[Federal Register Volume 85, Number 116 (Tuesday, June 16, 2020)]
[Rules and Regulations]
[Pages 36323-36327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12344]


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DEPARTMENT OF STATE

22 CFR Part 42.34

[Public Notice: 11104]
RIN 1400-AE77


Visas: Special Immigrant Visas--U.S. Government Employee Special 
Immigrant Visas for Service Abroad

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: The Immigration and Nationality Act provides for the granting 
of special immigrant status for certain aliens who have been employed 
by, and performed faithful service for, the U.S. government abroad for 
at least fifteen years. This rule codifies in regulation the 
eligibility criteria for special immigrant status of such aliens and 
the application process for applicants.

DATES: This rule is effective December 16, 2020.

FOR FURTHER INFORMATION CONTACT: Taylor Beaumont, Acting Chief, 
Legislation and Regulations Division, Visa Services, Bureau of Consular 
Affairs, Department of State, [email protected].

SUPPLEMENTARY INFORMATION:

What is the effect of this regulation?

    Section 101(a)(27)(D) of the Immigration and Nationality Act (INA), 
8 U.S.C. 1101(a)(27)(D), authorizes the granting of special immigrant 
status in exceptional circumstances for employees, or honorably retired 
former employees, of the U.S. government abroad, or of the American 
Institute in Taiwan, who have performed faithful service for a total of 
fifteen years or more, in addition to their accompanying spouse and 
children. For special immigration status to be granted, this provision 
requires that the principal officer of a Foreign Service establishment 
recommend granting of special immigrant status in an exercise of 
discretion to aliens in exceptional circumstances. The statute provides 
that the Secretary of State may choose to approve such a recommendation 
after finding that it is in the national interest to grant such status, 
for the status to be conferred. Upon notification that the Secretary of 
State, or designee, has approved a recommendation and found that 
granting special immigrant status is in the national interest, the 
applicant must submit a completed Form DS-1884, Petition to Classify 
Special Immigrant Under INA 203(b)(4) as an Employee or Former Employee 
of the U.S. Government Abroad, to the Department of State 
(``Department'') within one year. Once the DS-1884 is submitted and 
approved, the employee must submit an immigrant visa application, which 
a consular officer adjudicates in accordance with relevant provisions 
in the INA. If the consular officer approves the visa application and 
issues the visa, the applicant then has six months to immigrate to the 
United States. To avoid potential confusion, the Department emphasizes 
that this regulation affects only the granting of special immigrant 
status to long term employees of the U.S. government abroad under INA 
section 101(a)(27)(D), 8 U.S.C. 1101(a)(27)(D); this regulation does 
not affect the granting of special immigrant status under any of the 
authorities for special immigrant status, including any of the other 
provisions in INA section 101(a)(27), 8 U.S.C. 1101(a)(27), or those 
specific to nationals of Iraq and Afghanistan.
    This rule codifies the circumstances that will be considered 
``exceptional'' for purposes of assessing special immigrant status 
qualification. The scope of ``exceptional circumstances'' set out in 
this rule departs, in certain respects, from the Department's policies 
that preceded this rule, which were articulated only in the Foreign 
Affairs Manual (FAM), specifically 9 FAM 502.5-3(C)(2)(d), not in the 
CFR. Specifically, the excluded criteria, formerly in 9 FAM 502.5-
3(C)(2)(d)(3)(c)(ii)-(vi), that will no longer constitute exceptional 
circumstances, are: Recognition with multiple individual awards; high 
visibility in a sensitive position; control over key aspects of the 
operations or overall functioning of a Foreign Service post; valuable 
services and assistance to the U.S. community at post apart from 
performance of official duties; and faithful service in a country 
foreign to the employee that resulted in the employee losing economic 
and social ties to his or her home country. The regulation also adds 
two new criteria that will constitute exceptional circumstances moving 
forward, specifically: Recognition with a ``Foreign Service National of 
the Year'' award; and disclosure of waste, fraud, abuse, or other 
issues that result in significant action against an offending party. 
The FAM will be revised in accordance with this rule on the effective 
date of this rule.
    The rule also makes several technical and organizational edits to 
22 CFR 42.32. This rule moves relevant portions of 22 CFR 42.32(d)(2) 
on special immigrant status (specific to INA section 101(a)(27)(D), 8 
U.S.C. 1101(a)(27)(d)) into a new section, 22 CFR 42.34; and 22 CFR 
42.32(d)(2) is amended to include a cross reference to 22 CFR 42.34. 
The new 22 CFR 42.34 expands upon the application process and the 
qualifications for special immigrant status, and more clearly organizes 
these topics.
    This rule also eliminates 22 CFR 42.32(d)(2)(ii), Special immigrant 
status for certain aliens employed at the United States mission in Hong 
Kong, because the window to apply for special immigrant status under 
this section closed on January 1, 2002. The remaining provisions of 22 
CFR 42.32(d)(2), including 22 CFR

