CFR 2010 Title8 Vol1 PDF
CFR 2010 Title8 Vol1 PDF
CFR 2010 Title8 Vol1 PDF
As of January 1, 2010
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
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Table of Contents
Page
Explanation ................................................................................................ v
Title 8:
Finding Aids:
iii
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Cite this Code: CFR
iv
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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 agen-
cies of the Federal Government. The Code is divided into 50 titles which represent
broad areas subject to Federal regulation. Each title is divided into chapters
which usually bear the name of the issuing agency. Each chapter is further sub-
divided 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.
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The Code of Federal Regulations is kept up to date by the individual issues
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Many agencies have begun publishing numerous OMB control numbers as amend-
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Provisions that become obsolete before the revision date stated on the cover
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of CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, or 1986–2000, published
in eleven separate volumes. For the period beginning January 1, 2001, a ‘‘List
of CFR Sections Affected’’ is published at the end of each CFR volume.
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What is a proper incorporation by reference? The Director of the Federal Register
will approve an incorporation by reference only when the requirements of 1 CFR
part 51 are met. Some of the elements on which approval is based are:
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REPUBLICATION OF MATERIAL
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RAYMOND A. MOSLEY,
Director,
Office of the Federal Register.
January 1, 2010.
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THIS TITLE
For this volume, Susannah C. Hurley was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Michael L. White, as-
sisted by Ann Worley.
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Title 8—Aliens and
Nationality
Part
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CHAPTER I—DEPARTMENT OF HOMELAND
SECURITY
NOTE: This table shows sections of title 8 of the United States Code and corresponding sec-
tions of the Immigration and Nationality Act and of parts in subchapters A, B, and C of chap-
ter 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.
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
Part Page
1 Definitions .............................................................. 9
2 Authority of the Secretary of Homeland Security .. 11
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8 CFR Ch. I (1–1–10 Edition)
Part Page
3 Executive Office for Immigration Review ............... 11
SUBCHAPTER B—IMMIGRATION REGULATIONS
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Department of Homeland Security
Part Page
244 Temporary protected status for nationals of des-
ignated states ....................................................... 543
245 Adjustment of status to that of person admitted
for permanent residence ....................................... 553
245a Adjustment of status to that of persons admitted
for lawful temporary or permanent resident sta-
tus under section 245A of the Immigration and
Nationality Act .................................................... 617
246 Rescission of adjustment of status .......................... 669
247 Adjustment of status of certain resident aliens ...... 671
248 Change of nonimmigrant classification .................. 672
249 Creation of records of lawful admission for perma-
nent residence ...................................................... 676
250 Removal of aliens who have fallen into distress ..... 677
251 Arrival and departure manifests and lists: Sup-
porting documents ............................................... 677
252 Landing of alien crewmen ....................................... 680
253 Parole of alien crewmen .......................................... 684
258 Limitations on performance of longshore work by
alien crewmen ...................................................... 686
264 Registration and fingerprinting of aliens in the
United States ....................................................... 689
265 Notices of address .................................................... 697
270 Penalties for document fraud .................................. 697
271 Diligent and reasonable efforts to prevent the un-
authorized entry of aliens by the owners of rail-
road lines, international bridges or toll roads ..... 700
273 Carrier responsibilities at foreign ports of embar-
kation; reducing, refunding, or waiving fines
under section 273 of the Act ................................. 701
274 Seizure and forfeiture of conveyances ..................... 702
274a Control of employment of aliens ............................. 703
280 Imposition and collection of fines ........................... 729
286 Immigration user fee ............................................... 734
287 Field officers; powers and duties ............................. 738
289 American Indians born in Canada ........................... 754
292 Representation and appearances ............................. 754
293 Deposit of and interest on cash received to secure
immigration bonds ............................................... 763
299 Immigration forms .................................................. 763
SUBCHAPTER C—NATIONALITY REGULATIONS
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8 CFR Ch. I (1–1–10 Edition)
Part Page
312 Educational requirements for naturalization ......... 776
313 Membership in the Communist Party or any other
totalitarian organizations .................................... 779
315 Persons ineligible to citizenship: Exemption from
military service .................................................... 781
316 General requirements for naturalization ................ 783
318 Pending removal proceedings .................................. 792
319 Special classes of persons who may be naturalized:
Spouses of United States citizens ........................ 792
320 Child born outside the United States and residing
permanently in the United States; requirements
for automatic acquisition of citizenship .............. 795
322 Child born outside the United States; requirements
for application for certificate of citizenship ........ 798
324 Special classes of persons who may be naturalized:
Women who have lost United States citizenship
by marriage and former citizens whose natu-
ralization is authorized by private law ................ 800
325 Nationals but not citizens of the United States;
residence within outlying possessions ................. 802
327 Special classes of persons who may be naturalized:
Persons who lost United States citizenship
through service in armed forces of foreign coun-
try during World War II ....................................... 803
328 Special classes of persons who may be naturalized:
Persons with three years service in Armed
Forces of the United States ................................. 803
329 Special classes of persons who may be naturalized:
Naturalization based upon active duty service in
the United States Armed Forces during specified
periods of hostilities ............................................ 805
330 Special classes of persons who may be naturalized:
Seamen ................................................................. 807
331 Alien enemies; naturalization under specified con-
ditions and procedures ......................................... 808
332 Naturalization administration ................................ 808
333 Photographs ............................................................ 810
334 Application for naturalization ................................ 811
335 Examination on application for naturalization ...... 814
336 Hearings on denials of applications for naturaliza-
tion ....................................................................... 820
337 Oath of allegiance ................................................... 822
338 Certificate of naturalization ................................... 826
339 Functions and duties of clerks of court regarding
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Department of Homeland Security
Part Page
342 Administrative cancellation of certificates, docu-
ments, or records .................................................. 835
343 Certificate of naturalization or repatriation; per-
sons who resumed citizenship under section 323
of the Nationality Act of 1940, as amended, or
section 4 of the Act of June 29, 1906 ...................... 837
343a Naturalization and citizenship papers lost, muti-
lated, or destroyed; new certificate in changed
name; certified copy of repatriation proceedings 837
343b Special certificate of naturalization for recogni-
tion by a foreign state .......................................... 839
343c Certifications from records ..................................... 840
349 Loss of nationality .................................................. 840
392 Special classes of persons who may be naturalized:
Persons who die while serving on active duty
with the United States Armed Forces during cer-
tain periods of hostilities ..................................... 840
499 Nationality forms ................................................... 843
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SUBCHAPTER A—GENERAL PROVISIONS
ceeding arising under any immigration the Act. An immigration judge shall be
or naturalization law, Executive order, subject to such supervision and shall
or Presidential proclamation, or prepa- perform such duties as the Attorney
ration for or incident to such pro- General shall prescribe, but shall not
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§ 1.1 8 CFR Ch. I (1–1–10 Edition)
10
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Department of Homeland Security § 3.0
(z) The term ICE means the Bureau of administer and enforce the immigra-
Immigration and Customs Enforce- tion laws are vested in the Secretary of
ment. Homeland Security. The Secretary of
(aa) The term Form when used in con- Homeland Security may, in the Sec-
nection with a petition, application, or retary’s discretion, delegate any such
other instrument to be filed with authority or function to any official,
USCIS in order to request an immigra- officer, or employee of the Department
tion benefit, means a device for the of Homeland Security, including dele-
collection of information in a standard gation through successive redelegation,
format that may be submitted in paper or to any employee of the United
format or in an electronic format as States to the extent authorized by law.
