........................29673
248 Authority citation revised.....................................46704
248.1 (a) amended; interim.........................................42595
    (a) amended; (b) introductory text revised; interim............46704
248.3 (a) amended; interim.........................................31114
274a Authority citation revised.............................42595, 46704
274a.12 (a) introductory text, (12) and (13) amended; (a)(14) and 
        (c)(24) added; interim.....................................29681
    (a) heading, introductory text and (6) revised; (a)(9) added; 
interim............................................................42595
    (a) introductory text, (13) and (14) amended; (a)(15) added; 
interim............................................................46704
287.3 (d) revised; interim.........................................48335

[[Page 1227]]

299.1 Table amended; interim..................29681, 29686, 31114, 46704
299.5 Table amended; interim.........................29682, 29686, 46705
310 Authority citation revised.....................................32144
310.3 (b) amended; interim.........................................32144
320 Added; interim.................................................32144
322 Revised; interim...............................................32145
334 Authority citation revised.....................................32146
334.1 Amended; interim.............................................32147
334.2 (a) amended; interim.........................................32147
337 Authority citation revised.....................................32147
337.9 (b) removed; interim.........................................32147
338 Authority citation revised.....................................32147
338.4 Removed; interim.............................................32147
341 authority citation revised.....................................32147
341.2 (a)(1) introductory text revised; interim....................32147
341.7 (b) removed; interim.........................................32147

                                  2002

8 CFR
                                                                   67 FR
                                                                    Page
Chapter I
2.1 (a) designation added; (b) added...............................48359
3.1 Heading, (a)(1) through (6), (b) introductory text, (d)(1), 
        (2)(i) introductory text, (ii), (iii). (3), (4), (e) and 
        (g) revised; (d)(2)(i)(D) through (G) redesignated as 
        (d)(2)(i)(E) through (H); new (d)(2)(i)(D), (5) and (6) 
        added......................................................54901
3.2 (i) amended....................................................54904
3.3 (a) and (c) revised; (b) amended; (f) added....................54904
3.5 (a) revised....................................................54905
3.27 (d) added; interim............................................36802
3.31 (d) added; interim............................................36802
3.46 Added; interim................................................36802
100.4 Regulation at 66 FR 29672 confirmed..........................38350
103.1 (f)(3)(iii)(W) revised; (f)(3)(iii)(MM) and (NN) amended; 
        (f)(3)(iii)(OO) added; interim..............................4794
    (g)(4) and (k) added...........................................39257
    Regulation at 65 FR 43531 withdrawn............................61476
    (f)(3)(iii)(C) revised.........................................78673
103.2 Regulation at 66 FR 29672 confirmed..........................38350
103.7 (b)(1) amended; interim.........................4794, 60111, 71447
    Regulation at 66 FR 29672 confirmed............................38350
    Regulation at 65 FR 43531 withdrawn............................61476
    (b)(1) amended.................................................76270
204.5 (n)(1) revised; interim......................................49563
212 Authority citation revised.....................................71447
212.1 (g) revised; (o) added; interim...............................4795
    (c-1) and (c-2) removed; (c) and (g) revised; interim..........71447
212.4 (c) revised; interim.........................................71448
212.5 (a), (b)(3) introductory text, (5), (c), (d) introductory 
        text, (1) and (e)(2)(i) revised............................39257
212.6 Revised; interim.............................................71448
212.7 (d) added; interim...........................................78678
212.16 Added; interim...............................................4795
214 Authority citation revised........................4795, 52591, 76270
214.1 (a)(1)(vi), (vii) and (2) table amended; (a)(1)(viii) added; 
        interim.....................................................4795
    (f) revised....................................................52591
    Regulation at 65 FR 43531 withdrawn............................61476
    (h) added......................................................76270
214.2 (b)(7) added; interim........................................18063
    (f)(1)(i) introductory text, (5)(i) and (7)(i) amended; 
(f)(18) and (m)(19) added; interim.................................54945
    Regulation at 65 FR 43531 withdrawn............................61476
    (b)(4) introductory text revised; interim......................71449
    (f)(1)(i), (3), (4)(i), (ii), (5)(i), (iv), (6)(i) 
introductory text, (E), (iii), (7), (8)(i), (9)(ii)(D), (F)(1), 
(iii), (10) introductory text, (i), (ii)(A), (B), (D) heading, 
(11)(ii), (12), (15) and (16) revised; (f)(1)(iii), (6)(i)(G), 
(H), (iv), (8)(ii)(A) through (D), (10)(ii)(E) and (17) added; 
(f)(9)(i) amended; (f)(9)(ii)(B) and (E) removed...................76270
    (j)(1)(i), (ii), (m)(1)(i), (3) heading, introductory text, 
(5), (10), (11)(ii), (13), (14)(ii) introductory text, (16) and 
(17) revised; (j)(1)(iv), (2), (3) and (4)(i) amended; 
(j)(1)(vii), (viii), (m)(1)(iii), (9)(v), (vi), (14)(vi) and (18) 
added; (m)(6), (7) and (8) removed.................................76276

[[Page 1228]]

