[Title 8 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2019 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 8
Aliens and Nationality
Revised as of January 1, 2019
Containing a codification of documents of general
applicability and future effect
As of January 1, 2019
Published by the Office of the Federal Register
National Archives and Records Administration as 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 827
Finding Aids:
Table of CFR Titles and Chapters........................ 1139
Alphabetical List of Agencies Appearing in the CFR...... 1159
List of CFR Sections Affected........................... 1169
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 8 CFR 1.1 refers to
title 8, part 1, section
1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
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name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
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collection request.
[[Page vi]]
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
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this volume.
[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
January 1, 2019
[[Page ix]]
THIS TITLE
Title 8--Aliens and Nationality is composed of one volume. This
volume contains chapter I--Department of Homeland Security and chapter
V--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, 2019.
For this volume, Gabrielle E. Burns was Chief Editor. The Code of
Federal Regulations publication program is under the direction of the
John Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 8--ALIENS AND NATIONALITY
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Part
chapter i--Department of Homeland Security.................. 1
chapter v--Executive Office for Immigration Review,
Department of Justice..................................... 1000
[[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................................ 12
[[Page 4]]
3 Executive Office for Immigration Review..... 13
SUBCHAPTER B--IMMIGRATION REGULATIONS
100 Statement of organization................... 14
101 Presumption of lawful admission............. 24
103 Immigration benefits; biometric
requirements; availability of records... 29
109
[Reserved]
204 Immigrant petitions......................... 56
205 Revocation of approval of petitions......... 141
207 Admission of refugees....................... 144
208 Procedures for asylum and withholding of
removal................................. 147
209 Adjustment of status of refugees and aliens
granted asylum.......................... 177
210 Special agricultural workers................ 179
211 Documentary requirements: Immigrants;
waivers................................. 191
212 Documentary requirements: Nonimmigrants;
waivers; admission of certain
inadmissible aliens; parole............. 194
213 Admission of aliens on giving bond or cash
deposit................................. 246
213a Affidavits of support on behalf of
immigrants.............................. 246
214 Nonimmigrant classes........................ 260
215 Controls of aliens departing from the United
States; electronic visa update system... 456
216 Conditional basis of lawful permanent
residence status........................ 465
217 Visa waiver program......................... 474
221 Admission of visitors or students........... 479
223 Reentry permits, refugee travel documents,
and advance parole documents............ 479
231 Arrival and departure manifests............. 481
232 Detention of aliens for physical and mental
examination............................. 483
233 Contracts with transportation lines......... 484
234 Designation of ports of entry for aliens
arriving by civil aircraft.............. 485
235 Inspection of persons applying for admission 487
236 Apprehension and detention of inadmissible
and deportable aliens; removal of aliens
ordered removed......................... 511
237
[Reserved]
238 Expedited removal of aggravated felons...... 522
239 Initiation of removal proceedings........... 525
240 Voluntary departure, suspension of
deportation and special rule
cancellation of removal................. 526
241 Apprehension and detention of aliens ordered
removed................................. 539
[[Page 5]]
242-243
[Reserved]
244 Temporary protected status for nationals of
designated states....................... 566
245 Adjustment of status to that of person
admitted for permanent residence........ 575
245a Adjustment of status to that of persons
admitted for temporary or permanent
resident status under section 245A of
the Immigration and Nationality Act..... 621
246 Rescission of adjustment of status.......... 673
247 Adjustment of status of certain resident
aliens.................................. 675
248 Change of nonimmigrant classification....... 677
249 Creation of records of lawful admission for
permanent residence..................... 680
250 Removal of aliens who have fallen into
distress................................ 681
251 Arrival and departure manifests and lists:
Supporting documents.................... 681
252 Landing of alien crewmen.................... 684
253 Parole of alien crewmen..................... 688
258 Limitations on performance of longshore work
by alien crewmen........................ 690
264 Registration and fingerprinting of aliens in
the United States....................... 693
265 Notices of address.......................... 698
270 Penalties for document fraud................ 698
271 Diligent and reasonable efforts to prevent
the unauthorized entry of aliens by the
owners of railroad lines, international
bridges or toll roads................... 701
273 Carrier responsibilities at foreign ports of
embarkation; reducing, refunding, or
waiving fines under section 273 of the
Act..................................... 701
274 Seizure and forfeiture of conveyances....... 703
274a Control of employment of aliens............. 703
280 Imposition and collection of fines.......... 731
286 Immigration user fee........................ 736
287 Field officers; powers and duties........... 741
289 American Indians born in Canada............. 756
292 Representation and appearances.............. 756
293 Deposit of and interest on cash received to
secure immigration bonds................ 764
299 Immigration forms........................... 764
SUBCHAPTER C--NATIONALITY REGULATIONS
301 Nationals and citizens of the United States
at birth................................ 767
306 Special classes of persons who may be
naturalized: Virgin Islanders........... 767
[[Page 6]]
310 Naturalization authority.................... 768
312 Educational requirements for naturalization. 770
313 Membership in the Communist Party or any
other totalitarian organizations........ 772
315 Persons ineligible to citizenship: Exemption
from military service................... 775
316 General requirements for naturalization..... 776
318 Pending removal proceedings................. 785
319 Special classes of persons who may be
naturalized: Spouses of United States
citizens................................ 786
320 Child born outside the United States and
residing permanently in the United
States; requirements for automatic
acquisition of citizenship.............. 789
322 Child born outside the United States;
requirements for application for
certificate of citizenship.............. 791
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............... 794
325 Nationals but not citizens of the United
States; residence within outlying
possessions............................. 796
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............................ 797
328 Special classes of persons who may be
naturalized: Persons with 1 year of
service in the United States Armed
Forces.................................. 797
329 Special classes of persons who may be
naturalized: Persons with active duty or
certain ready reserve service in the
United States Armed Forces during
specified periods of hostilities........ 798
330 Special classes of persons who may be
naturalized: Seamen..................... 800
331 Alien enemies; naturalization under
specified conditions and procedures..... 801
332 Naturalization administration............... 801
333 Photographs................................. 802
334 Application for naturalization.............. 803
335 Examination on application for
naturalization.......................... 804
336 Hearings on denials of applications for
naturalization.......................... 808
337 Oath of allegiance.......................... 809
338 Certificate of naturalization............... 813
339 Functions and duties of clerks of court
regarding naturalization proceedings.... 814
340 Revocation of naturalization................ 815
[[Page 7]]
341 Certificates of citizenship................. 815
342 Administrative cancellation of certificates,
documents, or records................... 817
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... 819
343a Naturalization and citizenship papers lost,
mutilated, or destroyed; new certificate
in changed name; certified copy of
repatriation proceedings................ 820
343b Special certificate of naturalization for
recognition by a foreign state.......... 821
343c Certifications from records................. 822
349 Loss of nationality......................... 822
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.................. 822
393-499
[Reserved]
[[Page 9]]
SUBCHAPTER A_GENERAL PROVISIONS
PART 1_DEFINITIONS--Table of Contents
Sec.
1.1 Applicability.
1.2 Definitions.
1.3 Lawfully present aliens for purposes of applying for Social Security
benefits.
1.4 Definition of Form I-94
Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 5 U.S.C. 301; Pub. L. 107-
296, 116 Stat. 2135; 6 U.S.C. 1 et seq.
Source: 76 FR 53778, Aug. 29, 2011, unless otherwise noted.
Sec. 1.1 Applicability.
This part further defines some of the terms already described in
section 101 and other sections of the Immigration and Nationality Act
(66 Stat. 163), as amended, and such other enactments as pertain to
immigration and nationality. These terms are used consistently by
components within the Department of Homeland Security including U.S.
Customs and Border Protection, U.S. Immigration and Customs Enforcement,
and U.S. Citizenship and Immigration Services.
Sec. 1.2 Definitions.
As used in this chapter I, the term:
Act or INA means the Immigration and Nationality Act, as amended.
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 applies 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.
Application means benefit request.
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.
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 or her in the
practice of law.
Benefit request means any application, petition, motion, appeal, or
other request relating to an immigration or naturalization benefit,
whether such request is filed on a paper form or submitted in an
electronic format, provided such request is submitted in a manner
prescribed by DHS for such purpose.
Board means the Board of Immigration Appeals within the Executive
Office for Immigration Review, Department of Justice, as defined in 8
CFR 1001.1(e).
Case, unless the context otherwise requires, 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.
CBP means U.S. Customs and Border Protection.
Commissioner means the Commissioner of the Immigration and
Naturalization Service prior to March 1,
[[Page 10]]
2003. Unless otherwise specified, references after that date mean the
Director of U.S. Citizenship and Immigration Services, the Commissioner
of U.S. Customs and Border Protection, and the Director of U.S.
Immigration and Customs Enforcement, as appropriate in the context in
which the term appears.
Day, when computing the period of time for taking any action
provided in this chapter I including the taking of an appeal, shall
include Saturdays, Sundays, and legal holidays, except that when the
last day of the period 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, or a legal holiday.
Department or DHS, unless otherwise noted, means the Department of
Homeland Security.
Director or district director prior to March 1, 2003, means 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: asylum office director; director, field operations; district
director for interior enforcement; district director for services; field
office director; service center director; or special agent in charge.
The terms also mean such other official, including an official in an
acting capacity, within U.S. Citizenship and Immigration Services, U.S.
Customs and Border Protection, U.S. Immigration and Customs Enforcement,
or other component of the Department of Homeland Security who is
delegated the function or authority above for a particular geographic
district, region, or area.
EOIR means the Executive Office for Immigration Review within the
Department of Justice.
Executed or execute means fully completed.
Form when used in connection with a benefit or other request to be
filed with DHS to request an immigration benefit, means a device for the
collection of information in a standard format that may be submitted in
paper format or in an electronic format as prescribed by USCIS on its
official Internet Web site. The term Form followed by an immigration
form number includes an approved electronic equivalent of such form as
may be prescribed by the appropriate component on its official Internet
Web site.
Form instructions means instructions on how to complete and where to
file a benefit request, supporting evidence or fees, or any other
required or preferred document or instrument with a DHS immigration
component. Form instructions prescribed by USCIS or other DHS
immigration components on their official Internet Web sites will be
considered the currently applicable version, notwithstanding paper or
other versions that may be in circulation, and may be issued through
non-form guidance such as appendices, exhibits, guidebooks, or manuals.
ICE means U.S. Immigration and Customs Enforcement.
Immigration judge means an immigration judge as defined in 8 CFR
1001.1(l).
Immigration officer means the following employees of the Department
of Homeland Security, including senior or supervisory officers of such
employees, designated as immigration officers authorized to exercise the
powers and duties of such officer as specified by the Act and this
chapter I: aircraft pilot, airplane pilot, asylum officer, refugee corps
officer, Border Patrol agent, contact representative, deportation
officer, detention enforcement officer, detention officer, fingerprint
specialist, forensic document analyst, general attorney (except with
respect to CBP, only to the extent that the attorney is performing any
immigration function), helicopter pilot, immigration agent
(investigations), immigration enforcement agent, immigration information
officer, immigration inspector, immigration officer, immigration
services officer, investigator, intelligence agent, intelligence
officer, investigative assistant, special agent, other officer or
employee of the Department of Homeland Security or of the United States
as designated by the Secretary of Homeland Security as provided in 8 CFR
2.1.
Lawfully admitted for permanent residence means the status of having
been
[[Page 11]]
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.
Petition. See Benefit request.
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 DHS.
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 DHS forms, by one whose remuneration, if any, is nominal and who
does not hold himself or herself out as qualified in legal matters or in
immigration and naturalization procedure.
Representation before DHS includes practice and preparation as
defined in this section.
Representative refers to a person who is entitled to represent
others as provided in 8 CFR 292.1(a)(2) through (6) and 8 CFR 292.1(b).
Respondent means an alien 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 8 CFR 242.1 (1997) as it existed prior to
April 1, 1997.
Secretary, unless otherwise noted, means the Secretary of Homeland
Security.
Service means U.S. Citizenship and Immigration Services, U.S.
Customs and Border Protection, and/or U.S. Immigration and Customs
Enforcement, as appropriate in the context in which the term appears.
Service counsel means any immigration officer assigned to represent
the Service in any proceeding before an immigration judge or the Board
of Immigration Appeals.
Transition program effective date as used with respect to extending
the immigration laws to the Commonwealth of the Northern Mariana Islands
means November 28, 2009.
USCIS means U.S. Citizenship and Immigration Services.
Sec. 1.3 Lawfully present aliens for purposes of applying
for Social Security benefits.
(a) Definition of the term an ``alien who is lawfully present in the
United States.'' For the purposes of 8 U.S.C. 1611(b)(2) only, an
``alien who is lawfully present in the United States'' means:
(1) A qualified alien as defined in 8 U.S.C. 1641(b);
(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 removal
proceedings under section 240 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 DHS has decided for
humanitarian or other public policy reasons not to initiate removal
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) of 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;
(vii) Aliens who are the spouse or child of a United States citizen
whose visa petition has been approved and
[[Page 12]]
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 a Notice to Appear and non-enforcement of
deportation, exclusion, or removal orders. An alien may not be deemed to
be lawfully present solely on the basis of DHS's decision not to, or
failure to:
(1) Issue a Notice to Appear; or
(2) Enforce an outstanding order of deportation, exclusion or
removal.
Sec. 1.4 Definition of Form I-94
The term Form I-94, as used in this chapter I, includes the
collection of arrival/departure and admission or parole information by
DHS, whether in paper or electronic format, which is made available to
the person about whom the information has been collected, as may be
prescribed by DHS. The following terms, when used in the context of the
Form I-94, are clarified as to their meaning to accommodate the
collection of such information in an electronic format.
(a) The terms ``annotate,'' ``note,'' ``indicate on,'' ``stamp,''
and ``endorse,'' unless used in part 231 of this chapter, include, but
are not limited, to DHS amending, including or completing information in
its electronic record of admission, or arrival/departure. For purposes
of part 231, the term ``endorse'' includes but is not limited to the
submission of electronic departure data to CBP.
(b) The terms ``completed,'' ``completely executed'' and ``completed
and signed'' include, but are not limited to, DHS completing its
collection of information into its electronic record of admission, or
arrival/departure.
(c) The terms ``issuance'' and ``given'' include, but are not
limited to, the creation of an electronic record of admission, or
arrival/departure by DHS following an inspection performed by an
immigration officer.
(d) The term ``original I-94'' includes, but is not limited to, any
printout or electronic transmission of information from DHS systems
containing the electronic record of admission or arrival/departure.
(e) The terms ``present,'' ``presentation,'' or ``submission'' of a
Form I-94, unless they are used in Sec. 231.1 or Sec. 231.2 of this
chapter, include, but are not limited to, providing a printout of
information from DHS systems containing an electronic record of
admission or arrival/departure. For purposes of Sec. 231.1 of this
chapter, the terms ``present'' or ``submission'' of the Form I-94
includes ensuring that each passenger presents him/herself to a CBP
Officer for inspection at a U.S. port-of-entry. For the purposes of
Sec. 231.2 of this chapter, the terms ``present,'' ``submit,'' or
``submission'' of the Form I-94 includes ensuring that each passenger is
available for inspection by a CBP Officer upon request.
(f) The term ``possession'' with respect to a Form I-94 includes,
but is not limited to, obtaining a copy or printout of the record of an
electronic evidence of admission or arrival/departure from the
appropriate CBP systems.
(g) The terms ``surrendering,'' ``turning in a Form I-94,'' and
``departure I-94'' includes, but is not limited to, complying with any
departure controls under 8 CFR part 215 that may be prescribed by CBP in
addition to the submission of electronic departure data to CBP by a
carrier.
[78 FR 18472, Mar. 27, 2013]
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
[[Page 13]]
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 14]]
SUBCHAPTER B_IMMIGRATION REGULATIONS
PART 100_STATEMENT OF ORGANIZATION--Table of Contents
Sec.
100.1 Introduction.
100.2 [Reserved]
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 [Reserved]
Authority: 8 U.S.C. 1103; 8 U.S.C. 1185 note (section 7209 of Pub.
L. 108-458); 8 CFR part 2.
Source: 32 FR 9616, July 4, 1967, unless otherwise noted.
Sec. 100.1 Introduction.
The following components have been delegated authority under the
Immigration and Nationality Act to administer and enforce certain
provisions of the Immigration and Nationality Act and all other laws
relating to immigration: U.S. Customs and Border Protection (CBP), U.S.
Immigration and Customs Enforcement (ICE), and U.S. Citizenship and
Immigration Services (USCIS).
[74 FR 26936, June 5, 2009]
Sec. 100.2 [Reserved]
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 CBP,
ICE or USCIS or any person desiring to make a submittal or request in
connection with such a matter, should communicate either orally or in
writing, with either CBP, ICE or USCIS as appropriate. 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 CBP, ICE or USCIS or the regulations implementing those
laws, follow the instructions on the form as to preparation and place of
submission. Individuals can seek service or assistance from CBP, ICE or
USCIS by visiting the CBP, ICE or USCIS Web site or calling CBP, ICE or
USCIS.
[74 FR 26936, June 5, 2009]
Sec. 100.4 Field offices.
(a) Ports-of-Entry for aliens arriving by vessel or by land
transportation. Subject to the limitations prescribed in this paragraph,
the following places are hereby designated as Ports-of-Entry for aliens
arriving by any means of travel other than aircraft. The designation of
such a Port-of-Entry may be withdrawn whenever, in the judgment of the
Commissioner, such action is warranted. The ports are listed according
to location by districts and are designated either Class A, B, or C.
Class A means that the port is a designated Port-of-Entry for all
aliens. Class B means that the port is a designated Port-of-Entry for
aliens who at the time of applying for admission are exempt from
document requirements by Sec. 212.1(c)(5) of this chapter or who are
lawfully in possession of valid Permanent Resident Cards, and
nonimmigrant aliens who are citizens of Canada or Bermuda or nationals
of Mexico and who at the time of applying for admission are lawfully in
possession of all valid documents required for admission as set forth in
Sec. Sec. 212.1(a) and (c) and 235.1(d) and (e) of this chapter and are
admissible without further arrival documentation or immigration
processing. 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
[[Page 15]]
Hartford, CT (the port at Hartford includes, among others, the port
facilities at Bridgeport, Groton, New Haven, and New London, CT)
Providence, RI (the port of Providence includes, among others, the port
facilities at Davisville, Melville, Newport, Portsmouth, Quonset Point,
Saunderstown, Tiverton, and Warwick, RI; and at Fall River, New Bedford,
and Somerset, MA)
Class C
Newburyport, MA
Plymouth, MA
Portsmouth, NH
Provincetown, MA
Sandwich, MA
Woods Hole, MA
District No. 3--New York, New York
Class A
New York, NY (the port of New York includes, among others, the port
facilities at Bronx, Brooklyn, Buchanan, Manhattan, Montauk, Northport,
Port Jefferson, Queens, Riverhead, Poughkeepsie, the Stapleton
Anchorage-Staten Island, Staten Island, Stoney Point, and Yonkers, NY,
as well as the East Side Passenger Terminal in Manhattan)
District No. 4--Philadelphia, Pennsylvania
Class A
Erie Seaport, PA
Philadelphia, PA (the port of Philadelphia includes, among others, the
port facilities at Delaware City, Lewes, New Castle, and Wilmington, DE;
and at Chester, Essington, Fort Mifflin, Marcus Hook, and Morrisville,
PA)
Pittsburgh, PA
District No. 5--Baltimore, Maryland
Class A
Baltimore, MD
Patuxent River, MD
Class C
Piney Point, MD
Salisbury, MD
District No. 6--Miami, Florida
Class A
Boca Grande, FL
Fernandina, FL
Fort Lauderdale/Port Everglades, FL, Seaport
Fort Pierce, FL
*Jacksonville, FL
Key West, FL
Miami Marine Unit, FL
Panama City, FL
Pensacola, FL
Port Canaveral, FL
St. Augustine, FL
St. Petersburg, FL
*Tampa, FL (includes Fort Myers)
West Palm Beach, FL
Class C
Manatee, FL
Port Dania, FL
Port St. Joe, FL
District No. 7--Buffalo, New York
Class A
Albany, NY
Alexandria Bay, NY
Buffalo, NY
Cape Vincent, NY
Champlain, NY
Chateaugay, NY
Ft. Covington, NY
Massena, NY
Mooers, NY
Niagara Falls, NY (the port of Niagara Falls includes, among others, the
port facilities at Lewiston Bridge, Rainbow Bridge, and Whirlpool
Bridge, NY)
Ogdensburg, NY
Peace Bridge, NY
Rochester, NY
Rouses Point, NY
Thousand Islands Bridge, NY
Trout River, NY
Class B
Cannons Corner, NY
Churubusco, 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
[[Page 16]]
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
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,
[[Page 17]]
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
Class B
Boquillas, TX
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 of Apra Harbor, Guam).
Honolulu, HI, Seaport (including all port facilities on the island of
Oahu).
Rota, the Commonwealth of the Northern Mariana Islands.
Saipan, the Commonwealth of the Northern Mariana Islands.
Tinian, the Commonwealth of the Northern Mariana Islands.
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
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
[[Page 18]]
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)
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,
[[Page 19]]
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
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 (including the Cross Border Xpress (CBX) facility)
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
(b) 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
[[Page 20]]
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
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
[[Page 21]]
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.
Rota, the Commonwealth of the Northern Mariana Islands.
Saipan, the Commonwealth of the Northern Mariana Islands.
Tinian, the Commonwealth of the Northern Mariana Islands.
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
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
[[Page 22]]
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
(c) 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
[[Page 23]]
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
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
[[Page 24]]
West Palm Beach, FL
[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; 74 FR 2833, Jan. 16, 2009; 74 FR 26936, June 5, 2009; 77 FR
75824, Dec. 26, 2012; 77 FR 76352, Dec. 28, 2012; 79 FR 42451, July 22,
2014; 80 FR 75632, Dec. 3, 2015]
Sec. 100.5 Regulations.
The regulations of the Department of Homeland Security, 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.
[32 FR 9616, July 4, 1967, as amended at 74 FR 26936, June 5, 2009]
Sec. 100.6 [Reserved]
PART 101_PRESUMPTION OF LAWFUL ADMISSION--Table of Contents
Sec.
101.1 Presumption of lawful admission.
101.2 Presumption of lawful admission; entry under erroneous name or
other errors.
101.3 Creation of record of lawful permanent resident status for person
born under diplomatic status in the United States.
101.4 Registration procedure.
101.5 Special immigrant status for certain G-4 nonimmigrants.
Authority: 8 U.S.C. 1103, 8 CFR part 2.
Sec. 101.1 Presumption of lawful admission.
A member of the following classes shall be presumed to have been
lawfully admitted for permanent residence even though a record of his
admission cannot be found, except as otherwise provided in this section,
unless he abandoned his lawful permanent resident status or subsequently
lost that status by operation of law:
(a) Prior to June 30, 1906. An alien who establishes that he entered
the United States prior to June 30, 1906.
(b) United States land borders. An alien who establishes that, while
a citizen of Canada or Newfoundland, he entered the United States across
the Canadian border prior to October 1, 1906; an alien who establishes
that while a citizen of Mexico he entered the United States across the
Mexican border prior to July 1, 1908; an alien who establishes that,
while a citizen of Mexico, he entered the United States at the port of
Presidio, Texas, prior to October 21, 1918, and an alien for whom a
record of his actual admission to the United States does not exist but
who establishes that he gained admission to the United States prior to
July 1, 1924, pursuant to preexamination at a United States immigration
station in Canada and that a record of such preexamination exists.
(c) Virgin Islands. An alien who establishes that he entered the
Virgin Islands of the United States prior to July 1, 1938, even though a
record of his admission prior to that date exists as a non-immigrant
under the Immigration Act of 1924.
(d) Asiatic barred zone. An alien who establishes that he is of a
race indigenous to, and a native of a country within, the Asiatic zone
defined in section 3 of the Act of February 5, 1917, as amended, that he
was a member of a class of aliens exempted from exclusion by the
provisions of that section, and that he entered the United States prior
to July 1, 1924, provided that a record of his admission exists.
(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
[[Page 25]]
his accompanying son or daughter under 21 or accompanying wife; a wife
of a United States citizen; a returning laborer; and a person
erroneously admitted as a United States citizen under section 1993 of
the Revised Statutes of the United States, as amended, his father not
having resided in the United States prior to his birth.
(2) On or after July 1, 1924. A Chinese alien for whom there exists
a record of his admission to the United States as a member of one of the
following classes; an alien who establishes that he was readmitted
between July 1, 1924, and December 16, 1943, inclusive, as a returning
Chinese laborer who acquired lawful permanent residence prior to July 1,
1924; a person erroneously admitted between July 1, 1924, and June 6,
1927, inclusive, as a United States citizen under section 1993 of the
Revised Statutes of the United States, as amended, his father not having
resided in the United States prior to his birth; an alien admitted at
any time after June 30, 1924, under section 4 (b) or (d) of the
Immigration Act of 1924; an alien wife of a United States citizen
admitted between June 13, 1930, and December 16, 1943, inclusive, under
section 4(a) of the Immigration Act of 1924; an alien admitted on or
after December 17, 1943, under section 4(f) of the Immigration Act of
1924; an alien admitted on or after December 17, 1943, under section
317(c) of the Nationality Act of 1940, as amended; an alien admitted on
or after December 17, 1943, as a preference or nonpreference quota
immigrant pursuant to section 2 of that act; and a Chinese or Japanese
alien admitted to the United States between July 1, 1924, and December
23, 1952, both dates inclusive, as the wife or minor son or daughter of
a treaty merchant admitted before July 1, 1924, if the husband-father
was lawfully admitted to the United States as a treaty merchant before
July 1, 1924, or, while maintaining another status under which he was
admitted before that date, and his status changed to that of a treaty
merchant or treaty trader after that date, and was maintaining the
changed status at the time his wife or minor son or daughter entered the
United States.
(f) Citizens of the Philippine Islands--(1) Entry prior to May 1,
1934. An alien who establishes that he entered the United States prior
to May 1, 1934, and that he was on the date of his entry a citizen of
the Philippine Islands, provided that for the purpose of petitioning for
naturalization he shall not be regarded as having been lawfully admitted
for permanent residence unless he was a citizen of the Commonwealth of
the Philippines on July 2, 1946.
(2) Entry between May 1, 1934, and July 3, 1946. An alien who
establishes that he entered Hawaii between May 1, 1934, and July 3,
1946, inclusive, under the provisions of the last sentence of section
8(a)(1) of the Act of March 24, 1934, as amended, that he was a citizen
of the Philippine Islands when he entered, and that a record of such
entry exists.
(g) Temporarily admitted aliens. The following aliens who when
admitted expressed an intention to remain in the United States
temporarily or to pass in transit through the United States, for whom
records of admission exist, but who remained in the United States: An
alien admitted prior to June 3, 1921, except if admitted temporarily
under the 9th proviso to section 3 of the Immigration Act of 1917, or as
an accredited official of a foreign government, his suite, family, or
guest, or as a seaman in pursuit of his calling; an alien admitted under
the Act of May 19, 1921, as amended, who was admissible for permanent
residence under that Act notwithstanding the quota limitation's thereof
and his accompanying wife or unmarried son or daughter under 21 who was
admissible for permanent residence under that Act notwithstanding the
quota limitations thereof; and an alien admitted under the Act of May
19, 1921, as amended, who was charged under that Act to the proper quota
at the time of his admission or subsequently and who remained so
charged.
(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
[[Page 26]]
records of contractors of those agencies, and was residing in Guam on
December 24, 1952.
(i) Aliens admitted to Guam. An alien who establishes that he was
admitted to Guam prior to December 24, 1952, by records such as Service
records subsequent to June 15, 1952, records of the Guamanian
Immigration Service, records of the Navy or Air Force, or records of
contractors of those agencies; that he was not excludable under the Act
of February 5, 1917, as amended; and that he continued to reside in Guam
until December 24, 1952, and thereafter was not admitted or readmitted
into Guam as a nonimmigrant, provided that the provisions of this
paragraph shall not apply to an alien who was exempted from the contract
laborer provisions of section 3 of the Immigration Act of February 5,
1917, as amended, through the exercise, expressly or impliedly, of the
4th or 9th provisos to section 3 of that act.
(j) Erroneous admission as United States citizens or as children of
citizens. (1)(i) An alien for whom there exists a record of admission
prior to September 11, 1957, as a United States citizen who establishes
that at the time of such admission he was the child of a United States
citizen parent; he was erroneously issued a United States passport or
included in the United States passport of his citizen parent
accompanying him or to whom he was destined; no fraud or
misrepresentation was practiced by him in the issuance of the passport
or in gaining admission; he was otherwise admissible at the time of
entry except for failure to meet visa or passport requirements; and he
has maintained a residence in the United States since the date of
admission, or (ii) an alien who meets all of the foregoing requirements
except that if he were, in fact, a citizen of the United States a
passport would not have been required, or it had been individually
waived, and was erroneously admitted as a United States citizen by a
Service officer. For the purposes of all of the foregoing, the terms
child and parent shall be defined as in section 101(b) of the
Immigration and Nationality Act, as amended.
(2) An alien admitted to the United States before July 1, 1948, in
possession of a section 4(a) 1924 Act nonquota immigration visa issued
in accordance with State Department regulations, including a child of a
United States citizen after he reached the age of 21, in the absence of
fraud or misrepresentation; a member of a naturalized person's family
who was admitted to the United States as a United States citizen or as a
section 4(a) 1924 Act nonquota immigrant on the basis of that
naturalization, unless he knowingly participated in the unlawful
naturalization of the parent or spouse rendered void by cancellation, or
knew at any time prior to his admission to the United States of the
cancellation; and a member of a naturalized person's family who knew at
any time prior to his admission to the United States of the cancellation
of the naturalization of his parent or spouse but was admitted to the
United States as a United States citizen pursuant to a State Department
or Service determination based upon a then prevailing administrative
view, provided the State Department or Service knew of the cancellation.
[23 FR 9119, Nov. 26, 1958, as amended at 24 FR 2583, Apr. 3, 1959; 24
FR 6476, Aug. 12, 1959; 25 FR 581, Jan. 23, 1960; 31 FR 535, Jan. 15,
1966]
Sec. 101.2 Presumption of lawful admission;
entry under erroneous name or other errors.
An alien who entered the United States as either an immigrant or
nonimmigrant under any of the following circumstances shall be regarded
as having been lawfully admitted in such status, except as otherwise
provided in this part: An alien otherwise admissible whose entry was
made and recorded under other than his full true and correct name or
whose entry record contains errors in recording sex, names of relatives,
or names of foreign places of 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
[[Page 27]]
or visa, or for the purpose of using the passport or visa of another
person or otherwise evading any provision of the immigration laws, and
that the name used at the time of entry was one by which he had been
known for a sufficient length of time prior to making application for a
passport or visa to have permitted the issuing authority or authorities
to have made any necessary investigation concerning him or that his true
identity was known to such officials.
[32 FR 9622, July 4, 1967]
Sec. 101.3 Creation of record of lawful permanent resident status
for person born under diplomatic status in the United States.
(a) Person born to foreign diplomat--(1) Status of person. A person
born in the United States to a foreign diplomatic officer accredited to
the United States, as a matter of international law, is not subject to
the jurisdiction of the United States. That person is not a United
States citizen under the Fourteenth Amendment to the Constitution. Such
a person may be considered a lawful permanent resident at birth.
(2) Definition of foreign diplomatic officer. Foreign diplomatic
officer means a person listed in the State Department Diplomatic List,
also known as the Blue List. It includes ambassadors, ministers,
charg[eacute]s d'affaires, counselors, secretaries and attach[eacute]s
of embassies and legations as well as members of the Delegation of the
Commission of the European Communities. The term also includes
individuals with comparable diplomatic status and immunities who are
accredited to the United Nations or to the Organization of American
States, and other individuals who are also accorded comparable
diplomatic status.
(b) Child born subject to the jurisdiction of the United States. A
child born in the United States is born subject to the jurisdiction of
the United States and is a United States citizen if the parent is not a
``foreign diplomatic officer'' as defined in paragraph (a)(2) of this
section. This includes, for example, a child born in the United States
to one of the following foreign government officials or employees:
(1) Employees of foreign diplomatic missions whose names appear in
the State Department list entitled ``Employees of Diplomatic Missions
Not Printed in the Diplomatic List,'' also known as the White List;
employees of foreign diplomatic missions accredited to the United
Nations or the Organization of American States; or foreign diplomats
accredited to other foreign states. The majority of these individuals
enjoy certain diplomatic immunities, but they are not ``foreign
diplomatic officers'' as defined in paragraph (a)(2) of this section.
The immunities, if any, of their family members are derived from the
status of the employees or diplomats.
(2) Foreign government employees with limited or no diplomatic
immunity such as consular officials named on the State Department list
entitled ``Foreign Consular Officers in the United States'' and their
staffs.
(c) Voluntary registration as lawful permanent resident of person
born to foreign diplomat. Since a person born in the United States to a
foreign diplomatic officer is not subject to the jurisdiction of the
United States, his/her registration as a lawful permanent resident of
the United States is voluntary. The provisions of section 262 of the Act
do not apply to such a person unless and until that person ceases to
have the rights, privileges, exemptions, or immunities which may be
claimed by a foreign diplomatic officer.
(d) Retention of lawful permanent residence. To be eligible for
lawful permanent resident status under paragraph (a) of this section, an
alien must establish that he/she has not abandoned his/her residence in
the United States. One of the tests for retention of lawful permanent
resident status is continuous residence, not continuous physical
presence, in the United States. Such a person will not be considered to
have abandoned his/her residence in the 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
[[Page 28]]
foreign country or countries on one or several occasions.
(Secs. 101(a)(20), 103, 262, 264 of the Immigration and Nationality Act,
as amended; 8 U.S.C. 1101(a)(20), 1103, 1302, 1304)
[47 FR 940, Jan. 8, 1982]
Sec. 101.4 Registration procedure.
The procedure for an application for creation of a record of lawful
permanent residence and a Permanent Resident Card, Form I-551, for a
person eligible for presumption of lawful admission for permanent
residence under Sec. 101.1 or Sec. 101.2 or for lawful permanent
residence as a person born in the United States to a foreign diplomatic
officer under Sec. 101.3 is described in Sec. 264.2 of this chapter.
(Secs. 101(a)(20), 103, 262, 264 of the Immigration and Nationality Act,
as amended; 8 U.S.C. 1101(a)(20), 1103, 1302, 1304)
[47 FR 941, Jan. 8, 1982, as amended at 63 FR 70315, Dec. 21, 1998]
Sec. 101.5 Special immigrant status for certain G-4 nonimmigrants.
(a) Application. An application for adjustment to special immigrant
status under section 101(a)(27)(I) of the INA shall be made on Form I-
485. The application date of the I-485 shall be the date of acceptance
by the Service as properly filed. If the application date is other than
the fee receipt date it must be noted and initialed by a Service
officer. The date of application for adjustment of status is the closing
date for computing the residence and physical presence requirement. The
applicant must have complied with all requirements as of the date of
application.
(b) Documentation. All documents must be submitted in accordance
with Sec. 103.2(b) of this chapter. The application shall be
accompanied by documentary evidence establishing the aggregate residence
and physical presence required. Documentary evidence may include
official employment verification, records of official or personnel
transactions or recordings of events occurring during the period of
claimed residence and physical presence. Affidavits of credible
witnesses may also be accepted. Persons unable to furnish evidence in
their own names may furnish evidence in the names of parents or other
persons with whom they have been living, if affidavits of the parents or
other persons are submitted attesting to the claimed residence and
physical presence. The claimed family relationship to the principle G-4
international organization officer or employee must be substantiated by
the submission of verifiable civil documents.
(c) Residence and physical presence requirements. All applicants
applying under sections 101(a)(27)(I) (i), (ii), and (iii) of the INA
must have resided and been physically present in the United States for a
designated period of time.
For purposes of this section only, an absence from the United States
to conduct official business on behalf of the employing organization, or
approved customary leave shall not be subtracted from the aggregated
period of required residence or physical presence for the current or
former G-4 officer or employee or the accompanying spouse and unmarried
sons or daughters of such officer or employee, provided residence in the
United States is maintained during such absences, and the duty station
of the principle G-4 nonimmigrant continues to be in the United States.
Absence from the United States by the G-4 spouse or unmarried son or
daughter without the principle G-4 shall not be subtracted from the
aggregate period of residence and physical presence if on customary
leave as recognized by the international organization employer. Absence
by the unmarried son or daughter while enrolled in a school outside the
United States will not be counted toward the physical presence
requirement.
(d) Maintenance of nonimmigrant status. Section 101(a)(27)(I) (i),
and (ii) requires the applicant to accrue the required period of
residence and physical presence in the United States while maintaining
status as a G-4 or N nonimmigrant. Section 101(a)(27)(I)(iii) requires
such time accrued only in G-4 nonimmigrant status.
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
[[Page 29]]
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_IMMIGRATION BENEFITS; BIOMETRIC REQUIREMENTS;
AVAILABILITY OF RECORDS--Table of Contents
Subpart A_Applying for Benefits, Surety Bonds, Fees
Sec.
103.1 [Reserved]
103.2 Submission and adjudication of benefit requests.
103.3 Denials, appeals, and precedent decisions.
103.4 Certifications.
103.5 Reopening or reconsideration.
103.6 Surety bonds.
103.7 Fees.
103.8 Service of decisions and other notices.
103.9 Request for further action on an approved benefit request.
103.10 Precedent decisions.
Subpart B_Biometric Requirements
103.16 Collection, use and storage of biometric information.
103.17 Biometric service fee.
103.20-103.36 [Reserved]
Subpart C [Reserved]
Subpart D_Availability of Records
103.38 Genealogy Program.
103.39 Historical Records.
103.40 Genealogical research requests.
103.41 Genealogy request fees.
103.42 Rules relating to the Freedom of Information Act (FOIA) and the
Privacy Act.
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356;
31 U.S.C. 9701; 48 U.S.C. 1806; Pub. L. 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; Pub. L. 112-54, 125 Stat 550.
Source: 40 FR 44481, Sept. 26, 1975, unless otherwise noted.
Subpart A_Applying for Benefits, Surety Bonds, Fees
Sec. 103.1 [Reserved]
Sec. 103.2 Submission and adjudication of benefit requests.
(a) Filing. (1) Preparation and submission. Every form, benefit
request, or other document must be submitted to DHS and executed in
accordance with the form instructions regardless of a provision of 8 CFR
chapter I to the contrary. The form's instructions are hereby
incorporated into the regulations requiring its submission. Each form,
benefit request, or other document must be filed with the fee(s)
required by regulation. Filing fees generally are non-refundable and,
except as otherwise provided in this chapter I, must be paid when the
benefit request is filed.
(2) Signature. An applicant or petitioner must sign his or her
benefit request. 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 benefit request, the
applicant or petitioner, or parent or guardian certifies under penalty
of perjury that the benefit request, 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 a
benefit request that is being filed with the USCIS is one that is either
handwritten or, for benefit requests 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. 1.2 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. A benefit
request 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,
[[Page 30]]
will be notified of the decision. Where a notice of representation is
submitted that is not properly signed, the benefit request 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. All benefit requests must be filed in accordance
with the form instructions.
(7) Benefit requests submitted. (i) USCIS will consider a benefit
request received and will record the receipt date as of the actual date
of receipt at the location designated for filing such benefit request
whether electronically or in paper format.
(ii) A benefit request which is rejected will not retain a filing
date. A benefit request will be rejected if it is not:
(A) Signed with valid signature;
(B) Executed;
(C) Filed in compliance with the regulations governing the filing of
the specific application, petition, form, or request; and
(D) Submitted with the correct fee(s). If a check or other financial
instrument used to pay a fee is returned as unpayable, USCIS will re-
submit the payment to the remitter institution one time. If the
instrument used to pay a fee is returned as unpayable a second time, the
filing will be rejected and a charge will be imposed in accordance with
8 CFR 103.7(a)(2).
(iii) A rejection of a filing with USCIS may not be appealed.
(b) Evidence and processing. (1) Demonstrating eligibility. An
applicant or petitioner must establish that he or she is eligible for
the requested benefit at the time of filing the benefit request and must
continue to be eligible through adjudication. Each benefit request must
be properly completed and filed with all initial evidence required by
applicable regulations and other USCIS instructions. Any evidence
submitted in connection with a benefit request is incorporated into and
considered part of the request.
(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
[[Page 31]]
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 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) Supporting documents. Original or photocopied documents which
are required to support any benefit request must be submitted in
accordance with the form instructions.
(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 benefit request. 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
in accordance with instructions provided by USCIS.
(6) Withdrawal. An applicant or petitioner may withdraw a benefit
request 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 a benefit request
which are in addition to, or in substitution for, those originally made,
shall be filed in the same manner as the original benefit request, 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 benefit
request establishes eligibility, USCIS will approve the benefit request,
except that in any case in which the applicable statute or regulation
makes the approval of a benefit request a matter entrusted to USCIS
discretion, USCIS will approve the benefit request 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 benefit request will be denied
on that basis.
(ii) Initial evidence. If all required initial evidence is not
submitted with the benefit request or does not demonstrate eligibility,
USCIS in its discretion may deny the benefit request 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 benefit request for ineligibility; request more
information or evidence from the applicant or petitioner, to be
submitted within a specified period of time as determined by USCIS; or
notify the applicant or petitioner of its intent to deny the benefit
request 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 communicated by regular or electronic mail and will specify the
type of evidence required, and whether initial evidence or additional
evidence is required, or
[[Page 32]]
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) Appearance for interview or biometrics. USCIS may require any
applicant, petitioner, sponsor, beneficiary, or individual filing a
benefit request, or any group or class of such persons submitting
requests, to appear for an interview and/or biometric collection. USCIS
may require the payment of the biometric services fee in 8 CFR
103.7(b)(1)(i)(C) or that the individual obtain a fee waiver. Such
appearance and fee may also be required by law, regulation, form
instructions, or Federal Register notice applicable to the request type.
USCIS will notify the affected person of the date, time and location of
any required appearance under this paragraph. Any person required to
appear under this paragraph may, before the scheduled date and time of
the appearance, either:
(i) Appear before the scheduled date and time;
(ii) For good cause, request that the biometric services appointment
be rescheduled; or
(iii) Withdraw the benefit request.
(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 a
benefit request 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 a benefit request held in suspense for the submission
of requested initial evidence, except that the applicant or beneficiary
will normally be allowed to remain while a benefit request 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 benefit request 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
benefit request. 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 eligibility at the time of filing. A benefit request shall
be denied where evidence submitted in response to a request for evidence
does not establish filing eligibility at the time the benefit request
was filed. A benefit request shall be denied where any benefit request
upon which it was based was filed subsequently.
[[Page 33]]
(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
benefit request 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
benefit request 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 benefit request. Failure to appear for required
fingerprinting or for a required interview, or to give required
testimony, shall result in the denial of the related benefit request.
(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 benefit request with a
new fee. However, the priority or processing date of a withdrawn or
abandoned benefit request 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 benefit request shall otherwise be material to the new benefit
request.
(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 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
[[Page 34]]
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, or other
registration receipt forms (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. USCIS may authorize withholding
adjudication of a visa petition or other application if USCIS determines
that an investigation has been undertaken involving a matter relating to
eligibility or the exercise of discretion, where applicable, in
connection with the benefit request, and that the disclosure of
information to the applicant or petitioner in connection with the
adjudication of the benefit request would prejudice the ongoing
investigation. If an investigation has been undertaken and has not been
completed within one year of its inception, USCIS will review the matter
and determine whether adjudication of the benefit request should be held
in abeyance for six months or until the investigation is completed,
whichever comes sooner. If, after six months of USCIS's determination,
the investigation has not been completed, the matter will be reviewed
again by USCIS and, if it concludes that more time is needed to complete
the investigation, adjudication may be held in abeyance for up to
another six months. If the investigation is not completed at the end of
that time, USCIS may authorize that adjudication be held in abeyance for
another six months. Thereafter, if USCIS determines it is necessary to
continue to withhold adjudication pending completion of the
investigation, it will review that determination every six months.
(19) Notification. (i) Unrepresented applicants or petitioners.
USCIS will only send original notices and documents evidencing lawful
status based on the approval of a benefit request directly to the
applicant or petitioner if the applicant or petitioner is not
represented.
[[Page 35]]
(ii) Represented applicants or petitioners. (A) Notices. When an
applicant or petitioner is represented, USCIS will send original notices
both to the applicant or petitioner and his or her authorized attorney
or accredited representative. If provided in this title, on the
applicable form, or on form instructions, an applicant or petitioner
filing a paper application or petition may request that all original
notices, such as requests for evidence and notices of decision, only be
sent to the official business address of the applicant's or petitioner's
authorized attorney or accredited representative, as reflected on a
properly executed Notice of Entry of Appearance as Attorney or
Accredited Representative. In such instances, a courtesy copy of the
original notice will be sent to the applicant or petitioner.
(B) Electronic notices. For applications or petitions filed
electronically, USCIS will notify both the applicant or petitioner and
the authorized attorney or accredited representative electronically of
any notices or decisions. Except as provided in paragraph (b)(19)(ii)(C)
of this section, USCIS will not issue paper notices or decisions for
electronically-filed applications or petitions, unless:
(1) The option exists for the applicant or petitioner to request to
receive paper notices or decisions by mail through the U.S. Postal
Service, by indicating this preference in his or her electronic online
account profile in USCIS's electronic immigration system; or
(2) USCIS, in its discretion, determines that issuing a paper notice
or decision for an electronically-filed application or petition is
warranted.
(C) Approval notices with attached Arrival-Departure Records. USCIS
will send an original paper approval notice with an attached Arrival-
Departure Record, reflecting USCIS's approval of an applicant's request
for an extension of stay or change of status, to the official business
address of the applicant's or petitioner's attorney or accredited
representative, as reflected on a properly executed Notice of Entry of
Appearance as Attorney or Accredited Representative or in the address
section of the online representative account profile in USCIS's
electronic immigration system, unless the applicant specifically
requests that the original approval notice with an attached Arrival-
Departure Record be sent directly to his or her mailing address.
(iii) Secure identity documents. USCIS will send secure
identification documents, such as a Permanent Resident Card or
Employment Authorization Document, only to the applicant or self-
petitioner unless the applicant or self-petitioner specifically consents
to having his or her secure identification document sent to the official
business address of the applicant's or self-petitioner's attorney of
record or accredited representative, as reflected on a properly executed
Notice of Entry of Appearance as Attorney or Accredited Representative
or in the address section of the online representative account profile
in USCIS's electronic immigration system.
(c)-(d) [Reserved]
[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 at www.govinfo.gov.
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 36]]
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 must submit 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 must submit the complete appeal including any
supporting brief as indicated in the applicable form instructions 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 37]]
(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 38]]
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 8 CFR 103.10(e).
[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; 76 FR 53781, Aug. 29, 2011]
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 39]]
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 40]]
(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 41]]
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. 103.6 Surety bonds.
(a) Posting of surety bonds--(1) Extension agreements; consent of
surety; collateral security. All surety bonds posted in immigration
cases shall be executed on Form I-352, Immigration Bond, a copy of
which, and any rider attached thereto, shall be furnished the obligor. A
district director is authorized to approve a bond, a formal agreement to
extension of liability of surety, a request for delivery of collateral
security to a duly appointed and undischarged administrator or executor
of the estate of a deceased depositor, and a power of attorney executed
on Form I-312, Designation of Attorney in Fact. All other matters
relating to bonds, including a power of attorney not executed on Form I-
312 and a request for delivery of collateral security to other than the
depositor or his or her approved attorney in fact, shall be forwarded to
the regional director for approval.
(2) Bond riders--(i) General. Bond riders shall be prepared on Form
I-351, Bond Riders, and attached to Form I-352. If a condition to be
included in a bond is not on Form I-351, a rider containing the
condition shall be executed.
(ii) [Reserved]
(b) Acceptable sureties. Either a company holding a certificate from
the Secretary of the Treasury under 6 U.S.C. 6-13 as an acceptable
surety on Federal bonds, or a surety who deposits cash or U.S. bonds or
notes of the class described in 6 U.S.C. 15 and Treasury Department
regulations issued pursuant thereto and which are not redeemable within
1 year from the date they are offered for deposit is an acceptable
surety.
(c) Cancellation--(1) Public charge bonds. A public charge bond
posted for an immigrant shall be cancelled when the alien dies, departs
permanently from the United States or is naturalized, provided the
immigrant did not become a public charge prior to death, departure, or
naturalization. The district director may cancel a public charge bond at
any time if he/she finds that the immigrant is not likely to become a
public charge. A bond may also be cancelled in order to allow
substitution of another bond. A public charge bond shall be cancelled by
the district director upon review following the fifth anniversity of the
admission of the immigrant, provided that the alien has filed Form I-
356, Request for Cancellation of Public Charge Bond, and the district
director finds that the immigrant did not become a public charge 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.
[[Page 42]]
(2) Maintenance of status and departure bonds. When the status of a
nonimmigrant who has violated the conditions of his admission has been
adjusted as a result of administrative or legislative action to that of
a permanent resident retroactively to a date prior to the violation, any
outstanding maintenance of status and departure bond shall be canceled.
If an application for adjustment of status is made by a nonimmigrant
while he is in lawful temporary status, the bond shall be canceled if
his status is adjusted to that of a lawful permanent resident or if he
voluntarily departs within any period granted to him. As used in this
paragraph, the term lawful temporary status means that there must not
have been a violation of any of the conditions of the alien's
nonimmigrant classification by acceptance of unauthorized employment or
otherwise during the time he has been accorded such classification, and
that from the date of admission to the date of departure or adjustment
of status he must have had uninterrupted Service approval of his
presence in the United States in the form of regular extensions of stay
or dates set by which departure is to occur, or a combination of both.
An alien admitted as a nonimmigrant shall not be regarded as having
violated his nonimmigrant status by engaging in employment subsequent to
his proper filing of an application for adjustment of status under
section 245 of the Act and part 245 of this chapter. A maintenance of
status and departure bond posted at the request of an American consular
officer abroad in behalf of an alien who did not travel to the United
States shall be canceled upon receipt of notice from an American
consular officer that the alien is outside the United States and the
nonimmigrant visa issued pursuant to the posting of the bond has been
canceled or has expired.
(3) Substantial performance. Substantial performance of all
conditions imposed by the terms of a bond shall release the obligor from
liability.
(d) Bond schedules--(1) Blanketbonds for departure of visitors and
transits. The amount of bond required for various numbers of
nonimmigrant visitors or transits admitted under bond on Forms I-352
shall be in accordance with the following schedule:
Aliens
1 to 4--$500 each.
5 to 9--$2,500 total bond.
10 to 24--$3,500 total bond.
25 to 49--$5,000 total bond.
50 to 74--$6,000 total bond.
75 to 99--$7,000 total bond.
100 to 124--$8,000 total bond.
125 to 149--$9,000 total bond.
150 to 199--$10,000 total bond.
200 or more--$10,000 plus $50 for each alien over 200.
(2) Blanket bonds for importation of workers classified as
nonimmigrants under section 101(a)(15)(H). The following schedule shall
be employed by district directors when requiring employers or their
agents or representatives to post bond as a condition to importing alien
laborers into the United States from the West Indies, the British Virgin
Islands, or from Canada:
Less than 500 workers--$15 each
500 to 1,000 workers--$10 each
1,000 or more workers--$5 each
A bond shall not be posted for less than $1,000 or for more than $12,000
irrespective of the number of workers involved. Failure to comply with
conditions of the bond will result in the employer's liability in the
amount of $200 as liquidated damages for each alien involved.
(e) Breach of bond. A bond is breached when there has been a
substantial violation of the stipulated conditions. A final
determination that a bond has been breached creates a claim in favor of
the United States which may not be released or discharged by a Service
officer. The district director having custody of the file containing the
immigration bond executed on Form I-352 shall determine whether the bond
shall be declared breached or cancelled, and shall notify the obligor on
Form I-323 or Form I-391 of the decision, and, if
[[Page 43]]
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; 76 FR 53781,
Aug. 29, 2011]
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
USCIS 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 USCIS
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.
Remittances must be made payable in accordance with the guidance
specific to the applicable U.S. Government office when submitting to a
Department of Homeland Security office located outside of the United
States. Remittances to the Board of Immigration Appeals must be made
payable to the ``United States Department of Justice,'' in accordance
with 8 CFR 1003.8. If a remittance in payment of a fee or any other
matter is not honored by the bank or financial institution on which it
is drawn:
(i) A charge of $30.00 will be imposed;
(ii) The provisions of 8 CFR 103.2(a)(7)(ii) apply, no receipt will
be issued, and if a receipt was issued, it is void and the benefit
request loses its receipt date; and
(iii) If the benefit request was approved, the approval may be
revoked upon notice. If the approved benefit request requires multiple
fees, this provision will apply if any fee submitted is not honored.
Other fees that were paid for a benefit request that is revoked under
this provision will be retained and not refunded. A revocation of an
approval because the fee submitted is not honored may be appealed to the
USCIS Administrative Appeals Office, in accordance with 8 CFR 103.3 and
the applicable form instructions.
(b) Amounts of fees--(1) Established fees and charges--(i) USCIS
fees. A request for immigration benefits submitted to USCIS must include
the required fee as established under this section. The fees established
in this section are associated with the benefit, the adjudication, or
the type of request and not solely determined by the form number listed
below. The term ``form'' as defined in 8 CFR part 1, may include a
USCIS-approved electronic equivalent of such form as USCIS may provide
on its official Web site at http://www.uscis.gov.
(A) Certification of true copies: $2.00 per copy.
(B) Attestation under seal: $2.00 each.
(C) Biometric services fee. For capturing, storing, and using
biometric information (Biometric Fee). A service fee of $85 will be
charged to pay for background checks and have their biometric
information captured, stored, and used for any individual who is
required to submit biometric information for an application, petition,
or other request for certain immigration and naturalization benefits
(other than asylum or refugee status) or actions. USCIS will not charge
a biometric services fee when:
(1) An applicant under 8 CFR 204.3 submits to USCIS a written
request for an extension of the approval period of an Application for
Advance Processing of an Orphan Petition (Application), if the request
is submitted before the approval period expires and the applicant has
not yet filed a Petition to Classify
[[Page 44]]
Orphan as an Immediate Relative (Petition) in connection with the
approved Application. The applicant may submit only one extension
request without having to pay an additional biometric services fee. If
the extension of the approval expires before the applicant files an
associated Petition, then the applicant must file either a new
Application or a Petition, and pay a new filing fee and a new biometric
services fee.
(2) The application or petition fee for the associated request has
been waived under paragraph (c) of this section; or
(3) The associated benefit request is one of the following:
(i) Application for Posthumous Citizenship, Form N-644;
(ii) Refugee/Asylee Relative Petition, Form I-730;
(iii) Application for T Nonimmigrant Status, Form I-914;
(iv) Petition for U Nonimmigrant Status, Form I-918;
(v) Application for Naturalization, Form N-400, by an applicant who
meets the requirements of sections 328 or 329 of the Act with respect to
military service under paragraph (b)(1)(i)(WW) of this section;
(vi) Application to Register Permanent Residence or Adjust Status,
Form I-485, from an asylee under paragraph (b)(1)(i)(U) of this section;
(vii) Application To Adjust Status under Section 245(i) of the Act,
Supplement A to Form I-485, from an unmarried child 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 foreign national and who is
qualified for and has applied for voluntary departure under the family
unity program from an asylee under paragraph (b)(1)(i)(V) of this
section; or
(viii) Petition for Amerasian, Widow(er), or Special Immigrant, Form
I-360, meeting the requirements of paragraphs (b)(1)(i)(T)(1), (2), (3)
or (4) of this section.
(D) USCIS Immigrant Fee. For DHS domestic processing and issuance of
required documents after an immigrant visa is issued by the U.S.
Department of State: $220.
(E) Request for a search of indices to historical records to be used
in genealogical research, Form G-1041: $65. The search request fee is
not refundable.
(F) Request for a copy of historical records to be used in
genealogical research, Form G-1041A: $65. USCIS will refund the records
request fee only when it is unable to locate the file previously
identified in response to the index search request.
(G) Application to Replace Permanent Resident Card, Form I-90. For
filing an application for a Permanent Resident Card, Form I-551, to
replace an obsolete card or to replace one lost, mutilated, or
destroyed, or for a change in name: $455.
(H) Application for Replacement/Initial Nonimmigrant Arrival-
Departure Document, Form I-102. For filing a petition for an application
for Arrival/Departure Record Form I-94, or Crewman's Landing Permit Form
I-95, to replace one lost, mutilated, or destroyed: $445.
(I) Petition for a Nonimmigrant Worker, Form I-129. For filing a
petition for a nonimmigrant worker: $460.
(J) Petition for Nonimmigrant Worker in CNMI, Form I-129CW. For an
employer to petition on behalf of one or more beneficiaries: $460 plus a
supplemental CNMI education funding fee of $150 per beneficiary per
year. The CNMI education funding fee cannot be waived.
(K) Petition for Alien Fianc[eacute](e), 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: $535; there is 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 a Petition for
Alien Relative, Form I-130.
(L) Petition for Alien Relative, Form I-130. For filing a petition
to classify status of a foreign national relative for issuance of an
immigrant visa under section 204(a) of the Act: $535.
(M) Application for Travel Document, Form I-131. For filing an
application for travel document:
(1) $135 for a Refugee Travel Document for an individual age 16 or
older.
(2) $105 for a Refugee Travel Document for a child under the age of
16.
(3) $575 for advance parole and any other travel document.
(4) No fee if filed in conjunction with a pending or concurrently
filed Form I-485 with fee that was filed on or after July 30, 2007.
[[Page 45]]
(N) Immigrant Petition for Alien Worker, 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: $700.
(O) Application for Advance Permission to Return to Unrelinquished
Domicile, Form I-191. For filing an application for discretionary relief
under section 212(c) of the Act: $930.
(P) Application for Advance Permission to Enter as a Nonimmigrant,
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: $930. If filed with and processed by CBP: $585.
(Q) Application for Waiver for Passport and/or Visa, Form I-193. For
filing an application for waiver of passport and/or visa: $585.
(R) Application for Permission to Reapply for Admission into the
United States After Deportation or Removal, 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 instead of deportation: $930.
(S) Notice of Appeal or Motion, Form I-290B. For appealing a
decision under the immigration laws in any type of proceeding over which
the Board of Immigration Appeals does not have appellate jurisdiction:
$675. The fee will be the same for appeal of a denial of a benefit
request with one or multiple beneficiaries. There is no fee for an
appeal or motion associated with a denial of a petition for a special
immigrant visa filed by or on behalf of an individual seeking special
immigrant visa or status as an Iraqi or Afghan national who was employed
by or on behalf of the U.S. Government in Iraq or Afghanistan.
(T) Petition for Amerasian, Widow(er), or Special Immigrant, Form I-
360. For filing a petition for an Amerasian, Widow(er), or Special
Immigrant: $435. The following requests are exempt from this fee:
(1) A petition seeking classification as an Amerasian;
(2) A self-petition for immigrant status as a battered or abused
spouse, parent, or child of a U.S. citizen or lawful permanent resident;
or
(3) A petition for special immigrant juvenile status; or
(4) A petition seeking special immigrant visa or status an Iraqi or
Afghan national who was employed by or on behalf of the U.S. Government
in Iraq or Afghanistan.
(U) Application to Register Permanent Residence or Adjust Status,
Form I-485. For filing an application for permanent resident status or
creation of a record of lawful permanent residence:
(1) $1,140 for an applicant 14 years of age or older; or
(2) $750 for an applicant under the age of 14 years who submits the
application concurrently with the Form I-485 of a parent.
(3) There is no fee if an applicant is filing as a refugee under
section 209(a) of the Act.
(V) Application to Adjust Status under Section 245(i) of the Act,
Supplement 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:
$1,000. There is no fee when the applicant is an unmarried child less
than 17 years of age, when the applicant is the spouse, or the unmarried
child less than 21 years of age of an individual with lawful immigration
status and who is qualified for and has applied for voluntary departure
under the family unity program.
(W) Immigrant Petition by Alien Entrepreneur, Form I-526. For filing
a petition for an alien entrepreneur: $3,675.
(X) Application To Extend/Change Nonimmigrant Status, Form I-539.
For filing an application to extend or change nonimmigrant status: $370.
(Y) Petition to Classify Orphan as an Immediate Relative, 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. Only one fee is required when more than one petition is submitted
by the same petitioner on behalf of orphans who are brothers or sisters:
$775.
(Z) Application for Advance Processing of Orphan Petition, Form I-
600A. For
[[Page 46]]
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.):
$775. No fee is charged if Form I-600 has not yet been submitted in
connection with an approved Form I-600A subject to the following
conditions:
(1) The applicant requests an extension of the approval in writing
and the request is received by USCIS before the expiration date of
approval; and
(2) The applicant's home study is updated and USCIS determines that
proper care will be provided to an adopted orphan.
(3) A no fee extension is limited to one occasion. If the Form I-
600A approval extension expires before submission of an associated Form
I-600, then a complete application and fee must be submitted for any
subsequent application.
(AA) Application for Waiver of Ground of Inadmissibility, Form I-
601. For filing an application for waiver of grounds of inadmissibility:
$930.
(BB) Application for Provisional Unlawful Presence Waiver, Form I-
601A. For filing an application for provisional unlawful presence
waiver: $630.
(CC) Application for Waiver of the Foreign Residence Requirement
(under Section 212(e) of the Immigration and Nationality Act, as
Amended), Form I-612. For filing an application for waiver of the
foreign-residence requirement under section 212(e) of the Act: $930.
(DD) Application for Status as a Temporary Resident under Section
245A of the Immigration and Nationality Act, Form I-687. For filing an
application for status as a temporary resident under section 245A(a) of
the Act: $1,130.
(EE) Application for Waiver of Grounds of Inadmissibility under
Sections 245A or 210 of the Immigration and Nationality Act, 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: $715.
(FF) Notice of Appeal of Decision under Sections 245A or 210 of the
Immigration and Nationality Act (or a petition under section 210A of the
Act), Form I-694. For appealing the denial of an application under
sections 210 or 245A of the Act, or a petition under section 210A of the
Act: $890.
(GG) Application to Adjust Status from Temporary to Permanent
Resident (Under Section 245A of Pub. L. 99-603), Form I-698. For filing
an application to adjust status from temporary to permanent resident
(under section 245A of Pub. L. 99-603): $1,670. The adjustment date is
the date of filing of the application for permanent residence or the
applicant's eligibility date, whichever is later.
(HH) Petition to Remove Conditions on Residence, Form I-751. For
filing a petition to remove the conditions on residence based on
marriage: $595.
(II) Application for Employment Authorization, Form I-765. $410. No
fee if filed in conjunction with a pending or concurrently filed Form I-
485 with fee that was filed on or after July 30, 2007.
(JJ) Petition to Classify Convention Adoptee as an Immediate
Relative, Form I-800.
(1) There is no fee for the first Form I-800 filed for a child on
the basis of an approved Application for Determination of Suitability to
Adopt a Child from a Convention Country, Form I-800A, during the
approval period.
(2) If more than one Form I-800 is filed during the approval period
for different children, the fee is $775 for the second and each
subsequent petition submitted.
(3) If the children are already siblings before the proposed
adoption, however, only one filing fee of $775 is required, regardless
of the sequence of submission of the immigration benefit.
(KK) Application for Determination of Suitability to Adopt a Child
from a Convention Country, Form I-800A. For filing an application for
determination of suitability to adopt a child from a convention country:
$775.
(LL) Request for Action on Approved Application for Determination of
Suitability to Adopt a Child from a Convention Country, Form I-800A,
Supplement 3. This filing fee is not charged if Form I-800 has not 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: $385.
[[Page 47]]
(MM) Application for Family Unity Benefits, Form I-817. For filing
an application for voluntary departure under the Family Unity Program:
$600.
(NN) Application for Temporary Protected Status, Form I-821. For
first time applicants: $50. There is no fee for re-registration.
(OO) Application for Action on an Approved Application or Petition,
Form I-824. For filing for action on an approved application or
petition: $465.
(PP) Petition by Entrepreneur to Remove Conditions, Form I-829. For
filing a petition by entrepreneur to remove conditions: $3,750.
(QQ) Application for Suspension of Deportation or Special Rule
Cancellation of Removal (Pursuant to Section 203 of Pub. L. 105-100),
Form I-881:
(1) $285 for adjudication by DHS, 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 will be $570.
(2) $165 for adjudication by the Immigration Court (a single fee of
$165 will be charged whenever applications are filed by two or more
foreign nationals in the same proceedings).
(3) The $165 fee is not required if the Form I-881 is referred to
the Immigration Court by DHS.
(RR) Application for Authorization to Issue Certification for Health
Care Workers, Form I-905: $230.
(SS) Request for Premium Processing Service, Form I-907. $1,410. The
Request for Premium Processing Service fee:
(1) Must be paid in addition to, and in a separate remittance from,
other filing fees.
(2) May be adjusted annually by notice in the Federal Register based
on inflation according to the Consumer Price Index (CPI).
(3) May not be waived.
(TT) Application for Civil Surgeon Designation, Form I-910. For
filing an application for civil surgeon designation: $785. There is no
fee for an application from a medical officer in the U.S. Armed Forces
or civilian physician employed by the U.S. Government who examines
members and veterans of the Armed Forces and their dependents at a
military, Department of Veterans Affairs, or U.S. Government facility in
the United States.
(UU) Application for T Nonimmigrant Status, Form I-914. No fee.
(VV) Application for U Nonimmigrant Status, Form I-918. No fee.
(WW) Application for Regional Center Designation under the Immigrant
Investor Program, Form I-924. For filing an application for regional
center designation under the Immigrant Investor Program: $17,795.
(XX) Annual Certification of Regional Center, Form I-924A. To
provide updated information and certify that an Immigrant Investor
Regional Center has maintained their eligibility: $3,035.
(YY) Petition for Qualifying Family Member of a U-1 Nonimmigrant,
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: $230.
(ZZ) Application to File Declaration of Intention, Form N-300. For
filing an application for declaration of intention to become a U.S.
citizen: $270.
(AAA) Request for a Hearing on a Decision in Naturalization
Proceedings (Under section 336 of the Act), Form N-336. For filing a
request for hearing on a decision in naturalization proceedings under
section 336 of the Act: $700. There is no fee if filed on or after
October 1, 2004, by an applicant who has filed an Application for
Naturalization under sections 328 or 329 of the Act with respect to
military service and whose application has been denied.
(BBB) Application for Naturalization, Form N-400. For filing an
application for naturalization: $640. Except:
(1) The fee for an applicant whose documented income is greater than
150 percent and not more than 200 percent of the Federal poverty level
is $320.
(2) No fee is charged an applicant who meets the requirements of
sections 328 or 329 of the Act with respect to military service.
(CCC) Application to Preserve Residence for Naturalization Purposes,
Form N-470. For filing an application for benefits under section 316(b)
or 317 of the Act: $355.
(DDD) Application for Replacement Naturalization/Citizenship
Document, Form N-565. For filing an application for a certificate of
naturalization or
[[Page 48]]
declaration of intention in place 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:
$555. There is no fee when this application is submitted under 8 CFR
338.5(a) or 343a.1 to request correction of a certificate that contains
an error.
(EEE) Application for Certificate of Citizenship, Form N-600. For
filing an application for a certificate of citizenship under section
309(c) or section 341 of the Act: $1,170. There is no fee for any
application filed by a member or veteran of any branch of the United
States Armed Forces.
(FFF) Application for Citizenship and Issuance of Certificate under
section 322 of the Act, Form N-600K. For filing an application for
citizenship and issuance of certificate under section 322 of the Act:
$1,170.
(GGG) American Competitiveness and Workforce Improvement Act (ACWIA)
fee. For filing certain H-1B petitions as described in 8 CFR
214.2(h)(19) and USCIS form instructions: $1,500 or $750.
(HHH) Fraud detection and prevention fee. For filing certain H-1B
and L petitions, and $150 for H-2B petitions as described in 8 CFR
214.2(h)(19): $500.
(III) 9-11 Response and Biometric Entry-Exit Fee for H-1B Visa. For
certain petitioners who employ 50 or more employees in the United States
if more than 50 percent of the petitioner's employees are in H-1B, L-1A
or L-1B nonimmigrant status: $4,000. Collection of this fee is scheduled
to end on September 30, 2025.
(JJJ) 9-11 Response and Biometric Entry-Exit Fee for L-1 Visa. For
certain petitioners who employ 50 or more employees in the United
States, if more than 50 percent of the petitioner's employees are in H-
1B, L-1A or L-1B nonimmigrant status: $4,500. Collection of this fee is
scheduled to end on September 30, 2025.
(KKK) Application for Entrepreneur Parole (Form I-941). For filing
an application for parole for entrepreneurs: $1200.
(ii) Other DHS immigration fees. The following fees are applicable
to one or more of the immigration components of DHS:
(A) 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 DHS. 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.
(B) 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.
(C) 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, and parents of either husband or wife) shall be $32.00.
(D) Form I-94. For issuance of Arrival/Departure Record at a land
border port-of-entry: $6.00.
(E) 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.
(F) Form I-246. For filing application for stay of deportation under
8 CFR part 243: $155.00.
(G) 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
[[Page 49]]
must be paid to CBP before the application will be processed. The
fingerprint fee may not be waived. For replacement of PORTPASS
documentation during the participation period: $25.00.
(H) 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.
(I) Special statistical tabulations--a charge will be made to cover
the cost of the work involved: DHS Cost.
(J) Set of monthly, semiannual, or annual tables entitled
``Passenger Travel Reports via Sea and Air'': $7.00. Available from DHS,
then the 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.
(K) 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.
(L) Request for authorization for parole of an alien into the United
States: $65.00.
(M) Global Entry. For filing an application for Global Entry--$100.
(N) U.S. Asia-Pacific Economic Cooperation (APEC) Business Travel
Card. For filing an application for the card--$70.
(2) Fees for copies of records. 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) Adjustment to fees. The fees prescribed in paragraph (b)(1)(i)
of this section may be adjusted annually by publication of an inflation
adjustment. The inflation adjustment will be announced by a publication
of a notice in the Federal Register. 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)(i) of this
section, plus the latest inflation adjustment, rounded to the nearest $5
increment.
(4) Fees for immigration court and Board of Immigration Appeals.
Fees for proceedings before immigration judges and the Board of
Immigration Appeals are provided in 8 CFR 1103.7.
(c) Waiver of fees. (1) Eligibility for a fee waiver. Discretionary
waiver of the fees provided in paragraph (b)(1)(i) of this section are
limited as follows:
(i) The party requesting the benefit is unable to pay the prescribed
fee.
(ii) A waiver based on inability to pay is consistent with the
status or benefit sought including requests that require demonstration
of the applicant's ability to support himself or herself, or individuals
who seek immigration status based on a substantial financial investment.
(2) Requesting a fee waiver. To request a fee waiver, a person
requesting an immigration benefit must submit a written request for
permission to have their request processed without payment of a fee with
their benefit request. The request must state the person's belief that
he or she is entitled to or deserving of the benefit requested, the
reasons for his or her inability to pay, and evidence to support the
reasons indicated. There is no appeal of the denial of a fee waiver
request.
(3) USCIS fees that may be waived. No fee relating to any
application, petition, appeal, motion, or request made to U.S.
Citizenship and Immigration Services may be waived except for the
following:
[[Page 50]]
(i) Biometric Fee, except for the biometric fee required for
provisional unlawful presence waivers filed under 8 CFR 212.7(e).