may be prescribed by USCIS on its offi- Such delegation may be made by regu-
cial Web site at http//www.uscis.gov. lation, directive, memorandum, or
The term Form followed by a USCIS other means as deemed appropriate by
form number includes a USCIS ap- the Secretary in the exercise of the
proved electronic equivalent of such Secretary’s discretion. A delegation of
form as USCIS may prescribe on its of- authority or function may in the Sec-
ficial Web site at http//www.uscis.gov. retary’s discretion be published in the
(bb) The term transition program effec- FEDERAL REGISTER, but such publica-
tive date as used with respect to extend- tion is not required.
ing the immigration laws to the Com-
[68 FR 10923, Mar. 6, 2003]
monwealth of the Northern Mariana Is-
lands means November 28, 2009.
PART 3—EXECUTIVE OFFICE FOR
[23 FR 9115, Nov. 26, 1958, as amended at 30
FR 14772, Nov. 30, 1965; 34 FR 12213, July 24,
IMMIGRATION REVIEW
1969; 38 FR 8590, Apr. 4, 1973; 40 FR 23271, May
29, 1975; 48 FR 8039, Feb. 25, 1983, 52 FR 2936, AUTHORITY: 5 U.S.C. 301; 8 U.S.C. 1101 note,
Jan. 29, 1987; 53 FR 30016, Aug. 10, 1988; 61 FR 1103, 1252 note, 1252b, 1324b, 1362; 28 U.S.C. 509,
18904, Apr. 29, 1996; 62 FR 10330, Mar. 6, 1997; 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3
63 FR 19383, Apr. 20, 1998; 68 FR 10923, Mar. 6, CFR, 1949–1953 Comp., p. 1002; section 203 of
2003; 68 FR 35275, June 13, 2003; 71 FR 27591, Pub. L. 105–100, 111 Stat. 2196–200; sections
May 12, 2006; 74 FR 26935, June 5, 2009; 74 FR 1506 and 1510 of Pub. L. 106–386; 114 Stat. 1527–
55736, Oct. 28, 2009] 29, 1531–32; section 1505 of Pub. L. 106–554, 114
Stat. 2763A–326 to –328.
PART 2—AUTHORITY OF THE SEC-
RETARY OF HOMELAND SECU- § 3.0 Executive Office for Immigration
Review
RITY
Regulations of the Executive Office
for Immigration Review relating to the
AUTHORITY: 8 U.S.C. 1103; 5 U.S.C. 301; Pub- adjudication of immigration matters
lic Law 107–296, 116 Stat. 2135 (6 U.S.C. 1 et
before immigration judges (referred to
seq.).
in some regulations as special inquiry
§ 2.1 Authority of the Secretary of officers) and the Board of Immigration
Homeland Security. Appeals are located in 8 CFR chapter
V, part 1003.