214.3 Heading, (d), (e)(2) and (h) revised; (a)(1)(i) added; 
        interim....................................................60111
    (a)(2)(i)(F), (g)(1)(iv), (v), (g)(2) heading, (k) 
introductory text and (l) revised; (a)(2)(v), (e)(3) and (g)(3) 
and (4) added; (g)(2) amended......................................76279
214.4 (a)(3) added; interim........................................60112
214.11 Added; interim...............................................4795
214.12 Added; interim..............................................44346
217 Heading revised; interim........................................7945
    Technical correction...........................................10260
217.2 (a) amended; interim..........................................7945
217.7 Added; interim...............................................63249
235 Authority citation revised.....................................71449
235.1 (f)(1)(iv) amended; interim..................................71449
236 Authority citation revised.....................................19511
236.3 (b)(4), (e) and (f) revised..................................39258
236.6 Added; interim...............................................19511
236.14 Regulation at 66 FR 29672 confirmed.........................38350
238.1 (a) revised..................................................39258
239.1 (a)(21) and (22) amended; (a)(23) and (24) added.............39258
240.25 (a) revised.................................................39258
240.26 (f) revised.................................................39258
241 Authority citation revised.....................................19511
241.2 (a) revised..................................................39258
241.4 (a) introductory text, (c)(1), (4), (h)(5) and (j)(3) 
        revised; (d) introductory text, (1), (2), (h) heading, 
        introductory text, (1), (2), (3), (4) heading, (4), 
        (j)(1), (2), (4), (k)(1) heading, (i), (ii), (2)(i) 
        heading, (i), (ii) heading, (ii), and (l)(3) amended.......39259
241.6 (a) and (b) revised..........................................39259
241.7 Revised......................................................39260
241.15 Added; interim..............................................19511
245.1 (g)(1) amended; interim......................................49563
245.2 (a)(2)(i) revised; interim...................................49563
245.15 (i) revised.................................................78673
245.18 (f) introductory text revised; interim......................49563
245.21 Added.......................................................78673
245.22 Added.......................................................78674
245a-1--245a-5 (Subpart A) Regulation at 66 FR 29673 confirmed.....38350
245a.6 Added.......................................................38350
245a.10--245a.29 (Subpart B) Regulation at 66 FR 29673 confirmed 
                                                                   38350
245a.10 Amended....................................................38350
    Corrected......................................................66532
245a.11 (a) revised................................................38350
245a.12 (a) introductory text, (1) through (3), (4) introductory 
        text, (i), (d)(1), (2) and (10) revised; (f) amended; (g) 
        removed....................................................38350
245a.13 (e) introductory text and (f) revised; (e)(2) through (5) 
        redesignated as (e)(3) through (6); new e(2) added; (e)(1) 
        and new (4)(ii) amended....................................38351
245a.14 (e) redesignated as (g); new (e) and (f) added.............38351
245a.16 (b) amended................................................38351
245a.17 (c)(1) amended.............................................38351
245a.18 (d) introductory text and (2) removed; (c)(2)(iii), (iv) 
        and (d)(3) redesignated as (c)(2)(v), (vi) and (d)(2); 
        (c)(2)(i), (ii) and new (d)(2) revised; new (c)(2)(iii), 
        (iv) and (d)(3) added......................................38351
245a.20 (a)(2) revised.............................................38352
245a.30--245a.37 (Subpart C) Regulation at 66 FR 29673 confirmed 
                                                                   38350
245a.31 (c) revised................................................38352
245a.34 (b) and (c) revised........................................38352
245a.37 (a)(3) revised.............................................38352
248.1 (c) revised; interim.........................................18064
248.3 (e)(2) revised...............................................76280
264 Authority citation revised..............................52591, 71450
264.1 (f) revised..................................................52591
    (a) table amended; interim.....................................71450
264.4 Removed; interim.............................................71450
274a.12 (a) introductory text amended; (a)(16) and (c)(25) added; 
        interim.....................................................4803
    Regulation at 66 FR 29681 confirmed............................38350
    (b)(6)(ii) removed; (b)(6)(iii), (11) and (c)(3)(iii) revised; 
(c)(3)(ii) amended.................................................76280
286.2 (a) revised..................................................15334
286.9 (b)(3) revised; (b)(5) and (6) removed; interim..............71450
287.4 (a)(1), (2)(i) and (c) revised...............................39260
287.5 (e)(2)(xix) and (xx) amended; (e)(2)(xxi) and (xxii) added 
                                                                   39260
299 Authority citation revised.....................................71450
299.1 Table amended; interim..........................4803, 49564, 71450

[[Page 1229]]

    Regulation at 66 FR 29681 confirmed............................38350
    Table amended..................................................38352
    Table corrected................................................66532
299.5 Table amended; interim.................................4803, 71450
    Regulation at 66 FR 29682 confirmed............................38350

                                  2003

8 CFR
                                                                   68 FR
                                                                    Page
Chapter I
Chapter I Heading revised..........................................35275
1 Duplicated and redesignated as Chapter V, Part 1001...............9830
    Authority citation revised.....................................10923
1.1 (o) revised....................................................10923
    (c), (d), (o) and (p) revised; (u) through (z) added...........35275
2 Heading, and authority citation revised..........................10923
2.1 Revised........................................................10923
3 Transferred and redesignated as Chapter V, Part 1003..............9830
    Added...........................................................9831
101 Duplicated and redesignated as Chapter V, Part 1101.............9832
103 Heading and authority citation duplicated and redesignated as 
        Chapter V, Part 1103........................................9833
    Heading, and authority citation revised........................10923
103.1 (b) revised..................................................35275
    Revised........................................................10923
103.2 (a)(2) revised...............................................23012
103.3 (c) amended...................................................9832
    Duplicated and redesignated as 1103.3...........................9833
103.4 Duplicated and redesignated as 1103.4.........................9833
103.7 (b)(1) amended; interim.......................................3800
    (b)(1) amended; interim.........................................8992
    Duplicated and redesignated as 1103.7...........................9833
    (b)(1) amended.................................................43915
103.37 Added........................................................9832
204.3 Existing text designated as (h)(3)(i) and amended; 
        (h)(3)(ii) added; interim..................................46926
205 Duplicated and transferred to Chapter V, Part 1205..............9833
207 Duplicated and transferred to Chapter V, Part 1207..............9833
207.3 Duplicated and transferred to Chapter V, Part 1207............9833
208 Duplicated and transferred to Chapter V, Part 1208..............9834
209 Duplicated and transferred to Chapter V, Part 1209..............9835
211 Duplicated and transferred to Chapter V, Part 1211..............9835
211.4 Duplicated as 1211.4..........................................9835
212 Duplicated and transferred to Chapter V, Part 1212..............9835
    Authority citation revised..............................35152, 46928
212.1 (a) revised; interim..........................................5193
    (f)(1) and (2) removed; interim................................46928
212.5 (a), (b)(3) introductory text and (5), (c), (d) introductory 
        text and (1) and (e)(2)(i) revised.........................35152
212.15 Revised.....................................................43915
214.1 (i) and (j) added............................................43920
214.2 (c)(1) removed; interim......................................46929
215 Duplicated and transferred to Chapter V, Part 1215..............9836
216 Duplicated and transferred to Chapter V, Part 1216..............9837
217 Heading revised................................................10957
217.2 (a) amended..................................................10957
231 Authority citation revised...............................5193, 46929
231.1 (d) introductory text amended; (d)(1) and (2) removed; 
        interim.....................................................5193
    (b) removed; interim...........................................46929
233 Authority citation revised.....................................46929
233.3 Removed; interim.............................................46929
235 Duplicated and transferred to Chapter V, Part 1235..............9837
235.1 (e) introductory text and (1)(v) revised; (e)(5)(ii) 
        amended; interim............................................5193
235.7 (a)(4)(xi) amended; interim..................................10145
236 Regulation at 67 FR 19511 confirmed.............................4367
    Duplicated and transferred to Chapter V, Part 1236..............9838
236.6 Regulation at 67 FR 19511 confirmed...........................4367
238 Duplicated and transferred to Chapter V, Part 1238..............9838
238.1 Duplicated as 1238.1..........................................9838
239 Duplicated and transferred to Chapter V, Part 1239..............9838
    Authority citation revised.....................................10924
239.1 (a) revised..................................................10924