(ii) Application to Replace Permanent Resident Card,
(iii) A Petition for a CNMI-Only Nonimmigrant Transitional Worker,
or an Application to Extend/Change Nonimmigrant Status only in the case
of an alien applying for CW-2 nonimmigrant status,
(iv) Application for Travel Document when filed to request
humanitarian parole,
(v) Application for Advance Permission to Return to Unrelinquished
Domicile,
(vi) Notice of Appeal or Motion, when there is no fee for the
underlying application or petition or that fee may be waived,
(vii) Petition to Remove the Conditions of Residence based on
marriage (Form I-751),
(viii) Application for Employment Authorization,
(ix) Application for Family Unity Benefits,
(x) Application for Temporary Protected Status,
(xi) Application for Suspension of Deportation or Special Rule
Cancellation of Removal (pursuant to section 203 of Pub. L. 105-110),
(xii) Application to File Declaration of Intention, Request for a
Hearing on a Decision in Naturalization Proceedings (under section 336
of the INA),
(xiii) Application for Naturalization,
(xiv) Application to Preserve Residence for Naturalization Purposes,
(xv) Application for Replacement Naturalization/Citizenship
Document,
(xvi) Application for Certificate of Citizenship,
(xvii) Application for Citizenship and Issuance of Certificate under
section 322 of this Act,
(xviii) Any fees associated with the filing of any benefit request
by a VAWA self-petitioner or under sections 101(a)(15)(T) (T visas),
101(a)(15)(U) (U visas), 106 (battered spouses of A, G, E-3, or H
nonimmigrants), 240A(b)(2) (battered spouse or child of a lawful
permanent resident or U.S. citizen), and 244(a)(3) (Temporary Protected
Status), of the Act (as in effect on March 31, 1997); and
(xix) Petition for Nonimmigrant Worker (Form I-129) or Application
to Extend/Change Nonimmigrant Status (Form I-539), only in the case of
an alien applying for E-2 CNMI Investor nonimmigrant status under 8 CFR
214.2(e)(23).
(4) The following fees may be waived only for an alien for which a
determination of their likelihood of becoming a public charge under
section 212(a)(4) of the Act is not required at the time of an
application for admission or adjustment of status.:
(i) Application for Advance Permission to Enter as Nonimmigrant;
(ii) Application for Waiver for Passport and/or Visa;
(iii) Application to Register Permanent Residence or Adjust Status;
(iv) Application for Waiver of Grounds of Inadmissibility.
(5) Immigration Court fees. The 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 can be
found at 8 CFR 1003.8 and 1003.24.
(6) Fees under the Freedom of Information Act (FOIA). FOIA fees may
be waived or reduced if DHS determines that such action would be in the
public interest because furnishing the information can be considered as
primarily benefiting the general public.
(d) Exceptions and exemptions. The Director of USCIS may approve and
suspend exemptions from any fee required by paragraph (b)(1)(i) of this
section or provide that the fee may be waived for a case or specific
class of cases that is not otherwise provided in this section, if the
Director determines that such action would be in the public interest and
the action is consistent with other applicable law. This discretionary
authority will not be delegated to any official other than the USCIS
Deputy Director.
(e) Premium processing service. A person submitting a request to
USCIS may request 15 calendar day processing of certain employment-based
immigration benefit requests.
[[Page 51]]
(1) Submitting a request for premium processing. A request for
premium processing must be submitted on the form prescribed by USCIS,
including the required fee, and submitted to the address specified on
the form instructions.
(2) 15-day limitation. The 15 calendar day processing period begins
when USCIS receives the request for premium processing accompanied by an
eligible employment-based immigration benefit request.
(i) If USCIS cannot reach a final decision on a request for which
premium processing was requested, as evidenced by an approval notice,
denial notice, a notice of intent to deny, or a request for evidence,
USCIS will refund the premium processing service fee, but continue to
process the case.
(ii) USCIS may retain the premium processing fee and not reach a
conclusion on the request within 15 days, and not notify the person who
filed the request, if USCIS opens an investigation for fraud or
misrepresentation relating to the benefit request.
(3) Requests eligible for premium processing.
(i) USCIS will designate the categories of employment-related
benefit requests that are eligible for premium processing.
(ii) USCIS will announce by its official Internet Web site,
currently http://www.uscis.gov, those requests for which premium
processing may be requested, the dates upon which such availability
commences and ends, and any conditions that may apply.
(f) Authority to certify records. The Director of USCIS, or such
officials as he or she may designate, may certify records when
authorized under 5 U.S.C. 552 or any other law to provide such 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 at www.govinfo.gov.
Sec. 103.8 Service of decisions and other notices.
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) Types of service--(1) Routine service. (i) Routine service
consists of mailing the notice by ordinary mail addressed to the
affected party and his or her attorney or representative of record at
his or her last known address, or
(ii) If so requested by a party, advising the party of such notice
by electronic mail and posting the decision to the party's USCIS
account.
(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; or
(v) If so requested by a party, advising the party by electronic
mail and posting the decision to the party's USCIS account.
(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
[[Page 52]]
after the service of a notice upon him and the notice is served by mail,
3 days shall be added to the prescribed period. Service by mail is
complete upon mailing.
(c) When personal service required--(1) Generally. In any proceeding
which is initiated by the Service, with proposed adverse effect, service
of the initiating notice and of notice of any decision by a Service
officer shall be accomplished by personal service, except as provided in
section 239 of the Act.
(2) Persons confined, minors, and incompetents--(i) Persons
confined. If a person is confined in a penal or mental institution or
hospital and is competent to understand the nature of the proceedings
initiated against him, service shall be made both upon him and upon the
person in charge of the institution or the hospital. If the confined
person is not competent to understand, service shall be made only on the
person in charge of the institution or hospital in which he is confined,
such service being deemed service on the confined person.
(ii) Incompetents and minors. In case of mental incompetency,
whether or not confined in an institution, and in the case of a minor
under 14 years of age, service shall be made upon the person with whom
the incompetent or the 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. Redesignated and
amended at 76 FR 53781, Aug. 29, 2011]
Sec. 103.9 Request for further action on an approved benefit request.
(a) Filing a request. A person may request further action on an
approved benefit request as prescribed by the form instructions.
Requests for further action may be submitted with the original benefit
request or following the approval of such benefit.
(b) Processing. The request will be approved if the requester has
demonstrated eligibility for the requested action. There is no appeal
from the denial of such request.
[Redesignated and amended at 76 FR 53781, Aug. 29, 2011]
Sec. 103.10 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) 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.
(c) 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
[[Page 53]]
and service as provided in paragraph (c) of this section or 8 CFR
1003.1(h)(2).
(d) 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).
(e) Precedent decisions. Bound volumes of designated precedent
decisions, entitled ``Administrative Decisions under Immigration and
Nationality Laws of the United States,'' may be purchased from the
Superintendent of Documents, U.S. Government Printing Office. Prior to
publication in volume form, current precedent decisions are available
from the Department of Justice, Executive Office for Immigration
Review's Virtual Law Library at: http://www.justice.gov/eoir/vll/
libindex.html.
(f) [Reserved]
[68 FR 9832, Feb. 28, 2003. Redesignated and amended at 76 FR 53781,
Aug. 29, 2011]
Subpart B_Biometric Requirements
Sec. 103.16 Collection, use and storage of biometric information.
(a) Use of biometric information. An individual may be required to
submit biometric information by law, regulation, Federal Register notice
or the form instructions applicable to the request type or if required
in accordance with 8 CFR 103.2(b)(9). DHS may collect and store for
present or future use, by electronic or other means, the biometric
information submitted by an individual. DHS may use this biometric
information to conduct background and security checks, adjudicate
immigration and naturalization benefits, and perform other functions
related to administering and enforcing the immigration and
naturalization laws.
(b) Individuals residing abroad. An individual who is required to
provide biometric information and who is residing outside of the United
States must report to a DHS-designated location to have his or her
biometric information collected, whether by electronic or non-electronic
means.
[76 FR 53782, Aug. 29, 2011, as amended at 81 FR 73331, Oct. 24, 2016]
Sec. 103.17 Biometric service fee.
(a) Required fees. DHS will charge a fee, as prescribed in 8 CFR
103.7(b)(1), for collecting biometric information at a DHS office, other
designated collection site overseas, or a registered State or local law
enforcement agency designated by a cooperative agreement with DHS to
provide biometric collection services, to conduct required law
enforcement checks, and to maintain this biometric information for reuse
to support other benefit requests. Requests for benefits must be
submitted with the biometric service fee for all individuals who are
required to submit biometric information and a biometric services fee
and who reside in the United States at the time of filing for the
benefit.
(b) Non-payment. If a benefit request is received by DHS without the
correct biometric services fee as provided in the form instructions, DHS
will reject the benefit request.
[76 FR 53782, Aug. 29, 2011, as amended at 81 FR 73332, Oct. 24, 2016]
Sec. Sec. 103.20-103.36 [Reserved]
Subpart C [Reserved]
Subpart D_Availability of Records
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
[[Page 54]]
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 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-
[[Page 55]]
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 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
[[Page 56]]
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. The application and fee must be submitted
in accordance with form instructions.
[73 FR 28031, May 15, 2008, as amended at 76 FR 53782, Aug. 29, 2011]
Sec. 103.42 Rules relating to the Freedom of Information Act (FOIA)
and the Privacy Act.
Immigration-related regulations relating to FOIA and the Privacy Act
are located in 6 CFR part 5.
[76 FR 53782, Aug. 29, 2011]
PART 109 [RESERVED]
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 [Reserved]
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 [Reserved]
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, 1184, 1186a,
1255, 1324a, 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
[[Page 57]]
section 204(a)(1)(A)(ii) of the Act as an immediate relative under
section 201(b) of the Act must file a Form I-360, Petition for
Amerasian, Widow, or Special Immigrant. These petitions are described in
Sec. 204.2;
(3) A spouse or child of an abusive citizen or lawful permanent
resident of the United States self-petitioning under section
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or
204(a)(1)(B)(iii) of the Act for classification as an immediate relative
under section 201(b) of the Act or as a preference immigrant under
section 203(a) of the Act must file a Form I-360, Petition for
Amerasian, Widow, or Special Immigrant. These petitions are described in
Sec. 204.2;
(4) A 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) Proper filing. A petition for alien relative and a petition for
Amerasian, widow(er), or special immigrant must be filed on the form
prescribed by USCIS in accordance with the form instructions, and will
be considered properly filed when the petition is filed in accordance
with 8 CFR 103.2. The filing date of a petition is the date it is
properly filed and received by USCIS. That date will constitute the
priority date.
(c)-(e) [Reserved].
(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.
[[Page 58]]
(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 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
[[Page 59]]
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; 74 FR 26936, June 5,
2009; 76 FR 28305, May 17, 2011]
Sec. 204.2 Petitions for relatives, widows and widowers,
and abused spouses and children.
(a) Petition for a spouse--(1) Eligibility. A United States citizen
or alien admitted for lawful permanent residence may file a petition on
behalf of a spouse.
(i) Marriage within five years of petitioner's obtaining lawful
permanent resident status. (A) A visa petition filed on behalf of an
alien by a lawful permanent resident spouse may not be approved if the
marriage occurred within five years of the petitioner being accorded the
status of lawful permanent resident based upon a prior marriage to a
United States citizen or alien lawfully admitted for permanent
residence, unless:
(1) The petitioner establishes by clear and convincing evidence that
the marriage through which the petitioner gained permanent residence was
not entered into for the purposes of evading the immigration laws; or
(2) The marriage through which the petitioner obtained permanent
residence was terminated through death.
(B) Documentation. The petitioner should submit documents which
cover the period of the prior marriage. The types of documents which may
establish that the prior marriage was not entered into for the purpose
of evading the immigration laws include, but are not limited to:
(1) Documentation showing joint ownership of property;
(2) A lease showing joint tenancy of a common residence;
(3) Documentation showing commingling of financial resources;
(4) Birth certificate(s) of child(ren) born to the petitioner and
prior spouse;
(5) Affidavits sworn to or affirmed by third parties having personal
knowledge of the bona fides of the prior marital relationship. (Each
affidavit must contain the full name and address, date and place of
birth of the person making the affidavit; his or her relationship, if
any, to the petitioner, beneficiary or prior spouse; and complete
information and details explaining how the person acquired his or her
knowledge of the prior marriage. The affiant may be required to testify
before an immigration officer about the information contained in the
affidavit. Affidavits should be supported, if possible, by one or more
types of documentary evidence listed in this paragraph.); or
(6) Any other documentation which is relevant to establish that the
prior marriage was not entered into in order to evade the immigration
laws of the United States.
(C) The petitioner must establish by clear and convincing evidence
that the prior marriage was not entered into for the purpose of evading
the immigration laws. Failure to meet the ``clear and convincing
evidence'' standard will result in the denial of the petition. Such a
denial shall be without prejudice to the filing of a new petition once
the petitioner has acquired five years of lawful permanent residence.
The director may choose to initiate deportation proceedings based upon
information gained through the adjudication of the petition; however,
failure to initiate such proceedings shall not establish that the
petitioner's prior marriage was not entered into for the purpose of
evading the immigration laws. Unless the petition is approved, the
beneficiary shall not be accorded a filing date within the meaning of
section 203(c) of the Act based upon any spousal second preference
petition.
(ii) Fraudulent marriage prohibition. Section 204(c) of the Act
prohibits the approval of a visa petition filed on behalf of an alien
who has attempted or conspired to enter into a marriage for the purpose
of evading the immigration laws. The director will deny a petition for
immigrant visa classification filed on behalf of any alien for whom
there is substantial and probative evidence of such an attempt or
conspiracy, regardless of whether that alien received a benefit through
the attempt or conspiracy. Although it is not necessary that the alien
have been convicted of, or even prosecuted for, the attempt or
conspiracy, the evidence of the attempt
[[Page 60]]
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 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
[[Page 61]]
203(c) of the Act based upon any relative petition filed during the
prohibited period, unless an exemption contained in this part has been
granted. Furthermore, a preference beneficiary shall not be accorded a
priority date prior to November 29, 1990, based upon the approval of a
request for consideration for the bona fide marriage exemption contained
in this part.
(2) Evidence for petition for a spouse. In addition to evidence of
United States citizenship or lawful permanent residence, the petitioner
must also provide evidence of the claimed relationship. A petition
submitted on behalf of a spouse must be accompanied by a recent ADIT-
style photograph of the petitioner, a recent ADIT-style photograph of
the beneficiary, a certificate of marriage issued by civil authorities,
and proof of the legal termination of all previous marriages of both the
petitioner and the beneficiary. However, non-ADIT-style photographs may
be accepted by the district director when the petitioner or beneficiary
reside(s) in a country where such photographs are unavailable or cost
prohibitive.
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If the
beneficiary is in the United States and is eligible for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the petition is denied, the petitioner will
be notified of the reasons for the denial and of the right to appeal in
accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. No alien may be classified as an
immediate relative as defined in section 201(b) of the Act unless he or
she is the direct beneficiary of an approved petition for that
classification. Therefore, a child of an alien approved for
classification as an immediate relative spouse is not eligible for
derivative classification and must have a separate petition filed on his
or her behalf. A child accompanying or following to join a principal
alien under section 203(a)(2) of the Act may be included in the
principal alien's second preference visa petition. The child will be
accorded second preference classification and the same priority date as
the principal alien. However, if the child reaches the age of twenty-one
prior to the issuance of a visa to the principal alien parent, a
separate petition will be required. In such a case, the original
priority date will be retained if the subsequent petition is filed by
the same petitioner. Such retention of priority date will be accorded
only to a son or daughter previously eligible as a derivative
beneficiary under a second preference spousal petition.
(b) Petition by widow or widower of a United States citizen--(1)
Eligibility. A widow or widower of a United States citizen may file a
petition and be classified as an immediate relative under section 201(b)
of the Act if:
(i) He or she had been married for at least two years to a United
States citizen.
(Note: The United States citizen is not required to have had the
status of United 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
[[Page 62]]
be required before the Service will accept secondary evidence. Secondary
evidence will be evaluated for its authenticity and credibility.
Secondary evidence may include:
(i) Such evidence of the marriage and termination of prior marriages
as religious documents, tribal records, census records, or affidavits;
and
(ii) Such evidence of the United States citizen's death as religious
documents, funeral service records, obituaries, or affidavits.
Affidavits submitted as secondary evidence pursuant to paragraphs
(b)(2)(i) and (b)(2)(ii) of this section must be sworn to or affirmed by
people who have personal knowledge of the event to which they attest.
Each affidavit should contain the full name and address, date and place
of birth of the person making the affidavit and his or her relationship,
if any, to the widow or widower. Any such affidavit must contain
complete information and details explaining how knowledge of the event
was acquired.
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If the
widow or widower is in the United States and is eligible for adjustment
of status under section 245 of the Act, the approved petition will be
retained by the Service. If the petition is denied, the widow or widower
will be notified of the reasons for the denial and of the right to
appeal in accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. A child of an alien widow or widower
classified as an immediate relative is eligible for derivative
classification as an immediate relative. Such a child may be included in
the principal alien's immediate relative visa petition, and may
accompany or follow to join the principal alien to the United States.
Derivative benefits do not extend to an unmarried or married son or
daughter of an alien widow or widower.
(c) Self-petition by spouse of abusive citizen or lawful permanent
resident--(1) Eligibility--(i) Basic eligibility requirements. A spouse
may file a self-petition under section 204(a)(1)(A)(iii) or
204(a)(1)(B)(ii) of the Act for his or her classification as an
immediate relative or as a preference immigrant if he or she:
(A) Is the spouse of a citizen or lawful permanent resident of the
United States;
(B) Is eligible for immigrant classification under section
201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship;
(C) Is residing in the United States;
(D) Has resided in the United States with the citizen or lawful
permanent resident spouse;
(E) Has been battered by, or has been the subject of extreme cruelty
perpetrated by, the citizen or lawful permanent resident during the
marriage; or is that parent of a child who has been battered by, or has
been the subject of extreme cruelty perpetrated by, the citizen or
lawful permanent resident during the marriage;
(F) Is a person of good moral character;
(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
[[Page 63]]
filing a new self-petition for immediate relative classification after
the abuser's naturalization, provided the self-petitioner continues to
meet the self-petitioning requirements.
(iv) Eligibility for immigrant classification. A self-petitioner is
required to comply with the provisions of section 204(c) of the Act,
section 204(g) of the Act, and section 204(a)(2) of the Act.
(v) Residence. A self-petition will not be approved if the self-
petitioner is not residing in the United States when the self-petition
is filed. The self-petitioner is not required to be living with the
abuser when the petition is filed, but he or she must have resided with
the abuser in the United States in the past.
(vi) Battery or extreme cruelty. For the purpose of this chapter,
the phrase ``was battered by or was the subject of extreme cruelty''
includes, but is not limited to, being the victim of any act or
threatened act of violence, including any forceful detention, which
results or threatens to result in physical or mental injury.
Psychological or sexual abuse or exploitation, including rape,
molestation, incest (if the victim is a minor), or forced prostitution
shall be considered acts of violence. Other abusive actions may also be
acts of violence under certain circumstances, including acts that, in
and of themselves, may not initially appear violent but that are a part
of an overall pattern of violence. The qualifying abuse must have been
committed by the citizen or lawful permanent resident spouse, must have
been perpetrated against the self-petitioner or the self-petitioner's
child, and must have taken place during the self-petitioner's marriage
to the abuser.
(vii) Good moral character. A self-petitioner will be found to lack
good moral character if he or she is a person described in section
101(f) of the Act. Extenuating circumstances may be taken into account
if the person has not been convicted of an offense or offenses but
admits to the commission of an act or acts that could show a lack of
good moral character under section 101(f) of the Act. A person who was
subjected to abuse in the form of forced prostitution or who can
establish that he or she was forced to engage in other behavior that
could render the person excludable under section 212(a) of the Act would
not be precluded from being found to be a person of good moral
character, provided the person has not been convicted for the commission
of the offense or offenses in a court of law. A self-petitioner will
also be found to lack good moral character, unless he or she establishes
extenuating circumstances, if he or she willfully failed or refused to
support dependents; or committed unlawful acts that adversely reflect
upon his or her moral character, or was convicted or imprisoned for such
acts, although the acts do not require an automatic finding of lack of
good moral character. A self-petitioner's claim of good moral character
will be evaluated on a case-by-case basis, taking into account the
provisions of section 101(f) of the Act and the standards of the average
citizen in the community. If the results of record checks conducted
prior to the issuance 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
[[Page 64]]
denied, however, solely because the spouses are not living together and
the marriage is no longer viable.
(2) Evidence for a spousal self-petition--(i) General. Self-
petitioners are encouraged to submit primary evidence whenever possible.
The Service will consider, however, any credible evidence relevant to
the petition. The determination of what evidence is credible and the
weight to be given that evidence shall be within the sole discretion of
the Service.
(ii) Relationship. A self-petition filed by a spouse must be
accompanied by evidence of citizenship of the United States citizen or
proof of the immigration status of the lawful permanent resident abuser.
It must also be accompanied by evidence of the relationship. Primary
evidence of a marital relationship is a marriage certificate issued by
civil authorities, and proof of the termination of all prior marriages,
if any, of both the self-petitioner and the abuser. If the self-petition
is based on a claim that the self-petitioner's child was battered or
subjected to extreme cruelty committed by the citizen or lawful
permanent resident spouse, the self-petition should also be accompanied
by the child's birth certificate or other evidence showing the
relationship between the self-petitioner and the abused child.
(iii) Residence. One or more documents may be submitted showing that
the self-petitioner and the abuser have resided together in the United
States. One or more documents may also be submitted showing that the
self-petitioner is residing in the United States when the self-petition
is filed. Employment records, utility receipts, school records, hospital
or medical records, birth certificates of children born in the United
States, deeds, mortgages, rental records, insurance policies, affidavits
or any other type of relevant credible evidence of residency may be
submitted.
(iv) Abuse. Evidence of abuse may include, but is not limited to,
reports and affidavits from police, judges and other court officials,
medical personnel, school officials, clergy, social workers, and other
social service agency personnel. Persons who have obtained an order of
protection against the abuser or have taken other legal steps to end the
abuse are strongly encouraged to submit copies of the relating legal
documents. Evidence that the abuse victim sought safe-haven in a
battered women's shelter or similar refuge may be relevant, as may a
combination of documents such as a photograph of the visibly injured
self-petitioner supported by affidavits. Other forms of credible
relevant evidence will also be considered. Documentary proof of non-
qualifying abuses may only be used to establish a pattern of abuse and
violence and to support a claim that qualifying abuse also occurred.
(v) Good moral character. Primary evidence of the self-petitioner's
good moral character is the self-petitioner's affidavit. The affidavit
should be accompanied by a local police clearance or a state-issued
criminal background check from each locality or state in 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
[[Page 65]]
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 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
[[Page 66]]
unmarried son or daughter for preference classification under section
203(a)(2) of the Act.
(2) Evidence to support petition for child or son or daughter. In
addition to evidence of United States citizenship or lawful permanent
resident, the petitioner must also provide evidence of the claimed
relationship.
(i) Primary evidence for a legitimate child or son or daughter. If a
petition is submitted by the mother, the birth certificate of the child
showing the mother's name must accompany the petition. If the mother's
name on the birth certificate is different from her name on the
petition, evidence of the name change must also be submitted. If a
petition is submitted by the father, the birth certificate of the child,
a marriage certificate of the parents, and proof of legal termination of
the parents' prior marriages, if any, issued by civil authorities must
accompany the petition. If the father's name has been legally changed,
evidence of the name change must also accompany the petition.
(ii) Primary evidence for a legitimated child or son or daughter. A
child can be legitimated through the marriage of his or her natural
parents, by the laws of the country or state of the child's residence or
domicile, or by the laws of the country or state of the father's
residence or domicile. If the legitimation is based on the natural
parents' marriage, such marriage must have taken place while the child
was under the age of eighteen. If the legitimation is based on the laws
of the country or state of the child's residence or domicile, the law
must have taken effect before the child's eighteenth birthday. If the
legitimation is based on the laws of the country or state of the
father's residence or domicile, the father must have resided--while the
child was under eighteen years of age--in the country or state under
whose laws the child has been legitimated. Primary evidence of the
relationship should consist of the beneficiary's birth certificate and
the parents' marriage certificate or other evidence of legitimation
issued by civil authorities.
(iii) Primary evidence for an illegitimate child or son or daughter.
If a petition is submitted by the mother, the child's birth certificate,
issued by civil authorities and showing the mother's name, must
accompany the petition. If the mother's name on the birth certificate is
different from her name as reflected in the petition, evidence of the
name change must also be submitted. If the petition is submitted by the
purported father of a child or son or daughter born out of wedlock, the
father must show that he is the natural father and that a bona fide
parent-child relationship was established when the child or son or
daughter was unmarried and under twenty-one years of age. Such a
relationship will be deemed to exist or to have existed where the father
demonstrates or has demonstrated an active concern for the child's
support, instruction, and general welfare. Primary evidence to establish
that the petitioner is the child's natural father is the beneficiary's
birth certificate, issued by civil authorities and showing the father's
name. If the father's name has been legally changed, evidence of the
name change must accompany the petition. Evidence of a parent/child
relationship should establish more than merely a biological
relationship. Emotional and/or financial ties or a genuine concern and
interest by the father for the child's support, instruction, and general
welfare must be shown. There should be evidence that the father and
child actually lived together or that the father held the child out as
being his own, that he provided for some or all of the child's needs, or
that in general the father's behavior evidenced a genuine concern for
the child. The most persuasive evidence for establishing a bona fide
parent/child relationship and financial responsibility by the father is
documentary evidence which was contemporaneous with the events in
question. Such evidence may include, but is not limited to: money order
receipts or cancelled checks showing the father's financial support 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
[[Page 67]]
for the beneficiary; correspondence between the parties; or notarized
affidavits of friends, neighbors, school officials, or other associates
knowledgeable about the relationship.
(iv) Primary evidence for a stepchild. If a petition is submitted by
a stepparent on behalf of a stepchild or stepson or stepdaughter, the
petition must be supported by the stepchild's or stepson's or
stepdaughter's birth certificate, issued by civil authorities and
showing the name of the beneficiary's parent to whom the petitioner is
married, a marriage certificate issued by civil authorities which shows
that the petitioner and the child's natural parent were married before
the stepchild or stepson or stepdaughter reached the age of eighteen;
and evidence of the termination of any prior marriages of the petitioner
and the natural parent of the stepchild or stepson or stepdaughter.
(v) Secondary evidence. When it is established that primary evidence
is not available, secondary evidence may be accepted. To determine the
availability of primary documents, the Service will refer to the
Department of State's Foreign Affairs Manual (FAM). When the FAM shows
that primary documents are generally available in the country at issue
but the petitioner claims that his or her document is unavailable, a
letter from the appropriate registrar stating that the document is not
available will be required before the Service will accept secondary
evidence. Secondary evidence will be evaluated for its authenticity and
credibility. Secondary evidence may take the form of historical
evidence; such evidence must have been issued contemporaneously with the
event which it documents any may include, but is not limited to, medical
records, school records, and religious documents. Affidavits may also by
accepted. When affidavits are submitted, they must be sworn to by
persons who were born at the time of and who have personal knowledge of
the event to which they attest. Any affidavit must contain the affiant's
full name and address, date and place of birth, relationship to the
party, if any, and complete details concerning how the affiant acquired
knowledge of the event.
(vi) Blood tests. The director may require that a specific Blood
Group Antigen Test be conducted of the beneficiary and the beneficiary's
father and mother. In general, blood tests will be required only after
other forms of evidence have proven inconclusive. If the specific Blood
Group Antigen Test is also found not to be conclusive and the director
determines that additional evidence is needed, a Human Leucocyte Antigen
(HLA) test may be requested. Tests will be conducted, at the expense of
the petitioner or beneficiary, by the United States Public Health
Service physician who is authorized overseas or by a qualified medical
specialist designated by the district director. The results of the test
should be reported on Form G-620. Refusal to submit to a Specific Blood
Group Antigen or HLA test when requested may constitute a basis for
denial of the petition, unless a legitimate religious objection has been
established. When a legitimate religious objection is established,
alternate forms of evidence may be considered based upon documentation
already submitted.
(vii) Primary evidence for an adopted child or son or daughter. A
petition may be submitted on behalf of an adopted child or son or
daughter by a United States citizen or lawful permanent resident if the
adoption took place before the beneficiary's sixteenth birthday, and if
the child has been in the legal custody of the adopting parent or
parents and has resided with the adopting parent or parents for at least
two years. A copy of the adoption decree, issued by the civil
authorities, must accompany the petition.
(A) Legal custody means the assumption of responsibility for a minor
by an adult under the laws of the state and under the order or approval
of a court of law or other appropriate government entity. This provision
requires that a legal process involving the courts or other recognized
government entity take place. If the adopting parent was granted legal
custody by the court or recognized governmental entity prior to the
adoption, that period may be counted toward fulfillment of the two-year
legal custody requirement. However, if custody was not granted prior to
the adoption, the adoption decree
[[Page 68]]
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 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
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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 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
[[Page 70]]
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.
(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
[[Page 71]]
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-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
[[Page 72]]
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 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
[[Page 73]]
name change must accompany the petition. Evidence of a parent/child
relationship should establish more than merely a biological
relationship. Emotional and/or financial ties or a genuine concern and
interest by the father for the child's support, instruction, and general
welfare must be shown. There should be evidence that the father and
child actually lived together or that the father held the child out as
being his own, that he provided for some or all of the child's needs, or
that in general the father's behavior evidenced a genuine concern for
the child. The most persuasive evidence for establishing a bona fide
parent/child relationship is documentary evidence which was
contemporaneous with the events in question. Such evidence may include,
but is not limited to: money order receipts or cancelled checks showing
the father's financial support of the beneficiary; the father's income
tax returns; the father's medical or insurance records which include the
petitioner as a dependent; school records for the petitioner;
correspondence between the parties; or notarized affidavits of friends,
neighbors, school officials, or other associates knowledgeable as to the
relationship.
(iv) Primary evidence if petitioner is an adopted son or daughter. A
petition may be submitted for an adoptive parent by a United States
citizen who is twenty-one years of age or older if the adoption took
place before the petitioner's sixteenth birthday and if the two year
legal custody and residence requirements have been met. A copy of the
adoption decree, issued by the civil authorities, must accompany the
petition.
(A) Legal custody means the assumption of responsibility for a minor
by an adult under the laws of the state and under the order or approval
of a court of law or other appropriate government entity. This provision
requires that a legal process involving the courts or other recognized
government entity take place. If the adopting parent was granted legal
custody by the court or recognized governmental entity prior to the
adoption, that period may be counted toward fulfillment of the two-year
legal custody requirement. However, if custody was not granted prior to
the adoption, the adoption decree shall be deemed to mark the
commencement of legal custody. An informal custodial or guardianship
document, such as a sworn affidavit signed before a notary public, is
insufficient for this purpose.
(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.
[[Page 74]]
(4) Derivative beneficiaries. A child or a spouse of a principal
alien who is approved for classification as an immediate relative is not
eligible for derivative classification and must have a separate petition
approved on his or her behalf.
(g) Petition for a brother or sister--(1) Eligibility. Only a United
States citizen who is twenty-one years of age or older may file a
petition of a brother or sister for classification under section
203(a)(4) of the Act.
(2) Evidence to support a petition for brother or sister. In
addition to evidence of United States citizenship, the petitioner must
also provide evidence of the claimed relationship.
(i) Primary evidence if the siblings share a common mother or are
both legitimate children of a common father. If a sibling relationship
is claimed through a common mother, the petition must be supported by a
birth certificate of the petitioner and a birth certificate of the
beneficiary showing a common mother. If the mother's name on one birth
certificate is different from her name as reflected on the other birth
certificate or in the petition, evidence of the name change must also be
submitted. If a sibling relationship is claimed through a common father,
the birth certificates of the beneficiary and petitioner, a marriage
certificate of the parents' and proof of legal termination of the
parents, prior marriage(s), if any, issued by civil authorities must
accompany the petition. If the father's name has been legally changed,
evidence of the name change must also accompany the petition.
(ii) Primary evidence if either or both siblings are legitimated. A
child can be legitimated through the marriage of his or her natural
parents, by the laws of the country or state of the child's residence or
domicile, or by the laws of the country or state of the father's
residence or domicile. If the legitimation is based on the natural
parents' marriage, such marriage must have taken place while the child
was under the age of eighteen. If the legitimation is based on the laws
of the country or state of the child's residence or domicile, the law
must have taken effect before the child's eighteenth birthday. If based
on the laws of the country or state of the father's residence or
domicile, the father must have resided--while the child was under
eighteen years of age--in the country or state under whose laws the
child has been legitimated. Primary evidence of the relationship should
consist of the petitioner's birth certificate, the beneficiary's birth
certificate, and the parents' marriage certificate 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
[[Page 75]]
beneficiary; the father's income tax returns; the father's medical or
insurance records which include the beneficiary as a dependent; school
records for the beneficiary; correspondence between the parties; or
notarized affidavits of friends, neighbors, school officials, or other
associates knowledgeable about the relationship.
(iv) Primary evidence for stepsiblings. If the petition is submitted
on behalf of a brother or sister having a common father, the
relationship of both the petitioner and the beneficiary to the father
must be established as required in paragraphs (g)(2)(ii) and (g)(2)(iii)
of this section. If the petitioner and beneficiary are stepsiblings
through the marriages of their common father to different mothers, the
marriage certificates of the parents and evidence of the termination of
any prior marriages of the parents must be submitted.
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If the
beneficiary is in the United States and is eligible for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the petition is denied, the petitioner will
be notified of the reasons for the denial and of the right to appeal in
accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. A spouse or a child accompanying or
following to join a principal alien beneficiary under this section may
be accorded the same preference and priority date as the principal alien
without the necessity of a separate petition.
(5) Name change. If the name of the petitioner, the beneficiary, or
both has been legally changed, evidence showing the name change (such as
a marriage certificate, a legal document showing the name change, or
other similar evidence) must accompany the petition.
(h) Validity of approved petitions--(1) General. Unless terminated
pursuant to section 203(g) of the Act or revoked pursuant to part 205 of
this chapter, the approval of a petition to classify an alien as a
preference immigrant under paragraphs (a)(1), (a)(2), (a)(3), or (a)(4)
of section 203 of the Act, or as an immediate relative under section
201(b) of the Act, shall remain valid for the duration of the
relationship to the petitioner and of the petitioner's status as
established in the petition.
(2) Subsequent petition by same petitioner for same beneficiary.
When a visa petition has been approved, and subsequently a new petition
by the same petitioner is approved for the same preference
classification on behalf of the same beneficiary, the latter approval
shall be regarded as a reaffirmation or 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
[[Page 76]]
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 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]
[[Page 77]]
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 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.
[[Page 78]]
Competent authority means a court or governmental agency of a
foreign-sending country having jurisdiction and authority to make
decisions in matters of child welfare, including adoption.
Desertion by both parents means that the parents have willfully
forsaken their child and have refused to carry out their parental rights
and obligations and that, as a result, the child has become a ward of a
competent authority in accordance with the laws of the foreign-sending
country.
Disappearance of both parents means that both parents have
unaccountably or inexplicably passed out of the child's life, their
whereabouts are unknown, there is no reasonable hope of their
reappearance, and there has been a reasonable effort to locate them as
determined by a competent authority in accordance with the laws of the
foreign-sending country.
Foreign-sending country means the country of the orphan's
citizenship, or if he or she is not permanently residing in the country
of citizenship, the country of the orphan's habitual residence. This
excludes a country to which the orphan travels temporarily, or to which
he or she travels either as a prelude to, or in conjunction with, his or
her adoption and/or immigration to the United States.
Home study preparer means any party licensed or otherwise authorized
under the law of the State of the orphan's proposed residence to conduct
the research and preparation for a home study, including the required
personal interview(s). This term includes a public agency with authority
under that State's law in adoption matters, public or private adoption
agencies licensed or otherwise authorized by the laws of that State to
place children for adoption, and organizations or individuals licensed
or otherwise authorized to conduct the research and preparation for a
home study, including the required personal interview(s), under the laws
of the State of the orphan's proposed residence. In the case of an
orphan whose adoption has been finalized abroad and whose adoptive
parents reside abroad, the home study preparer includes any party
licensed or otherwise authorized to conduct home studies under the law
of any State of the United States, or any party licensed or otherwise
authorized by the foreign country's adoption authorities to conduct home
studies under the laws of the foreign country.
Incapable of providing proper care means that a sole or surviving
parent is unable to provide for the child's basic needs, consistent with
the local standards of the foreign sending country.
Loss from both parents means the involuntary severance or detachment
of the child from the parents in a permanent manner such as that caused
by a natural disaster, civil unrest, or other calamitous event beyond
the control of the parents, as verified by a competent authority in
accordance with the laws of the foreign sending country.
Orphan petition means Form I-600 (Petition to Classify Orphan as an
Immediate Relative). The petition must be completed in accordance with
the 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
[[Page 79]]
application and at least 25 years old at the time he or she files the
orphan petition. The spouse of the United States citizen may be a
citizen or an alien. An alien spouse must be in lawful immigration
status if residing in the United States.
Separation from both parents means the involuntary severance of the
child from his or her parents by action of a competent authority for
good cause and in accordance with the laws of the foreign-sending
country. The parents must have been properly notified and granted the
opportunity to contest such action. The termination of all parental
rights and obligations must be permanent and unconditional.
Sole parent means the mother when it is established that the child
is illegitimate and has not acquired a parent within the meaning of
section 101(b)(2) of the Act. An illegitimate child shall be considered
to have a sole parent if his or her father has severed all parental
ties, rights, duties, and obligations to the child, or if his or her
father has, in writing, irrevocably released the child for emigration
and adoption. This definition is not applicable to children born in
countries which make no distinction between a child born in or out of
wedlock, since all such children are considered to be legitimate. In all
cases, a sole parent must be incapable of providing proper care as that
term is defined in this section.
Surviving parent means the child's living parent when the child's
other parent is dead, and the child has not acquired another parent
within the meaning of section 101(b)(2) of the Act. In all cases, a
surviving parent must be incapable of providing proper care as that term
is defined in this section.
(c) Supporting documentation for an advanced processing application.
The prospective adoptive parents may file an advanced processing
application before an orphan is identified in order to secure the
necessary clearance to file the orphan petition. Any document not in the
English language must be accompanied by a certified English translation.
(1) Required supporting documentation that must accompany the
advanced processing application. The following supporting documentation
must accompany an advanced processing application at the time of filing:
(i) Evidence of the petitioner's United States citizenship as set
forth in Sec. 204.1(g) and, if the petitioner is married and the
married couple is residing in the United States, evidence of the
spouse's United States citizenship or lawful immigration status;
(ii) A copy of the petitioner's marriage certificate to his or her
spouse, if the petitioner is currently married;
(iii) Evidence of legal termination of all previous marriages for
the petitioner and/or spouse, if previously married; 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, USCIS will fingerprint each member of the married
prospective adoptive couple or the unmarried prospective adoptive
parent, as prescribed in 8 CFR 103.16. USCIS will also fingerprint each
additional adult member of the prospective adoptive parents' household,
as prescribed in 8 CFR 103.16. USCIS may waive the requirement that each
[[Page 80]]
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 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
[[Page 81]]
(4) Evidence that the State of the orphan's proposed residence
allows readoption or provides for judicial recognition of the adoption
abroad if there was an adoption abroad which does not meet statutory
requirements pursuant to section 101(b)(1)(F) of the Act, because the
unmarried petitioner, or married petitioner and spouse, did not
personally see the orphan prior to or during the adoption proceeding
abroad, and/or the adoption abroad was not full and final.
(2) Filing an orphan petition while the advanced processing
application is pending. An orphan petition filed while an advanced
processing application is pending must be filed at the Service office
where the application is pending. The following supporting documentation
must accompany an orphan petition filed while the advanced processing
application is pending:
(i) A photocopy of the fee receipt relating to the advanced
processing application, or if not available, other evidence that the
advanced processing application has been filed, such as a statement
including the date when the application was filed;
(ii) The home study, if not already submitted; and
(iii) The supporting documentation for an orphan petition required
in paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of
this section.
(3) Filing an orphan petition concurrently with the advanced
processing application. A petition filed concurrently with the advanced
processing application must be submitted on Form I-600, completed and
signed in accordance with the form's instructions. (Under this
concurrent procedure, Form I-600 serves as both the Forms I-600A and I-
600, and the prospective adoptive parents should not file a separate
Form I-600A). The following supporting documentation must accompany a
petition filed concurrently with the application under this provision:
(i) The supporting documentation for an advanced processing
application required in paragraph (c) of this section; and
(ii) The supporting documentation for an orphan petition required in
paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of this
section.
(e) Home study requirements. For immigration purposes, a home study
is a process for screening and preparing prospective adoptive parents
who are interested in adopting an orphan from another country. The home
study should be tailored to the particular situation of the prospective
adoptive parents: for example, a family which previously has adopted
children will require different preparation than a family that has no
adopted children. If there are any additional adult members of the
prospective adoptive parents' household, the home study must address
this fact. The home study preparer must interview any additional adult
member of the prospective adoptive parents' household and assess him or
her in light of the requirements of paragraphs (e)(1), (e)(2)(i), (iii),
(iv), and (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
[[Page 82]]
adoptive parents and any adult member of the prospective adoptive
parents' household.
(2) Assessment of the capabilities of the prospective adoptive
parents to properly parent the orphan. The home study must include a
discussion of the following areas:
(i) Assessment of the physical, mental, and emotional capabilities
of the prospective adoptive parents to properly parent the orphan. The
home study preparer must make an initial assessment of how the physical,
mental, and emotional health of the prospective adoptive parents would
affect their ability to properly care for the prospective orphan. If the
home study preparer determines that there are areas beyond his or her
expertise which need to be addressed, he or she shall refer the
prospective adoptive parents to an appropriate licensed professional,
such as a physician, psychiatrist, clinical psychologist, or clinical
social worker for an evaluation. Some problems may not necessarily
disqualify applicants. For example, certain physical limitations may
indicate which categories of children may be most appropriately placed
with certain prospective adoptive parents. Certain mental and emotional
health problems may be successfully treated. The home study must include
the home study preparer's assessment of any such potential problem
areas, a copy of any outside evaluation(s), and the home study
preparer's recommended restrictions, if any, on the characteristics of
the child to be placed in the home. Additionally, the home study
preparer must apply the requirements of this paragraph to each adult
member of the prospective adoptive parents' household.
(ii) Assessment of the finances of the prospective adoptive parents.
The financial assessment must include a description of the income,
financial resources, debts, and expenses of the prospective adoptive
parents. A statement concerning the evidence that was considered to
verify the source and amount of income and financial resources must be
included. Any income designated for the support of one or more children
in the care and custody of the prospective adoptive parents, such as
funds for foster care, or any income designated for the support of
another member of the household must not be counted towards the
financial resources available for the support of a prospective orphan.
The Service will not routinely require a detailed financial statement or
supporting financial documents. However, should the need arise, the
Service reserves the right to ask for such detailed documentation.
(iii) History of abuse and/or violence--(A) Screening for abuse and
violence--(1) Checking available child abuse registries. The home study
preparer must ensure that a check of each prospective adoptive parent
and each adult member of the prospective adoptive parents' household has
been made with available child abuse registries and must include in the
home study the results of the checks including, if applicable, a 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,
[[Page 83]]
this must be noted in the home study; or
(v) If the State does not have a child abuse registry, this must be
noted in the home study.
(2) Inquiring about abuse and violence. The home study preparer must
ask each prospective adoptive parent whether he or she has a history of
substance abuse, sexual or child abuse, or domestic violence, even if it
did not result in an arrest or conviction. The home study preparer must
include each prospective adoptive parent's response to the questions
regarding abuse and violence. Additionally, the home study preparer must
apply the requirements of this paragraph to each adult member of the
prospective adoptive parents' household.
(B) Information concerning history of abuse and/or violence. If the
petitioner and/or spouse, if married, disclose(s) any history of abuse
and/or violence as set forth in paragraph (e)(2)(iii)(A) of this
section, or if, in the absence of such disclosure, the home study
preparer becomes aware of any of the foregoing, the home study report
must contain an evaluation of the suitability of the home for adoptive
placement of an orphan in light of this history. This evaluation must
include information concerning all arrests or convictions or history of
substance abuse, sexual or child abuse, and/or domestic violence and the
date of each occurrence. A certified copy of the documentation showing
the final disposition of each incident, which resulted in arrest,
indictment, conviction, and/or any other judicial or administrative
action, must accompany the home study. Additionally, the prospective
adoptive parent must submit a signed statement giving details including
mitigating circumstances, if any, about each incident. The home study
preparer must apply the requirements of this paragraph to each adult
member of the prospective adoptive parents' household.
(C) Evidence of rehabilitation. If a prospective adoptive parent has
a history of substance abuse, sexual or child abuse, and/or domestic
violence, the home study preparer may, nevertheless, make a favorable
finding if the prospective adoptive parent has demonstrated appropriate
rehabilitation. In such a case, a discussion of such rehabilitation
which demonstrates that the prospective adoptive parent is and will be
able to provide proper care for the orphan must be included in the home
study. Evidence of rehabilitation may include an evaluation of the
seriousness of the arrest(s), conviction(s), or history of abuse, the
number of such incidents, the length of time since the last incident,
and any type of counseling or rehabilitation programs which have been
successfully completed. Evidence of rehabilitation may also be provided
by an appropriate licensed professional, such as a psychiatrist,
clinical psychologist, or clinical social worker. The home study report
must include all facts and circumstances which the home study preparer
has 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
[[Page 84]]
study preparer must ask each prospective adoptive parent whether he or
she previously has been rejected as a prospective adoptive parent or has
been the subject of an unfavorable home study, and must include each
prospective adoptive parent's response to this question in the home
study report. If a prospective adoptive parent previously has been
rejected or found to be unsuitable, the reasons for such a finding must
be set forth as well as the reason(s) why he or she is not being
favorably considered as a prospective adoptive parent. A copy of each
previous rejection and/or unfavorable home study must be attached to the
favorable home study. Additionally, the home study preparer must apply
the requirements of this paragraph to each adult member of the
prospective adoptive parents' household.
(v) Criminal history. The prospective adoptive parents and the adult
members of the prospective adoptive parents' household are expected to
disclose to the home study preparer and the Service any history of
arrest and/or conviction early in the advanced processing procedure.
Failure to do so may result in denial pursuant to paragraph (h)(4) of
this section or in delays. Early disclosure provides the prospective
adoptive parents with the best opportunity to gather and present
evidence, and it gives the home study preparer and the Service the
opportunity to properly evaluate the criminal record in light of such
evidence. When such information is not presented early in the process,
it comes to light when the fingerprint checks are received by the
Service. By that time, the prospective adoptive parents are usually well
into preadoption proceedings of identifying a child and may even have
firm travel plans. At times, the travel plans have to be rescheduled
while the issues raised by the criminal record are addressed. It is in
the best interests of all parties to have any criminal records disclosed
and resolved early in the process.
(3) Living accommodations. The home study must include a detailed
description of the living accommodations where the prospective adoptive
parents currently reside. If the prospective adoptive parents are
planning to move, the home study must include a description of the
living accommodations where the child will reside with the prospective
adoptive parents, if known. If the prospective adoptive parents are
residing abroad at the time of the home study, the home study must
include a description of the living accommodations where the child will
reside in the United States with the prospective adoptive parents, if
known. Each description must include an assessment of the suitability of
accommodations for a child and a determination whether such space meets
applicable State requirements, if any.
(4) Handicapped or special needs orphan. A home study conducted in
conjunction with the proposed adoption of a special needs or handicapped
orphan 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
[[Page 85]]
the State of the orphan's proposed residence to research and prepare
home studies. In the case of an orphan whose adoption was finalized
abroad and whose adoptive parents reside abroad, the home study preparer
must certify that he or she is licensed or otherwise authorized to
conduct home studies under the law of any State of the United States, or
authorized by the adoption authorities of the foreign country to conduct
home studies under the laws of the foreign country. In every case, this
statement must cite the State or country under whose authority the home
study preparer is licensed or authorized, the specific law or regulation
authorizing the preparer to conduct home studies, the license number, if
any, and the expiration date, if any, of this authorization or license.
(8) Review of home study. If the prospective adoptive parents reside
in a State which requires the State to review the home study, such a
review must occur and be documented before the home study is submitted
to the Service. If the prospective adoptive parents reside abroad, an
appropriate public or private adoption agency licensed, or otherwise
authorized, by any State of the United States to place children for
adoption, must review and favorably recommend the home study before it
is submitted to the Service.
(9) Home study updates and amendments--(i) Updates. If the home
study is more than six months old at the time it would be submitted to
the Service, the prospective adoptive parents must ensure that it is
updated by a home study preparer before it is submitted to the Service.
Each update must include screening in accordance with paragraphs
(e)(2)(iii) (A) and (B) of this section.
(ii) Amendments. If there have been any significant changes, such as
a change in the residence of the prospective adoptive parents, marital
status, criminal history, financial resources, and/or the addition of
one or more children or other dependents to the family, the prospective
adoptive parents must ensure that the home study is amended by a home
study preparer to reflect any such changes. If the orphan's proposed
State of residence has changed, the home study amendment must contain a
recommendation in accordance with paragraph (e)(8) of this section, if
required by State law. Any preadoption requirements of the new State
must be complied with in the case of an orphan coming to the United
States to be adopted.
(10) ``Grandfather'' provision for home study. A home study properly
completed in conformance with the regulations in force prior to
September 30, 1994, shall be considered acceptable if submitted to the
Service within 90 days of September 30, 1994. Any such home study
accepted under this ``grandfather'' provision must include screening in
accordance with paragraphs (e)(2)(iii) (A) and (B) of this section.
Additionally, any such home study 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
[[Page 86]]
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. Form I-600, Petition to Classify Orphan as an
Immediate Relative, and Form I-600A, Application for Advanced Processing
of Orphan Petition, must be filed in accordance with the instructions on
the form.
(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 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 USCIS Director, or an officer designated by the USCIS
Director, determines that the ability of a prospective adoptive parent
to timely file a petition 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 advance processing request, either in an individual case
or for a class of cases. An extension of the validity of the advance
processing request may be subject to such conditions as the USCIS
Director, or officer designated by the USCIS Director may establish.
(4) Advanced processing application denied for failure to disclose
history of abuse and/or violence, or for failure to
[[Page 87]]
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 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
[[Page 88]]
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 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
[[Page 89]]
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
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; 74 FR 26936, June 5, 2009; 76 FR 53782, Aug. 29, 2011]
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 in accordance with the
instructions on the form.
(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
[[Page 90]]
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 8 CFR 103.16. 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, without the previously submitted documentation,
to the Service office having jurisdiction over the prior petition.
(2) Final processing. Upon submission of the documentary evidence
required in paragraph (f)(1) of this section, the director shall
complete the adjudication of the petition.
(e) One-stage processing. If all documentary evidence required in
paragraph (f)(1) of this section is available when the petition is
initially filed, the petitioner may submit it at that time. In that
case, the director shall consider all evidence without using the two-
stage processing procedure set out in paragraph (d) of this section.
(f) Evidence to support a petition for an Amerasian child of a
United States citizen--(1) Two-stage processing of petition--(i)
Preliminary processing. (A) A petition filed by or on behalf of an
Amerasian under this section must be accompanied by evidence that the
beneficiary was born in Korea, Vietnam, Laos, Kampuchea, or Thailand
after December 31, 1950, and before October 22, 1982. If the beneficiary
was born in Vietnam, the beneficiary's ID card must be submitted, if
available. If it is not available, the petitioner must submit an
affidavit explaining why the beneficiary's ID card is not available.
Evidence that the beneficiary was fathered by a United States citizen
must also be presented. The putative father must have been a United
States citizen at the time of the beneficiary's birth or at the time of
the father's death, if his death occurred prior to the beneficiary's
birth. It is not required that the name of the father be given. Such
evidence may include, but need not be limited to:
(1) The beneficiary's birth and baptismal certificates or other
religious documents;
(2) Local civil records;
(3) Affidavits from knowledgeable witnesses;
(4) Letters or evidence of financial support from the beneficiary's
putative father;
(5) Photographs of the beneficiary's putative father, especially
with the beneficiary; and
(6) Evidence of the putative father's United States citizenship.
(B) The beneficiary's photograph must be submitted.
(C) The beneficiary's marriage certificate, if married, and evidence
of the termination of any previous marriages, if applicable, is
required.
(D) If the beneficiary is under eighteen years of age, a written
irrevocable release for emigration must be received from the
beneficiary's mother or legal guardian. The mother or legal guardian
must authorize the placing agency or agencies to make decisions
necessary for the child's immediate care until the sponsor receives
custody. Interim costs are the responsibility of the sponsor. The mother
or legal guardian must show an understanding of the effects of the
release and state before signing the release whether any money was paid
or any coercion was used. The signature of the mother or legal guardian
must be authenticated by the local registrar, the court of minors, or a
United States immigration or consular officer. The release must include
the mother's or legal guardian's full name, date and place of birth, and
current or permanent address.
(ii) Final processing. (A) If the director notifies the petitioner
that all preliminary processing has been completed in a satisfactory
manner, the petitioner must then submit Form I-361, Affidavit of
Financial Support and Intent to Petition for Legal Custody for Public
Law 97-359 Amerasian, executed by the beneficiary's sponsor, along with
the documentary evidence of the sponsor's financial ability required by
that form. If the beneficiary is under eighteen years of age, the
sponsor must agree to petition the court having jurisdiction, within
thirty days of the beneficiary's arrival in the United
[[Page 91]]
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 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.
[[Page 92]]
(2) One-stage processing of petition. If the petitioner chooses to
have the petition processed under the one-stage processing procedure
described in paragraph (e) of this section, the petitioner must submit
all evidence required by paragraph (f)(1) of this section.
(g) Decision--(1) General. The director shall notify the petitioner
of the decision and, if the petition is denied, of the reasons for the
denial. If the petition is denied, the petitioner may appeal the
decision under part 103 of this chapter.
(2) Denial upon completion of preliminary processing. The director
may deny the petition upon completion of the preliminary processing
under paragraph (d) of this section for:
(i) Failure to establish that there is reason to believe the alien
was fathered by a United States citizen; or
(ii) Failure to meet the sponsorship requirements if the
fingerprints of the sponsor, required in paragraph (f)(1) of this
section, were submitted during the preliminary processing and the
completed background check of the sponsor discloses adverse information
resulting in a finding that the sponsor is not of good moral character.
(3) Denial upon completion of final processing. The director may
deny the petition upon completion of final processing if it is
determined that the sponsorship requirements, or one or more of the
other applicable requirements, have not been met.
(4) Denial upon completion of one-stage processing. The director may
deny the petition upon completion of all processing if any of the
applicable requirements in a case being processed under the one-stage
processing described in paragraph (e) of this section are not met.
(h) Classification of Public Law 97-359 Amerasian. If the petition
is approved the beneficiary is classified as follows:
(1) An unmarried beneficiary under the age of twenty-one is
classified as the child of a United States citizen under section 201(b)
of the Act;
(2) An unmarried beneficiary twenty-one years of age or older is
classified as the unmarried son or daughter of a United States citizen
under section 203(a)(1) of the Act; and
(3) A married beneficiary is classified as the married son or
daughter of a United States citizen under section 203(a)(3) of the Act.
(i) Enforcement of affidavit of financial support and intent to
petition for legal custody. A guarantee of financial support and intent
to petition for legal custody on Form I-361 may be enforced against the
alien's sponsor in a civil suit brought by the Attorney General in the
United States District Court for the district in which the sponsor
resides, except that the sponsor's estate is not liable under the
guarantee if the sponsor dies or is adjudicated as bankrupt under title
11, United States Code. After admission to the United States, if the
beneficiary of a petition requires enforcement of the guarantee of
financial support and intent to petition for legal custody executed by
the beneficiary's sponsor, the beneficiary may file Form I-363 with
USCIS. 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;
74 FR 26936, June 5, 2009; 76 FR 53782, Aug. 29, 2011]
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
[[Page 93]]
(3) Accompanied by any other required supporting documentation.
(b) Jurisdiction. Form I-140 or I-360 must be filed in accordance
with the instructions on the form.
(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 labor certification application was accepted for processing
by any office of the Department of Labor. The priority date of any
petition filed for a classification under section 203(b) of the Act
which does not require a labor certification from the Department of
Labor shall be the date the completed, signed petition (including all
initial evidence and the correct fee) is properly filed with USCIS. 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 shall be the date the completed, signed petition (including
all initial evidence and the correct fee) is properly filed with USCIS.
The priority date of an alien who filed for classification as a special
immigrant under section 203(b)(4) of the Act prior to October 1, 1991,
and who is the beneficiary of an approved petition for special immigrant
status after October 1, 1991, shall be the date the alien applied for an
immigrant visa or adjustment of status.
(e) Retention of section 203(b)(1), (2), or (3) priority date. (1) A
petition approved on behalf of an alien under sections 203(b)(1), (2),
or (3) of the Act accords the alien the priority date of the approved
petition for any subsequently filed petition for any classification
under section 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
approved petitions under section 203(b)(1), (2), or (3) of the Act, the
alien shall be entitled to the earliest priority date.
(2) The priority date of a petition may not be retained under
paragraph (e)(1) of this section if at any time USCIS revokes the
approval of the petition because of:
(i) Fraud, or a willful misrepresentation of a material fact;
(ii) Revocation by the Department of Labor of the approved permanent
labor certification that accompanied the petition;
(iii) Invalidation by USCIS or the Department of State of the
permanent labor certification that accompanied the petition; or
(iv) A determination by USCIS that petition approval was based on a
material error.
(3) A denied petition will not establish a priority date.
(4) A priority date is not transferable to another alien.
(5) A petition filed under section 204(a)(1)(F) of the Act for an
alien shall remain valid with respect to a new employment offer as
determined by USCIS under section 204(j) of the Act and 8 CFR 245.25. An
alien will continue to be afforded the priority date of such petition,
if the requirements of paragraph (e) of this section are met.
(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
[[Page 94]]
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;
(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.
[[Page 95]]
(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) If the standards in paragraph (i)(3)(i) of this section do not
readily apply, the petitioner may submit comparable evidence to
establish the beneficiary's eligibility.
(iii) Evidence that the alien has at least three years of experience
in teaching and/or research in the academic field. Experience in
teaching or research while working on an advanced degree will only be
acceptable if the alien has acquired the degree, and if the teaching
duties were such that he or she had full responsibility for the class
taught or if the research conducted toward the degree has been
recognized within the academic field as outstanding. Evidence of
teaching and/or research experience shall be in the form of letter(s)
from current or former employer(s) and shall include the name, address,
and title of the writer, and a specific description of the duties
performed by the alien; and
(iv) 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
[[Page 96]]
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 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
[[Page 97]]
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 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
[[Page 98]]
(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 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
[[Page 99]]
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 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.
[[Page 100]]
(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 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
[[Page 101]]
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 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
[[Page 102]]
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
(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:
[[Page 103]]
(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 approval is revoked under
section 203(g) or 205 of the Act, an employment-based petition is valid
indefinitely.
(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.
(p) Eligibility for employment authorization in compelling
circumstances--(1) Eligibility of principal alien. An individual who is
the principal beneficiary of an approved immigrant petition for
classification under sections 203(b)(1), 203(b)(2) or 203(b)(3) of the
Act may be eligible to receive employment authorization, upon
application, if:
(i) In the case of an initial request for employment authorization,
the individual is in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status,
including the periods authorized by Sec. 214.1(l)(l) and (2), as well
as any other periods of admission authorized by this chapter before a
validity period begins or after the expiration of a validity period, on
[[Page 104]]
the date the application for employment authorization (Form I-765) is
filed;
(ii) An immigrant visa is not authorized for issuance to the
principal beneficiary based on his or her priority date on the date the
application for employment authorization is filed; and
(iii) USCIS determines, as a matter of discretion, that the
principal beneficiary demonstrates compelling circumstances that justify
the issuance of employment authorization.
(2) Eligibility of spouses and children. The family members, as
described in section 203(d) of the Act, of a principal beneficiary, who
are in nonimmigrant status at the time the principal beneficiary applies
for employment authorization under paragraph (p)(1) of this section, are
eligible to apply for employment authorization provided that the
principal beneficiary has been granted employment authorization under
paragraph (p) of this section and such employment authorization has not
been terminated or revoked. Such family members may apply for employment
authorization concurrently with the principal beneficiary, but cannot be
granted employment authorization until the principal beneficiary is so
authorized. The validity period of employment authorization granted to
family members may not extend beyond the validity period of employment
authorization granted to the principal beneficiary.
(3) Eligibility for renewal of employment authorization. An alien
may be eligible to renew employment authorization granted under
paragraph (p) of this section, upon submission of a new application
before the expiration of such employment authorization, if:
(i) He or she is the principal beneficiary of an approved immigrant
petition for classification under section 203(b)(1), 203(b)(2) or
203(b)(3) of the Act and either:
(A) An immigrant visa is not authorized for issuance to the
principal beneficiary based on his or her priority date on the date the
application for employment authorization, (Form I-765) is filed; and
USCIS determines, as a matter of discretion that the principal
beneficiary demonstrates compelling circumstances that justify the
issuance of employment authorization; or
(B) The difference between the principal beneficiary's priority date
and the date upon which immigrant visas are authorized for issuance for
the principal beneficiary's preference category and country of
chargeability is 1 year or less according to the Department of State
Visa Bulletin in effect on the date the application for employment
authorization (Form I-765), is filed. For example, if the Department of
State Visa Bulletin in effect on the date the renewal application is
filed indicates immigrant visas are authorized for issuance for the
applicable preference category and country of chargeability to
individuals with priority dates earlier than November 1, 2000, USCIS may
grant a renewal to a principal beneficiary whose priority date is on or
between October 31, 1999 and October 31, 2001; or
(ii) He or she is a family member, as described under paragraph
(p)(2) of this section, of a principal beneficiary granted a renewal of
employment authorization under paragraph (p)(3)(i) that remains valid,
except that the family member need not be maintaining nonimmigrant
status at the time the principal beneficiary applies for renewal of
employment authorization under paragraph (p) of this section. A family
member may file an application to renew employment authorization
concurrently with an application to renew employment authorization filed
by the principal beneficiary or while such application by the principal
beneficiary is pending, but the family member's renewal application
cannot be approved unless the principal beneficiary's application is
granted. The validity period of a renewal of employment authorization
granted to family members may not extend beyond the validity period of
the renewal of employment authorization granted to the principal
beneficiary.
(4) Application for employment authorization. To request employment
authorization, an eligible applicant described in paragraph (p)(1), (2),
or (3) of this section must file an application for employment
authorization (Form I-765), with USCIS, in accordance with 8 CFR
274a.13(a) and the form instructions.
[[Page 105]]
Such applicant is subject to the collection of his or her biometric
information and the payment of any biometric services fee as provided in
the form instructions. Employment authorization under this paragraph may
be granted solely in 1-year increments.
(5) Ineligibility for employment authorization. An alien is not
eligible for employment authorization, including renewal of employment
authorization, under this paragraph if the alien has been convicted of
any felony or two or more misdemeanors.
[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; 73 FR
78127, Dec. 19, 2008; 74 FR 26936, June 5, 2009; 81 FR 2083, Jan. 15,
2016; 81 FR 82484, Nov. 18, 2016]
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) [Reserved]
(c) Eligibility to file. A petition for classification as an alien
entrepreneur may only be filed by any alien on his or her own behalf.
(d) Priority date. The priority date of a petition for
classification as an alien entrepreneur is the date the petition is
properly filed with the Service or, if filed prior to the effective date
of these regulations, the date the Form I-526 was received at the
appropriate Service Center.
(e) Definitions. As used in this section:
Capital means cash, equipment, inventory, other tangible property,
cash equivalents, and indebtedness secured by assets owned by the alien
entrepreneur, provided that the alien entrepreneur is personally and
primarily liable and that the assets of the new commercial enterprise
upon which the petition is based are not used to secure any of the
indebtedness. All capital shall be valued at fair market value in United
States dollars. Assets acquired, directly or indirectly, by unlawful
means (such as criminal activities) shall not be considered capital for
the purposes of section 203(b)(5) of the Act.
Commercial enterprise means any for-profit activity formed for the
ongoing conduct of lawful business including, but not limited to, a sole
proprietorship, partnership (whether limited or general), holding
company, joint venture, corporation, business trust, or other entity
which may be publicly or privately owned. This definition includes a
commercial enterprise consisting of a holding company and its wholly-
owned subsidiaries, provided that each such subsidiary is engaged in a
for-profit activity formed for the ongoing conduct of a lawful business.
This definition shall not include a noncommercial activity such as
owning and operating a personal residence.
Employee means an individual who provides services or labor for the
new commercial enterprise and who receives wages or other remuneration
directly from the new commercial enterprise. In the case of the
Immigrant Investor Pilot Program, ``employee'' also means an individual
who provides services or labor in a job which has been created
indirectly through investment in the new commercial enterprise. This
definition shall not include independent contractors.
Full-time employment means employment of a qualifying employee by
the new commercial enterprise in a position that requires a minimum of
35 working hours per week. In the case of the Immigrant Investor Pilot
Program, ``full-time employment'' also means employment of a qualifying
employee in a position that has been created indirectly through revenues
generated from increased exports resulting from 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-
[[Page 106]]
time employment provided the hourly requirement per week is met. This
definition shall not include combinations of part-time positions even
if, when combined, such positions meet the hourly requirement per week.
High employment area means a part of a metropolitan statistical area
that at the time of investment:
(i) Is not a targeted employment area; and
(ii) Is an area with an unemployment rate significantly below the
national average unemployment rates.
Invest means to contribute capital. A contribution of capital in
exchange for a note, bond, convertible debt, obligation, or any other
debt arrangement between the alien entrepreneur and the new commercial
enterprise does not constitute a contribution of capital for the
purposes of this part.
New means established after November 29, 1990.
Qualifying employee means a United States citizen, a lawfully
admitted permanent resident, or other immigrant lawfully authorized to
be employed in the United States including, but not limited to, a
conditional resident, a temporary resident, an asylee, a refugee, or an
alien remaining in the United States under suspension of deportation.
This definition does not include the alien entrepreneur, the alien
entrepreneur's spouse, sons, or daughters, or any nonimmigrant alien.
Regional center means any economic unit, public or private, which is
involved with the promotion of economic growth, including increased
export sales, improved regional productivity, job creation, and
increased domestic capital investment.
Rural area means any area not within either a metropolitan
statistical area (as designated by the Office of Management and Budget)
or the outer boundary of any city or town having a population of 20,000
or more.
Targeted employment area means an area which, at the time of
investment, is a rural area or an area which has experienced
unemployment of at least 150 percent of the national average rate.
Troubled business means a business that has been in existence for at
least two years, has incurred a net loss for accounting purposes
(determined on the basis of generally accepted accounting principles)
during the twelve- or twenty-four month period prior to the priority
date on the alien entrepreneur's Form I-526, and the loss for such
period is at least equal to twenty percent of the troubled business's
net worth prior to such loss. For purposes of determining whether or not
the troubled business has been in existence for two years, successors in
interest to the troubled business will be deemed to have been in
existence for the same period of time as the business they succeeded.
(f) Required amounts of capital--(1) General. Unless otherwise
specified, the amount of capital necessary to make a qualifying
investment in the United States is one million United States dollars
($1,000,000).
(2) Targeted employment area. The amount of capital necessary to
make a qualifying investment in a targeted employment area within the
United States is five hundred thousand United States dollars ($500,000).
(3) High employment area. The amount of capital necessary to make a
qualifying investment in a high employment area within the United
States, as defined in section 203(b)(5)(C)(iii) of the Act, is one
million United States dollars ($1,000,000).
(g) Multiple investors--(1) General. The establishment of a new
commercial enterprise may be used as the basis of a petition for
classification as an alien entrepreneur by more than one investor,
provided each petitioning investor has invested or is actively in the
process of investing the required amount for the area in which the new
commercial enterprise is principally doing business, and provided each
individual investment results in the creation of at least ten full-time
positions for qualifying employees. The establishment of a new
commercial enterprise may be used as the basis of a petition for
classification as an alien entrepreneur even though there are several
owners of the enterprise, including persons who are 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
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capital invested is identified and all invested capital has been derived
by lawful means.
(2) Employment creation allocation. The total number of full-time
positions created for qualifying employees shall be allocated solely to
those alien entrepreneurs who have used the establishment of the new
commercial enterprise as the basis of a petition on Form I-526. No
allocation need be made among persons not seeking classification under
section 203(b)(5) of the Act or among non-natural persons, either
foreign or domestic. The Service shall recognize any reasonable
agreement made among the alien entrepreneurs in regard to the
identification and allocation of such qualifying positions.
(h) Establishment of a new commercial enterprise. The establishment
of a new commercial enterprise may consist of:
(1) The creation of an original business;
(2) The purchase of an existing business and simultaneous or
subsequent restructuring or reorganization such that a new commercial
enterprise results; or
(3) The expansion of an existing business through the investment of
the required amount, so that a substantial change in the net worth or
number of employees results from the investment of capital. Substantial
change means a 40 percent increase either in the net worth, or in the
number of employees, so that the new net worth, or number of employees
amounts to at least 140 percent of the pre-expansion net worth or number
of employees. Establishment of a new commercial enterprise in this
manner does not exempt the petitioner from the requirements of 8 CFR
204.6(j) (2) and (3) relating to the required amount of capital
investment and the creation of full-time employment for ten qualifying
employees. In the case of a capital investment in a troubled business,
employment creation may meet the criteria set forth in 8 CFR
204.6(j)(4)(ii).
(i) State designation of a high unemployment area. The state
government of any state of the United States may designate a particular
geographic or political subdivision located within a metropolitan
statistical area or within a city or town having a population of 20,000
or more within such state as an area of high unemployment (at least 150
percent of the national average rate). Evidence of such designation,
including a description of the boundaries of the geographic or political
subdivision and the method or methods by which the unemployment
statistics were obtained, may be provided to a prospective alien
entrepreneur for submission with Form I-526. Before any such designation
is made, an official of the state must notify the Associate Commissioner
for Examinations of the agency, board, or other appropriate governmental
body of the state which shall be delegated the authority to certify that
the geographic or political subdivision is a high unemployment area.
(j) Initial evidence to accompany petition. A petition submitted for
classification as an alien entrepreneur must be accompanied by evidence
that the alien has invested or is actively in the process of investing
lawfully obtained capital in a new commercial enterprise in the United
States which will create full-time positions for not fewer than 10
qualifying employees. In the case of petitions submitted under the
Immigrant Investor Pilot Program, a petition must be accompanied by
evidence that the alien has invested, or is actively in the process of
investing, capital obtained through lawful means within a regional
center designated by the Service in accordance with paragraph (m)(4) of
this section. The petitioner may be required to submit information or
documentation that the Service deems appropriate in addition to that
listed below.
(1) To show that a new commercial enterprise has been established by
the petitioner in the United States, the petition must be accompanied
by:
(i) As applicable, articles of incorporation, certificate of merger
or consolidation, partnership agreement, certificate of limited
partnership, joint venture agreement, business trust agreement, or other
similar organizational document for the new commercial enterprise;
(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
[[Page 108]]
the State or municipality does not issue such a certificate, a statement
to that effect; or
(iii) Evidence that, as of a date certain after November 29, 1990,
the required amount of capital for the area in which an enterprise is
located has been transferred to an existing business, and that the
investment has resulted in a substantial increase in the net worth or
number of employees of the business to which the capital was
transferred. This evidence must be in the form of stock purchase
agreements, investment agreements, certified financial reports, payroll
records, or any similar instruments, agreements, or documents evidencing
the investment in the commercial enterprise and the resulting
substantial change in the net worth, number of employees.