[[Page 36324]]

42.32(d)(2)(i) and 22 CFR 42.32(d)(2)(iii)-(vi), are revised and moved 
to 22 CFR 42.34 and consolidated with current guidance drawn from 9 FAM 
502.5-3. Sections 42.32(d)(2)(i)(A) and (C) are moved to section 
42.34(b), and the Department has revised the description of 
accompanying or following-to-join spouses and children to more 
precisely align with INA section 203(d), 8 U.S.C. 1153(d). The 
description of following-to-join spouses and children that is being 
superseded by this rule had stated they were ``entitled to a derivative 
status corresponding to the classification and priority date of the 
beneficiary of the petition.'' This language has been amended to remove 
reference to ``derivative status'' to more accurately reflect INA 
section 203(d), 8 U.S.C. 1153(d), which states that such spouses and 
children if not otherwise entitled to an immigrant status and the 
immediate issuance of a visa, are entitled to the same classification 
and priority date of the beneficiary of the petition. Text formerly in 
section 42.32(d)(2)(i)(B) is now consolidated with the definition of 
``qualifying full-time service'' in section 42.34(c)(1).
    In the definitions section, the rule clarifies what is meant by 
fulfilling 15 years of qualifying full-time service, explaining that it 
can be achieved in a number of ways. For example, working full-time for 
10 years and half-time for at least 10 more would qualify the employee 
for consideration.
    The rule also codifies a definition of ``faithful service,'' which 
is a statutory requirement for special immigrant status under INA 
section 101(a)(27)(D), 8 U.S.C. 1101(a)(27)(D). This definition 
reflects longstanding Department practice and guidance on what 
constitutes ``faithful service,'' and the responsibility of the 
principal officer to determine that the alien's service has been 
faithful. Department guidance that preceded this rule, and will 
continue, instructs principal officers at foreign service post to 
consider employees' disciplinary records and other similar factors in 
making this assessment.
    The Department has also incorporated into the regulation, with some 
changes, guidance at 9 FAM 502.5-3(C)(2)(d)(3)(a)(iii) since March 27, 
2019, explaining that ``exceptional circumstances'' includes situations 
where the United States and the host country have strained relations 
and the employee may be subjected to persecution or pressure to divulge 
information. Because the term ``persecution,'' as defined in certain 
other U.S. legal contexts, does not accurately reflect the Department's 
policy relative to finding exceptional circumstances for this special 
immigrant status, the regulation adopts a standard of ``retribution,'' 
to more accurately reflect the Department's policy and practice in this 
area. The Department does not anticipate this change in terminology 
will affect the application of this exceptional circumstance provision, 
because the Department, for the purposes of this provision, has 
historically considered conduct to be ``persecution'' within the 
meaning of the FAM guidance, as amended, despite not necessarily 
meeting the elements of ``persecution'' as defined in other contexts, 
such as in the asylum context, and as informed by the Board of 
Immigration Appeals and opinions by the Attorney General. Since the 
inception of this program, as a matter of policy, the Department has 
viewed 20 or more years of faithful service as prima facie evidence of 
``exceptional circumstances,'' because the employee has devoted such a 
large portion of his or her career to the U.S. government. This rule 
retains that understanding.
    Section 42.32(d)(2)(iii) is now Sec.  42.34(b)(2). The last 
sentence from 22 CFR 42.32(d)(2)(iv), stating ``In cases described in 
Sec.  42.33(d)(2)(ii), the validity of the petition shall not in any 
case extend beyond January 1, 2002'' is not included in this rule, 
because it no longer applies.
    This rule makes technical, but non-substantive changes to the text 
previously in Sec.  42.32(d)(2)(v), and now in Sec.  42.32(b)(5). 
First, the rule adds ``or designee's'' after ``Secretary of State,'' 
and removes the ``'s'' after ``Secretary of State.'' This rule also re-
phrases the former reference to the Secretary of State's ``approval of 
special immigrant status'' to ``approval of the principal officer's 
recommendation'' for consistency with other references in this rule. 
Additional reorganization includes moving Sec.  42.32(d)(2)(iv) to 
Sec.  42.34(b)(4); Sec.  42.32(d)(2)(vi) to Sec.  42.34(b)(1); and 
Sec.  42.32(d)(2)(vii) to Sec.  42.34(b)(3).