All authorities and functions of the
Department of Homeland Security to [68 FR 9831, Feb. 28, 2003]
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SUBCHAPTER B—IMMIGRATION REGULATIONS
13
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§ 100.4 8 CFR Ch. I (1–1–10 Edition)
Class C Port St. Joe, FL
Newburyport, MA DISTRICT NO. 7—BUFFALO, NEW YORK
Plymouth, MA
Portsmouth, NH Class A
Provincetown, MA
Sandwich, MA Albany, NY
Woods Hole, MA Alexandria Bay, NY
Buffalo, NY
DISTRICT NO. 3—NEW YORK, NEW YORK Cape Vincent, NY
Champlain, NY
Class A Chateaugay, NY
New York, NY (the port of New York in- Ft. Covington, NY
cludes, among others, the port facilities at Massena, NY
Bronx, Brooklyn, Buchanan, Manhattan, Mooers, NY
Montauk, Northport, Port Jefferson, Niagara Falls, NY (the port of Niagara Falls
Queens, Riverhead, Poughkeepsie, the includes, among others, the port facilities
Stapleton Anchorage-Staten Island, Staten at Lewiston Bridge, Rainbow Bridge, and
Island, Stoney Point, and Yonkers, NY, as Whirlpool Bridge, NY)
well as the East Side Passenger Terminal Ogdensburg, NY
Peace Bridge, NY
in Manhattan)
Rochester, NY
DISTRICT NO. 4—PHILADELPHIA, Rouses Point, NY
PENNSYLVANIA Thousand Islands Bridge, NY
Trout River, NY
Class A
Class B
Erie Seaport, PA
Philadelphia, PA (the port of Philadelphia Cannons Corner, NY
includes, among others, the port facilities Churubusco, NY
at Delaware City, Lewes, New Castle, and Jamison’s Line, NY
Wilmington, DE; and at Chester,
Class C
Essington, Fort Mifflin, Marcus Hook, and
Morrisville, PA) Oswego, NY
Pittsburgh, PA
DISTRICT NO. 8—DETROIT, MICHIGAN
DISTRICT NO. 5—BALTIMORE, MARYLAND
Class A
Class A
Algonac, MI
Baltimore, MD Detroit, MI, Detroit and Canada Tunnel
Patuxent River, MD Detroit, MI, Detroit International Bridge
(Ambassador Bridge)
Class C Grosse Isle, MI
Piney Point, MD Isle Royale, MI
Salisbury, MD Marine City, MI
Port Huron, MI
DISTRICT NO. 6—MIAMI, FLORIDA Sault Ste. Marie, MI
Class A Class B
Boca Grande, FL Alpena, MI
Fernandina, FL Detour, MI
Fort Lauderdale/Port Everglades, FL, Sea- Grand Rapids, MI
port Mackinac Island, MI
Fort Pierce, FL Rogers City, MI
*Jacksonville, FL
Key West, FL Class C
Miami Marine Unit, FL Alpena, MI
Panama City, FL Baraga, MI
Pensacola, FL Bay City, MI
Port Canaveral, FL Cheboygan, MI
St. Augustine, FL Detour, MI
St. Petersburg, FL Escanaba, MI
*Tampa, FL (includes Fort Myers) Grand Haven, MI
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Department of Homeland Security § 100.4
Marquette, MI Class B
Menominee, MI
Monroe, MI Crane Lake, MN
Munising, MI Oak Island, MN
Muskegon, MI
Class C
Pontiac, MI
Port Dolomite, MI Grand Marais, MN
Port Inland, MI Silver Bay, MN
Rogers City (Calcite), MI Taconite Harbor, MN
Saginaw, MI Two Harbors, MN
South Haven, MI
DISTRICT NO. 11—KANSAS CITY, MISSOURI
DISTRICT NO. 9—CHICAGO, ILLINOIS
Class A
Class A
Kansas City, MO
Algoma, WI
Bayfield, WI Class B
Chicago, IL
Green Bay, WI Wichita, KS
*Milwaukee, WI
DISTRICT NO. 12—SEATTLE, WASHINGTON
Class C
Class A
Ashland, WI
East Chicago, IL Aberdeen, WA (the port of Aberdeen in-
Gary, IN cludes, among others, the port facilities at
Kenosha, WI Raymond and South Bend, WA)
Manitowoc, WI Anacortes, WA
Marinette, WI Bellingham, WA
Michigan City, IN Blaine-Pacific Highway, WA
Racine, WI Blaine-Peach Arch, WA
Sheboygan, WI Boundary, WA
Sturgeon Bay, WI Colville, WA
Danville, WA
DISTRICT NO. 10—ST. PAUL, MINNESOTA Eastport, ID
Class A Ferry, WA
Friday Harbor, WA (the port of Friday Har-
Ambrose, ND bor includes, among others, the port facili-
Antler, ND ties at Roche Harbor, WA)
Baudette, MN Frontier, WA
Carbury, ND Kalama, WA
Duluth, MN (the port of Duluth includes, Laurier, WA
among others, the port facilities at Supe- Longview, WA
rior, WI) Lynden, WA
Dunseith, ND Metaline Falls, WA
Ely, MN
Neah Bay, WA
Fortuna, ND
Olympia, WA
Grand Portage, MN
Oroville, WA
Hannah, ND
Hansboro, ND Point Roberts, WA
International Falls, MN Port Angeles, WA
Lancaster, MN Port Townsend, WA
Maida, ND Porthill, WA
Neche, ND Seattle, WA (the port of Seattle includes,
Noonan, ND among others, the port facilities at Ban-
Northgate, ND gor, Blake Island, Bremerton, Eagle Har-
Noyes, MN bor, Edmonds, Everett, Holmes Harbor,
Pembina, ND Houghton, Kennydale, Keyport, Kingston,
Pine Creek, MN Manchester, Mukilteo, Orchard Point,
Portal, ND Point Wells, Port Gamble, Port Ludlow,
Ranier, MN Port Orchard, Poulsbo, Shuffleton, and
Roseau, MN Winslow, WA)
Sarles, ND Sumas, WA
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§ 100.4 8 CFR Ch. I (1–1–10 Edition)
Class B Rota, the Commonwealth of the Northern
Mariana Islands.
Nighthawk, WA
Saipan, the Commonwealth of the Northern
DISTRICT NO. 13—SAN FRANCISCO, CALIFORNIA Mariana Islands.
Tinian, the Commonwealth of the Northern
Class A Mariana Islands.