(2) To show that the petitioner has invested or is actively in the
process of investing the required amount of capital, the petition must
be accompanied by evidence that the petitioner has placed the required
amount of capital at risk for the purpose of generating a return on the
capital placed at risk. Evidence of mere intent to invest, or of
prospective investment arrangements entailing no present commitment,
will not suffice to show that the petitioner is actively in the process
of investing. The alien must show actual commitment of the required
amount of capital. Such evidence may include, but need not be limited
to:
(i) Bank statement(s) showing amount(s) deposited in United States
business account(s) for the enterprise;
(ii) Evidence of assets which have been purchased for use in the
United States enterprise, including invoices, sales receipts, and
purchase contracts containing sufficient information to identify such
assets, their purchase costs, date of purchase, and purchasing entity;
(iii) Evidence of property transferred from abroad for use in the
United States enterprise, including United States Customs Service
commercial entry documents, bills of lading, and transit insurance
policies containing ownership information and sufficient information to
identify the property and to indicate the fair market value of such
property;
(iv) Evidence of monies transferred or committed to be transferred
to the new commercial enterprise in exchange for shares of stock (voting
or nonvoting, common or preferred). Such stock may not include terms
requiring the new commercial enterprise to redeem it at the holder's
request; or
(v) Evidence of any loan or mortgage agreement, promissory note,
security agreement, or other evidence of borrowing which is secured by
assets of the petitioner, other than those of the new commercial
enterprise, and for which the petitioner is personally and primarily
liable.
(3) To show that the petitioner has invested, or is actively in the
process of investing, capital obtained through lawful means, the
petition must be accompanied, as applicable, by:
(i) Foreign business registration records;
(ii) Corporate, partnership (or any other entity in any form which
has filed in any country or subdivision thereof any return described in
this subpart), and personal tax returns including income, franchise,
property (whether real, personal, or intangible), or any other tax
returns of any kind filed within five years, with any taxing
jurisdiction in or outside the United States by or on behalf of the
petitioner;
(iii) Evidence identifying any other source(s) of capital; or
(iv) Certified copies of any judgments or evidence of all pending
governmental civil or criminal actions, governmental administrative
proceedings, and any private civil actions (pending or otherwise)
involving monetary judgments against the petitioner from any court in or
outside the United States within the past fifteen years.
(4) Job creation--(i) General. To show that a new commercial
enterprise will create not fewer than ten (10) full-time positions for
qualifying employees, the petition must be accompanied by:
(A) Documentation consisting of photocopies of relevant tax records,
Form I-9, or other similar documents for ten (10) qualifying employees,
if such employees have already been hired following the establishment of
the new commercial enterprise; or
[[Page 109]]
(B) A copy of a comprehensive business plan showing that, due to the
nature and projected size of the new commercial enterprise, the need for
not fewer than ten (10) qualifying employees will result, including
approximate dates, within the next two years, and when such employees
will be hired.
(ii) Troubled business. To show that a new commercial enterprise
which has been established through a capital investment in a troubled
business meets the statutory employment creation requirement, the
petition must be accompanied by evidence that the number of existing
employees is being or will be maintained at no less than the pre-
investment level for a period of at least two years. Photocopies of tax
records, Forms I-9, or other relevant documents for the qualifying
employees and a comprehensive business plan shall be submitted in
support of the petition.
(iii) Immigrant Investor Pilot Program. To show that the new
commercial enterprise located within a regional center approved for
participation in the Immigrant Investor Pilot Program meets the
statutory employment creation requirement, the petition must be
accompanied by evidence that the investment will create full-time
positions for not fewer than 10 persons either directly or indirectly
through revenues generated from increased exports resulting from the
Pilot Program. Such evidence may be demonstrated by reasonable
methodologies including those set forth in paragraph (m)(3) of this
section.
(5) To show that the petitioner is or will be engaged in the
management of the new commercial enterprise, either through the exercise
of day-to-day managerial control or through policy formulation, as
opposed to maintaining a purely passive role in regard to the
investment, the petition must be accompanied by:
(i) A statement of the position title that the petitioner has or
will have in the new enterprise and a complete description of the
position's duties;
(ii) Evidence that the petitioner is a corporate officer or a member
of the corporate board of directors; or
(iii) If the new enterprise is a partnership, either limited or
general, evidence that the petitioner is engaged in either direct
management or policy making activities. For purposes of this section, if
the petitioner is a limited partner and the limited partnership
agreement provides the petitioner with certain rights, powers, and
duties normally granted to limited partners under the Uniform Limited
Partnership Act, the petitioner will be considered sufficiently engaged
in the management of the new commercial enterprise.
(6) If applicable, to show that the new commercial enterprise has
created or will create employment in a targeted employment area, the
petition must be accompanied by:
(i) In the case of a rural area, evidence that the new commercial
enterprise is principally doing business within a civil jurisdiction not
located within any standard metropolitan statistical area as designated
by the Office of Management and Budget, or within any city or town
having a population of 20,000 or more as based on the most recent
decennial census of the United States; or
(ii) In the case of a high unemployment area:
(A) Evidence that the metropolitan statistical area, the specific
county within a metropolitan statistical area, or the county in which a
city or town with a population of 20,000 or more is located, in which
the new commercial enterprise is principally doing business has
experienced an average unemployment rate of 150 percent of the national
average rate; or
(B) A letter from an authorized body of the government of the state
in which the new commercial enterprise is located which certifies that
the geographic or political subdivision of the metropolitan statistical
area or of the city or town with a population of 20,000 or more in which
the enterprise is principally doing business has been designated a high
unemployment area. The letter must meet the requirements of 8 CFR
204.6(i).
(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
[[Page 110]]
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) [Reserved]
(m) Immigrant Investor Pilot Program--(1) Scope. The Immigrant
Investor Pilot Program is established solely pursuant to the provisions
of section 610 of the Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies Appropriation Act, and subject to all
conditions and restrictions stipulated in that section. Except as
provided herein, aliens seeking to obtain immigration benefits under
this paragraph continue to be subject to all conditions and restrictions
set forth in section 203(b)(5) of the Act and this section.
(2) Number of immigrant visas allocated. The annual allocation of
the visas available under the Immigrant Investor Pilot Program is set at
300 for each of the five fiscal years commencing on October 1, 1993.
(3) Requirements for regional centers. Each regional center wishing
to participate in the Immigrant Investor Pilot Program shall submit a
proposal to the Assistant Commissioner for Adjudications, which:
(i) Clearly describes how the regional center focuses on a
geographical region of the United States, and how it will promote
economic growth through increased export sales, improved regional
productivity, job creation, and increased domestic capital investment;
(ii) Provides in verifiable detail how jobs will be created
indirectly through increased exports;
(iii) Provides a detailed statement regarding the amount and source
of capital which has been committed to the regional center, as well as a
description of the promotional efforts taken and planned by the sponsors
of the regional center;
(iv) Contains a detailed prediction regarding the manner in which
the regional center will have a positive impact on the regional or
national economy in general as reflected by such factors as increased
household earnings, greater demand for business services, utilities,
maintenance and repair, and construction both within and without the
regional center; and
(v) Is supported by economically or statistically valid forecasting
tools, including, but not limited to, feasibility studies, analyses of
foreign and domestic markets for the goods or services to be exported,
and/or multiplier tables.
(4) Submission of proposals to participate in the Immigrant Investor
Pilot Program. On August 24, 1993, the Service will accept proposals
from regional centers seeking approval to participate in the Immigrant
Investor Pilot Program. Regional centers that have been approved by the
Assistant Commissioner for Adjudications will be eligible to participate
in the Immigrant Investor Pilot Program.
(5) Decision to participate in the Immigrant Investor Pilot Program.
The Assistant Commissioner for Adjudications shall notify the regional
center of his or her decision on the request for approval to participate
in the Immigrant Investor Pilot Program, and, if the petition is denied,
of the reasons for the denial and of the regional center's right of
appeal to the Associate Commissioner for Examinations. Notification of
denial and appeal rights, and the procedure for appeal shall be the same
as those contained in 8 CFR 103.3.
(6) Continued participation requirements for regional centers. (i)
Regional centers approved for participation in the program must:
(A) Continue to meet the requirements of section 610(a) of the
Appropriations Act.
(B) Provide USCIS with updated information annually, and/or as
otherwise requested by USCIS, to demonstrate that the regional center is
continuing to promote economic growth, including increased export sales,
improved regional productivity, job creation, and increased domestic
capital investment in the approved geographic area, using a form
designated for this purpose; and
(C) Pay the fee provided by 8 CFR 103.7(b)(1)(i)(XX).
(ii) USCIS will issue a notice of intent to terminate the
designation of a regional center in the program if:
(A) A regional center fails to submit the information required in
paragraph
[[Page 111]]
(m)(6)(i)(B) of this section, or pay the associated fee; or
(B) USCIS determines 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.
(iii) A notice of intent to terminate the designation of a regional
center will be sent to the regional center and set forth the reasons for
termination.
(iv) The regional center will be provided 30 days from receipt of
the notice of intent to terminate to rebut the ground or grounds stated
in the notice of intent to terminate.
(v) USCIS will notify the regional center of the final decision. If
USCIS determines that the regional center's participation in the program
should be terminated, USCIS will state the reasons for termination. The
regional center may appeal the final termination decision in accordance
with 8 CFR 103.3.
(vi) A regional center may elect to withdraw from the program and
request a termination of the regional center designation. The regional
center must notify USCIS of such election in the form of a letter or as
otherwise requested by USCIS. USCIS will notify the regional center of
its decision regarding the withdrawal request in writing.
(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; 74 FR 26937, June 5, 2009; 75 FR 58990,
Sept. 24, 2010; 76 FR 53782, Aug. 29, 2011; 81 FR 73332, Oct. 24, 2016]
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 112]]
Sec. 204.8 [Reserved]
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 in accordance with the
instructions on the form.
(b) Eligibility. An alien is eligible for classification as a
special immigrant under section 101(a)(27)(K) of the Act if:
(1) The alien has served honorably on active duty in the Armed
Forces of the United States after October 15, 1978;
(2) The alien's original lawful enlistment was outside the United
States (under a treaty or agreement in effect October 1, 1991) for a
period or periods aggregating--
(i) Twelve years, and who, if separated from such service, was never
separated except under honorable conditions; or
(ii) Six years, in the case of an immigrant who is on active duty at
the time of seeking special immigrant status under this rule and who has
reenlisted to incur a total active duty service obligation of at least
12 years;
(3) The alien is a national of an independent state which maintains
a treaty or agreement allowing nationals of that state to enlist in the
United States Armed Forces each year; and
(4) The executive department under which the alien has served or is
serving has recommended the granting of special immigrant status to the
immigrant.
(c) Derivative beneficiaries. A spouse or child accompanying or
following to join a principal immigrant who has requested benefits under
this section may be accorded the same special immigrant classification
as the principal alien. This may occur whether or not the spouse or
child is named in the petition and without the approval of a separate
petition, but only if the executive department under which the immigrant
serves or served recommends the granting of special immigrant status to
the principal immigrant.
(1) The relationship of spouse and child as defined in section
101(b)(1) of the Act must have existed at the time the principal alien's
special immigrant application under section 101(a)(27)(K) of the Act was
approved. The spouse or child of an immigrant classified as a section
103(a)(27)(K) special immigrant is entitled to a derivative status
corresponding to the classification and priority date of the beneficiary
of the petition.
(2) When a spouse or child of an alien granted special immigrant
status under section 101(a)(27)(K) of the Act is in the United States
but was not included in the principal alien's application, the spouse or
child shall file Form I-485, Application to Register Permanent Residence
or Adjust Status, in accordance with the instructions on the form,
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
[[Page 113]]
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 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;
74 FR 26937, June 5, 2009]
Sec. 204.10 [Reserved]
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. 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.
(c) Eligibility. An alien is eligible for classification as a
special immigrant
[[Page 114]]
under section 101(a)(27)(J) of the Act if the alien:
(1) Is under twenty-one years of age;
(2) Is unmarried;
(3) Has been declared dependent upon a juvenile court located in the
United States in accordance with state law governing such declarations
of dependency, while the alien was in the United States and under the
jurisdiction of the court;
(4) Has been deemed eligible by the juvenile court for long-term
foster care;
(5) Continues to be dependent upon the juvenile court and eligible
for long-term foster care, such declaration, dependency or eligibility
not having been vacated, terminated, or otherwise ended; and
(6) Has been the subject of judicial proceedings or administrative
proceedings authorized or recognized by the juvenile court in which it
has been determined that it would not be in the alien's best interest to
be returned to the country of nationality or last habitual residence of
the beneficiary or his or her parent or parents; or
(7) On November 29, 1990, met all the eligibility requirements for
special immigrant juvenile status in paragraphs (c)(1) through (c)(6) of
this section, and for whom a petition for classification as a special
immigrant juvenile is filed on Form I-360 before June 1, 1994.
(d) Initial documents which must be submitted in support of the
petition. (1) Documentary evidence of the alien's age, in the form of a
birth certificate, passport, official foreign identity document issued
by a foreign government, such as a Cartilla or a Cedula, or other
document which in the discretion of the director establishes the
beneficiary's age; and
(2) One or more documents which include:
(i) A juvenile court order, issued by a court of competent
jurisdiction located in the United States, showing that the court has
found the beneficiary to be dependent upon that court;
(ii) A juvenile court order, issued by a court of competent
jurisdiction located in the United States, showing that the court has
found the beneficiary eligible for long-term foster care; and
(iii) Evidence of a determination made in judicial or administrative
proceedings by a court or agency recognized by the juvenile court and
authorized by law to make such decisions, that it would not be in the
beneficiary's best interest to be returned to the country of nationality
or last habitual residence of the beneficiary or of his or her parent or
parents.
(e) Decision. The petitioner will be notified of the director's
decision, and, if the petition is denied, of the reasons for the denial.
If the petition is denied, the petitioner will also be notified of the
petitioner's right to appeal the decision to the Associate Commissioner,
Examinations, in accordance with part 103 of this chapter.
[58 FR 42850, Aug. 12, 1993, as amended at 74 FR 26937, June 5, 2009]
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
[[Page 115]]
(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 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
[[Page 116]]
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 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
[[Page 117]]
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.
(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
[[Page 118]]
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 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.
(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, as amended at 74 FR 26937, June 5, 2009]
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
[[Page 119]]
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 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.
[[Page 120]]
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 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.
[[Page 121]]
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 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
[[Page 122]]
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.
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 1.2, 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.
[72 FR 56854, Oct. 4, 2007, as amended at 76 FR 53782, Aug. 29, 2011]
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
[[Page 123]]
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 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.
[[Page 124]]
(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.
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
[[Page 125]]
(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 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
[[Page 126]]
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-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
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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 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:
[[Page 128]]
(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;
(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 103.16,
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.
[72 FR 56854, Oct. 4, 2007, as amended at 76 FR 53782, Aug. 29, 2011]
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
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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 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.
[[Page 130]]
(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 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
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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.
(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,
[[Page 132]]
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 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
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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 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
[[Page 134]]
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 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.
[[Page 135]]
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 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.
[[Page 136]]
(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.
(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
[[Page 137]]
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 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:
[[Page 138]]
(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 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.
[[Page 139]]
(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, 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
[[Page 140]]
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 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.
[[Page 141]]
(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 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, 1324a,
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) [Reserved]
(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
[[Page 142]]
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.
(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,
[[Page 143]]
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) In employment-based preference cases, upon written notice of
withdrawal filed by the petitioner to any officer of USCIS who is
authorized to grant or deny petitions, where the withdrawal is filed
less than 180 days after approval of the employment-based preference
petition, unless an associated adjustment of status application has been
pending for 180 days or more. A petition that is withdrawn 180 days or
more after its approval, or 180 days or more after the associated
adjustment of status application has been filed, remains approved unless
its approval is revoked on other grounds. If an employment-based
petition on behalf of an alien is withdrawn, the job offer of the
petitioning employer is rescinded and the alien must obtain a new
employment-based preference petition in order to seek adjustment of
status or issuance of an immigrant visa as an employment-based
immigrant, unless eligible for adjustment of status under section 204(j)
of the Act and in accordance with 8 CFR 245.25.
(D) Upon termination of the petitioning employer's business less
than 180 days after petition approval under section 203(b)(1)(B),
203(b)(1)(C), 203(b)(2), or 203(b)(3) of the Act, unless an associated
adjustment of status application has been pending for 180 days or more.
If a petitioning employer's business terminates 180 days or more after
petition approval, or 180 days or more after an associated adjustment of
status application has been filed, the petition remains approved unless
its approval is revoked on other grounds. If a petitioning employer's
business terminates the job offer of the petitioning employer is
rescinded and the beneficiary must obtain a new employment-based
preference petition on his or her behalf in order to seek adjustment of
status or issuance of an immigrant visa as an employment-based
immigrant, unless eligible for adjustment of status under section 204(j)
of the Act and in accordance with 8 CFR 245.25.
(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 71 FR 35749, June 21, 2006;
81 FR 73332, Oct. 24, 2016; 81 FR 82486, Nov. 18, 2016]
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
[[Page 144]]
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 processing.
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. 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 submitting an application, including biometric
information, in accordance with the form instructions, as defined in 8
CFR 1.2.
(b) Firmly resettled. Any applicant (other than an applicant for
derivative refugee status under 8 CFR 207.7) who has become firmly
resettled in a foreign country is not eligible for refugee status under
this chapter I. A refugee is considered to be ``firmly resettled'' if he
or she has been offered resident status, citizenship, or some other type
of permanent resettlement by a country other than the United States and
has traveled to and entered that country as a consequence of his or her
flight from persecution. Any applicant who claims not to be firmly
resettled in a foreign country must establish that the conditions of his
or 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 right to
property ownership, travel documentation, education, public welfare, and
citizenship.
(c) 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) or 203(b) of the Act,
and for whom a visa number is now available, shall be advised of such
eligibility but is not required to apply.
[76 FR 53782, Aug. 29, 2011]
[[Page 145]]
Sec. 207.2 Applicant processing.
(a) Interview. Each applicant 14 years old or older shall appear in
person before an immigration officer for inquiry under oath to determine
his or her eligibility for admission as a refugee.
(b) Medical examination. Each applicant shall submit to a medical
examination as required by sections 221(d) and 232(b) of the Act.
(c) Sponsorship. Each applicant must be sponsored by a responsible
person or organization. Transportation for the applicant from his or her
present abode to the place of resettlement in the United States must be
guaranteed by the sponsor.
[76 FR 53783, Aug. 29, 2011]
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.
(b) Filing requirements. An applicant may request a waiver by
submitting an application for a waiver in accordance with the form
instructions. 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.
[76 FR 53783, Aug. 29, 2011]
Sec. 207.4 Approved application.
Approval of a refugee application by USCIS outside the United States
authorizes CBP to admit the applicant conditionally as a refugee upon
arrival at the port within four months of the date the refugee
application was approved. There is no appeal from a denial of refugee
status under this chapter.
[76 FR 53783, Aug. 29, 2011]
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 USCIS 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 Secretary 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.
[76 FR 53783, Aug. 29, 2011]
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.
[[Page 146]]
(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 Secretary 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 or her spouse and unmarried, minor child(ren) (whether
the spouse and children are inside or outside the United States) by
filing a separate Request for Refugee/Asylee Relative in accordance with
the form instructions for each qualifying family member. The request may
only be filed by the principal refugee. Family members who derived their
refugee status are not eligible to request derivative benefits on behalf
of their spouse and child(ren). A separate Request for Refugee/Asylee
Relative must be filed for each qualifying family member within two
years of the refugee's admission to the United States unless USCIS
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 Request for Refugee/Asylee Relative has been
approved, provided that the relationship of spouse or child continues to
exist and approval of the Request for Refugee/Asylee Relative has not
been subsequently revoked. There is no fee for this benefit request.
(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.
(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 Request for
Refugee/Asylee Relative is approved, USCIS will notify the refugee of
such approval. 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 Request for
Refugee/Asylee Relative is approved, USCIS will notify the refugee of
such approval. USCIS will send the approved request to the
[[Page 147]]
Department of State for transmission to the U.S. Embassy or Consulate
having jurisdiction over the area in which the refugee's spouse or child
is located.
(3) Benefits. The approval of the Request for Refugee/Asylee
Relative will 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 Request for Refugee/Asylee Relative
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. For a derivative inside or arriving in the United States, USCIS
will issue a document reflecting the derivative's current status as a
refugee to demonstrate employment authorization, or the derivative may
apply, under 8 CFR 274a.12(a), for evidence of employment authorization.
(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, as amended at 76 FR 53783, Aug. 29, 2011; 76
FR 73476, Nov. 29, 2011]
Sec. 207.8 Physical presence in the United States.
For the purpose of adjustment of status under section 209(a)(1) of
the Act, the required one year physical presence of the applicant in the
United States is computed from the date the applicant entered the United
States as a refugee.
[46 FR 45118, Sept. 10, 1981. Redesignated at 63 FR 3795, Jan. 27, 1998]
Sec. 207.9 Termination of refugee status.
The refugee status of any alien (and of the spouse or child of the
alien) admitted to the United States under section 207 of the Act will
be terminated by USCIS if the alien was not a refugee within the meaning
of section 101(a)(42) of the Act at the time of admission. USCIS will
notify the alien in writing of its intent to terminate the alien's
refugee status. The alien will have 30 days from the date notice is
served upon him or her in accordance with 8 CFR 103.8, 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 I from the
termination of refugee status by USCIS. Upon termination of refugee
status, USCIS will process the alien under sections 235, 240, and 241 of
the Act.
[76 FR 53784, Aug. 29, 2011]
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 DHS.
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.
[[Page 148]]
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 who are found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act or whose entry is limited
or suspended under section 212(f) or 215(a)(1) 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. 1101, 1103, 1158, 1226, 1252, 1282; Title VII of
Public Law 110-229; 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. (1) General. Unless otherwise provided in this
chapter I, this subpart A 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 I, 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 referred to as ``asylum applications.'' The provisions of this part
208 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 208 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)(6)
and (c)(7) of the Act, and 8 CFR parts 103 and 1003, as applicable.
(2) Commonwealth of the Northern Mariana Islands. The provisions of
this subpart A shall not apply prior to January 1, 2015, to an alien
physically present in or arriving in the Commonwealth of the Northern
Mariana Islands seeking to apply for asylum. No application for asylum
may be filed prior to January 1, 2015, pursuant to section 208 of the
Act by an alien physically present in or arriving in the Commonwealth of
the Northern Mariana Islands. Effective on the transition program
effective date, the provisions of this subpart A shall apply to aliens
physically present in or arriving in the CNMI with respect to
withholding of removal under section 241(b)(3) of the Act and
withholding and deferral of removal under the Convention Against
Torture.
(b) Training of asylum officers. The Associate Director of USCIS
Refugee, Asylum, and International Operations (RAIO) 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 Associate Director of
USCIS Refugee, Asylum, and International Operations (RAIO) 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, as amended at 74 FR 55736, Oct. 28, 2009; 76
FR 53784, Aug. 29, 2011]
Sec. 208.2 Jurisdiction.
(a) Refugee, Asylum, and International Operations (RAIO) Except as
provided
[[Page 149]]
in paragraph (b) or (c) of this section, RAIO 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.
RAIO 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 Program under section 217 of the Act, except that if such an
alien is an applicant for admission to the Commonwealth of the Northern
Mariana Islands, then he or she shall not be eligible for asylum prior
to January 1, 2015;
(iv) An alien who was admitted to the United States pursuant to the
Visa Waiver Program under section 217 of the Act and has remained longer
than authorized or has otherwise violated his or her immigration status,
except that if such an alien was admitted to the Commonwealth of the
Northern Mariana Islands, then he or she shall not be eligible for
asylum in the Commonwealth of the Northern Mariana Islands prior to
January 1, 2015;
(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);
(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);
(vii) An alien who is an applicant for admission to Guam or the
Commonwealth of the Northern Mariana Islands pursuant to the Guam-CNMI
Visa Waiver Program under section 212(l) of the Act, except that if such
an alien is an applicant for admission to the Commonwealth of the
Northern Mariana Islands, then he or she shall not be eligible for
asylum prior to January 1, 2015; or
(viii) An alien who was admitted to Guam or the Commonwealth of the
Northern Mariana Islands pursuant to the Guam-CNMI Visa Waiver Program
under section 212(l) of the Act and has remained longer than authorized
or has otherwise violated his or her immigration status, except that if
such an alien was admitted to the Commonwealth of the Northern Mariana
Islands, then he or she shall not be eligible for asylum
[[Page 150]]
in the Commonwealth of the Northern Mariana Islands prior to January 1,
2015.
(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, as amended at 74 FR 55736, Oct. 28, 2009; 76
FR 53784, Aug. 29, 2011]
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 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,
[[Page 151]]
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 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,
[[Page 152]]
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. For aliens present in or arriving in the Commonwealth of
the Northern Mariana Islands, the 1-year period shall be calculated from
either January 1, 2015, or from the date of the alien's last arrival in
the United States (including the Commonwealth of the Northern Mariana
Islands), whichever is later. No period of physical presence in the
Commonwealth of the Northern Mariana Islands prior to January 1, 2015,
shall count toward the 1-year period. After November 28, 2009, any
travel to the Commonwealth of the Northern Mariana Islands from any
other State shall not re-start the calculation of the 1-year period.
(3) Prior denial of application. For purposes of section
208(a)(2)(C) of the Act, an asylum application has not been denied
unless denied by an immigration judge or the Board of Immigration
Appeals.
(4) Changed circumstances. (i) The term ``changed circumstances'' in
section 208(a)(2)(D) of the Act shall refer to circumstances materially
affecting the applicant's eligibility for asylum. They may include, but
are not limited to:
(A) Changes in conditions in the applicant's country of nationality
or, if the applicant is stateless, country of last habitual residence;
(B) Changes in the applicant's circumstances that materially affect
the applicant's eligibility for asylum, including changes in applicable
U.S. law and activities the applicant becomes involved in outside the
country of feared persecution that place the applicant at risk; or
(C) In the case of an alien who had previously been included as a
dependent in another alien's pending asylum application, the loss of the
spousal or parent-child relationship to the principal applicant through
marriage, divorce, death, or attainment of age 21.
(ii) The applicant shall file an asylum application within a
reasonable period given those ``changed circumstances.'' If the
applicant can establish that he or she did not become aware of the
changed circumstances until after they occurred, such delayed awareness
shall be taken into account in determining what constitutes a
``reasonable period.''
(5) The term ``extraordinary circumstances'' in section 208(a)(2)(D)
of the Act shall refer to events or factors directly related to the
failure to meet the 1-year deadline. Such circumstances may excuse the
failure to file within the 1-year period as long as the alien filed the
application within a reasonable period given those circumstances. The
burden of proof is on the applicant to establish to the satisfaction of
the asylum officer, the immigration judge, or the Board of Immigration
Appeals that the circumstances were not intentionally created by the
alien through his or her own action or inaction, that those
circumstances were directly related to the alien's failure to file the
application within the 1-year period, and that the delay was reasonable
under the circumstances. Those circumstances may include but are not
limited to:
[[Page 153]]
(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. 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. Form I-589, Application for Asylum and
Withholding of Removal, must be filed in accordance with the
instructions on 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; 74 FR 26937, June 5, 2009; 74 FR 55737, Oct. 28, 2009]
Sec. 208.5 Special duties toward aliens in custody of DHS.
(a) General. When an alien in the custody of DHS 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, DHS 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 8 CFR 208.30 or a reasonable fear determination
pursuant to 8 CFR 208.31. Although DHS 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 8 CFR 208.30 or 8 CFR 208.31, DHS 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. Furthermore, except as provided in paragraph (c)
of this section, an alien physically present in or arriving in the
Commonwealth of the Northern Mariana Islands shall not be excluded,
deported, or removed before a decision is rendered on his or her
application for withholding of removal pursuant to section 241(b)(3) of
the Act and withholding of removal
[[Page 154]]
under the Convention Against Torture. No application for asylum may be
filed prior to January 1, 2015, under section 208 of the Act by an alien
physically present in or arriving in the Commonwealth of the Northern
Mariana Islands.
(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 in accordance with the instructions on the form. The DHS may
extend the 10-day filing period for good cause. Once the application has
been filed, the DHS 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.
(iii) An alien crewmember physically present in or arriving in the
Commonwealth of the Northern Mariana Islands can request withholding of
removal pursuant to section 241(b)(3) of the Act and withholding of
removal under the Convention Against Torture. However, such an alien
crewmember is not eligible to request asylum pursuant to section 208 of
the Act prior to January 1, 2015.
(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 Secretary determines, in the exercise of discretion, that parole is
required to meet a medical emergency or is necessary for a legitimate
law enforcement objective.
(c) Exception to prohibition on removal. A motion to reopen or an
order to remand accompanied by an asylum application pursuant to Sec.
208.4(b)(3)(iii) shall not stay execution of a final exclusion,
deportation, or removal order unless such stay is specifically granted
by the Board of Immigration Appeals or the 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; 74 FR 26937, June 5, 2009; 74 FR 55737, Oct. 28,
2009; 76 FR 53784, Aug. 29, 2011]
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:
[[Page 155]]
(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 request
employment authorization. Except in the case of an alien whose asylum
application has been recommended for approval, or in the case of an
alien who filed an asylum application prior to January 4, 1995, the
application shall be submitted no earlier than 150 days after the date
on which a complete asylum application submitted in accordance with
Sec. Sec. 208.3 and 208.4 has been received. In the case of an
applicant whose asylum application has been recommended for approval,
the applicant may apply for employment authorization when he or she
receives notice of the recommended approval. If an asylum application
has been returned as incomplete in accordance with Sec. 208.3(c)(3),
the 150-day period will commence upon receipt by the Service of a
complete asylum application. An applicant whose asylum application has
been denied by an asylum officer or by an immigration judge within the
150-day period shall not be eligible to apply for employment
authorization. If an asylum application is denied prior to a decision on
the application for employment authorization, the application for
employment authorization shall be denied. If the asylum application is
not so denied, the Service shall have 30 days from the date of filing of
the request employment authorization 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 USCIS 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
[[Page 156]]
appear was the result of exceptional circumstances.
(b) Renewal and termination. Employment authorization shall be
renewable, in increments to be determined by USCIS, 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 request employment authorization in accordance with the form
instructions. USCIS may require that an alien establish that he or she
has continued to pursue an 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 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; 76
FR 53784, Aug. 29, 2011]
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. The applicant may have
counsel or a representative present, may present witnesses, and
[[Page 157]]
may submit affidavits of witnesses and other evidence.
(c) The asylum officer shall have authority to administer oaths,
verify the identity of the applicant (including through the use of
electronic means), verify the identity of any interpreter, present and
receive evidence, and question the applicant and any witnesses.
(d) Upon completion of the interview, the applicant or the
applicant's representative shall have an opportunity to make a statement
or comment on the evidence presented. The asylum officer may, in his or
her discretion, limit the length of such statement or comment and may
require its submission in writing. Upon completion of the interview, the
applicant shall be informed that he or she must appear in person to
receive and to acknowledge receipt of the decision of the asylum officer
and any other accompanying material at a time and place designated by
the asylum officer, except as otherwise provided by the asylum officer.
An applicant's failure to appear to receive and acknowledge receipt of
the decision shall be treated as delay caused by the applicant for
purposes of Sec. 208.7(a)(3) and shall extend the period within which
the applicant may not apply for employment authorization by the number
of days until the applicant does appear to receive and acknowledge
receipt of the decision or until the applicant appears before an
immigration judge in response to the issuance of a charging document
under Sec. 208.14(c).
(e) The asylum officer shall consider evidence submitted by the
applicant together with his or her asylum application, as well as any
evidence submitted by the applicant before or at the interview. As a
matter of discretion, the asylum officer may grant the applicant a brief
extension of time following an interview during which the applicant may
submit additional evidence. Any such extension shall extend by an
equivalent time the periods specified by Sec. 208.7 for the filing and
adjudication of any employment authorization application.
(f) The asylum application, all supporting information provided by
the applicant, any comments submitted by the Department of State or by
the Service, and any other information specific to the applicant's case
and considered by the asylum officer shall comprise the record.
(g) An applicant unable to proceed with the interview in English
must provide, at no expense to the Service, a competent interpreter
fluent in both English and the applicant's native language or any other
language in which the applicant is fluent. The interpreter must be at
least 18 years of age. Neither the applicant's attorney or
representative of record, a witness testifying on the applicant's
behalf, nor a representative or employee of the applicant's country of
nationality, or if stateless, country of last habitual residence, may
serve as the applicant's interpreter. Failure without good cause 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; 76
FR 53784, Aug. 29, 2011]
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 USCIS 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, as amended at 76 FR 53784, Aug. 29, 2011]
[[Page 158]]
Sec. 208.11 Comments from the Department of State.
(a) U.S. Citizenship and Immigration Services (USCIS) may request,
at its discretion, specific comments from the Department of State
regarding individual cases or types of claims under consideration, or
such other information as USCIS deems appropriate.
(b) With respect to any asylum application, the Department of State
may provide, at its discretion, to USCIS:
(1) Detailed country conditions information relevant to eligibility
for asylum or withholding of removal;
(2) 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;
(3) Information about whether persons who are similarly situated to
the applicant are persecuted or tortured in the applicant's country of
nationality or habitual residence and the frequency of such persecution
or torture; or
(4) Such other information as it deems relevant.
(c) Any comments received pursuant to paragraph (b) 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.
[74 FR 15369, Apr. 6, 2009]
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, other USCIS offices, or other
credible sources, such as international organizations, private voluntary
agencies, news organizations, or academic institutions.
(b) Nothing in this part shall be construed to entitle the applicant
to conduct discovery directed toward the records, officers, agents, or
employees of the Service, the Department of Justice, or the Department
of State. Persons may continue to seek documents available through a
Freedom of Information Act (FOIA) request pursuant to 8 CFR part 103.
[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65
FR 76133, Dec. 6, 2000; 76 FR 53784, Aug. 29, 2011]
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)
[[Page 159]]
of this section, an asylum officer shall, in the exercise of his or her
discretion, refer or deny, or an immigration judge, in the exercise of
his or her discretion, shall deny the asylum application of an alien
found to be a refugee on the basis of past persecution if any of the
following is found by a preponderance of the evidence:
(A) There has been a fundamental change in circumstances such that
the applicant no longer has a well-founded fear of persecution in the
applicant's country of nationality or, if stateless, in the applicant's
country of last habitual residence, on account of race, religion,
nationality, membership in a particular social group, or political
opinion; or
(B) The applicant could avoid future persecution by relocating to
another part of the applicant's country of nationality or, if stateless,
another part of the applicant's country of last habitual residence, and
under all the circumstances, it would be reasonable to expect the
applicant to do so.
(ii) Burden of proof. In cases in which an applicant has
demonstrated past persecution under paragraph (b)(1) of this section,
the Service shall bear the burden of establishing by a preponderance of
the evidence the requirements of paragraphs (b)(1)(i)(A) or (B) of this
section.
(iii) Grant in the absence of well-founded fear of persecution. An
applicant described in paragraph (b)(1)(i) of this section who is not
barred from a grant of asylum under paragraph (c) of this section, may
be granted asylum, in the exercise of the decision-maker's discretion,
if:
(A) The applicant has demonstrated compelling reasons for being
unwilling or unable to return to the country arising out of the severity
of the past persecution; or
(B) The applicant has established that there is a reasonable
possibility that he or she may suffer other serious harm upon removal to
that country.
(2) Well-founded fear of persecution. (i) An applicant has a well-
founded fear of persecution if:
(A) The applicant has a fear of persecution in his or her country of
nationality or, if stateless, in his or her country of last habitual
residence, on account of race, religion, nationality, membership in a
particular social group, or political opinion;
(B) There is a reasonable possibility of suffering such persecution
if he or she were to return to that country; and
(C) He or she is unable or unwilling to return to, or avail himself
or herself of the protection of, that country because of such fear.
(ii) An applicant does not have a well-founded fear of persecution
if the applicant could avoid persecution by relocating to another part
of the applicant's country of nationality or, if 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
[[Page 160]]
case, and are not necessarily determinative of whether it would be
reasonable for the applicant to relocate.
(i) In cases in which the applicant has not established past
persecution, the applicant shall bear the burden of establishing that it
would not be reasonable for him or her to relocate, unless the
persecution is by a government or is government-sponsored.
(ii) In cases in which the persecutor is a government or is
government-sponsored, or the applicant has established persecution in
the past, it shall be presumed that internal relocation would not be
reasonable, unless the Service establishes by a preponderance of the
evidence that, under all the circumstances, it would be reasonable for
the applicant to relocate.
(c) Mandatory denials--(1) Applications filed on or after April 1,
1997. For applications filed on or after April 1, 1997, an applicant
shall not qualify for asylum if section 208(a)(2) or 208(b)(2) of the
Act applies to the applicant. If the applicant is found to be ineligible
for asylum under either section 208(a)(2) or 208(b)(2) of the Act, the
applicant shall be considered for eligibility for withholding of removal
under section 241(b)(3) of the Act. The applicant shall also be
considered for eligibility for withholding of removal under the
Convention Against Torture if the applicant requests such consideration
or if the evidence presented by the alien indicates that the alien may
be tortured in the country of removal.
(2) Applications filed before April 1, 1997. (i) An immigration
judge or asylum officer shall not grant asylum to any applicant who
filed his or her application before April 1, 1997, if the alien:
(A) Having been convicted by a final judgment of a particularly
serious crime in the United States, constitutes a danger to the
community;
(B) Has been firmly resettled within the meaning of Sec. 208.15;
(C) Can reasonably be regarded as a danger to the security of the
United States;
(D) Has been convicted of an aggravated felony, as defined in
section 101(a)(43) of the Act; or
(E) Ordered, incited, assisted, or otherwise participated in the
persecution of any person on account of race, religion, nationality,
membership in a particular social group, or political opinion.
(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.
(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.
(3) Additional limitation on eligibility for asylum. For
applications filed after November 9, 2018, an alien shall be ineligible
for asylum if the alien is subject to a presidential proclamation or
other presidential order suspending or limiting the entry of aliens
along the southern border with Mexico that is issued pursuant to
subsection 212(f) or 215(a)(1) of the Act on or after November 9, 2018
and the alien enters the United States after the effective date of the
proclamation or order contrary to the terms of the proclamation or
order. This limitation on eligibility does not apply if the proclamation
or order expressly provides that it does not affect eligibility for
asylum, or expressly provides for a waiver or exception that makes the
suspension or limitation inapplicable to the alien.
[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65
FR 76133, Dec. 6, 2000; 83 FR 55952, Nov. 9, 2018]
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 RAIO, 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
[[Page 161]]
checked pursuant to section 208(d)(5)(A)(i) of the Act.
(c) Denial, referral, or dismissal by an asylum officer. If the
asylum officer does not grant asylum to an applicant after an interview
conducted in accordance with Sec. 208.9, or if, as provided in Sec.
208.10, the applicant is deemed to have waived his or her right to an
interview or an adjudication by an asylum officer, the asylum officer
shall deny, refer, or dismiss the application, as follows:
(1) Inadmissible or deportable aliens. Except as provided in
paragraph (c)(4) of this section, in the case of an applicant who
appears to be inadmissible or deportable under section 212(a) or 237(a)
of the Act, the asylum officer shall refer the application to an
immigration judge, together with the appropriate charging document, for
adjudication in removal proceedings (or, where charging documents may
not be issued, shall dismiss the application).
(2) Alien in valid status. In the case of an applicant who is
maintaining valid immigrant, nonimmigrant, or Temporary Protected Status
at the time the application is decided, the asylum officer shall deny
the application for asylum.
(3) Alien with valid parole. If an applicant has been paroled into
the United States and the parole has not expired or been terminated by
the Service, the asylum officer shall deny the application for asylum.
(4) Alien paroled into the United States whose parole has expired or
is terminated--(i) Alien paroled prior to April 1, 1997, or with advance
authorization for parole. In the case of an applicant who was paroled
into the United States prior to April 1, 1997, or who, prior to
departure from the United States, had received an advance authorization
for parole, the asylum officer shall refer the application, together
with the appropriate charging documents, to an immigration judge for
adjudication in removal proceedings if the parole has expired, the
Service has terminated parole, or the Service is terminating parole
through issuance of the charging documents, pursuant to Sec.
212.5(d)(2)(i) of this chapter.
(ii) Alien paroled on or after April 1, 1997, without advance
authorization for parole. In the case of an applicant who is an arriving
alien or is otherwise subject to removal under Sec. 235.3(b) of this
chapter, and was paroled into the United States on or after April 1,
1997, without advance authorization for parole prior to departure from
the United States, the asylum officer will take the following actions,
if the parole has expired or been terminated:
(A) Inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act.
If the applicant appears inadmissible to the United States under section
212(a)(6)(C) or 212(a)(7) of the Act and the asylum officer does not
intend to lodge any additional charges of inadmissibility, the asylum
officer shall proceed in accordance with Sec. 235.3(b) of this chapter.
If such applicant is found to have a credible fear of persecution or
torture based on information elicited from the asylum interview, an
asylum officer may refer the applicant directly to an immigration judge
in removal proceedings under section 240 of the Act, without conducting
a separate credible fear interview pursuant to Sec. 208.30. If such
applicant is not found to have a credible fear based on information
elicited at the asylum interview, an asylum officer will conduct a
credible fear interview and the applicant will be subject to the
credible fear process specified at Sec. 208.30(b).
(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
[[Page 162]]
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; 76 FR 53784, Aug. 29,
2011]
Sec. 208.15 Definition of ``firm resettlement.''
An alien is considered to be firmly resettled if, prior to arrival
in the United States, he or she entered into another country with, or
while in that country received, an offer of permanent resident status,
citizenship, or some other type of permanent resettlement unless he or
she establishes:
(a) That his or her entry into that country was a necessary
consequence of his or her flight from persecution, that he or she
remained in that country only as long as was necessary to arrange onward
travel, and that he or she did not establish significant ties in that
country; or
(b) That the conditions of his or her residence in that country were
so substantially and consciously restricted by the authority of the
country of refuge that he or she was not in fact resettled. In making
his or her determination, the asylum officer or immigration judge shall
consider the conditions under which other residents of the country live;
the type of housing, whether permanent or temporary, made available to
the refugee; the types and extent of employment available to the
refugee; and the extent to which the refugee received permission to hold
property and to enjoy other rights and privileges, such as travel
documentation that includes a right of entry or reentry, education,
public relief, or naturalization, ordinarily available to others
resident in the country.
[65 FR 76135, Dec. 6, 2000]
Sec. 208.16 Withholding of removal under section 241(b)(3)(B) of the Act
and withholding of removal under the Convention Against Torture.
(a) Consideration of application for withholding of removal. An
asylum officer shall not decide whether the exclusion, deportation, or
removal of an alien to a country where the alien's life or freedom would
be threatened must be withheld, except in the case of an alien who is
otherwise eligible for asylum but is precluded from being granted such
status due solely to section 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
[[Page 163]]
of removal on the basis of the original claim. This presumption may be
rebutted if an asylum officer or immigration judge finds by a
preponderance of the evidence:
(A) There has been a fundamental change in circumstances such that
the applicant's life or freedom would not be threatened on account of
any of the five grounds mentioned in this paragraph upon the applicant's
removal to that country; or
(B) The applicant could avoid a future threat to his or her life or
freedom by relocating to another part of the proposed country of removal
and, under all the circumstances, it would be reasonable to expect the
applicant to do so.
(ii) In cases in which the applicant has established past
persecution, the Service shall bear the burden of establishing by a
preponderance of the evidence the requirements of paragraphs
(b)(1)(i)(A) or (b)(1)(i)(B) of this section.
(iii) If the applicant's fear of future threat to life or freedom is
unrelated to the past persecution, the applicant bears the burden of
establishing that it is more likely than not that he or she would suffer
such harm.
(2) Future threat to life or freedom. An applicant who has not
suffered past persecution may demonstrate that his or her life or
freedom would be threatened in the future in a country if he or she can
establish that it is more likely than not that he or she would be
persecuted on account of race, religion, nationality, membership in a
particular social group, or political opinion upon removal to that
country. Such an applicant cannot demonstrate that his or her life or
freedom would be threatened if the asylum officer or immigration judge
finds that the applicant could avoid a future threat to his or her life
or freedom by relocating to another part of the proposed country of
removal and, under all the circumstances, it would be reasonable to
expect the applicant to do so. In evaluating whether it is more likely
than not that the applicant's life or freedom would be threatened in a
particular country on account of race, religion, nationality, membership
in a particular social group, or political opinion, the asylum officer
or immigration judge shall not require the applicant to provide evidence
that he or she would be singled out individually for such persecution
if:
(i) The applicant establishes that in that country there is a
pattern or practice of persecution of a group of persons similarly
situated to the applicant on account of race, religion, nationality,
membership in a particular social group, or political opinion; and
(ii) The applicant establishes his or her own inclusion in and
identification with such group of persons such that it is more likely
than not that his or her life or freedom would be threatened upon return
to that country.
(3) Reasonableness of internal relocation. For purposes of
determinations under paragraphs (b)(1) and (b)(2) of this section,
adjudicators should consider, among other things, whether the applicant
would face other serious harm in the place of suggested relocation; any
ongoing civil strife within the country; administrative, economic, or
judicial infrastructure; geographical limitations; and social and
cultural constraints, such as age, gender, 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
[[Page 164]]
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
subject to any reservations, understandings, declarations, and provisos
contained in the United States Senate resolution of ratification of the
Convention, as implemented by section 2242 of the Foreign Affairs Reform
and Restructuring Act of 1998 (Pub. L. 105-277, 112 Stat. 2681, 2681-
821). The definition of torture contained in Sec. 208.18(a) of this
part shall govern all decisions made under regulations under Title II of
the Act about the applicability of Article 3 of the Convention Against
Torture.
(2) The burden of proof is on the applicant for withholding of
removal under this paragraph to establish that it is more likely than
not that he or she would be tortured if removed to the proposed country
of removal. The testimony of the applicant, if credible, may be
sufficient to sustain the burden of proof without corroboration.
(3) In assessing whether it is more likely than not that an
applicant would be tortured in the proposed country of removal, all
evidence relevant to the possibility of future torture shall be
considered, including, but not limited to:
(i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a part of the
country of removal where he or she is not likely to be tortured;
(iii) Evidence of gross, flagrant or mass violations of human rights
within the country of removal, where applicable; and
(iv) Other relevant information regarding conditions in the country
of removal.
(4) In considering an application for withholding of removal under
the Convention Against Torture, the immigration judge shall first
determine whether the alien is more likely than not to be tortured in
the country of removal. If the immigration judge determines that the
alien is more likely than not to be tortured in the country of removal,
the alien is entitled to protection under the Convention Against
Torture. Protection under the Convention Against Torture will be granted
either in the form of withholding of removal or in the form of deferral
of removal. An alien entitled to such protection shall be granted
withholding of removal unless the alien is subject to mandatory denial
of withholding of removal under paragraphs (d)(2) or (d)(3) of this
section. If an alien entitled to such protection is subject to mandatory
denial of withholding of removal under paragraphs (d)(2) or (d)(3) of
this section, the alien's removal shall be deferred under Sec.
208.17(a).
(d) Approval or denial of application--(1) General. Subject to
paragraphs (d)(2) and (d)(3) of this section, an application for
withholding of deportation or removal to a country of proposed removal
shall be granted if the applicant's eligibility for withholding is
established pursuant to paragraphs (b) or (c) of this section.
(2) Mandatory denials. Except as provided in paragraph (d)(3) of
this section, an application for withholding of removal under section
241(b)(3) of the Act or under the Convention Against Torture shall be
denied if the applicant falls within section 241(b)(3)(B) of the Act or,
for applications for withholding 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
[[Page 165]]
only in the case of an applicant convicted of an aggravated felony (or
felonies) where he or she was sentenced to an aggregate term of
imprisonment of less than 5 years and the immigration judge determines
on an individual basis that the crime (or crimes) of which the applicant
was convicted does not constitute a particularly serious crime.
Nevertheless, it shall be presumed that an alien convicted of an
aggravated felony has been convicted of a particularly serious crime.
Except in the cases specified in this paragraph, the grounds for denial
of withholding of deportation in section 243(h)(2) of the Act as it
appeared prior to April 1, 1997, shall be deemed to comply with the
Protocol Relating to the Status of Refugees, Jan. 31, 1967, T.I.A.S. No.
6577.
(e) Reconsideration of discretionary denial of asylum. In the event
that an applicant is denied asylum solely in the exercise of discretion,
and the applicant is subsequently granted withholding of deportation or
removal under this section, thereby effectively precluding admission of
the applicant's spouse or minor children following to join him or her,
the denial of asylum shall be reconsidered. Factors to be considered
will include the reasons for the denial and reasonable alternatives
available to the applicant such as reunification with his or her spouse
or minor children in a third country.
(f) Removal to third country. Nothing in this section or Sec.
208.17 shall prevent the Service from removing an alien to a third
country other than the country to which removal has been withheld or
deferred.
[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65
FR 76135, Dec. 6, 2000]
Sec. 208.17 Deferral of removal under the Convention Against Torture.
(a) Grant of deferral of removal. An alien who: has been ordered
removed; has been found under Sec. 208.16(c)(3) to be entitled to
protection under the Convention Against Torture; and is subject to the
provisions for mandatory denial of withholding of removal under Sec.
208.16(d)(2) or (d)(3), shall be granted deferral of removal to the
country where he or she is more likely than not to be tortured.
(b) Notice to alien. (1) After an immigration judge orders an alien
described in paragraph (a) of this section removed, the immigration
judge shall inform the alien that his or her removal to the country
where he or she is more likely than not to be tortured shall be deferred
until such time as the deferral is terminated under this section. The
immigration judge shall inform the alien that deferral of removal:
(i) Does not confer upon the alien any lawful or permanent
immigration status in the United States;
(ii) Will not necessarily result in the alien being released from
the custody of the Service if the alien is subject to such custody;
(iii) Is effective only until terminated; and
(iv) Is subject to review and termination if the immigration judge
determines that it is not likely that the alien would be tortured in the
country to which removal has been deferred, or if the alien requests
that deferral be terminated.
(2) The immigration judge shall also inform the alien that removal
has been deferred only to the country in which it has been determined
that the alien is 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
[[Page 166]]
the possibility that the alien would be tortured in the country to which
removal has been deferred and that was not presented at the previous
hearing. The Service motion shall not be subject to the requirements for
reopening in Sec. Sec. 3.2 and 3.23 of this chapter.
(2) The Immigration Court shall provide notice to the alien and the
Service of the time, place, and date of the termination hearing. Such
notice shall inform the alien that the alien may supplement the
information in his or her initial application for withholding of removal
under the Convention Against Torture and shall provide that the alien
must submit any such supplemental information within 10 calendar days of
service of such notice (or 13 calendar days if service of such notice
was by mail). At the expiration of this 10 or 13 day period, the
Immigration Court shall forward a copy of the original application, and
any supplemental information the alien or the Service has submitted, to
the Department of State, together with notice to the Department of State
of the time, place and date of the termination hearing. At its option,
the Department of State may provide comments on the case, according to
the provisions of Sec. 208.11 of this part.
(3) The immigration judge shall conduct a hearing and make a de novo
determination, based on the record of proceeding and initial application
in addition to any new evidence submitted by the Service or the alien,
as to whether the alien is more likely than not to be tortured in the
country to which removal has been deferred. This determination shall be
made under the standards for eligibility set out in Sec. 208.16(c). The
burden is on the alien to establish that it is more likely than not that
he or she would be tortured in the country to which removal has been
deferred.
(4) If the immigration judge determines that the alien is more
likely than not to be tortured in the country to which removal has been
deferred, the order of deferral shall remain in place. If the
immigration judge determines that the alien has not established that he
or she is more likely than not to be tortured in the country to which
removal has been deferred, the deferral of removal shall be terminated
and the alien may be removed to that country. Appeal of the immigration
judge's decision shall lie to the Board.
(e) Termination at the request of the alien. (1) At any time while
deferral of removal is in effect, the alien may make a written request
to the Immigration Court having administrative control pursuant to Sec.
3.11 of this chapter to terminate the deferral order. If satisfied on
the basis of the written submission that the alien's request is knowing
and voluntary, the immigration judge shall terminate the order of
deferral and the alien may be removed.
(2) If necessary the immigration judge may calendar a hearing for
the sole purpose of determining whether the alien's request is knowing
and voluntary. If the immigration judge determines that the alien's
request is knowing and voluntary, the order of deferral shall be
terminated. If the immigration judge determines that the alien's request
is not knowing and voluntary, the alien's request shall not serve as the
basis for terminating the order of deferral.
(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
[[Page 167]]
intimidating or coercing him or her or a third person, or for any reason
based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity.
(2) Torture is an extreme form of cruel and inhuman treatment and
does not include lesser forms of cruel, inhuman or degrading treatment
or punishment that do not amount to torture.
(3) Torture does not include pain or suffering arising only from,
inherent in or incidental to lawful sanctions. Lawful sanctions include
judicially imposed sanctions and other enforcement actions authorized by
law, including the death penalty, but do not include sanctions that
defeat the object and purpose of the Convention Against Torture to
prohibit torture.
(4) In order to constitute torture, mental pain or suffering must be
prolonged mental harm caused by or resulting from:
(i) The intentional infliction or threatened infliction of severe
physical pain or suffering;
(ii) The administration or application, or threatened administration
or application, of mind altering substances or other procedures
calculated to disrupt profoundly the senses or the personality;
(iii) The threat of imminent death; or
(iv) The threat that another person will imminently be subjected to
death, severe physical pain or suffering, or the administration or
application of mind altering substances or other procedures calculated
to disrupt profoundly the sense or personality.
(5) In order to constitute torture, an act must be specifically
intended to inflict severe physical or mental pain or suffering. An act
that results in unanticipated or unintended severity of pain and
suffering is not torture.
(6) In order to constitute torture an act must be directed against a
person in the offender's custody or physical control.
(7) Acquiescence of a public official requires that the public
official, prior to the activity constituting torture, have awareness of
such activity and thereafter breach his or her legal responsibility to
intervene to prevent such activity.
(8) Noncompliance with applicable legal procedural standards does
not per se constitute torture.
(b) Applicability of Sec. Sec. 208.16(c) and 208.17(a)--(1) Aliens
in proceedings on or after March 22, 1999. An alien who is in exclusion,
deportation, or removal proceedings on or after March 22, 1999 may apply
for withholding of removal under Sec. 208.16(c), and, if applicable,
may be considered for deferral of removal under Sec. 208.17(a).
(2) Aliens who were ordered removed, or whose removal orders became
final, before March 22, 1999. An alien under a final order of
deportation, exclusion, or removal that became final prior to March 22,
1999 may move to reopen proceedings for the sole purpose of seeking
protection under Sec. 208.16(c). Such motions shall be governed by
Sec. Sec. 3.23 and 3.2 of this chapter, except that the time and
numerical limitations on motions to reopen shall not apply and the alien
shall not be required to demonstrate that the evidence sought to be
offered was unavailable and could not have been discovered or presented
at the 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
[[Page 168]]
whose request has not been finally decided by the Service, the Service
shall provide written notice that, after March 22, 1999, consideration
for protection under Article 3 can be obtained only through the
provisions of this rule.
(A) The notice shall inform an alien who is under an order of
removal issued by EOIR that, in order to seek consideration of a claim
under Sec. Sec. 208.16(c) or 208.17(a), such an alien must file a
motion to reopen with the immigration court or the Board of Immigration
Appeals. This notice shall be accompanied by a stay of removal,
effective until 30 days after service of the notice on the alien. A
motion to reopen filed under this paragraph for the limited purpose of
asserting a claim under Sec. Sec. 208.16(c) or 208.17(a) shall not be
subject to the requirements for reopening in Sec. Sec. 3.2 and 3.23 of
this chapter. Such a motion shall be granted if it is accompanied by a
copy of the notice described in paragraph (b)(3)(ii) or by other
convincing evidence that the alien had a request pending with the
Service for protection under Article 3 of the Convention Against Torture
on March 22, 1999. The filing of such a motion shall extend the stay of
removal during the pendency of the adjudication of this motion.
(B) The notice shall inform an alien who is under an administrative
order of removal issued by the Service under section 238(b) of the Act
or an exclusion, deportation, or removal order reinstated by the Service
under section 241(a)(5) of the Act that the alien's claim to withholding
of removal under Sec. 208.16(c) or deferral of removal under Sec.
208.17(a) will be considered under Sec. 208.31.
(C) The notice shall inform an alien who is under an administrative
order of removal issued by the Service under section 235(c) of the Act
that the alien's claim to protection under the Convention Against
Torture will be decided by the Service as provided in Sec. 208.18(d)
and 235.8(b)(4) and will not be considered under the provisions of this
part relating to consideration or review by an immigration judge, the
Board of Immigration Appeals, or an asylum officer.
(4) Aliens whose claims to protection under the Convention Against
Torture were finally decided by the Service prior to March 22, 1999.
Sections 208.16(c) and 208.17 (a) and paragraphs (b)(1) through (b)(3)
of this section do not apply to cases in which, prior to March 22, 1999,
the Service has made a final administrative determination about the
applicability of Article 3 of the Convention Against Torture to the case
of an alien who filed a request with the Service for protection under
Article 3. If, prior to March 22, 1999, the Service determined that an
applicant cannot be removed consistent with the Convention Against
Torture, the alien shall be considered to have been granted withholding
of removal under Sec. 208.16(c), unless the alien is subject to
mandatory denial of withholding of removal under Sec. 208.16(d)(2) or
(d)(3), in which case the alien will be considered to have been granted
deferral of removal under 208.17(a). If, prior to March 22, 1999, the
Service determined that an alien can be removed consistent with the
Convention Against Torture, the alien will be considered to have been
finally denied withholding of removal under Sec. 208.16(c) and deferral
of removal under Sec. 208.17(a).
(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,
[[Page 169]]
the alien's claim for protection under the Convention Against Torture
shall not be considered further by an immigration judge, the Board of
Immigration Appeals, or an asylum officer.
(d) Cases involving aliens ordered removed under section 235(c) of
the Act. With respect to an alien terrorist or other alien subject to
administrative removal under section 235(c) of the Act who requests
protection under Article 3 of the Convention Against Torture, the
Service will assess the applicability of Article 3 through the removal
process to ensure that a removal order will not be executed under
circumstances that would violate the obligations of the United States
under Article 3. In such cases, the provisions of Part 208 relating to
consideration or review by an immigration judge, the Board of
Immigration Appeals, or an asylum officer shall not apply.
(e) Judicial review of claims for protection from removal under
Article 3 of the Convention Against Torture. (1) Pursuant to the
provisions of section 2242(d) of the Foreign Affairs Reform and
Restructuring Act of 1998, there shall be no judicial appeal or review
of any action, decision, or claim raised under the Convention or that
section, except as part of the review of a final order of removal
pursuant to section 242 of the Act; provided however, that any appeal or
petition regarding an action, decision, or claim under the Convention or
under section 2242 of the Foreign Affairs Reform and Restructuring Act
of 1998 shall not be deemed to include or authorize the consideration of
any administrative order or decision, or portion thereof, the appeal or
review of which is restricted or prohibited by the Act.
(2) Except as otherwise expressly provided, nothing in this
paragraph shall be construed to create a private right of action or to
authorize the consideration or issuance of administrative or judicial
relief.
[64 FR 8490, Feb. 19, 1999; 64 FR 13881, Mar. 23, 1999]
Sec. 208.19 Decisions.
The decision of an asylum officer to grant or to deny asylum or to
refer an asylum application, in accordance with Sec. 208.14(b) or (c),
shall be communicated in writing to the applicant. Pursuant to Sec.
208.9(d), an applicant must appear in person to receive and to
acknowledge receipt of the decision to grant or deny asylum, or to refer
an asylum application unless, in the discretion of the asylum office
director, service by mail is appropriate. A letter communicating denial
of asylum or referral of the application shall state the basis for
denial or referral and include an assessment of the applicant's
credibility.
[65 FR 76136, Dec. 6, 2000]
Sec. 208.20 Determining if an asylum application is frivolous.
For applications filed on or after April 1, 1997, an applicant is
subject to the provisions of section 208(d)(6) of the Act only if a
final order by an immigration judge or the Board of Immigration Appeals
specifically finds that the alien knowingly filed a frivolous asylum
application. For purposes of this section, an asylum application is
frivolous if any of its material elements is deliberately fabricated.
Such finding shall only be made if the immigration judge or the Board is
satisfied that the 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.
[[Page 170]]
(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 benefit request, the asylee may request accompanying or
following-to-join benefits for his or her spouse or child, by filing for
each qualifying family member a Request for Refugee/Asylee Relative,
with supporting evidence, and in accordance with the form instructions,
regardless of the status of that spouse or child in the United States. A
separate Request for Refugee/Asylee Relative must be filed by the asylee
for each qualifying family member within two years of the date in which
he or she was granted asylum status, unless it is determined by USCIS
that this period should be extended for humanitarian reasons. Upon
approval of the Request for Refugee/Asylee Relative, USCIS will notify
the asylee of such approval. Employment will be authorized incident to
status. To demonstrate employment authorization, USCIS will issue a
document reflecting the derivative's current status as an asylee, or the
derivative may apply, under 8 CFR 274a.12(a), for employment
authorization. The approval of the Request for Refugee/Asylee Relative
will 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 Request for Refugee/Asylee Relative 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 or
her spouse or child(ren) by filing a separate Request for Refugee/Asylee
Relative for each qualifying family member in accordance with the form
instructions. A separate Request for Refugee/Asylee Relative for each
qualifying family member must be filed within two years of the date in
which the asylee was granted asylum, unless USCIS determines that the
filing period should be extended for humanitarian reasons. When the
Request for Refugee/Asylee Relative is approved, USCIS will notify the
asylee of such approval. USCIS also will send the approved request to
the Department of State for transmission to the U.S. Embassy or
Consulate having jurisdiction over the area in which the asylee's spouse
or child is located. The approval of the Request for Refugee/Asylee
Relative will 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 Request for Refugee/Asylee Relative
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
[[Page 171]]
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; 76 FR 53784, Aug. 29, 2011; 76 FR
73476, Nov. 29, 2011]
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 USCIS. Except as provided in paragraph
(e) of this section, an asylum officer may terminate a grant of asylum
made under the jurisdiction of USCIS 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 USCIS.
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 USCIS 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,
[[Page 172]]
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 8 CFR 1003.2 and 8 CFR 1003.23 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 USCIS at any time after the
alien has been provided a notice of intent to terminate by USCIS. 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 further redesignated and amended at 65 FR 76136, Dec. 6, 2000; 76 FR
53785, Aug. 29, 2011; 78 FR 22771, Apr. 17, 2013]
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 who are found inadmissible pursuant to section 212(a)(6)(C) or
212(a)(7) of the Act or whose entry is limited or suspended under section 212(f)
or 215(a)(1) of the Act.
(a) Jurisdiction. The provisions of this subpart B 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, DHS 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 B, 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. Prior to January 1, 2015, an alien present in or arriving in
the Commonwealth of the Northern Mariana Islands is ineligible to apply
for asylum and may only establish eligibility for withholding of removal
pursuant to section 241(b)(3) of the Act or withholding or deferral of
removal under the Convention Against Torture.
(b) Treatment of dependents. A spouse or child of an alien may be
included in
[[Page 173]]
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.
(4) The alien may consult with a person or persons of the alien's
choosing prior to the interview or any review thereof, and may present
other evidence, if available. Such consultation shall be at no expense
to the Government and shall not unreasonably delay the process. Any
person or persons with whom the alien chooses to consult may be present
at the interview and may be permitted, in the discretion of the asylum
officer, to present a statement at the end of the interview. The asylum
officer, in his or her discretion, may place reasonable limits on the
number of persons who may be present at the interview and on the length
of the statement.
(5) If the alien is unable to proceed effectively in English, and if
the asylum officer is unable to proceed competently in a language chosen
by the alien, the asylum officer shall arrange for the assistance of an
interpreter in conducting the interview. The interpreter must be at
least 18 years of age and may not be the applicant's attorney or
representative of record, a witness testifying on the applicant's
behalf, a representative or employee of the applicant's country of
nationality, or, if the applicant is stateless, the applicant's country
of last habitual residence.
(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. However, prior to January
1, 2015, in the case of an alien physically present in or arriving in
the Commonwealth of the Northern Mariana Islands, the officer may only
find a credible fear of persecution if there is a significant
possibility that the alien can establish eligibility for withholding of
removal pursuant to 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
[[Page 174]]
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). If the alien is found to be an alien described in 8
CFR 208.13(c)(3), then the asylum officer shall enter a negative
credible fear determination with respect to the alien's application for
asylum. The Department shall nonetheless place the alien in proceedings
under section 240 of the Act for full consideration of the alien's claim
for withholding of removal under section 241(b)(3) of the Act, or for
withholding or deferral of removal under the Convention Against Torture
if the alien establishes a reasonable fear of persecution or torture.
However, if an alien fails to establish, during the interview with the
asylum officer, a reasonable fear of either persecution or torture, the
asylum officer will provide the alien with a written notice of decision,
which will be subject to immigration judge review consistent with
paragraph (g) of this section, except that the immigration judge will
review the reasonable fear findings under the reasonable fear standard
instead of the credible fear standard described in paragraph (g) and in
8 CFR 1208.30(g).
(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 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
[[Page 175]]
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 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.
[[Page 176]]
(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; 74
FR 55737, Oct. 28, 2009; 76 FR 53785, Aug. 29, 2011; 83 FR 55952, Nov.
9, 2018]
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. USCIS 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, 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.
[[Page 177]]
(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; 76 FR 53785,
Aug. 29, 2011]
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;
Title VII of Public Law 110-229; 8 CFR part 2.
Sec. 209.1 Adjustment of status of refugees.
The provisions of this section shall provide the sole and exclusive
procedure for adjustment of status by a refugee admitted under section
207 of the Act whose application is based on his or her refugee status.
(a) Eligibility. (1) Every alien in the United States who is
classified as a refugee under 8 CFR part 207, whose status has not been
terminated, is required to apply to USCIS one year after entry in order
for USCIS to determine his or her admissibility under section 212 of the
Act, without regard to paragraphs (4), (5), and (7)(A) of section 212(a)
of the Act.
(2) Every alien processed by the Immigration and Naturalization
Service
[[Page 178]]
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 will be notified of the requirement to submit an application for
permanent residence one year after entry. An application for the
benefits of section 209(a) of the Act must be submitted along with the
biometrics required by 8 CFR 103.16 and in accordance with the
applicable form instructions.
(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.
(d) Interview. USCIS 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. USCIS will notify the applicant in writing of the
decision on his or her application. There is no appeal of a denial, but
USCIS will notify an applicant of the right to renew the request for
permanent residence in removal proceedings under section 240 of the Act.
If the applicant is found to be admissible for permanent residence under
section 209(a) of the Act, USCIS will approve the application, admit the
applicant for lawful permanent residence as of the date of the alien's
arrival in the United States, and issue proof of such status.
(f) Inadmissible Alien. An applicant who is inadmissible to the
United States as described in 8 CFR 209.1(a)(1), may, under section
209(c) of the Act, have the grounds of inadmissibility waived by USCIS
except for those grounds under sections 212(a)(2)(C) and 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. An application
for the waiver may be requested with the application for adjustment, in
accordance with the form instructions.
[63 FR 30109, June 3, 1998, as amended at 76 FR 53785, Aug. 29, 2011]
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) or
(a)(3) of this section, the status of any alien who has been granted
asylum in the United States may be adjusted by USCIS 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.
(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 USCIS 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
[[Page 179]]
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.
(3) No alien arriving in or physically present in the Commonwealth
of the Northern Mariana Islands may apply to adjust status under section
209(b) of the Act in the Commonwealth of the Northern Mariana Islands
prior to January 1, 2015.
(b) Inadmissible alien. An applicant who is not admissible to the
United States as described in 8 CFR 209.2(a)(1)(v), may, under section
209(c) of the Act, have the grounds of inadmissibility waived by USCIS
except for those grounds under sections 212(a)(2)(C) and 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. An application
for the waiver may be requested with the application for adjustment, in
accordance with the form instructions. An applicant for adjustment under
this part 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 if
otherwise eligible for adjustment.
(c) Application. An application for the benefits of section 209(b)
of the Act may be filed in accordance with the form instructions. If an
alien has been placed in removal, deportation, or exclusion proceedings,
the application can be filed and considered only in proceedings under
section 240 of the Act.
(d) Medical examination. For an alien seeking adjustment of status
under section 209(b) of the Act, the alien shall submit a medical
examination to determine whether any grounds of inadmissibility
described under section 212(a)(1)(A) of the Act apply. The asylee is
also required to establish compliance with the vaccination requirements
described under section 212(a)(1)(A)(ii) of the Act.
(e) Interview. USCIS 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. USCIS will notify the applicant in writing of the
decision on his or her application. There is no appeal of a denial, but
USCIS will notify an applicant of the right to renew the request in
removal proceedings under section 240 of the Act. If the application is
approved, USCIS will 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; 74 FR 55737,
Oct. 28, 2009; 76 FR 53785, Aug. 29, 2011]
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.
[[Page 180]]
(d) Complete application. A complete application consists of an
executed Form I-700, Application for Temporary Resident Status as a
Special Agricultural Worker, evidence of qualifying agricultural
employment and residence, a report of medical examination, and the
prescribed number of photographs. An application is not complete until
the required fee has been paid and recorded.
(e) Determination process. Determination process as used in this
part means reviewing and evaluating all information provided pursuant to
an application for the benefit sought and making a determination
thereon. If fraud, willful misrepresentation of a material fact, a false
writing or document, or any other activity prohibited by section
210(b)(7) of the Act is discovered during the determination process the
Service shall refer the case to a U.S. Attorney for possible
prosecution.
(f) Family unity. The term family unity as used in section
210(c)(2)(B)(i) of the Act means maintaining the family group without
deviation or change. The family group shall include the spouse,
unmarried minor children who are not members of some other household,
and parents who reside regularly in the household of the family group.
(g) Group 1. Special agricultural workers who have performed
qualifying agricultural employment in the United States for at least 90
man-days in the aggregate in each of the twelve-month periods ending on
May 1, 1984, 1985, and 1986, and who have resided in the United States
for six months in the aggregate in each of those twelve-month periods.
(h) Group 2. Special agricultural workers who during the twelve-
month period ending on May 1, 1986 have performed at least 90 man-days
in the aggregate of qualifying agricultural employment in the United
States.
(i) Legalization Office. Legalization offices are local offices of
the Immigration and Naturalization Service which 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.
[[Page 181]]
(m) Preliminary application. A preliminary application is defined as
a fully completed and signed application with fee and photographs which
contains specific information concerning the performance of qualifying
employment in the United States, and identifies documentary evidence
which the applicant intends to submit as proof of such employment. The
applicant must be otherwise admissible to the United States and must
establish to the satisfaction of the examining officer during an
interview that his or her claim to eligibility for special agriculture
worker status is credible.
(n) Public cash assistance. Public cash assistance means income or
needs-based monetary assistance. This includes but is not limited to
supplemental security income received by the alien or his immediate
family members through federal, state, or local programs designed to
meet subsistence levels. It does not include assistance in kind, such as
food stamps, public housing, or other non-cash benefits, nor does it
include work-related compensation or certain types of medical assistance
(Medicare, Medicaid, emergency treatment, services to pregnant women or
children under 18 years of age, or treatment in the interest of public
health).
(o) Qualified designated entity. A qualified designated entity is
any state, local, church, community, or voluntary agency, farm labor
organization, association of agricultural employers or individual
designated by the Service to assist aliens in the preparation of
applications for Legalization and/or Special Agricultural Worker status.