[[Page 1230]]

    Revised........................................................35275
239.2 (c) and (d) revised; (f) removed.............................35276
240 Duplicated in part and transferred to Chapter V, Part 1240......9838
240.1--240.18 (Subpart A) Transferred and redesignated as Chapter 
        V, Part 1240.1--1240.18 (Subpart A).........................9838
240.19--240.24 (Subpart B) Heading transferred and redesignated as 
        Chapter V, 1240.19--1240.24 (Subpart B).....................9838
240.19 Redesignated as 1240.19......................................9838
240.20 Redesignated as 1240.20......................................9838
240.21 Duplicated and redesignated as 1240.21.......................9840
240.22 Redesignated as 1240.22......................................9838
240.23 Redesignated as 1240.23......................................9838
240.24 Redesignated as 1240.24......................................9838
240.26--240.29 (Subpart C) Transferred and redesignated as Chapter 
        V, 1240.26--1240.29 (Subpart C).............................9838
240.30--240.39 (Subpart D) Transferred and redesignated as Chapter 
        V, 1240.30--1240.39 (Subpart D).............................9838
240.40--240.54 (Subpart E) Transferred and redesignated as Chapter 
        V, 1240.40--1240.54 (Subpart E).............................9838
240.55--240.58 (Subpart F) Transferred and redesignated as Chapter 
        V, 1240.55--1240.58 (Subpart F).............................9838
240.60--240.70 (Subpart H) Duplicated and redesignated as Chapter 
        V, 1240.60--1240.70 (Subpart H).............................9838
241 Regulation at 67 FR 19511 confirmed.............................4367
    Duplicated and transferred to Chapter V, Part 1241..............9840
241.15 Regulation at 67 FR 19511 confirmed..........................4367
244 Duplicated and transferred to Chapter V, Part 1244..............9841
245 Duplicated and transferred to Chapter V, Part 1245..............9842
245.14 Removed.....................................................43921
246 Duplicated and transferred to Chapter V, Part 1246..............9842
248.3 (i) added....................................................43921
249 Duplicated and transferred to Chapter V, Part 1249..............9843
264.1 (f) revised; interim.........................................67583
270 Duplicated and transferred to Chapter V, Part 1270..............9843
274a Duplicated and transferred to Chapter V, Part 1274a............9844
280 Duplicated and transferred to Chapter V, Part 1280..............9844
286.2 (b) redesignated as (c); new (b) added........................4092
286.3 Introductory text and (a) revised.............................4092
286.9 (b)(4) revised; interim.......................................5194
287 Duplicated and transferred to Chapter V, Part 1287..............9845
    Authority citation revised.....................................35276
287.1 (a)(2) and (e) amended; (b) and (g) revised; (h) and (i) 
        added......................................................35276
287.2 Amended......................................................35276
287.3 (c) amended..................................................35276
287.4 (a) and (c) revised; (b)(1) and (2) amended..................35276
287.5 Revised......................................................35277
287.7 Revised......................................................35279
287.8 Revised......................................................35280
287.9 (a) amended; (b) revised.....................................35281
287.10 Revised.....................................................35281
287.12 Revised.....................................................35282
292 Duplicated and transferred to Chapter V, Part 1292..............9845
299.1 Table amended................................................43921
299.5 Table amended................................................43921
316.20 (a) amended.................................................61334
337 Duplicated and transferred to Chapter V, Part 1337..............9845
507 Transferred and redesignated as 28 CFR, Part 200................9846
Chapter V
Chapter V Established...............................................9830
1001--1003 (Subchapter A) Heading added.............................9830
1001 Duplicated and redesignated from Chapter I, Part 1.............9830
1001.1 (j) and (r) amended.........................................10350
1003 Transferred and redesignated from Chapter I, Part 3............9830
    Nomenclature change.............................................9846
1003.1 (g) and (h) revised; (i) and (j) added.......................9831
    (b)(2), (3), (5) through (10), (12), (14), (d)(2)(D)(iii) and 
(5) amended........................................................10351

[[Page 1231]]

1003.2 (c)(1) and (3)(iv) amended..................................10351
1003.4 Amended.....................................................10351
1003.6 (b) amended.................................................10351
1003.8 (a) and (b) amended.........................................10351
1003.14 (d) added...................................................9832
    (a) and (c) amended............................................10351
1003.15 (b)(5) amended.............................................10351
1003.16 (b) amended................................................10351
1003.19 (a), (h)(1)(i)(D), (E), (ii) and (2)(ii) amended...........10351
1003.23 (b)(1) amended.............................................10351
1003.24 Amended....................................................10351
1003.30 Amended....................................................10351
1003.31 (b) amended................................................10351
1003.61 (a)(1), (2) and (4) amended................................10351
1003.62 Amended....................................................10351
1003.64 Amended....................................................10351
1003.65 Amended....................................................10351
1003.101 Amended...................................................10351
1003.102 Amended...................................................10351
1003.105 (a) amended...............................................10351
1003.106 (a)(1)(ii), (v) and (c) amended...........................10351
1003.107 Amended...................................................10351
1101--1299 (Subchapter B) Heading added.............................9830
1101 Duplicated and redesignated from Chapter I, Part 101...........9832
    Nomenclature change.............................................9846
1101.4 Amended.....................................................10351
1103 Heading and authority citation duplicated and redesignated 
        from Chapter I, Part 103; authority citation revised........9833
    Nomenclature change.............................................9846
    Authority citation revised.....................................10351
1103.3 Duplicated and redesignated from 103.3.......................9833
    (a)(1)(ii), (iii)(B), (v), (2)(iii), (v)(A)(2)(ii) and 
(B)(2)(ii) amended.................................................10352
1103.4 Duplicated and redesignated from 103.3.......................9833
    (a)(6) amended.................................................10352
1103.7 Duplicated and redesignated from 103.3.......................9833
    (c)(1) and (4) amended.........................................10352
1204 Added..........................................................9833
1205 Duplicated and transferred from Chapter I, Part 205............9833
    Nomenclature change.............................................9846
1205.1 (a) amended.................................................10352
1205.2 (d) amended.................................................10352
1207 Duplicated and transferred from Chapter I, Part 207............9833
1207.3 Duplicated from 207.3........................................9833
1208 Duplicated and transferred from Chapter I, Part 208............9834
    Nomenclature change.............................................9846
1208.1 (a) amended.................................................10352
1208.2 (c)(3)(i) amended...........................................10352
1208.4 (a)(2)(ii), (b)(3)(ii), (4) and (5) amended.................10352
1208.5 (b)(2) amended..............................................10352
1208.7 (a)(1), (2) and (4) amended.................................10352
1208.8 (b) amended.................................................10352
1208.12 Amended....................................................10352
1208.14 (c)(4)(i) and (ii) amended.................................10352
1208.17 (d)(1) and (e)(1) amended..................................10352
1208.18 (b)(2) and (3)(ii)(A) amended..............................10352
1208.22 (f) amended................................................10352
1208.23 (f) amended................................................10352
1208.30 (f) and (g)(2)(iii) amended................................10352
1208.31 Amended....................................................10353
1209 Duplicated and transferred from Chapter I, Part 209............9835
    Nomenclature change.............................................9846
    (c) amended....................................................10353
1211 Duplicated and transferred from Chapter I, Part 211............9835
    Nomenclature change.............................................9846
1211.4 duplicated from 211.4........................................9835
1212 Duplicated and transferred from Chapter I, Part 212............9835
    Nomenclature change.............................................9846
1212.1 (g)(3) amended..............................................10353
1212.3 (e)(3) amended..............................................10353
1212.4 (b) amended.................................................10353
1212.5 (b) and (c) amended.........................................10353
1212.6 (a)(2), (d)(1) and (e) amended..............................10353
1212.7 (a)(1)(iii), (iv), (b)(2)(iv), (v), (5), (c)(7), (9)(ii)(B) 
        and (vi) amended...........................................10353
1212.8 (b) amended.................................................10353
1212.10 Amended....................................................10353
1212.14 (a)(1)(vi) amended.........................................10353
1214 Added..........................................................9835
1215 Duplicated and transferred from Chapter I, Part 215............9836
    Nomenclature change.............................................9846
1216 Duplicated and transferred from Chapter I, Part 216; 
        authority citation revised..................................9837
    Nomenclature change.............................................9846
1216.3 (a) amended.................................................10354