San Francisco, CA (the port of San Francisco Class C
includes, among others, the port facilities
Hilo, HI
at Antioch, Benicia, Martinez, Oakland,
Kahului, HI, Kahului Harbor
Pittsburgh, Port Chicago Concord Naval
Nawiliwilli, HI, Nawiliwilli Harbor
Weapon Station, Redwood City, Richmond,
Port Allen, HI, Port Allen Harbor
Sacramento, San Pablo Bay, and Stockton,
CA) DISTRICT NO. 18—PHOENIX, ARIZONA
Class C Class A
Eureka, CA Douglas, AZ
Lukeville, AZ
DISTRICT NO. 14—SAN ANTONIO, TEXAS Mariposa, AZ
Morley Gate, AZ
Class A
Naco, AZ
Amistad Dam, TX Nogales, AZ
Corpus Christi, TX (the port of Corpus Chris- Sasabe, AZ
ti includes, among others, the port facili- San Luis, AZ
ties at Harbor Island, Ingleside, and Port
Lavaca-Point Comfort, TX) DISTRICT NO. 19—DENVER, COLORADO
Del Rio, TX Class A
Laredo, TX (the port of Laredo includes,
among others, the port facilities at Colom- Denver, CO
bia Bridge, Convent Bridge, and Lincoln- Grand Junction, CO
Juarez Bridge, TX) Pueblo, CO
Maverick, TX Salt Lake City, UT
Columbus, NM Class A
El Paso, TX (the port of El Paso includes, Camden, NJ (the port of Camden includes,
among others, the port facilities at Bridge among others, the port facilities at Artifi-
of the Americas, Paso Del Norte Bridge, cial Island, Billingsport, Burlington, Cape
and Ysleta Bridge, TX) May, Deepwater Point, Fisher’s Point,
Fabens, TX Gibbstown, Gloucester City, Paulsboro,
Fort Hancock, TX Salem, and Trenton, NJ)
Presidio, TX Newark, NJ (the port of Newark includes,
Santa Teresa, NM among others, the port facilities at Ba-
yonne, Carteret, Edgewater, Elizabeth,
DISTRICT NO. 16—LOS ANGELES, CALIFORNIA
Jersey City, Leonardo, Linden, Perth
Class A Amboy, Port Newark, and Sewaren, NJ)
Los Angeles, CA (the port of Los Angeles in- DISTRICT NO. 22—PORTLAND, MAINE
cludes, among others, the port facilities at
Long Beach, Ontario, Port Hueneme, San Class A
Pedro, and Ventura, CA) Alburg, VT
San Luis Obispo, CA (the port of San Luis Alburg Springs, VT
Obispo includes, among others, the port fa- Bangor, ME (the port of Bangor includes,
cilities at Avila, Estero Bay, El Capitan, among others, the port facilities at Bar
Elwood, Gaviota, Morro Bay, and Santa Harbor, Belfast, Brewer, Bucksport Harbor,
Barbara, CA) Prospect Harbor, Sandypoint, Seal Harbor,
Searsport, and South West Harbor, ME)
DISTRICT NO. 17—HONOLULU, HAWAII Beebe Plain, VT
Class A Beecher Falls, VT
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Bridgewater, ME
Agana, Guam, M.I (including the port facili- Calais, ME (includes Ferry Point and
ties of Apra Harbor, Guam). Milltown Bridges)
Honolulu, HI, Seaport (including all port fa- Canaan, VT
cilities on the island of Oahu). Coburn Gore, ME
16
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Department of Homeland Security § 100.4
Derby Line, VT * Norfolk, VA—(the port of Norfolk includes,
Eastport, ME among others, the port facilities at Fort
East Richford, VT Monroe and Newport News, VA)
Fort Fairfield, ME Richmond, VA
Fort Kent, ME Washington, DC (includes the port facilities
Hamlin, ME at Alexandria, VA)
Highgate Springs, VT Yorktown, VA
Houlton, ME
Jackman, ME DISTRICT NO. 26—ATLANTA, GEORGIA
Limestone, ME
Class A
Lubec, ME
Madawaska, ME Charleston, SC (the port of Charleston in-
Morses Line, VT cludes, among others, the port facilities at
North Troy, VT Georgetown and Port Royal, SC)
Norton, VT Mobile, AL
Pittsburgh, NH Savannah, GA (the port of Savannah in-
Portland, ME cludes, among others, the port facilities at
Richford, VT (includes the Pinnacle Port-of- Brunswick and St. Mary’s Seaport, GA)
Entry) Wilmington, NC (the port of Wilmington in-
* St. Albans, VT cludes the port facilities at Morehead City,
Van Buren, ME NC)
Vanceboro, ME
West Berkshire, VT DISTRICT NO. 27—SAN JUAN, PUERTO RICO
Class B Class A
Daaquam, ME Aguadilla, PR
Easton, ME * Charlotte Amalie, St. Thomas, VI
Eastcourt, ME Christiansted, St. Croix, VI
Forest City, ME Cruz Bay, St. John, VI
Monticello, ME Ensenada, PR
Orient, ME Federiksted, St. Croix, VI
Robinston, ME Fajardo, PR
St. Aurelie, ME Humacao, PR
St. Pamphile, ME Jobos, PR
Mayaguez, PR
Class C Ponce, PR
Red Hook, St. Thomas, VI
Bath, ME
Boothbay Harbor, ME Class B
Kittery, ME
Rockland, ME Coral Bay, St. John, VI
Wiscasset, ME
DISTRICT NO. 28—NEW ORLEANS, LOUISIANA
DISTRICT NO. 23 [RESERVED]
Class A
DISTRICT NO. 24—CLEVELAND, OHIO Baton Rouge, LA
Gulfport, MS
Class A
Lake Charles, LA
Cincinnati, OH Memphis, TN
Cleveland, OH Nashville, TN
Columbus, OH New Orleans, LA (the port of New Orleans in-
Put-In-Bay, OH cludes, among others, the port facilities at
Sandusky, OH Avondale, Bell Chasse, Braithwaite,
Toledo, OH Burnside, Chalmette, Destrahan, Geismar,
Gramercy, Gretna, Harvey, Marrero,