(p) Qualifying agricultural employment. Qualifying agricultural
employment means the performance of ``seasonal agricultural services''
described at section 210(h) of the Act as that term is defined in
regulations by the Secretary of Agriculture at 7 CFR part 1d.
(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
[[Page 182]]
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 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.
[[Page 183]]
(i) Admission standard. The applicant must present a fully completed
and signed Form I-700, Application for Temporary Resident Status with
the required fee and photographs at a designated port of entry. The
application must contain specific information concerning the performance
of qualifying employment in the United States and identify documentary
evidence which the applicant intends to submit as proof of such
employment. The applicant must establish to the satisfaction of the
examining officer during an interview that his or her claim to
eligibility for special agricultural worker classification is credible,
and that he or she is otherwise admissible to the United States under
the provisions of Sec. 210.3(e) of this part including, if required,
approval of an application for waiver of grounds of excludability.
(ii) Procedures. The fee for any application under this paragraph
including applications for waivers of grounds of excludability, must be
submitted in United States currency. Application fees shall not be
collected until the examining immigration officer has determined that
the applicant has presented a preliminary application and is admissible
to the United States including, if required, approval of an application
for waiver of grounds of excludability as provided in this paragraph.
Applicants at designated ports of entry must present proof of identity
in the form of a valid passport, a ``cartilla'' (Mexican military
service registration booklet), a Form 13 (``Forma trece''--Mexican lieu
passport identity document), or a certified copy of a birth certificate
accompanied by additional evidence of identity bearing a photograph and/
or fingerprint of the applicant. Upon a determination by an immigration
officer at a designated port of entry that an applicant has presented a
preliminary application, the applicant shall be admitted to the United
States as an applicant for special agricultural worker status. All
preliminary applicants shall be considered as prospective applicants for
the Group 2 classification. However, such applicants may later submit a
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.
[[Page 184]]
(e) Limitation on access to information and confidentiality. (1)
Except for consular officials engaged in the processing of applications
overseas and employees of a qualified designated entity where an
application is filed with that entity, no person other than a sworn
officer or employee of the Department of Justice or bureau or agency
thereof, or contract personnel employed by the Service to work in
connection with the legalization program, will be permitted to examine
individual applications.
(2) Files and records prepared by qualified designated entities
under this section are confidential. The Attorney General and the
Service shall not have access to these files and records without the
consent of the alien.
(3) All information furnished pursuant to an application for
temporary resident status under this part including documentary evidence
filed with the application shall be used only in the determination
process, including a determination under Sec. 210.4(d) of this part, or
to enforce the provisions of section 210(b)(7) of the Act, relating to
prosecutions for fraud and false statements made in connection with
applications, as provided in paragraph (e)(4) of this section.
(4) If a determination is made by the Service that the alien has, in
connection with his or her application, engaged in fraud or willful
misrepresentation or concealment of a material fact, knowingly provided
a false writing or document in making his or her application, knowingly
made a false statement or representation, or engaged in any other
activity prohibited by section 210(b)(7) of the Act, the Service shall
refer the matter to the U.S. Attorney for prosecution of the alien or
any person who created or supplied a false writing or document for use
in an application for adjustment of status under this part.
(f) Decision. The applicant shall be notified in writing of the
decision and, if the application is denied, of the reason(s) therefor.
An adverse decision under this part including an overseas application
may be appealed to the Associate Commissioner, Examinations
(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
[[Page 185]]
office is authorized to certify a decision in the same manner and upon
the same basis.
[53 FR 10064, Mar. 29, 1988, as amended at 55 FR 12629, Apr. 5, 1990; 60
FR 21975, May 4, 1995]
Sec. 210.3 Eligibility.
(a) General. An alien who, during the twelve-month period ending on
May 1, 1986, has engaged in qualifying agricultural employment in the
United States for at least 90 man-days is eligible for status as an
alien lawfully admitted for temporary residence if otherwise admissible
under the provisions of section 210(c) of the Act and if he or she is
not ineligible under the provisions of paragraph (d) of this section.
(b) Proof of eligibility--(1) Burden of proof. An alien applying for
adjustment of status under this part has the burden of proving by a
preponderance of the evidence that he or she has worked the requisite
number of man-days, is admissible to the United States under the
provisions of section 210(c) of the Act, is otherwise eligible for
adjustment of status under this section and in the case of a Group 1
applicant, has resided in the United States for the requisite periods.
If the applicant cannot provide documentation which shows qualifying
employment for each of the requisite man-days, or in the case of a Group
1 applicant, which meets the residence requirement, the applicant may
meet his or her burden of proof by providing documentation sufficient to
establish the requisite employment or residence as a matter of just and
reasonable inference. The inference to be drawn from the documentation
provided shall depend on the extent of the documentation, its
credibility and amenability to verification as set forth in paragraphs
(b)(2) and (3) of this section. If an applicant establishes that he or
she has in fact performed the requisite qualifying agricultural
employment by producing sufficient evidence to show the extent of that
employment as a matter of just and reasonable inference, the burden then
shifts to the Service to disprove the applicant's evidence by showing
that the inference drawn from the evidence is not reasonable.
(2) Evidence. The sufficiency of all evidence produced by the
applicant will 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
[[Page 186]]
be approved in the absence of the employer or farm labor contractor
records. Provided each of these conditions has been met, and after
unsuccessful attempts by the Service for voluntary compliance, the
District Directors shall utilize section 235 of the Immigration and
Nationality Act and issue a subpoena in accordance with 8 CFR 287.4, in
such cases where the employer or farm labor contractor refuses to
release the needed employment records.
(c) Documents. A complete application for adjustment of status must
be accompanied by proof of identity, evidence of qualifying employment,
evidence of residence and such evidence of admissibility or eligibility
as may be requested by the examining immigration officer in accordance
with requirements specified in this part. At the time of filing,
certified copies of documents may be submitted in lieu of originals.
However, at the time of the interview, wherever possible, the original
documents must be presented except for the following: Official
government records; employment or employment related records maintained
by employers, unions, or collective bargaining organizations; medical
records; school records maintained by a school or school board; or other
records maintained by a party other than the applicant. Copies of
records maintained by parties other than the applicant which are
submitted in evidence must be certified as true and correct by such
parties and must bear their seal or signature or the signature and title
of persons authorized to act in their behalf. If at the time of the
interview the return of original documents is desired by the applicant,
they must be accompanied by notarized copies or copies certified true
and correct by a qualified designated entity or by the alien's
representative in the format prescribed in Sec. 204.2(j)(1) or (2) of
this chapter. At the discretion of the district director or consular
officer, original documents, even if accompanied by certified copies,
may be temporarily retained for further examination.
(1) Proof of identity. Evidence to establish identity is listed
below in descending order of preference:
(i) Passport;
(ii) Birth certificate;
(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
[[Page 187]]
of his or her immediate family with organizations providing services to
farmworkers, or work records such as pay stubs, piece work receipts, W-2
Forms or certification of the filing of Federal income tax returns on
IRS Form 6166, or state verification of the filing of state income tax
returns. Affidavits may be submitted under oath, by agricultural
producers, foremen, farm labor contractors, union officials, fellow
employees, or other persons with specific knowledge of the applicant's
employment. The affiant must be identified by name and address; the name
of the applicant and the relationship of the affiant to the applicant
must be stated; and the source of the information in the affidavit (e.g.
personal knowledge, reliance on information provided by others, etc.)
must be indicated. The affidavit must also provide information regarding
the crop and the type of work performed by the applicant and the period
during which such work was performed. The affiant must provide a
certified copy of corroborating records or state the affiant's
willingness to personally verify the information provided. The weight
and probative value of any affidavit accepted will be determined on the
basis of the substance of the affidavit and any documents which may be
affixed thereto which may corroborate the information provided.
(4) Proof of residence. Evidence to establish residence in the
United States during the requisite period(s) includes: Employment
records as described in paragraph (c)(3) of this section; utility bills
(gas, electric, phone, etc.), receipts, or letters from companies
showing the dates during which the applicant received service; school
records (letters, report cards, etc.) from the schools that the
applicant or his or her children have attended in the United States
showing the name of school, name and, if available, address of student,
and periods of attendance, and hospital or medical records showing
similar information; attestations by churches, unions, or other
organizations to the applicant's residence by letter which: Identify
applicant by name, are signed by an official (whose title is shown),
show inclusive dates of membership, state the address where 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;
[[Page 188]]
(3) An alien who has been convicted of a felony, or three or more
misdemeanors.
(e) Exclusion grounds--(1) Grounds of exclusion not to be applied.
Sections (14), (20), (21), (25), and (32) of section 212(a) of the Act
shall not apply to applicants applying for temporary resident status.
(2) Waiver of grounds for exclusion. Except as provided in paragraph
(e)(3) of this section, the Service may waive any other provision of
section 212(a) of the Act only in the case of individual aliens for
humanitarian purposes, to assure family unity, or when the granting of
such a waiver is in the public interest. If an alien is excludable on
grounds which may be waived as set forth in this paragraph, he or she
shall be advised of the procedures for applying for a waiver of grounds
of excludability on Form I-690. When an application for waiver of
grounds of excludability is submitted in conjunction with an application
for temporary residence under this section, it shall be accepted for
processing at the legalization office, overseas processing office, or
designated port of entry. If an application for waiver of grounds of
excludability is submitted after the alien's preliminary interview at
the legalization office it shall be forwarded to the appropriate
regional processing facility. All applications for waivers of grounds of
excludability must be accompanied by the correct fee in the exact
amount. All fees for applications filed in the United States other than
those within the provisions of Sec. 210.2(c)(4) must be in the form of
a money order, cashier's check, or bank check. No personal checks or
currency will be accepted. Fees for waiver applications filed at the
designated port of entry under the preliminary application standard must
be submitted in United States currency. Fees will not be waived or
refunded under any circumstances. Generally, an application for waiver
of grounds of excludability under this part submitted at a legalization
office or overseas processing office will be approved or denied by the
director of the regional processing facility in whose jurisdiction the
applicant's application for adjustment of status was filed. However, in
cases involving 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
[[Page 189]]
is likely to become a public charge. Past acceptance of public cash
assistance within a history of consistent employment will enter into
this decision. The weight given in considering applicability of the
public charge provisions will depend on many factors, but the length of
time an applicant has received public cash assistance will constitute a
significant factor.
[53 FR 10064, Mar. 29, 1988, as amended at 53 FR 27335, July 20, 1988;
54 FR 4757, Jan. 31, 1989; 55 FR 12629, Apr. 5, 1990]
Sec. 210.4 Status and benefits.
(a) Date of adjustment. The status of an alien whose application for
temporary resident status is approved shall be adjusted to that of a
lawful temporary resident as of the date on which the fee was paid at a
legalization office, except that the status of an alien who applied for
such status at an overseas processing office whose application has been
recommended for approval by that office shall be adjusted as of the date
of his or her admission into the United States.
(b) Employment and travel authorization--(1) General. Authorization
for employment and travel abroad for temporary resident status
applicants under section 210 of the Act be granted by the INS. In the
case of an application which has been filed with a qualified designated
entity, employment authorization may only be granted after a
nonfrivolous application has been received at a legalization office, and
receipt of the fee has been recorded.
(2) Employment and travel authorization prior to the granting of
temporary resident status. Permission to travel abroad and to accept
employment will be granted to the applicant after an interview has been
conducted in connection with a nonfrivolous application at a Service
office. If an interview appointment cannot be scheduled within 30 days
from the date an application is filed at a Service office, authorization
to accept employment will be granted, valid until the scheduled
appointment date. Employment authorization, both prior and subsequent to
an interview, 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
[[Page 190]]
final order of deportation by an immigration judge based on a
determination that the alien is deportable under section 241 of the Act.
(2) The status of an alien lawfully admitted for temporary residence
under section 210(a)(2) of the Act, may be terminated before the alien
becomes eligible for adjustment of status under Sec. 210.5 of this
part, upon the occurrence of any of the following:
(i) It is determined by a preponderance of the evidence that the
adjustment to temporary resident status was the result of fraud or
willful misrepresentation as provided in section 212(a)(19) of the Act;
(ii) The alien commits an act which renders him or her inadmissible
as an immigrant, unless a waiver is secured pursuant to Sec.
210.3(e)(2) of this part;
(iii) The alien is convicted of any felony, or three or more
misdemeanors in the United States.
(3) Procedure. (i) Termination of an alien's status under paragraph
(d)(2) of this section will be made only on notice to the alien sent by
certified mail directed to his or her last known address, and to his or
her representative. The alien must be given an opportunity to offer
evidence in opposition to the grounds alleged for termination of his or
her status. Evidence in opposition must be submitted within thirty (30)
days after the service of the Notice of Intent to Terminate. If the
alien's status is terminated, the director of the regional processing
facility shall notify the alien of the decision and the reasons for the
termination, and further notify the alien that any Service Form I-94
(see Sec. 1.4), 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; 78 FR 18472, Mar. 27, 2013]
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.
[[Page 191]]
(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 visa or other travel document.
211.4 Waiver of documents for returning residents.
211.5 Alien commuters.
Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257; 8 CFR
part 2.
Source: 62 FR 10346, Mar. 6, 1997, unless otherwise noted.
Sec. 211.1 Visas.
(a) General. Except as provided in paragraph (b)(1) of this section,
each arriving alien applying for admission (or boarding the vessel or
aircraft on which he or she arrives) into the United States for lawful
permanent residence, or as a lawful permanent resident returning to an
unrelinquished lawful permanent residence in the United States, shall
present one of the following:
(1) A valid, unexpired immigrant visa;
(2) A valid, unexpired Form I-551, Permanent Resident Card, if
seeking readmission after a temporary absence of less than 1 year, or in
the case of a crewmember regularly serving on board a vessel or aircraft
of United States registry seeking readmission after any temporary
absence connected with his or her duties as a crewman;
(3) A valid, unexpired Form I-327, Permit to Reenter the United
States;
(4) A valid, unexpired Form I-571, Refugee Travel Document, properly
endorsed to reflect admission as a lawful permanent resident;
(5) An expired Form I-551, Permanent Resident Card, accompanied by a
filing receipt issued within the previous 6 months for either a Form I-
751, Petition to Remove the Conditions on Residence, or Form I-829,
Petition by Entrepreneur to Remove Conditions, if seeking admission or
readmission after a temporary absence of less than 1 year;
(6) A Form I-551, whether or not expired, presented by a civilian or
military employee of the United States Government who was outside the
United States pursuant to official orders, or by the spouse or child of
such employee who resided abroad while the employee or serviceperson was
on overseas duty and who is preceding, accompanying or following to join
within 4 months the employee, returning to the United States; or
(7) Form I-551, whether or not expired, or a transportation letter
issued by an American consular officer, presented by an employee of the
American University of Beirut, who was so employed immediately preceding
travel to the United States, returning temporarily to the United States
before resuming employment with the American University of Beirut, or
resuming permanent residence in the United States.
(b) Waivers. (1) A waiver of the visa required in paragraph (a) of
this section shall be granted without fee or application by the district
director, upon presentation of the child's birth certificate, to a child
born subsequent to the issuance of an immigrant visa to his or her
accompanying parent who applies for admission during the validity of
such a visa; or a child born during the temporary visit abroad of a
mother who is a lawful permanent resident alien, or a national, of the
United States, provided that the child's application for admission to
the United States is made within 2 years of birth,
[[Page 192]]
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 unexpired immigrant visa, permanent resident card, or reentry permit,
the alien may file an application for a waiver of this requirement with
the DHS officer with jurisdiction over the port of entry where the alien
arrives. To apply for this waiver, the alien must file the designated
form with the fee prescribed in 8 CFR 103.7(b)(1). If the alien's
permanent resident card was lost or stolen and the alien has been absent
for less than one year, rather than the waiver application the alien
must apply for a replacement card as described in 8 CFR 264.5. In the
exercise of discretion, the DHS officer who has jurisdiction over the
port of entry where the alien arrives may waive the alien's lack of an
immigrant visa, permanent resident card, or reentry permit and admit the
alien as a returning resident if DHS is satisfied that the alien has
established good cause for the alien's failure to present an immigrant
visa, permanent resident card, or reentry permit. Filing a request to
replace a lost or stolen card 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.
[62 FR 10346, Mar. 6, 1997, as amended at 63 FR 39218, July 22, 1998; 63
FR 70315, Dec. 21, 1998; 74 FR 26937, June 5, 2009; 76 FR 53786, Aug.
29, 2011]
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
DHS officer who has jurisdiction over the port of entry where the alien
arrives. To apply for this waiver, the alien must apply on the form
specified by USCIS, with the fee prescribed in 8
[[Page 193]]
CFR 103.7(b)(1). In the exercise of discretion, the DHS officer with
jurisdiction over the port of entry, may waive the alien's lack of
passport and admit the alien as an immigrant, if DHS is satisfied that
the alien has established good cause for his or her failure to present a
passport.
[62 FR 10346, Mar. 6, 1997, as amended at 74 FR 26937, June 5, 2009; 76
FR 53786, Aug. 29, 2011]
Sec. 211.3 Expiration of immigrant visa or other travel document.
An immigrant visa, reentry permit, refugee travel document, or a
permanent resident card shall be regarded as unexpired if the rightful
holder embarked or enplaned before the expiration of his or her
immigrant visa, reentry permit, or refugee travel document, or with
respect to a permanent resident card, 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.
[62 FR 10346, Mar. 6, 1997, as amended at 76 FR 53786, Aug. 29, 2011]
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, the alien's permanent resident card becomes invalid and
must be surrendered to an immigration officer.
(c) Eligibility for benefits under the immigration and nationality
laws. Until he
[[Page 194]]
or she has taken up residence in the United States, an alien commuter
cannot satisfy the residence requirements of the naturalization laws and
cannot qualify for any benefits under the immigration laws on his or her
own behalf or on behalf of his or her relatives other than as specified
in paragraph (a) of this section. When an alien commuter takes up
residence in the United States, he or she shall no longer be regarded as
a commuter. He or she may facilitate proof of having taken up such
residence by notifying the Service as soon as possible, preferably at
the time of his or her first reentry for that purpose. Application for
issuance of a new Permanent Resident Card to show that he or she has
taken up residence in the United States shall be made in accordance with
8 CFR 264.5.
[62 FR 10346, Mar. 6, 1997, as amended at 63 FR 70315, Dec. 21, 1998; 76
FR 53786, Aug. 29, 2011]
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.
212.8-212.9 [Reserved]
212.10 Section 212(k) waiver.
212.11 [Reserved]
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.
212.19 Parole for entrepreneurs.
Authority: 6 U.S.C. 111, 202(4) and 271; 8 U.S.C. 1101 and note,
1102, 1103, 1182 and note, 1184, 1185 note (section 7209 of Pub. L. 108-
458), 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 CFR part 2.
Section 212.1(q) also issued under section 702, Pub. L. 110-229, 122
Stat. 754, 854.
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]
[[Page 195]]
Sec. 212.1 Documentary requirements for nonimmigrants.
A valid unexpired visa that meets the requirements of part 215,
subpart B, of this chapter, if applicable, and an unexpired passport,
shall be presented by each arriving nonimmigrant alien except that the
passport validity period for an applicant for admission who is a member
of a class described in section 102 of the Act is not required to extend
beyond the date of his application for admission if so admitted, and
except as otherwise provided in the Act, this chapter, and for the
following classes:
(a) Citizens of Canada or Bermuda, Bahamian nationals or British
subjects resident in certain islands. (1) Canadian citizens. A 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 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:
[[Page 196]]
(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.
(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) 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:
(1) The alien is seeking admission solely to visit the Virgin
Islands of the United States; or
(2) At the time of embarking on an aircraft at St. Thomas, U.S.
Virgin Islands, the alien meets each of the following requirements:
(i) 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);
(ii) The alien satisfies the examining U.S. immigration officer at
the port-of-entry that he or she is clearly and beyond doubt entitled to
admission in all other respects; and
(iii) The alien presents a current certificate issued by the Royal
Virgin Islands Police Force 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 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.
(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;
[[Page 197]]
(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) Until November 28, 2009, 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
[[Page 198]]
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
as provided by section 245(i) of the Act or as an immediate relative as
defined in section 201(b) of the Act, to that of a lawful permanent
resident.
(ii) Change of nonimmigrant status; or
(iii) Extension of stay.
(5) A transportation line bringing any alien to Guam pursuant to
this section shall:
(i) Enter into a contract on Form I-760, made by the Commissioner of
the Immigration and Naturalization Service in behalf of the government;
(ii) Transport only an alien who is a citizen and in possession of a
valid passport of a country enumerated in paragraph (e)(3) of this
section;
(iii) Transport only an alien in possession of a round-trip,
nontransferable transportation ticket:
(A) Bearing a confirmed departure date not exceeding fifteen days
from the date of admission to Guam,
(B) Valid for a period of not less than one year,
(C) Nonrefundable except in the country in which issued or in the
country of the alien's nationality or residence,
(D) Issued by a carrier which has entered into an agreement
described in part (5)(i) of this section, and
(E) Which the carrier will unconditionally honor when presented for
return passage; and
(iv) Transport only an alien in possession of a completed and signed
Visa Waiver Information Form I-736.
(f) Direct transits. (1)-(2) [Reserved]
(3) Foreign government officials in transit. If an alien is of the
class described in section 212(d)(8) of the Act, only a
[[Page 199]]
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)(i) of the Act, 8 U.S.C.
1182(a)(7)(B)(i), 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 paragraphs (a) through (f) or (i), (o), or (p) of this section.
Upon a nonimmigrant's application on Form I-193, or successor form,
``Application for Waiver of Passport and/or Visa,'' a district director
may, in the exercise of its discretion, on a case-by-case basis, waive
either or both of the documentary requirements of section
212(a)(7)(B)(i) 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 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) [Reserved]
(o) Alien in T-2 through T-6 classification. USCIS may apply
paragraph (g) of this section to individuals seeking T-2,
[[Page 200]]
T-3, T-4, T-5, or T-6 nonimmigrant status upon request by the applicant.
(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.''
(q) Aliens admissible under the Guam-CNMI Visa Waiver Program--(1)
Eligibility for Program. In accordance with Public Law 110-229,
beginning November 28, 2009, the Secretary, in consultation with the
Secretaries of the Departments of Interior and State, may waive the visa
requirement in the case of a nonimmigrant alien who seeks admission to
Guam or to the Commonwealth of the Northern Mariana Islands (CNMI) under
the Guam-CNMI Visa Waiver Program. To be admissible under the Guam-CNMI
Visa Waiver Program, prior to embarking on a carrier for travel to Guam
or the CNMI, each nonimmigrant alien must:
(i) Be a national of a country or geographic area listed in
paragraph (q)(2) of this section;
(ii) Be classifiable as a visitor for business or pleasure;
(iii) Be solely entering and staying on Guam or the CNMI for a
period not to exceed forty-five days;
(iv) Be in possession of a round trip ticket that is nonrefundable
and nontransferable and bears a confirmed departure date not exceeding
forty-five days from the date of admission to Guam or the CNMI. ``Round
trip ticket'' includes any return trip transportation ticket issued by a
participating carrier, electronic ticket record, airline employee passes
indicating return passage, individual vouchers for return passage, group
vouchers for return passage for charter flights, or military travel
orders which include military dependents for return to duty stations
outside the United States on U.S. military flights;
(v) Be in possession of a completed and signed Guam-CNMI Visa Waiver
Information Form (CBP Form I-736);
(vi) Be in possession of a completed and signed I-94 (see Sec.
1.4), Arrival-Departure Record (CBP Form I-94);
(vii) Be in possession of a valid unexpired ICAO compliant, machine
readable passport issued by a country that meets the eligibility
requirements of paragraph (q)(2) of this section;
(viii) Have not previously violated the terms of any prior
admissions. Prior admissions include those under the Guam-CNMI Visa
Waiver Program, the prior Guam Visa Waiver Program, the Visa Waiver
Program as described in section 217(a) of the Act and admissions
pursuant to any immigrant or nonimmigrant visa;
(ix) Waive any right to review or appeal an immigration officer's
determination of admissibility at the port of entry into Guam or the
CNMI;
(x) Waive any right to contest any action for deportation or
removal, other than on the basis of: An application for withholding of
removal under section 241(b)(3) of the INA; withholding or deferral of
removal under the regulations implementing Article 3 of the United
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment; or, an application for asylum if permitted
under section 208 of the Act; and
(xi) If a resident of Taiwan, possess a Taiwan National Identity
Card and a valid Taiwan passport with a valid re-entry permit issued by
the Taiwan Ministry of Foreign Affairs.
(2) Program Countries and Geographic Areas--(i) General Eligibility
Criteria. (A) A country or geographic area may not participate in the
Guam-CNMI Visa Waiver Program if the country or geographic area poses a
threat to the welfare, safety or security of the United States, its
territories, or commonwealths;
(B) A country or geographic area may not participate in the Guam-
CNMI Visa Waiver Program if it has been designated a Country of
Particular Concern under the International Religious Freedom Act of 1998
by the Department of State, or identified by the Department of State as
a source country of
[[Page 201]]
refugees designated of special humanitarian concern to the United
States;
(C) A country or geographic area may not participate in the Guam-
CNMI Visa Waiver Program if that country, not later than three weeks
after the issuance of a final order of removal, does not accept for
repatriation any citizen, former citizen, or national of the country
against whom a final executable order of removal is issued. Nothing in
this subparagraph creates any duty for the United States or any right
for any alien with respect to removal or release. Nothing in this
subparagraph gives rise to any cause of action or claim under this
paragraph or any other law against any official of the United States or
of any State to compel the release, removal or reconsideration for
release or removal of any alien.
(D) DHS may make a determination regarding a country's eligibility
based on other factors including, but not limited to, rate of refusal
for nonimmigrant visas, rate of overstays, cooperation in information
exchange with the United States, electronic travel authorizations, and
any other factors deemed relevant by DHS.
(ii) Eligible Countries and Geographic Areas. Nationals of the
following countries are eligible to participate in the Guam-CNMI Visa
Waiver Program for purposes of admission to both Guam and the CNMI:
Australia, Brunei, Japan, Malaysia, Nauru, New Zealand, Papua New
Guinea, Republic of Korea, Singapore, and the United Kingdom. Travelers
with a connection to one of the following geographic areas--the Hong
Kong Special Administrative Region (Hong Kong) or Taiwan--may also be
eligible to participate in the Guam-CNMI Visa Waiver Program for
purposes of admission to both Guam and the CNMI, see paragraphs
(q)(2)(ii)(A) and (q)(2)(ii)(B) respectively.
(A) Hong Kong Special Administrative Region (Hong Kong). To be
eligible to participate in the program as a result of a connection to
Hong Kong, the following documentation is required: A Hong Kong Special
Administrative Region (SAR) passport with a Hong Kong identification
card; or a British National (Overseas) (BN(O)) passport with a Hong Kong
identification card.
(B) Taiwan. To be eligible to participate in the program as a result
of a connection to Taiwan, one must be a resident of Taiwan who begins
his or her travel in Taiwan and who travels on direct flights from
Taiwan to Guam or the CNMI without an intermediate layover or stop,
except that the flights may stop in a territory of the United States en
route.
(iii) Significant Economic Benefit Criteria. If, in addition to the
considerations enumerated under paragraph (q)(2)(i) of this section, DHS
determines that the CNMI has received a significant economic benefit
from the number of visitors for pleasure from particular countries
during the period of May 8, 2007 through May 8, 2008, those countries
are eligible to participate in the Guam-CNMI Visa Waiver Program unless
the Secretary of Homeland Security determines that such country's
inclusion in the Guam-CNMI Visa Waiver Program would represent a threat
to the welfare, safety, or security of the United States and its
territories.
(iv) Additional Eligible Countries or Geographic Areas Based on
Significant Economic Benefit. [Reserved]
(3) Suspension of Program Countries or Geographic Areas. (i)
Suspension of a country or geographic area from the Guam-CNMI Visa
Waiver Program may be made on a country-by-country basis for good cause
including, but not limited to if: The admissions of visitors from a
country have resulted in an unacceptable number of visitors from a
country remaining unlawfully in Guam or the CNMI, unlawfully obtaining
entry to other parts of the United States, or seeking withholding of
removal or seeking asylum; or that visitors from a country pose a risk
to law enforcement or security interests, including the enforcement of
immigration laws of Guam, the CNMI, or the United States.
(ii) A country or geographic area may be suspended from the Guam-
CNMI Visa Waiver Program if that country or geographic area is
designated as a Country of Particular Concern under the International
Religious Freedom Act of 1998 by the Department of State, or identified
by the Department of State as a source country of
[[Page 202]]
refugees designated of special humanitarian concern to the United
States, pending an evaluation and determination by the Secretary.
(iii) A country or geographic area may be suspended from the Guam-
CNMI Visa Waiver Program by the Secretary of Homeland Security, in
consultation with the Secretary of the Interior and the Secretary of
State, based on the evaluation of all factors the Secretary deems
relevant including, but not limited to, electronic travel authorization,
procedures for reporting lost and stolen passports, repatriation of
aliens, rates of refusal for nonimmigrant visitor visas, overstays, exit
systems and information exchange.
(4) Admission under this section renders an alien ineligible for:
(i) Adjustment of status to that of a temporary resident or, except
as provided by section 245(i) of the Act or as an immediate relative as
defined in section 201(b) of the Act, to that of a lawful permanent
resident.
(ii) Change of nonimmigrant status; or
(iii) Extension of stay.
(5) Requirements for transportation lines. A transportation line
bringing any alien to Guam or the CNMI pursuant to this section must:
(i) Enter into a contract on CBP Form I-760, made by the
Commissioner of Customs and Border Protection on behalf of the
government;
(ii) Transport an alien who is a citizen or national and in
possession of a valid unexpired ICAO compliant, machine readable
passport of a country enumerated in paragraph (q)(2) of this section;
(iii) Transport an alien only if the alien is in possession of a
round trip ticket as defined in paragraph (q)(1)(iv) of this section
bearing a confirmed departure date not exceeding forty-five days from
the date of admission to Guam or the CNMI which the carrier will
unconditionally honor when presented for return passage. This ticket
must be:
(A) Valid for a period of not less than one year,
(B) Nonrefundable except in the country in which issued or in the
country of the alien's nationality or residence, and
(C) Issued by a carrier which has entered into an agreement
described in paragraph (q)(5) of this section.
(iv) Transport an alien in possession of a completed and signed
Guam-CNMI Visa Waiver Information Form (CBP Form I-736), and
(v) Transport an alien in possession of completed I-94, Arrival-
Departure Record (CBP Form I-94).
(6) Bonding. The Secretary may require a bond on behalf of an alien
seeking admission under the Guam-CNMI Visa Waiver Program, in addition
to the requirements enumerated in this section, when the Secretary deems
it appropriate. Such bonds may be required of an individual alien or of
an identified subset of participants.
(7) Maintenance of status--(i) Satisfactory departure. If an
emergency prevents an alien admitted under the Guam-CNMI Visa Waiver
Program, as set forth in this paragraph (q), from departing from Guam or
the CNMI within his or her period of authorized stay, an immigration
officer 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 15 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.
(8) Inadmissibility and Deportability--(i) Determinations of
inadmissibility. (A) An alien who applies for admission under the
provisions of the Guam-CNMI Visa Waiver Program, who is determined by an
immigration officer to be inadmissible to Guam or the CNMI 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 Guam or the CNMI and removed. Such refusal and removal 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 to Guam under
the Guam-CNMI Visa Waiver Program, who applies for asylum, withholding
of removal under section 241(b)(3) of the INA or withholding or
[[Page 203]]
deferral of removal under the regulations implementing Article 3 of the
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment must be issued a Form I-863, Notice of
Referral to Immigration Judge, for a proceeding in accordance with 8 CFR
208.2(c)(1) and (2). The provisions of 8 CFR subpart 208 subpart A shall
not apply to an alien present or arriving in the CNMI seeking to apply
for asylum prior to January 1, 2015. No application for asylum may be
filed pursuant to section 208 of the Act by an alien present or arriving
in the CNMI prior to January 1, 2015; however, aliens physically present
in the CNMI during the transition period who express a fear of
persecution or torture only may establish eligibility for withholding of
removal pursuant to INA 241(b)(3) or pursuant to the regulations
implementing Article 3 of the United Nations Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment.
(B) 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 Secretary
enumerated in section 212(d) of the Act.
(C) Refusal of admission under this paragraph shall not constitute
removal for purposes of the Act.
(ii) Determination of deportability. (A) An alien who has been
admitted to either Guam or the CNMI under the provisions of this section
who is determined by an immigration officer to be deportable from either
Guam or the CNMI under one or more of the grounds of deportability
listed in section 237 of the Act, shall be removed from either Guam or
the CNMI to his or her country of nationality or last residence. Such
removal will be determined by DHS authority that has jurisdiction over
the place where the alien is found, and will be effected without
referral of the alien to an immigration judge for a determination of
deportability, except that an alien admitted to Guam under the Guam-CNMI
Visa Waiver Program who applies for asylum or other form of protection
from persecution or torture must be issued a Form I-863 for a proceeding
in accordance with 8 CFR 208.2(c)(1) and (2). The provisions of 8 CFR
part 208 subpart A shall not apply to an alien present or arriving in
the CNMI seeking to apply for asylum prior to January 1, 2015. No
application for asylum may be filed pursuant to section 208 of the INA
by an alien present or arriving in the CNMI prior to January 1, 2015;
however, aliens physically present or arriving in the CNMI prior to
January 1, 2015, may apply for withholding of removal under section
241(b)(3) of the Act and withholding and deferral of removal under the
regulations implementing Article 3 of the United Nations Convention
Against Torture, Inhuman or Degrading Treatment or Punishment.
(B) Removal by DHS 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.
(iii) Removal of inadmissible aliens who arrived by air or sea.
Removal of an alien from Guam or the CNMI 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 Guam and the CNMI. Such removal shall
be on the first available means of transportation to the alien's point
of embarkation to Guam or the CNMI. 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.
[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 of the printed volume and at www.govinfo.gov.
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,
[[Page 204]]
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)(9)(A) and
212(d)(3)(A) of the Act and 8 CFR 212.4. However, the alien may apply
for such permission by submitting an application on the form designated
by USCIS with the fee prescribed in 8 CFR 103.7(b)(1), in accordance
with the form instructions, 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 application 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 the application on the form designated by USCIS with the
fee prescribed in 8 CFR 103.7(b)(1), in accordance with the form
instructions 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 application to the
designated USCIS office. 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)(2) 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 the waiver request on the form designated by USCIS.
Except as provided in paragraph (g)(2) of this section, if the applicant
also requires a waiver under section 212(g), (h), or (i) of the Act, he
or she must file both waiver requests simultaneously on the forms
designated by USCIS with the fees prescribed in 8 CFR 103.7(b)(1) and in
accordance with the form instructions.
(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 the
application on the
[[Page 205]]
form designated by USCIS. 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 application to
the immigration judge for adjudication.
(f) Applicant for admission at port of entry. An alien may request
permission at a port of entry to reapply for admission to the United
States within 5 years of the deportation or removal, or 20 years in the
case of an alien deported, or removed 2 or more times, or at any time
after deportation or removal in the case of an alien convicted of an
aggravated felony. The alien must file the , where required, with the
DHS officer 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 apply on the form
designated by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in
accordance with the form instructions.
(2) An alien who is an applicant for parole authorization under 8
CFR 245.15(t)(2) or 8 CFR 245.13(k)(2) and 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,
must file the requisite waiver form concurrently with the parole
request.
(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 the application
when seeking admission at a port of entry, the approval of the
application 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
the application 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)(9)(A) 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; 74 FR 26937, June 5, 2009; 76 FR 53787, Aug.
29, 2011]
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 must be submitted on the form designated
by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance
with the form instructions. If the application is made in the course of
proceedings under sections 235, 236, or 242 of the Act, the application
shall be made to the Immigration Court.
(b) Filing of application. The application may be filed prior to, at
the time of, or at any time after the applicant's departure from or
arrival into the United States. All material facts and/or circumstances
which the applicant knows or believes apply to the grounds of
excludability or deportability must be described. The applicant must
also submit all available documentation relating to such grounds.
(c) Decision of the District Director. A district director may grant
or deny an
[[Page 206]]
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.
(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. An application for advance permission to enter under
section 212 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 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; 74 FR 26938, June 5,
2009; 76 FR 53787, Aug. 29, 2011]
Sec. 212.4 Applications for the exercise of discretion
under section 212(d)(1) and 212(d)(3).
(a) Applications under section 212(d)(3)(A)--(1) General. District
directors and officers in charge outside the United States in the
districts of Bangkok, Thailand; Mexico City, Mexico; and Rome, Italy are
authorized to act upon recommendations made by consular officers for the
exercise of discretion under section 212(d)(3)(A) of the Act. The
District Director, Washington, DC, has jurisdiction in such cases
recommended to the Service at the seat-of-government level by the
Department of State. When a consular officer or other State Department
official recommends that the benefits of
[[Page 207]]
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 the form designated by USCIS with the fee prescribed in 8
CFR 103.7(b)(1), and in accordance with the form instructions. (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
[[Page 208]]
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.
(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
[[Page 209]]
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;
(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);
[[Page 210]]
(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.
(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 (see Sec. 1.4),
or crewman's landing permit, Form I-95, issued to the alien, the
conditions and limitations imposed in the authorization.
[[Page 211]]
(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 for
nonimmigrant classification described in section 101(a)(15)(S) of the
Act, USCIS will 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. USCIS may at any time revoke a waiver previously authorized
under section 212(d)(1) of the Act. In the event USCIS 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 USCIS 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; 76 FR 53787, Aug. 29, 2011; 78 FR 18472, Mar. 27, 2013]
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
[[Page 212]]
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 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).
[[Page 213]]
(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 an appropriate document authorizing travel.
(g) Parole for certain Cuban nationals. Notwithstanding any other
provision respecting parole, the determination whether to release on
parole, or to revoke the parole of, a native of Cuba who last came to
the United States between April 15, 1980, and October 20, 1980, shall be
governed by the terms of Sec. 212.12.
(h) Effect of parole of Cuban and Haitian nationals. (1) Except as
provided in paragraph (h)(2) of this section, any national of Cuba or
Haiti who was paroled into the United States on or after October 10,
1980, shall be considered to have been paroled in the special status for
nationals of Cuba or Haiti, referred to in section 501(e)(1) of the
Refugee Education Assistance Act of 1980, Public Law 96-422, as amended
(8 U.S.C. 1522 note).
(2) A national of Cuba or Haiti shall not be considered to have been
paroled in the special status for nationals of Cuba or Haiti, referred
to in section 501(e)(1) of the Refugee Education Assistance Act of 1980,
Public Law 96-422, as amended, if the individual was paroled into the
United States:
(i) In the custody of a Federal, State or local law enforcement or
prosecutorial authority, for purposes of criminal prosecution in the
United States; or
[[Page 214]]
(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; 76 FR
53787, Aug. 29, 2011]
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 (see Sec. 1.4) if the
alien is applying for admission from:
(A) A country other than Mexico or Canada, or
(B) Canada if the alien has been in a country other than the United
States or Canada since leaving Mexico.
(c) Validity. Forms I-185, I-186, and I-586 are invalid on or after
October 1, 2002. If presented on or after that date, these documents
will be voided at the POE.
(d) Voidance for reasons other than expiration of the validity of
the form--(1) At a POE. (i) In accordance with 22 CFR 41.122, a Form
DSP-150 or combined B-1/B-2 visitor visa and non-biometric border
crossing identification card or (a similar stamp in a passport), issued
by the DOS, may be physically cancelled and voided by a supervisory
immigration officer at a POE if it is considered void pursuant to
section 222(g) of the Act when presented at the time of application for
admission, or as the alien departs the United States. If the card is
considered void and if the applicant for admission is not otherwise
subject to expedited removal in accordance with 8 CFR part 235, the
applicant shall be advised in writing that he or she may request a
hearing before an immigration judge. The purpose of the hearing shall be
to determine his/her admissibility in accordance with Sec. 235.6
[[Page 215]]
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, as amended at 78 FR 18472, Mar. 27, 2013]
Sec. 212.7 Waiver of certain grounds of inadmissibility.
(a) (1) Application. Except as provided by 8 CFR 212.7(e), an
applicant for an immigrant visa, adjustment of status, or a K or V
nonimmigrant visa who is inadmissible under any provision of section
212(a) of the Act for which a waiver is available under section 212 of
the Act may apply for the related waiver by filing the form designated
by USCIS, with the fee prescribed in 8 CFR 103.7(b)(1), and in
accordance with
[[Page 216]]
the form instructions. Certain immigrants may apply for a provisional
unlawful presence waiver of inadmissibility as specified in 8 CFR
212.7(e).
(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 waiver application is denied, USCIS will
provide a written decision and notify the applicant and his or her
attorney or accredited representative and will advise the applicant of
appeal procedures, if any, in accordance with 8 CFR 103.3. The denial of
a provisional unlawful presence waiver is governed by 8 CFR 212.7(e).
(4) Validity. (i) A provisional unlawful presence waiver granted
according to paragraph (e) of this section is valid subject to the terms
and conditions as specified in paragraph (e) of this section. In any
other case, approval of an immigrant waiver of inadmissibility under
this section applies only to the grounds of inadmissibility, and the
related crimes, events, or incidents that are specified in the
application for waiver.
(ii) Except for K-1 and K-2 nonimmigrants and aliens lawfully
admitted for permanent residence on a conditional basis, an immigrant
waiver of inadmissibility is valid indefinitely, even if the applicant
later abandons or otherwise loses lawful permanent resident status.
(iii) For a K-1 or K-2 nonimmigrant, approval of the waiver is
conditioned on the K-1 nonimmigrant marrying the petitioner; if the K-1
nonimmigrant marries the K nonimmigrant petitioner, the waiver becomes
valid indefinitely, subject to paragraph (a)(4)(iv) of this section,
even if the applicant later abandons or otherwise loses lawful permanent
resident status. If the K-1 does not marry the K nonimmigrant
petitioner, the K-1 and K-2 nonimmigrants remain inadmissible for
purposes of any application for a benefit on any basis other than the
proposed marriage between the K-1 and the K nonimmigrant petitioner.
(iv) For an alien lawfully admitted for permanent residence on a
conditional basis under section 216 of the Act, removal of the
conditions on the alien's status renders the waiver valid indefinitely,
even if the applicant later abandons or otherwise loses lawful permanent
resident status. Termination of the alien's status as an alien lawfully
admitted for permanent residence on a conditional basis also terminates
the validity of a waiver of inadmissibility based on sections 212(h) or
212(i) of the Act that was granted to the alien. 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 will lie from the decision to terminate the waiver on this
basis. If the alien challenges the termination in removal proceedings,
and the removal proceedings end in the restoration of the alien's
status, the waiver will become effective again.
(v) Nothing in this subsection precludes USCIS from reopening and
reconsidering a decision if the decision is determined to have been made
in error.
(b) Section 212(g) waivers for certain medical conditions. (1)
Application. Any alien who is inadmissible under section
212(a)(1)(A)(i), (ii), or (iii) of the Act and who is eligible for a
waiver under section 212(g) of the Act may file an application as
described in paragraph (a)(1) of this section. The family member
specified in section 212(g) of the Act may file the waiver application
for the applicant if the applicant is incompetent to file the waiver
personally.
(2) 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)(A)(iii) of the Act he or his
sponsoring family member shall submit a waiver request with a statement
that arrangements have been made for the submission to that office of a
medical report. The medical report shall
[[Page 217]]
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.
(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.
(3) 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
[[Page 218]]
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 the form designated by
USCIS. The alien's spouse and minor children, if also subject to the
foreign residence requirement, may be included in the application,
provided the spouse has not been a participant in an exchange program.
(6) Each application based upon a claim to exceptional hardship must
be accompanied by the certificate of marriage between the applicant and
his or her spouse and proof of legal termination of all previous
marriages of the applicant and spouse; the birth certificate of any
child who is a United States citizen or lawful permanent resident alien,
if the application is based upon a claim of exceptional hardship to a
child, and evidence of the United States citizenship of the applicant's
spouse or child, when the application is based upon a claim of
exceptional hardship to a spouse or child who is a citizen of the United
States.
(7) Evidence of United States citizenship and of status as a lawful
permanent resident shall be in the form provided in part 204 of this
chapter. An application based upon exceptional hardship shall be
supported by a statement, dated and signed by the applicant, giving a
detailed explanation of the basis for his or her belief that his or her
compliance with the foreign residence requirement of section 212(e) of
the Act, as amended, would impose exceptional hardship upon his or her
spouse or child who is a citizen of the United States or a lawful
permanent resident thereof. The statement shall include all pertinent
information concerning the incomes and savings of the applicant and
spouse. If exceptional hardship is claimed upon medical grounds, the
applicant shall submit a medical certificate from a qualified physician
setting forth in terms understandable to a layman the nature and effect
of the illness and prognosis as to the period of time the spouse or
child will require care or treatment.
(8) An application based upon the applicant's belief that he or she
cannot return to the country of his or her nationality or last residence
because the applicant would be subject to persecution on account of
race, religion, or political opinion, must be supported by a statement,
dated and signed by the applicant, setting forth in detail why the
applicant believes he or she would be subject to persecution.
[[Page 219]]
(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 Public 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 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.
[[Page 220]]
(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 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 USCIS 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),
[[Page 221]]
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, 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 the USCIS approval notice relating to the waiver and
nonimmigrant H status granted under Pub. L. 103-416;
(2) An explanation from the foreign medical graduate, with
supporting evidence, establishing that extenuating circumstances
necessitate a change in employment;
(3) An employment contract establishing that the foreign medical
graduate will practice medicine at the health care facility named in the
new H-1B petition for the balance of the required 3-year period; and
(4) Evidence that the geographic area or areas of intended
employment indicated in the new H-1B petition are in HHS-designated
shortage areas.
(C) Review of amended and new H-1B petitions for foreign medical
graduates granted waivers under Pub. L. 103-416 and who seek to have
early termination of employment excused due to extenuating
circumstances--(1) Amended H-1B petitions. The waiver granted under Pub.
L. 103-416 may be affirmed, and the amended H-1B petition may be
approved, if the petitioning health care facility establishes that the
foreign medical graduate otherwise remains eligible for H-1B
classification and that he or she will continue practicing medicine in
an HHS-designated shortage area.
(2) New H-1B petitions. The Service shall review a new H-1B petition
filed on behalf of a foreign medical graduate who has not yet fulfilled
the required 3-year period of employment with the health care facility
named in the waiver application and in the original H-1B petition to
determine whether extenuating circumstances exist which warrant a change
in employment, and whether the waiver granted under Pub. L. 103-416
should be affirmed. In conducting such a review, the Service shall
determine whether the foreign medical graduate will continue practicing
medicine in an HHS-designated shortage area, and whether the new H-1B
petitioner and the foreign medical graduate have satisfied the remaining
H-1B eligibility criteria described under section 101(a)(15)(H) of the
Act and Sec. 214.2(h) of this chapter. If these criteria have been
satisfied, the waiver granted to the foreign medical graduate under Pub.
L. 103-416 may be affirmed, and the new H1-B petition may be approved in
the exercise of discretion, thereby permitting the foreign medical
graduate to serve the balance of the requisite 3-year employment period
at the health care facility named in the new H-1B petition.
(D) Failure to notify the Service of any material changes in
employment. Foreign medical graduates who have been granted a waiver of
the 2-year requirement and who have obtained H-1B status under Pub. L.
103-416 but fail to: Properly notify the Service of any material change
in the terms and conditions of their H-1B employment, by having their
employer file an amended or a new H-1B petition in accordance with this
section and Sec. 214.2(h) of this chapter; or establish continued
eligibility for the waiver and H-1B status, shall (together with their
dependents)
[[Page 222]]
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, a showing of extraordinary
circumstances might still be insufficient to warrant a favorable
exercise of discretion under section 212(h)(2) of the Act.
(e) Provisional unlawful presence waivers of inadmissibility. The
provisions of this paragraph (e) apply to certain aliens who are
pursuing consular immigrant visa processing.
(1) Jurisdiction. USCIS has exclusive jurisdiction to grant a
provisional unlawful presence waiver under this paragraph (e). An alien
applying for a provisional unlawful presence waiver must file with USCIS
the form designated by USCIS, with the fees prescribed in 8 CFR
103.7(b), and in accordance with the form instructions.
(2) Provisional unlawful presence waiver; in general. (i) USCIS may
adjudicate applications for a provisional unlawful presence waiver of
inadmissibility based on section 212(a)(9)(B)(v) of the Act filed by
eligible aliens described in paragraph (e)(3) of this section. USCIS
will only approve such provisional unlawful presence waiver applications
in accordance with the conditions outlined in paragraph (e) of this
section. Consistent with section 212(a)(9)(B)(v) of the Act, the
decision whether to approve a provisional unlawful presence waiver
application is discretionary. A pending or approved provisional unlawful
presence waiver does not constitute
[[Page 223]]
a grant of a lawful immigration status or a period of stay authorized by
the Secretary.
(ii) A pending or an approved provisional unlawful presence waiver
does not support the filing of any application for interim immigration
benefits, such as employment authorization or an advance parole
document. Any application for an advance parole document or employment
authorization that is submitted in connection with a provisional
unlawful presence waiver application will be rejected.
(3) Eligible aliens. Except as provided in paragraph (e)(4) of this
section, an alien may be eligible to apply for and receive a provisional
unlawful presence waiver for the grounds of inadmissibility under
section 212(a)(9)(B)(i)(I) or (II) of the Act if he or she meets the
requirements in this paragraph. An alien may be eligible to apply for
and receive a waiver if he or she:
(i) Is present in the United States at the time of filing the
application for a provisional unlawful presence waiver;
(ii) Provides biometrics to USCIS at a location in the United States
designated by USCIS;
(iii) Upon departure, would be inadmissible only under section
212(a)(9)(B)(i) of the Act at the time of the immigrant visa interview;
(iv) Has a case pending with the Department of State, based on:
(A) An approved immigrant visa petition, for which the Department of
State immigrant visa processing fee has been paid; or
(B) Selection by the Department of State to participate in the
Diversity Visa Program under section 203(c) of the Act for the fiscal
year for which the alien registered;
(v) Will depart from the United States to obtain the immigrant visa;
and
(vi) Meets the requirements for a waiver provided in section
212(a)(9)(B)(v) of the Act.
(4) Ineligible aliens. Notwithstanding paragraph (e)(3) of this
section, an alien is ineligible for a provisional unlawful presence
waiver under paragraph (e) of this section if:
(i) The alien is under the age of 17;
(ii) The alien does not have a case pending with the Department of
State, based on:
(A) An approved immigrant visa petition, for which the Department of
State immigrant visa processing fee has been paid; or
(B) Selection by the Department of State to participate in the
Diversity Visa program under section 203(c) of the Act for the fiscal
year for which the alien registered;
(iii) The alien is in removal proceedings, in which no final order
has been entered, unless the removal proceedings are administratively
closed and have not been recalendared at the time of filing the
application for a provisional unlawful presence waiver;
(iv) The alien is subject to an administratively final order of
removal, deportation, or exclusion under any provision of law (including
an in absentia order under section 240(b)(5) of the Act), unless the
alien has already filed and USCIS has already granted, before the alien
applies for a provisional unlawful presence waiver under 8 CFR 212.7(e),
an application for consent to reapply for admission under section
212(a)(9)(A)(iii) of the Act and 8 CFR 212.2(j);
(v) CBP or ICE, after service of notice under 8 CFR 241.8, has
reinstated a prior order of removal under section 241(a)(5) of the Act,
either before the filing of the provisional unlawful presence waiver
application or while the provisional unlawful presence waiver
application is pending; or
(vi) The alien has a pending application with USCIS for lawful
permanent resident status.
(5) Filing. (i) An alien must file an application for a provisional
unlawful presence waiver of the unlawful presence inadmissibility bars
under section 212(a)(9)(B)(i)(I) or (II) of the Act on the form
designated by USCIS, in accordance with the form instructions, with the
fee prescribed in 8 CFR 103.7(b), and with the evidence required by the
form instructions.
(ii) An application for a provisional unlawful presence waiver will
be rejected and the fee and package returned to the alien if the alien:
[[Page 224]]
(A) Fails to pay the required filing fee or correct filing fee for
the provisional unlawful presence waiver application;
(B) Fails to sign the provisional unlawful presence waiver
application;
(C) Fails to provide his or her family name, domestic home address,
and date of birth;
(D) Is under the age of 17;
(E) Does not include evidence of:
(1) An approved immigrant visa petition;
(2) Selection by the Department of State to participate in the
Diversity Visa Program under section 203(c) of the Act for the fiscal
year for which the alien registered; or
(3) Eligibility as a derivative beneficiary of an approved immigrant
visa petition or of an alien selected for participation in the Diversity
Visa Program as provided in this section and outlined in section 203(d)
of the Act.
(F) Fails to include documentation evidencing:
(1) That the alien has paid the immigrant visa processing fee to the
Department of State for the immigrant visa application upon which the
alien's approved immigrant visa petition is based; or
(2) In the case of a diversity immigrant, that the Department of
State selected the alien to participate in the Diversity Visa Program
for the fiscal year for which the alien registered.
(6) Biometrics. (i) All aliens who apply for a provisional unlawful
presence waiver under this section will be required to provide
biometrics in accordance with 8 CFR 103.16 and 103.17, as specified on
the form instructions.
(ii) Failure to appear for biometric services. If an alien fails to
appear for a biometric services appointment or fails to provide
biometrics in the United States as directed by USCIS, a provisional
unlawful presence waiver application will be considered abandoned and
denied under 8 CFR 103.2(b)(13). The alien may not appeal or file a
motion to reopen or reconsider an abandonment denial under 8 CFR 103.5.
(7) Burden and standard of proof. The alien has the burden to
establish, by a preponderance of the evidence, eligibility for a
provisional unlawful presence waiver as described in this paragraph, and
under section 212(a)(9)(B)(v) of the Act, including that the alien
merits a favorable exercise of discretion.
(8) Adjudication. USCIS will adjudicate a provisional unlawful
presence waiver application in accordance with this paragraph and
section 212(a)(9)(B)(v) of the Act. If USCIS finds that the alien is not
eligible for a provisional unlawful presence waiver, or if USCIS
determines in its discretion that a waiver is not warranted, USCIS will
deny the waiver application. Notwithstanding 8 CFR 103.2(b)(16), USCIS
may deny an application for a provisional unlawful presence waiver
without prior issuance of a request for evidence or notice of intent to
deny.
(9) Notice of decision. (i) USCIS will notify the alien and the
alien's attorney of record or accredited representative of the decision
in accordance with 8 CFR 103.2(b)(19). USCIS may notify the Department
of State of the denial of an application for a provisional unlawful
presence waiver. A denial is without prejudice to the alien's filing
another provisional unlawful presence waiver application under this
paragraph (e), provided the alien meets all of the requirements in this
part, including that the alien's case must be pending with the
Department of State. An alien also may elect to file a waiver
application under paragraph (a)(1) of this section after departing the
United States, appearing for his or her immigrant visa interview at the
U.S. Embassy or consulate abroad, and after the Department of State
determines the alien's admissibility and eligibility for an immigrant
visa.
(ii) Denial of an application for a provisional unlawful presence
waiver is not a final agency action for purposes of section 10(c) of the
Administrative Procedure Act, 5 U.S.C. 704.
(10) Withdrawal of waiver applications. An alien may withdraw his or
her application for a provisional unlawful presence waiver at any time
before USCIS makes a final decision. Once the case is withdrawn, USCIS
will close the case and notify the alien and his or her attorney or
accredited representative. The alien may file a new application for a
provisional unlawful presence
[[Page 225]]
waiver, in accordance with the form instructions and required fees,
provided that the alien meets all of the requirements included in this
paragraph (e).
(11) Appeals and motions to reopen. There is no administrative
appeal from a denial of a request for a provisional unlawful presence
waiver under this section. The alien may not file, pursuant to 8 CFR
103.5, a motion to reopen or reconsider a denial of a provisional
unlawful presence waiver application under this section.
(12) Approval and conditions. A provisional unlawful presence waiver
granted under this section:
(i) Does not take effect unless, and until, the alien who applied
for and obtained the provisional unlawful presence waiver:
(A) Departs from the United States;
(B) Appears for an immigrant visa interview at a U.S. Embassy or
consulate; and
(C) Is determined to be otherwise eligible for an immigrant visa by
the Department of State in light of the approved provisional unlawful
presence waiver.
(ii) Waives, upon satisfaction of the conditions described in
paragraph (e)(12)(i), the alien's inadmissibility under section
212(a)(9)(B) of the Act only for purposes of the application for an
immigrant visa and admission to the United States as an immigrant based
on the approved immigrant visa petition upon which a provisional
unlawful presence waiver application is based or selection by the
Department of State to participate in the Diversity Visa Program under
section 203(c) of the Act for the fiscal year for which the alien
registered, with such selection being the basis for the alien's
provisional unlawful presence waiver application;
(iii) Does not waive any ground of inadmissibility other than, upon
satisfaction of the conditions described in paragraph (e)(12)(i), the
grounds of inadmissibility under section 212(a)(9)(B)(i)(I) or (II) of
the Act.
(13) Validity. Until the provisional unlawful presence waiver takes
full effect as provided in paragraph (e)(12) of this section, USCIS may
reopen and reconsider its decision at any time. Once a provisional
unlawful presence waiver takes full effect as defined in paragraph
(e)(12) of this section, the period of unlawful presence for which the
provisional unlawful presence waiver is granted is waived indefinitely,
in accordance with and subject to paragraph (a)(4) of this section.
(14) Automatic revocation. The approval of a provisional unlawful
presence waiver is revoked automatically if:
(i) The Department of State denies the immigrant visa application
after completion of the immigrant visa interview based on a finding that
the alien is ineligible to receive an immigrant visa for any reason
other than inadmissibility under section 212(a)(9)(B)(i)(I) or (II) of
the Act. This automatic revocation does not prevent the alien from
applying for a waiver of inadmissibility for unlawful presence under
section 212(a)(9)(B)(v) of the Act and 8 CFR 212.7(a) or for any other
relief from inadmissibility on any other ground for which a waiver is
available and for which the alien may be eligible;
(ii) The immigrant visa petition approval associated with the
provisional unlawful presence waiver is at any time revoked, withdrawn,
or rendered invalid but not otherwise reinstated for humanitarian
reasons or converted to a widow or widower petition;
(iii) The immigrant visa registration is terminated in accordance
with section 203(g) of the Act, and has not been reinstated in
accordance with section 203(g) of the Act; or
(iv) The alien enters or attempts to reenter the United States
without inspection and admission or parole at any time after the alien
files the provisional unlawful presence waiver application and before
the approval of the provisional unlawful presence waiver takes effect in
accordance with paragraph (e)(12) of this section.
(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 at www.govinfo.gov.
[[Page 226]]
Sec. Sec. 212.8-212.9 [Reserved]
Sec. 212.10 Section 212(k) waiver.
Any applicant for admission who is in possession of an immigrant
visa, and who is inadmissible under section 212(a)(5)(A) or
212(a)(7)(A)(i) of the Act, may apply at the port of entry for a waiver
under section 212(k) of the Act. If the application for waiver is
denied, the application may be renewed in removal proceedings before an
immigration judge as provided in 8 CFR part 1240.
[76 FR 53787, Aug. 29, 2011]
Sec. 212.11 [Reserved]
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 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
[[Page 227]]
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 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.
[[Page 228]]
(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, an application for S nonimmigrant
status on the form designated for such purposes, with the Assistant
Attorney General, Criminal Division, Department of Justice, in
accordance with the instructions on or attached to the form, which will
include the names of qualified family members for whom parole is sought;
(ii) Specifies the particular operational reasons and basis for the
request, and agrees to assume responsibility for the alien during the
period of the alien's temporary stay in the United States, including
maintaining control and supervision of the alien and the alien's
whereabouts and activities, and further specifies any other terms and
conditions specified by the Service during the period for which the
parole is authorized;
(iii) Agrees to advise the Service of the alien's failure to report
quarterly any criminal conduct by the alien, or any other activity or
behavior on the alien's part that may constitute a ground of
excludability or deportability;
(iv) Assumes responsibility for ensuring the alien's departure on
the date of termination of the authorized parole (unless the alien has
been admitted in S nonimmigrant classification pursuant to the terms of
paragraph (a)(2) of this section), provides any and all assistance
needed by the Service, if necessary, to ensure departure, and
[[Page 229]]
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 the completed application to the Assistant Attorney
General, Criminal Division. Upon the submission to the Assistant
Attorney General of the completed application for 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 the application.
(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 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
[[Page 230]]
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, as amended at 76 FR 53787, Aug. 29, 2011]
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.
(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
[[Page 231]]
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 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
[[Page 232]]
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.
(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
[[Page 233]]
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 must apply on the form designated by
USCIS in accordance with the form instructions. An organization seeking
authorization to issue certificates or certified statements must agree
to submit all evidence required by the DHS and, upon request, allow the
DHS to review the organization's records related to the certification
process. 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 must apply 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
[[Page 234]]
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 must apply on the form designated by USCIS with the
fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the form
instructions 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) USCIS will, 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.
(k) Standards for credentialing organizations. The DHS will evaluate
organizations, including CGFNS, seeking to obtain approval from the DHS
to issue certificates for health care workers, or certified statements
for nurses. Any organization meeting the standards set forth in
paragraph (k)(1) of this section can be eligible for authorization to
issue certificates. While CGFNS has been specifically listed in the
statute as an entity authorized to issue certificates, it is not exempt
from governmental oversight. All organizations will be reviewed,
including CGFNS, to guarantee that they continue to meet the standards
required of all certifying organizations, under the following:
(1) Structure of the organization. (i) The organization shall be
incorporated as a legal entity.
(ii)(A) The organization shall be independent of any organization
that functions as a representative of the occupation or profession in
question or serves as or is related to a recruitment/placement
organization.
(B) The DHS shall not approve an organization that is unable to
render impartial advice regarding an individual's qualifications
regarding training, experience, and licensure.
(C) The organization must also be independent in all decision making
matters pertaining to evaluations and/or examinations that it develops
including, but not limited to: policies and procedures; eligibility
requirements and application processing; standards for granting
certificates and their renewal; examination content, development, and
administration; examination cut-off scores, excluding those pertaining
to English language requirements; grievance and disciplinary processes;
governing body and committee meeting rules; publications about
qualifying for a certificate and its renewal; setting fees for
application and all other services provided as part of the screening
process; funding, spending, and budget authority related to the
operation of the certification organization; ability to enter into
contracts and grant arrangements; ability to demonstrate adequate
staffing and management resources to conduct the program(s) including
the authority to approve selection of, evaluate, and initiate dismissal
of the chief staff member.
(D) An organization whose fees are based on whether an applicant
receives a visa may not be approved.
[[Page 235]]
(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.
(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.
[[Page 236]]
(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.
(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
[[Page 237]]
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
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 request for
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
[[Page 238]]
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 the request within 6 months of July
25, 2003, the DHS will issue a Notice of Intent to Terminate
authorization to issue certificates to the credentialing organization.
The Notice shall set forth reasons for the proposed termination.
(i) The credentialing organization shall have 30 days from the date
of the Notice of Intent to Terminate authorization to rebut the
allegations, or to cure the noncompliance identified in the DHS's notice
of intent to terminate.
(ii) DHS will forward to HHS upon receipt any information received
in response to a Notice of Intent to Terminate an entity's authorization
to issue certificates. Thirty days after the date of the Notice of
Intent to Terminate, the DHS shall forward any additional evidence and
shall request an opinion from HHS regarding whether the organization's
authorization should be terminated. The DHS shall accord HHS' opinion
great weight in determining whether the authorization should be
terminated. After consideration of the rebuttal evidence, if any, and
consideration of HHS' opinion, the DHS will promptly provide the
organization with a written decision. If termination of credentialing
status is made, the written decision shall set forth the reasons for the
termination.
(3) An adverse decision may be appealed pursuant to 8 CFR 103.3 to
the Associate Commissioner for Examinations. Termination of
credentialing status shall remain in effect until and unless the
terminated organization reapplies for credentialing status and is
approved, or its appeal of the termination decision is sustained by the
Administrative Appeals Office. There is no waiting period for an
organization to re-apply for credentialing status.
(n) Transition--(1) One year waiver. (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:
[[Page 239]]
(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;
74 FR 26938, June 5, 2009; 76 FR 53788, Aug. 29, 2011; 76 FR 73477, Nov.
29, 2011]
Sec. 212.16 Applications for exercise of discretion relating to
T nonimmigrant status.
(a) Requesting the waiver. An alien requesting a waiver of
inadmissibility under section 212(d)(3)(B) or (d)(13) of the Act must
submit a waiver form as designated by USCIS in accordance with 8 CFR
103.2.
(b) Treatment of waiver request. USCIS, in its discretion, may grant
a waiver request based on section 212(d)(13) of the Act of the
applicable ground(s) of inadmissibility, except USCIS may not waive a
ground of inadmissibility based on sections 212(a)(3), (a)(10)(C), or
(a)(10)(E) of the Act. An applicant for T nonimmigrant status is not
subject to the ground of inadmissibility based on section 212(a)(4) of
the Act (public charge) and is not required to file a waiver form for
the public charge ground. Waiver requests are subject to a determination
of national interest and connection to victimization as follows.
(1) National interest. USCIS, in its discretion, may grant a waiver
of inadmissibility request if it determines that it is in the national
interest to exercise discretion to waive the applicable ground(s) of
inadmissibility.
(2) Connection to victimization. An applicant requesting a waiver
under section 212(d)(13) of the Act on grounds other than the health-
related grounds described in section 212(a)(1) of the Act 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.
(3) Criminal grounds. In exercising its discretion, USCIS will
consider the number and seriousness of the criminal offenses and
convictions that render an applicant inadmissible under the criminal and
related grounds in section 212(a)(2) of the Act. In cases involving
violent or dangerous crimes, USCIS will only exercise favorable
discretion in extraordinary circumstances, unless
[[Page 240]]
the criminal activities were caused by, or were incident to, the
victimization described under section 101(a)(15)(T)(i)(I) of the Act.
(c) No appeal. There is no appeal of a decision to deny a waiver
request. Nothing in this section is intended to prevent an applicant
from re-filing a request for a waiver of a ground of inadmissibility in
appropriate cases.
(d) Revocation. USCIS, at any time, may revoke a waiver previously
authorized under section 212(d) of the Act. There is no appeal of a
decision to revoke a waiver.
[81 FR 92304, Dec. 19, 2016]
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 the waiver request and the
petition for U nonimmigrant status on the forms designated by USCIS in
accordance with the form instructions. 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 the waiver request prior to
his or her application for reentry to the United States in accordance
with the form instructions.
(b) Treatment of waiver application. (1) USCIS, in its discretion,
may grant the waiver 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 the waiver 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 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, as amended at 76 FR 53788, Aug. 29, 2011]
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.
[[Page 241]]
(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]
Sec. 212.19 Parole for entrepreneurs.
(a) Definitions. For purposes of this section, the following
definitions apply:
(1) Entrepreneur means an alien who possesses a substantial
ownership interest in a start-up entity and has a central and active
role in the operations of that entity, such that the alien is well-
positioned, due to his or her knowledge, skills, or experience, to
substantially assist the entity with the growth and success of its
business. For purposes of this section, an alien may be considered to
possess a substantial ownership interest if he or she possesses at least
a 10 percent ownership interest in the start-up entity at the time of
adjudication of the initial grant of parole and possesses at least a 5
percent ownership interest in the start-up entity at the time of
adjudication of a subsequent period of re-parole. During the period of
initial parole, the entrepreneur may continue to reduce his or her
ownership interest in the start-up entity, but must, at all times during
the period of initial parole, maintain at least a 5 percent ownership
interest in the entity. During the period of re-parole, the entrepreneur
may continue to reduce his or her ownership interest in the start-up
entity, but must, at all times during the period of parole, maintain an
ownership interest in the entity.
(2) Start-up entity means a U.S. business entity that was recently
formed, has lawfully done business during any period of operation since
its date of formation, and has substantial potential for rapid growth
and job creation. An entity that is the basis for a request for parole
under this section may be considered recently formed if it was created
within the 5 years immediately preceding the filing date of the alien's
initial parole request. For purposes of paragraphs (a)(3) and (5) of
this section, an entity may be considered recently formed if it was
created within the 5 years immediately preceding the receipt of the
relevant grant(s), award(s), or investment(s).
(3) Qualified government award or grant means an award or grant for
economic development, research and development, or job creation (or
other similar monetary award typically given to start-up entities) made
by a federal, state, or local government entity (not including foreign
government entities) that regularly provides such awards or grants to
start-up entities. This definition excludes any contractual commitment
for goods or services.
(4) Qualified investment means an investment made in good faith, and
that is not an attempt to circumvent any limitations imposed on
investments under this section, of lawfully derived capital in a start-
up entity that is a purchase from such entity of its equity, convertible
debt, or other security convertible into its equity commonly used in
financing transactions within such entity's industry. Such an investment
shall not include an investment, directly or indirectly, from the
entrepreneur; the parents, spouse, brother, sister, son, or daughter of
such entrepreneur; or any corporation, limited liability company,
partnership, or other entity in which such entrepreneur or the parents,
spouse, brother, sister, son, or daughter of such entrepreneur directly
or indirectly has any ownership interest.
(5) Qualified investor means an individual who is a U.S. citizen or
lawful permanent resident of the United States, or an organization that
is located in the United States and operates through a legal entity
organized under the laws of the United States or any
[[Page 242]]
state, that is majority owned and controlled, directly and indirectly,
by U.S. citizens or lawful permanent residents of the United States,
provided such individual or organization regularly makes substantial
investments in start-up entities that subsequently exhibit substantial
growth in terms of revenue generation or job creation. The term
``qualified investor'' shall not include an individual or organization
that has been permanently or temporarily enjoined from participating in
the offer or sale of a security or in the provision of services as an
investment adviser, broker, dealer, municipal securities dealer,
government securities broker, government securities dealer, bank,
transfer agent or credit rating agency, barred from association with any
entity involved in the offer or sale of securities or provision of such
services, or otherwise found to have participated in the offer or sale
of securities or provision of such services in violation of law. For
purposes of this section, such an individual or organization may be
considered a qualified investor if, during the preceding 5 years:
(i) The individual or organization made investments in start-up
entities in exchange for equity, convertible debt or other security
convertible into equity commonly used in financing transactions within
their respective industries comprising a total in such 5-year period of
no less than $600,000; and
(ii) Subsequent to such investment by such individual or
organization, at least 2 such entities each created at least 5 qualified
jobs or generated at least $500,000 in revenue with average annualized
revenue growth of at least 20 percent.
(6) Qualified job means full-time employment located in the United
States that has been filled for at least 1 year by one or more
qualifying employees.
(7) Qualifying employee means a U.S. citizen, a lawful permanent
resident, or other immigrant lawfully authorized to be employed in the
United States, who is not an entrepreneur of the relevant start-up
entity or the parent, spouse, brother, sister, son, or daughter of such
an entrepreneur. This definition shall not include independent
contractors.
(8) Full-time employment means paid employment in a position that
requires a minimum of 35 working hours per week. This definition does
not include combinations of part-time positions even if, when combined,
such positions meet the hourly requirement per week.
(9) U.S. business entity means any corporation, limited liability
company, partnership, or other entity that is organized under federal
law or the laws of any state, and that conducts business in the United
States, that is not an investment vehicle primarily engaged in the
offer, purchase, sale or trading of securities, futures contracts,
derivatives or similar instruments.