What law or directive authorizes the rulemaking?

    Pursuant to INA section 104(a), 8 U.S.C. 1104(a), the Secretary of 
State may establish regulations necessary for the administration of the 
INA. INA section 101(a)(27)(D), 8 U.S.C. 1101(a)(27)(D), provides for 
the granting of special immigrant status in exceptional circumstances 
to immigrants who are employees, or honorably retired former employees, 
of the U.S. government abroad, or of the American Institute in Taiwan, 
and who have performed faithful service for at least 15 years, as well 
as their accompanying spouse and children. Further, INA section 
101(a)(27)(D), 8 U.S.C. 1101(a)(27)(D), provides that the Secretary of 
State must approve each recommendation and find that it is in the 
national interest to grant special immigrant status. INA section 
203(b)(4), 8 U.S.C. 1153(b)(4), allocates visas to be made available to 
qualified special immigrants each fiscal year.

What problem does the rulemaking address, and how does this rulemaking 
address it?

    Until now, Department regulations have not addressed the criteria 
used by the Department in implementing statutory eligibility standards 
for special immigrant status. Certain criteria that were included in 
Volume 9 of the FAM were subjective or otherwise led to inconsistency 
in recommendations submitted by different overseas posts. This likely 
resulted in uncertainty for special immigrant status applicants and, 
potentially, inconsistent results for similarly situated applicants. 
The Department is revising the eligibility criteria to exclude the most 
subjective of criteria and adding new objective bases for establishing 
exceptional circumstances. The Department aims to promote consistency 
in adjudications of applications for special immigrant status. 
Codifying these objective criteria is intended to increase the 
likelihood that similar service is rewarded similarly around the world 
and increase the fairness and integrity of the special immigrant status 
process through more consistent application of the law. These 
transparent standards will aid the U.S. government abroad in recruiting 
and retaining loyal and committed foreign nationals.

How will the Department implement this rule?

    There is a six-month delay in the effective date of this rule for 
the Department to continue the orderly adjudication of cases that are 
ready or nearly ready for consideration by the principal officer or the 
Secretary, or designee. The new standards will apply to all 
recommendations from the principal officer of a Foreign Service 
establishment submitted to the Department for consideration by the 
Secretary of State, or designee, on or after the effective date. The 
Department considers a recommendation to be submitted when the 
Department has received the principal officer's recommendation through 
the proper submission methods from post. This rulemaking provides 
prospective applicants seeking to qualify under INA section 
101(a)(27)(D), 8 U.S.C.

[[Page 36325]]

1101(a)(27)(D), for special immigrant status notice regarding the 
Department's implementation of the program.