Class C Norco, Port Sulphur, St. Rose, and
Ashtabula, OH Westwego, LA)
Conneaut, OH
Class C
Fairport, OH
Huron, OH Morgan City, LA
Lorain, OH Pascagoula, MS
Marblehead, OH
DISTRICT NO. 29—OMAHA, NEBRASKA
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§ 100.4 8 CFR Ch. I (1–1–10 Edition)
DISTRICT NO. 30—HELENA, MONTANA DISTRICT NO. 38—HOUSTON, TEXAS
Class A Class A
Chief Mountain, MT (May-October) Galveston, TX (the port of Galveston in-
Del Bonita, MT cludes, among others, the port facilities at
Morgan, MT Freeport, Port Bolivar, and Texas City,
Opheim, MT TX)
Peigan, MT Houston, TX (the port of Houston includes,
Raymond, MT among others, the port facilities at Bay-
Roosville, MT town, TX)
Scobey, MT
Port Arthur, TX (the port of Port Arthur in-
Sweetgrass, MT
cludes, among others, the port facilities at
Turner, MT
Beaumont, Orange, and Sabine, TX)
Whitetail, MT
Wildhorse, MT DISTRICT NO. 39—SAN DIEGO, CALIFORNIA
Willow Creek, MT
Class A
Class B
Goat Haunt, MT Andrade, CA
Trail Creek, MT Calexico, CA
Whitlash, MT Otay Mesa, CA
San Ysidro, CA
DISTRICT NO. 31—PORTLAND, OREGON Tecate, CA
Class A DISTRICT NO. 40—HARLINGEN, TEXAS
Astoria, OR (the port of Astoria includes,
among others, the port facilities at Class A
Bradwood, Pacific City, Taft, Tilliamook, Brownsville, TX (the port of Brownsville in-
(including Bay City and Garibaldi), cludes, among others, the port facilities at
Warrenton, Wauna, and Westport, OR) Brownsville Seaport, Port Isabel, Padre Is-
Coos Bay, OR (the port of Coos Bay includes, land and Harlingen, TX, Ship Channel)
among others, the port facilities at Brownsville, TX, Gateway Bridge and
Bandon, Brookings, Depoe Bay, Florence, Brownsville/Matamoros Bridge
Frankfort, Gold Beach, Newport (including Falcon Heights, TX
Toledo), Port Orford, Reedsport, Waldport, Hidalgo, TX
and Yachats, OR)
Los Ebanos, TX
Portland, OR (the port of Portland includes,
Los Indios, TX
among others, the port facilities at Beaver,
Columbia City, Prescott, Rainier, and St. Pharr, TX
Helens, OR) Progreso, TX
Rio Grande City, TX
DISTRICT NO. 32—ANCHORAGE, ALASKA Roma, TX
Class A (b) Ports-of-Entry for aliens arriving by
Alcan, AK aircraft. In addition to the following
Anchorage, AK (the port of Anchorage in- international airports which are here-
cludes, among others (for out of port in- by designated as Ports-of-Entry for
spections only), Afognak, Barrow, Cold aliens arriving by aircraft, other places
Bay, Cordova, Homer, Kodiak, Kotzebue, where permission for certain aircraft
Nikiski, Seward, Valdez, and Yakutat, AK) to land officially has been given and
Dalton’s Cache, AK places where emergency or forced land-
Dutch Harbor, AK
Fairbanks, AK
ings are made under part 239 of this
Gambell, AK chapter shall be regarded as designated
Juneau, AK for the entry of aliens arriving by such
Ketchikan, AK aircraft:
Nome, AK
Poker Creek, AK DISTRICT NO. 1 [RESERVED]
Skagway, AK
DISTRICT NO. 2—BOSTON, MASSACHUSETTS
Class B
Boston, MA, Logan International Airport
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Department of Homeland Security § 100.4
DISTRICT NO. 3—NEW YORK CITY, NEW YORK Watertown, NY, Watertown Municipal Air-
port
Newburgh, NY, Stewart International Air-
port DISTRICT NO. 8—DETROIT, MICHIGAN
Queens, NY, LaGuardia Airport
Westchester, NY, Westchester County Air- Battle Creek, MI, Battle Creek Airport
port Chippewa, MI, Chippewa County Inter-
national Airport
DISTRICT NO. 4—PHILADELPHIA, Detroit, MI, Detroit City Airport
PENNSYLVANIA Detroit, MI, Detroit Metropolitan Wayne
County Airport
Charlestown, WV, Kanahwa Airport
Port Huron, MI, St. Clair County Inter-
Dover, DE, Dover Air Force Base
Erie, PA, Erie International Airport (USCS) national Airport
Harrisburg, PA, Harrisburg International Sault Ste. Marie, MI, Sault Ste. Marie Air-
Airport port
Philadelphia, PA, Philadelphia International DISTRICT NO. 9—CHICAGO, ILLINOIS
Airport
Pittsburgh, PA, Pittsburgh International Chicago, IL, Chicago Midway Airport
Airport Chicago, IL, Chicago O’Hare International
Airport
DISTRICT NO. 5—BALTIMORE, MARYLAND Indianapolis, IN, Indianapolis International
Baltimore, MD, Baltimore-Washington Inter- Airport
national Airport Mitchell, WI, Mitchell International Airport
Daytona, FL, Daytona International Air- Baudette, MN, Baudette International Air-
port, FL port
Fort Lauderdale, FL, Executive Airport Duluth, MN, Duluth International Airport
Fort Lauderdale, FL, Fort Lauderdale-Holly- Duluth, MN, Sky Harbor Airport
wood Airport Grand Forks, ND, Grand Forks International
Fort Myers, FL, Southwest Regional Inter- Airport
national Airport International Falls, MN, Falls International
Freeport, Bahamas, Freeport International Airport
Airport Minneapolis/St. Paul, MN, Minneapolis/St.