(10) Material change means any change in facts that could reasonably
affect the outcome of the determination whether the entrepreneur
provides, or continues to provide, a significant public benefit to the
United States. Such changes include, but are not limited to, the
following: Any criminal charge, conviction, plea of no contest, or other
judicial determination in a criminal case concerning the entrepreneur or
start-up entity; any complaint, settlement, judgment, or other judicial
or administrative determination concerning the entrepreneur or start-up
entity in a legal or administrative proceeding brought by a government
entity; any settlement, judgment, or other legal determination
concerning the entrepreneur or start-up entity in a legal proceeding
brought by a private individual or organization other than proceedings
primarily involving claims for damages not exceeding 10 percent of the
current assets of the entrepreneur or start-up entity; a sale or other
disposition of all or substantially all of the start-up entity's assets;
the liquidation, dissolution or cessation of operations of the start-up
entity; the voluntary or involuntary filing of a bankruptcy petition by
or against the start-up entity; a significant change with respect to
ownership and control of the start-up entity; and a cessation of the
entrepreneur's qualifying ownership interest in the start-up entity or
the entrepreneur's central and active role in the operations of that
entity.
(b) Initial parole--(1) Filing of initial parole request form. An
alien seeking an initial grant of parole as an entrepreneur of a start-
up entity must file
[[Page 243]]
an Application for Entrepreneur Parole (Form I-941) with USCIS, with the
required fees (including biometric services fees), and supporting
documentary evidence in accordance with this section and the form
instructions, demonstrating eligibility as provided in paragraph (b)(2)
of this section.
(2) Criteria for consideration--(i) In general. An alien may be
considered for parole under this section if the alien demonstrates that
a grant of parole will provide a significant public benefit to the
United States based on his or her role as an entrepreneur of a start-up
entity.
(ii) General criteria. An alien may meet the standard described in
paragraph (b)(2)(i) of this section by providing a detailed description,
along with supporting evidence:
(A) Demonstrating that the alien is an entrepreneur as defined in
paragraph (a)(1) of this section and that his or her entity is a start-
up entity as defined in paragraph (a)(2) of this section; and
(B) Establishing that the alien's entity has:
(1) Received, within 18 months immediately preceding the filing of
an application for initial parole, a qualified investment amount of at
least $250,000 from one or more qualified investors; or
(2) Received, within 18 months immediately preceding the filing of
an application for initial parole, an amount of at least $100,000
through one or more qualified government awards or grants.
(iii) Alternative criteria. An alien who satisfies the criteria in
paragraph (b)(2)(ii)(A) of this section and partially meets one or both
of the criteria in paragraph (b)(2)(ii)(B) of this section may
alternatively meet the standard described in paragraph (b)(2)(i) of this
section by providing other reliable and compelling evidence of the
start-up entity's substantial potential for rapid growth and job
creation.
(c) Additional periods of parole--(1) Filing of re-parole request
form. Prior to the expiration of the initial period of parole, an
entrepreneur parolee may request an additional period of parole based on
the same start-up entity that formed the basis for his or her initial
period of parole granted under this section. To request such parole, an
entrepreneur parolee must timely file the Application for Entrepreneur
Parole (Form I-941) with USCIS, with the required fees (including
biometric services fees), and supporting documentation in accordance
with the form instructions, demonstrating eligibility as provided in
paragraph (c)(2) of this section.
(2) Criteria for consideration--(i) In general. An alien may be
considered for re-parole under this section if the alien demonstrates
that a grant of parole will continue to provide a significant public
benefit to the United States based on his or her role as an entrepreneur
of a start-up entity.
(ii) General criteria. An alien may meet the standard described in
paragraph (c)(2)(i) of this section by providing a detailed description,
along with supporting evidence:
(A) Demonstrating that the alien continues to be an entrepreneur as
defined in paragraph (a)(1) of this section and that his or her entity
continues to be a start-up entity as defined in paragraph (a)(2) of this
section; and
(B) Establishing that the alien's entity has:
(1) Received at least $500,000 in qualifying investments, qualified
government grants or awards, or a combination of such funding, during
the initial parole period;
(2) Created at least 5 qualified jobs with the start-up entity
during the initial parole period; or
(3) Reached at least $500,000 in annual revenue in the United States
and averaged 20 percent in annual revenue growth during the initial
parole period.
(iii) Alternative criteria. An alien who satisfies the criteria in
paragraph (c)(2)(ii)(A) of this section and partially meets one or more
of the criteria in paragraph (c)(2)(ii)(B) of this section may
alternatively meet the standard described in paragraph (c)(2)(i) of this
section by providing other reliable and compelling evidence of the
start-up entity's substantial potential for rapid growth and job
creation.
(d) Discretionary authority; decision; appeals and motions to
reopen--(1) Discretionary authority. DHS may grant parole under this
section in its sole discretion on a case-by-case basis if the
[[Page 244]]
Department determines, based on the totality of the evidence, that an
applicant's presence in the United States will provide a significant
public benefit and that he or she otherwise merits a favorable exercise
of discretion. In determining whether an alien's presence in the United
States will provide a significant public benefit and whether the alien
warrants a favorable exercise of discretion, USCIS will consider and
weigh all evidence, including any derogatory evidence or information,
such as but not limited to, evidence of criminal activity or national
security concerns.
(2) Initial parole. DHS may grant an initial period of parole based
on the start-up entity listed in the request for parole for a period of
up to 30 months from the date the individual is initially paroled into
the United States. Approval by USCIS of such a request must be obtained
before the alien may appear at a port of entry to be granted parole, in
lieu of admission.
(3) Re-parole. DHS may re-parole an entrepreneur for one additional
period of up to 30 months from the date of the expiration of the initial
parole period. If the entrepreneur is in the United States at the time
that USCIS approves the request for re-parole, such approval shall be
considered a grant of re-parole. If the alien is outside the United
States at the time that USCIS approves the request for re-parole, the
alien must appear at a port of entry to be granted parole, in lieu of
admission.
(4) Appeals and motions to reopen. There is no appeal from a denial
of parole under this section. USCIS will not consider a motion to reopen
or reconsider a denial of parole under this section. On its own motion,
USCIS may reopen or reconsider a decision to deny the Application for
Entrepreneur Parole (Form I-941), in accordance with 8 CFR 103.5(a)(5).
(e) Payment of biometric services fee and collection of biometric
information. An alien seeking parole or re-parole under this section
will be required to pay the biometric services fee as prescribed by 8
CFR 103.7(b)(1)(i)(C). An alien seeking an initial grant of parole will
be required to submit biometric information. An alien seeking re-parole
may be required to submit biometric information.
(f) Limitations. No more than three entrepreneurs may be granted
parole under this section based on the same start-up entity. An alien
shall not receive more than one initial grant of entrepreneur parole or
more than one additional grant of entrepreneur re-parole based on the
same start-up entity, for a maximum period of parole of five years.
(g) Employment authorization. An entrepreneur who is paroled into
the United States pursuant to this section is authorized for employment
with the start-up entity incident to the conditions of his or her
parole.
(h) Spouse and children. (1) The entrepreneur's spouse and children
who are seeking parole as derivatives of such entrepreneur must
individually file an Application for Travel Document (Form I-131). Such
application must also include evidence that the derivative has a
qualifying relationship to the entrepreneur and otherwise merits a grant
of parole in the exercise of discretion. A biometric services fee is
required to be filed with the application. Such spouse or child will be
required to appear for collection of biometrics in accordance with the
form instructions or upon request.
(2) The spouse and children of an entrepreneur granted parole under
this section may be granted parole under this section for no longer than
the period of parole granted to such entrepreneur.
(3) The spouse of the entrepreneur parolee, after being paroled into
the United States, may be eligible for employment authorization on the
basis of parole under this section. To request employment authorization,
an eligible spouse paroled into the United States must file an
Application for Employment Authorization (Form I-765), in accordance
with 8 CFR 274a.13 and form instructions. An Application for Employment
Authorization must be accompanied by documentary evidence establishing
eligibility, including evidence of the spousal relationship.
(4) Notwithstanding 8 CFR 274a.12(c)(11), a child of the
entrepreneur parolee may not be authorized
[[Page 245]]
for and may not accept employment on the basis of parole under this
section.
(i) Conditions on parole. As a condition of parole under this
section, a parolee must maintain household income that is greater than
400 percent of the federal poverty line for his or her household size as
defined by the Department of Health and Human Services. USCIS may impose
other such reasonable conditions in its sole discretion with respect to
any alien approved for parole under this section, and it may request
verification of the parolee's compliance with any such condition at any
time. Violation of any condition of parole may lead to termination of
the parole in accordance with paragraph (k) of this section or denial of
re-parole.
(j) Reporting of material changes. An alien granted parole under
this section must immediately report any material change(s) to USCIS. If
the entrepreneur will continue to be employed by the start-up entity and
maintain a qualifying ownership interest in the start-up entity, the
entrepreneur must submit a form prescribed by USCIS, with any applicable
fee (not including any biometric fees), in accordance with the form
instructions to notify USCIS of the material change(s). The entrepreneur
parolee must immediately notify USCIS in writing if he or she will no
longer be employed by the start-up entity or ceases to possess a
qualifying ownership stake in the start-up entity.
(k) Termination of parole--(1) In general. DHS, in its discretion,
may terminate parole granted under this section at any time and without
prior notice or opportunity to respond if it determines that the alien's
continued parole in the United States no longer provides a significant
public benefit. Alternatively, DHS, in its discretion, may provide the
alien notice and an opportunity to respond prior to terminating the
alien's parole under this section.
(2) Automatic termination. Parole granted under this section will be
automatically terminated without notice upon the expiration of the time
for which parole was authorized, unless the alien timely files a non-
frivolous application for re-parole. Parole granted under this section
may be automatically terminated when USCIS receives written notice from
the entrepreneur parolee that he or she will no longer be employed by
the start-up entity or ceases to possess a qualifying ownership stake in
the start-up entity in accordance with paragraph (j) of this section.
Additionally, parole of the spouse or child of the entrepreneur will be
automatically terminated without notice if the parole of the
entrepreneur has been terminated. If parole is terminated, any
employment authorization based on that parole is automatically revoked.
(3) Termination on notice. USCIS may terminate on notice or provide
the entrepreneur or his or her spouse or children, as applicable,
written notice of its intent to terminate parole if USCIS believes that:
(i) The facts or information contained in the request for parole
were not true and accurate;
(ii) The alien failed to timely file or otherwise comply with the
material change reporting requirements in this section;
(iii) The entrepreneur parolee is no longer employed in a central
and active role by the start-up entity or ceases to possess a qualifying
ownership stake in the start-up entity;
(iv) The alien otherwise violated the terms and conditions of
parole; or
(v) Parole was erroneously granted.
(4) Notice and decision. A notice of intent to terminate issued
under this paragraph should generally identify the grounds for
termination of the parole and provide a period of up to 30 days for the
alien's written rebuttal. The alien may submit additional evidence in
support of his or her rebuttal, when applicable, and USCIS will consider
all relevant evidence presented in deciding whether to terminate the
alien's parole. Failure to timely respond to a notice of intent to
terminate will result in termination of the parole. When a charging
document is served on the alien, the charging document will constitute
written notice of termination of parole (if parole has not already been
terminated), unless otherwise specified. Any further immigration and
removal actions will be conducted in accordance with the Act and this
chapter. The decision to terminate parole may not be appealed. USCIS
will
[[Page 246]]
not consider a motion to reopen or reconsider a decision to terminate
parole under this section. On its own motion, USCIS may reopen or
reconsider a decision to terminate.
(l) Increase of investment and revenue amount requirements. The
investment and revenue amounts in this section will be automatically
adjusted every 3 years by the Consumer Price Index and posted on the
USCIS Web site at www.uscis.gov. Investment and revenue amounts adjusted
under this paragraph will apply to all applications filed on or after
the beginning of the fiscal year for which the adjustment is made.
[82 FR 5286, Jan. 17, 2017]
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 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 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 the form designated
by
[[Page 247]]
USCIS for this purpose, 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 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 affidavit of support for whom the
sponsor's support obligation has not terminated, plus the number of
aliens to be sponsored under the current affidavit of support, 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.
[[Page 248]]
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 an affidavit of support 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.
Sponsor means an individual who is either required to execute or has
executed an affidavit of support 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 the affidavit of support in place of the now-deceased
person who filed ta relative or fianc[eacute](e) petition 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;
76 FR 53788, Aug. 29, 2011]
Sec. 213a.2 Use of affidavit of support.
(a) Applicability of section 213a affidavit of support. (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 an affidavit of support on the
applicable form designated by USCIS in accordance with the requirements
of section 213A of the Act and the form instructions. Each reference in
this section to the affidavit of support or the form is deemed to be a
reference to all such forms designated by USCIS for use by a sponsor for
compliance with section 213A of the Act.
(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 an affidavit of support, the
intending immigrant must include with his or her application for an
immigrant visa or adjustment of status an exemption request on the form
designated by USCIS for this purpose.
[[Page 249]]
(ii) An affidavit of support is executed when a sponsor signs and
submits the appropriate forms in accordance with the form instructions
to USCIS or the Department of State, as appropriate.
(iii) A separate affidavit of support is required for each principal
beneficiary.
(iv) Each immigrant who will accompany the principal intending
immigrant must be included on the affidavit. 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 consular officer, immigration officer,
or immigration judge will determine the sufficiency of the affidavit of
support 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 affidavit of
support and the Poverty Guidelines in effect when the intending
immigrant filed the application for an immigrant visa or adjustment of
status.
(B) If more than one year passes between the filing of the affidavit
of support or required affidavit of support attachment form 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 affidavit of support and any required
affidavit of support attachment 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
[[Page 250]]
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;
(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 an affidavit of support 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 a relative, orphan or fianc[eacute](e) petition, the approval
of which forms the basis of the intending immigrant's eligibility to
apply for an immigrant visa or adjustment of status as an immediate
relative or a family-based immigrant, must execute a an affidavit of
support 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 an affidavit of support.
(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 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
[[Page 251]]
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 an
affidavit of support.
(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, 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 an affidavit of support 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 an
affidavit of support 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 an affidavit of support. 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
[[Page 252]]
maintain his or her income at the applicable threshold set forth in the
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 an affidavit of support, 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 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 an affidavit of support 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 an affidavit of support.
(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 an affidavit of support attachment. A person does not need to be
a U.S. citizen, national, or alien lawfully admitted for permanent
residence in order to sign an affidavit of support attachment.
(2) Each individual who signs an affidavit of support attachment
agrees, in consideration of the sponsor's signing of the an affidavit of
support, 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
[[Page 253]]
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 .
(4) If the sponsor relies on the income of any individual who has
signed an affidavit of support attachment, the sponsor must also include
with thean affidavit of support and an affidavit of support attachment,
with respect to the person who signed the an affidavit of support
attachment, 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 an
affidavit of support attachment 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 affidavit of support attachment 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 affidavit of support attachment signer has
the same principal residence as the sponsor. If an intending immigrant
signs an affidavit of support attachment, the sponsor must also provide
proof that the sponsored 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 affidavit of support or an affidavit of
support attachment 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 affidavit of
support or an affidavit of support attachment 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
[[Page 254]]
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 affidavit of support 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
(2) A joint sponsor executes a separate affidavit of support.
(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 an affidavit of support attachment.
The assets of any person who has signed an affidavit of support
attachment 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 affidavit
of support on behalf of the intending immigrant(s) and be willing to
accept joint and several liabilities 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 is
not required to file 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
[[Page 255]]
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
percent 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 percent 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 affidavit that it is submitted only on
behalf of the principal intending immigrant and those accompanying
family members specifically listed on the affidavit. The remaining
accompanying family members will then be inadmissible under section
212(a)(4) of the Act unless a second joint sponsor submits an
affidavit(s) 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 affidavit. There may not be more than two
joint sponsors for the family group consisting of the principal
intending immigrant and the accompanying spouse and children.
(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 an affidavit of
support. 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 an affidavit of
support.
(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 an affidavit of support, 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 affidavit of support or an affidavit
of support attachment 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 affidavit of support or an
[[Page 256]]
affidavit of support attachment, so that, in adjudicating the intending
immigrant's application for an immigrant visa or adjustment of status,
the affidavit of support or an affidavit of support attachment will be
deemed not to have been filed.
(vi) Effect of fraud or material concealment or misrepresentation.
An affidavit of support or an affidavit of support attachment 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 an affidavit of support or an affidavit of
support attachment is forged, counterfeited, or otherwise falsely
executed, or if the affidavit of support or an affidavit of support
attachment 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 an affidavit of support or an affidavit of support
attachment, 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 an affidavit
of support under this section creates a contract between the sponsor and
the U.S. Government for the benefit of the sponsored immigrant, and of
any Federal, State, or local governmental agency or private entity that
administers any means-tested public benefits program. The sponsored
immigrant, or any Federal, State, or local governmental agency or
private entity that provides any means-tested public benefit to the
sponsored immigrant after the sponsored immigrant acquires permanent
resident status, may seek enforcement 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 an affidavit of support, and any household member's
support obligation under an affidavit of support attachment, 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 affidavit of support or an affidavit of
support attachment. Any person completing and submitting an affidavit of
support as a joint sponsor or an affidavit of support attachment as a
household member is not bound to any obligations under section 213A of
the Act if, notwithstanding his or her signing of an affidavit of
support or an affidavit of support attachment, 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 an affidavit of support, and any household member's support
obligation under an affidavit of support attachment, 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
[[Page 257]]
not abandoned permanent resident status, executing the form designated
by USCIS for recording such action 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 an affidavit of support or an
affidavit of support attachment in relation to the new adjustment
application will be subject to the obligations of this part, rather than
those who signed an affidavit of support or an affidavit of support
attachment in relation to an earlier grant of admission as an immigrant
or of adjustment of status); or
(E) Dies.
(ii) The support obligation under an affidavit of support also
terminates if the sponsor, substitute sponsor or joint sponsor dies. A
household member's obligation under an affidavit of support attachment
terminates when the household member dies. The death of one person who
had a support obligation under an affidavit of support or an affidavit
of support attachment 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 an affidavit of support or of a household
member's obligations under an affidavit of support attachment 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 affidavit of support and any required attachments.
(1) In an immigrant visa case, once the sponsor, substitute sponsor,
joint sponsor, household member, or intending immigrant has presented a
signed affidavit of support and any required attachments to a Department
of State officer, 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 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 affidavit of support and any required attachments 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 any relevant affidavit(s) and attachments 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
[[Page 258]]
alien who is following-to-join a principal intending immigrant must
submit a new affidavit(s) of support, together with all documents or
other evidence necessary to prove that the new affidavits 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 affidavit for an alien who seeks to follow-to-join a principal
sponsored immigrant, the same sponsor who filed the visa petition and
affidavit of support for the principal sponsored immigrant must file the
new affidavit 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 affidavit that meets the requirements of this section.
Persons other than the person or persons who signed the original joint
affidavits on behalf of the principal sponsored immigrant may sign a new
joint affidavit on behalf of an alien who seeks to follow-to-join a
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; 76
FR 53788, Aug. 29, 2011; 76 FR 73477, Nov. 29, 2011]
Sec. 213a.3 Change of address.
(a) Submission of address change--(1) Filing requirements. If the
address of a sponsor (including a substitute sponsor or joint sponsor)
changes while the sponsor's support obligation is in effect, the sponsor
shall file a change of address notice within 30 days, in a manner as
prescribed by USCIS on its address change form instructions.
(2) Proof of mailing. USCIS will accept a photocopy of the change of
address form together with proof of the form's delivery to USCIS as
evidence that the sponsor has complied with this requirement.
(3) Electronic notices. USCIS will provide the sponsor with a
receipt notice for an address change.
(4) Alien sponsors. If the sponsor is an alien, the sponsor must
still comply with the requirements of 8 CFR 265.1 to notify USCIS of his
or her change of address.
(b) Civil penalty. If the sponsor fails to give notice in accordance
with paragraph (a) of this section, DHS 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. Except, 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,
DHS 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. The
procedure for imposing a civil penalty is established at 8 CFR part 280.
[76 FR 53789, Aug. 29, 2011]
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 103.8(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
[[Page 259]]
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 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 an affidavit of support
that has been filed on behalf of a specific alien for use as evidence in
a civil action to enforce an affidavit of support, 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
[[Page 260]]
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;
76 FR 53790, Aug. 29, 2011]
Sec. 213a.5 Relationship of this part to other affidavits of support.
Nothing in this part precludes the continued use of other affidavits
of support provided by USCIS in a case other than a case described in
Sec. 213a.2(a)(2). The obligations of section 213A of the Act do not
bind a person who executes such other USCIS affidavits of support.
Persons sponsoring an Amerasian alien described in section 204(f)(2) of
the Act remain subject to the provisions of section 204(f)(4)(B) of the
Act and 8 CFR 204.4(i), as appropriate.
[76 FR 53790, Aug. 29, 2011]
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 Habitual residence in the territories and possessions of the
United States and 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.
214.16 Transition Procedures for OPT Applications for Employment
Authorization
Authority: 6 U.S.C. 202, 236; 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; Public Law 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; 48 U.S.C. 1806; 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
[[Page 261]]
(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),
(T)(iv), and (T)(v) for the spouse, child, parent, and unmarried sibling
under 18 years of age, respectively, of a principal nonimmigrant
classified under section 101(a)(15)(T)(i); and T(vi) for the adult or
minor child of a derivative nonimmigrant classified under section
101(a)(15)(T)(ii); 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 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)(T)(v)......................... T-5
101(a)(15)(T)(vi)........................ T-6
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, as well as compliance with part 215,
subpart B, of this chapter, if applicable. 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
[[Page 262]]
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 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 (see Sec. 1.4),
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:
[[Page 263]]
(i) Is admissible;
(ii) Is applying for readmission after an absence not exceeding
thirty days solely in contiguous territory;
(iii) Is in possession of a valid passport unless exempt from the
requirement for presentation of a passport; and
(iv) Presents, or is the accompanying spouse or child of an alien
who presents, Form I-94 issued to the alien in connection with the
previous admission or stay, the alien's Form I-20 ID copy, and a
properly endorsed page 4 of Form I-20M-N.
(4) Section 101(a)(15)(Q)(ii). The inspecting immigration officer
shall readmit for the unexpired period of stay authorized prior to the
alien's departure, if the alien:
(i) Is admissible;
(ii) Is applying for readmission after an absence from the United
States not exceeding 30 days solely in contiguous territory or adjacent
islands;
(iii) Is in possession of a valid passport;
(iv) Presents, or is the accompanying spouse or child of an alien
who presents, an Arrival-Departure Record, Form I-94, issued to the
alien in connection with the previous admission or stay. The principal
alien must also present a Certification Letter issued by the Department
of State's Program Administrator.
(c) Extensions of stay--(1) Extension of stay for certain
employment-based nonimmigrant workers. A petitioner seeking the services
of an E-1, E-2, E-3, H-1B, H-1B1, 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 apply for an extension of stay on the form designated by
USCIS, with the fee prescribed in 8 CFR 103.7(b)(1), with the initial
evidence specified in Sec. 214.2, and in accordance with the form
instructions. 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.
(viii) Any nonimmigrant admitted pursuant to the Guam-CNMI Visa
Waiver Program, as provided in section 212(l) of the Act.
(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
[[Page 264]]
of the Service and without separate application, with any extension
granted from the date the previously authorized stay expired, where it
is demonstrated at the time of filing that:
(i) The delay was due to extraordinary circumstances beyond the
control of the applicant or petitioner, and the Service finds the delay
commensurate with the circumstances;
(ii) The alien has not otherwise violated his or her nonimmigrant
status;
(iii) The alien remains a bona fide nonimmigrant; and
(iv) The alien is not the subject of deportation proceedings under
section 242 of the Act (prior to April 1, 1997) or removal proceedings
under section 240 of the Act.
(5) Decision in Form I-129 or I-539 extension proceedings. Where an
applicant or petitioner demonstrates eligibility for a requested
extension, it may be granted at the discretion of the Service. There is
no appeal from the denial of an application for extension of stay filed
on Form I-129 or I-539.
(d) Termination of status. Within the period of initial admission or
extension of stay, the nonimmigrant status of an alien shall be
terminated by the revocation of a waiver authorized on his or her behalf
under section 212(d) (3) or (4) of the Act; by the introduction of a
private bill to confer permanent resident status on such alien; or,
pursuant to notification in the Federal Register, on the basis of
national security, diplomatic, or public safety reasons.
(e) Employment. A nonimmigrant in the United States in a class
defined in section 101(a)(15)(B) of the Act as a temporary visitor for
pleasure, or section 101(a)(15)(C) of the Act as an alien in transit
through this country, may not engage in any employment. Any other
nonimmigrant in the United States may not engage in any employment
unless he has been accorded a nonimmigrant classification which
authorizes employment or he has been granted permission to engage in
employment in accordance with the provisions of this chapter. A
nonimmigrant who is permitted to engage in employment may engage only in
such employment as has been authorized. Any unauthorized employment by a
nonimmigrant constitutes a failure to maintain status within the meaning
of section 241(a)(1)(C)(i) of the Act.
(f) False information. A condition of a nonimmigrant's admission and
continued stay in the United States is the full and truthful disclosure
of all information requested by DHS. A nonimmigrant's willful failure to
provide full and truthful information requested by DHS (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.
(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
[[Page 265]]
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 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.
(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 part 655, 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.
(l) Period of stay. (1) An alien admissible in E-1, E-2, E-3, H-1B,
L-1, or TN classification and his or her dependents may be admitted to
the United States or otherwise provided such status for the validity
period of the petition, or
[[Page 266]]
for a validity period otherwise authorized for the E-1, E-2, E-3, and TN
classifications, plus an additional period of up to 10 days before the
validity period begins and 10 days after the validity period ends.
Unless authorized under 8 CFR 274a.12, the alien may not work except
during the validity period.
(2) An alien admitted or otherwise provided status in E-1, E-2, E-3,
H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents
shall not be considered to have failed to maintain nonimmigrant status
solely on the basis of a cessation of the employment on which the
alien's classification was based, for up to 60 consecutive days or until
the end of the authorized validity period, whichever is shorter, once
during each authorized validity period. DHS may eliminate or shorten
this 60-day period as a matter of discretion. Unless otherwise
authorized under 8 CFR 274a.12, the alien may not work during such a
period.
(3) An alien in any authorized period described in paragraph (l) of
this section may apply for and be granted an extension of stay under
paragraph (c)(4) of this section or change of status under 8 CFR 248.1,
if otherwise eligible.
[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 at www.govinfo.gov.
Sec. 214.2 Special requirements for admission, extension,
and maintenance of status.
The general requirements in Sec. 214.1 are modified for the
following nonimmigrant classes:
(a) Foreign government officials--(1) General. The determination by
a consular officer prior to admission and the recognition by the
Secretary of State subsequent to admission is evidence of the proper
classification of a nonimmigrant under section 101(a)(15)(A) of the Act.
An alien who has a nonimmigrant status under section 101(a)(15)(A)(i) or
(ii) of the Act is to be admitted for the duration of the period for
which the alien continues to be recognized by the Secretary of State as
being entitled to that status. An alien defined in section
(101)(a)(15)(A)(iii) of the Act is to be admitted for an initial period
of not more than three years, and may be granted extensions of temporary
stay in increments of not more than two years. In addition, the
application for extension of temporary stay must be accompanied by a
statement signed by the employing official stating that he/she intends
to continue to employ the applicant and describing the type of work the
applicant will perform.
(2) Definition of A-1 or A-2 dependent. For purposes of employment
in the United States, the term dependent of an A-1 or A-2 principal
alien, as used in Sec. 214.2(a), means any of the following immediate
members of the family habitually residing in the same household as the
principal alien who is an officer or employee assigned to a diplomatic
or consular office in the United States:
(i) Spouse;
(ii) Unmarried children under the age of 21;
(iii) Unmarried sons or daughters under the age of 23 who are in
full-time 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; or
(vi) An immediate family member of an A-1 or A-2 principal alien
described in 22 CFR 41.21(a)(3)(i) to (iv) with A-1 or A-2 nonimmigrant
status, who falls
[[Page 267]]
within a category of aliens recognized by the Department of State as
qualifying dependents.
(3) Applicability of a formal bilateral agreement or an informal de
facto arrangement for A-1 or A-2 dependents. The applicability of a
formal bilateral agreement shall be based on the foreign state which
employs the principal alien and not on the nationality of the principal
alien or dependent. The applicability of an informal de facto
arrangement shall be based on the foreign state which employs the
principal alien, but under a de facto arrangement the principal alien
also must be a national of the foreign state which employs him/her in
the United States.
(4) Income tax, Social Security liability; non-applicability of
certain immunities. Dependents who are granted employment authorization
under this section are responsible for payment of all federal, state and
local income, employment and related taxes and Social Security
contributions on any remuneration received. In addition, immunity from
civil or administrative jurisdiction in accordance with Article 37 of
the Vienna Convention on Diplomatic Relations or other international
agreements does not apply to these dependents with respect to matters
arising out of their employment.
(5) Dependent employment pursuant to formal bilateral employment
agreements and informal de facto reciprocal arrangements. (i) The Office
of Protocol shall maintain a listing of foreign states which have
entered into formal bilateral employment agreements. Dependents of an A-
1 or A-2 principal alien assigned to official duty in the United States
may accept or continue in unrestricted employment based on such formal
bilateral agreements upon favorable recommendation by the Department of
State and issuance of employment authorization documentation by the
Service in accordance with 8 CFR part 274a. The application procedures
are set forth in paragraph (a)(6) of this section.
(ii) For purposes of this section, an informal de facto reciprocal
arrangement exists when the Department of State determines that a
foreign state allows appropriate employment on the local economy for
dependents of certain United States officials assigned to duty in that
foreign state. The Office of Protocol shall maintain a listing of
countries with which such reciprocity exists. Dependents of an A-1 or A-
2 principal alien assigned to official duty in the United States may be
authorized to accept or continue in employment based upon informal de
facto arrangements upon favorable recommendation by the Department of
State and issuance of employment authorization by the Service in
accordance with 8 CFR part 274a. Additionally, the procedures set forth
in paragraph (a)(6) of this section must be complied with, and the
following conditions must be met:
(A) Both the principal alien and the dependent desiring employment
are maintaining A-1 or A-2 status as appropriate;
(B) The principal's assignment in the United States is expected to
last more than six months;
(C) Employment of a similar nature for dependents of United States
Government officials assigned to official duty in the foreign state
employing the principal alien is not prohibited by that foreign state's
government;
(D) The proposed employment is not in an occupation listed in the
Department of Labor Schedule B (20 CFR part 656), or otherwise
determined by the 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
[[Page 268]]
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 USCIS for employment authorization. When applying
to USCIS for employment authorization, 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 Secretary.
(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 (see Sec. 1.4), 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.
[[Page 269]]
(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.)
(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.)
[[Page 270]]
(G) General service. (1) Professionals engaging in a business
activity at a professional level in a profession set out in Appendix
1603.D.1 to Annex 1603 of the NAFTA, but receiving no salary or other
remuneration from a United States source (other than an expense
allowance or other reimbursement for expenses incidental to the
temporary stay) and otherwise satisfying the requirements of Section A
to Annex 1063 of the NAFTA.
(2) Management and supervisory personnel engaging in commercial
transactions for an enterprise located in the territory of another
Party.
(3) Financial services personnel (insurers, bankers or investment
brokers) engaging in commercial transactions for an enterprise located
in the territory of another Party.
(4) Public relations and advertising personnel consulting with
business associates, or attending or participating in conventions.
(5) Tourism personnel (tour and travel agents, tour guides or tour
operators) attending or participating in conventions or conducting a
tour that has begun in the territory of another Party. (The tour may
begin in the United States; but must terminate in foreign territory, and
a significant portion of the tour must be conducted in foreign
territory. In such a case, an operator may enter the United States with
an empty conveyance and a tour guide may enter on his or her own and
join the conveyance.)
(6) Tour bus operators entering the United States:
(i) With a group of passengers on a bus tour that has begun in, and
will return to, the territory of another Party.
(ii) To meet a group of passengers on a bus tour that will end, and
the predominant portion of which will take place, in the territory of
another Party.
(iii) With a group of passengers on a bus tour to be unloaded in the
United States and returning with no passengers or reloading with the
group for transportation to the territory of another Party.
(7) Translators or interpreters performing services as employees of
an enterprise located in the territory of another Party.
(ii) Occupations and professions not listed in Appendix 1603.A.1 to
Annex 1603 of the NAFTA. Nothing in this paragraph shall preclude a
business person engaged in an occupation or profession other than those
listed in Appendix 1603.A.1 to Annex 1603 of the NAFTA from temporary
entry under section 101(a)(15)(B) of the Act, if such person otherwise
meets the existing requirements for admission as prescribed by the
Attorney General.
(5) Construction workers not admissible. Aliens seeking to enter the
country to perform building or construction work, whether on-site or in-
plant, are not eligible for classification or admission as B-1
nonimmigrants under section 101(a)(15)(B) of the Act. However, alien
nonimmigrants otherwise qualified as B-1 nonimmigrants may be issued
visas and may enter for the purpose of supervision or training of others
engaged in building or construction work, but not for the purpose of
actually performing any such building or construction work themselves.
(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
[[Page 271]]
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
(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
[[Page 272]]
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 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
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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 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 Form I-129, with fee, and a complete
description of the change, or;
(C) Apply directly to Department of 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 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 USCIS 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.
[[Page 274]]
(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 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
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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 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
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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 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.
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(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 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.
(23) Special procedures for classifying foreign investors in the
Commonwealth of the Northern Mariana Islands (CNMI) as E-2 nonimmigrant
treaty investors under
[[Page 278]]
title VII of the Consolidated Natural Resources Act of 2008 (Pub. L.
110-229), 48 U.S.C. 1806.
(i) E-2 CNMI Investor eligibility. During the period ending on
January 18, 2013, an alien may, upon application to the Secretary of
Homeland Security, be classified as a CNMI-only nonimmigrant treaty
investor (E-2 CNMI Investor) under section 101(a)(15)(E)(ii) of the Act
if the alien:
(A) Was lawfully admitted to the CNMI in long-term investor status
under the immigration laws of the CNMI before the transition program
effective date and had that status on the transition program effective
date;
(B) Has continuously maintained residence in the CNMI;
(C) Is otherwise admissible to the United States; and
(D) Maintains the investment or investments that formed the basis
for such long-term investment status.
(ii) Definitions. For purposes of paragraph (e)(23) of this section,
the following definitions apply:
(A) Approved investment or residence means an investment or
residence approved by the CNMI government.
(B) Approval letter means a letter issued by the CNMI government
certifying the acceptance of an approved investment subject to the
minimum investment criteria and standards provided in 4 N. Mar. I. Code
section 5941 et seq. (long-term business certificate), 4 N. Mar. I. Code
section 5951 et seq. (foreign investor certificate), and 4 N. Mar. I.
Code section 50101 et seq. (foreign retiree investment certificate).
(C) Certificate means a certificate or certification issued by the
CNMI government to an applicant whose application has been approved by
the CNMI government.
(D) Continuously maintained residence in the CNMI means that the
alien has maintained his or her residence within the CNMI since being
lawfully admitted as a long-term investor and has been physically
present therein for periods totaling at least half of that time. Absence
from the CNMI for any continuous period of more than six months but less
than one year after such lawful admission shall break the continuity of
such residence, unless the subject alien establishes to the satisfaction
of DHS that he or she did not in fact abandon residence in the CNMI
during such period. Absence from the CNMI for any period of one year or
more during the period for which continuous residence is required shall
break the continuity of such residence.
(E) Public organization means a CNMI public corporation or an agency
of the CNMI government.
(F) Transition period means the period beginning on the transition
program effective date and ending on December 31, 2014.
(iii) Long-term investor status. Long-term investor status under the
immigration laws of the CNMI includes only the following investor
classifications under CNMI immigration laws as in effect on or before
November 27, 2009:
(A) Long-term business investor. An alien who has an approved
investment of at least $50,000 in the CNMI, as evidenced by a Long-Term
Business Certificate.
(B) Foreign investor. An alien in the CNMI who has invested either a
minimum of $100,000 in an aggregate approved investment in excess of
$2,000,000, or a minimum of $250,000 in a single approved investment, as
evidenced by a Foreign Investment Certificate.
(C) Retiree investor. An alien in the CNMI who:
(1) Is over the age of 55 years and has invested a minimum of
$100,000 in an approved residence on Saipan or $75,000 in an approved
residence on Tinian or Rota, as evidenced by a Foreign Retiree
Investment Certification; or
(2) Is over the age of 55 years and has invested a minimum of
$150,000 in an approved residence to live in the CNMI, as evidenced by a
Foreign Retiree Investment Certificate.
(iv) Maintaining investments. An alien in long-term investor status
under the immigration laws of the CNMI is maintaining his or her
investments if that alien investor is in compliance with the terms upon
which the investor certificate was issued.
(v) Filing procedures. An alien seeking classification under E-2
CNMI Investor
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nonimmigrant status must file an application for E-2 CNMI investor
nonimmigrant status, along with accompanying evidence, with USCIS in
accordance with the form instructions before January 18, 2013. An
application filed after the filing date deadline will be rejected.
(vi) Appropriate documents. Documentary evidence establishing
eligibility for E-2 CNMI nonimmigrant investor status is required.
(A) Required evidence of admission includes a valid unexpired
foreign passport and a properly endorsed CNMI admission document (e.g.,
entry permit or certificate) reflecting lawful admission to the CNMI in
long-term business investor, foreign investor, or retiree foreign
investor status.
(B) Required evidence of long-term investor status includes:
(1) An unexpired Long-Term Business Certificate, in the case of an
alien in long-term business investor status.
(2) An unexpired Foreign Investment Certificate, in the case of an
alien in foreign investor status.
(3) A Foreign Retiree Investment Certification or a Foreign Retiree
Investment Certificate, in the case of an alien in retiree investor
status.
(C) Required evidence that the long-term investor is maintaining his
or her investment includes all of the following, as applicable:
(1) An approval letter issued by the CNMI government.
(2) Evidence that capital has been invested, including bank
statements showing amounts deposited in CNMI business accounts,
invoices, receipts or contracts for assets purchased, stock purchase
transaction records, loan or other borrowing agreements, land leases,
financial statements, business gross tax receipts, or any other
agreements supporting the application.
(3) Evidence that the applicant has invested at least the minimum
amount required, including evidence of assets which have been purchased
for use in the enterprise, evidence of property transferred from abroad
for use in the enterprise, evidence of monies transferred or committed
to be transferred to the new or existing enterprise in exchange for
shares of stock, any loan or mortgage, promissory note, security
agreement, or other evidence of borrowing which is secured by assets of
the applicant.
(4) A comprehensive business plan for new enterprises.
(5) Articles of incorporation, by-laws, partnership agreements,
joint venture agreements, corporate minutes and annual reports,
affidavits, declarations, or certifications of paid-in capital.
(6) Current business licenses.
(7) Foreign business registration records, recent tax returns of any
kind, evidence of other sources of capital.
(8) A listing of all resident and nonresident employees.
(9) A listing of all holders of business certificates for the
business establishment.
(10) A listing of all corporations in which the applicant has a
controlling interest.
(11) In the case of a holder of a certificate of foreign investment,
copies of annual reports of investment activities in the CNMI containing
sufficient information to determine whether the certificate holder is
under continuing compliance with the standards of issuance, accompanied
by annual financial audit reports performed by an independent certified
public accountant.
(12) In the case of an applicant who is a retiree investor, evidence
that he or she has an interest in property in the CNMI (e.g., lease
agreement), evidence of the value of the property interest (e.g., an
appraisal regarding the value of the property), and, as applicable,
evidence of the value of the improvements on the property (e.g.,
receipts or invoices of the costs of construction, the amount paid for a
preexisting structure, or an appraisal of improvements).
(vii) Physical presence in the CNMI. Physical presence in the CNMI
at the time of filing or during the pendency of the application is not
required, but an application may not be filed by, or E-2 CNMI Investor
status granted to, any alien present in U.S. territory other than in the
CNMI. If an alien with CNMI long-term investor status departs the CNMI
on or after the transition program effective date but before being
granted E-2 CNMI Investor status, he or she may not be re-admitted
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to the CNMI without a visa or appropriate inadmissibility waiver under
the U.S. immigration laws. If USCIS grants E-2 CNMI Investor
nonimmigrant classification to an alien who is not physically present in
the CNMI at the time of the grant, such alien must obtain an E-2 CNMI
Investor nonimmigrant visa at a consular office abroad in order to seek
admission to the CNMI in E-2 CNMI Investor status.
(viii) Information for background checks. USCIS may require an
applicant for E-2 CNMI Investor status, including but not limited to any
applicant for derivative status as a spouse or child, to submit
biometric information. An applicant present in the CNMI must pay or
obtain a waiver of the biometric services fee described in 8 CFR
103.7(b) for any biometric services provided, including but not limited
to reuse of previously provided biometric information for background
checks.
(ix) Denial. A grant of E-2 CNMI Investor status is a discretionary
determination, and the application may be denied for failure of the
applicant to demonstrate eligibility or for other good cause. Denial of
the application may be appealed to the USCIS Administrative Appeals
Office or any successor body.
(x) Spouse and children of an E-2 CNMI Investor--(A) Classification.
The spouse and children of an E-2 CNMI 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 an E-2 CNMI investor is not material to the
classification of the spouse or child.
(B) Employment authorization. The spouse of an E-2 CNMI Investor
lawfully admitted in the CNMI in E-2 CNMI Investor nonimmigrant status,
other than the spouse of an E-2 CNMI investor who obtained such status
based upon a Foreign Retiree Investment Certificate, is eligible to
apply for employment authorization under 8 CFR 274a.12(c)(12) while in
E-2 CNMI Investor nonimmigrant status. Employment authorization acquired
under this paragraph is limited to employment in the CNMI only.
(xi) Terms and conditions of E-2 CNMI Investor nonimmigrant status--
(A) Nonimmigrant status. E-2 CNMI Investor nonimmigrant status and any
derivative status are only applicable in the CNMI. Entry, employment,
and residence in the rest of the United States (including Guam) require
the appropriate visa or visa waiver eligibility. An E-2 CNMI Investor
who enters, attempts to enter or attempts to travel to any other part of
the United States without the appropriate visa or visa waiver
eligibility, or who violates conditions of nonimmigrant stay applicable
to any such authorized status in any other part of the United States,
will be deemed to have violated the terms and conditions of his or her
E-2 CNMI Investor status. An E-2 CNMI Investor who departs the CNMI will
require an E-2 CNMI investor visa for readmission to the CNMI as an E-2
CNMI Investor.
(B) Employment authorization. An alien with E-2 CNMI Investor
nonimmigrant status is only employment authorized in the CNMI for the
enterprise that is the basis for his or her CNMI Foreign Investment
Certificate or Long-Term Business Certificate, to the extent that such
Certificate authorized such activity. An alien with E-2 CNMI Investor
nonimmigrant status based upon a Foreign Retiree Investor Certificate is
not employment authorized.
(C) Changes in E-2 CNMI investor nonimmigrant status. If there are
any substantive changes to an alien's compliance with the terms and
conditions of qualification for E-2 CNMI Investor nonimmigrant status,
the alien must file a new application for E-2 CNMI Investor nonimmigrant
status, in accordance with the appropriate form instructions to request
an extension of stay in the United States. Prior approval is not
required if corporate changes occur that do not affect a previously
approved employment relationship, or are otherwise non-substantive.
(D) Unauthorized change of employment. 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.
[[Page 281]]
(E) Periods of admission. (1) An E-2 CNMI Investor may be admitted
for an initial period of not more than two years.
(2) The spouse and children accompanying or following-to-join an E-2
CNMI Investor may be admitted for the period during which the principal
alien is in valid E-2 CNMI Investor nonimmigrant status. The temporary
departure from the United States of the principal E-2 CNMI Investor
shall not affect the derivative status of the dependent spouse and
children, provided the familial relationship continues to exist and the
principal alien remains eligible for admission as an E-2 CNMI Investor.
(xii) Extensions of stay. Requests for extensions of E-2 CNMI
Investor nonimmigrant status may be granted in increments of not more
than two years, until the end of the transition period. To request an
extension of stay, an E-2 CNMI Investor must file with USCIS an
application for extension of stay, with required accompanying documents,
in accordance with the appropriate form instructions. To qualify for an
extension of E-2 CNMI Investor nonimmigrant status, each alien must
demonstrate:
(A) Continuous maintenance of the terms and conditions of E-2 CNMI
Investor nonimmigrant status;
(B) Physical presence in the CNMI at the time of filing the
application for extension of stay; and
(C) That he or she did not leave during the pendency of the
application.
(xiii) Change of status. An alien lawfully admitted to the United
States in another valid nonimmigrant status who is continuing to
maintain that status may apply to change nonimmigrant status to E-2 CNMI
Investor in accordance with paragraph (e)(21) of this section, if
otherwise eligible, including but not limited to having been in CNMI
long-term investor status on the transition date and within the period
provided by paragraph (e)(23)(v) of this section.
(xiv) Expiration of initial transition period. Upon expiration of
the initial transition period, the E-2 CNMI Investor nonimmigrant status
will automatically terminate.
(xv) Fee waiver. An alien applying for E-2 CNMI Investor
nonimmigrant status is eligible for a waiver of the required fee for an
application based upon inability to pay as provided by 8 CFR
103.7(c)(1).
(xvi) Waiver of inadmissibility for applicants present in the CNMI.
An applicant for E-2 CNMI Investor nonimmigrant status, who is otherwise
eligible for such status and otherwise admissible to the United States,
and who has provided all appropriate documents as described in paragraph
(e)(23)(vi) of this section, may be granted a waiver of inadmissibility
under section 212(d)(3)(A)(ii) of the Act, including the grounds of
inadmissibility described in sections 212(a)(6)(A)(i) (to the extent
such grounds arise solely because of the alien's presence in the CNMI on
November 28, 2009) and 212(a)(7)(B)(i)(II) of the Act, for the purpose
of granting the E-2 CNMI Investor nonimmigrant status. Such waiver may
be granted without additional form or fee required. In the case of an
application by a spouse or child as described in paragraph (e)(23)(x) of
this section who is present in the CNMI, the appropriate documents
required for such waiver are a valid unexpired passport and evidence
that the spouse or child is lawfully present in the CNMI under section
1806(e) of title 48, U.S. Code (which may include evidence of a grant of
parole by USCIS or by the Department of Homeland Security pursuant to a
grant of advance parole by USCIS in furtherance of section 1806(e) of
title 48, U.S. Code).
(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
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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;
(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
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(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 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
[[Page 284]]
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) or (C), of an F-1
student who is the beneficiary of an H-1B petition subject to section
214(g)(1)(A) of the Act (8 U.S.C. 1184(g)(1)(A)) and request for change
of status shall be automatically extended until October 1 of the fiscal
year for which such H-1B status is being requested where such petition:
(1) Has been timely filed; and
(2) Requests an H-1B employment start date of 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 automatically terminate upon the rejection, denial,
revocation, or withdrawal of the H-1B petition filed on such F-1
student's behalf or upon the denial or withdrawal of the request for
change of nonimmigrant status, even if the H-1B petition filed on the F-
1 student's behalf is approved for consular processing.
(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, consistent with 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 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
[[Page 285]]
class attendance for not less than the minimum number of hours a week
prescribed by the school for normal progress toward graduation.
(F) Notwithstanding paragraphs (f)(6)(i)(A) and (f)(6)(i)(B) of this
section, an alien who has been granted employment authorization pursuant
to the terms of a document issued by the Commissioner under paragraphs
(f)(9)(i) or (f)(9)(ii) of this section and published in the Federal
Register shall be deemed to be engaged in a ``full course of study'' if
he or she remains registered for no less than the number of semester or
quarter hours of instruction per academic term specified by the
Commissioner in the notice for the validity period of such employment
authorization.
(G) For F-1 students enrolled in classes for credit or classroom
hours, no more than the equivalent of one class or three credits per
session, term, semester, trimester, or quarter may be counted toward the
full course of study requirement if the class is taken on-line or
through distance education and does not require the student's physical
attendance for classes, examination or other purposes integral to
completion of the class. An on-line or distance education course is a
course that is offered principally through the use of television, audio,
or computer transmission including open broadcast, closed circuit,
cable, microwave, or satellite, audio conferencing, or computer
conferencing. If the F-1 student's course of study is in a language
study program, no on-line or distance education classes may be
considered to count toward a student's full course of study requirement.
(H) On-campus employment pursuant to the terms of a scholarship,
fellowship, or assistantship is deemed to be part of the academic
program of a student otherwise taking a full course of study.
(ii) Institution of higher learning. For purposes of this paragraph,
a college or university is an institution of higher 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,
[[Page 286]]
the student must provide medical documentation from a licensed medical
doctor, doctor of osteopathy, or licensed clinical psychologist, to the
DSO to substantiate the illness or medical condition. The student must
provide current medical documentation and the DSO must reauthorize the
drop below full course of study each new term, session, or semester. A
student previously authorized to drop below a full course of study due
to illness or medical condition for an aggregate of 12 months may not be
authorized by a DSO to reduce his or her course load on subsequent
occasions while pursuing a course of study at the same program level. A
student may be authorized to reduce course load for a reason of illness
or medical condition on more than one occasion while pursuing a course
of study, so long as the aggregate period of that authorization does not
exceed 12 months.
(C) Completion of course of study. The DSO may authorize a reduced
course load in the student's final term, semester, or session if fewer
courses are needed to complete the course of study. If the student is
not required to take any additional courses to satisfy the requirements
for completion, but continues to be enrolled for administrative
purposes, the student is considered to have completed the course of
study and must take action to maintain status. Such action may include
application for change of status or departure from the U.S.
(D) Reporting requirements for non-SEVIS schools. A DSO must report
to the Service any student who is authorized to reduce his or her course
load. Within 21 days of the authorization, the DSO must send a photocopy
of the student's current Form I-20ID along with Form I-538 to Service's
data processing center indicating the date and reason that the student
was authorized to drop below full time status. Similarly, the DSO will
report to the Service no more than 21 days after the student has resumed
a full course of study by submitting a current copy of the students'
Form I-20ID to the Service's 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
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attendance for required activities at the school prior to the actual
start of classes. Such required activities may include, but are not
limited to, research projects and orientation sessions. However, for
purposes of employment, the DSO may not indicate a report date more than
30 days prior to the start of classes. When determining the program
completion date on Form I-20, the DSO should make a reasonable estimate
based upon the time an average student would need to complete a similar
program in the same discipline.
(iii) Program extension for students in lawful status. An F-1
student who is unable to meet the program completion date on the Form I-
20 may be granted an extension by the DSO if the DSO certifies that the
student has continually maintained status and that the delays are caused
by compelling academic or medical reasons, such as changes of major or
research topics, unexpected research problems, or documented illnesses.
Delays caused by academic probation or suspension are not acceptable
reasons for program extensions. A DSO may not grant an extension if the
student did not apply for an extension until after the program end date
noted on the Form I-20. An F-1 student who is unable to complete the
educational program within the time listed on Form I-20 and who is
ineligible for program extension pursuant to this paragraph (f)(7) is
considered out of status. If eligible, the student may apply for
reinstatement under the provisions of paragraph (f)(16) of this section.
(iv) Notification. Upon granting a program extension, a DSO at a
non-SEVIS school must immediately submit notification to the Service's
data processing center using Form I-538 and the top page of Form I-20A-B
showing the new program completion date. For a school enrolled in SEVIS,
a DSO may grant a program extension only by updating SEVIS and issuing a
new Form I-20 reflecting the current program end date. A DSO may grant
an extension any time prior to the program end date 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
[[Page 288]]
completes the Student Certification portion of the Form I-20 and returns
the form to a DSO of the transfer school within 15 days of the program
start date listed on Form I-20. Upon receipt of the student's Form I-20
the DSO must note ``transfer completed on (date)'' in the space provided
for the DSO's remarks, thereby acknowledging the student's attendance at
the transfer school; return the Form I-20 to the student; submit the
School copy of the Form I-20 to Service's Data Processing Center within
30 days of receipt from the student; and forward a photocopy of the
school copy to the school from which the student transferred.
(B) Non-SEVIS school to SEVIS school. To transfer from a non-SEVIS
school to a SEVIS school, the student must first notify the school he or
she is attending of the intent to transfer, then obtain a SEVIS Form I-
20 issued in accordance with the provisions of 8 CFR 214.3(k) from the
school to which he or she intends to transfer. Prior to issuance of any
Form I-20, the DSO at the transfer school is responsible for determining
that the student has been maintaining status at his or her current
school and is eligible for transfer to the new school. Once the transfer
school has issued the SEVIS Form I-20 to the student indicating a
transfer, the transfer school becomes responsible for updating and
maintaining the student's record in SEVIS. The student is then required
to notify the DSO at the transfer school within 15 days of the program
start date listed on SEVIS Form I-20. Upon notification that the student
is enrolled in classes, the DSO of the transfer school must update SEVIS
to reflect the student's registration and current address, thereby
acknowledging that the student has completed the transfer process. In
the remarks section of the student's SEVIS Form I-20, the DSO must note
that the transfer has been completed, including the date, and return the
form to the student. The transfer is effected when 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
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the intent to transfer and must indicate the school to which he or she
intends to transfer. Upon notification by the student, the current
school will update the student's status in SEVIS as ``a transfer out'',
enter a ``release'' or expected transfer date, and update the transfer
school as ``non-SEVIS.'' The student must then notify the school to
which the he or she intends to transfer of his or her intent to enroll.
After the student has completed his or her current term or session, or
has reached the expected transfer date, the DSO at the current school
will no longer have full access to the student's SEVIS record. At this
point, if the student has notified the transfer school of his or her
intent to transfer, and the transfer school has determined that the
student has been maintaining status at his or her current school, the
transfer school may issue the student a Form I-20. The transfer will be
effected only if the student completes the Student Certification portion
of the Form I-20 and returns the form to a designated school official of
the transfer school within 15 days of the program start date listed on
Form I-20. Upon receipt of the student's Form I-20 the DSO must do as
follows: note ``transfer completed on (date)'' in the space provided for
the DSO's remarks, thereby acknowledging the student's attendance;
return the Form I-20 to the student; submit the school copy of the Form
I-20 to the Service's data processing center within 30 days of receipt
from the student; and forward a photocopy of the school copy to the
school from which the student transferred.
(iii) Notification. Upon receipt of the student's Form I-20 A-B, the
DSO must:
(A) Note ``transfer completed on (date)'' on the student's I-20 ID
in the space provided for the DSO's remarks, thereby acknowledging the
student's attendance;
(B) Return the I-20 ID to the student;
(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
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on-campus employment at the school having jurisdiction over the
student's SEVIS record. Upon initial entry to begin a new course of
study, an F-1 student may not begin on-campus employment more than 30
days prior to the actual start of classes.
(ii) Off-campus work authorization--(A) General. An F-1 student may
be authorized to work off-campus on a part-time basis in accordance with
paragraph (f)(9)(ii) (B) or (C) of this section after having been in F-1
status for one full academic year provided that the student is in good
academic standing as determined by the DSO. Part-time off-campus
employment authorized under this section is limited to no more than
twenty hours a week when school is in session. A student who is granted
off-campus employment authorization may work full-time during holidays
or school vacation. The employment authorization is automatically
terminated whenever the student fails to maintain status. In emergent
circumstances as determined by the Commissioner, the Commissioner may
suspend the applicability of any or all of the requirements of paragraph
(f)(9)(ii) of this section by notice in the Federal Register.
(B) [Reserved]
(C) Severe economic hardship. If other employment opportunities are
not available or are otherwise insufficient, an eligible F-1 student may
request off-campus employment work authorization based upon severe
economic hardship caused by unforeseen circumstances beyond the
student's control. These circumstances may include loss of financial aid
or on-campus employment without fault on the part of the student,
substantial fluctuations in the value of currency or exchange rate,
inordinate increases in tuition and/or living costs, unexpected changes
in the financial condition of the student's source of support, medical
bills, or other substantial and unexpected expenses.
(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,
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of the reason or reasons for the denial. No appeal shall lie from a
decision to deny a request for employment authorization under this
section. The employment authorization may be granted in one year
intervals up to the expected date of completion of the student's current
course of study. A student has permission to engage in off-campus
employment only if the student receives the EAD endorsed to that effect.
Off-campus employment authorization may be renewed by the Service only
if the student is maintaining status and good academic standing. The
employment authorization is automatically terminated whenever the
student fails to maintain status.
(iii) Internship with an international organization. A bona fide F-1
student who has been offered employment by a recognized international
organization within the meaning of the International Organization
Immunities Act (59 Stat. 669) must apply for employment authorization to
the service center having jurisdiction over his or her place of
residence. A student seeking employment authorization under this
provision is required to present a written certification from the
international organization that the proposed employment is within the
scope of the organization's sponsorship, Form I-20 ID or SEVIS Form I-20
with employment page completed by DSO certifying eligibility for
employment, and a completed Form I-765, with required fee as contained
in Sec. 103.7(b)(1) of this chapter.
(10) Practical training. Practical training may be authorized to an
F-1 student who has been lawfully enrolled on a full time basis, in a
Service-approved college, university, conservatory, or seminary for one
full academic year. This provision also includes students who, during
their course of study, were enrolled in a study abroad program, if the
student had spent at least one full academic term enrolled in a full
course of study in the United States prior to 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
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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
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 24-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) 24-month extension of post-completion OPT for 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
authorized under 8 CFR 274a.12(c)(3)(i)(B). An extension will be for 24
months for the first qualifying degree for which the student has
completed all course requirements (excluding thesis or equivalent),
including any qualifying degree as part of a dual degree program,
subject to the requirement in paragraph (f)(10)(ii)(C)(3) of this
section that previously obtained degrees must have been conferred. If a
student completes all such course requirements for another qualifying
degree at a higher degree level than the first, the student may apply
for a second 24-month extension of OPT while in a valid period of post-
completion OPT authorized under 8 CFR 274a.12(c)(3)(i)(B). In no event
may a student be authorized for more than two lifetime STEM OPT
extensions. A student who was granted a 17-month OPT extension under the
rule issued at 73 FR 18944, whether or not such student requests an
additional 7-month period of STEM OPT under 8 CFR 214.16, is considered
to have been authorized for one STEM OPT extension, and may be eligible
for only one more STEM OPT extension. Any subsequent application for an
additional 24-month OPT extension under this paragraph (f)(10)(ii)(C)
must be based on a degree at a higher degree level than the degree that
was the basis for the student's first OPT extension. In order to qualify
for an extension of post-completion OPT based upon a STEM degree, all of
the following requirements must be met.
(1) Accreditation. The degree that is the basis for the 24-month OPT
extension is from a U.S. educational institution accredited by an
accrediting agency recognized by the Department of Education at the time
of application.
(2) DHS-approved degree. The degree that is the basis for the 24-
month OPT extension is a bachelor's, master's, or doctoral degree in a
field determined by the Secretary, or his or her designee, to qualify
within a science, technology, engineering, or mathematics field.
(i) The term ``science, technology, engineering or mathematics
field'' means a field included in the Department of
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Education's Classification of Instructional Programs taxonomy within the
two-digit series or successor series containing engineering, biological
sciences, mathematics, and physical sciences, or a related field. In
general, related fields will include fields involving research,
innovation, or development of new technologies using engineering,
mathematics, computer science, or natural sciences (including physical,
biological, and agricultural sciences).
(ii) The Secretary, or his or her designee, will maintain the STEM
Designated Degree Program List, which will be a complete list of
qualifying degree program categories, published on the Student and
Exchange Visitor Program Web site at http://www.ice.gov/sevis. Changes
that are made to the Designated Degree Program List may also be
published in a notice in the Federal Register. All program categories
included on the list must be consistent with the definition set forth in
paragraph (f)(10)(ii)(C)(2)(i) of this section.
(iii) At the time the DSO recommends a 24-month OPT extension under
this paragraph (f)(10)(ii)(C) in SEVIS, the degree that is the basis for
the application for the OPT extension must be contained within a
category on the STEM Designated Degree Program List.
(3) Previously obtained STEM degree(s). The degree that is the basis
for the 24-month OPT extension under this paragraph (f)(10)(ii)(C) may
be, but is not required to be, the degree that is the basis for the
post-completion OPT period authorized under 8 CFR 274a.12(c)(3)(i)(B).
If an application for a 24-month OPT extension under this paragraph
(f)(10)(ii)(C) is based upon a degree obtained previous to the degree
that provided the basis for the period of post-completion OPT authorized
under 8 CFR 274a.12(c)(3)(i)(B), that previously obtained degree must
have been conferred from a U.S. educational institution that is
accredited and SEVP-certified at the time the student's DSO recommends
the student for the 24-month OPT extension and must be in a degree
program category included on the current STEM Designated Degree Program
List at the time of the DSO recommendation. That previously obtained
degree must have been conferred within the 10 years preceding the date
the DSO recommends the student for the 24-month OPT extension.
(4) Eligible practical training opportunity. The STEM practical
training opportunity that is the basis for the 24-month OPT extension
under this paragraph (f)(10)(ii)(C) must be directly related to the
degree that qualifies the student for such extension, which may be the
previously obtained degree described in paragraph (f)(10)(ii)(C)(3) of
this section.
(5) Employer qualification. The student's employer is enrolled in E-
Verify, as evidenced by either a valid E-Verify Company Identification
number or, if the employer is using an employer agent to create its E-
Verify cases, a valid E-Verify Client Company Identification number, and
the employer remains a participant in good standing with E-Verify, as
determined by USCIS. An employer must also have an employer
identification number (EIN) used for tax purposes.
(6) Employer reporting. A student may not be authorized for
employment with an employer pursuant to paragraph (f)(10)(ii)(C)(2) of
this section unless the employer agrees, by signing the Training Plan
for STEM OPT Students, Form I-983 or successor form, to report the
termination or departure of an OPT student to the DSO at the student's
school, if the termination or departure is prior to the end of the
authorized period of OPT. Such reporting must be made within five
business days of the termination or departure. An employer shall
consider a student to have departed when the employer knows the student
has left the practical training opportunity, or if the student has not
reported for his or her practical training for a period of five
consecutive business days without the consent of the employer, whichever
occurs earlier.
(7) Training Plan for STEM OPT Students, Form I-983 or successor
form. (i) A student must fully complete an individualized Form I-983 or
successor form and obtain requisite signatures from an
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appropriate individual in the employer's organization on the form,
consistent with form instructions, before the DSO may recommend a 24-
month OPT extension under paragraph (f)(10)(ii)(C)(2) of this section in
SEVIS. A student must submit the Form I-983 or successor form, which
includes a certification of adherence to the training plan completed by
an appropriate individual in the employer's organization who has
signatory authority for the employer, to the student's DSO, prior to the
new DSO recommendation. A student must present his or her signed and
completed Form I-983 or successor form to a DSO at the educational
institution of his or her most recent enrollment. A student, while in F-
1 student status, may also be required to submit the Form I-983 or
successor form to ICE and/or USCIS upon request or in accordance with
form instructions.
(ii) The training plan described in the Form I-983 or successor form
must identify goals for the STEM practical training opportunity,
including specific knowledge, skills, or techniques that will be
imparted to the student, and explain how those goals will be achieved
through the work-based learning opportunity with the employer; describe
a performance evaluation process; and describe methods of oversight and
supervision. Employers may rely on their otherwise existing training
programs or policies to satisfy the requirements relating to performance
evaluation and oversight and supervision, as applicable.
(iii) The training plan described in the Form I-983 or successor
form must explain how the training is directly related to the student's
qualifying STEM degree.
(iv) If a student initiates a new practical training opportunity
with a new employer during his or her 24-month OPT extension, the
student must submit, within 10 days of beginning the new practical
training opportunity, a new Form I-983 or successor form to the
student's DSO, and subsequently obtain a new DSO recommendation.
(8) Duties, hours, and compensation for training. The terms and
conditions of a STEM practical training opportunity during the period of
the 24-month OPT extension, including duties, hours, and compensation,
must be commensurate with terms and conditions applicable to the
employer's similarly situated U.S. workers in the area of employment. A
student may not engage in practical training for less than 20 hours per
week, excluding time off taken consistent with leave-related policies
applicable to the employer's similarly situated U.S. workers in the area
of employment. If the employer does not employ and has not recently
employed more than two similarly situated U.S. workers in the area of
employment, the employer nevertheless remains obligated to attest that
the terms and conditions of a STEM practical training opportunity are
commensurate with the terms and conditions of employment for other
similarly situated U.S. workers in the area of employment. ``Similarly
situated U.S. workers'' includes U.S. workers performing similar duties
subject to similar supervision and with similar educational backgrounds,
industry expertise, employment experience, levels of responsibility, and
skill sets as the student. The duties, hours, and compensation of such
students are ``commensurate'' with those offered to U.S. workers
employed by the employer in the same area of employment when the
employer can show that the duties, hours, and compensation are
consistent with the range of such terms and conditions the employer has
offered or would offer to similarly situated U.S. employees. The student
must disclose his or her compensation, including any adjustments, as
agreed to with the employer, on the Form I-983 or successor form.
(9) Evaluation requirements and Training Plan modifications. (i) A
student may not be authorized for employment with an employer pursuant
to paragraph (f)(10)(ii)(C)(2) of this section unless the student
submits a self-evaluation of the student's progress toward the training
goals described in the Form I-983 or successor form. All required
evaluations must be completed prior to the conclusion of a STEM
practical training opportunity, and the student and an appropriate
individual in the employer's organization must sign each evaluation to
attest to its accuracy. All STEM practical training
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opportunities require an initial evaluation within 12 months of the
approved starting date on the employment authorization document granted
pursuant to the student's 24-month OPT extension application, and a
concluding evaluation. The student is responsible for ensuring the DSO
receives his or her 12-month evaluation and final evaluation no later
than 10 days following the conclusion of the reporting period or
conclusion of his or her practical training opportunity, respectively.
(ii) If any material change to or deviation from the training plan
described in the Form I-983 or successor form occurs, the student and
employer must sign a modified Form I-983 or successor form reflecting
the material change(s) or deviation(s). Material changes and deviations
relating to training may include, but are not limited to, any change of
Employer Identification Number resulting from a corporate restructuring,
any reduction in compensation from the amount previously submitted on
the Form I-983 or successor form that is not tied to a reduction in
hours worked, any significant decrease in hours per week that a student
engages in a STEM training opportunity, and any decrease in hours worked
below the minimum hours for the 24-month extension as described in
paragraph (f)(10)(ii)(C)(8) of this section. Material changes and
deviations also include any change or deviation that renders an employer
attestation inaccurate, or renders inaccurate the information in the
Form I-983 or successor form on the nature, purpose, oversight, or
assessment of the student's practical training opportunity. The student
and employer must ensure that the modified Form I-983 or successor form
is submitted to the student's DSO at the earliest available opportunity.
(iii) The educational institution whose DSO is responsible for
duties associated with the student's latest OPT extension under
paragraph (f)(10)(ii)(C)(2) of this section is responsible for ensuring
the Student and Exchange Visitor Program has access to each
individualized Form I-983 or successor form and associated student
evaluations (electronic or hard copy), including through SEVIS if
technologically available, beginning within 30 days after the document
is submitted to the DSO and continuing for a period of three years
following the completion of each STEM practical training opportunity.
(10) Additional STEM opportunity obligations. A student may only
participate in a STEM practical training opportunity in which the
employer attests, including by signing the Form I-983 or successor form,
that:
(i) The employer has sufficient resources and personnel available
and is prepared to provide appropriate training in connection with the
specified opportunity at the location(s) specified in the Form I-983 or
successor form;
(ii) The student on a STEM OPT extension will not replace a full- or
part-time, temporary or permanent U.S. worker; and
(iii) The student's opportunity assists the student in reaching his
or her training goals.
(11) Site visits. DHS, at its discretion, may conduct a site visit
of any employer. The purpose of the site visit is for DHS to ensure that
each employer possesses and maintains the ability and resources to
provide structured and guided work-based learning experiences consistent
with any Form I-983 or successor form completed and signed by the
employer. DHS will provide notice to the employer 48 hours in advance of
any site visit, except notice may not be provided if the visit is
triggered by a complaint or other evidence of noncompliance with the
regulations in this paragraph (f)(10)(ii)(C).
(D) Duration of status while on post-completion OPT. For a student
with approved post-completion OPT, the duration of status is defined as
the period beginning on the date that the student's application for OPT
was properly filed and pending approval, including the authorized period
of post-completion OPT, and ending 60 days after the OPT employment
authorization expires.
(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 period described
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in 8 CFR 274a.12(c)(3)(i)(B). Students granted a 24-month OPT extension
under paragraph (f)(10)(ii)(C)(2) of this section may not accrue an
aggregate of more than 150 days of unemployment during a total OPT
period, including any post-completion OPT period described in 8 CFR
274a.12(c)(3)(i)(B) and any subsequent 24-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) Applications for employment authorization. The student must
properly file an Application for Employment Authorization, Form I-765 or
successor form, with USCIS, accompanied by the required fee, and the
supporting documents, as described in the form's instructions.
(B) Applications and filing deadlines for pre-completion OPT and
post-completion OPT--(1) Pre-completion OPT. For pre-completion OPT, the
student may properly file his or her Form I-765 or successor form 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) Post-completion OPT. For post-completion OPT, not including a
24-month OPT extension under paragraph (f)(10)(ii)(C)(2) of this
section, the student may properly file his or her Form I-765 or
successor form 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 his or her Form I-765 or successor form with USCIS within 30
days of the date the DSO enters the recommendation for OPT into his or
her SEVIS record.
(C) Applications and filing deadlines for 24-month OPT extension. A
student meeting the eligibility requirements for a 24-month OPT
extension under paragraph (f)(10)(ii)(C) of this section may request an
extension of employment authorization by filing Form I-765 or successor
form, with the required fee and supporting documents, up to 90 days
prior to the expiration date of the student's current OPT employment
authorization. The student seeking such 24-month OPT extension must
properly file his or her Form I-765 or successor form with USCIS within
60 days of the date the DSO enters the recommendation for the OPT
extension into his or her SEVIS record. If a student timely and properly
files an application for such 24-month OPT extension and timely and
properly requests a DSO recommendation, including by submitting the
fully executed Form I-983 or successor form to his or her DSO, but the
Employment Authorization Document, Form I-766 or successor form,
currently in the student's possession expires prior to the decision on
the student's application for the OPT extension, the student's Form I-
766 or successor form is extended automatically pursuant to the terms
and conditions specified in 8 CFR 274a.12(b)(6)(iv).
(D) Start of OPT employment. A student may not begin OPT employment
prior to the approved start date on his or her Employment Authorization
Document, Form I-766 or successor form, except as described 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) Additional DSO responsibilities. A student must have 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 at the educational
institution of the student's most recent enrollment must ensure that the
student is eligible for the given type and period of OPT and that the
student is aware of the student's responsibilities for maintaining
status while on OPT. Prior to recommending a 24-month OPT extension
under paragraph (f)(10)(ii)(C) of
[[Page 297]]
this section, the DSO at the educational institution of the student's
most recent enrollment must certify that the student's degree being used
to qualify that student for the 24-month OPT extension, as shown in
SEVIS or official transcripts, is a bachelor's, master's, or doctorate
degree with a degree code that is contained within a category on the
current STEM Designated Degree Program List at the time the
recommendation is made. A DSO may recommend a student for a 24-month OPT
extension under paragraph (f)(10)(ii)(C) of this section only if the
Form I-983 or successor form described in paragraph (f)(10)(ii)(C)(7) of
this section has been properly completed and executed by the student and
prospective employer. A DSO may not recommend a student for an OPT
extension under paragraph (f)(10)(ii)(C) of this section if the
practical training would be conducted by an employer who has failed to
meet the requirements under paragraphs (f)(10)(ii)(C)(5) through (9) of
this section or has failed to provide the required assurances of
paragraph (f)(10)(ii)(C)(10) of this section.