Regulatory Findings

Administrative Procedure Act

    This rule relates to a foreign affairs function, and consequently, 
in accordance with 5 U.S.C. 553(a)(1), it is not subject to the notice-
and-comment rule making procedures set forth in 5 U.S.C. 553. This rule 
affects the U.S. government's ability to recruit and retain locally 
employed staff for its overseas missions. It also clearly and directly 
impacts foreign affairs functions of the United States and 
``implicat[es] matters of diplomacy directly.'' City of N.Y. v. 
Permanent Mission of India to the U.N., 618 F.3d 172, 202 (2d Cir. 
2010).
    This rule involves the Secretary of State's authority to determine 
that it is in the national interest to grant special immigrant status 
to a current or former employee of the U.S. government, a determination 
that involves a wide range of foreign affairs considerations and 
functions, including the U.S. government's bilateral relationship with 
the host country, the impact on the U.S. government's ability to 
recruit qualified personnel in the country, and the impact of special 
immigrant status availability on the willingness of foreign nationals 
to become, and remain as, employees of the U.S. government.
    Special immigrant status eligibility is critical for the U.S. 
government to recruit and retain loyal, valuable local staff outside 
the United States, without which the Department could not efficiently 
function overseas. The Department alone employs approximately 50,000 
local staff at over 200 Foreign Service posts overseas, excluding local 
staff employed on behalf of all the other U.S. government agencies 
operating overseas, for which we lack data.\1\ Because special 
immigrant status is only available to locally employed staff with at 
least fifteen years of faithful service, and under exceptional 
circumstances, potential eligibility encourages employees to remain in 
their jobs and to provide long-term, institutional memory to U.S. 
government agencies abroad. This is particularly essential in countries 
where local staff members face retribution by the host government, 
making it even more challenging to recruit and retain a locally 
employed workforce. The potential for locally employed staff to obtain 
special immigrant status for their spouses and children, in particular, 
is central to the U.S. government's ability to recruit and retain loyal 
and committed foreign nationals to support U.S. missions overseas. 
Consequently, the approval of recommendations for special immigrant 
status, and the promulgation of standards for such approval under the 
Secretary of State's authority in INA section 101(a)(27)(D), 8 U.S.C. 
1101(a)(27)(D), involve foreign affairs functions of the Department of 
State.
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    \1\ Corey R Gill, U.S. Department of State Personnel: Background 
and Selected Issues for Congress, Congressional Research Service, 15 
(May 18, 2018).
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Regulatory Flexibility Act/Executive Order 13272: Small Business

    Because this rule is exempt from notice and comment rulemaking 
under 5 U.S.C. 553, it is exempt from the regulatory flexibility 
analysis requirements set forth by the Regulatory Flexibility Act (5 
U.S.C. 603 and 604). Nonetheless, consistent with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), the Department certifies that this 
rule will not have a significant economic impact on a substantial 
number of small entities.

Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1532, generally requires agencies to prepare a statement before 
proposing any rule that may result in an annual expenditure of $100 
million or more by State, local, or tribal governments, or by the 
private sector. This rule will not result in any such expenditure, nor 
will it significantly or uniquely affect small governments.

Congressional Review Act

    The Office of Information and Regulatory Affairs has determined 
that this rule is not a major rule as defined by 5 U.S.C. 804(2).

Executive Order 12866, 13563, and 13771

    The Office of Information and Regulatory Affairs has determined 
that this is a significant regulatory action under Executive Order 
12866 and has reviewed this document. The Department has also reviewed 
this rulemaking to ensure its consistency with the regulatory 
philosophy and principles set forth in Executive Order 12866. The 
Department has also considered this rule in light of Executive Order 
13563 and affirms that this regulation is consistent with the guidance 
therein. This regulation is de minimis under Executive Order 13771.
    This regulation is being promulgated to avoid unfair variation in 
the administration of the special immigrant status program and to 
ensure consistent application of certain provisions of immigration law 
to principal officer recommendations for special immigrant status at 
U.S. foreign missions around the world. The Department estimates that 
approximately 60 recommendations from a principal officer per year may 
be initially impacted by this rule, because an employee's 
qualifications will not demonstrate the requisite exceptional 
circumstances to qualify for special immigrant status due to the 
changes in standards implemented through this rule. The Department is 
unable to reliably estimate the number of dependents who may also be 
restricted in their ability to qualify for derivative status until 
their spouse or parent is recommended by a principal officer under this 
new rule. Assuming an average of 2 derivatives per principal applicant, 
the rule could affect approximately 180 people worldwide per year. The 
Department derived the estimate of affected principal officer 
recommendations from recent data regarding applicants who previously 
qualified for this program under the exceptional circumstances that are 
being removed or changed under this rule.\2\
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    \2\ Specifically, the Department analyzed a sample of cases 
reviewed from June 2018 to March 2019. Of the 508 principal officer 
recommendations reviewed during that 10-month period, 50 qualified 
for this program solely based on the categories of exceptional 
circumstances that are being removed or changed. The volume of 
applications reviewed during this period was consistent with 
historical precedent. Based on this sample, the Department estimates 
that approximately five potential principal officer recommendations 
per month, or 60 per year, will not be eligible for special 
immigrant status but may have been eligible under the previous 
eligibility criteria. However, the Department has no way to 
anticipate the number of aliens who might qualify in the future 
under the new categories of exceptional circumstances created in 
this regulation.
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    The majority of the affected principal officer recommendations 
related to employee qualifications each year are likely to be delayed 
rather than permanently eliminated, as there are several other 
circumstances through which employees may receive principal officer 
recommendations and qualify for special immigrant status in the future. 
For example, some principal officer recommendations for applicants with 
at least 15 years of service, but less than 20 years of service, could 
previously qualify under the grounds of receiving at least two 
individual honor awards. This rule eliminates this category of 
exceptional circumstance. However, these same principal officer 
recommendations may still qualify under a separate exceptional 
circumstance in the future by reaching 20 years of service. As a 
result, while an