[[Page 1232]]

1216.4 (a)(1), (4), (6) and (d)(2) amended.........................10354
1216.5 (b) amended.................................................10354
1216.6 (a)(1), (5) and (b)(3) amended..............................10354
1235 Duplicated and transferred from Chapter I, Part 235............9837
    Nomenclature change.............................................9846
1235.1 (d)(1), (4), (e)(1)(iii), (v), (2), (5)(ii), (f)(1)(i), 
        (iii), (iv) and (v) amended................................10354
1235.3 (b)(1)(i), (2)(i), (4), (5)(ii), (iii), (8), (c) and (f) 
        amended....................................................10354
1235.4 Amended.....................................................10354
1235.5 (a) amended.................................................10354
1235.6 (a)(2)(iii) amended.........................................10354
1235.8 (b)(4) and (e) amended......................................10354
1235.11 (c) amended................................................10354
1236 Duplicated and transferred from Chapter I, Part 236............9838
    Nomenclature change.............................................9846
1236.1 (a) amended.................................................10354
    (b), (c)(10), (11), (d)(1), (3)(i), (4) and (f) amended........10355
1236.2 (a) amended.................................................10355
1236.5 (d) amended.................................................10355
1238 Duplicated and transferred from Chapter I, Part 238............9838
1238.1 Duplicated from 238.1........................................9838
    (a), (b)(1)(iii), (2)(i), (iv), (c)(1), (f)(1), (3) and (g) 
amended............................................................10355
1239 Duplicated and transferred from Chapter I, Part 239............9838
    Nomenclature change.............................................9846
1239.2 (a) and (c) amended.........................................10355
1240.1--1240.18 (Subpart A) Transferred and redesignated from 
        Chapter I, Part 240.1--240.18 (Subpart A)...................9838
1240.2 (a) amended.................................................10355
1240.3 Amended.....................................................10355
1240.7 Amended.....................................................10356
1240.10 (a)(2) and (b) amended.....................................10356
1240.11 (a)(1), (c)(1), (2), (3), (e) and (f) amended..............10356
1240.13 (a) amended................................................10356
1240.14 Amended....................................................10356
1240.15 Amended....................................................10356
1240 Amended........................................................9846
1240.19--1240.24 (Subpart B) Heading transferred and redesignated 
        from Chapter I, 240.19--240.24 (Subpart B)..................9838
1240.19 Redesignated from 240.19....................................9838
1240.20 Redesignated from 240.20....................................9838
    (a) and (b) amended............................................10356
1240.21 Duplicated and redesignated from 240.21...............9838, 9840
    Amended.........................................................9846
    (b)(2)(iii), (5)(ii) and (c) amended...........................10356
1240.22 Redesignated from 240.22....................................9838
1240.23 Redesignated from 240.23....................................9838
1240.24 Redesignated from 240.24....................................9838
1240.26--1240.29 (Subpart C) Transferred and redesignated from 
        Chapter I, 240.26--240.29 (Subpart C).......................9838
1240.26 Amended....................................................10356
1240.30--1240.39 (Subpart D) Transferred and redesignated from 
        Chapter I, 240.30--240.39 (Subpart D).......................9838
1240.32 (a) amended................................................10356
1240.33 (b) and (c) amended........................................10356
1240.35 Amended....................................................10356
1240.36 Amended....................................................10356
1240.37 Amended....................................................10356
1240.40--1240.54 (Subpart E) Transferred and redesignated from 
        Chapter I, 240.40--240.54 (Subpart E).......................9838
1240.40 Amended....................................................10356
1240.42 Amended....................................................10356
1240.46 Amended....................................................10356
1240.48 (a) amended................................................10356
1240.49 (a), (c)(2), (3), (4) and (e) amended......................10356
1240.51 (a) amended................................................10356
1240.52 Amended....................................................10356
1240.53 Amended....................................................10356
1240.55--1240.58 (Subpart F) Transferred and redesignated from 
        Chapter I, 240.55--240.58 (Subpart F).......................9838
1240.55 Amended....................................................10356
1240.56 Amended....................................................10356
1240.60--1240.70 (Subpart H) Duplicated and redesignated from 
        Chapter I, 240.60--240.70 (Subpart H).......................9840
1240.62 Amended....................................................10356
1240.63 (a) and (b) amended........................................10356
1240.67 (a) and (b)(1) amended.....................................10356
1240.69 Amended....................................................10356

[[Page 1233]]