(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 OPT
employment is to be full-time or part-time, or for a student seeking a
recommendation for a 24-month OPT extension under paragraph
(f)(10)(ii)(C) of this section whether the OPT employment meets the
minimum hours requirements described in paragraph (f)(10)(ii)(C)(8) of
this section, and note in SEVIS the OPT start and end dates.
(C) The DSO must provide the student with a signed, dated Form I-20
or successor form indicating that OPT has been recommended.
(iii) Decision on application for OPT employment authorization.
USCIS will adjudicate a student's Form I-765 or successor form on the
basis of the DSO's recommendation and other eligibility considerations.
(A) If granted, the employment authorization period for post-
completion OPT begins on the requested date of commencement or the date
the Form I-765 or successor form 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 a 24-month OPT
extension under paragraph (f)(10)(ii)(C) of this section begins on the
day after the expiration of the initial post-completion OPT employment
authorization and ends 24 months thereafter, regardless of the date the
actual extension is approved.
(B) USCIS will notify the applicant of the decision on the Form I-
765 or successor form in writing, 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 granted employment authorization by USCIS to engage
in optional practical training is required to report any change of name
or address, or interruption of such employment to the DSO for the
duration of the 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
24-month OPT extension. Students with an approved 24-month OPT extension
under paragraph (f)(10)(ii)(C) of this section 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 complete a validation report, confirming that
the information required by paragraph (f)(12)(ii)(A) of this section has
not changed, every six months. The requirement for validation reporting
starts on the date the 24-month OPT extension begins and ends when the
student's F-1 status expires or the 24-month OPT extension concludes,
[[Page 298]]
whichever is first. The validation 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) F-2 post-secondary/vocational study--(1) Authorized
study at SEVP-certified schools. An F-2 spouse or F-2 child may enroll
in less than a full course of study, as defined in paragraphs
(f)(6)(i)(A) through (D) and (m)(9)(i) through (iv), in any course of
study described in paragraphs (f)(6)(i)(A) through (D) or (m)(9)(i)
through (iv) of this section at an SEVP-certified school.
Notwithstanding paragraphs (f)(6)(i)(B) and (m)(9)(i) of this section,
study at an undergraduate college or university or at a community
college or junior college is not a full course of study solely because
the F-2 nonimmigrant is engaging in a lesser course load to complete a
course of study during the current term. An F-2 spouse or F-2 child
enrolled in less than a full course of study is not eligible to engage
in employment pursuant to paragraphs (f)(9) and (10) of this section or
pursuant to paragraph (m)(14) of this section.
(2) Full course of study. Subject to paragraphs (f)(15)(ii)(B) and
(f)(18) of this section, an F-2 spouse and child may engage in a full
course of study only by applying for and obtaining a change of status to
F-1, M-1 or J-1 nonimmigrant status, as appropriate, before beginning a
full course of study. An F-2 spouse and child may engage in study that
is avocational or recreational in nature, up to and including on a full-
time basis.
(B) F-2 elementary or secondary study. An F-2 child may engage in
full-time study, including any full course of study, in any elementary
or secondary school (kindergarten through twelfth grade).
(C) An F-2 spouse and child violates his or her nonimmigrant status
by enrolling in any study except as provided in paragraph (f)(15)(ii)(A)
or (B) of this section.
(16) Reinstatement to student status--(i) General. The district
director may consider reinstating a student who makes a request for
reinstatement on Form I-539, Application to Extend/Change Nonimmigrant
Status, accompanied by a properly completed SEVIS Form I-20 indicating
the DSO's recommendation for reinstatement (or a properly completed Form
I-20A-B issued prior to January 30, 2003, from the school the student is
attending or intends to attend prior to August 1, 2003). The district
director may consider granting the request if the student:
(A) Has not been out of status for more than 5 months at the time of
filing the request for reinstatement (or demonstrates that the failure
to file within the 5 month period was the result of exceptional
circumstances and
[[Page 299]]
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.
(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
[[Page 300]]
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;
(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; or
(vi) An immediate family member of a G-1, G-3, or G-4 principal
alien described in 22 CFR 41.21(a)(3)(i) to (iv)
[[Page 301]]
with G-1, G-3, or G-4 nonimmigrant status who falls within a category of
aliens designated by the Department of State as qualifying dependents.
(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 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,
[[Page 302]]
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 USCIS for employment authorization. When applying
to USCIS for employment authorization, 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 Secretary.
(7) Period of time for which employment may be authorized. If
approved, an application to accept or continue employment under this
section shall be granted in increments of not more than three years
each.
(8) No appeal. There shall be no appeal from a denial of permission
to accept or continue employment under this section.
(9) Dependents or family members of principal aliens classified G-2
or G-5. A dependent or family member of a principal alien classified G-2
or G-5 may not be employed in the United States under this section.
(10) Unauthorized employment. An alien classified under section
101(a)(15)(G) of the Act who is not a principal alien and who engages in
employment outside the scope of, or in a manner contrary to this
section, may be considered in violation of section 241(a)(1)(C)(i) of
the Act. An alien who is classified under section 101(a)(15)(G) of the
Act who is a principal alien and who engages in employment outside the
scope of his/her official position may be considered in violation of
section 241(a)(1)(C)(i) of the Act.
(11) Special provision. As of February 16, 1990 no new employment
authorization will be granted and no pre-existing employment
authorization will be extended for a G-1 dependent absent an appropriate
bilateral agreement or de
[[Page 303]]
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 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 there are not sufficient workers who
are able, willing,
[[Page 304]]
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.
(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 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.
(E) Amended or new petition. The petitioner shall file an amended or
new petition, with fee, with the Service Center where the original
petition was filed to reflect any material changes in the terms and
conditions of employment or training or the alien's eligibility as
specified in the original approved petition. An amended or new H-1C, H-
1B, H-2A, or H-2B petition must be accompanied by a current or new
Department of Labor determination. In the case of an H-1B petition, this
requirement includes a new labor condition application.
(F) Agents as petitioners. A United States agent may file a petition
in cases involving workers who are traditionally self-employed or
workers who use agents to arrange short-term employment on their behalf
with numerous employers, and in cases where a foreign employer
authorizes the agent to act on its behalf. A United States agent may be:
the actual employer of the beneficiary, the representative of both the
employer and the beneficiary, or, a person or entity authorized by the
employer to act for, or in place of, the employer as it agent. A
petition filed by a United States agent is subject to the following
conditions;
(1) An agent performing the function of an employer must guarantee
the wages and other terms and conditions
[[Page 305]]
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.
(H) H-1B portability. An eligible H-1B nonimmigrant is authorized to
start concurrent or new employment under section 214(n) of the Act upon
the filing, in accordance with 8 CFR 103.2(a), of a nonfrivolous H-1B
petition on behalf of such alien, or as of the requested start date,
whichever is later.
(1) Eligible H-1B nonimmigrant. For H-1B portability purposes, an
eligible H-1B nonimmigrant is defined as an alien:
(i) Who has been lawfully admitted into the United States in, or
otherwise provided, H-1B nonimmigrant status;
(ii) On whose behalf a nonfrivolous H-1B petition for new employment
has been filed, including a petition for new employment with the same
employer, with a request to amend or extend the H-1B nonimmigrant's
stay, before the H-1B nonimmigrant's period of stay authorized by the
Secretary of Homeland Security expires; and
(iii) Who has not been employed without authorization in the United
States from the time of last admission through the filing of the
petition for new employment.
(2) Length of employment. Employment authorized under paragraph
(h)(2)(i)(H) of this section automatically ceases upon the adjudication
of the H-1B petition described in paragraph (h)(2)(i)(H)(1)(ii) of this
section.
(3) Successive H-1B portability petitions. (i) An alien maintaining
authorization for employment under paragraph (h)(2)(i)(H) of this
section, whose status, as indicated on the Arrival-Departure Record
(Form I-94), has expired, shall be considered to be in a period of stay
authorized by the Secretary of Homeland Security for purposes of
paragraph (h)(2)(i)(H)(1)(ii) of this section. If otherwise eligible
under paragraph (h)(2)(i)(H) of this section,
[[Page 306]]
such alien may begin working in a subsequent position upon the filing of
another H-1B petition or from the requested start date, whichever is
later, notwithstanding that the previous H-1B petition upon which
employment is authorized under paragraph (h)(2)(i)(H) of this section
remains pending and regardless of whether the validity period of an
approved H-1B petition filed on the alien's behalf expired during such
pendency.
(ii) A request to amend the petition or for an extension of stay in
any successive H-1B portability petition cannot be approved if a request
to amend the petition or for an extension of stay in any preceding H-1B
portability petition in the succession is denied, unless the
beneficiary's previously approved period of H-1B status remains valid.
(iii) Denial of a successive portability petition does not affect
the ability of the H-1B beneficiary to continue or resume working in
accordance with the terms of an H-1B petition previously approved on
behalf of the beneficiary if that petition approval remains valid and
the beneficiary has maintained H-1B status or been in a period of
authorized stay and has not been employed in the United States without
authorization.
(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 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 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]
(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.
(ii) [Reserved]
[[Page 307]]
(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 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)--
[[Page 308]]
(i)(A) Types of H-1B classification. An H-1B classification may be
granted to an alien who:
(1) Will perform services in a specialty occupation which requires
theoretical and practical application of a body of highly specialized
knowledge and attainment of a baccalaureate or higher degree or its
equivalent as a minimum requirement for entry into the occupation in the
United States, and who is qualified to perform services in the specialty
occupation because he or she has attained a baccalaureate or higher
degree or its equivalent in the specialty occupation;
(2) Based on reciprocity, will perform services of an exceptional
nature requiring exceptional merit and ability relating to a DOD
cooperative research and development project or a coproduction project
provided for under a Government-to-Government agreement administered by
the Secretary of Defense;
(3) Will perform services in the field of fashion modeling and who
is of distinguished merit and ability.
(B) General requirements for petitions involving a specialty
occupation. (1) Before filing a petition for H-1B classification in a
specialty occupation, the petitioner shall obtain a certification from
the Department of Labor that it has filed a labor condition application
in the occupational specialty in which the alien(s) will be employed.
(2) Certification by the Department of Labor of a labor condition
application in an occupational classification does not constitute a
determination by that agency that the occupation in question is a
specialty occupation. The director shall determine if the application
involves a specialty occupation as defined in section 214(i)(1) of the
Act. The director shall also determine whether the particular alien for
whom H-1B classification is sought qualifies to perform services in the
specialty occupation as prescribed in section 214(i)(2) of the Act.
(3) If all of the beneficiaries covered by an H-1B labor condition
application have not been identified at the time a petition is filed,
petitions for newly identified beneficiaries may be filed at any time
during the validity of the labor condition application using photocopies
of the same application. Each petition must refer by file number to all
previously approved petitions for that labor condition application.
(4) When petitions have been approved for the total number of
workers specified in the labor condition application, substitution of
aliens against previously approved openings shall not be made. A new
labor condition application shall be required.
(5) If the Secretary of Labor notifies the Service that the
petitioning employer has failed to meet a condition of paragraph (B) of
section 212(n)(1) of the Act, has substantially failed to meet a
condition of paragraphs (C) or (D) of section 212(n)(1) of the Act, has
willfully failed to meet a condition of paragraph (A) of section
212(n)(1) of the Act, or has misrepresented any material fact in the
application, the Service shall not approve petitions filed with respect
to that employer under section 204 or 214(c) of the Act for a period of
at least one year from the date of receipt of such notice.
(6) If the employer's labor condition application is suspended or
invalidated by the Department of Labor, the Service will not suspend or
revoke the employer's approved petitions for aliens already employed in
specialty occupations if the employer has certified to the Department of
Labor that it will 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
[[Page 309]]
that ordinarily encountered to the extent that a person described as
prominent is renowned, leading, or well-known in the field of fashion
modeling.
Regonized authority means a person or an organization with expertise
in a particular field, special skills or knowledge in that field, and
the expertise to render the type of opinion requested. Such an opinion
must state:
(1) The writer's qualifications as an expert;
(2) The writer's experience giving such opinions, citing specific
instances where past opinions have been accepted as authoritative and by
whom;
(3) How the conclusions were reached; and
(4) The basis for the conclusions supported by copies or citations
of any research material used.
Specialty occupation means an occupation which requires theoretical
and practical application of a body of highly specialized knowledge in
fields of human endeavor including, but not limited to, architecture,
engineering, mathematics, physical sciences, social sciences, medicine
and health, education, business specialties, accounting, law, theology,
and the arts, and which requires the attainment of a bachelor's degree
or higher in a specific specialty, or its equivalent, as a minimum for
entry into the occupation in the United States.
United States employer means a person, firm, corporation,
contractor, or other association, or organization in the United States
which:
(1) Engages a person to work within the United States;
(2) Has an employer-employee relationship with respect to employees
under this part, as indicated by the fact that it may hire, pay, fire,
supervise, or otherwise control the work of any such employee; and
(3) Has an Internal Revenue Service Tax identification number.
(iii) Criteria for H-1B petitions involving a specialty occupation--
(A) Standards for specialty occupation position. To qualify as a
specialty occupation, the position must meet one of the following
criteria:
(1) A baccalaureate or higher degree or its equivalent is normally
the minimum requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel
positions among similar organizations or, in the alternative, an
employer may show that its particular position is so complex or unique
that it can be performed only by an individual with a degree;
(3) The employer normally requires a degree or its equivalent for
the position; or
(4) The nature of the specific duties are so specialized and complex
that knowledge required to perform the duties is usually associated with
the attainment of a baccalaureate or higher degree.
(B) Petitioner requirements. The petitioner shall submit the
following with an H-1B petition involving a specialty occupation:
(1) A certification from the Secretary of Labor that the petitioner
has filed a labor condition application with the Secretary,
(2) A statement that it will comply with the terms of the labor
condition application for the duration of the alien's authorized period
of stay,
(3) Evidence that the alien qualifies to perform services in the
specialty occupation as described in paragraph (h)(4)(iii)(A) of this
section, and
(C) Beneficiary qualifications. To qualify to perform services in a
specialty 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
[[Page 310]]
experience that is equivalent to completion of a United States
baccalaureate or higher degree in the specialty occupation, and have
recognition of expertise in the specialty through progressively
responsible positions directly related to the specialty.
(D) Equivalence to completion of a college degree. For purposes of
paragraph (h)(4)(iii)(C)(4) of this section, equivalence to completion
of a United States baccalaureate or higher degree shall mean achievement
of a level of knowledge, competence, and practice in the specialty
occupation that has been determined to be equal to that of an individual
who has a baccalaureate or higher degree in the specialty and shall be
determined by one or more of the following:
(1) An evaluation from an official who has authority to grant
college-level credit for training and/or experience in the specialty at
an accredited college or university which has a program for granting
such credit based on an individual's training and/or work experience;
(2) The results of recognized college-level equivalency examinations
or special credit programs, such as the College Level Examination
Program (CLEP), or Program on Noncollegiate Sponsored Instruction
(PONSI);
(3) An evaluation of education by a reliable credentials evaluation
service which specializes in evaluating foreign educational credentials;
(4) Evidence of certification or registration from a nationally-
recognized professional association or society for the specialty that is
known to grant certification or registration to persons in the
occupational specialty who have achieved a certain level of competence
in the specialty;
(5) A determination by the Service that the equivalent of the degree
required by the specialty occupation has been acquired through a
combination of education, specialized training, and/or work experience
in areas related to the specialty and that the alien has achieved
recognition of expertise in the specialty occupation as a result of such
training and experience. For purposes of determining equivalency to a
baccalaureate degree in the specialty, three years of specialized
training and/or work experience must be demonstrated for each year of
college-level training the alien lacks. For equivalence to an advanced
(or Masters) degree, the alien must have a baccalaureate degree followed
by at least five years of experience in the specialty. If required by a
specialty, the alien must hold a Doctorate degree or its foreign
equivalent. It must be clearly demonstrated that the alien's training
and/or work experience included the theoretical and practical
application of specialized knowledge required by the specialty
occupation; that the alien's experience was gained while working with
peers, supervisors, or subordinates who have a degree or its equivalent
in the specialty occupation; and that the alien has recognition of
expertise in the specialty evidenced by at least one type of
documentation such as:
(i) Recognition of expertise in the specialty occupation by at least
two recognized authorities in the same specialty occupation;
(ii) Membership in a recognized foreign or United States association
or society in the specialty occupation;
(iii) Published material by or about the alien in professional
publications, trade journals, books, or major newspapers;
(iv) Licensure or registration to practice the specialty occupation
in a foreign country; or
(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
[[Page 311]]
in writing. The complaint will be retained in the file relating to the
petition. Within the context of this paragraph, the term ``abroad''
refers to the alien's last place of foreign residence. This provision
applies to any employer whose offer of employment became the basis for
an alien obtaining or continuing H-1B status.
(iv) General documentary requirements for H-1B classification in a
specialty occupation. An H-1B petition involving a specialty occupation
shall be accompanied by:
(A) Documentation, certifications, affidavits, declarations,
degrees, diplomas, writings, reviews, or any other required evidence
sufficient to establish that the beneficiary is qualified to perform
services in a specialty occupation as described in paragraph (h)(4)(i)
of this section and that the services the beneficiary is to perform are
in a specialty occupation. The evidence shall conform to the following:
(1) School records, diplomas, degrees, affidavits, declarations,
contracts, and similar documentation submitted must reflect periods of
attendance, courses of study, and similar pertinent data, be executed by
the person in charge of the records of the educational or other
institution, firm, or establishment where education or training was
acquired.
(2) Affidavits or declarations made under penalty of perjury
submitted by present or former employers or recognized authorities
certifying as to the recognition and expertise of the beneficiary shall
specifically describe the beneficiary's recognition and ability in
factual terms and must set forth the expertise of the affiant and the
manner in which the affiant acquired such information.
(B) Copies of any written contracts between the petitioner and
beneficiary, or a summary of the terms of the oral agreement under which
the beneficiary will be employed, if there is no written contract.
(v) Licensure for H classification--(A) General. If an occupation
requires a state or local license for an individual to fully perform the
duties of the occupation, an alien (except an H-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. (1) In certain occupations which
generally require licensure, a state may allow an individual without
licensure to fully practice the occupation under the supervision of
licensed senior or supervisory personnel in that occupation. In such
cases, USCIS shall examine the nature of the duties and the level at
which they are performed, as well as evidence provided by the petitioner
as to the identity, physical location, and credentials of the
individual(s) who will supervise the alien, and evidence that the
petitioner is complying with state requirements. If the facts
demonstrate that the alien under supervision will fully perform the
duties of the occupation, H classification may be granted.
(2) An H-1B petition filed on behalf of an alien who does not have a
valid state or local license, where a license is otherwise required to
fully perform the duties in that occupation, may be approved for a
period of up to 1 year if:
(i) The license would otherwise be issued provided the alien was in
possession of a valid Social Security number, was authorized for
employment in the United States, or met a similar technical requirement;
and
(ii) The petitioner demonstrates, through evidence from the state or
local licensing authority, that the only obstacle to the issuance of a
license to the beneficiary is the lack of a Social Security number, a
lack of employment authorization in the United States, or a failure to
meet a similar technical requirement that precludes the issuance of the
license to an individual who is not yet in H-1B status.
[[Page 312]]
The petitioner must demonstrate that the alien is fully qualified to
receive the state or local license in all other respects, meaning that
all educational, training, experience, and other substantive
requirements have been met. The alien must have filed an application for
the license in accordance with applicable state and local rules and
procedures, provided that state or local rules or procedures do not
prohibit the alien from filing the license application without provision
of a Social Security number or proof of employment authorization or
without meeting a similar technical requirement.
(3) An H-1B petition filed on behalf of an alien who has been
previously accorded H-1B classification under paragraph (h)(4)(v)(C)(2)
of this section may not be approved unless the petitioner demonstrates
that the alien has obtained the required license, is seeking to employ
the alien in a position requiring a different license, or the alien will
be employed in that occupation in a different location which does not
require a state or local license to fully perform the duties of the
occupation.
(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
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
[[Page 313]]
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.
(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
[[Page 314]]
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]
(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.
(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.
(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
[[Page 315]]
petitioner must establish that the employment and beneficiary meet the
requirements of paragraph (h)(5) of this section.
(iii) Ability and intent to meet a job offer--(A) Eligibility
requirements. An H-2A petitioner must establish that each beneficiary
will be employed in accordance with the terms and conditions of the
certification, which includes that the principal duties to be performed
are those on the certification, with other duties minor and incidental.
(B) Intent and prior compliance. Requisite intent cannot be
established for two years after an employer or joint employer, or a
parent, subsidiary or affiliate thereof, is found to have violated
section 274(a) of the Act or to have employed an H-2A worker in a
position other than that described in the relating petition.
(C) Initial evidence. Representations required for the purpose of
labor certification are initial evidence of intent.
(iv) Temporary and seasonal employment--(A) Eligibility
requirements. An H-2A petitioner must establish that the employment
proposed in the certification is of a temporary or seasonal nature.
Employment is of a seasonal nature where it is tied to a certain time of
year by an event or pattern, such as a short annual growing cycle or a
specific aspect of a longer cycle, and requires labor levels far above
those necessary for ongoing operations. Employment is of a temporary
nature where the employer's need to fill the position with a temporary
worker will, except in extraordinary circumstances, last no longer than
one year.
(B) Effect of Department of Labor findings. In temporary
agricultural labor certification proceedings the Department of Labor
separately tests whether employment qualifies as temporary or seasonal.
Its finding that employment qualifies is normally sufficient for the
purpose of an H-2A petition, However, notwithstanding that finding,
employment will be found not to be temporary or seasonal where an
application for permanent labor certification has been filed for the
same alien, or for another alien to be employed in the same position, by
the same employer or by its parent, subsidiary or affiliate. This can
only be overcome by the petitioner's demonstration that there will be at
least a six month interruption of employment in the United States after
H-2A status ends. Also, eligibility will not be found, notwithstanding
the issuance of a temporary agricultural labor certification, where
there is substantial evidence that the employment is not temporary or
seasonal.
(v) The beneficiary's qualifications--(A) Eligibility requirements.
An H-2A petitioner must establish that any named beneficiary met the
stated minimum requirements and was fully able to perform the stated
duties when the application for certification was filed. It must be
established at time of application for an H-2A visa, or for admission if
a visa is not required, that any unnamed beneficiary either met these
requirements when the certification was applied for or passed any
certified aptitude test at any time prior to visa issuance, or prior to
admission if a visa is not required.
(B) 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
[[Page 316]]
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:
(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.
(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 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
[[Page 317]]
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 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
[[Page 318]]
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 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
[[Page 319]]
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.
(6) Petition for alien to perform temporary nonagricultural services
or labor (H-2B)--(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
[[Page 320]]
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 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
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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) 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. 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 seasonal need, a peak load need, or an
intermittent need.
(1) One-time occurance. 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
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purposes of paragraph (h) 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 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 favorable labor
certification determination as required by paragraph (h)(6)(iv) or
(h)(6)(v) of this section.
(D) The Governor of Guam shall separately establish procedures for
administering the temporary labor program under his or her jurisdiction.
The Secretary of Labor shall separately establish for the temporary
labor program under his or her jurisdiction, by regulation at 20 CFR
655, procedures for administering that temporary labor program under his
or her jurisdiction, and shall determine the prevailing wage applicable
to an application for temporary labor certification for that temporary
labor program in accordance with the Secretary of Labor's regulation at
20 CFR 655.10.
(E) After obtaining a favorable 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
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.
(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) 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) Labor certification for Guam--(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.
(B) Validity of labor certification. The Governor of Guam may issue
a temporary labor certification for a period up to one year.
(C)-(D) [Reserved]
(E) Criteria for Guam labor certifications. The Governor of Guam
shall, in
[[Page 323]]
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
States 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 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
[[Page 324]]
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. 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;
(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; or
(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 to 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.
(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
[[Page 325]]
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.
(7) Petition for alien trainee or participant in a special education
exchange visitor program (H-3)--(i) Alien trainee. The H-3 trainee is a
nonimmigrant who seeks to enter the United States at the invitation of
an organization or individual for the purpose of receiving training in
any field of endeavor, such as agriculture, commerce, communications,
finance, government, transportation, or the professions, as well as
training in a purely industrial establishment. This category shall not
apply to physicians, who are statutorily ineligible to use H-3
classification in order to receive any type of graduate medical
education or training.
(A) Externs. A hospital approved by the American Medical Association
or the American Osteopathic Association for either an internship or
residency program may petition to classify as an H-3 trainee a medical
student attending a medical school abroad, if the alien will engage in
employment as an extern during his/her medical school vacation.
(B) Nurses. A petitioner may seek H-3 classification for a nurse who
is not H-1 if it can be established that there is a genuine need for the
nurse to receive a brief period of training that is unavailable in the
alien's native country and such training is designed to benefit the
nurse and the overseas employer upon the nurse's return to the country
of origin, if:
(1) The beneficiary has obtained a full and unrestricted license to
practice professional nursing in the country where the beneficiary
obtained a nursing education, or such education was obtained in the
United States or Canada; and
(2) The petitioner provides a statement certifying that the
beneficiary is fully qualified under the laws governing the place where
the training will be received to engage in such training, and that under
those laws the petitioner is authorized to give the beneficiary the
desired training.
(ii) Evidence required for petition involving alien trainee--(A)
Conditions. The petitioner is required to demonstrate that:
(1) The proposed training is not available in the alien's own
country;
(2) The beneficiary will not be placed in a position which is in the
normal operation of the business and in which citizens and resident
workers are regularly employed;
(3) The beneficiary will not engage in productive employment unless
such employment is incidental and necessary to the training; and
(4) The training will benefit the beneficiary in pursuing a career
outside the United States.
[[Page 326]]
(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 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.
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(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 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.
(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 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
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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.
(F) Cap exemptions under sections 214(g)(5)(A) and (B) of the Act.
An alien is not subject to the numerical limitations identified in
section 214(g)(1)(A) of the Act if the alien qualifies for an exemption
under section 214(g)(5) of the Act. For purposes of section 214(g)(5)(A)
and (B) of the Act:
(1) ``Institution of higher education'' has the same definition as
described at section 101(a) of the Higher Education Act of 1965 (20
U.S.C. 1001(a)).
(2) A nonprofit entity shall be considered to be related to or
affiliated with an institution of higher education if it satisfies any
one of the following conditions:
(i) The nonprofit entity is connected to or associated with an
institution of higher education through shared ownership or control by
the same board or federation;
(ii) The nonprofit entity is operated by an institution of higher
education;
(iii) The nonprofit entity is attached to an institution of higher
education as a member, branch, cooperative, or subsidiary; or
(iv) The nonprofit entity has entered into a formal written
affiliation agreement with an institution of higher education that
establishes an active working relationship between the nonprofit entity
and the institution of higher education for the purposes of research or
education, and a fundamental activity of the nonprofit entity is to
directly contribute to the research or education mission of the
institution of higher education.
(3) An entity is considered a ``nonprofit entity'' if it meets the
definition described at paragraph (h)(19)(iv) of this section.
``Nonprofit research organization'' and ``governmental research
organization'' have the same definitions as described at paragraph
(h)(19)(iii)(C) of this section.
(4) An H-1B beneficiary who is not directly employed by a qualifying
institution, organization or entity identified in section 214(g)(5)(A)
or (B) of the Act shall qualify for an exemption under such section if
the H-1B beneficiary will spend the majority of his or her work time
performing job duties at a qualifying institution, organization or
entity and those job duties directly and predominately further the
essential purpose, mission, objectives or functions of the qualifying
institution, organization or entity, namely, either higher education,
nonprofit research or government research. The burden is on the H-1B
petitioner to establish that there is a nexus between the duties to be
performed by the H-1B beneficiary
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and the essential purpose, mission, objectives or functions of the
qualifying institution, organization or entity.
(5) If cap-exempt employment ceases, and if the alien is not the
beneficiary of a new cap-exempt petition, then the alien will be subject
to the cap if not previously counted within the 6-year period of
authorized admission to which the cap-exempt employment applied. If cap-
exempt employment converts to cap-subject employment subject to the
numerical limitations in section 214(g)(1)(A) of the Act, USCIS may
revoke the petition authorizing such employment consistent with
paragraph (h)(11)(iii) of this section.
(6) Concurrent H-1B employment in a cap-subject position of an alien
that qualifies for an exemption under section 214(g)(5)(A) or (B) of the
Act shall not subject the alien to the numerical limitations in section
214(g)(1)(A) of the Act. When petitioning for concurrent cap-subject H-
1B employment, the petitioner must demonstrate that the H-1B beneficiary
is employed in valid H-1B status under a cap exemption under section
214(g)(5)(A) or (B) of the Act, the beneficiary's employment with the
cap-exempt employer is expected to continue after the new cap-subject
petition is approved, and the beneficiary can reasonably and
concurrently perform the work described in each employer's respective
positions.
(i) Validity of a petition for concurrent cap-subject H-1B
employment approved under paragraph (h)(8)(ii)(F)(6) of this section
cannot extend beyond the period of validity specified for the cap-exempt
H-1B employment.
(ii) If H-1B employment subject to a cap exemption under section
214(g)(5)(A) or (B) of the Act is terminated by a petitioner, or
otherwise ends before the end of the validity period listed on the
approved petition filed on the alien's behalf, the alien who is
concurrently employed in a cap-subject position becomes subject to the
numerical limitations in section 214(g)(1)(A) of the Act, unless the
alien was previously counted with respect to the 6-year period of
authorized H-1B admission to which the petition applies or another
exemption applies. If such an alien becomes subject to the numerical
limitations in section 214(g)(1)(A) of the Act, USCIS may revoke the
cap-subject petition described in paragraph (h)(8)(ii)(F)(6) of this
section consistent with paragraph (h)(11)(iii) of this section.
(9) Approval and validity of petition--(i) Approval. The director
shall consider all the evidence submitted and such other evidence as he
or she may independently require to assist his or her adjudication. The
director shall notify the petitioner of the approval of the petition on
Form I-797, Notice of Action. The approval shall be as follows:
(A) The approval notice shall include the beneficiary's(ies')
name(s) and classification and the petition's period of validity. A
petition for more than one beneficiary and/or multiple services may be
approved in whole or in part. The approval notice shall cover only those
beneficiaries approved for classification under section 101(a)(15)(H) of
the Act.
(B) The petition may not be filed or approved earlier than 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.
(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 petitoner 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 aproved 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.
[[Page 330]]
(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. 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.
(C)(1) H-3 petition for alien trainee. An approved petition for an
alien trainee classified under section 101(a)(15)(H)(iii) of the Act
shall be valid for a period of up to two years.
(2) H-3 petition for alien participant in a special education
training program. An approved petition for an alien classified under
section 101(a)(15)(H)(iii) of the Act as a participant in a special
education exchange visitor program shall be valid for a period of up to
18 months.
(D) H-1C petition for a registered nurse. An approved petition for
an alien classified under section 101(a)(15)(H)(i)(c) of the Act shall
be valid for a period of 3 years.
(iv) H-4 dependents. The spouse and children of an H nonimmigrant,
if they are accompanying or following to join such H nonimmigrant in the
United States, may be admitted, if otherwise admissible, as H-4
nonimmigrants for the same period of admission or extension as the
principal spouse or parent. H-4 nonimmigrant status does not confer
eligibility for employment authorization incident to status. An H-4
nonimmigrant spouse of an H-1B nonimmigrant may be eligible for
employment authorization only if the H-1B nonimmigrant is the
beneficiary of an approved Immigrant Petition for Alien Worker, or
successor form, or the H-1B nonimmigrant's period of stay in H-1B status
is authorized in the United States under sections 106(a) and (b) of the
American Competitiveness in the Twenty-first Century Act of 2000 (AC21),
Public Law 106-313, as amended by the 21st Century Department of Justice
Appropriations Authorization Act, Public Law 107-273 (2002). To request
employment authorization, an eligible H-4 nonimmigrant spouse must file
an Application for Employment Authorization, or a successor form, in
accordance with 8 CFR 274a.13 and the form instructions. An Application
for Employment Authorization must be accompanied by documentary evidence
establishing eligibility, including evidence of the spousal relationship
and that the principal H-1B is the beneficiary of an approved Immigrant
Petition for Alien Worker or has been provided H-1B status under
sections 106(a) and (b) of AC21, as amended by the 21st Century
Department of Justice Appropriations Authorization Act, the H-1B
beneficiary is currently in H-1B status, and the H-4 nonimmigrant spouse
is currently in H-4 status.
(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 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.
[[Page 331]]
(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.
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.
(B) The director may revoke a petition at any time, even after the
expiration of the petition.
(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.
(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 or on the
application for a temporary labor certification was not true and
correct, inaccurate, fraudulent, or misrepresented a material fact; 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) Except as set forth in 8 CFR
214.1(l) with respect to H-1B beneficiaries and their dependents and
paragraph (h)(5)(viii)(B) of this section with respect to H-2A
beneficiaries, a beneficiary shall be admitted to the United States for
the validity period of the petition, plus a period of up to 10 days
before the validity period begins and 10 days after the validity period
ends. The beneficiary may not work except during the validity period of
the petition.
(B) When an alien in an H classification has spent the maximum
allowable period of stay in the United States, a new petition under
sections 101(a)(15)(H) or (L) of the Act may not be approved unless that
alien has resided and been physically present outside the United States,
except for brief trips for business or pleasure, for the time limit
imposed on the particular H classification. Brief trips to the United
States for business or pleasure during the required time abroad are not
interruptive, but do not count towards fulfillment of the required time
abroad. 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.
[[Page 332]]
(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.
(C) Calculating the maximum H-1B admission period. Time spent
physically outside the United States exceeding 24 hours by an alien
during the validity of an H-1B petition that was approved on the alien's
behalf shall not be considered for purposes of calculating the alien's
total period of authorized admission under section 214(g)(4) of the Act,
regardless of whether such time meaningfully interrupts the alien's stay
in H-1B status and the reason for the alien's absence. Accordingly, such
remaining time may be recaptured in a subsequent H-1B petition on behalf
of the alien, at any time before the alien uses the full period of H-1B
admission described in section 214(g)(4) of the Act.
(1) It is the H-1B petitioner's burden to request and demonstrate
the specific amount of time for recapture on behalf of the beneficiary.
The beneficiary may provide appropriate evidence, such as copies of
passport stamps, Arrival-Departure Records (Form I-94), or airline
tickets, together with a chart, indicating the dates spent outside of
the United States, and referencing the relevant independent documentary
evidence, when seeking to recapture the alien's time spent outside the
United States. Based on the evidence provided, USCIS may grant all,
part, or none of the recapture period requested.
(2) If the beneficiary was previously counted toward the H-1B
numerical cap under section 214(g)(1) of the Act with respect to the 6-
year maximum period of H-1B admission from which recapture is sought,
the H-1B petition seeking to recapture a period of stay as an H-1B
nonimmigrant will not subject the beneficiary to the H-1B numerical cap,
whether or not the alien has been physically outside the United States
for 1 year or more and would be otherwise eligible for a new period of
admission under such section of the Act. An H-1B petitioner may either
seek such recapture on behalf of the alien or, consistent with paragraph
(h)(13)(iii) of this section, seek a new period of admission on behalf
of the alien under section 214(g)(1) of the Act.
(D) Lengthy adjudication delay exemption from 214(g)(4) of the Act.
(1) An alien who is in H-1B status or has previously held H-1B status is
eligible for H-1B status beyond the 6-year limitation under section
214(g)(4) of the Act, if at least 365 days have elapsed since:
(i) The filing of a labor certification with the Department of Labor
on the
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alien's behalf, if such certification is required for the alien to
obtain status under section 203(b) of the Act; or
(ii) The filing of an immigrant visa petition with USCIS on the
alien's behalf to accord classification under section 203(b) of the Act.
(2) H-1B approvals under paragraph (h)(13)(iii)(D) of this section
may be granted in up to 1-year increments until either the approved
permanent labor certification expires or a final decision has been made
to:
(i) Deny the application for permanent labor certification, or, if
approved, to revoke or invalidate such approval;
(ii) Deny the immigrant visa petition, or, if approved, revoke such
approval;
(iii) Deny or approve the alien's application for an immigrant visa
or application to adjust status to lawful permanent residence; or
(iv) Administratively or otherwise close the application for
permanent labor certification, immigrant visa petition, or application
to adjust status.
(3) No final decision while appeal available or pending. A decision
to deny or revoke an application for labor certification, or to deny or
revoke the approval of an immigrant visa petition, will not be
considered final under paragraph (h)(13)(iii)(D)(2)(i) or (ii) of this
section during the period authorized for filing an appeal of the
decision, or while an appeal is pending.
(4) Substitution of beneficiaries. An alien who has been replaced by
another alien, on or before July 16, 2007, as the beneficiary of an
approved permanent labor certification may not rely on that permanent
labor certification to establish eligibility for H-1B status based on
this lengthy adjudication delay exemption. Except for a substitution of
a beneficiary that occurred on or before July 16, 2007, an alien
establishing eligibility for this lengthy adjudication delay exemption
based on a pending or approved labor certification must be the named
beneficiary listed on the permanent labor certification.
(5) Advance filing. A petitioner may file an H-1B petition seeking a
lengthy adjudication delay exemption under paragraph (h)(13)(iii)(D) of
this section within 6 months of the requested H-1B start date. The
petition may be filed before 365 days have elapsed since the labor
certification application or immigrant visa petition was filed with the
Department of Labor or USCIS, respectively, provided that the
application for labor certification or immigrant visa petition must have
been filed at least 365 days prior to the date the period of admission
authorized under this exemption will take effect. The petitioner may
request any time remaining to the beneficiary under the maximum period
of admission described at section 214(g)(4) of the Act along with the
exemption request, but in no case may the approved H-1B period of
validity exceed the limits specified by paragraph (h)(9)(iii) of this
section. Time remaining to the beneficiary under the maximum period of
admission described at section 214(g)(4) of the Act may include any
request to recapture unused H-1B, L-1A, or L-1B time spent outside of
the United States.
(6) Petitioners seeking exemption. The H-1B petitioner need not be
the employer that filed the application for labor certification or
immigrant visa petition that is used to qualify for this exemption.
(7) Subsequent exemption approvals after the 7th year. The
qualifying labor certification or immigrant visa petition need not be
the same as that used to qualify for the initial exemption under
paragraph (h)(13)(iii)(D) of this section.
(8) Aggregation of time not permitted. A petitioner may not
aggregate the number of days that have elapsed since the filing of one
labor certification or immigrant visa petition with the number of days
that have elapsed since the filing of another such application or
petition to meet the 365-day requirement.
(9) Exemption eligibility. Only a principal beneficiary of a
nonfrivolous labor certification application or immigrant visa petition
filed on his or her behalf may be eligible under paragraph
(h)(13)(iii)(D) of this section for an exemption to the maximum period
of admission under section 214(g)(4) of the Act.
(10) Limits on future exemptions from the lengthy adjudication
delay. An alien
[[Page 334]]
is ineligible for the lengthy adjudication delay exemption under
paragraph (h)(13)(iii)(D) of this section if the alien is the
beneficiary of an approved petition under section 203(b) of the Act and
fails to file an adjustment of status application or apply for an
immigrant visa within 1 year of an immigrant visa being authorized for
issuance based on his or her preference category and country of
chargeability. If the accrual of such 1-year period is interrupted by
the unavailability of an immigrant visa, a new 1-year period shall be
afforded when an immigrant visa again becomes immediately available.
USCIS may excuse a failure to file in its discretion if the alien
establishes that the failure to apply was due to circumstances beyond
his or her control. The limitations described in this paragraph apply to
any approved immigrant visa petition under section 203(b) of the Act,
including petitions withdrawn by the petitioner or those filed by a
petitioner whose business terminates 180 days or more after approval.
(E) Per-country limitation exemption from section 214(g)(4) of the
Act. An alien who currently maintains or previously held H-1B status,
who is the beneficiary of an approved immigrant visa petition for
classification under section 203(b)(1), (2), or (3) of the Act, and who
is eligible to be granted that immigrant status but for application of
the per country limitation, is eligible for H-1B status beyond the 6-
year limitation under section 214(g)(4) of the Act. The petitioner must
demonstrate such visa unavailability as of the date the H-1B petition is
filed with USCIS.
(1) Validity periods. USCIS may grant validity periods for petitions
approved under this paragraph in increments of up to 3 years for as long
as the alien remains eligible for this exemption.
(2) H-1B approvals under paragraph (h)(13)(iii)(E) of this section
may be granted until a final decision has been made to:
(i) Revoke the approval of the immigrant visa petition; or
(ii) Approve or deny the alien's application for an immigrant visa
or application to adjust status to lawful permanent residence.
(3) Current H-1B status not required. An alien who is not in H-1B
status at the time the H-1B petition on his or her behalf is filed,
including an alien who is not in the United States, may seek an
exemption of the 6-year limitation under 214(g)(4) of the Act under this
clause, if otherwise eligible.
(4) Subsequent petitioners may seek exemptions. The H-1B petitioner
need not be the employer that filed the immigrant visa petition that is
used to qualify for this exemption. An H-1B petition may be approved
under paragraph (h)(13)(iii)(E) of this section with respect to any
approved immigrant visa petition, and a subsequent H-1B petition may be
approved with respect to a different approved immigrant visa petition on
behalf of the same alien.
(5) Advance filing. A petitioner may file an H-1B petition seeking a
per-country limitation exemption under paragraph (h)(13)(iii)(E) of this
section within 6 months of the requested H-1B start date. The petitioner
may request any time remaining to the beneficiary under the maximum
period of admission described in section 214(g)(4) of the Act along with
the exemption request, but in no case may the H-1B approval period
exceed the limits specified by paragraph (h)(9)(iii) of this section.
(6) Exemption eligibility. Only the principal beneficiary of an
approved immigrant visa petition for classification under section
203(b)(1), (2), or (3) of the Act may be eligible under paragraph
(h)(13)(iii)(E) of this section for an exemption to the maximum period
of admission under section 214(g)(4) of the Act.
(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
[[Page 335]]
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 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.
(14) Extension of visa petition validity. The petitioner shall file
a request for a petition extension on Form I-129 to extend the validity
of the original petition under section 101(a)(15)(H) of the Act.
Supporting evidence is not required unless requested by the director. A
request for a petition extension may be filed only if the validity of
the original petition has not expired.
(15) Extension of stay--(i) General. The petitioner shall apply for
extension of an alien's stay in the United States by filing a petition
extension on Form I-129 accompanied by the documents described for the
particular classification in paragraph (h)(15)(ii) of this section. The
petitioner must also request a petition extension. The dates of
extension shall be the same for the petition and the beneficiary's
extension of stay. The beneficiary must be physically present in the
United States at the time of the filing of the extension of stay. Even
though the requests to extend the petition and the alien's stay are
combined on the petition, the director shall make a separate
determination on each. If the alien is required to leave the United
States for business or personal reasons while the extension requests are
pending, the petitioner may request the director to cable notification
of approval of the petition extension to the consular office abroad
where the alien will apply for a visa. When the total period of stay in
an H classification has been reached, no further extensions may be
granted.
(ii) Extension periods--(A) H-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
[[Page 336]]
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:
(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
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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 defined in paragraph
(h)(19)(iii) of this section, or an employer filing a petition described
in paragraph (h)(19)(v) of this section) who files a Petition for
Nonimmigrant Worker (Form I-129) must include the additional American
Competitiveness and Workforce Improvement Act (ACWIA) fee referenced 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 with the petition the ACWIA fee, and
any other applicable fees, in accordance with Sec. 103.7 of this
chapter, and form instructions. Payment of all applicable fees must be
made at the same time, but the petitioner may submit separate checks.
USCIS will accept payment of the ACWIA fee only from the United States
employer or its representative of record, as defined in 8 CFR 103.2(a)
and 8 CFR part 292.
(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
shall be considered to be related to or affiliated with an institution
of higher education if it satisfies any one of the following conditions:
(1) The nonprofit entity is connected to or associated with an
institution of higher education through shared ownership or control by
the same board or federation;
(2) The nonprofit entity is operated by an institution of higher
education;
(3) The nonprofit entity is attached to an institution of higher
education as a member, branch, cooperative, or subsidiary; or
(4) The nonprofit entity has entered into a formal written
affiliation agreement with an institution of higher education that
establishes an active working relationship between the nonprofit entity
and the institution of higher education for the purposes of research or
education, and a fundamental activity of the nonprofit entity is to
directly contribute to the research or education mission of the
institution of higher education;
(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 federal, state, or local 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;
(D) A primary or secondary education institution; or
[[Page 338]]
(E) A nonprofit entity which engages in an established curriculum-
related clinical training of students registered at an institution of
higher education.
(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 American Competitiveness and
Workforce Improvement Act of 1998 (ACWIA) fee is not required. The ACWIA
fee is not required if:
(A) The petition is an amended H-1B petition that does not contain
any requests for an extension of stay;
(B) The petition is an H-1B petition filed for the sole purpose of
correcting a Service error; or
(C) 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 ACWIA fee was paid on the
initial petition or the first extension of stay.
(vi) ACWIA fee exemption evidence. (A) Employer claiming to be
exempt. An employer claiming to be exempt from the ACWIA fee must file a
Petition for Nonimmigrant Worker (Form I-129), in accordance with the
form instructions, including supporting evidence 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 ACWIA
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 ACWIA fee does not apply with respect to a particular filing
for one of the reasons described in paragraph (h)(19)(v) of this section
must indicate why the ACWIA fee is not required.
(20) Retaliatory action claims. If credible documentary evidence is
provided in support of a petition seeking an extension of H-1B stay in
or change of status to another classification indicating that the
beneficiary faced retaliatory action from his or her employer based on a
report regarding a violation of that employer's labor condition
application obligations under section 212(n)(2)(C)(iv) of the Act, USCIS
may consider a loss or failure to maintain H-1B status by the
beneficiary related to such violation as due to, and commensurate with,
``extraordinary circumstances'' as defined by Sec. 214.1(c)(4) and 8
CFR 248.1(b).
(i) Representatives of information media. The admission of an alien
of the class defined in section 101(a)(15)(I) of the Act constitutes an
agreement by the alien not to change the information medium or his or
her employer until he or she obtains permission to do so from the
district director having jurisdiction over his or her residence. An
alien classified as an information media nonimmigrant (I) may be
authorized admission for the duration of employment.
(j) Exchange aliens--(1) General--(i) 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
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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 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
[[Page 340]]
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 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
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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. A copy of a document submitted in support of a visa petition
filed pursuant to section 214(d) of the Act and this paragraph may be
accepted, though unaccompanied by the original, if the copy bears a
certification by an attorney, typed or rubber-stamped, in the language
set forth in Sec. 204.2(j) of this chapter. However, the original
document shall be submitted if requested by the Service.
(2) Requirement that petitioner and K-1 beneficiary have met. The
petitioner shall establish to the satisfaction of the director that the
petitioner and K-1 beneficiary have met in person within the two years
immediately preceding the filing of the petition. As a matter of
discretion, the director may exempt the petitioner from this requirement
only if it is established that compliance would result in extreme
hardship to the petitioner or that compliance would violate strict and
long-established customs of the K-1 beneficiary's foreign culture or
social practice, as where marriages are traditionally arranged by the
parents of the contracting parties and the prospective bride and groom
are prohibited from meeting subsequent to the arrangement and prior to
the wedding day. In addition to establishing that the required meeting
would be a violation of custom or practice, the petitioner must also
establish that any and all other aspects of the traditional arrangements
have been or will be met in accordance with the custom or practice.
Failure to establish that the petitioner and K-1 beneficiary have met
within the required period or that compliance with the requirement
should be waived shall result in the denial of the petition. Such denial
shall be without prejudice to the filing of a new petition once the
petitioner and K-1 beneficiary have met in person.
(3) Children of beneficiary. Without the approval of a separate
petition on his or her behalf, a child of the beneficiary (as defined in
section 101(b)(1)(A), (B), (C), (D), or (E) of the Act) may be accorded
the same nonimmigrant classification as the beneficiary if accompanying
or following to join him or her.
(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
[[Page 342]]
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.
(8) Period of admission for K3/K-4 status. Aliens entering the
United States as a K-3 shall be admitted for a period of 2 years. Aliens
entering the United States as a K-4 shall be admitted for a period of 2
years or until that alien's 21st birthday, whichever is shorter.
(9) Employment authorization. An alien admitted to the United States
as a nonimmigrant under section 101(a)(15)(K) of the Act shall be
authorized to work incident to status for the period of authorized stay.
K-1/K-2 aliens seeking work authorization must apply, with fee, to the
Service for work authorization pursuant to Sec. 274a.12(a)(6) of this
chapter. K-3/K-4 aliens must apply to the Service for a document
evidencing employment authorization pursuant to Sec. 274a.12(a)(9) of
this chapter. Employment authorization documents issued to K-3/K-4
aliens may be renewed only upon a showing that the applicant has an
application or petition awaiting approval, equivalent to the showing
required for an extension of stay pursuant to Sec. 214.2(k)(10).
(10) Extension of stay for K-3/K-4 status--(i) General. A K-3/K-4
alien may apply for extension of stay, on Form I-539, Application to
Extend/Change Nonimmigrant Status, 120 days prior to the expiration of
his or her authorized stay. Extensions for K-4 status must be filed
concurrently with the alien's parent's K-3 status extension application.
In addition, the citizen parent of a K-4 alien filing for extension of K
status should file Form I-130 on their behalf. Extension will be granted
in 2-year intervals upon a showing of eligibility pursuant to section
101(a)(15)(K)(ii) or (iii) of the Act. Aliens wishing to extend their
period of stay as a K-3 or K-4 alien pursuant to Sec. 214.1(c)(2) must
show that one of the following has been filed with the Service or the
Department of State, as applicable, and is awaiting approval:
(A) The Form I-130, Petition for Alien Relative, filed by the K-3's
U.S. citizen spouse who filed the Form I-129F;
(B) An application for an immigrant visa based on a Form I-130
described in Sec. 214.2(K)(10)(i);
(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;
[[Page 343]]
(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 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
[[Page 344]]
(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 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 must file a petition on Form I-
129, Petition for Nonimmigrant Worker. The petitioner shall advise USCIS
whether a previous petition for the same beneficiary has been filed, and
certify that another petition for the same beneficiary will not be filed
unless the circumstances and conditions in the initial petition have
[[Page 345]]
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 the Act multiple numbers of aliens employed by itself,
its parent, or those branches, subsidiaries, or affiliates may file a
blanket petition on Form I-129. The blanket petition shall be maintained
at the adjudicating office. The petitioner shall be the single
representative for the qualifying organizations with which USCIS will
deal regarding the blanket petition.
(3) Evidence for individual petitions. An individual petition filed
on Form I-129 shall be accompanied by:
(i) Evidence that the petitioner and the organization which employed
or will employ the alien are qualifying organizations as defined in
paragraph (l)(1)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive,
managerial, or specialized knowledge capacity, including a detailed
description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of
full-time employment abroad with a qualifying organization within the
three years preceding the filing of the petition.
(iv) Evidence that the alien's prior year of employment abroad was
in a position that was managerial, executive, or involved specialized
knowledge and that the alien's prior education, training, and employment
qualifies him/her to perform the intended services in the United States;
however, the work in the United States need not be the same work which
the alien performed abroad.
(v) If the petition indicates that the beneficiary is coming to the
United States as a manager or executive to open or to be employed in a
new office in the United States, the petitioner shall submit evidence
that:
(A) Sufficient physical premises to house the new office have been
secured;
(B) The beneficiary has been employed for one continuous year in the
three year period preceding the filing of the petition in an executive
or managerial capacity and that the proposed employment involved
executive or managerial authority over the new operation; and
(C) The intended United States operation, within one year of the
approval of the petition, will support an executive or managerial
position as defined in paragraphs (l)(1)(ii) (B) or (C) of this section,
supported by information regarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizational structure, and its financial goals;
(2) The size of the United States investment and the financial
ability of the foreign entity to remunerate the beneficiary and to
commence doing business in the United States; and
(3) The organizational structure of the foreign entity.
(vi) If the petition indicates that the beneficiary is coming to the
United States in a specialized knowledge capacity to open or to be
employed in a new office, the petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been
secured;
(B) The business entity in the United States is or will be a
qualifying organization as defined in paragraph (l)(1)(ii)(G) of this
section; and
(C) The petitioner has the financial ability to remunerate the
beneficiary and to commence doing business in the United States.
(vii) If the beneficiary is an owner or major stockholder of the
company, the petition must be accompanied by evidence that the
beneficiary's services are to be used for a temporary period and
evidence that the beneficiary will be transferred to an assignment
abroad upon the completion of the temporary services in the United
States.
(viii) Such other evidence as the director, in his or her
discretion, may deem necessary.
(4) Blanket petitions. (i) A petitioner which meets the following
requirements may file a blanket petition seeking continuing approval of
itself and
[[Page 346]]
some or all of its parent, branches, subsidiaries, and affiliates as
qualifying organizations if:
(A) The petitioner and each of those entities are engaged in
commercial trade or services;
(B) The petitioner has an office in the United States that has been
doing business for one year or more;
(C) The petitioner has three or more domestic and foreign branches,
subsidiaries, or affiliates; and
(D) The petitioner and the other qualifying organizations have
obtained approval of petitions for at least ten ``L'' managers,
executives, or specialized knowledge professionals during the previous
12 months; or have U.S. subsidiaries or affiliates with combined annual
sales of at least $25 million; or have a United States work force of at
least 1,000 employees.
(ii) Managers, executives, and specialized knowledge professionals
employed by firms, corporations, or other entities which have been found
to be qualifying organizations pursuant to an approved blanket petition
may be classified as intracompany transferees and admitted to the United
States as provided in paragraphs (l) (5) and (11) of this section.
(iii) When applying for a blanket petition, the petitioner shall
include in the blanket petition all of its branches, subsidiaries, and
affiliates which plan to seek to transfer aliens to the United States
under the blanket petition. An individual petition may be filed by the
petitioner or organizations in lieu of using the blanket petition
procedure. However, the petitioner and other qualifying organizations
may not seek L classification for the same alien under both procedures,
unless a consular officer first denies eligibility. Whenever a
petitioner which has blanket L approval files an individual petition to
seek L classification for a manager, executive, or specialized knowledge
professional, the petitioner shall advise the Service that it has
blanket L approval and certify that the beneficiary has not and will not
apply to a consular officer for L classification under the approved
blanket petition.
(iv) Evidence. A blanket petition filed on Form I-129 shall be
accompanied by:
(A) Evidence that the petitioner meets the requirements of paragraph
(l)(4)(i) of this section.
(B) Evidence that all entities for which approval is sought are
qualifying organizations as defined in subparagraph (l)(1)(ii)(G) of
this section.
(C) Such other evidence as the director, in his or her discretion,
deems necessary in a particular case.
(5) Certification and admission procedures for beneficiaries under
blanket petition--(i) Jurisdiction. United States consular officers
shall have authority to determine eligibility of individual
beneficiaries outside the United States seeking L classification under
blanket petitions, except for visa-exempt nonimmigrants. An application
for a visa-exempt nonimmigrant seeking L classification under a blanket
petition or by an alien in the United States applying for change of
status to L classification under a blanket petition shall be filed with
the Service office at which the blanket petition was filed.
(ii) Procedures. (A) When one qualifying organization listed in an
approved blanket petition wishes to transfer an alien outside the United
States to a qualifying organization in the United States and the alien
requires a visa to enter the United States, that organization shall
complete Form I-129S, Certificate of Eligibility for Intracompany
Transferee under a Blanket Petition, in an original and three copies.
The qualifying organization shall retain one copy for its records and
send the original and two copies to the alien. A copy of the approved
Form I-797 must be attached to the original and each copy of Form I-
129S.
(B) After receipt of Form I-797 and Form I-129S, a qualified
employee who is being transferred to the United States may use these
documents to apply for visa issuance with the consular officer within
six months of the date on Form I-129S.
(C) When the alien is a visa-exempt nonimmigrant seeking L
classification under a blanket petition, or when the alien is in the
United States and is seeking a change of status from another
nonimmigrant classification to L classification under a blanket
petition, the petitioner shall submit Form I-
[[Page 347]]
129S, Certificate of Eligibility, and a copy of the approval notice,
Form I-797, to the USCIS office 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 USCIS 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 on Form I-129, Petition for Nonimmigrant Worker.
The petition shall state the reason the alien was denied L
classification and specify the consular office which made the
determination and the date of the determination.
(G) An alien admitted under an approved blanket petition may be
reassigned to any organization listed in the approved petition without
referral to the Service during his/her authorized stay if the alien will
be performing virtually the same job duties. If the alien will be
performing different job duties, the petitioner shall complete a new
Certificate of Eligibility and send it for approval to the director who
approved the blanket petition.
(6) Copies of supporting documents. The petitioner may submit a
legible photocopy of a document in support of the visa petition, in lieu
of the original document. However, the original document shall be
submitted if requested by the Service.
(7) Approval of petition--(i) General. The director shall notify the
petitioner of the approval of an individual or a blanket petition within
30 days after the date a completed petition has been filed. If
additional information is required from the petitioner, the 30 day
processing period shall begin again upon receipt of the information. The
original Form I-797 received from the USCIS 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
[[Page 348]]
(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 must file an amended petition, with
fee, at the USCIS office 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 USCIS office issuing the denial shall forward to the
petitioner, along with the denial, a Form I-797 listing those
organizations which were found to quality. If the decision to deny is
reversed on appeal, a new Form I-797 shall be sent to the petitioner to
reflect the changes made as a result of the appeal.
(9) Revocation of approval of individual and blanket petitions--(i)
General. The director may revoke a petition at any time, even after the
expiration of the petition.
(ii) Automatic revocation. The approval of any individual or blanket
petition is automatically revoked if the petitioner withdraws the
petition or the petitioner fails to request indefinite validity of a
blanket petition.
(iii) Revocation on notice. (A) The director shall send to the
petitioner a notice of intent to revoke the petition in relevant part if
he/she finds that:
(1) One or more entities are no longer qualifying organizations;
(2) The alien is no longer eligible under section 101(a)(15)(L) of
the Act;
(3) A qualifying organization(s) violated requirements of section
101(a)(15)(L) and these regulations;
(4) The statement of facts contained in the petition was not true
and correct; or
(5) Approval of the petition involved gross error; or
(6) None of the qualifying organizations in a blanket petition have
used the blanket petition procedure for three consecutive years.
(B) The notice of intent to revoke shall contain a detailed
statement of the grounds for the revocation and the time period allowed
for the petitioner's rebuttal. Upon receipt of this notice, the
petitioner may submit evidence in rebuttal within 30 days of the notice.
The director shall consider all relevant evidence presented in deciding
whether to revoke the petition in whole or in part. If a blanket
petition is revoked in part, the remainder of the petition shall remain
approved, and a revised Form I-797 shall be sent to the petitioner with
the revocation notice.
(iv) Status of beneficiaries. If an individual petition is revoked,
the beneficiary shall be required to leave the United States, unless the
beneficiary has obtained other work authorization from the Service. If a
blanket petition
[[Page 349]]
is revoked and the petitioner and beneficiaries already in the United
States are otherwise eligible for L classification, the director shall
extend the blanket petition for a period necessary to support the stay
of those blanket L beneficiaries. The approval notice, Form I-171C,
shall include only the names of qualifying organizations and covered
beneficiaries. No new beneficiaries may be classified or admitted under
this limited extension.
(10) Appeal of denial or revocation of individual or blanket
petition. (i) A petition denied in whole or in part may be appealed
under 8 CFR part 103. Since the determination on the Certificate of
Eligibility, Form I-129S, is part of the petition process, a denial or
revocation of approval of an I-129S is appealable in the same manner as
the petition.
(ii) A petition that has been revoked on notice in whole or in part
may be appealed under part 103 of this chapter. Automatic revocations
may not be appealed.
(11) Admission. A beneficiary may apply for admission to the United
States only while the individual or blanket petition is valid. The
beneficiary of an individual petition shall not be admitted for a date
past the validity period of the petition. The beneficiary of a blanket
petition may be admitted for three years even though the initial
validity period of the blanket petition may expire before the end of the
three-year period. If the blanket petition will expire while the alien
is in the United States, the burden is on the petitioner to file for
indefinite validity of the blanket petition or to file an individual
petition in the alien's behalf to support the alien's status in the
United States. The admission period for any alien under section
101(a)(15)(L) shall not exceed three years unless an extension of stay
is granted pursuant to paragraph (l)(15) of this section.
(12) L-1 limitation on period of stay--(i) Limits. An alien who has
spent five years in the United States in a specialized knowledge
capacity or seven years in the United States in a managerial or
executive capacity under section 101(a)(15) (L) and/or (H) of the Act
may not be readmitted to the United States under section 101(a)(15) (L)
or (H) of the Act unless the alien has resided and been physically
present outside the United States, except for brief visits for business
or pleasure, for the immediate prior year. Such visits do not interrupt
the one year abroad, but do not count towards fulfillment of that
requirement. In view of this restriction, a new individual petition may
not be approved for an alien who has spent the maximum time period in
the United States under section 101(a)(15) (L) and/or (H) of the Act,
unless the alien has resided and been physically present outside the
United States, except for brief visits for business or pleasure, for the
immediate prior year. The petitioner shall provide information about the
alien's employment, place of residence, and the dates and purpose of any
trips to the United States for the previous year. A consular or Service
officer may not grant L classification under a blanket petition to an
alien who has spent five years in the United States as a professional
with specialized knowledge or seven years in the United States as a
manager or executive, unless the alien has met the requirements
contained in this paragraph.
(ii) Exceptions. The limitations of paragraph (l)(12)(i) of this
section shall not apply to aliens who do not reside continually in the
United States and whose employment in the United States is seasonal,
intermittent, or consists of an aggregate of six months or less per
year. In addition, the limitations will not apply to aliens who reside
abroad and regularly commute to the United States to engage in part-time
employment. The petitioner and 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
[[Page 350]]
during the validity of the petition (provided that the beneficiary is
entering or reentering the United States) for entry and reentry to
resume the same employment with the same petitioner (within the validity
period of the petition) and to apply for an extension of stay. A
beneficiary who is required to present a visa for admission and whose
visa will have expired before the date of his or her intended return may
use an original Form I-797 to apply for a new or revalidated visa during
the validity period of the petition and to apply for an extension of
stay.
(ii) Beneficiary of a blanket petition. Each alien seeking L
classification and admission under a blanket petition shall present a
copy of Form I-797 and a Form I-129S from the petitioner which
identifies the position and organization from which the employee is
transferring, the new organization and position to which the employee is
destined, a description of the employee's actual duties for both the new
and former positions, and the positions, dates, and locations of
previous L stays in the United States. A current copy of Form I-797 and
Form I-129S should be retained by the beneficiary and used for leaving
and reentering the United States to resume employment with a qualifying
organization during his/her authorized period of stay, for applying for
a new or revalidated visa, and for applying for readmission at a port of
entry. The alien may be readmitted even though reassigned to a different
organization named on the Form I-797 than the one shown on Form I-129S
if the job duties are virtually the same.
(14) Extension of visa petition validity--(i) Individual petition.
The petitioner shall file a petition extension on Form I-129 to extend
an individual petition under section 101(a)(15)(L) of the Act. Except in
those petitions involving new offices, supporting documentation is not
required, unless requested by the director. A petition extension may be
filed only if the validity of the original petition has not expired.
(ii) New offices. A visa petition under section 101(a)(15)(L) which
involved the opening of a new office may be extended by filing a new
Form I-129, accompanied by the following:
(A) Evidence that the United States and foreign entities are still
qualifying organizations as defined in paragraph (l)(1)(ii)(G) of this
section;
(B) Evidence that the United States entity has been doing business
as defined in paragraph (l)(1)(ii)(H) of this section for the previous
year;
(C) A statement of the duties performed by the beneficiary for the
previous year and the duties the beneficiary will perform under the
extended petition;
(D) A statement describing the staffing of the new operation,
including the number of employees and types of positions held
accompanied by evidence of wages paid to employees when the beneficiary
will be employed in a managerial or executive capacity; and
(E) Evidence of the financial status of the United States operation.
(iii) Blanket petitions--(A) Extension procedure. A blanket petition
may only be extended indefinitely by filing a new Form I-129 with a copy
of the previous approval notice and a report of admissions during the
preceding three years. The report of admissions shall include a list of
the aliens admitted under the blanket petition during the preceding
three years, including positions held during that period, the employing
entity, and the dates of initial admission and final departure of each
alien. The petitioner shall state whether it still meets the criteria
for filing a blanket petition and shall document any changes in approved
relationships and additional qualifying organizations.
(B) Other conditions. If the petitioner in an approved blanket
petition fails to 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
[[Page 351]]
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:
(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
[[Page 352]]
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.
(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.
[[Page 353]]
(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 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
[[Page 354]]
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 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
[[Page 355]]
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 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.
[[Page 356]]
(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.
(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. 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
[[Page 357]]
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). 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.
(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
[[Page 358]]
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 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-
[[Page 359]]
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) M-2 post-secondary/vocational study--(1) Authorized
study at SEVP-certified schools. An M-2 spouse or M-2 child may enroll
in less than a full course of study, as defined in paragraphs
(f)(6)(i)(A) through (D) or (m)(9)(i) through (v), in any course of
study described in paragraphs (f)(6)(i)(A) through (D) or (m)(9)(i)
through (v) of this section at an SEVP-certified school. Notwithstanding
paragraphs (f)(6)(i)(B) and (m)(9)(i) of this section, study at an
undergraduate college or university or at a community college or junior
college is not a full course of study solely because the M-2
nonimmigrant is engaging in a lesser course load to complete a course of
study during the current term. An M-2 spouse or M-2 child enrolled in
less than a full course of study is not eligible to engage in employment
pursuant to paragraph (m)(14) of this section or pursuant to paragraphs
(f)(9) through (10) of this section.
(2) Full course of study. Subject to paragraph (m)(17)(ii)(B) of
this section, an M-2 spouse and child may engage in a full course of
study only by applying for and obtaining a change of status to F-1, M-1,
or J-1 status, as appropriate, before beginning a full course of study.
An M-2 spouse and M-2 child may engage in study that is avocational or
recreational in nature, up to and including on a full-time basis.
(B) M-2 elementary or secondary study. An M-2 child may engage in
full-time study, including any full course of study, in any elementary
or secondary school (kindergarten through twelfth grade).
(C) An M-2 spouse or child violates his or her nonimmigrant status
by enrolling in any study except as provided in paragraph (m)(17)(ii)(A)
or (B) of this section.
(18) Current name and address. A student must inform the Service and
the DSO of any legal changes to his or her name or of any change of
address, within 10 days of the change, in a manner prescribed by the
school. A student enrolled at a SEVIS school can satisfy the requirement
in 8 CFR 265.1 of notifying the Service by providing a notice of a
change of address within 10 days to the DSO, and the DSO in turn shall
enter the information in SEVIS within 21 days of notification by the
student. A nonimmigrant student enrolled at a non-SEVIS institution must
submit a notice of change of address to the Service, as provided in 8
CFR 265.1, within 10 days of the change. Except in the case of a student
who cannot receive mail where he or she resides, the address provided by
the student must be the actual physical location where the student
resides rather than a mailing address. In cases where a student provides
a mailing address, the school must maintain a record of, and must
provide upon request from the Service, the actual physical location
where the student resides.
(19) Special rules for certain border commuter students--(i)
Applicability. For purposes of the special rules in this paragraph
(m)(19), the term ``border commuter student'' means a national of Canada
or Mexico who is admitted to the United States as an M-1 student to
enroll in a full course of study, albeit on a part-time basis, in an
approved school located within 75 miles of a United States land border.
The border commuter student must maintain actual residence and place of
abode in the student's country of nationality, and seek admission to the
United States at a land border port-of-entry. These special rules do not
apply to a national of Canada or Mexico who is:
(A) Residing in the United States while attending an approved school
as an M-1 student, or
(B) Enrolled in a full course of study as defined in paragraph
(m)(9) of this section.
[[Page 360]]
(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 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
[[Page 361]]
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. 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 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
[[Page 362]]
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.
(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 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. 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, 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.
(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.
[[Page 363]]
(3) Petition for alien of extraordinary ability or achievement (O-
1)--(i) General. Extraordinary ability in the sciences, arts, education,
business, or athletics, or extraordinary achievement in the case of an
alien in the motion picture or television industry, must be established
for an individual alien. An O-1 petition must be accompanied by evidence
that the work which the alien is coming to the United States to continue
is in the area of extraordinary ability, and that the alien meets the
criteria in paragraph (o)(3)(iii) or (iv) of this section.
(ii) Definitions. As used in this paragraph, the term:
Arts includes any field of creative activity or endeavor such as,
but not limited to, fine arts, visual arts, culinary arts, and
performing arts. Aliens engaged in the field of arts include not only
the principal creators and performers but other essential persons such
as, but not limited to, directors, set designers, lighting designers,
sound designers, choreographers, choreologists, conductors,
orchestrators, coaches, arrangers, musical supervisors, costume
designers, makeup artists, flight masters, stage technicians, and animal
trainers.
Event means an activity such as, but not limited to, a scientific
project, conference, convention, lecture series, tour, exhibit, business
project, academic year, or engagement. Such activity may include short
vacations, promotional appearances, and stopovers which are incidental
and/or related to the event. A group of related activities may also be
considered to be an event. In the case of an O-1 athlete, the event
could be the alien's contract.
Extraordinary ability in the field of arts means distinction.
Distinction means a high level of achievement in the field of arts
evidenced by a degree of skill and recognition substantially above that
ordinarily encountered to the extent that a person described as
prominent is renowned, leading, or well-known in the field of arts.
Extraordinary ability in the field of science, education, business,
or athletics means a level of expertise indicating that the person is
one of the small percentage who have arisen to the very top of the field
of endeavor.
Extraordinary achievement with respect to motion picture and
television productions, as commonly defined in the industry, means a
very high level of accomplishment in the motion picture or television
industry evidenced by a degree of skill and recognition significantly
above that ordinarily encountered to the extent that the person is
recognized as outstanding, notable, or leading in the motion picture or
television field.
Peer group means a group or organization which is comprised of
practitioners of the alien's occupation. If there is a collective
bargaining representative of an employer's employees in the occupational
classification for which the alien is being sought, such a
representative may be considered the appropriate peer group for purposes
of consultation.
(iii) Evidentiary criteria for an O-1 alien of extraordinary ability
in the fields of science, education, business, or athletics. An alien of
extraordinary ability in the fields of science, education, business, or
athletics must demonstrate sustained national or international acclaim
and recognition for achievements in the field of expertise by providing
evidence of:
(A) Receipt of a major, internationally recognized award, such as
the Nobel Prize; or
(B) At least three of the following forms of documentation:
(1) Documentation of the alien's receipt of nationally or
internationally recognized prizes or awards for excellence in the field
of endeavor;
(2) Documentation of the alien's membership in associations in the
field for which classification is sought, which require outstanding
achievements of their members, as judged by recognized national or
international experts in their disciplines or fields;
(3) Published material in professional or major trade publications
or major media about the alien, relating to the alien's work in the
field for which classification is sought, which shall include the title,
date, and author of such published material, and any necessary
translation;
(4) Evidence of the alien's participation on a panel, or
individually, as a judge of the work of others in the same
[[Page 364]]
or in an allied field of specialization to that for which classification
is sought;
(5) Evidence of the alien's original scientific, scholarly, or
business-related contributions of major significance in the field;
(6) Evidence of the alien's authorship of scholarly articles in the
field, in professional journals, or other major media;
(7) Evidence that the alien has been employed in a critical or
essential capacity for organizations and establishments that have a
distinguished reputation;
(8) Evidence that the alien has either commanded a high salary or
will command a high salary or other remuneration for services, evidenced
by contracts or other reliable evidence.
(C) If the criteria in paragraph (o)(3)(iii) of this section do not
readily apply to the beneficiary's occupation, the petitioner may submit
comparable evidence in order to establish the beneficiary's eligibility.