Jacksonville, FL, Jacksonville International Paul International Airport
Airport Minot, ND, Minot International Airport
Key West, FL, Key West International Air- Pembina, ND, Port Pembina Airport
port Portal, ND, Portal Airport
Melbourne, FL, Melbourne International Ranier, MN, International Seaplane Base
Airport Warroad, MN, Warroad International Airport
Miami, FL, Chalks Flying Service Seaplane Williston, ND, Sioulin Field (Municipal)
Base DISTRICT NO. 11—KANSAS CITY, MISSOURI
Miami, FL, Miami International Airport
Nassau, Bahamas, Nassau International Air- Kansas City, MO, Kansas City International
port Airport
Orlando, FL, Orlando International Airport Springfield, MO, Springfield Regional Air-
Palm Beach, FL, Palm Beach International port
Airport St. Louis, MO, St. Louis Lambert Inter-
Paradise Island, Bahamas, Paradise Island national Airport
Airport St. Louis, MO, Spirit of St. Louis Airport
Sanford, FL, Sanford International Airport
Sarasota, FL, Sarasota Airport DISTRICT NO. 12—SEATTLE, WASHINGTON
St. Petersburg, FL, St. Petersburg/Clear- Bellingham, WA, Bellingham Airport
water International Airport Friday Harbor, WA, Friday Harbor
Tampa, FL, Tampa International Airport McChord, WA, McChord Air Force Base
Oroville, WA, Dorothy Scott Municipal Air-
DISTRICT NO. 7—BUFFALO, NEW YORK port
Albany, NY, Albany County Airport Oroville, WA, Dorothy Scott Seaplane Base
Buffalo, NY, Buffalo Airport Point Roberts, WA, Point Roberts Airport
Massena, NY, Massena Airport Port Townsend, WA, Jefferson County Inter-
Niagara Falls, NY, Niagara Falls Inter- national Airport
national Airport SEA-TAC, WA, SEA-TAC International Air-
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§ 100.4 8 CFR Ch. I (1–1–10 Edition)
DISTRICT NO. 13—SAN FRANCISCO, CALIFORNIA Oklahoma City, OK, Oklahoma City Airport
(includes Altus and Tinker AFBs)
Alameda, CA, Alemeda Naval Air Station
Oakland, CA, Oakland International Airport DISTRICT NO. 21—NEWARK, NEW JERSEY
Sacramento, CA, Beale Air Force Base
San Francisco, CA, San Francisco Inter- Atlantic City, NJ, Atlantic City Inter-
national Airport national Airport
San Jose, CA, San Jose International Air- Lakehurst, NJ, Lakehurst Naval Air Station
port Morristown, NJ, Morristown Airport
Travis, CA, Travis Air Force Base Newark, NJ, Newark International Airport
Newark, NJ, Signature Airport
DISTRICT NO. 14—SAN ANTONIO, TEXAS Teterboro, NJ, Teterboro Airport
Austin, TX, Austin International Airport Wrightstown, NJ, McGuire Air Force Base
Corpus Christi, TX, Corpus Christi Airport DISTRICT NO. 22—PORTLAND, MAINE
Del Rio, TX, Del Rio International Airport
Laredo, TX, Laredo International Airport Bangor, ME, Bangor International Airport
Maverick, TX, Maverick County Airport Burlington, VT, Burlington International
San Antonio, TX, San Antonio International Airport
Airport Caribou, ME, Caribou Municipal Airport
Highgate Springs, VT, Franklin County Re-
DISTRICT NO. 15—EL PASO, TEXAS gional Airport
Albuquerque, NM, Albuquerque Inter- Newport, VT, Newport State Airport
national Airport
DISTRICT NO. 23 [RESERVED]
El Paso, TX, International Airport
Presidio, TX, Presidio Airport DISTRICT NO. 24—CLEVELAND, OHIO
Santa Teresa, NM, Santa Teresa Airport
Akron, OH, Municipal Airport
DISTRICT NO. 16—LOS ANGELES, CALIFORNIA Cincinnati, OH, Cincinnati International
Los Angeles, CA, Los Angeles International Airport
Airport Cleveland, OH, Cleveland Hopkins Airport
Ontario, CA, Ontario International Airport Columbus, OH, Port Columbus International
Airport
DISTRICT NO. 17—HONOLULU, HAWAII Sandusky, OH, Griffing/Sandusky Airport
Agana, Guam, Guam International Airport DISTRICT NO. 25—WASHINGTON, D.C.
Terminal.
Honolulu, HI, Honolulu International Air- Camp Springs, MD, Andrews Air Force Base
port. Chantilly, VA, Washington Dulles Inter-
Honolulu, HI, Hickam Air Force Base. national Airport
Rota, the Commonwealth of the Northern Winchester, VA, Winchester Airport
Mariana Islands.
DISTRICT NO. 26—ATLANTA, GEORGIA
Saipan, the Commonwealth of the Northern
Mariana Islands. Atlanta, GA, Atlanta Hartsfield Inter-
Tinian, the Commonwealth of the Northern national Airport
Mariana Islands. Charleston, SC, Charleston International
Airport
DISTRICT NO. 18—PHOENIX, ARIZONA Charleston, SC, Charleston Air Force Base
Douglas, AZ, Bisbee-Douglas Airport Charlotte, NC, Charlotte International Air-
Las Vegas, NV, McCarren International Air- port
port Raleigh, NC, Raleigh-Durham International
Nogales, AZ, Nogales International Airport Airport
Phoenix, AZ, Phoenix Sky Harbor Inter- Savannah, GA, Savannah International Air-
national Airport port
Reno, NV, Reno Carron International Air-
port DISTRICT NO. 27—SAN JUAN, PUERTO RICO
Tucson, AZ, Tucson International Airport San Juan, PR, San Juan International Air-
Yuma, AZ, Yuma International Airport port
DISTRICT NO. 19—DENVER, COLORADO DISTRICT NO. 28—NEW ORLEANS, LOUISIANA
Colorado Springs, CO, Colorado Springs Air- Louisville, KY, Louisville International Air-
port port
Denver, CO, Denver International Airport New Orleans, LA, New Orleans International
Salt Lake City, UT, Salt Lake City Airport
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Airport
Memphis, TN, Memphis International Air-
DISTRICT NO. 20—DALLAS, TEXAS
port
Dallas, TX, Dallas-Fort Worth International Nashville, TN, Nashville International Air-
Airport port
20
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Department of Homeland Security § 100.4
DISTRICT NO. 29—OMAHA, NEBRASKA SECTOR NO. 2—SWANTON, VERMONT
Des Moines, IA, Des Moines International Beecher Falls, VT
Airport Burke, NY
Omaha, NE, Eppley International Airport Champlain, NY
Omaha, NE, Offutt Air Force Base Massena, NY
Newport, VT
DISTRICT NO. 30—HELENA, MONTANA Ogdensburg, NY
Billings, MT, Billings Airport Richford, VT
Boise, ID, Boise Airport Swanton, VT
Cut Bank, MT, Cut Bank Airport
Glasgow, MT, Glasgow International Airport SECTOR NO. 3—RAMEY, PUERTO RICO
Great Falls, MT, Great Falls International Ramey, Puerto Rico
Airport
Havre, MT, Havre-Hill County Airport SECTOR NO. 4—BUFFALO, NEW YORK
Helena, MT, Helena Airport Buffalo, NY
Kalispel, MT, Kalispel Airport Fulton, NY
Missoula, MT, Missoula Airport
Niagara Falls, NY
DISTRICT NO. 31—PORTLAND, OREGON Watertown, NY
21
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§ 100.5 8 CFR Ch. I (1–1–10 Edition)
SECTOR NO. 10—LIVERMORE, CALIFORNIA Sierra Blanca, TX
Van Horn, TX
Bakersfield, CA
Fresno, CA SECTOR NO. 17—DEL RIO, TEXAS
Livermore, CA
Oxnard, CA Abilene, TX
Sacramento, CA Brackettville, TX
Salinas, CA Carrizo Springs, TX
San Luis Obispo, CA Comstock, TX
Stockton, CA Del Rio, TX
Eagle Pass, TX
SECTOR NO. 11—SAN DIEGO, CALIFORNIA Llano, TX
Rocksprings, TX
Brown Field, CA San Angelo, TX
Campo, CA (Boulevard, CA) Uvalde, TX
Chula Vista, CA
El Cajon, CA (San Marcos and Julian, CA) SECTOR NO. 18—LAREDO, TEXAS
Imperial Beach, CA
San Clemente, CA Cotulla, TX
Temecula, CA Dallas, TX
Freer, TX
SECTOR NO. 12—EL CENTRO, CALIFORNIA Hebbronville, TX
Laredo North, TX
Calexico, CA Laredo South, TX
El Centro, CA San Antonio, TX
Indio, CA Zapata, TX
Riverside, CA