1241 Duplicated and transferred from Chapter I, Part 241............9840
    Nomenclature change.............................................9846
1241.2 Amended.....................................................10357
1241.3 (b)(1) through (4) amended..................................10357
1241.4 (j) amended.................................................10357
1241.6 (a) and (b) amended.........................................10357
1241.8 (e) amended.................................................10357
1241.11 (d) amended................................................10357
1241.13 (b)(1), (3)(i), (g)(1) and (2) amended.....................10357
1241.14 (d)(3)(ii), (g)(3)(i), (h)(4), (i)(3), (4)(ii), (k)(6)(ii) 
        and (iii) amended..........................................10357
1241.15 Amended....................................................10357
1241.22 Amended....................................................10357
1241.30 Amended....................................................10357
1241.31 Amended....................................................10357
1241.33 Amended....................................................10357
1244 Duplicated and transferred from Chapter I, Part 244............9841
    Nomenclature change.............................................9846
1244.8 Amended.....................................................10357
1244.10 (b), (c)(2) and (d)(1) amended.............................10357
1244.11 Amended....................................................10357
1244.13 Amended....................................................10357
1244.18 (d) amended................................................10357
1245 Duplicated and transferred from Chapter I, Part 245............9842
    Nomenclature change.............................................9846
1245.1 (b)(7), (8), (10), (c)(1), (2), (3), (4), (6)(i), (ii), 
        (7), (d)(1)(ii), (2) and (f) amended.......................10358
1245.2 (a) amended.................................................10358
1245.4 Amended.....................................................10358
1245.5 Amended.....................................................10358
1245.9 (k)(1) amended..............................................10358
1245.10 (a)(2)(i), (4), (d) and (f)(1) amended.....................10358
1245.11 (d)(1) amended.............................................10358
1245.12 (a)(2) amended.............................................10358
1245.13 (c)(1), (e)(1), (2), (g), (j)(1), (2), (k)(1), (3), 
        (m)(1)(i), (n)(1) and (2) amended..........................10358
1245.14 Amended....................................................10358
1245.15 (a), (c)(2)(iv)(B), (d)(4), (e)(2), (g)(3)(iii), (h)(1), 
        (2), (n)(1), (2), (p)(1), (r)(2)(i), (s)(3) and (t) 
        amended....................................................10358
1245.18 Amended....................................................10358
1245.20 Amended....................................................10358
1246 Duplicated and transferred from Chapter I, Part 246............9842
    Nomenclature change.............................................9846
1246.1 Amended.....................................................10359
1246.3 Amended.....................................................10359
1246.5 (a) amended.................................................10359
1246.6 Amended.....................................................10359
1246.7 Amended.....................................................10359
1249 Duplicated and transferred from Chapter I, Part 249............9842
    Nomenclature change.............................................9846
1249.2 Amended.....................................................10359
1249.3 Amended.....................................................10359
1270 Duplicated and transferred from Chapter I, Part 270............9843
    Nomenclautre change.............................................9846
1270.1 (c), (d), (h) and (i) amended...............................10359
1274a Duplicated and transferred from Chapter I, Part 274a..........9844
    Nomenclature change.............................................9846
1274a.10 Amended...................................................10359
1274a.12 (b)(1), (2), (3) and (5) through (10) amended.............10359
    (b)(11) through (20), (c)(1), (2), (3)(i), (4) through (9), 
(16), (20), (22) and (23) amended..................................10360
1274a.14 (a)(2) amended............................................10360
1280 Duplicated and transferred from Chapter I, Part 280............9844
    Nomenclature change.............................................9846
1287 Duplicated and transferred from Chapter I, Part 287............9845
    Nomenclature change.............................................9846
1292 Duplicated and transferred from Chapter I, Part 292............9845
    Nomenclature change.............................................9846
1292.1 (a)(1) and (6) amended......................................10360
1292.3 (a)(1), (2), (b)(1), (c)(1), (3), (4), (d)(1)(ii), (e)(1), 
        (3) and (f)(1) amended.....................................10360
1292.4 (a) and (b) amended.........................................10360
1292.6 Amended.....................................................10360
1299 Added..........................................................9845
1337 (Subchapter C) Heading added...................................9830
    Duplicated and transferred from Chapter I, Part 337.............9845
    Nomenclature change......................................9846, 10360

                                  2004

8 CFR
                                                                   69 FR
                                                                    Page
Chapter I
103.1 (b) amended..................................................35234
103.7 (a), (b)(2) and (c) revised; (b) and (1) amended; (b)(3) and 
        (4) added..................................................20534
    (b)(1) amended.................................................39824

[[Page 1234]]

208.4 (a)(6) added.................................................69488
208.30 (e)(2), (3) and (4) redesignated as (e)(4), (5) and (7); 
        new (e)(2), (3) and (6) added; new (e)(4), (5) and 
        (g)(2)(i) revised; (g)(2)(iii) and (iv) removed............69489
212.5 (e)(2)(iii) added............................................69489
212.15 (n)(1) and (2) introductory text revised; interim...........43731
214 Authority citation revised................................479, 39825
214.1 (a)(3) revised; interim........................................480
    (i), (j) introductory text and (2) revised; interim............43732
214.2 (f)(19), (j)(5) and (m)(20) added............................39825
214.6 Heading, (d), (e), (h) and (i) revised; (f) and (l) removed; 
        interim....................................................11289
    Heading revised; (c) amended...................................60941
214.13 Added.......................................................39825
    (b)(3) corrected...............................................41388
215 Authority citation revised.......................................480
    Technical correction....................................53603, 65508
215.8 Added; interim.................................................480
    (a)(1) and (2)(ii) revised; interim............................53333
    (a)(2)(ii) corrected; interim..................................58037
    Regulation at 69 FR 53333 comment period extended; interim.....64477
235 Authority citation revised.......................................480
    Technical correction....................................53603, 65508
235.1 (d)(1) and (f)(1) introductory text revised; interim...........480
    (f)(1)(iii) and (v) revised....................................50053
    (d)(1)(ii) and (iv)(B) revised; interim........................53333
    (d)(iv)(B) corrected; interim..................................58037
    Regulation at 69 FR 53333 comment period extended; interim.....64477
235.3 (b)(4) amended...............................................69490
252 Authority citation revised.....................................53333
    Technical correction....................................53603, 65508
252.1 (c) revised; interim.........................................53333
    Regulation at 69 FR 53333 comment period extended; interim.....64477
274a.12 (a) introductory text, (5) and (c) introductory text 
        revised; (a)(15), (c)(9), (10), (16), (20) and (24) 
        amended; interim...........................................45557
    (c) introductory text correctly revised; interim...............47763
299.1 Table amended................................................39826
299.5 Table amended................................................39827
Chapter V
1001 Authority citation revised....................................44905
1001.1 (c), (d), (o), (p) and (s) revised; (u), (v) and (w) added; 
        interim....................................................44905
1003.1 (a)(7) removed; interim.....................................44906
1003.8 Revised; interim............................................44906
1003.24 Revised; interim...........................................44906
1003.42 (h) added..................................................69496
1003.44 Revised....................................................57833
1103.7 Revised; interim............................................44907
1208 Authority citation revised....................................69497
1208.4 (a)(6) added................................................69497
1208.30 (a) and (e) revised; (c), (d), (f) and (g)(1) removed......69497
1212 Authority citation revised.............................57834, 69497
1212.3 Heading, (a), (d), (e), (f) introductory text, (3), (4) and 
        (5) revised; (b) amended; (c) removed; (h) added...........57834
1212.5 Revised.....................................................69497
1235 Authority citation revised....................................69497
    Heading revised................................................69497
1235.3 (b)(4) introductory text and (i) revised....................69497
1239 Authority citation revised....................................44907
1239.1 (a) revised; interim........................................44907
1239.2 (a), (c) and (d) revised; (b) removed; interim..............44907
1240 Authority citation revised.............................57835, 69497
1240.1 (a)(1)(ii) amended..........................................57835
1240.11 (g) added..................................................69497
1274a.12 (c)(5) corrected; CFR correction..........................34913
1287 Authority citation revised....................................44907
1287.4 (a)(1), (2)(i), (ii)(A) and (c) revised; (d) amended; 
        interim....................................................44907