(iv) Evidentiary criteria for an O-1 alien of extraordinary ability
in the arts. To qualify as an alien of extraordinary ability in the
field of arts, the alien must be recognized as being prominent in his or
her field of endeavor as demonstrated by the following:
(A) Evidence that the alien has been nominated for, or has been the
recipient of, significant national or international awards or prizes in
the particular field such as an Academy Award, an Emmy, a Grammy, or a
Director's Guild Award; or
(B) At least three of the following forms of documentation:
(1) Evidence that the alien has performed, and will perform,
services as a lead or starring participant in productions or events
which have a distinguished reputation as evidenced by critical reviews,
advertisements, publicity releases, publications contracts, or
endorsements;
(2) Evidence that the alien has achieved national or international
recognition for achievements evidenced by critical reviews or other
published materials by or about the individual in major newspapers,
trade journals, magazines, or other publications;
(3) Evidence that the alien has performed, and will perform, in a
lead, starring, or critical role for organizations and establishments
that have a distinguished reputation evidenced by articles in
newspapers, trade journals, publications, or testimonials;
(4) Evidence that the alien has a record of major commercial or
critically acclaimed successes as evidenced by such indicators as title,
rating, standing in the field, box office receipts, motion pictures or
television ratings, and other occupational achievements reported in
trade journals, major newspapers, or other publications;
(5) Evidence that the alien has received significant recognition for
achievements from organizations, critics, government agencies, or other
recognized experts in the field in which the alien is engaged. Such
testimonials must be in a form which clearly indicates the author's
authority, expertise, and knowledge of the alien's achievements; or
(6) Evidence that the alien has either commanded a high salary or
will command a high salary or other substantial remuneration for
services in relation to others in the field, as evidenced by contracts
or other reliable evidence; or
(C) If the criteria in paragraph (o)(3)(iv) of this section do not
readily apply to the beneficiary's occupation, the petitioner may submit
comparable evidence in order to establish the beneficiary's eligibility.
(v) Evidentiary criteria for an alien of extraordinary achievement
in the motion picture or television industry. To qualify as an alien of
extraordinary achievement in the motion picture or television industry,
the alien must be recognized as having a demonstrated record of
extraordinary achievement as evidenced by the following:
(A) Evidence that the alien has been nominated for, or has been the
recipient of, significant national or international awards or prizes in
the particular field such as an Academy Award, an Emmy, a Grammy, or a
Director's Guild Award; or
(B) At least three of the following forms of documentation:
(1) Evidence that the alien has performed, and will perform,
services as a
[[Page 365]]
lead or starring participant in productions or events which have a
distinguished reputation as evidenced by critical reviews,
advertisements, publicity releases, publications contracts, or
endorsements;
(2) Evidence that the alien has achieved national or international
recognition for achievements evidenced by critical reviews or other
published materials by or about the individual in major newspapers,
trade journals, magazines, or other publications;
(3) Evidence that the alien has performed, and will perform, in a
lead, starring, or critical role for organizations and establishments
that have a distinguished reputation evidenced by articles in
newspapers, trade journals, publications, or testimonials;
(4) Evidence that the alien has a record of major commercial or
critically acclaimed successes as evidenced by such indicators as title,
rating, standing in the field, box office receipts, motion picture or
television ratings, and other occupational achievements reported in
trade journals, major newspapers, or other publications;
(5) Evidence that the alien has received significant recognition for
achievements from organizations, critics, government agencies, or other
recognized experts in the field in which the alien is engaged. Such
testimonials must be in a form which clearly indicates the author's
authority, expertise, and knowledge of the alien's achievements; or
(6) Evidence that the alien has either commanded a high salary or
will command a high salary or other substantial remuneration for
services in relation to other in the field, as evidenced by contracts or
other reliable evidence.
(4) Petition for an O-2 accompanying alien--(i) General. An O-2
accompanying alien provides essential support to an O-1 artist or
athlete. Such aliens may not accompany O-1 aliens in the fields of
science, business, or education. Although the O-2 alien must obtain his
or her own classification, this classification does not entitle him or
her to work separate and apart from the O-1 alien to whom he or she
provides support. An O-2 alien must be petitioned for in conjunction
with the services of the O-1 alien.
(ii) Evidentiary criteria for qualifying as an O-2 accompanying
alien--(A) Alien accompanying an O-1 artist or athlete of extraordinary
ability. To qualify as an O-2 accompanying alien, the alien must be
coming to the United States to assist in the performance of the O-1
alien, be an integral part of the actual performance, and have critical
skills and experience with the O-1 alien which are not of a general
nature and which are not possessed by a U.S. worker.
(B) Alien accompanying an O-1 alien of extraordinary achievement. To
qualify as an O-2 alien accompanying and O-1 alien involved in a motion
picture or television production, the alien must have skills and
experience with the O-1 alien which are not of a general nature and
which are critical based on a pre-existing longstanding working
relationship or, with respect to the specific production, because
significant production (including pre- and post-production work) will
take place both inside and outside the United States and the continuing
participation of the alien is essential to the successful completion of
the production.
(C) The evidence shall establish the current essentiality, critical
skills, and experience of the O-2 alien with the O-1 alien and that the
alien has substantial experience performing the critical skills and
essential support services for the O-1 alien. In the case of a specific
motion picture or television production, the evidence shall establish
that significant production has taken place outside the United States,
and will take place inside the United States, and that the continuing
participation of the alien is essential to the successful completion of
the production.
(5) Consultation--(i) General. (A) Consultation with an appropriate
U.S. peer group (which could include a person or persons with expertise
in the field), labor and/or management organization regarding the nature
of the work to be done and the alien's qualifications is mandatory
before a petition for an O-1 or O-2 classification can be approved.
(B) Except as provided in paragraph (o)(5)(i)(E) of this section,
evidence of consultation shall be in the form of a
[[Page 366]]
written advisory opinion from a peer group (which could include a person
or persons with expertise in the field), labor and/or management
organization with expertise in the specific field involved.
(C) Except as provided in paragraph (o)(5)(i)(E) of this section,
the petitioner shall obtain a written advisory opinion from a peer group
(which could include a person or persons with expertise in the field),
labor, and/or management organization with expertise in the specific
field involved. The advisory opinion shall be submitted along with the
petition when the petition is filed. If the advisory opinion is not
favorable to the petitioner, the advisory opinion must set forth a
specific statement of facts which supports the conclusion reached in the
opinion. Advisory opinions must be submitted in writing and must be
signed by an authorized official of the group or organization.
(D) Except as provided in paragraph (o)(5)(i)(E) and (G) of this
section, written evidence of consultation shall be included in the
record in every approved O petition. Consultations are advisory and are
not binding on the Service.
(E) In a case where the alien will be employed in the field of arts,
entertainment, or athletics, and the Service has determined that a
petition merits expeditious handling, the Service shall contact the
appropriate labor and/or management organization and request an advisory
opinion if one is not submitted by the petitioner. The labor and/or
management organization shall have 24 hours to respond to the Service's
request. The Service shall adjudicate the petition after receipt of the
response from the consulting organization. The labor and/or management
organization shall then furnish the Service with a written advisory
opinion within 5 days of the initiating request. If the labor and/or
management organization fails to respond within 24 hours, the Service
shall render a decision on the petition without the advisory opinion.
(F) In a routine processing case where the petition is accompanied
by a written opinion from a peer group, but the peer group is not a
labor organization, the Director will forward a copy of the petition and
all supporting documentation to the national office of the appropriate
labor organization within 5 days of receipt of the petition. If there is
a collective bargaining representative of an employer's employees in the
occupational classification for which the alien is being sought, that
representative shall be the appropriate labor organization for purposes
of this section. The labor organization will then have 15 days from
receipt of the petition and supporting documents to submit to the
Service a written advisory opinion, comment, or letter of no objection.
Once the 15-day period has expired, the Director shall adjudicate the
petition in no more than 14 days. The Director may shorten this time in
his or her discretion for emergency reasons, if no unreasonable burden
would be imposed on any participant in the process. If the labor
organization does not respond within 15 days, the Director will render a
decision on the record without the advisory opinion.
(G) In those cases where it is established by the petitioner that an
appropriate peer group, including a labor organization, does not exist,
the Service shall render a decision on the evidence of record.
(ii) Consultation requirements for an O-1 alien for extraordinary
ability--(A) Content. Consultation with a peer group in the area of the
alien's ability (which may include a labor organization), or a person or
persons with expertise in the area of the alien's ability, is required
in an O-1 petition for an alien of extraordinary ability. If the
advisory opinion is not favorable to the petitioner, the advisory
opinion must set forth a specific statement of facts which supports the
conclusion reached in the opinion. If the advisory opinion is favorable
to the petitioner, it should describe the alien's ability and
achievements in the field of endeavor, describe the nature of the duties
to be performed, and state whether the position requires the services of
an alien of extraordinary ability. A consulting organization may also
submit a letter of no objection in lieu of the above if it has no
objection to the approval of the petition.
[[Page 367]]
(B) Waiver of consultation of certain aliens of extraordinary
ability in the field of arts. Consultation for an alien of extraordinary
ability in the field of arts shall be waived by the Director in those
instances where the alien seeks readmission to the United States to
perform similar services within 2 years of the date of a previous
consultation. The director shall, within 5 days of granting the waiver,
forward a copy of the petition and supporting documentation to the
national office of an appropriate labor organization. Petitioners
desiring to avail themselves of the waiver should submit a copy of the
prior consultation with the petition and advise the Director of the
waiver request.
(iii) Consultation requirements for an O-1 alien of extraordinary
achievement. In the case of an alien of extraordinary achievement who
will be working on a motion picture or television production,
consultation shall be made with the appropriate union representing the
alien's occupational peers and a management organization in the area of
the alien's ability. If an advisory opinion is not favorable to the
petitioner, the advisory opinion must set forth a specific statement of
facts which supports the conclusion reached in the opinion. If the
advisory opinion is favorable to the petitioner, the written advisory
opinion from the labor and management organizations should describe the
alien's achievements in the motion picture or television field and state
whether the position requires the services of an alien of extraordinary
achievement. If a consulting organization has no objection to the
approval of the petition, the organization may submit a letter of no
objection in lieu of the above.
(iv) Consultation requirements for an O-2 accompanying alien.
Consultation with a labor organization with expertise in the skill area
involved is required for an O-2 alien accompanying an O-1 alien of
extraordinary ability. In the case of an O-2 alien seeking entry for a
motion picture or television production, consultation with a labor
organization and a management organization in the area of the alien's
ability is required. If an advisory opinion is not favorable to the
petitioner, the advisory opinion must set forth a specific statement of
facts which supports the conclusion reached in the opinion. If the
advisory opinion is favorable to the petitioner, the opinion provided by
the labor and/or management organization should describe the alien's
essentiality to, and working relationship with, the O-1 artist or
athlete and state whether there are available U.S. workers who can
perform the support services. If the alien will accompany an O-1 alien
involved in a motion picture or television production, the advisory
opinion should address the alien's skills and experience wit the O-1
alien and whether the alien has a pre-existing longstanding working
relationship with the O-1 alien, or whether significant production will
take place in the United States and abroad and if the continuing
participation of the alien is essential to the successful completion of
the production. A consulting organization may also submit a letter of no
objection in lieu of the above if it has no objection to the approval of
the petition.
(v) Organizations agreeing to provide advisory opinions. The Service
will list in its Operations Instructions for O classification those peer
groups, labor organizations, and/or management organizations which have
agreed to provide advisory opinions to the Service and/or petitioners.
The list will not be an exclusive or exhaustive list. The Service and
petitioners may use other sources, such as publications, to identify
appropriate peer groups, labor organizations, and management
organizations. Additionally, the Service will list in its Operations
Instructions those occupations or fields of endeavor where the
nonexistence of an appropriate consulting entity has been verified.
(6) Approval and validity of petition--(1) Approval. The Director
shall consider all of the evidence submitted and such other evidence as
may be independently required to assist in the adjudication. The
Director shall notify the petitioner of the approval of the petition on
Form I-797, Notice of Action. The approval notice shall include the
alien beneficiary name, the classification, and the petition's period of
validity.
[[Page 368]]
(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 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.
[[Page 369]]
(ii) Revocation. A petition that has been revoked on notice may be
appealed under 8 CFR part 103. Automatic revocations may not be
appealed.
(10) Admission. A beneficiary may be admitted to the United States
for the validity period of the petition, plus a period of up to 10 days
before the validity period begins and 10 days after the validity period
ends. The beneficiary may only engage in employment during the validity
period of the petition.
(11) Extention of visa petition validity. The petitioner shall file
a request to extend the validity of the original petition under section
101(a)(15)(O) of the Act on Form I-129, Petition for a Nonimmigrant
Worker, in order to continue or complete the same activities or events
specified in the original petition. Supporting documents are not
required unless requested by the Director. A petition extension may be
filed only if the validity of the original petition has not expired.
(12) Extension of stay--(i) Extension procedure. The petitioner
shall request extension of the alien's stay to continue or complete the
same event or activity by filing Form I-129, accompanied by a statement
explaining the reasons for the extension. The petitioner must also
request a petition extension. The dates of extension shall be the same
for the petition and the beneficiary's extension of stay. The alien
beneficiary must be physically present in the United States at the time
of filing of the extension of stay. Even though the request to extend
the petition and the alien's stay are combined on the petition, the
Director shall make a separate determination on each. If the alien
leaves the United States for business or personal reasons while the
extension requests are pending, the petitioner may request the Director
to cable notification of approval of the petition extension to the
consular office abroad where the alien will apply for a visa.
(ii) Extension period. An extension of stay may be authorized in
increments of up to 1 year for an O-1 or O-2 beneficiary to continue or
complete the same event or activity for which he or she was admitted
plus an additional 10 days to allow the beneficiary to get his or her
personal affairs in order.
(iii) Denial of an extension of stay. The denial of the request for
the alien's extension of temporary stay may not be appealed.
(13) Effect of approval of a permanent labor certification or filing
of a preference petition on O classification. The approval of a
permanent labor certification or the filing of a preference petition for
an alien shall not be a basis for denying an O-1 petition, a request to
extend such a petition, or the alien's application for admission, change
of status, or extension of stay. The alien may legitimately come to the
United States for a temporary period as an O-1 nonimmigrant and depart
voluntarily at the end of his or her authorized stay and, at the same
time, lawfully seek to become a permanent resident of the United States.
(14) Effect of a strike. (i) If the Secretary of Labor certifies to
the Commissioner that a strike or other labor dispute involving a work
stoppage of workers is in progress in the occupation at the place where
the beneficiary is to be employed, and that the employment of the
beneficiary would adversely affect the wages and working conditions of
U.S. citizens and lawful resident workers:
(A) A petition to classify an alien as a nonimmigrant as defined in
section 101(a)(15)(O) of the Act shall be denied; or
(B) If a petition has been approved, but the alien has not yet
entered the United States, or has entered the United States but has not
commenced employment, the approval of the petition 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
[[Page 370]]
by the Secretary of Labor, the alien shall not be deemed to be failing
to maintain his or her status solely on account of past, present, or
future participation in a strike or other labor dispute involving a work
stoppage of workers but is subject to the following terms and
conditions:
(A) The alien shall remain subject to all applicable provisions of
the Immigration and Nationality Act and regulations promulgated
thereunder in the same manner as are all other O nonimmigrants;
(B) The status and authorized period of stay of such an alien is not
modified or extended in any way by virtue of his or her participation in
a strike or other labor dispute involving a work stoppage of workers;
and
(C) Although participation by an O nonimmigrant alien in a strike or
other labor dispute involving a work stoppage of workers will not
constitute a ground for deportation, and alien who violates his or her
status or who remains in the United States after his or her authorized
period of stay has expired will be subject to deportation.
(15) Use of approval notice, Form I-797. The Service shall notify
the petitioner of Form I-797 whenever a visa petition or an extension of
a visa petition is approved under the O classification. The beneficiary
of an O petition who does not require a nonimmigrant visa may present a
copy of the approval notice at a Port-of-Entry to facilitate entry into
the United States. A beneficiary who is required to present a visa for
admission, and who visa will have expired before the date of his or her
intended return, may use Form I-797 to apply for a new or revalidated
visa during the validity period of the petition. A copy of Form I-797
shall be retained by the beneficiary and presented during the validity
of the petition when reentering the United States to resume the same
employment with the same petitioner.
(16) Return transportation requirement. In the case of an alien who
enters the United States under section 101(a)(15(O) of the Act and whose
employment terminates for reasons other than voluntary resignation, the
employer whose offer of employment formed the basis of such nonimmigrant
status and the petitioner are jointly and severally liable for the
reasonable cost of return transportation of the alien abroad. For the
purposes of this paragraph, the term ``abroad'' means the alien's last
place of residence prior to his or her entry into the United States.
(p) Artists, athletes, and entertainers--(1) Classifications--(i)
General. Under section 101(a)(15)(P) of the Act, an alien having a
residence in a foreign country which he or she has not intention or
abandoning may be authorized to come to the United States temporarily to
perform services for an employer or a sponsor. Under the nonimmigrant
category, the alien may be classified under section 101(a)(15)(P)(i) of
the Act as an alien who is coming to the United States to perform
services as an internationally recognized athlete, individually or as
part of a group or team, or member of an internationally recognized
entertainment group; under section 101(a)(15)(P)(ii) of the Act, who is
coming to perform as an artist or entertainer under a reciprocal
exchange program; under section 101(a)(15)(P)(iii) of the Act, as an
alien who is coming solely to perform, teach, or coach under a program
that is culturally unique; or under section 101(a)(15)(P)(iv) of the
Act, as the spouse or child of an alien described in section
101(a)(15)(P) (i), (ii), or (iii) of the Act who is accompanying or
following to join the alien. These classifications are called P-1, P-2,
P-3, and P-4 respectively. The employer or sponsor must file a petition
with the Service 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
[[Page 371]]
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 may not be included on the petition filed for the principal
alien(s). These aliens require a separate petition. The petitioner must
file a P petition on Form I-129, Petition for Nonimmigrant Worker. 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.
[[Page 372]]
(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.
(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 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.
(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
[[Page 373]]
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.
(3) Definitions. As used in this paragraph, the term:
Arts includes fields of creative activity or endeavor such as, but
not limited to, fine arts, visual arts, and performing arts.
Competition, event, or performance means an activity such as an
athletic competition, athletic season, tournament, tour, exhibit,
project, entertainment event, or engagement. Such activity could include
short vacations, promotional appearances for the petitioning employer
relating to the competition, event, or performance, and stopovers which
are incidental and/or related to the activity. An athletic competition
or entertainment event could include an entire season of performances A
group of related activities will also be considered an event. In the
case of a P-2 petition, the event may be the duration of the reciprocal
exchange agreement. In the case of a P-1 athlete, the event may be the
duration of the alien's contract.
Contract means the written agreement between the petitioner and the
beneficiary(ies) that explains the terms and conditions of employment.
The contract shall describe the services to be performed, and specify
the wages, hours of work, working conditions, and any fringe benefits.
Culturally unique means a style of artistic expression, methodology,
or medium which is unique to a particular country, nation, society,
class, ethnicity, religion, tribe, or other group of persons.
Essential support alien means a highly skilled, essential person
determined by the Director to be an integral part of the performance of
a P-1, P-2, or P-3 alien because he or she performs support services
which cannot be readily performed by a United States worker and which
are essential to the successful performance of services by the P-1, P-2,
alien. Such alien must have appropriate qualifications to perform the
services, critical knowledge of the specific services to be performed,
and experience in providing such support to the P-1, P-2, or P-3 alien.
Group means two or more persons established as one entity or unit to
perform or to provide a service.
Internationally recognized means having a high level of achievement
in a field evidenced by a degree of skill and recognition substantially
above that ordinarily encountered, to the extent that such achievement
is renowned, leading, or well-known in more than one country.
Member of a group means a person who is actually performing the
entertainment services.
Sponsor means an established organization in the United States which
will not directly employ a P-1, P-2, or P-3 alien but will assume
responsibility for the accuracy of the terms and conditions specified in
the petition.
Team means two or more persons organized to perform together as a
competitive unit in a competitive event.
(4) Petition for an internationally recognized athlete or member of
an internationally recognized entertainment group (P-1)--(i) Types of
classification--(A) P-1 classification as an athlete in an individual
capacity. A P-1 classification may be granted to an alien who is an
internationally recognized athlete based on his or her own reputation
and achievements as an individual. The alien must be coming to the
United
[[Page 374]]
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
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
[[Page 375]]
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 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,
[[Page 376]]
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 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.
[[Page 377]]
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.
(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
[[Page 378]]
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 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.
[[Page 379]]
(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 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
[[Page 380]]
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 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
[[Page 381]]
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:
(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).
[[Page 382]]
(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.
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 readmitted 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
[[Page 383]]
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, 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
[[Page 384]]
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. A new petition on Form I-129, with the
applicable fee, must be filed with the appropriate service center each
time a qualified employer wants to bring in additional international
cultural exchange visitors. Each person named on an approved petition
will be admitted only for the duration of the approved program.
Replacement or substitution may be made for any person named on an
approved petition as provided in paragraph (q)(6) of this section, but
only for the remainder of the approved program.
(ii) Petition for multiple participants. The petitioner may include
more than one participant on the petition. The petitioner shall include
the name, date of birth, nationality, and other identifying information
required on the petition for each participant. The petitioner must also
indicate the United States consulate at which each participant will
apply for a Q-1 visa. For participants who are visa-exempt under 8 CFR
212.1(a), the petitioner must indicate the port of entry at which each
participant will apply for admission to the United States.
(iii) Service, labor, or training in more than one location. A
petition which requires the international cultural exchange visitor to
engage in employment or training (with the same employer) in more than
one location must include an itinerary with the dates and locations of
the services, labor, or training.
(iv) Services, labor, or training for more than one employer. If the
international cultural exchange visitor will perform services or labor
for, or receive training from, more than one employer, each employer
must file a separate petition. The international cultural exchange
visitor may work part-time for multiple employers provided that each
employer has an approved petition for the alien.
(v) Change of employers. If an international cultural exchange
visitor is in the United States under section 101(a)(15)(Q)(i) of the
Act and decides to change employers, the new employer must file a
petition. However, the total period of time the international cultural
exchange visitor may stay in the United States remains limited to
fifteen (15) months.
(6) Substitution or replacements of participants in an international
cultural exchange visitor program. The petitioner may substitute for or
replace a person named on a previously approved petition for the
remainder of the program without filing a new Form I-129. The
substituting international cultural exchange visitor must meet the
qualification requirements prescribed in paragraph (q)(3)(iv) of this
section. To request substitution or replacement, the petitioner shall,
by letter, notify the consular office at which the alien will apply for
a visa or, in the case of visa-exempt aliens, the Service office at the
port of entry where the alien will apply for admission. A copy of the
petition's approval notice must be included with the letter. The
petitioner must state the date of birth, country of nationality, level
of education, and position title of each prospective international
cultural exchange visitor and must certify that each is qualified to
perform the service or labor or receive the type of training described
in the approved petition. The petitioner must also indicate each
international cultural exchange visitor's wages and certify that the
international cultural exchange visitor is offered wages and working
[[Page 385]]
conditions comparable to those accorded to local domestic workers in
accordance with paragraph (q)(11)(ii) of this section.
(7) Approval of petition for international cultural exchange visitor
program. (i) The director shall consider all the evidence submitted and
request other evidence as he or she may deem necessary.
(ii) The director shall notify the petitioner and the appropriate
United States consulate(s) of the approval of a petition. For
participants who are visa-exempt under 8 CFR 212.1(a), the director
shall give notice of the approval to the director of the port of entry
at which each such participant will apply for admission to the United
States. The notice of approval shall include the name of the
international cultural exchange visitors, their classification, and the
petition's period of validity.
(iii) An approved petition for an alien classified under section
101(a)(15)(Q)(i) of the Act is valid for the length of the approved
program or fifteen (15) months, whichever is shorter.
(iv) A petition shall not be approved for an alien who has an
aggregate of fifteen (15) months in the United States under section
101(a)(15)(Q)(i) of the Act, unless the alien has resided and been
physically present outside the United States for the immediate prior
year.
(8) Denial of the petition--(i) Notice of denial. The petitioner
shall be notified of the denial of a petition, the reasons for the
denial, and the right to appeal the denial under part 103 of this
chapter.
(ii) Multiple participants. A petition for multiple international
cultural exchange visitors may be denied in whole or in part.
(9) Revocation of approval of petition--(i) General. The petitioner
shall immediately notify the appropriate Service center of any changes
in the employment of a participant which would affect eligibility under
section 101(a)(15)(Q)(i) of the Act.
(ii) Automatic revocation. The approval of any petition is
automatically revoked if the qualifying employer goes out of business,
files a written withdrawal of the petition, or terminates the approved
international cultural exchange program prior to its expiration date. No
further action or notice by the Service is necessary in the case of
automatic revocation. In any other case, the Service shall follow the
revocation procedures in paragraphs (q)(9) (iii) through (v) of this
section.
(iii) Revocation on notice. The director shall send the petitioner a
notice of intent to revoke the petition in whole or in part if he or she
finds that:
(A) The international cultural exchange visitor is no longer
employed by the petitioner in the capacity specified in the petition, or
if the international cultural exchange visitor is no longer receiving
training as specified in the petition;
(B) The statement of facts contained in the petition was not true
and correct;
(C) The petitioner violated the terms and conditions of the approved
petition; or
(D) The Service approved the petition in error.
(iv) Notice and decision. The notice of intent to revoke shall
contain a detailed statement of the grounds for the revocation and the
period of time allowed for the petitioner's rebuttal. The petitioner may
submit evidence in rebuttal within 30 days of receipt of the notice. The
director shall consider all relevant evidence presented in deciding
whether to revoke the petition in whole or in part. If the petition is
revoked in part, the remainder of the petition shall remain approved and
a revised approval notice shall be sent to the petitioner with the
revocation notice.
(v) Appeal of a revocation of a petition. Revocation with notice of
a petition in whole or in part may be appealed to the Associate
Commissioner for Examinations under part 103 of this chapter. Automatic
revocation may not be appealed.
(10) Extension of stay. An alien's total period of stay in the
United States under section 101(a)(15)(Q)(i) of the Act cannot exceed
fifteen (15) months. The authorized stay of an international cultural
exchange visitor may be extended within the 15-month limit if he or she
is the beneficiary of a new petition filed in accordance with paragraph
(q)(3) of this section. The new petition, if filed by the same employer,
should
[[Page 386]]
include a copy of the previous petition's approval notice and a letter
from the petitioner indicating any terms and conditions of the previous
petition that have changed.
(11) Employment provisions--(i) General. An alien classified under
section 101(a)(15)(Q)(i) of the Act may be employed only by the
qualified employer through which the alien attained Q-1 nonimmigrant
status. An alien in this class is not required to apply for an
employment authorization document. Employment outside the specific
program violates the terms of the alien's Q-1 nonimmigrant status within
the meaning of section 237(a)(1)(C)(i) of the Act.
(ii) Wages and working conditions. The wages and working conditions
of an international cultural exchange visitor must be comparable to
those accorded to domestic workers similarly employed in the
geographical area of the alien's employment. The employer must certify
on the petition that such conditions are met as in accordance with
paragraph (q)(4)(iii)(B) of this section.
(12)-(14) [Reserved]
(15) Irish peace process cultural and training program visitors (Q-
2) and their dependents (Q-3)--(i) General. An Irish Peace Process
Cultural and Training Program (IPPCTP) visitor is a nonimmigrant alien
coming to the United States temporarily to gain or upgrade work skills
through training and temporary employment and to experience living in a
diverse and peaceful environment.
(ii) What are the requirements for participation? (A) The principal
alien must have been physically resident in either Northern Ireland or
the counties of Louth, Monaghan, Cavan, Leitrim, Sligo, and Donegal in
the Republic of Ireland, for at least 3 months immediately preceding
application to the program and must show that he or she has no intention
of abandoning this residence.
(B) The principal alien must be between the ages of 18 and 35.
(C) The principal alien must:
(1) Be unemployed for at least 3 months, or have completed or
currently be enrolled in a training/employment program sponsored by the
Training and Employment Agency of Northern Ireland (T&EA) or by the
Training and Employment Authority of Ireland (FAS), or by other such
publicly funded programs, or have been made redundant from employment
(i.e., lost their job), or have received a notice of redundancy
(termination of employment); or
(2) Be a currently employed person whose employer has nominated him/
her to participate in this program for additional training or job
experience that is to benefit both the participant and his/her employer
upon returning home.
(D) The principal alien must intend to come to the United States
temporarily, for a period not to exceed 36 months, in order to obtain
training, employment, and the experience of coexistence and conflict
resolution in a diverse society.
(iii) Are there any limitations on admissions? (A) No more than
4,000 participants, including spouses and any minor children of
principal aliens, may be admitted annually for 3 consecutive program
years, beginning with FY 2000 (October 1, 1999, through September 30,
2000).
(B) For each alien admitted under section 101(a)(15)(Q)(ii) of the
Act, the number of aliens admitted under section 101(a)(15)(H)(ii)(b) of
the Act is reduced by one for that fiscal year or the subsequent fiscal
year.
(C) This program expires on October 1, 2005.
(iv) What are the requirements for initial admission to the United
States? (A) Principal aliens, their spouses, and minor children of
principal aliens must present valid passports and either a Q-2 or Q-3
visa at the time of inspection.
(B) Initial admission for those principal and dependent aliens in
this program who received their visas at either the U.S. Embassy in
Dublin or the U.S. Consulate in Belfast must take place at the Service's
Pre-Flight Inspection facilities at either the Shannon or Dublin
airports in the Republic of Ireland.
(C) The principal alien will be required to present a Certification
Letter issued by the Department of State's (DOS') Program Administrator
documenting him or her as an individual selected for participation in
the IPPCTP. Eligible dependents may be requested
[[Page 387]]
to present written documentation certifying their relationship to the
principal.
(v) May the principal alien and dependents make brief visits outside
the United States? (A) The principal alien, spouse, and any minor
children of the principal alien may make brief departures, for periods
not to exceed 3 consecutive months, and may be readmitted without having
to obtain a new visa. However, such periods of time spent outside the
United States will not be added to the end of stay, which is not to
exceed a total of 3 years from the initial date of entry of the
principal alien.
(B) Those participants or dependents who remain outside the United
States in excess of 3 consecutive months will not be readmitted by the
Service on their initial Q-2 or Q-3 visa. Instead, any such individual
and eligible dependents wishing to rejoin the program will be required
to reapply to the program and be in receipt of a new Q-2 or Q-3 visa and
a Certification Letter issued by the DOS' Program Administrator, prior
to any subsequent admission to the United States.
(vi) How long may a Q-2 or Q-3 visa holder remain in the United
States under this program? (A) The principal alien and any accompanying,
or following-to-join, spouse or minor children of the principal alien
are admitted for the duration of the principal alien's planned cultural
and training program or 36 months, whichever is shorter.
(B) Those participants and eligible dependents admitted for specific
periods less than 36 months may extend their period of stay through the
Service so that their total period of stay is 36 months, provided the
extension of stay is related to employment or training certified by the
DOS' Program Administrator.
(vii) How is employment authorized under this program? (A) Following
endorsement of his/her Form I-94, Arrival-Departure Record, by a Service
officer, any principal alien admitted under section 101(a)(15)(Q)(ii) of
the Act is permitted to work for an employer or employers listed on the
Certification Letter issued by the DOS' Program Administrator.
(B) The accompanying spouse and minor children of the principal
alien may not accept employment, unless the spouse has also been
designated as a principal alien (Q-2) in this program and has been
issued a Certification Letter by the DOS' Program Administrator.
(viii) May the principal alien change employers? Principal aliens
wishing to change employers must request such a change through the DOS'
Program Administrator to the Service. Following review and consideration
of the request by the Service, the Service will inform the participant
of the decision. The Service will grant such approval of employers only
if the new employer has been approved by DOS in accordance with its
regulations and such approval is communicated to the Service through the
DOS' Program Administrator. If approved, the participant's Form I-94
will be annotated to show the new employer. If denied, there is no
appeal under this section.
(ix) May the principal alien hold other jobs during his/her U.S.
visit? No; any principal alien classified as an Irish peace process
cultural and training program visitor may only engage in employment that
has been certified by the DOS' Program Administrator and approved by the
DOS or the Service as endorsed on the Form I-94. An alien who engages in
unauthorized employment violates the terms of the Q-2 visa and will be
considered to have violated section 237(a)(1)(C)(i) of the Act.
(x) What happens if a principal alien loses his/her job? A principal
alien, who loses his or her job, will have 30 days from his/her last
date of employment to locate appropriate employment or training, to have
the job offer certified by the DOS' Program Administrator in accordance
with the DOS' regulations and to have it approved by the Service. If
appropriate employment or training cannot be found within this 30-day-
period, the principal alien and any accompany family members will be
required to depart the United States.
(r) Religious workers. 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
[[Page 388]]
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:
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;
[[Page 389]]
(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.
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,
[[Page 390]]
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 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
[[Page 391]]
(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 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
[[Page 392]]
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, 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
[[Page 393]]
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 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
[[Page 394]]
employment in the United States, the term dependent of a NATO-1, NATO-2,
NATO-3, NATO-4, NATO-5, or NATO-6 principal alien, as used in this
section, means any of the following immediate members of the family
habitually residing in the same household as the NATO-1, NATO-2, NATO-3,
NATO-4, NATO-5, or NATO-6 principal alien assigned to official duty in
the United States:
(i) Spouse;
(ii) Unmarried children under the age of 21;
(iii) Unmarried sons or daughters under the age of 23 who are in
full-time attendance as students at post-secondary educational
institutions;
(iv) Unmarried sons or daughters under the age of 25 who are in
full-time attendance as students at post-secondary educational
institutions if a formal bilateral employment agreement permitting their
employment in the United States was signed prior to November 21, 1988,
and such bilateral employment agreements do not specify under the age of
23 as the maximum age for employment of such sons and daughters;
(v) Unmarried sons or daughters who are physically or mentally
disabled to the extent that they cannot adequately care for themselves
or cannot establish, maintain, or re-establish their own households. The
Service may require medical certification(s) as it deems necessary to
document such mental or physical disability.
(3) Dependent employment requirements based on formal bilateral
employment agreements and informal de facto reciprocal arrangements--(i)
Formal bilateral employment agreements. The Department of State's Family
Liaison office (FLO) shall maintain all listing of NATO Member States
which have entered into formal bilateral employment agreements that
include NATO personnel. A dependent of a NATO-1, NATO-2, NATO-3, NATO-4,
NATO-5, or NATO-6 principal alien assigned to official duty in the
United States may accept, or continue in, unrestricted employment based
on such formal bilateral agreement upon favorable recommendation by
SACLANT, pursuant to paragraph (s)(5) of this section, and 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
[[Page 395]]
of proposed employment. This Schedule B restriction does not apply to a
dependent son or daughter who is a full-time student if the employment
is part-time, consisting of not more than 20 hours per week, of if it is
temporary employment of not more than 12 weeks during school holiday
periods; and
(E) The proposed employment is not contrary to the interest of the
United States. Employment contrary to the interest of the United States
includes, but is not limited to, the employment of NATO-1, NATO-2, NATO-
3, NATO-4, NATO-5, or NATO-6 dependents who have criminal records; who
have violated United States immigration laws or regulations, or visa
laws or regulations; who have worked illegally in the United States; or
who cannot establish that they have paid taxes and social security on
income from current or previous United States employment.
(iii) State's FLO shall inform the Service, by contacting
Headquarters, Adjudications, Attention: Chief, Business and Trade
Services Branch, 425 I Street, NW., Washington, DC 20536, of any
additions or changes to the formal bilateral employment agreements and
informal de facto reciprocal arrangements.
(4) Applicability of a formal bilateral agreement or an informal de
facto arrangement for NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6
dependents. The applicability of a formal bilateral agreement shall be
based on the NATO Member State which employs the principal alien and not
on the nationality of the principal alien or dependent. The
applicability of an informal de facto arrangement shall be based on the
NATO Member State which employs the principal alien, and the principal
alien also must be a national of the NATO Member State which employs him
or her in the United States. Dependents of SACLANT employees receive
bilateral agreement or de facto arrangement employment privileges as
appropriate based upon the nationality of the SACLANT employee
(principal alien).
(5) Application procedures. The following procedures are required
for dependent employment applications under bilateral agreements and de
facto arrangements:
(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
[[Page 396]]
only after consultation with SACLANT.
(6) Period of time for which employment may be authorized. If
approved, an application to accept or continue employment under this
paragraph shall be granted in increments of not more than 3 years.
(7) Income tax and Social Security liability. Dependents who are
granted employment authorization under this paragraph are responsible
for payment of all Federal, state, and local income taxes, employment
and related taxes and Social Security contributions on any remuneration
received.
(8) No appeal. There shall be no appeal from a denial of permission
to accept or continue employment under this paragraph.
(9) Unauthorized employment. An alien classified as a NATO-1, NATO-
2, NATO-3, NATO-4, NATO-5, NATO-6, or NATO-7 who is not a NATO principal
alien and who engages in employment outside the scope of, or in a manner
contrary to, this paragraph may be considered in violation of status
pursuant to section 237(a)(1)(C)(i) of the Act. A NATO principal alien
in those classifications who engages in employment outside the scope of
his or her official position may be considered in violation of status
pursuant to section 237(a)(1)(C)(i) of the Act.
(t) Alien witnesses and informants--(1) Alien witness or informant
in criminal matter. An alien may be classified as an S-5 alien witness
or informant under the provisions of section 101(a)(15)(S)(i) of the Act
if, in the exercise of discretion pursuant to an application on Form I-
854 by an interested federal or state law enforcement authority
(``LEA''), it is determined by the Commissioner that the alien:
(i) Possesses critical reliable information concerning a criminal
organization or enterprise;
(ii) Is willing to supply, or has supplied, such information to
federal or state LEA; and
(iii) Is essential to the success of an authorized criminal
investigation or the successful prosecution of an individual involved in
the criminal organization or enterprise.
(2) Alien witness or informant in counterterrorism matter. An alien
may be 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
[[Page 397]]
or informant. The completed application is filed with the Assistant
Attorney General, Criminal Division, Department of Justice, who will
forward only properly certified applications that fall within the
numerical limitation to the Commissioner, Immigration and Naturalization
Service, for approval, pursuant to the following process.
(i) Filing request. For an alien to qualify for status as an S
nonimmigrant, S nonimmigrant classification must be requested by an LEA.
The LEA shall recommend an alien for S nonimmigrant classification by:
Completing Form I-854, with all necessary endorsements and attachments,
in accordance with the instructions on, or attached to, that form, and
agreeing, as a condition of status, that no promises may be, have been,
or will be made by the LEA that the alien will or may remain in the
United States in S or any other nonimmigrant classification or parole,
adjust status to that of lawful permanent resident, or otherwise attempt
to remain beyond a 3-year period other than by the means authorized by
section 101(a)(15)(S) of the Act. The alien, including any derivative
beneficiary who is 18 years or older, shall sign a statement, that is
part of or affixed to Form I-854, acknowledging awareness that he or she
is restricted by the terms of S nonimmigrant classification to the
specific terms of section 101(a)(15)(S) of the Act as the exclusive
means by which he or she may remain permanently in the United States.
(A) District director referral. Any district director or Service
officer who receives a request by an alien, an eligible LEA, or other
entity seeking S nonimmigrant classification shall advise the requestor
of the process and the requirements for applying for S nonimmigrant
classification. Eligible LEAs seeking S nonimmigrant classification
shall be referred to the Commissioner.
(B) United States Attorney certification. The United States Attorney
with jurisdiction over a prosecution or investigation that forms the
basis for a request for S nonimmigrant classification must certify and
endorse the application on Form I-854 and agree that no promises may be,
have been, or will be 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
[[Page 398]]
General unless the eligible LEA making the request has proceeded in
accordance with the instructions on, or attached to, Form I-854 and
agreed to all provisions therein.
(B) Advisory panel. Where necessary according to procedures
established by the Assistant Attorney General, Criminal Division, an
advisory panel, composed of representatives of the Service, Marshals
Service, Federal Bureau of Investigation, Drug Enforcement
Administration, Criminal Division, and the Department of State, and
those representatives of other LEAs, including state and federal courts
designated by the Attorney General, will review the completed
application and submit a recommendation to the Assistant Attorney
General, Criminal Division, regarding requests for S nonimmigrant
classification. The function of this advisory panel is to prioritize
cases in light of the numerical limitation in order to determine which
cases will be forwarded to the Commissioner.
(C) Assistant Attorney General certification. The certification of
the Assistant Attorney General, Criminal Division, to the Commissioner
recommending approval of the application for S nonimmigrant
classification shall contain the following:
(1) All information and attachments that may constitute, or relate
to, a ground or grounds of excludability under section 212(a) of the
Act;
(2) Each section of law under which the alien appears to be
inadmissible;
(3) The reasons that waiver(s) of inadmissibility are considered to
be justifiable and in the national interest;
(4) A detailed statement that the alien is eligible for S
nonimmigrant classification, explaining the nature of the alien's
cooperation with the government and the government's need for the
alien's presence in the United States;
(5) The intended date of arrival;
(6) The length of the proposed stay in the United States;
(7) The purpose of the proposed stay; and
(8) A statement that the application falls within the statutorily
specified numerical limitation.
(D) Submission of certified requests for S nonimmigrant
classification to Service. (1) The Assistant Attorney General, Criminal
Division, shall forward to the 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
[[Page 399]]
be expeditiously referred to the Deputy Attorney General for a final
resolution. In no circumstances shall the alien or the relevant LEA have
a right of appeal from any decision to deny.
(6) Submission of requests for S nonimmigrant visa classification to
Secretary of State. No request for S nonimmigrant visa classification
may be presented to the Secretary of State unless it is approved and
forwarded by the Commissioner.
(7) Conditions of status. An alien witness or informant is
responsible for certifying and fulfilling the terms and conditions
specified on Form I-854 as a condition of status. The LEA that assumes
responsibility for the S nonimmigrant must:
(i) Ensure that the alien:
(A) Reports quarterly to the LEA on his or her whereabouts and
activities, and as otherwise specified on Form I-854 or pursuant to the
terms of his or her S nonimmigrant classification;
(B) Notifies the LEA of any change of home or work address and phone
numbers or any travel plans;
(C) Abides by the law and all specified terms, limitations, or
restrictions on the visa, Form I-854, or any waivers pursuant to
classification; and
(D) Cooperates with the responsible LEA in accordance with the terms
of his or her classification and any restrictions on Form I-854;
(ii) Provide the Assistant Attorney General, Criminal Division, with
the name of the control agent on an ongoing basis and provide a
quarterly report indicating the whereabouts, activities, and any other
control information required on Form I-854 or by the Assistant Attorney
General;
(iii) Report immediately to the Service any failure on the alien's
part to:
(A) Report quarterly;
(B) Cooperate with the LEA;
(C) Comply with the terms and conditions of the specific S
nonimmigrant classification; or
(D) Refrain from criminal activity that may render the alien
deportable, which information shall also be forwarded to the Assistant
Attorney General, Criminal Division; and
(iv) Report annually to the Assistant Attorney General, Criminal
Division, on whether the alien's S nonimmigrant classification and
cooperation resulted in either:
(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
[[Page 400]]
that decision. Unless the Assistant Attorney General, Criminal Division,
objects within 7 days, he or she shall be deemed to have concurred in
the decision. In the event of an objection by the Assistant Attorney
General, Criminal Division, the matter will be expeditiously referred to
the Deputy Attorney General for a final resolution. In no circumstances
shall the alien or the relevant LEA have a right of appeal from any
decision to deport.
(12) Change of classification. (i) An alien in S nonimmigrant
classification is prohibited from changing to any other nonimmigrant
classification.
(ii) An LEA may request that any alien lawfully admitted to the
United States and maintaining status in accordance with the provisions
of Sec. 248.1 of this chapter, except for those aliens enumerated in 8
CFR 248.2, have his or her nonimmigrant classification changed to that
of an alien classified pursuant to section 101(a)(15)(S) of the Act as
set forth in 8 CFR 248.3(h).
(u) [Reserved]
(v) Certain spouses and children of LPRs. Section 214.15 of this
chapter provides the procedures and requirements pertaining to V
nonimmigrant status.
(w) CNMI-Only Transitional Worker (CW-1)--(1) Definitions. The
following definitions apply to petitions for and maintenance of CW
status in the Commonwealth of the Northern Mariana Islands (the CNMI or
the Commonwealth):
(i) Direct Guam transit means travel from the CNMI to the
Philippines by an alien in CW status, or from the Philippines to the
CNMI by an alien with a valid CW visa, on a direct itinerary involving a
flight stopover or connection in Guam (and no other place) within 8
hours of arrival in Guam, without the alien leaving the Guam airport.
(ii) Doing business means the regular, systematic, and continuous
provision of goods or services by an employer as defined in this
paragraph and does not include the mere presence of an agent or office
of the employer in the CNMI.
(iii) Employer means a person, firm, corporation, contractor, or
other association, or organization which:
(A) Engages a person to work within the CNMI; and
(B) Has or will have an employer-employee relationship with the CW-1
nonimmigrant being petitioned for.
(iv) Employer-employee relationship means that the employer will
hire, pay, fire, supervise, and control the work of the employee.
(v) Lawfully present in the CNMI means that the alien:
(A) At the time the application for CW status is filed, is an alien
lawfully present in the CNMI under 48 U.S.C. 1806(e); or
(B) Was lawfully admitted or paroled into the CNMI under the
immigration laws on or after the transition program effective date,
other than an alien admitted or paroled as a visitor for business or
pleasure (B-1 or B-2, under any visa-free travel provision or parole of
certain visitors from Russia and the People's Republic of China), and
remains in a lawful immigration status.
(vi) Legitimate business means a real, active, and operating
commercial or entrepreneurial undertaking which produces services or
goods for profit, or is a governmental, charitable or other validly
recognized nonprofit entity. The business must meet applicable legal
requirements for doing business in the CNMI. A business will not be
considered legitimate if it engages directly or indirectly in
prostitution, trafficking in minors, or any other activity that is
illegal under Federal or CNMI law. DHS will determine whether a business
is legitimate.
(vii) Minor child means a child as defined in section 101(b)(1) of
the Act who is under 18 years of age.
(viii) Numerical limitation means the maximum number of persons who
may be granted CW-1 status in a given fiscal year or other period as
determined by DHS, as follows:
(A) For fiscal year 2011, the numerical limitation is 22,417 per
fiscal year.
(B) For fiscal year 2012, the numerical limitation is 22,416 per
fiscal year.
(C) For each fiscal year beginning on October 1, 2012 until the end
of the transition period, the numerical limitation will be a number less
than 22,416 that is determined by DHS and published via Notice in the
Federal Register. The numerical limitation for any fiscal year will be
less than the number for the previous fiscal year,
[[Page 401]]
and will be a number reasonably calculated in DHS's discretion to reduce
the number of CW-1 nonimmigrants to zero by the end of the transition
period.
(D) DHS may adjust the numerical limitation for a fiscal year or
other period in its discretion at any time via Notice in the Federal
Register, as long as such adjustment is consistent with paragraph
(w)(1)(viii)(C) of this section.
(E) If the numerical limitation is not reached for a specified
fiscal year, unused numbers do not carry over to the next fiscal year.
(ix) Occupational category means those employment activities that
DHS has determined require alien workers to supplement the resident
workforce and includes:
(A) Professional, technical, or management occupations;
(B) Clerical and sales occupations;
(C) Service occupations;
(D) Agricultural, fisheries, forestry, and related occupations;
(E) Processing occupations;
(F) Machine trade occupations;
(G) Benchwork occupations;
(H) Structural work occupations; and
(I) Miscellaneous occupations.
(x) Petition means USCIS Form I-129CW, Petition for a CNMI-Only
Nonimmigrant Transitional Worker, a successor form, other form, or
electronic equivalent, any supplemental information requested by USCIS,
and additional evidence as may be prescribed or requested by USCIS.
(xi) Transition period means the period beginning on the transition
program effective date and ending on December 31, 2014, unless the CNMI-
only transitional worker program is extended by the Secretary of Labor,
in which case the transition period will end for purposes of the CW
transitional worker program on the date designated by the Secretary of
Labor.
(xii) United States worker means a national of the United States, an
alien lawfully admitted for permanent residence, or a national of the
Federated States of Micronesia, the Republic of the Marshall Islands, or
the Republic of Palau who is eligible for nonimmigrant admission and is
employment-authorized under the Compacts of Free Association between the
United States and those nations.
(2) Eligible aliens. Subject to the numerical limitation, an alien
may be classified as a CW-1 nonimmigrant if, during the transition
period, the alien:
(i) Will enter or remain in the CNMI for the purpose of employment
in the transition period in an occupational category that DHS has
designated as requiring alien workers to supplement the resident
workforce;
(ii) Is petitioned for by an employer;
(iii) Is not present in the United States, other than the CNMI;
(iv) If present in the CNMI, is lawfully present in the CNMI;
(v) Is not inadmissible to the United States as a nonimmigrant or
has been granted a waiver of each applicable ground of inadmissibility;
and
(vi) Is ineligible for status in a nonimmigrant worker
classification under section 101(a)(15) of the Act.
(3) Derivative beneficiaries--CW-2 nonimmigrant classification. The
spouse or minor child of a CW-1 nonimmigrant may accompany or follow the
alien as a CW-2 nonimmigrant if the alien:
(i) Is not present in the United States, other than the CNMI;
(ii) If present in the CNMI, is lawfully present in the CNMI; and
(iii) Is not inadmissible to the United States as a nonimmigrant or
has been granted a waiver of each applicable ground of inadmissibility.
(4) Eligible employers. To be eligible to petition for a CW-1
nonimmigrant worker, an employer must:
(i) Be engaged in legitimate business;
(ii) Consider all available United States workers for the position
being filled by the CW-1 worker;
(iii) Offer terms and conditions of employment which are consistent
with the nature of the petitioner's business and the nature of the
occupation, activity, and industry in the CNMI; and
(iv) Comply with all Federal and Commonwealth requirements relating
to employment, including but not limited to nondiscrimination,
occupational safety, and minimum wage requirements.
(5) Petition requirements. An employer who seeks to classify an
alien as a CW-1 worker must file a petition with USCIS and pay the
requisite petition
[[Page 402]]
fee plus the CNMI education fee of $150 per beneficiary per year. An
employer filing a petition is eligible to apply for a waiver of the fee
based upon inability to pay as provided by 8 CFR 103.7(c). If the
beneficiary will perform services for more than one employer, each
employer must file a separate petition with fees with USCIS.
(6) Appropriate documents. Documentary evidence establishing
eligibility for CW status is required. A petition must be accompanied
by:
(i) Evidence demonstrating the petitioner meets the definition of
eligible employer in this section;
(ii) An attestation by the petitioner certified as true and accurate
by an appropriate official of the petitioner, of the following:
(A) No qualified United States worker is available to fill the
position;
(B) The employer is doing business as defined in paragraph
(w)(1)(ii) of this section;
(C) The employer is a legitimate business as defined in paragraph
(w)(1)(vi) of this section;
(D) The employer is an eligible employer as described in paragraph
(w)(4) of this section and will continue to comply with the requirements
for an eligible employer until such time as the employer no longer
employs the CW-1 nonimmigrant worker;
(E) The beneficiary meets the qualifications for the position;
(F) The beneficiary, if present in the CNMI, is lawfully present in
the CNMI;
(G) The position is not temporary or seasonal employment, and the
petitioner does not reasonably believe it to qualify for any other
nonimmigrant worker classification; and
(H) The position falls within the list of occupational categories
designated by DHS.
(iii) Evidence of licensure if an occupation requires a Commonwealth
or local license for an individual to fully perform the duties of the
occupation. Categories of valid licensure for CW-1 classification are:
(A) Licensure. An alien seeking CW-1 classification in that
occupation must have that license prior to approval of the petition to
be found qualified to enter the CNMI and immediately engage in
employment in the occupation.
(B) Temporary licensure. If a temporary license is available and
allowed for the occupation with a temporary license, USCIS may grant the
petition at its discretion after considering the duties performed, the
degree of supervision received, and any limitations placed on the alien
by the employer and/or pursuant to the temporary license.
(C) Duties without licensure. If the CNMI allows an individual to
fully practice the occupation that usually requires a license without a
license under the supervision of licensed senior or supervisory
personnel in that occupation, USCIS may grant CW-1 status at its
discretion after considering the duties performed, the degree of
supervision received, and any limitations placed on the alien if the
facts demonstrate that the alien under supervision could fully perform
the duties of the occupation.
(7) Change of employers. A change of employment to a new employer
inconsistent with paragraphs (w)(7)(i) and (ii) of this section will
constitute a failure to maintain status within the meaning of section
237(a)(1)(C)(i) of the Act. A CW-1 nonimmigrant may change employers if:
(i) The prospective new employer files a petition to classify the
alien as a CW-1 worker in accordance with paragraph (w)(5) of this
section, and
(ii) An extension of the alien's stay is requested if necessary for
the validity period of the petition.
(iii) A CW-1 may work for a prospective new employer after the
prospective new employer files a Form I-129CW petition on the employee's
behalf if:
(A) The prospective employer has filed a nonfrivolous petition for
new employment before the date of expiration of the CW-1's authorized
period of stay; and
(B) Subsequent to his or her lawful admission, the CW-1 has not been
employed without authorization in the United States.
(iv) Employment authorization shall continue for such alien until
the new petition is adjudicated. If the new petition is denied, such
authorization shall cease.
[[Page 403]]
(v) If a CW-1's employment has been terminated prior to the filing
of a petition by a prospective new employer consistent with paragraphs
(w)(7)(i) and (ii), the CW-1 will not be considered to be in violation
of his or her CW-1 status during the 30-day period immediately following
the date on which the CW-1's employment terminated if a nonfrivolous
petition for new employment is filed consistent with this paragraph
within that 30-day period and the CW-1 does not otherwise violate the
terms and conditions of his or her status during that 30-day period.
(8) Amended or new petition. If there are any material changes in
the terms and conditions of employment, the petitioner must file an
amended or new petition to reflect the changes.
(9) Multiple beneficiaries. A petitioning employer may include more
than one beneficiary in a CW-1 petition if the beneficiaries will be
working in the same occupational category, for the same period of time,
and in the same location.
(10) Named beneficiaries. The petition must include the name of the
beneficiary and other required information, as indicated in the form
instructions, at the time of filing. Unnamed beneficiaries will not be
permitted.
(11) Early termination. The petitioning employer must pay the
reasonable cost of return transportation of the alien to the alien's
last place of foreign residence if the alien is dismissed from
employment for any reason by the employer before the end of the period
of authorized admission.
(12) Approval. USCIS will consider all the evidence submitted and
such other evidence required in the form instructions to adjudicate the
petition. USCIS will notify the petitioner of the approval of the
petition on Form I-797, Notice of Action, or in another form as USCIS
may prescribe:
(i) The approval notice will include the classification and name of
the beneficiary or beneficiaries and the petition's period of validity.
A petition for more than one beneficiary may be approved in whole or in
part.
(ii) The petition may not be filed or approved earlier than six
months before the date of actual need for the beneficiary's services.
(13) Petition validity. An approved petition will be valid for a
period of up to one year.
(14) How to apply for CW-1 or CW-2 status. (i) Upon approval of the
petition, a beneficiary, his or her eligible spouse, and or his or her
minor child(ren) outside the CNMI will be informed in the approval
notice of where they may apply for a visa authorizing admission in CW-1
or CW-2 status.
(ii) If the beneficiary is present in the CNMI, the petition also
serves as the application for a grant of status as a CW-1.
(iii) If the eligible spouse and/or minor child(ren) are present in
the CNMI, the spouse or child(ren) may apply for CW-2 dependent status
on Form I-539 (or such alternative form as USCIS may designate) in
accordance with the form instructions. The CW-2 status may not be
approved until approval of the CW-1 petition. A spouse or child applying
for CW-2 status on Form I-539 is eligible to apply for a waiver of the
fee based upon inability to pay as provided by 8 CFR 103.7(c).
(15) Biometrics and other information. The beneficiary of a CW-1
petition or the spouse or child applying for a grant or, extension of
CW-2 status, or a change of status to CW-2 status, must submit biometric
information as requested by USCIS. For a Form I-129CW petition where the
beneficiary is present in the CNMI, the employer must submit the
biometric service fee described in 8 CFR 103.7(b)(1) with the petition
for each beneficiary for which CW-1 status is being requested or request
a fee waiver for any biometric services provided, including but not
limited to reuse of previously provided biometric information for
background checks. For a Form I-539 application where the applicant is
present in the CNMI, the applicant must submit a biometric service fee
for each CW-2 nonimmigrant on the application with the application or
obtain a waiver of the biometric service fee described in 8 CFR
103.7(b)(1) for any biometric services provided, including but not
limited to reuse of previously provided biometric information for
background checks. A biometric service fee is not required for
beneficiaries under the age of 14, or who are at least 79 years of age.
[[Page 404]]
(16) Period of admission. (i) A CW-1 nonimmigrant will be admitted
for the period of petition validity, plus up to 10 days before the
validity period begins and 10 days after the validity period ends. The
CW-1 nonimmigrant may not work except during the validity period of the
petition. A CW-2 spouse will be admitted for the same period as the
principal alien. A CW-2 minor child will be admitted for the same period
as the principal alien, but such admission will not extend beyond the
child's 18th birthday.
(ii) The temporary departure from the CNMI of the CW-1 nonimmigrant
will not affect the derivative status of the CW-2 spouse and minor
children, provided the familial relationship continues to exist and the
principal remains eligible for admission as a CW-1 nonimmigrant.
(17) Extension of petition validity and extension of stay. (i) The
petitioner may request an extension of an employee's CW-1 nonimmigrant
status by filing a new petition.
(ii) A request for a petition extension may be filed only if the
validity of the original petition has not expired.
(iii) Extensions of CW-1 status may be granted for a period of up to
1 year until the end of the transition period, subject to the numerical
limitation.
(iv) To qualify for an extension of stay, the petitioner must
demonstrate that the beneficiary or beneficiaries:
(A) Continuously maintained the terms and conditions of CW-1 status;
(B) Remains admissible to the United States; and
(C) Remains eligible for CW-1 classification.
(v) The derivative CW-2 nonimmigrant may file an application for
extension of nonimmigrant stay on Form I-539 (or such alternative form
as USCIS may designate) in accordance with the form instructions. The
CW-2 status extension may not be approved until approval of the CW-1
extension petition.
(18) Change or adjustment of status. A CW-1 or CW-2 nonimmigrant can
apply to change nonimmigrant status under section 248 of the Act or
apply for adjustment of status under section 245 of the Act, if
otherwise eligible. During the transition period, CW-1 or CW-2
nonimmigrants may be the beneficiary of a petition for or may apply for
any nonimmigrant or immigrant visa classification for which they may
qualify.
(19) 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 CW-1 or CW-2 classification. An alien may be
granted, be admitted in and maintain lawful CW-1 or CW-2 nonimmigrant
status while, at the same time, lawfully seeking to become a lawful
permanent resident of the United States, provided he or she intends to
depart the CNMI voluntarily at the end of the period of authorized stay.
The filing of an application for or approval of a permanent labor
certification or an immigrant visa preference petition, the filing of an
application for adjustment of status, or the lack of residence abroad
will not be the basis for denying:
(i) A CW-1 petition filed on behalf of the alien;
(ii) A request to extend a CW-1 status pursuant to a petition
previously filed on behalf of the alien;
(iii) An application for CW-2 classification filed by an alien;
(iv) A request to extend CW-2 status pursuant to the extension of a
related CW-1 alien's extension; or
(v) An application for admission as a CW-1 or CW-2 nonimmigrant.
(20) Rejection. USCIS may reject an employer's petition for new or
extended CW-1 status if the numerical limitation has been met. In that
case, the petition and accompanying fee will be rejected and returned
with the notice that numbers are unavailable for the CW nonimmigrant
classification. The beneficiary's application for admission based upon
an approved petition will not be rejected based upon the numerical
limitation.
(21) Denial. The ultimate decision to grant or deny CW-1 or CW-2
classification or status is a discretionary determination, and the
petition or the application may be denied for failure of the petitioner
or the applicant to demonstrate eligibility or for other good cause. The
denial of a petition to classify an alien as a CW-1 may be appealed to
the USCIS Administrative Appeals Office or any successor body.
[[Page 405]]
The denial of a grant of CW-1 or CW-2 status within the CNMI, or of an
application for change or extension of status filed under this section,
may not be appealed.
(22) Terms and conditions of CW Nonimmigrant status--(i)
Geographical limitations. CW-1 and CW-2 statuses are only applicable in
the CNMI. Entry, employment and residence in the rest of the United
States (including Guam) require the appropriate visa or visa waiver.
Except as provided in paragraph (w)(22)(iii) of this section, an alien
with CW-1 or CW-2 status who enters or attempts to enter, or travels or
attempts to travel to any other part of the United States without an
appropriate visa or visa waiver, or who violates conditions of
nonimmigrant stay applicable to any such authorized status in any other
part of the United States, will be deemed to have violated CW-1 or CW-2
status.
(ii) Re-entry. An alien with CW-1 or CW-2 status who travels abroad
from the CNMI will require a CW-1 or CW-2 or other appropriate visa to
be re-admitted to the CNMI.
(iii) Direct Guam transit--(A) Travel from the CNMI to the
Philippines. An alien with CW-1 or CW-2 status who is a national of the
Philippines may travel to the Philippines via a direct Guam transit
without being deemed to violate that status.
(B) Travel from the Philippines to the CNMI. An alien who is a
national of the Philippines may travel to the CNMI via a direct Guam
transit under the following conditions: If an immigration officer
determines that the alien warrants a discretionary exercise of parole
authority, the alien may be paroled into Guam via direct Guam transit to
undergo preinspection outbound from Guam for admission to the CNMI
pursuant to 8 CFR 235.5(a) or to proceed for inspection upon arrival in
the CNMI. During any such preinspection, the alien will be admitted in
CW-1 or CW-2 status if the immigration officer in Guam determines that
the alien is admissible to the CNMI. A condition of the admission is
that the alien must complete the direct Guam transit. DHS, in its
discretion, may exempt such alien from the provisions of 8 CFR 235.5(a)
relating to separation and boarding of passengers after inspection.
(iv) Employment authorization. An alien with CW-1 nonimmigrant
status is only authorized employment in the CNMI for the petitioning
employer. An alien with CW-2 status is not authorized to be employed.
(23) Expiration of status. CW-1 status expires when the alien
violates his or her CW-1 status (or in the case of a CW-1 status
violation caused solely by termination of the alien's employment, at the
end of the 30 day period described in section 214.2(w)(7)(v)), 10 days
after the end of the petition's validity period, or at the end of the
transitional worker program, whichever is earlier. CW-2 nonimmigrant
status expires when the status of the related CW-1 alien expires, on a
CW-2 minor child's 18th birthday, when the alien violates his or her
status, or at the end of the transitional worker program, whichever is
earlier. No alien will be eligible for admission to the CNMI in CW-1 or
CW-2 status, and no CW-1 or CW-2 visa will be valid for travel to the
CNMI, after the transitional worker program ends.
(24) Waivers of inadmissibility for applicants lawfully present in
the CNMI. An applicant for CW-1 or CW-2 nonimmigrant status, who is
otherwise eligible for such status and otherwise admissible to the
United States, and who possesses appropriate documents demonstrating
that the applicant is lawfully present in the CNMI, may be granted a
waiver of inadmissibility under section 212(d)(3)(A)(ii) of the Act,
including the grounds of inadmissibility described in sections
212(a)(6)(A)(i) and 212(a)(7)(B)(i)(II) of the Act, as a matter of
discretion for the purpose of granting the CW-1 or CW-2 nonimmigrant
status. Such waiver may be granted without additional form or fee.
Appropriate documents required for such a waiver include a valid
unexpired passport and other documentary evidence demonstrating that the
applicant is lawfully present in the CNMI, such as an ``umbrella
permit'' or a DHS-issued Form I-94. Evidence that the applicant
possesses appropriate documents may be provided by an employer to
accompany a petition, by an
[[Page 406]]
eligible spouse or minor child to accompany the Form I-539 (or such
alternative form as USCIS may designate), or in such other manner as
USCIS may designate.
(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 of the printed volume and at www.govinfo.gov.
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.
[[Page 407]]
(iii) Both F-1 and M-1 classification. A school may be approved for
attendance by nonimmigrant students under both sections 101(a)(15)(F)(i)
and 101(a)(15)(M)(i) of the Act if it has both instruction in the
liberal arts, fine arts, language, religion, or the professions and
vocational or technical training. In that case, a student whose primary
intent is to pursue studies in liberal arts, fine arts, language,
religion, or the professions at the school is classified as a
nonimmigrant under section 101(a)(15)(F)(i) of the Act. A student whose
primary intent is to pursue vocational or technical training at the
school is classified as a nonimmigrant under section 101(a)(15)(M)(i) of
the Act.
(iv) English language training for a vocational student. A student
whose primary intent is to pursue vocational or technical training who
takes English language training at the same school solely for the
purpose of being able to understand the vocational or technical course
of study is classified as a nonimmigrant under section 101(a)(15)(M)(i)
of the Act.
(v) The following may not be approved for attendance by foreign
students:
(A) A home school,
(B) A public elementary school, or
(C) An adult education program, as defined by section 203(l) of the
Adult Education and Family Literacy Act, Public Law 105-220, as amended,
20 U.S.C. 9202(l), if the adult education program is funded in whole or
in part by a grant under the Adult Education and Family Literacy Act, or
by any other Federal, State, county or municipal funding.
(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
[[Page 408]]
character of supervisory and consultative services available to students
and trainees, and finances (including a certified copy of the
accountant's last statement of school's net worth, income, and
expenses). Neither a catalogue nor such a written statement need be
included with a petition submitted by:
(1) A school or school system owned and operated as a public
educational institution or system by the United States or a State or a
political subdivision thereof;
(2) A school accredited by a nationally recognized accrediting body;
or
(3) A secondary school operated by or as part of a school so
accredited.
(c) Other evidence. 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
[[Page 409]]
specified in the certification or recertification approval notice. The
certification must be recertified every two years and may be subject to
out-of-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
[[Page 410]]
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 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
[[Page 411]]
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 24-month
extension of OPT under 8 CFR 214.2(f)(10)(ii)(C):
(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 8 CFR 214.2(f)(10)(ii)(C)(6).
(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 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
[[Page 412]]
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 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
[[Page 413]]
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 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
[[Page 414]]
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) School officials may nominate as many DSOs in addition to
PDSOs as they determine necessary to adequately provide recommendations
to F and/or M students enrolled at the school regarding maintenance of
nonimmigrant status and to support timely and complete recordkeeping and
reporting to DHS, as required by this section. School officials must not
permit a DSO or PDSO nominee access to SEVIS until DHS approves the
nomination.
(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
[[Page 415]]
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 at www.govinfo.gov.
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 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).
[[Page 416]]
(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 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
[[Page 417]]
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 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
[[Page 418]]
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 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,
[[Page 419]]
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.
--Scientific Technician/Technologist \6\--Possession of (a) theoretical
knowledge of any of the following disciplines: agricultural
sciences, astronomy, biology,
[[Page 420]]
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.
(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
[[Page 421]]
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 (see Sec. 1.4), 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 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
[[Page 422]]
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 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.
[[Page 423]]
(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, 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
[[Page 424]]
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; 78 FR 18472, Mar. 27, 2013]
Sec. 214.7 Habitual residence in the territories and possessions
of the United States and 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, as long as the Act does not
apply to it.
(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, as long as the Act is not applicable to it) 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 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
[[Page 425]]
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, the American Virgin Islands, and the Commonwealth of the
Northern Mariana Islands. These rules do not apply to habitual residents
living in American Samoa as long as the Act does not extend to it. 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 (see Sec. 1.4) 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, as amended at 74 FR 55738, Oct. 28, 2009;
78 FR 18472, Mar. 27, 2013]
Sec. Sec. 214.8-214.10 [Reserved]
Sec. 214.11 Alien victims of severe forms of trafficking in persons.
(a) Definitions. Where applicable, USCIS will apply the definitions
provided in section 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 18 U.S.C. 77. As used in
this section the term:
Application for derivative T nonimmigrant status means a request by
a principal alien on behalf of an eligible family member for derivative
T-2, T-3, T-4, T-5, or T-6 nonimmigrant status on the form designated by
USCIS for that purpose.
Application for T nonimmigrant status means a request by a principal
alien for T-1 nonimmigrant status on the form designated by USCIS for
that purpose.
Bona fide determination means a USCIS determination that an
application for T-1 nonimmigrant status has
[[Page 426]]
been initially reviewed and determined that the application does not
appear to be fraudulent, is complete and properly filed, includes
completed fingerprint and background checks, and presents prima facie
evidence of eligibility for T-1 nonimmigrant status including
admissibility.
Child means a person described 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.
Derivative T nonimmigrant means an eligible family member who has
been granted T-2, T-3, T-4, T-5, or T-6 derivative status. A family
member outside of the United States is not a derivative T nonimmigrant
until he or she is granted a T-2, T-3, T-4, T-5, or T-6 visa by the
Department of State and is admitted to the United States in derivative T
nonimmigrant status.
Eligible family member means a family member who may be eligible for
derivative T nonimmigrant status based on his or her relationship to an
alien victim and, if required, upon a showing of a present danger or
retaliation; and:
(1) In the case of an alien victim who is 21 years of age or older,
means the spouse and children of such alien;
(2) In the case of an alien victim under 21 years of age, means the
spouse, children, unmarried siblings under 18 years of age, and parents
of such alien; and
(3) Regardless of the age of an alien victim, means any parent or
unmarried sibling under 18 years of age, or adult or minor child of a
derivative of such alien where the family member faces a present danger
of retaliation as a result of the alien victim's escape from a severe
form of trafficking or cooperation with law enforcement.
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 a condition of servitude induced by the abuse or
threatened abuse of legal process. 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 the 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.
Law Enforcement Agency (LEA) means a Federal, State, or local law
enforcement agency, prosecutor, judge, labor agency, children's
protective services agency, or other authority that has the
responsibility and authority for the detection, investigation, and/or
prosecution of severe forms of trafficking in persons. Federal LEAs
include but are not limited to the following: U.S. Attorneys' Offices,
Civil Rights Division, Criminal Division, U.S. Marshals Service, Federal
Bureau of Investigation (Department of Justice); U.S. Immigration and
Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP);
Diplomatic Security Service (Department of State); and Department of
Labor.
Law Enforcement Agency (LEA) endorsement means an official LEA
endorsement on the form designated by USCIS for such purpose.
Peonage means a status or condition of involuntary servitude based
upon real or alleged indebtedness.
Principal T nonimmigrant means the victim of a severe form of
trafficking in persons who has been granted T-1 nonimmigrant status.
[[Page 427]]
Reasonable request for assistance means a request made by an LEA to
a victim to assist in the investigation or prosecution of the acts of
trafficking in persons or the investigation of crime where acts of
trafficking are at least one central reason for the commission of that
crime. The ``reasonableness'' of the request depends on the totality of
the circumstances. Factors to consider include, but are not limited to:
General law enforcement and prosecutorial practices; the nature of the
victimization; the specific circumstances of the victim; severe trauma
(both mental and physical); access to support services; whether the
request would cause further trauma: The safety of the victim or the
victim's family; compliance with other requests and the extent of such
compliance; whether the request would yield essential information;
whether the information could be obtained without the victim's
compliance; whether an interpreter or attorney was present to help the
victim understand the request; cultural, religious, or moral objections
to the request; the time the victim had to comply with the request; and
the age and maturity of the victim.