[[Page 36326]]

estimated 60 recommendations from principal officers regarding the 
qualification of applicants may be affected, the Department does not 
expect that a significant number of principal officer recommendations 
will be permanently affected.
    The Department notes that there is a possibility that this rule may 
make it more difficult to hire foreign workers; however, as this 
program will remain intact and the effect is more likely to delay 
rather than eliminate eligibility, the Department expects this impact 
to be minimal. The Department will incur de minimis administrative 
costs to provide clear guidance and messaging regarding this change to 
all posts and to locally employed staff that may be impacted by the 
rule. While some locally employed staff may believe a principal officer 
would likely recommend them for special immigrant status on bases 
eliminated by this rule, there are several other categories, as 
discussed above, through which they may qualify in the future.

Executive Orders 12372 and 13132: Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. The rule will not have federalism 
implications warranting the application of Executive Orders 12372 and 
13132.

Executive Order 12988: Civil Justice Reform

    The Department has reviewed the regulation in light of sections 
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, 
minimize litigation, establish clear legal standards, and reduce 
burden.

Executive Order 13175

    The Department has determined that this rulemaking will not have 
tribal implications, will not impose substantial direct compliance 
costs on Indian tribal governments, and will not pre-empt tribal law. 
Accordingly, the requirements of section 5 of Executive Order 13175 do 
not apply to this rulemaking.

Paperwork Reduction Act

    Special immigrant status applicants complete the DS-1884 (OMB 
Control Number 1405-0082) and the DS-260 (OMB Control Number 1405-0185) 
after the Secretary, or designee, approves the recommendation from the 
principal officer. This rule has no effect on the DS-1884 or the cost 
burdens for individual applicants completing these forms. Rather, this 
rule applies to the adjudication standards applied internally by the 
Department's personnel. The Department believes this rule may initially 
reduce the overall number of DS-1884, Petition to Classify Special 
Immigrant Under INA 203(b)(4), by approximately 60 per year due to a 
decrease either in the number of principal officer recommendations 
submitted to the Department or the number of recommendations approved 
by the Secretary, or his designee. However, many of the affected 
applicants will likely eventually qualify and file both the form DS-
1884 and DS-260. Because this rule is likely to delay, rather than 
prevent, most affected applicants from completing these forms, the 
Department does not believe that this proposal will affect the burden 
of these forms.
    The Department estimates a related reduction in the overall number 
of immigrant visa applications on form DS-260 by approximately 180 per 
year, based on the past average of approximately two derivative family 
members per applicant for this applicant pool. The Department is unable 
to reliably estimate the number of dependents of affected applicants 
for special immigrant status who will not file a DS-260, if the 
principal subsequently is approved for SIV status, because, e.g., they 
will age out of dependent eligibility or they will be unable or 
unwilling to wait.

List of Subjects in 22 CFR Part 42

    Aliens, Immigration, Passports and Visas.