                                  2005

8 CFR
                                                                   70 FR
                                                                    Page
Chapter I
103.5 (a)(1)(iii) introductory text revised........................50957
103.7 (b)(1) amended...............................................50957

[[Page 1235]]

204.10 Revised; interim............................................21131
214 Authority citation revised.....................................23783
    Policy statement...............................................70992
214.2 (h)(2)(i)(A) and (8)(ii)(B) revised; (h)(8)(ii)(C) removed; 
        (h)(8)(ii)(D), (E) and (F) redesignated as (h)(8)(ii)(C), 
        (D) and (E); new (h)(8)(ii)(C) amended; interim............23783
217 Heading revised................................................17848
217.7 Revised......................................................17848
231 Heading revised................................................17849
231 Authority citation revised.....................................17849
231.1 Revised......................................................17849
231.2 Revised......................................................17849
236.1 (g) added....................................................67088
239.1 (a)(37) and (38) revised; (a)(39), (40) and (41) added.......67089
241 Authority citation revised.....................................67089
241.1 Revised........................................................673
241.2 Revised......................................................67089
241.3 (d) added......................................................673
241.4 (k)(1)(i) amended..............................................673
241.5 (c)(1) revised.................................................673
241.13 (d)(1) and (f) amended........................................673
241.15 Revised.......................................................673
241.25 (b) revised...................................................673
241.31 Revised.......................................................674
241.33 (a) introductory text amended; (a)(1) through (4) removed 
                                                                     674
251 Heading revised................................................17849
251.5 Redesignated as 251.6 and revised; new 251.5 added...........17849
251.6 Redesignated from 251.5......................................17849
287.5 (e)(2) revised...............................................67089
Chapter V--Executive Office for Immigration Review, Department of 
Justice (Parts 1000--1499)
1003.1 (d)(6) redesignated as (d)(7); new (d)(6) added; (e)(8)(i) 
        revised; interim............................................4752
    Regulation at 70 FR 4752 comment period extended...............16398
1003.19 (e) revised; interim........................................4753
    Regulation at 70 FR 4753 comment period extended...............16398
1003.47 Added; interim..............................................4753
    Regulation at 70 FR 4753 comment period extended...............16398
1208 Authority citation revised.....................................4754
1208.4 (a)(2)(ii) amended; interim..................................4754
    Regulation at 70 FR 4754 comment period extended...............16398
1208.10 Revised; interim............................................4754
    Regulation at 70 FR 4754 comment period extended...............16398
1208.14 (a) amended; interim........................................4754
    Regulation at 70 FR 4754 comment period extended...............16398
1240 Authority citation revised......................................674
1240.10 (f) revised; (g) removed.....................................674
1240.12 (c) revised; (d) added.......................................674
1241 Authority citation revised......................................674
1241.2 Revised.......................................................674
1241.3 Removed.......................................................674
1241.4 Removed.......................................................674
1241.5 Removed.......................................................674
1241.6 (a) and (b) revised...........................................674
1241.7 Amended.......................................................674
1241.9 Removed.......................................................674
1241.10 Removed......................................................674
1241.11 Removed......................................................674
1241.12 Removed......................................................674
1241.13 Removed......................................................674
1241.14 (a) revised; (b), (c) and (d) removed........................674
1241.15 Revised......................................................675
1241.20 Revised......................................................675
1241.21 Removed......................................................675
1241.22 Removed......................................................675
1241.23 Removed......................................................675
1241.24 Removed......................................................675
1241.25 Removed......................................................675
1241.30 Revised......................................................675

                                  2006

8 CFR
                                                                   71 FR
                                                                    Page
Chapter I
1.1 (q) amended; interim...........................................27591
3.19 Regulation at 66 FR 54911 confirmed...........................57873
103.2 (f)(2) revised; interim......................................29574
204.13 Regulation at 66 FR 51821 confirmed.........................19806
204.2 (i)(1)(iv) added.............................................35749
205.1 (a)(3)(i)(C) revised.........................................35749
212 Authority citation revised; eff. 1-23-07.......................68429
212.1 (a)(1), (2) and (c)(1)(i) revised; eff. 1-23-07..............68429
213a Regulation at 62 FR 54352 confirmed in part...................35749
213a.1 Amended.....................................................35749

[[Page 1236]]

213a.2 (a)(1), (2)(i)(A), (C), (ii)(B), (b)(1), (2), (c), (e) and 
        (f) revised; (a)(2)(ii)(A) amended; (a)(2)(ii)(C), (D), 
        (E) and (g) added..........................................35750
213a.3 (a) revised.................................................35755
213a.4 (a) and (c) revised; (b) amended............................35755
235 Authority citation revised; eff. 1-23-07.......................68429
235.1 (d), (e) and (f) redesignated as (f), (g) and (h); new (d) 
        and (e) added; eff. 1-23-07................................68429
245.1 (c)(8) removed; (c)(9) redesignated as new (c)(8); interim 
                                                                   27591
245.2 (a)(1) revised; interim......................................27591
274a.2 (a), (b)(1)(i)(A), (ii)(B), (2)(i) introductory text, (ii) 
        and (3) revised; (b)(1)(iv), (vii) and (4) amended; 
        (b)(2)(iv) added, (e) through (i) added; interim...........34514
299.1 Regulation at 62 FR 54356 confirmed in part..................35749
    Table amended..................................................35756
299.5 Regulation at 62 FR 54356 confirmed in part..................35749
    Table amended..................................................35756
Chapter V
1001.1 (q) amended; interim........................................27591
1003 Authority citation revised.............................57884, 70857
1003.1 (a)(1) and (4) revised; interim.............................70857
1003.6 (c) and (d) added...........................................57884
1003.19 (i) revised................................................57884
1205.1 (a)(3)(i)(C) revised........................................35757
1240 Authority citation revised....................................35757
1240.11 (a)(2) amended.............................................35757
1240.34 Amended....................................................35757
1240.49 (a) amended................................................35757
1245.1 (c)(8) removed; (c)(9) redesignated as new (c)(8); interim 
                                                                   27591
1245.2 (a)(1) revised; interim.....................................27591