Severe form 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 is under the age of 18
years; or the recruitment, harboring, transportation, provision, or
obtaining of a person for labor or services through the use of force,
fraud, or coercion for the purpose of subjection to involuntary
servitude, peonage, debt bondage, or slavery.
Sex trafficking means the recruitment, harboring, transportation,
provision, obtaining, patronizing, or soliciting of a person for the
purpose of a commercial sex act.
United States means the fifty States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin
Islands, Guam, and the Commonwealth of the Northern Mariana Islands.
Victim of a severe form of trafficking in persons (victim) means an
alien who is or has been subject to a severe form of trafficking in
persons.
(b) Eligibility for T-1 status. An alien is eligible for T-1
nonimmigrant status under section 101(a)(15)(T)(i) of the Act if he or
she demonstrates all of the following, subject to section 214(o) of the
Act:
(1) Victim. The alien is or has been a victim of a severe form of
trafficking in persons.
(2) Physical presence. The alien is physically present in the United
States or at a port-of-entry thereto, according to paragraph (g) of this
section.
(3) Compliance with any reasonable request for assistance. The alien
has complied with any reasonable request for assistance in a Federal,
State, or local investigation or prosecution of acts of trafficking in
persons, or the investigation of a crime where acts of trafficking in
persons are at least one central reason for the commission of that
crime, or meets one of the conditions described below.
(i) Exemption for minor victims. An alien under 18 years of age is
not required to comply with any reasonable request.
(ii) Exception for trauma. An alien who, due to physical or
psychological trauma, is unable to cooperate with a reasonable request
for assistance in the Federal, State, or local investigation or
prosecution of acts of trafficking in persons, or the investigation of a
crime where acts of trafficking in persons are at least one central
reason for the commission of that crime, is not required to comply with
such reasonable request.
(4) Hardship. The alien would suffer extreme hardship involving
unusual and severe harm upon removal.
(5) Prohibition against traffickers in persons. No alien will be
eligible to receive 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.
(c) Period of admission. (1) T-1 Principal. T-1 nonimmigrant status
may be approved for a period not to exceed 4 years, except as provided
in section 214(o)(7) of the Act.
(2) Derivative family members. A derivative family member who is
otherwise eligible for admission may be granted T-2, T-3, T-4, T-5, or
T-6 nonimmigrant
[[Page 428]]
status for an initial period that does not exceed the expiration date of
the initial period approved for the T-1 principal alien, except as
provided in section 214(o)(7) of the Act.
(3) Notice. At the time an alien is approved for T nonimmigrant
status or receives an extension of T nonimmigrant status, USCIS will
notify the alien when his or her T nonimmigrant status will expire.
USCIS also will notify the alien that the failure to apply for
adjustment of status to lawful permanent resident, as set forth in 8 CFR
245.23, will result in termination of the alien's T nonimmigrant status
in the United States at the end of the 4-year period or any extension.
(d) Application. USCIS has sole jurisdiction over all applications
for T nonimmigrant status.
(1) Filing an application. An alien seeking T-1 nonimmigrant status
must submit an application for T nonimmigrant status on the form
designated by USCIS in accordance with 8 CFR 103.2 and with the evidence
described in paragraph (d) of this section.
(i) Applicants in pending immigration proceedings. An alien in
removal proceedings under section 240 of the Act, or in exclusion or
deportation proceedings under former sections 236 or 242 of the Act (as
in effect prior to April 1, 1997), and who wishes to apply for T-1
nonimmigrant status must file an application for T nonimmigrant status
directly with USCIS. In its discretion, DHS may agree to the alien's
request to file with the immigration judge or the Board a joint motion
to administratively close or terminate proceedings without prejudice,
whichever is appropriate, while an application for T nonimmigrant status
is adjudicated by USCIS.
(ii) Applicants with final orders of removal, deportation, or
exclusion. An alien subject to a final order of removal, deportation, or
exclusion may file an application for T-1 nonimmigrant status directly
with USCIS. The filing of an application for T nonimmigrant status has
no effect on DHS authority or discretion to execute a final order of
removal, although the alien may request an administrative stay of
removal pursuant to 8 CFR 241.6(a). If the alien is in detention pending
execution of the final order, the period of detention (under the
standards of 8 CFR 241.4) reasonably necessary to bring about the
applicant's removal will be extended during the period the stay is in
effect. If USCIS subsequently determines under the procedures in
paragraph (e) of this section that the application is bona fide, DHS
will automatically grant an administrative stay of the final order of
removal, deportation, or exclusion, and the stay will remain in effect
until a final decision is made on the application for T nonimmigrant
status.
(iii) Minor applicants. When USCIS receives an application from a
minor principal alien under the age of 18, USCIS will notify the
Department of Health and Human Services to facilitate the provision of
interim assistance.
(2) Initial evidence. An application for T nonimmigrant status must
include:
(i) The applicant's signed statement describing the facts of the
victimization and compliance with any reasonable law enforcement request
(or a basis for why he or she has not complied) and any other
eligibility requirements in his or her own words;
(ii) Any credible evidence that the applicant would like USCIS to
consider supporting any of the eligibility requirements set out in
paragraphs (f), (g), (h) and (i) of this section; and
(iii) Inadmissible applicants. If an applicant is inadmissible based
on a ground that may be waived, he or she must also submit a request for
a waiver of inadmissibility on the form designated by USCIS with the fee
prescribed by 8 CFR 103.7(b)(1), in accordance with form instructions
and 8 CFR 212.16, and accompanied by supporting evidence.
(3) Evidence from law enforcement. An applicant may wish to submit
evidence from an LEA to help establish certain eligibility requirements
for T nonimmigrant status. Evidence from an LEA is optional and is not
given any special evidentiary weight.
(i) Law Enforcement Agency (LEA) endorsement. An LEA endorsement is
optional evidence that can be submitted to help demonstrate
victimization and/
[[Page 429]]
or compliance with reasonable requests. An LEA endorsement is not
mandatory and is not given any special evidentiary weight. An LEA
endorsement itself does not grant a benefit and is one form of possible
evidence but it does not lead to automatic approval of the application
for T nonimmigrant status by USCIS. If provided, the LEA endorsement
must be submitted on the form designated by USCIS in accordance with the
form instructions and must be signed by a supervising official
responsible for the detection, investigation or prosecution of severe
forms of trafficking in persons. The LEA endorsement must attach the
results of any name or database inquiries performed and describe the
victimization (including dates where known) and the cooperation of the
victim. USCIS, not the LEA, will determine if the applicant was or is a
victim of a severe form of trafficking in persons, and otherwise meets
the eligibility requirements for T nonimmigrant status. The decision
whether to complete an LEA endorsement is at the discretion of the LEA.
A formal investigation or prosecution is not required to complete an LEA
endorsement.
(ii) Disavowed or revoked LEA endorsement. An LEA may revoke or
disavow the contents of a previously submitted endorsement in writing.
After revocation or disavowal, the LEA endorsement will no longer be
considered as evidence.
(iii) Continued Presence. An applicant granted Continued Presence
under 28 CFR 110.35 should submit documentation of the grant of
Continued Presence. If Continued Presence has been revoked, it will no
longer be considered as evidence.
(iv) Other evidence. An applicant may also submit any evidence
regarding entry or admission into the United States or permission to
remain in the United States or note that such evidence is contained in
an applicant's immigration file.
(4) Biometric services. All applicants for T-1 nonimmigrant status
must submit biometrics in accordance with 8 CFR 103.16.
(5) Evidentiary standards and burden of proof. The burden is on the
applicant to demonstrate eligibility for T-1 nonimmigrant status. The
applicant may submit any credible evidence relating to a T nonimmigrant
application for consideration by USCIS. USCIS will conduct a de novo
review of all evidence and may investigate any aspect of the
application. Evidence previously submitted by the applicant for any
immigration benefit or relief may be used by USCIS in evaluating the
eligibility of an applicant for T-1 nonimmigrant status. USCIS will not
be bound by previous factual determinations made in connection with a
prior application or petition for any immigration benefit or relief.
USCIS will determine, in its sole discretion, the evidentiary value of
previously or concurrently submitted evidence.
(6) Interview. USCIS may require an applicant for T nonimmigrant
status to participate in a personal interview. The necessity and
location of the interview is determined solely by USCIS in accordance
with 8 CFR part 103. Every effort will be made to schedule the interview
in a location convenient to the applicant.
(7) Bona fide determination. Once an alien submits an application
for T-1 nonimmigrant status, USCIS will conduct an initial review to
determine if the application is a bona fide application for T-1
nonimmigrant status under the provisions of paragraph (e) of this
section.
(8) Decision. After completing its de novo review of the application
and evidence, USCIS will issue a decision approving or denying the
application in accordance with 8 CFR 103.3.
(9) Approval. If USCIS determines that the applicant is eligible for
T-1 nonimmigrant status, USCIS will approve the application and grant T-
1 nonimmigrant status, subject to the annual limitation as provided in
paragraph (j) of this section. USCIS will provide the applicant with
evidence of T-1 nonimmigrant status. USCIS may also notify other parties
and entities of the approval as it determines appropriate, including any
LEA providing an LEA endorsement and the Department of Health and Human
Service's Office of Refugee Resettlement, consistent with 8 U.S.C. 1367.
(i) Applicants with an outstanding order of removal, deportation or
exclusion
[[Page 430]]
issued by DHS. For an applicant who is the subject of an order of
removal, deportation or exclusion issued by DHS, the order will be
deemed cancelled by operation of law as of the date of the USCIS
approval of the application.
(ii) Applicants with an outstanding order of removal, deportation or
exclusion issued by the Department of Justice. An applicant who is the
subject of an order of removal, deportation or exclusion issued by an
immigration judge or the Board may seek cancellation of such order by
filing a motion to reopen and terminate removal proceedings with the
immigration judge or the Board. ICE may agree, as a matter of
discretion, to join such motion to overcome any applicable time and
numerical limitations of 8 CFR 1003.2 and 1003.23.
(10) Denial. Upon denial of an application, USCIS will notify the
applicant in accordance with 8 CFR 103.3. USCIS may also notify any LEA
providing an LEA endorsement and the Department of Health and Human
Service's Office of Refugee Resettlement. If an applicant appeals a
denial in accordance with 8 CFR 103.3, the denial will not become final
until the administrative appeal is decided.
(i) Effect on bona fide determination. Upon denial of an
application, any benefits derived from a bona fide determination will
automatically be revoked when the denial becomes final.
(ii) Applicants previously in removal proceedings. In the case of an
applicant who was previously in removal proceedings that were terminated
on the basis of a pending application for T nonimmigrant status, once a
denial becomes final, DHS may file a new Notice to Appear to place the
individual in removal proceedings again.
(iii) Applicants subject to an order of removal, deportation or
exclusion. In the case of an applicant who is subject to an order of
removal, deportation or exclusion that had been stayed due to the
pending application for T nonimmigrant status, the stay will be
automatically lifted as of the date the denial becomes final.
(11) Employment authorization. An alien granted T-1 nonimmigrant
status is authorized to work incident to status. There is no need for an
alien to file a separate form to be granted employment authorization.
USCIS will issue an initial Employment Authorization Document (EAD) to
such aliens, which will be valid for the duration of the alien's T-1
nonimmigrant status. An alien granted T-1 nonimmigrant status seeking to
replace an EAD that was lost, stolen, or destroyed must file an
application on the form designated by USCIS in accordance with form
instructions.
(e) Bona fide determination. Once an alien submits an application
for T-1 nonimmigrant status, USCIS will conduct an initial review to
determine if the application is a bona fide application for T-1
nonimmigrant status.
(1) Criteria. After initial review, an application will be
determined to be bona fide if:
(i) The application is properly filed and is complete;
(ii) The application does not appear to be fraudulent;
(iii) The application presents prima facie evidence of each
eligibility requirement for T-1 nonimmigrant status;
(iv) Biometrics and background checks are complete; and
(v) The applicant is:
(A) Admissible to the United States; or
(B) Inadmissible to the United States based on a ground that may be
waived (other than section 212(a)(4) of the Act); and either the
applicant has filed a waiver of a ground of inadmissibility described in
section 212(d)(13) of the Act concurrently with the application for T
nonimmigrant status, or USCIS has already granted a waiver with respect
to any ground of inadmissibility that applies to the applicant. USCIS
may request further evidence from the applicant. All waivers are
discretionary and require a request for waiver, on the form designated
by USCIS.
(2) USCIS determination. An application will not be treated as bona
fide until USCIS provides notice to the applicant.
(i) Incomplete or insufficient application. If an application is
incomplete or if an application is complete but does not present
sufficient evidence to establish prima facie eligibility for each
eligibility requirement for T-1 nonimmigrant status, USCIS may request
[[Page 431]]
additional information, issue a notice of intent to deny as provided in
8 CFR 103.2(b)(8), or may adjudicate the application on the basis of the
evidence presented under the procedures of this section.
(ii) Notice. Once USCIS determines an application is bona fide,
USCIS will notify the applicant. An application will be treated as a
bona fide application as of the date of the notice.
(3) Stay of final order of removal, deportation, or exclusion. If
USCIS determines that an application is bona fide it automatically stays
the execution of any final order of removal, deportation, or exclusion.
This administrative stay will remain in effect until any adverse
decision becomes final. The filing of an application for T nonimmigrant
status does not automatically stay the execution of a final order unless
USCIS has determined that the application is bona fide. Neither an
immigration judge nor the Board has jurisdiction to adjudicate an
application for a stay of removal, deportation, or exclusion on the
basis of the filing of an application for T nonimmigrant status.
(f) Victim of a severe form of trafficking in persons. To be
eligible for T-1 nonimmigrant status an applicant must meet the
definition of a victim of a severe form of trafficking in persons
described in paragraph (a) of this section.
(1) Evidence. The applicant must submit evidence that demonstrates
that he or she is or has been a victim of a severe form of trafficking
in persons. Except in instances of sex trafficking involving victims
under 18 years of age, severe forms of trafficking in persons must
involve both a particular means (force, fraud, or coercion) and a
particular end or a particular intended end (sex trafficking,
involuntary servitude, peonage, debt bondage, or slavery). If a victim
has not performed labor or services, or a commercial sex act, the victim
must establish that he or she was recruited, transported, harbored,
provided, or obtained for the purposes of subjection to sex trafficking,
involuntary servitude, peonage, debt bondage, or slavery, or patronized
or solicited for the purposes of subjection to sex trafficking. The
applicant may satisfy this requirement by submitting:
(i) An LEA endorsement as described in paragraph (d)(3) of this
section;
(ii) Documentation of a grant of Continued Presence under 28 CFR
1100.35; or
(iii) Any other evidence, including but not limited to, trial
transcripts, court documents, police reports, news articles, copies of
reimbursement forms for travel to and from court, and/or affidavits. In
the victim's statement prescribed by paragraph (d)(2) of this section,
the applicant should describe what the alien has done to report the
crime to an LEA and indicate whether criminal records relating to the
trafficking crime are available.
(2) If the Continued Presence has been revoked or the contents of
the LEA endorsement have been disavowed based on a determination that
the applicant is not or was not a victim of a severe form of trafficking
in persons, it will no longer be considered as evidence.
(g) Physical presence. To be eligible for T-1 nonimmigrant status an
applicant must be physically present in the United States, American
Samoa, or at a port-of-entry thereto on account of such trafficking.
(1) Applicability. The physical presence requirement requires USCIS
to consider the alien's presence in the United States at the time of
application. The requirement reaches an alien who:
(i) Is present because he or she is currently being subjected to a
severe form of trafficking in persons;
(ii) Was liberated from a severe form of trafficking in persons by
an LEA;
(iii) Escaped a severe form of trafficking in persons before an LEA
was involved, subject to paragraph (g)(2) of this section;
(iv) Was subject to a severe form 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; or
(v) Is present on account of the alien having been allowed entry
into the United States for participation in investigative or judicial
processes associated with an act or perpetrator of trafficking.
[[Page 432]]
(2) Departure from the United States. An alien who has voluntarily
departed from (or has been removed from) the United States at any time
after the act of a severe form of trafficking in persons is deemed not
to be present in the United States as a result of such trafficking in
persons unless:
(i) The alien's reentry into the United States was the result of the
continued victimization of the alien;
(ii) The alien is a victim of a new incident of a severe form of
trafficking in persons; or
(iii) The alien has been allowed reentry into the United States for
participation in investigative or judicial processes associated with an
act or perpetrator of trafficking, described in paragraph (g)(4) of this
section.
(3) Presence for participation in investigative or judicial
processes. An alien who was allowed initial entry or reentry into the
United States for participation in investigative or judicial processes
associated with an act or perpetrator of trafficking will be deemed to
be physically present in the United States on account of trafficking in
persons, regardless of where such trafficking occurred. To satisfy this
section, an alien must submit documentation to show valid entry into the
United States and evidence that this valid entry is for participation in
investigative or judicial processes associated with an act or
perpetrator of trafficking.
(4) Evidence. The applicant must submit evidence that demonstrates
that his or her physical presence in the United States or at a port-of-
entry thereto, is on account of trafficking in persons, including
physical presence on account of the alien having been allowed entry into
the United States for participation in investigative or judicial
processes associated with an act or a perpetrator of trafficking. USCIS
will consider all evidence presented to determine the physical presence
requirement, including the alien's responses to questions on the
application for T nonimmigrant status 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. The applicant may satisfy this requirement by
submitting:
(i) An LEA endorsement, described in paragraph (d)(3) of this
section;
(ii) Documentation of a grant of Continued Presence under 28 CFR
1100.35;
(iii) Any other documentation of entry into the United States or
permission to remain in the United States, such as parole under section
212(d)(5) of the Act, or a notation that such evidence is contained in
the applicant's immigration file; or
(iv) Any other credible evidence, including a personal statement
from the applicant, stating the date and place (if known) and the manner
and purpose (if known) for which the applicant entered the United States
and demonstrating that the applicant is now present on account of the
trafficking.
(h) Compliance with any reasonable request for assistance in an
investigation or prosecution. To be eligible for T-1 nonimmigrant
status, an applicant must have complied with any reasonable request for
assistance from an LEA in an investigation or prosecution of acts of
trafficking or the investigation of a crime where acts of trafficking
are at least one central reason for the commission of that crime, unless
the applicant meets an exemption described in paragraph (h)(4) of this
section.
(1) Applicability. An applicant must have had, at a minimum, contact
with an LEA regarding the acts of a severe form of trafficking in
persons. An applicant who has never had contact with an LEA regarding
the acts of a severe form of trafficking in persons will not be eligible
for T-1 nonimmigrant status, unless he or she meets an exemption
described in paragraph (h)(4) of this section.
(2) Unreasonable requests. An applicant need only show compliance
with reasonable requests made by an LEA for assistance in the
investigation or prosecution of the acts of trafficking in persons. The
reasonableness of the request depends on the totality of the
circumstances. Factors to consider include, but are not limited to:
(i) General law enforcement and prosecutorial practices;
(ii) The nature of the victimization;
[[Page 433]]
(iii) The specific circumstances of the victim;
(iv) Severity of trauma suffered (both mental and physical) or
whether the request would cause further trauma;
(v) Access to support services;
(vi) The safety of the victim or the victim's family;
(vii) Compliance with previous requests and the extent of such
compliance;
(viii) Whether the request would yield essential information;
(ix) Whether the information could be obtained without the victim's
compliance;
(x) Whether an interpreter or attorney was present to help the
victim understand the request;
(xi) Cultural, religious, or moral objections to the request;
(xii) The time the victim had to comply with the request; and
(xiii) The age and maturity of the victim.
(3) Evidence. An applicant must submit evidence that demonstrates
that he or she has complied with any reasonable request for assistance
in a Federal, State, or local investigation or prosecution of
trafficking in persons, or a crime where trafficking in persons is at
least one central reason for the commission of that crime. In the
alternative, an applicant can submit evidence to demonstrate that he or
she should be exempt under paragraph (h)(4) of this section. If USCIS
has any question about whether the applicant has complied with a
reasonable request for assistance, USCIS may contact the LEA. The
applicant may satisfy this requirement by submitting any of the
following:
(i) An LEA endorsement as described in paragraph (d)(3) of this
section;
(ii) Documentation of a grant of Continued Presence under 28 CFR
1100.35; or
(iii) Any other evidence, including affidavits of witnesses. In the
victim's statement prescribed by paragraph (d)(2) of this section, the
applicant should 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, why the crime
was not previously reported.
(4) An applicant who has not had contact with an LEA or who has not
complied with any reasonable request may be exempt from the requirement
to comply with any reasonable request for assistance in an investigation
or prosecution if either of the following two circumstances applies:
(i) Trauma. The applicant is unable to cooperate with a reasonable
request for assistance in the Federal, State, or local investigation or
prosecution of acts of trafficking in persons due to physical or
psychological trauma. An applicant must submit evidence of the trauma.
An applicant may satisfy this by submitting an affirmative statement
describing the trauma and any other credible evidence. ``Any other
credible evidence'' includes, for instance, a signed statement from a
qualified professional, such as a medical professional, social worker,
or victim advocate, who attests to the victim's mental state, and
medical, psychological, or other records which are relevant to the
trauma. USCIS reserves the authority and discretion to contact the LEA
involved in the case, if appropriate; or
(ii) Age. The applicant is under 18 years of age. An applicant under
18 years of age is exempt from the requirement to comply with any
reasonable request for assistance in an investigation or prosecution,
but he or she must submit evidence of age. Applicants should include,
where available, an official copy of the alien's birth certificate, a
passport, or a certified medical opinion. Other evidence regarding the
age of the applicant may be submitted in accordance with 8 CFR
103.2(b)(2)(i).
(i) Extreme hardship involving unusual and severe harm. To be
eligible for T-1 nonimmigrant status, 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
[[Page 434]]
higher standard than extreme hardship as described in 8 CFR 240.58. A
finding of extreme hardship involving unusual and severe harm may not be
based solely upon current or future economic detriment, or the lack of,
or disruption to, social or economic opportunities. The determination of
extreme hardship is made solely by USCIS.
(2) Factors. Factors that may be considered in evaluating whether
removal would result in extreme hardship involving unusual and severe
harm should include both traditional extreme hardship factors and
factors associated with having been a victim of a severe form of
trafficking in persons. These factors include, but are not limited to:
(i) The age, maturity, and personal circumstances of the applicant;
(ii) Any physical or psychological issues the applicant has which
necessitates medical or psychological care not reasonably available in
the foreign country;
(iii) The nature and extent of the physical and psychological
consequences of having been a victim of a severe form 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
a severe form of trafficking in persons or other crimes perpetrated
against the applicant, including criminal and civil redress for acts of
trafficking in persons, criminal prosecution, restitution, and
protection;
(v) The reasonable expectation that the existence of laws, social
practices, or customs in the foreign country to which the applicant
would be returned would penalize the applicant severely for having been
the victim of a severe form of trafficking in persons;
(vi) The likelihood of re-victimization and the need, ability, and
willingness of foreign authorities to protect the applicant;
(vii) The likelihood of harm that the trafficker in persons or
others acting on behalf of the trafficker in the foreign country would
cause the applicant; or
(viii) The likelihood that the applicant's individual safety would
be threatened by the existence of civil unrest or armed conflict.
(3) Evidence. An applicant must submit evidence that demonstrates he
or she would suffer extreme hardship involving unusual and severe harm
if removed from the United States. An applicant is encouraged to
describe and document all factors that may be relevant to the case, as
there is no guarantee that a particular reason(s) will satisfy the
requirement. Hardship to persons other than the alien victim cannot be
considered in determining whether an applicant would suffer the
requisite hardship. The applicant may satisfy this requirement by
submitting any credible evidence regarding the nature and scope of the
hardship if the applicant was removed from the United States, including
evidence of hardship arising from circumstances surrounding the
victimization and any other circumstances. An applicant may submit a
personal statement or other evidence, including evidence from relevant
country condition reports and any other public or private sources of
information.
(j) Annual cap. In accordance with section 214(o)(2) of the Act, DHS
may not grant T-1 nonimmigrant status to more than 5,000 aliens in any
fiscal year.
(1) Waiting list. All eligible applicants who, due solely to the
cap, are not granted T-1 nonimmigrant status will be placed on a waiting
list and will receive 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 next fiscal year, USCIS will issue a number to each application on
the waiting list, in the order of the highest priority, providing the
applicant remains admissible and eligible for T nonimmigrant status.
After T-1 nonimmigrant status has been issued to qualifying applicants
on the waiting list, any remaining T-1 nonimmigrant numbers for that
fiscal year will be issued to new qualifying applicants in the order
that the applications were properly filed.
(2) Unlawful presence. While an applicant for T nonimmigrant status
who was granted deferred action or parole is
[[Page 435]]
on the waiting list, the applicant will not accrue unlawful presence
under section 212(a)(9)(B) of the Act while maintaining parole or
deferred action.
(3) Removal from the waiting list. An applicant may be removed from
the waiting list and the deferred action or parole may be terminated
consistent with law and policy. Applicants on the waiting list must
remain admissible to the United States and otherwise eligible for T
nonimmigrant status. If at any time prior to final adjudication USCIS
receives information that an applicant is no longer eligible for
nonimmigrant status, the applicant may be removed from the waiting list
and the deferred action or parole may be terminated. USCIS will provide
notice to the applicant of that decision.
(k) Application for eligible family members. (1) Eligibility.
Subject to section 214(o) of the Act, an alien who has applied for or
has been granted T-1 nonimmigrant status (principal alien) may apply for
the admission of an eligible family member, who is otherwise admissible
to the United States, in derivative T nonimmigrant status if
accompanying or following to join the principal alien.
(i) Principal alien 21 years of age or older. For a principal alien
who is 21 years of age or over, eligible family member means a T-2
(spouse) or T-3 (child).
(ii) Principal alien under 21 years of age. For a principal alien
who is under 21 years of age, eligible family member means a T-2
(spouse), T-3 (child), T-4 (parent), or T-5 (unmarried sibling under the
age of 18).
(iii) Family member facing danger of retaliation. Regardless of the
age of the principal alien, if the eligible family member faces a
present danger of retaliation as a result of the principal alien's
escape from the severe form of trafficking or cooperation with law
enforcement, in consultation with the law enforcement officer
investigating a severe form of trafficking, eligible family member means
a T-4 (parent), T-5 (unmarried sibling under the age of 18), or T-6
(adult or minor child of a derivative of the principal alien).
(iv) Admission requirements. The principal applicant must
demonstrate that the alien for whom derivative T nonimmigrant status is
being sought is an eligible family member of the T-1 principal alien, as
defined in paragraph (a) of this section, and is otherwise eligible for
that status.
(2) Application. A T-1 principal alien may submit an application for
derivative T nonimmigrant status on the form designated by USCIS in
accordance with the form instructions. The application for derivative T
nonimmigrant status for an eligible family member may be filed with the
T-1 application, or separately. Derivative T nonimmigrant status is
dependent on the principal alien having been granted T-1 nonimmigrant
status and the principal alien maintaining T-1 nonimmigrant status. If a
principal alien granted T-1 nonimmigrant status cannot maintain status
due to his or her death, the provisions of section 204(l) of the Act may
apply.
(i) Eligible family members in pending immigration proceedings. If
an eligible family member is in removal proceedings under section 240 of
the Act, or in exclusion or deportation proceedings under former
sections 236 or 242 of the Act (as in effect prior to April 1, 1997),
the principal alien must file an application for derivative T
nonimmigrant status directly with USCIS. In its discretion and at the
request of the eligible family member, ICE may agree to file a joint
motion to administratively close or terminate proceedings without
prejudice with the immigration judge or the Board, whichever is
appropriate, while USCIS adjudicates an application for derivative T
nonimmigrant status.
(ii) Eligible family members with final orders of removal,
deportation, or exclusion. If an eligible family member is the subject
of a final order of removal, deportation, or exclusion, the principal
alien may file an application for derivative T nonimmigrant status
directly with USCIS. The filing of an application for derivative T
nonimmigrant status has no effect on ICE's authority or discretion to
execute a final order, although the alien may file a request for an
administrative stay of removal pursuant to 8 CFR 241.6(a). If the
eligible family member is in detention pending execution of the final
order, the period of detention (under the
[[Page 436]]
standards of 8 CFR 241.4) will be extended while a stay is in effect for
the period reasonably necessary to bring about the applicant's removal.
(3) Required supporting evidence. In addition to the form, an
application for derivative T nonimmigrant status must include the
following:
(i) Biometrics submitted in accordance with 8 CFR 103.16;
(ii) Evidence demonstrating the relationship of an eligible family
member, as provided in paragraph (k)(4) of this section;
(iii) In the case of an alien seeking derivative T nonimmigrant
status on the basis of danger of retaliation, evidence demonstrating
this danger as provided in paragraph (k)(6) of this section.
(iv) Inadmissible applicants. If an eligible family member is
inadmissible based on a ground that may be waived, a request for a
waiver of inadmissibility under section 212(d)(13) or section 212(d)(3)
of the Act must be filed in accordance with 8 CFR 212.16 and submitted
with the completed application package.
(4) Relationship. Except as described in paragraphs (k)(5) of this
section, the family relationship must exist at the time:
(i) The application for the T-1 nonimmigrant status is filed;
(ii) The application for the T-1 nonimmigrant status is adjudicated;
(iii) The application for derivative T nonimmigrant status is filed;
(iv) The application for derivative T nonimmigrant status is
adjudicated; and
(v) The eligible family member is admitted to the United States if
residing abroad.
(5) Relationship and age-out protections. (i) Protection for new
child of a principal alien. If the T-1 principal alien proves that he or
she had a child after filing the application for T-1 nonimmigrant
status, the child will be deemed to be an eligible family member
eligible to accompany or follow to join the T-1 principal alien.
(ii) Age-out protection for eligible family members of a principal
alien under 21 years of age. If the T-1 principal alien was under 21
years of age when he or she filed for T-1 nonimmigrant status, USCIS
will continue to consider a parent or unmarried sibling as an eligible
family member. A parent or unmarried sibling will remain eligible even
if the principal alien turns 21 years of age before adjudication of the
T-1 application. An unmarried sibling will remain eligible even if the
unmarried sibling is over 18 years of age at the time of adjudication of
the T-1 application, so long as the unmarried sibling was under 18 years
of age at the time of the T-1 application. The age of an unmarried
sibling when USCIS adjudicates the T-1 application, when the unmarried
sibling files the derivative application, when USCIS adjudicates the
derivative application, or when the unmarried sibling is admitted to the
United States does not affect eligibility.
(iii) Age-out protection for child of a principal alien 21 years of
age or older. If a T-1 principal alien was 21 years of age or older when
he or she filed for T-1 nonimmigrant status, USCIS will continue to
consider a child as an eligible family member if the child was under 21
years of age at the time the principal filed for T-1 nonimmigrant
status. The child will remain eligible even if the child is over 21
years of age at the time of adjudication of the T-1 application. The age
of the child when USCIS adjudicates the T-1 application, when the child
files the derivative application, when USCIS adjudicates the derivative
application, or when the child is admitted to the United States does not
affect eligibility.
(iv) Marriage of an eligible family member. An eligible family
member seeking T-3 or T-5 status must be unmarried when the principal
files an application for T-1 status, when USCIS adjudicates the T-1
application, when the eligible family member files for T-3 or T-5
status, when USCIS adjudicates the T-3 or T-5 application, and when the
family member is admitted to the United States. If a T-1 marries
subsequent to filing the application for T-1 status, USCIS will not
consider the spouse eligible as a T-2 eligible family member.
(6) Evidence demonstrating a present danger of retaliation. An alien
seeking derivative T nonimmigrant status on the basis of facing a
present danger of
[[Page 437]]
retaliation as a result of the T-1 victim's escape from a severe form of
trafficking or cooperation with law enforcement, must demonstrate the
basis of this danger. USCIS may contact the LEA involved, if
appropriate. An applicant may satisfy this requirement by submitting:
(i) Documentation of a previous grant of advance parole to an
eligible family member;
(ii) A signed statement from a law enforcement official describing
the danger of retaliation;
(iii) An affirmative statement from the applicant describing the
danger the family member faces and how the danger is linked to the
victim's escape or cooperation with law enforcement (ordinarily an
applicant's statement alone is not sufficient to prove present danger);
and/or
(iv) Any other credible evidence, including trial transcripts, court
documents, police reports, news articles, copies of reimbursement forms
for travel to and from court, and affidavits from other witnesses.
(7) Biometric collection; evidentiary standards. The provisions for
biometric capture and evidentiary standards described in paragraph
(d)(2) and (d)(4) of this section apply to an eligible family member's
application for derivative T nonimmigrant status.
(8) Review and decision. USCIS will review the application and issue
a decision in accordance with paragraph (d) of this section.
(9) Derivative approvals. Aliens whose applications for derivative T
nonimmigrant status are approved are not subject to the annual cap
described in paragraph (j) of this section. USCIS will not approve
applications for derivative T nonimmigrant status until USCIS has
approved T-1 nonimmigrant status to the related principal alien.
(i) Approvals for eligible family members in the United States. When
USCIS approves an application for derivative T nonimmigrant status for
an eligible family member in the United States, USCIS will concurrently
approve derivative T nonimmigrant status. USCIS will notify the T-1
principal alien of such approval and provide evidence of derivative T
nonimmigrant status to the derivative.
(ii) Approvals for eligible family members outside the United
States. When USCIS approves an application for an eligible family member
outside the United States, USCIS will notify the T-1 principal alien of
such approval and provide the necessary documentation to the Department
of State for consideration of visa issuance.
(10) Employment authorization. An alien granted derivative T
nonimmigrant status may apply for employment authorization by filing an
application on the form designated by USCIS with the fee prescribed in 8
CFR 103.7(b)(1) in accordance with form instructions. For derivatives in
the United States, the application may be filed concurrently with the
application for derivative T nonimmigrant status or at any later time.
For derivatives outside the United States, an application for employment
authorization may only be filed after admission to the United States in
T nonimmigrant status. If the application for employment authorization
is approved, the derivative alien will be granted employment
authorization pursuant to 8 CFR 274a.12(c)(25) for the period remaining
in derivative T nonimmigrant status.
(l) Extension of T nonimmigrant status--(1) Eligibility. USCIS may
grant extensions of T-1 nonimmigrant status beyond 4 years from the date
of approval in 1-year periods from the date the T-1 nonimmigrant status
ends if:
(i) An LEA investigating or prosecuting activity related 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;
(ii) The Secretary of Homeland Security determines that an extension
is warranted due to exceptional circumstances; or
(iii) The alien has a pending application for adjustment of status
to that of a lawful permanent resident.
(2) Application for a discretionary extension of status. Upon
application, USCIS may extend T-1 nonimmigrant status based on law
enforcement need or exceptional circumstances. A T-1 nonimmigrant may
apply for an extension by submitting the form designated by USCIS with
the prescribed fee and in accordance with form instructions.
[[Page 438]]
A T-1 nonimmigrant should indicate on the application whether USCIS
should apply the extension to any family member holding derivative T
nonimmigrant status.
(3) Timely filing. An alien should file the application to extend
nonimmigrant status before the expiration of T-1 nonimmigrant status. If
T-1 nonimmigrant status has expired, the applicant must explain in
writing the reason for the untimely filing. USCIS may exercise its
discretion to approve an untimely filed application for extension of T
nonimmigrant status.
(4) Evidence. In addition to the application, a T-1 nonimmigrant
must include evidence to support why USCIS should grant an extension of
T nonimmigrant status. The nonimmigrant bears the burden of establishing
eligibility for an extension of status.
(5) Evidence of law enforcement need. An applicant may demonstrate
law enforcement need by submitting evidence that comes directly from an
LEA, including:
(i) A new LEA endorsement;
(ii) Evidence from a law enforcement official, prosecutor, judge, or
other authority who can investigate or prosecute human trafficking
activity, such as a letter on the agency's letterhead, email, or fax; or
(iii) Any other credible evidence.
(6) Evidence of exceptional circumstances. An applicant may
demonstrate exceptional circumstances by submitting:
(i) The applicant's affirmative statement; or
(ii) Any other credible evidence, including medical records, police
or court records, news articles, correspondence with an embassy or
consulate, and affidavits of witnesses.
(7) Mandatory extensions of status for adjustment of status
applicants. USCIS will automatically extend T-1 nonimmigrant status when
a T nonimmigrant properly files an application for adjustment of status
in accordance with 8 CFR 245.23. No separate application for extension
of T nonimmigrant status, or supporting evidence, is required.
(m) Revocation of approved T nonimmigrant status--(1) Automatic
revocation of derivative status. An approved application for derivative
T nonimmigrant status will be revoked automatically if the beneficiary
of the approved derivative application notifies USCIS that he or she
will not apply for admission to the United States.
(2) Revocation on notice/grounds for revocation. USCIS may revoke an
approved application for T nonimmigrant status following issuance of a
notice of intent to revoke. USCIS may revoke an approved application for
T nonimmigrant status based on one or more of the following reasons:
(i) The approval of the application violated the requirements of
section 101(a)(15)(T) of the Act or 8 CFR 214.11 or involved error in
preparation, procedure, or adjudication that affects the outcome;
(ii) In the case of a T-2 spouse, the alien's divorce from the T-1
principal alien has become final;
(iii) 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 notifies USCIS that the alien has refused to comply with
reasonable requests to assist with the investigation or prosecution of
the trafficking in persons and provides USCIS with a detailed
explanation in writing; or
(iv) The LEA that signed the LEA endorsement withdraws it or
disavows its contents and notifies USCIS and provides a detailed
explanation of its reasoning in writing.
(3) Procedures. Procedures for revocation and appeal follow 8 CFR
103.3. If USCIS revokes approval of the previously granted T
nonimmigrant status application, USCIS may notify the LEA who signed the
LEA endorsement, any consular officer having jurisdiction over the
applicant, or the Office of Refugee Resettlement of the Department of
Health and Human Services.
(4) Effect of revocation. Revocation of a principal alien's
application for T-1 nonimmigrant status will result in termination of T-
1 status for the principal alien and, consequently, the automatic
termination of the derivative T nonimmigrant status for all derivatives.
If a derivative application is pending at the time of revocation, it
will be denied. Revocation of an approved application for T-1
nonimmigrant status or
[[Page 439]]
an application for derivative T nonimmigrant status also revokes any
waiver of inadmissibility granted in conjunction with such application.
The revocation of an alien's T-1 status will have no effect on the
annual cap described in paragraph (j) of this section.
(n) Removal proceedings. Nothing in this section prohibits DHS from
instituting removal proceedings for conduct committed after admission,
or for conduct or a condition that was not disclosed prior to the
granting of T nonimmigrant status, including misrepresentations of
material facts in the application for T-1 nonimmigrant status or in an
application for derivative T nonimmigrant status, or after revocation of
T nonimmigrant status.
(o) USCIS employee referral. Any USCIS employee who, while carrying
out his or her official duties, comes into contact with an alien
believed to be a victim of a severe form of trafficking in persons and
is not already working with an LEA should consult, as necessary, with
the ICE officials responsible for victim protection, trafficking
investigations and prevention, and deterrence. The ICE 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, USCIS may advise the
alien that he or she can submit an application for T nonimmigrant status
and seek any other benefit or protection for which he or she may be
eligible, provided doing so would not compromise the alien's safety.
(p) Restrictions on use and disclosure of information relating to
applicants for T nonimmigrant classification. (1) 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
application for T nonimmigrant status is prohibited unless the
disclosure is made in accordance with an exception described in 8 U.S.C.
1367(b).
(2) Information protected under 8 U.S.C. 1367(a)(2) may be disclosed
to federal prosecutors to comply with constitutional obligations to
provide statements by witnesses and certain other documents to
defendants in pending federal criminal proceedings.
(3) 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.
(4) DHS officials are prohibited from making adverse determinations
of admissibility or deportability based on information obtained solely
from the trafficker, unless the alien has been convicted of a crime or
crimes listed in section 237(a)(2) of the Act.
[81 FR 92304, Dec. 19, 2016]
Sec. 214.12 Preliminary enrollment of schools in the Student
and Exchange Visitor Information System (SEVIS).
(a) Private elementary and private secondary schools, public high
schools, post-secondary schools, language schools, and vocational
schools are eligible for preliminary enrollment in Student and Exchange
Visitor Information System (SEVIS), beginning on or after July 1, 2002,
but only if the school is accredited by an accrediting agency recognized
by the United States Department of Education, CAPE, or AACS, or in the
case of a public high school, the school provides certification from the
appropriate public official that the school meets the requirements of
the state or local public educational system and has been continuously
approved by the Service for a minimum of three years, as of July 1,
2002, for the admission of F or M nonimmigrant students. A school may
establish that it is accredited by showing that it has been designated
as an eligible school under Title IV of the Higher Education Act of
1965.
(b) Preliminary enrollment in SEVIS is optional for eligible
schools. The preliminary enrollment period will be open from July 1,
2002, through August 16, 2002, or, if later, until the Service begins
the SEVIS full scale certification process. The process for eligible
schools to apply for preliminary enrollment through the Internet is as
follows:
[[Page 440]]
(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:
(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
[[Page 441]]
(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.
(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:
[[Page 442]]
(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:
(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
[[Page 443]]
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
FR 55704, 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, 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
[[Page 444]]
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, 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:
(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.
[[Page 445]]
(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 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
[[Page 446]]
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 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
[[Page 447]]
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 (see Sec. 1.4), ``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. 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
[[Page 448]]
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:
(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;
[[Page 449]]
(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 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
[[Page 450]]
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 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
[[Page 451]]
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 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
[[Page 452]]
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;
74 FR 55738, Oct. 28, 2009; 78 FR 18472, Mar. 27, 2013]
Sec. 214.15 Certain spouses and children of lawful permanent residents.
(a) Aliens abroad. Under section 101(a)(15)(v) of the Act, certain
eligible spouses and children of lawful permanent residents may apply
for a V nonimmigrant visa at a consular office abroad and be admitted to
the United States in V-1 (spouse), V-2 (child), or V-3 (dependent child
of the spouse or child who is accompanying or following to join the
principal beneficiary) nonimmigrant status to await the approval of:
(1) A relative visa petition;
(2) The availability of an immigrant visa number; or
(3) Lawful permanent resident (LPR) status through adjustment of
status or an immigrant visa.
(b) Aliens already in the United States. Eligible aliens already in
the United States may apply to the Service to obtain V nonimmigrant
status for the same purpose. Aliens in the United States in V
nonimmigrant status are entitled to reside in the United States as V
nonimmigrants and obtain employment authorization.
(c) Eligibility. Subject to section 214(o) of the Act, an alien who
is the
[[Page 453]]
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 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).
[[Page 454]]
(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 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
[[Page 455]]
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 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]
Sec. 214.16 Transition Procedures for OPT Applications
for Employment Authorization
(a) STEM OPT Applications for Employment Authorization that are
filed prior to, and remain pending on May 10, 2016. (1) On or after May
10, 2016, USCIS will issue Requests for Evidence (RFEs) to students
whose applications for a 17-month OPT extension under the rule
[[Page 456]]
issued at 73 FR 18944 are still pending. The RFEs will request
documentation that will establish that the student is eligible for a 24-
month OPT extension under 8 CFR 214.2(f)(10)(ii)(C), including a Form I-
20 endorsed on or after May 10, 2016, indicating that the Designated
School Official (DSO) recommends the student for a 24-month OPT
extension and that the requirements for such an extension have been met.
Submission of the Form I-20 in response to an RFE issued under 8 CFR
214.16(a) will be regarded as fulfilling the requirement in 8 CFR
214.2(f)(11)(i) that a student must initiate the OPT application process
by requesting a recommendation for OPT by his or her DSO.
(2) Forms I-765 that are filed prior to, and remain pending on, May
10, 2016, will be regarded as being covered by 8 CFR 214.2(f)(11)(i)(C)
and 8 CFR 274a.12(b)(6)(iv).
(b) STEM OPT Applications for Employment Authorization that are
filed and approved before May 10, 2016. A student whose Form I-765 is
filed and approved prior to May 10, 2016 will be issued an Employment
Authorization Document, Form I-766, that is valid for 17 months even if
the student requested a 24-month OPT extension.
(c) Students with 17-Month STEM OPT employment authorization. (1)
Subject to paragraph (c)(3) of this section, any Employment
Authorization Document, Form I-766, indicating a 17-month OPT extension
under the rule issued at 73 FR 18944 that has been issued and is valid
prior to May 10, 2016 remains valid until such Form I-766 expires or is
terminated or revoked under 8 CFR 274a.14, and the student, the
student's employer, and the student's DSO must continue to abide by all
the terms and conditions that were in effect when the Form I-766 was
issued.
(2) Subject to the requirements in paragraphs (c)(2)(i) through
(iii) of this section, F-1 students with a 17-month OPT extension under
the rule issued at 73 FR 18944 are eligible to apply for an additional
7-month period of OPT. The F-1 student applying for the additional 7-
month period of OPT must:
(i) Properly file a Form I-765, with USCIS on or after May 10, 2016
and on or before August 8, 2016, and within 60 days of the date the DSO
enters the recommendation for the 24-month OPT extension into the
student's SEVIS record, with applicable fees and supporting
documentation, as described in the form instructions;
(ii) Have at least 150 calendar days remaining prior to the end of
his or her 17-month OPT extension at the time the Form I-765, is
properly filed; and
(iii) Meet all the requirements for the 24-month OPT extension as
described in 8 CFR 214.2(f)(10)(ii)(C), except the requirement that the
student must be in a valid period of post-completion OPT authorized
under 8 CFR 274a.12(c)(3)(i)(B).
(3) Students on a 17-month OPT extension who apply for and are
granted an additional 7-month period of OPT shall be considered to be in
a period of 24-month OPT extension, as authorized under 8 CFR
214.2(f)(10)(ii)(C). Upon proper filing of the application for the
additional 7-month OPT extension, the student, the student's employer as
identified in the student's completed Form I-983 and the student's DSO
are subject to all requirements of the 24-month OPT extension period,
except for the 150-day unemployment limit described in 8 CFR
214.2(f)(10)(ii)(E), which applies to students only upon approval of the
additional 7-month OPT extension. Subsequent to any denial of the
application for the additional 7-month extension, the student, the
student's employer, and the student's DSO must abide by all the terms
and conditions that were in effect when the 17-month OPT extension was
issued throughout the remaining validity period of the 17-month OPT
extension.
[81 FR 13121, Mar. 11, 2016]
Effective Date Note: At 81 FR 13121, Mar. 11, 2016, Sec. 214.16 was
added, effective May 10, 2016, through May 10, 2019.
PART 215_CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES;
ELECTRONIC VISA UPDATE SYSTEM--Table of Contents
Subpart A_Controls of Aliens Departing from the United States
Sec.
215.1 Definitions.
[[Page 457]]
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.
Subpart B_Electronic Visa Update System
215.21 Purpose.
215.22 Applicability.
215.23 Definitions.
215.24 Electronic Visa Update System (EVUS) requirements.
Authority: 6 U.S.C. 202(4), 236; 8 U.S.C. 1101, 1103, 1104, 1184,
1185 (pursuant to Executive Order 13323 (Dec. 30, 2003)), 1365a note,
1379, 1731-32; and 8 CFR part 2.
Source: 45 FR 65516, Oct. 3, 1980, unless otherwise noted.
Subpart A_Controls of Aliens Departing from the United States
Sec. 215.1 Definitions.
For the purpose of this subpart:
(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, Puerto Rico, the Virgin Islands, Guam, American Samoa, Swains
Island, the Commonwealth of the Northern Mariana Islands (beginning
November 28, 2009), 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) American Samoa,
(8) Swains Island, or
(9) The Commonwealth of the Northern Mariana Islands (beginning
November 28, 2009).
(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,
[[Page 458]]
the Commonwealth of the Northern Mariana Islands (beginning November 28,
2009), or the Virgin Islands, designated as a port of entry by the
Secretary, 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, or Swains Island,
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.
[45 FR 65516, Oct. 3, 1980, as amended at 74 FR 2836, Jan. 16, 2009; 74
FR 25388, May 28, 2009; 81 FR 72491, Oct. 20, 2016]
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 459]]
(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 460]]
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 461]]
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 462]]
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, 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 (see Sec. 1.4)
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.
(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
[[Page 463]]
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. 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; 73 FR 77491, Dec. 19, 2008; 78 FR 18472, Mar.
27, 2013]
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.
[73 FR 78130, Dec. 19, 2008]
Subpart B_Electronic Visa Update System
Source: 81 FR 72491, Oct. 20, 2016, unless otherwise noted.
Sec. 215.21 Purpose.
The purpose of this subpart is to establish an electronic visa
update system for nonimmigrant aliens who hold a passport issued by an
identified country containing a U.S. nonimmigrant visa of a designated
category.
Sec. 215.22 Applicability.
This subpart is applicable to nonimmigrant aliens who hold a
passport issued by an identified country containing a U.S. nonimmigrant
visa of a designated category. The Secretary, in the Secretary's
discretion and in consultation with the Secretary of State, may identify
countries and designate nonimmigrant visa categories for purposes of
this subpart. Notice of the identified countries and designated
nonimmigrant visa categories will be published in the Federal Register.
Sec. 215.23 Definitions.
The following definitions apply for purposes of this subpart.
(a) Covered alien. A covered alien is a nonimmigrant alien who holds
a passport issued by an EVUS country (as defined in paragraph (c) of
this section) containing a U.S. nonimmigrant visa of a designated
category.
(b) Electronic Visa Update System (EVUS). The Electronic Visa Update
System (EVUS) is the electronic system used by a covered alien to
provide required information to DHS after the receipt of his or her visa
of a designated category.
(c) EVUS country. An EVUS country is a country that has been
identified for inclusion in EVUS, through publication of a notice in the
Federal Register, by the Secretary after consultation with the Secretary
of State.
(d) Notification of compliance. A notification of compliance is a
verification from CBP that a covered alien has successfully enrolled in
EVUS. A notification of compliance is a positive determination that an
alien's visa is:
(1) Not automatically provisionally revoked pursuant to 22 CFR
41.122(b)(3); and
(2) Is considered valid for travel to the United States as of the
time of notification.
Sec. 215.24 Electronic Visa Update System (EVUS) requirements.
(a) Enrollment required. Each covered alien must initially enroll in
EVUS, in accordance with paragraph (c)(1) of this section, by providing
the information set forth in paragraph (d) of this section
electronically through EVUS. Each covered alien who intends to travel to
the United States must have a valid notification of compliance as set
forth in paragraph (c)(2) of this section. Upon each successful
enrollment or re-enrollment, CBP will issue a notification of
compliance.
(b) Validity period of notification of compliance--(1) General
validity period. A
[[Page 464]]
notification of compliance will generally be valid for a period of two
years from the date the notification of compliance is issued, except as
provided in paragraph (b)(2) or (3) of this section.
(2) Exception. If the nonimmigrant alien's passport or nonimmigrant
visa will expire in less than two years from the date the notification
of compliance is issued, the notification will be valid until the date
of expiration of the passport or nonimmigrant visa, whichever is sooner.
(3) Change in validity period of notification of compliance. The
Secretary, in consultation with the Secretary of State, may increase or
decrease the notification of compliance validity period otherwise
authorized by paragraph (b)(1) of this section for an EVUS country. Any
such increase or decrease would apply to subsequently issued
notifications of compliance. Any changes to the validity period will be
done through rulemaking. The EVUS Web site will be updated to reflect
the specific duration of notification of compliance validity periods for
each EVUS country.
(4) Relation to nonimmigrant visa validity. A notification of
compliance is not valid unless the alien's nonimmigrant visa also is
valid.
(c) Schedule for EVUS enrollment--(1) Initial EVUS enrollment--(i)
Visas received prior to November 29, 2016. Each covered alien who
received his or her nonimmigrant visa of a designated category prior to
November 29, 2016 must initially enroll in EVUS by December 14, 2016,
unless the covered alien intends to travel to the United States before
that date, in which case the requirements for EVUS enrollment outlined
in paragraph (c)(2) of this section apply.
(ii) Visas received on or after November 29, 2016. Each covered
alien who received his or her nonimmigrant visa of a designated category
on or after November 29, 2016 must initially enroll in EVUS upon receipt
of such visa.
(2) EVUS re-enrollment requirements prior to travel to the United
States--(i) Individuals arriving at air or sea ports of entry. Each
covered alien who intends to travel by air or sea to the United States
on a nonimmigrant visa of a designated category must have a notification
of compliance that is valid, as described in paragraph (b) of this
section, prior to boarding a carrier destined for travel to the United
States through the date when the covered alien will arrive at a U.S.
port of entry.
(ii) Individuals arriving at land ports of entry. Each covered alien
who intends to travel by land to the United States on a nonimmigrant
visa of a designated category must have a notification of compliance
that is valid, as described in paragraph (b) of this section, through
the date of application for admission to the United States.
(d) Required EVUS enrollment elements. DHS will collect such
information from covered aliens as DHS deems necessary in its
discretion, after consultation with the Department of State. The
required information will be reflected in the EVUS enrollment questions.
(e) EVUS re-enrollment required. Each covered alien must re-enroll
in EVUS and obtain a new notification of compliance from CBP if any of
the following occurs:
(1) The alien is issued a new passport or new nonimmigrant visa of a
designated category;
(2) The alien changes his or her name;
(3) The alien changes his or her gender;
(4) There is any change to the alien's country of citizenship or
nationality, including becoming a dual national; or
(5) The circumstances underlying the alien's previous responses to
any of the EVUS enrollment questions requiring a ``yes'' or ``no''
response (eligibility questions) have changed.
(f) Limitation. A notification of compliance is not a determination
that the covered alien is admissible to the United States. A
determination of admissibility is made after an applicant for admission
is inspected by a CBP officer at a U.S. port of entry.
(g) Noncompliance, expiration of notification of compliance, and
change in EVUS status resulting in rescission of notification of
compliance--(1) Initial EVUS enrollment. Failure to initially enroll in
EVUS in accordance with paragraph (c)(1) of this section will result in
the automatic provisional revocation of the covered alien's nonimmigrant
visa
[[Page 465]]
pursuant to 22 CFR 41.122(b)(3), pending enrollment.
(2) Expiration of notification of compliance. Upon expiration of a
notification of compliance, as described in paragraph (b) of this
section, the covered alien's nonimmigrant visa will be automatically
provisionally revoked pursuant to 22 CFR 41.122(b)(3), pending re-
enrollment. To prevent the automatic provisional revocation of his or
her nonimmigrant visa due to the expiration of the notification of
compliance, each covered alien must re-enroll in EVUS prior to such
expiration.
(3) Unsuccessful EVUS enrollment. If a covered alien's EVUS
enrollment or re-enrollment is unsuccessful, his or her nonimmigrant
visa will be automatically provisionally revoked pursuant to 22 CFR
41.122(b)(3), pending successful enrollment or re-enrollment.
(4) Change in EVUS status after receipt of a notification of
compliance. In the event that irreconcilable errors are discovered after
the issuance of a notification of compliance, or other circumstances
occur including but not limited to a change in the validity period of
the notification of compliance as provided in paragraph (b) of this
section, CBP may rescind the notification of compliance. If a covered
alien's notification of compliance is rescinded, his or her nonimmigrant
visa will be automatically provisionally revoked pursuant to 22 CFR
41.122(b)(3), pending successful enrollment. CBP will attempt to provide
notification of a change in EVUS status to the covered alien through the
provided email address.
(h) Reversal of an automatically provisionally revoked visa and
steps to address an unsuccessful EVUS enrollment or rescission of a
notification of compliance--(1) Reversal of an automatically
provisionally revoked visa. If a covered alien's nonimmigrant visa has
been automatically provisionally revoked as described in paragraph
(g)(1) or (2) of this section, the revocation of the alien's visa will
be automatically reversed, following compliance with EVUS, if the visa
remains valid and was not also revoked on other grounds. After a
reversal of the revocation the visa will immediately resume the validity
provided for on its face, pursuant to 22 CFR 41.122(b)(3), after the
alien enrolls in EVUS and receives a notification of compliance.
(2) Unsuccessful EVUS enrollment. If a covered alien's EVUS
enrollment is unsuccessful per paragraph (g)(3) of this section, the
covered alien may re-attempt enrollment or contact CBP.
(3) Rescission of notification of compliance. If a covered alien's
nonimmigrant visa has been automatically provisionally revoked as
described in paragraph (g)(4) of this section, the covered alien may re-
attempt enrollment or contact CBP.
PART 216_CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS--
Table of Contents
Sec.
216.1 Definition of conditional permanent resident.
216.2 Notification requirements.
216.3 Termination of conditional resident status.
216.4 Joint petition to remove conditional basis of lawful permanent
resident status for alien spouse.
216.5 Waiver of requirement to file joint petition to remove conditions
by alien spouse.
216.6 Petition by entrepreneur to remove conditional basis of lawful
permanent resident status.
Authority: 8 U.S.C. 1101, 1103, 1154, 1184, 1186a, 1186b, and 8 CFR
part 2.
Source: 53 FR 30018, Aug. 10, 1988, unless otherwise noted.
Sec. 216.1 Definition of conditional permanent resident.
A conditional permanent resident is an alien who has been lawfully
admitted for permanent residence within the meaning of section
101(a)(20) of the Act, except that a conditional permanent resident is
also subject to the conditions and responsibilities set forth in section
216 or 216A of the Act, whichever is applicable, and part 216 of this
chapter. Unless otherwise specified, the rights, privileges,
responsibilities and duties which apply to all other lawful permanent
residents apply equally to conditional permanent residents, including
but not limited to the right to apply for naturalization (if otherwise
eligible), the right to file petitions on behalf of qualifying
relatives, the privilege of residing permanently in the
[[Page 466]]
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 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
[[Page 467]]
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) [Reserved]
(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
[[Page 468]]
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.
(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
[[Page 469]]
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; 74 FR 26939, June 5, 2009]
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
[[Page 470]]
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) [Reserved]
(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 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
[[Page 471]]
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; 74 FR 26939, June 5, 2009]
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
[[Page 472]]
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) [Reserved]
(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 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
[[Page 473]]
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 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
[[Page 474]]
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 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; 74
FR 26939, June 5, 2009]
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.
[[Page 475]]
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, Chile, Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, 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, Taiwan, 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. Taiwan refers only to individuals who have unrestricted right
of permanent abode on Taiwan and are in possession of an electronic
passport bearing a personal identification (household registration)
number.
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 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
[[Page 476]]
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; 75 FR
15992, Mar. 31, 2010; 77 FR 64411, Oct. 22, 2012; 79 FR 17854, Mar. 31,
2014]
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 and
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 8 CFR 208.2(c)(1) and (c)(2).
(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 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 who was admitted as
a Visa Waiver Program visitor who applies for asylum in the United
States must be issued a Form I-863 for a proceeding in accordance with 8
CFR 208.2(c)(1) and (c)(2).
(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
[[Page 477]]
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; 74 FR 55738, Oct. 28, 2009]
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, and must pay
a fee as described in paragraph (h) of this section.
(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.
(3) The Secretary, in consultation with the Secretary of State, may
increase or decrease ESTA travel authorization validity period otherwise
authorized by subparagraph (1) for a designated VWP country. Notice of
any change to ESTA travel authorization validity periods will be
published in the Federal Register. The ESTA Web site will be updated to
reflect the specific ESTA travel authorization validity period for each
VWP country.
(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 ``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
[[Page 478]]
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.
(h) Fee. (1) Until September 30, 2015, the fee for an approved ESTA
is $14.00, which is the sum of two amounts: a $10 travel promotion fee
to fund the Corporation for Travel Promotion and a $4.00 operational fee
to at least ensure recovery of the full costs of providing and
administering the system. In the event the ESTA application is denied,
the fee is $4.00 to cover the operational costs.
(2) Beginning October 1, 2020, the fee for using ESTA is an
operational fee of $4.00 to at least ensure recovery of the full costs
of providing and administering the system.
[73 FR 32452, June 9, 2008, as amended at 75 FR 47708, Aug. 9, 2010; 80
FR 32294, June 8, 2015]
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
[[Page 479]]
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 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 Application and 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 Application and processing.
(a) Application. An applicant must submit an application for a
reentry permit, refugee travel document, or advance parole on the form
designated by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in
accordance with the form instructions.
(b) Filing eligibility--(1) Reentry permit. An applicant for a
reentry permit must file such application while in the United States and
in status as a lawful permanent resident or conditional permanent
resident.
(2) Refugee travel document. (i) Except as provided in paragraph
(b)(2)(ii) of this section, an applicant for a refugee
[[Page 480]]
travel document must submit the application while in the United States
and in valid refugee status under section 207 of the Act, valid asylum
status under section 208 of the Act or is a permanent resident who
received such status as a direct result of his or her asylum or refugee
status.
(ii) Discretionary authority to accept a refugee travel document
application from an alien not within the United States. As a matter of
discretion, the Service office with jurisdiction over a port-of-entry or
pre-flight inspection location where the alien is seeking admission, or
the overseas Service office where the 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 departed from the United States without having applied
for such refugee travel document, provided the officer:
(A) Is satisfied that the alien did not intend to abandon his or her
refugee or asylum status at the time of departure from the United
States;
(B) The alien did not engage in any activities while outside the
United States that would be inconsistent with continued refugee or
asylum status; and
(C) 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 will be denied if the
applicant was previously issued a reentry permit or refugee travel
document which is still valid, unless it was returned to USCIS 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 five years,
whichever is less, has been outside the United States for more than four
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 described in 8 CFR 211.1(a)(6) or (a)(7);
(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 as required by 8 CFR part 247.
(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 will not affect the application.
(e) Processing. USCIS may approve or deny a request for a reentry
permit or refugee travel document as an exercise of discretion. If it
approves the application, USCIS will issue an appropriate document.
(f) Effect on proceedings. Issuance of a reentry permit or refugee
travel document to a person in exclusion, deportation, or removal
proceedings shall not affect those proceedings.
(g) Appeal. Denial of an application for a reentry permit or refugee
travel document may be appealed in accordance with 8 CFR 103.3.
[76 FR 53790, Aug. 29, 2011]
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 481]]
(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
(see Sec. 1.4), 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 482]]
(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, as amended at 78 FR 18472, Mar. 27, 2013]
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 (see Sec. 1.4), 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, as amended at 78 FR 18472, Mar. 27, 2013]
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
[[Page 483]]
manifest presentation requirements set forth in 19 CFR 122.22.
[73 FR 68309, Nov. 18, 2008]
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
[[Page 484]]
or more previous attacks of insanity, applies for a waiver of
excludability under section 212(g) of the Act, the immigration office
will submit to the Director, Division of Quarantine, Center for
Prevention Services, Centers for Disease Control, Atlanta, GA 30333, the
completed Form I-601, including a copy of the medical report specified
in the instructions attached to that form, and a copy of Form OF-157.
This official shall review the medical report and advise the Service
whether it is acceptable, in accordance with Sec. 212.7(b)(4)(ii) of
this chapter.
(iv) In any other case where the applicant has been found to be
afflicted with active or inactive tuberculosis or an infectious or
noninfectious leprosy condition, the immigration office will forward a
copy of Form OF-157 with the applicant's address endorsed on the reverse
to the Director, Division of Quarantine, Center for Prevention Services,
Centers for Disease Control, Atlanta, GA 30333.
(2) Other aliens. The results of the examination of an alien who is
not an applicant for status as a permanent resident shall be entered on
Form I-141, Medical Certificate, in duplicate. This form shall be
returned to the Service office by which the alien was referred.
(d) U.S. Public Health Service hospital and outpatient clinic
reports. When an applicant for a benefit under the immigration laws,
other than an applicant for status as a permanent resident, is examined
by a medical officer of the U.S. Public Health Service, the results of
the examination shall be entered on Form I-141, Medical Certificate, in
duplicate. The form shall be returned to the Service office by which the
alien was referred.
[38 FR 33061, Nov. 30, 1973, as amended at 48 FR 30610, July 5, 1983; 52
FR 16194, May 1, 1987. Redesignated at 62 FR 10353, Mar. 6, 1997]
Sec. 232.3 Arriving aliens.
When a district director has reasonable grounds for believing that
persons arriving in the United States should be detained for reasons
specified in section 232 of the Act, he or she shall, after consultation
with the United States Public Health Service at the port-of-entry,
notify the master or agent of the arriving vessel or aircraft of his or
her intention to effect such detention by serving on the master or agent
Form I-259 in accordance with Sec. 235.3(a) of this chapter.
[62 FR 10353, Mar. 6, 1997]
PART 233_CONTRACTS WITH TRANSPORTATION LINES--Table of Contents
Sec.
233.1 Contracts.
233.2 Transportation lines bringing aliens to the United States from or
through foreign contiguous territory or adjacent islands.
233.3 [Reserved]
233.4 Preinspection outside the United States.
233.5 Aliens entering Guam pursuant to section 14 of Public Law 99-396,
``Omnibus Territories Act''.
233.6 Aliens entering Guam or the Commonwealth of the Northern Mariana
Islands pursuant to Title VII of Public Law 110-229,
``Consolidated Natural Resources Act of 2008.''
Authority: 8 U.S.C. 1101, 1103, 1182, 1221, 1228, 1229, 8 CFR part
2.
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
[[Page 485]]
jurisdiction over the location where the inspection will take place.
[62 FR 10353, Mar. 6, 1997]
Sec. 233.2 Transportation lines bringing aliens to the United States
from or through foreign contiguous territory or adjacent islands.
Form I-420 shall be signed in duplicate and forwarded to the
Headquarters Office of Inspections. After acceptance, each Regional
Office of Inspections, the district office and the carrier will be
furnished with one copy of the agreement. The transmittal letter to the
Headquarters Office of Inspections shall indicate whether the signatory
to the agreement is a subsidiary or affiliate of a line which has
already signed a similar agreement. Correspondence regarding ancillary
contracts for office space and other facilities to be furnished by
transportation lines at Service stations in Canada shall be similarly
handled.
[57 FR 59907, Dec. 17, 1992]
Sec. 233.3 [Reserved]
Sec. 233.4 Preinspection outside the United States.
(a) Form I-425 agreements. A transportation line bringing applicants
for admission to the United States through preinspection sites outside
the United States shall enter into an agreement on Form I-425. Such an
agreement shall be negotiated directly by the Service's Headquarters
Office of Inspections and the head office of the transportation line.
(b) Signatory lines. A list of transportation lines with currently
valid transportation agreements on Form I-425 is maintained by the
Service's Headquarters Office of Inspections and is available upon
written request.
[62 FR 10353, Mar. 6, 1997]
Sec. 233.5 Aliens entering Guam pursuant to section 14 of Public Law 99-396,
``Omnibus Territories Act.''
A transportation line bringing aliens to Guam under the visa waiver
provisions of Sec. 212.1(e) of this chapter shall enter into an
agreement on Form I-760. Such agreements shall be negotiated directly by
the Service's Headquarters and head offices of the transportation lines.
[62 FR 10353, Mar. 6, 1997]
Sec. 233.6 Aliens entering Guam or the Commonwealth of the Northern Mariana
Islands pursuant to Title VII of Public Law 110-229, ``Consolidated Natural
Resources Act of 2008.''
A transportation line bringing aliens to Guam or the Commonwealth of
the Northern Mariana Islands under the visa waiver provisions of Sec.
212.1(q) of this chapter must enter into an agreement on CBP Form I-760.
Such agreements must be negotiated directly by Customs and Border
Protection and head offices of the transportation lines.
[74 FR 2836, Jan. 16, 2009]
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
[[Page 486]]
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 must land at the international air ports
of entry enumerated in part 100 of this chapter unless permission to
land elsewhere is first obtained from the Commissioner of U.S. Customs
and Border Protection (CBP) in the case of aircraft operated by
scheduled airlines, and in all other cases from the port director of CBP
or other CBP officer having jurisdiction over the CBP port of entry
nearest the intended place of landing.
(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; 76 FR 5060, Jan.
28, 2011; 81 FR 14953, Mar. 21, 2016]
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
[[Page 487]]
not be so designated by the Commissioner without such prior approval and
designation, and unless it appears to the satisfaction of the
Commissioner that conditions render such designation necessary or
advisable, and unless adequate facilities have been or will be provided
at such airport without cost to the Federal Government for the proper
inspection and disposition of aliens, including office space and such
temporary detention quarters as may be found necessary. The designation
of an airport as an international airport for the entry of aliens may be
withdrawn whenever, in the judgment of the Commissioner, there appears
just cause for such action.
[22 FR 9795, Dec. 6, 1957]
PART 235_INSPECTION OF PERSONS APPLYING FOR ADMISSION--Table of Contents
Sec.
235.1 Scope of examination.
235.2 Parole for deferred inspection.
235.3 Inadmissible aliens and expedited removal.
235.4 Withdrawal of application for admission.
235.5 Preinspection.
235.6 Referral to immigration judge.
235.7 Automated inspection services.
235.8 Inadmissibility on security and related grounds.
235.9 Northern Marianas identification card.
235.10 U.S. Citizen Identification Card.
235.11 Admission of conditional permanent residents.
235.12 Global Entry program.
235.13 U.S. Asia-Pacific Economic Cooperation Business Travel Card
Program.
Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to
E.O. 13323, 69 FR 241, 3 CFR, 2004 Comp., p.278), 1201, 1224, 1225,
1226, 1228, 1365a note, 1365b, 1379, 1731-32; Title VII of Public Law
110-229; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458); Pub. L.
112-54.
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 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.
[[Page 488]]
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
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.
(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
[[Page 489]]
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) 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.
(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 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 designee may require
any alien, other than aliens exempted under paragraph (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 (see
Sec. 1.4) 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 and/or whether he or she is
admissible. The failure of an alien at the time of inspection 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.
(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
[[Page 490]]
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 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.
[[Page 491]]
(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.
(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
[[Page 492]]
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 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-
[[Page 493]]
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 (h)(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) 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 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) 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 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; or
(C) Exempt from visa and passport pursuant to Sec. 212.1(c)(1) of
this chapter and is admitted for a period not to exceed 30 days to visit
within the State of New Mexico within 55 miles of the border or the area
south of and including Interstate Highway I-10, whichever is further
north; or
(D) In possession of a valid visa and passport and is admitted for a
period not to exceed 72 hours to visit within the State of New Mexico
within 55 miles of the border or the area south of and including
Interstate Highway I-10, whichever is further north.
(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; 73 FR
18416, Apr. 3, 2008; 73 FR 77491, Dec. 19, 2008; 74 FR 2837, Jan. 16,
2009; 78 FR 18472, Mar. 27, 2013; 78 FR 35107, June 12, 2013]
Sec. 235.2 Parole for deferred inspection.
(a) A district director may, in his or her discretion, defer the
inspection of any vessel or aircraft, or of any alien, to another
Service office or port-of-entry. Any alien coming to a United States
port from a foreign port, from an outlying possession of the United
States, from Guam, Puerto Rico, or the Virgin Islands of the United
States, or from another port of the United States at which examination
under this part was deferred, shall be regarded as an applicant for
admission at that onward port.
(b) An examining immigration officer may defer further examination
and refer the alien's case to the district director having jurisdiction
over the place where the alien is seeking admission, or over the place
of the alien's residence or destination in the United States, if the
examining immigration officer has reason to believe that the alien can
overcome a finding of inadmissibility by:
(1) Posting a bond under section 213 of the Act;
(2) Seeking and obtaining a waiver under section 211 or 212(d)(3) or
(4) of the Act; or
(3) Presenting additional evidence of admissibility not available at
the time and place of the initial examination.
[[Page 494]]
(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 8 CFR 1.2;
(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.
[[Page 495]]
(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 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.
[[Page 496]]
(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
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.
[[Page 497]]
(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.
(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
[[Page 498]]
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; 76 FR 53790, Aug.
29, 2011; 82 FR 4771, Jan. 17, 2017]
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 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
[[Page 499]]
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]