SECTOR NO. 19—MCALLEN, TEXAS
SECTOR NO. 13—YUMA, ARIZONA
Brownsville, TX
Blythe, CA Corpus Christi, TX
Boulder City, NV Falfurrias, TX
Wellton, AZ Harlingen, TX
Yuma, AZ Kingsville, TX
McAllen, TX
SECTOR NO. 14—TUCSON, ARIZONA Mercedes, TX
Ajo, AZ Port Isabel, TX
Casa Grande, AZ Rio Grande City, TX
Douglas, AZ
Naco, AZ SECTOR NO. 20—NEW ORLEANS, LOUISIANA
Nogales, AZ Baton Rouge, LA
Phoenix, AZ Gulfport, MS
Sonita, AZ Lake Charles, LA
Tucson, AZ Little Rock, AR
Willcox, AZ Miami, OK
Mobile, AL
SECTOR NO. 15—EL PASO, TEXAS New Orleans, LA
Alamogordo, NM
Albuquerque, NM SECTOR NO. 21—MIAMI, FLORIDA
Carlsbad, NM Jacksonville, FL
Deming, NM Orlando, FL
El Paso, TX Pembroke Pines, FL
Fabens, TX Tampa, FL
Fort Hancock, TX West Palm Beach, FL
Las Cruces, NM,
Lordsburg, NM [60 FR 57166, Nov. 14, 1995, as amended at 61
Truth or Consequences, NM FR 25778, May 23, 1996; 63 FR 70315, Dec. 21,
Ysleta, TX 1998; 65 FR 39072, June 23, 2000; 66 FR 29672,
June 1, 2001; 74 FR 2833, Jan. 16, 2009; 74 FR
SECTOR NO. 16—MARFA, TEXAS 26936, June 5, 2009]
Alpine, TX
Amarillo, TX § 100.5 Regulations.
Fort Stockton, TX The regulations of the Department of
Lubbock, TX
Homeland Security, published as chap-
cprice-sewell on DSK2BSOYB1PROD with CFR
Marfa, TX
Midland, TX ter I of title 8 of the Code of Federal
Pecos, TX Regulations, contain information
Presidio, TX which under the provisions of section
Sanderson, TX 552 of title 5 of the United States Code,
22
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Department of Homeland Security § 100.7
is required to be published and is sub- 8 CFR part or section where identified and de- Current
divided into subchapter A (General OMB control
scribed No.
Provisions, parts 1 through 3, inclu-
sive), subchapter B (Immigration Regu- 212.6 .................................................................. 1115–0047
212.7 .................................................................. 1115–0048
lations, parts 100 through 299, inclu- 212.7(c) .............................................................. 1115–0059
sive), and subchapter C (Nationality 212.8(b) ............................................................. 1115–0081
Regulations, parts 306 through 499, in- 214.1 .................................................................. 1115–0051
214.1(c) .............................................................. 1115–0093
clusive). Any person desiring informa- 214.2(e) ............................................................. 1115–0023
tion with respect to a particular proce- 214.2(f) .............................................................. 1115–0060
dure (other than rule making) under 214.2(f) .............................................................. 1115–0051
the Immigration and Nationality Act 214.2(g) ............................................................. 1115–0090
214.2(h) ............................................................. 1115–0038
should examine the part or section in 214.2(k) .............................................................. 1115–0071
chapter I of title 8 of the Code of Fed- 214.2(l) ............................................................... 1115–0038
eral Regulations dealing with such pro- 214.2(m) ............................................................ 1115–0060
214.2(m) ............................................................ 1115–0051
cedures as well as the section of the 214.3 .................................................................. 1115–0070
Act implemented by such part or sec- 214.3(g) ............................................................. 1115–0051
tion. Part 223 ............................................................. 1115–0005
Part 223a ........................................................... 1115–0084
[32 FR 9616, July 4, 1967, as amended at 74 FR 223.1 .................................................................. 1115–0037
26936, June 5, 2009] Part 231 ............................................................. 1115–0083
Part 231 ............................................................. 1115–0078
§ 100.6 [Reserved] Part 231 ............................................................. 1115–0108
Part 232 ............................................................. 1115–0036
Part 233 ............................................................. 1115–0036
§ 100.7 OMB control numbers assigned 234.2(c) .............................................................. 1115–0048
to information collections. Part 235 ............................................................. 1115–0077
This section collects and displays the 235.1(e) ............................................................. 1115–0065
243.4 .................................................................. 1115–0055
control numbers assigned to informa- 243.7 .................................................................. 1115–0043
tion collection requirements of the De- Part 244 ............................................................. 1115–0025
partment of Homeland Security by the Part 245 ............................................................. 1115–0053
Part 245 ............................................................. 1115–0066
Office of Management and Budget 245.2 .................................................................. 1115–0089
(OMB) pursuant to the Paperwork Re- 245.2(a)(2) ......................................................... 1115–0067
duction Act of 1980, Public Law 96–511. 247.11 ................................................................ 1115–0037
The Service intends that this section 247.12 ................................................................ 1115–0037
247.13 ................................................................ 1115–0037
comply with the requirements of sec- 248.3 .................................................................. 1115–0032
tion 3507(f) of the Paperwork Reduction 248.3(b) ............................................................. 1115–0038
Act, which requires that agencies dis- 248.4 .................................................................. 1115–0038
Part 249 ............................................................. 1115–0053
play a current control number assigned Part 249 ............................................................. 1115–0066
by the Director of the Office of Man- Part 250 ............................................................. 1115–0020
agement and Budget for each agency Part 251 ............................................................. 1115–0083
information collection requirement. Part 251 ............................................................. 1115–0040
Part 252 ............................................................. 1115–0040
Current 252.1(f) .............................................................. 1115–0073
8 CFR part or section where identified and de- 253.1 .................................................................. 1115–0029
OMB control
scribed 264.1 .................................................................. 1115–0004
No.