                                  2007

8 CFR
                                                                   72 FR
                                                                    Page
Chapter I
103.2 (a)(6), (7)(i), (b)(12), (16)(iii) and (iv) amended; (b)(1), 
        (4), (5), (8), (11), (13), (17) and (f)(1) revised; (c) 
        and (d) removed............................................19105
    (a)(7)(i), (b)(2)(ii), (iii), (3), (6), (7), (9) introductory 
text, (10), (15), (d)(2), (e)(1), (2), (3) introductory text, 
(iii), (4)(i), (iii) introductory text, (C), (iv), (f)(3) and (4) 
amended............................................................19106
103.7 (b)(1) amended; (c)(5) added.................................29873
    Amended........................................................41890
    (b)(1) amended.................................................46143
    (b)(1) amended; interim.................................53035, 56853
    Regulation at 72 FR 53035 withdrawn............................54813
204.1--204.13 (Subpart A) Heading added; 204.1 through 204.13 
        designated as Subpart A; interim...........................56853
204.1 (h) removed..................................................19106
    (a)(4) revised; (a)(5) redesignated as (a)(6); new (a)(5) 
added; interim.....................................................56853
204.2 (c)(3)(ii) and (e)(3)(ii) removed; (c)(3)(iii) and 
        (e)(3)(iii) redesignated as new (c)(3)(ii) and new 
        (e)(3)(ii).................................................19107
    (d)(2)(vii)(D), (E) and (F) added; interim.....................56853
204.3 Heading and (a) revised; interim.............................56853
204 (Subpart B) Added; interim.....................................56854
204.300--204.314 (Subpart C) Added; interim........................56854
212.1 (g) revised; (p) added; interim..............................53035
212.17 Added; interim..............................................53035
213a.2 (a)(2)(ii)(E) amended; interim..............................56867
214 Authority citation revised.....................................53035
214.1 (a)(1)(ix) added; (a)(2) table amended; interim..............53036
214.2 (o)(2)(i) and (p)(2)(i) amended..............................18860
    (h)(10)(ii), (k)(10)(iii) and (l)(8)(i) removed; (h)(10)(iii), 
(l)(8)(ii) and (iii) redesignated as new (h)(10)(ii), (l)(8)(i) 
and (ii); (o)(7) and (p)(9) revised................................19107
214.11 (k)(2) revised..............................................19107
214.14 Added; interim..............................................53036
    (c)(1) introductory text correctly amended.....................54813
214.15 (d) revised.................................................19107
236.1 (e) amended...................................................1924
245.2 (a)(4)(ii)(C) revised........................................61792
245.18 (i) revised.................................................19107

[[Page 1237]]

245a.20 (a)(2) revised.............................................19107
245a.33 (b) amended................................................19107
248.1 (a) revised; interim.........................................53041
248.2 Introductory text revised; introductory text through (f) 
        redesignated as (a) introductory text through (6); new (b) 
        added; interim.............................................53041
274a.1 (l) revised.................................................45623
274a.12 (a) introductory text revised; (a)(14) and (16) amended; 
        (a)(17) through (20) added; interim........................53041
274a.13 (a) introductory text revised; interim.....................53042
299.1 Table amended; interim................................53042, 56867
299.5 Table amended; interim.......................................53042
322.3 (b)(1)(xi) amended; (b)(1)(xii) redesignated as 
        (b)(1)(xiii); new (b)(1)(xii) added; interim...............56867
Chapter V
1003.0 Revised.....................................................53676
1003.9--1003.11 (Subpart B) Heading revised........................53677
1003.9 Revised.....................................................53677
1003.10 Revised....................................................53677
1240.1 (a)(2) amended..............................................53678

                                  2008

8 CFR
                                                                   73 FR
                                                                    Page
Chapter I
100.7 Amended......................................................58030
103.7 Regulation at 72 FR 56853 comment period extended............15635
    (b)(1) and (c)(1) amended......................................28030
    (b)(1) amended.................................................55698
    (b)(1) amended; (c)(5) revised; interim; eff. 1-12-09..........75557
103.38 Added.......................................................28030
103.39 Added.......................................................28030
103.40 Added.......................................................28031
103.41 Added.......................................................28031
204 Authority citation revised.....................................78127
204.1--204.13 (Subpart A) Regulation at 72 FR 56853 comment period 
        extended...................................................15635
204.1 Regulation at 72 FR 56853 comment period extended............15635
204.2 Regulation at 72 FR 56853 comment period extended............15635
204.3 Regulation at 72 FR 56853 comment period extended............15635
204.5 (m) revised..................................................72291
    (o) added; eff. 1-18-09........................................78127
204 (Subpart B) Regulation at 72 FR 56854 comment period extended 
                                                                   15635
204.300--204.314 (Subpart C) Regulation at 72 FR 56854 comment 
        period extended............................................15635
212 Authority citation revised.....................................18415
212.0 Added; eff. 6-1-09...........................................18415
212.1 (a)(1), (2) and (c)(1) revised; eff. 6-1-09..................18416
212.4 (e) amended; (f) through (i) redesignated as (g) through 
        (j); new (f) added.........................................58030
212.18 Added; interim; eff. 1-12-09................................75557
213a.2 Regulation at 72 FR 56867 comment period extended...........15635
214 Authority citation revised..............................55698, 76911
214.1 (a)(2) and (c)(1) amended....................................61334
    (k) added; eff. 1-18-09........................................78127
214.2 (h)(2)(i)(G) added; (h)(8)(i)(A), (ii)(B) and (D) revised; 
        interim....................................................15394
    (f)(5)(vi), (10)(ii)(A), (C), (E), (11) and (12) revised; 
interim............................................................18954
    (r) revised....................................................72293
    (h)(2)(i)(A) through (D), (iii), (5)(i)(A), (B), (C), (v)(B), 
(C), (vi), (viii)(A), (B), (C), (ix), (x) and (11)(ii) revised; 
(h)(5)(i)(F), (xi) and (xii) added; (h)(5)(ii) and (11)(i)(A) 
amended; eff. 1-17-09..............................................76911
    (h)(2)(iv) redesignated as (h)(6)(viii); (h)(1)(ii)(D), 
(2)(iii), (6)(i), (ii)(B) introductory text, (iv)(A), (D), (v)(A), 
(vi)(A), (C), new (viii), (8)(ii)(A), (9)(i)(B), (iii)(B)(1), 
(10)(ii), (11)(iii)(A)(2), (13)(i)(B), (iv) and (v) revised; 
(h)(2)(ii), (6)(iii)(B), (C), (E), (v)(E)(2)(iii), (vi)(D), (vii), 
(11)(i)(A) amended; (h)(6)(iv)(E), (v)(C), (D), (vi)(B) removed; 
(h)(6)(ix) added; eff. 1-18-09.....................................78127
214.3 (g)(3)(ii)(F) added; interim.................................18956