    Accordingly, for the reasons set forth in the preamble, the 
Department of State amends 22 CFR part 42 as follows:

PART 42 VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION 
AND NATIONALITY ACT, AS AMENDED

0
1. The authority citation for part 42 continues to read as follows:

    Authority:  8 U.S.C. 1104 and 1182; Pub. L. 105-277, 112 Stat. 
2681; Pub. L. 108-449, 118 Stat. 3469; The Convention on Protection 
of Children and Co-operation in Respect of Intercountry Adoption 
(done at the Hague, May 29, 1993), S. Treaty Doc. 105-51 (1998), 
1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); 42 U.S.C. 14901-14954 
(Pub. L. 106-279, 114 Stat. 825); 8 U.S.C. 1101 (Pub. L. 111-287, 
124 Stat. 3058); 8 U.S.C. 1154 (Pub. L. 109-162, 119 Stat. 2960); 8 
U.S.C. 1201 (Pub. L. 114-70, 129 Stat. 561).

Subpart D--Immigrants Subject to Numerical Limitations

0
2. In Sec.  42.32, revise paragraph (d)(2) to read as follows:


Sec.  42.32   Employment-based preference immigrants.

* * * * *
    (d) * * *
    (2) See 22 CFR 42.34.
* * * * *

0
3. Add Sec.  42.34 to read as follows:


Sec.  42.34  Special immigrant visas--certain U.S. Government 
employees.

    (a) General. (1) An alien is classifiable under INA 203(b)(4) as a 
special immigrant described in INA 101(a)(27)(D) provided:
    (i) The alien has performed faithful service to the United States 
Government abroad, or of the American Institute in Taiwan, for a total 
of fifteen years, or more;
    (ii) The principal officer of a Foreign Service establishment (or, 
in the case of the American Institute in Taiwan, the Director), 
recommends granting special immigrant status to such alien in 
exceptional circumstances;
    (iii) The Secretary of State, or designee, approves such 
recommendation and finds that it is in the national interest to grant 
such status.
    (b) Petition requirement. An alien who seeks classification as a 
special immigrant under INA 203(b)(4) based on service as an employee 
to the U.S. government abroad or American Institute in Taiwan must file 
a Form DS-1884, Petition to Classify Special Immigrant under INA 
203(b)(4) as an Employee or Former Employee of the U.S. Government 
Abroad, with the Department of State. An alien may file such a petition 
only after, but within one year of, notification from the Department 
that the Secretary of State or designee has approved a recommendation 
from the principal officer that special immigrant status be accorded 
the alien in exceptional circumstances, and has found it in the 
national interest to do so.
    (1) Petition fees. The Secretary of State shall establish a fee for 
the filing of a petition to accord status under INA 203(b)(4) which 
shall be collected following notification that the Secretary of State, 
or designee, has approved the recommendation that the alien be granted 
status as a special immigrant under INA 101(a)(27)(D).
    (2) Establishing priority date. The priority date of an alien 
seeking status under INA 203(b)(4) as a special immigrant described in 
101(a)(27)(D) shall be the date on which the petition

[[Page 36327]]