[[Page 1238]]

    (g)(2) removed; (g)(3) and (4) redesignated as new (g)(2) and 
(3); (a)(1), (d), (e), (f), (g)(1), new (g)(2) heading, (i), (ii) 
introductory text, (E), (iii)(C), (h), (i), (k) introductory text, 
(l)(1)(ii) and (2) revised; (a)(3) and (g)(2)(iii)(D) added; (b) 
introductory text and (c) amended..................................55698
214.4 (a)(2) and (3) redesignated as (a)(3) and (4); new (a)(2) 
        and (i) added; heading, (a)(1), new (3), (b), (g) and (h) 
        revised....................................................55702
214.6 (j)(1), (2) and (3) redesignated as (j)(2), (3) and (4); new 
        (j)(1) added; heading, (e), (g), (h), new (j)(2), (3), (4) 
        and (k) revised............................................61334
214.11 (p)(1) and (2) revised; interim; eff. 1-12-09...............75558
214.13 (a) and (b)(1) revised......................................55704
215.8 (a)(1) revised; eff. 1-18-09.................................77491
215.9 Added; eff. 1-17-09..........................................76914
    Revised; eff. 1-18-09..........................................78130
217.2 (a) amended...........................................67712, 79597
217.5 Added; interim...............................................32452
231.3 Revised......................................................68309
235 Authority citation revised.....................................18416
235.1 (b), (d) and (e) revised; eff. 6-1-09........................18416
    (f)(1)(ii) revised; eff. 1-18-09...............................77491
245.23 Added; interim; eff. 1-12-09................................75558
245.24 Added; interim; eff. 1-12-09................................75560
248.3 Amended......................................................61336
270.3 (b)(1)(ii)(A) and (B) revised; (b)(1)(ii)(C) and (D) added 
                                                                   10135
274 Authority citation revised......................................9011
274.1 Revised; interim..............................................9011
274.2 Revised; interim..............................................9011
274.3 Removed; interim..............................................9011
274.4 Removed; interim..............................................9011
274.5 Removed; interim..............................................9011
274.6 Removed; interim..............................................9011
274.7 Removed; interim..............................................9011
274.8 Removed; interim..............................................9011
274.9 Removed; interim..............................................9011
274.10 Removed; interim.............................................9011
274.11 Removed; interim.............................................9011
274.12 Removed; interim.............................................9011
274.13 Removed; interim.............................................9011
274.14 Removed; interim.............................................9011
274.15 Removed; interim.............................................9011
274.16 Removed; interim.............................................9011
274.17 Removed; interim.............................................9011
274.18 Removed; interim.............................................9011
274.19 Removed; interim.............................................9011
274.20 Removed; interim.............................................9011
274a Authority citation revised....................................10136
274a.1 Regulation at 72 FR 45623 confirmed; (l)(2)(iii) corrected 
                                                                   63867
274a.2 Heading, (b)(1)(v) introductory text, (A), (C)(1), (2), 
        (3), (6), (7), (8), (vi)(B) and (C) revised; (a)(3), 
        (b)(1)(i)(B) and (ii)(A) amended; interim; eff. 2-2-09.....76511
274a.10 (b)(1)(ii)(A), (B) and (C) revised.........................10136
274a.12 (b)(6)(iv) and (v) added; (c)(3) revised; interim..........18956
    (b)(19) and (20) amended; (b)(21) added; eff. 1-17-09..........76914
280.53 (d)(3) removed..............................................10136
299.1 Regulation at 72 FR 56867 comment period extended............15635
    Table amended...........................................28031, 72296
    Table correctly amended........................................74605
    Table amended; interim; eff. 1-12-09...........................75563
299.5 Table amended (OMB numbers)...........................28032, 72297
    Table amended (OMB numbers); interim; eff. 1-12-09.............75564
322.3 Regulation at 72 FR 56867 comment period extended............15635
Chapter V
1001.1 (f) and (i) revised; eff. 1-20-09...........................76922
1003 Regulation at 71 FR 70857 confirmed...........................33876
1003.1 Regulation at 71 FR 70857 confirmed.........................33876
    (d)(5) amended; eff. 1-20-09...................................76923
1003.101 (a)(1), (2) and (b) amended; eff. 1-20-09.................76923
1003.102 (e), (k), (l) and (m) revised; (j)(2) amended; (n) 
        through (t) added; eff.1-20-09.............................76923
1003.103 (a)(1), (2), (b) introductory text and (c) amended; 
        (b)(2) introductory text revised; eff. 1-20-09.............76923
1003.104 (a), (c) and (d) revised; (b) amended; eff. 1-20-09.......76924
1003.105 (a) and (d)(2) introductory text revised; (b) and (c)(1) 
        amended; eff. 1-20-09......................................76925

[[Page 1239]]

1003.106 (a)(1) and (2) redesignated as (a)(2) and (3); new (a)(1) 
        added; heading, (a) heading, new (2)(iii), (iv), new (3) 
        introductory text, (ii), (b) and (c) revised; new 
        (a)(2)(ii), (v) introductory text and (d) amended; eff. 1-
        20-09......................................................76925
1003.107 (b) introductory text amended; (b)(1) revised; (c) added; 
        eff. 1-20-09...............................................76926
1003.108 (a) introductory text and (1)(i) amended; (a)(1) 
        introductory text, (iv) and (2) revised; eff. 1-20-09......76927
1240.11 (b) amended; eff. 1-20-09..................................76937
1240.26 (b)(3)(iii), (iv), (c)(4), (e)(1), (2), (i) and (j) added; 
        (c)(3) revised; (f) amended; eff. 1-20-09..................76937
1241.1 (f) revised; eff. 1-20-09...................................76938
1274a Authority citation revised...................................10136
1274a.10 Revised...................................................10136
1292.1 (a)(2) introductory text revised; (a)(6) removed; eff. 1-
        20-09......................................................76927

                                  2009

                    Correction published Jan. 5, 2009

8 CFR
                                                                   74 FR
                                                                    Page
Chapter V
1003.103 (a)(1) correctly revised....................................201


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