to accord such classification, the DS-1884, is filed. The filing date 
of the petition is the date on which a properly completed form and the 
required fee are accepted by a Foreign Service post. Pursuant to INA 
203(d), and whether or not named in the petition, the spouse or child 
of an alien classified under INA 203(b)(4), if not otherwise entitled 
to an immigrant status and the immediate issuance of a visa, is 
entitled to the classification and priority date of the beneficiary of 
the petition.
    (3) Delegation of authority to approve petitions. The authority to 
approve petitions to accord status under INA 203(b)(4) to an alien 
described in INA 101(a)(27)(D) is hereby delegated to the chief 
consular officer at the post of recommendation or, in the absence of 
the consular officer, to any alternate approving officer designated by 
the principal officer. Such authority may not be exercised until the 
Foreign Service post has received formal notification of the Secretary 
of State or designee's approval of special immigrant status for the 
petitioning alien.
    (4) Petition validity. Except as noted in this paragraph, the 
validity of a petition approved for classification under INA 203(b)(4) 
shall be six months beyond the date of the Secretary of State's 
approval thereof or the availability of a visa number, whichever is 
later.
    (5) Extension of special immigrant status and petition validity. If 
the principal officer of a post concludes that circumstances in a 
particular case are such that an extension of validity of the Secretary 
of State or designee's approval of the principal officer's 
recommendation or of the petition would be in the national interest, 
the principal officer shall recommend to the Secretary of State or 
designee that such validity be extended for not more than one 
additional year.
    (c) Definitions--(1) Full-time service. An alien must have been 
employed for a total of at least 15 full-time years, or the equivalent 
thereof, in the service of the U.S. government abroad. The number of 
hours per week that qualify an employee as full-time is dependent on 
local law and prevailing practice in the country where the alien is or 
was employed, as reflected in the employment documentation submitted 
with the application for special immigrant status. An alien may qualify 
as a special immigrant under INA 101(a)(27)(D) on the basis of 
employment abroad with one or more than one agency of the U.S. 
government provided the total amount of full-time service with the U.S. 
government is 15 years or more, or the equivalent thereof.
    (2) Faithful service. An alien must have performed faithfully in 
the position held. The principal officer has the primary responsibility 
for determining whether the alien's service meets this requirement. A 
record of disciplinary actions that have been taken against the alien 
does not automatically disqualify the alien. The principal officer must 
assess the disciplinary action in light of the extent and gravity of 
the misconduct and when it occurred and determine whether the record as 
a whole, notwithstanding disciplinary actions, is one of faithful 
service.
    (3) Continuity. The alien's period of service need not have been 
continuous.
    (4) Abroad. The service must have occurred anywhere outside the 
United States, as the term ``United States'' is defined in INA 
101(a)(38).
    (5) Employment at the American Institute in Taiwan. INA 
101(a)(27)(D) permits both present and former employees of the American 
Institute in Taiwan to apply for special immigrant status. An alien's 
service before and after the founding of the American Institute in 
Taiwan is counted toward the minimum 15 years of service requirement.
    (6) Honorably retired. Separations within the meaning of 
``honorably retired'' include, for example, those resulting from 
mandatory or voluntary retirement, reduction-in-force, or resignation 
for personal reasons. Separations not within the meaning of ``honorably 
retired'' would include a termination for cause or an involuntary 
termination or resignation in lieu of a termination for cause.
    (7) Definition of exceptional circumstances. The principal officer 
must determine that an alien demonstrates at least one form of 
``exceptional circumstances'' to support an application for special 
immigrant status.
    (i) Prima facie indicators of exceptional circumstances. In the 
following situations an alien's service with the U.S. government 
generally will be deemed to have met exceptional circumstances.
    (A) Diplomatic relations between the alien's country of nationality 
and the United States have been severed;
    (B) Diplomatic relations between the country in which the alien was 
employed and the United States have been severed;
    (C) The country in which the alien was employed and the United 
States have strained relations and the employee may be subjected to 
retribution by the local, State, Federal, or other official government 
body merely because of association with the U.S. government, or the 
alien may be pressured to divulge information contrary to U.S. national 
interests; or
    (D) The alien was hired as an employee at the Consulate General at 
Hong Kong on or before July 1, 1999.
    (ii) Strong indicators of exceptional circumstances. (A) It is 
believed that continued service to the U.S. government might endanger 
the life of the alien;
    (B) The alien has, fulfilled responsibilities or given service in a 
manner that approaches the heroic;
    (C) The alien has been awarded a global or a regional ``Foreign 
Service National of the Year'' Award;
    (D) The alien has disclosed waste, fraud or abuse, a substantial 
and specific danger to public health or safety, or a violation of law, 
rule, or regulation within the Department or other U.S. government 
agency, if such disclosure results in significant action by the 
Department or other U.S. government agency against an offending party, 
such as termination or severance of a contractual relationship, or 
criminal charges against any person or entity;
    (E) The employee has served the U.S. government for a period of 
twenty years or more.
    (8) Immediate intent to immigrate. (i) The recommendation of the 
principal officer must certify that the employee being recommended is 
prepared to pursue an immigrant visa application within one year of the 
Department's notification to the post of approval of special immigrant 
status and, if the employee is not honorably retired, that the employee 
intends permanent separation from U.S. government employment abroad no 
later than the date of departure for the United States following 
issuance of an immigrant visa.
    (ii) Employees of Hong Kong Consulate General hired on or before 
July 1, 1999, are not required to establish immediate intent to 
immigrate. Employees of the Hong Kong Consulate General who received or 
were approved for special immigrant status before July 1, 1999, also 
may continue employment with the U.S. government.

Carl C. Risch,
Assistant Secretary for Consular Affairs, U.S. Department of State.
[FR Doc. 2020-12344 Filed 6-15-20; 8:45 am]
BILLING CODE 4710-06-P