264.1(c) .............................................................. 1115–0079
103.2(b)(1) ......................................................... 1115–0062 264.1(f) .............................................................. 1115–0002
103.6 .................................................................. 1115–0085 265.1 .................................................................. 1115–0003
103.6(c) .............................................................. 1115–0046 292.2 .................................................................. 1115–0026
103.10(a)(2) ....................................................... 1115–0087 316a.21 .............................................................. 1115–0014
103.10(f) ............................................................ 1115–0088 319.11 ................................................................ 1115–0009
204.1(a) ............................................................. 1115–0054 Part 322 ............................................................. 1115–0010
204.1(b) ............................................................. 1115–0049 324.11 ................................................................ 1115–0009
204.1(c) .............................................................. 1115–0061 327.1 .................................................................. 1115–0009
Part 207 ............................................................. 1115–0057 Part 328 ............................................................. 1115–0009
207.2 .................................................................. 1115–0066 328.3 .................................................................. 1115–0022
207.2(d) ............................................................. 1115–0056 Part 329 ............................................................. 1115–0009
207.3(b) ............................................................. 1115–0098 329.2 .................................................................. 1115–0022
Part 208 ............................................................. 1115–0086 Part 330 ............................................................. 1115–0009
211.1(b)(3) ......................................................... 1115–0042 Part 330 ............................................................. 1115–0031
211.2 .................................................................. 1115–0042 Part 334a ........................................................... 1115–0008
212.1(f) .............................................................. 1115–0042 334.11 ................................................................ 1115–0009
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Pt. 101 8 CFR Ch. I (1–1–10 Edition)
8 CFR part or section where identified and de- Current migration station in Canada and that a
OMB control record of such preexamination exists.
scribed No.
(c) Virgin Islands. An alien who estab-
Part 341 ............................................................. 1115–0018 lishes that he entered the Virgin Is-
341.1(b) ............................................................. 1115–0009
343a.1 ................................................................ 1115–0015
lands of the United States prior to July
343b ................................................................... 1115–0016 1, 1938, even though a record of his ad-
mission prior to that date exists as a
non-immigrant under the Immigration
[48 FR 37201, Aug. 17, 1983, as amended at 73
FR 58030, Oct. 6, 2008; 74 FR 26936, June 5,
Act of 1924.
2009] (d) Asiatic barred zone. An alien who
establishes that he is of a race indige-
nous to, and a native of a country with-
PART 101—PRESUMPTION OF in, the Asiatic zone defined in section 3
LAWFUL ADMISSION of the Act of February 5, 1917, as
amended, that he was a member of a
Sec. class of aliens exempted from exclusion
101.1 Presumption of lawful admission.
101.2 Presumption of lawful admission;
by the provisions of that section, and
entry under erroneous name or other er- that he entered the United States prior
rors. to July 1, 1924, provided that a record
101.3 Creation of record of lawful permanent of his admission exists.
resident status for person born under dip- (e) Chinese and Japanese aliens—(1)
lomatic status in the United States. Prior to July 1, 1924. A Chinese alien for
101.4 Registration procedure. whom there exists a record of his ad-
101.5 Special immigrant status for certain mission to the United States prior to
G–4 nonimmigrants.
July 1, 1924, under the laws and regula-
AUTHORITY: 8 U.S.C. 1103, 8 CFR part 2. tions formerly applicable to Chinese
and who establishes that at the time of
§ 101.1 Presumption of lawful admis- his admission he was a merchant,
sion. teacher, or student, and his son or
A member of the following classes daughter under 21 or wife accom-
shall be presumed to have been law- panying or following to join him; a
fully admitted for permanent residence traveler for curiosity or pleasure and
even though a record of his admission his accompanying son or daughter
cannot be found, except as otherwise under 21 or accompanying wife; a wife
provided in this section, unless he of a United States citizen; a returning
abandoned his lawful permanent resi- laborer; and a person erroneously ad-
dent status or subsequently lost that mitted as a United States citizen under
status by operation of law: section 1993 of the Revised Statutes of
(a) Prior to June 30, 1906. An alien who the United States, as amended, his fa-
establishes that he entered the United ther not having resided in the United
States prior to June 30, 1906. States prior to his birth.
(b) United States land borders. An alien (2) On or after July 1, 1924. A Chinese
who establishes that, while a citizen of alien for whom there exists a record of
Canada or Newfoundland, he entered his admission to the United States as a
the United States across the Canadian member of one of the following classes;
border prior to October 1, 1906; an alien an alien who establishes that he was
who establishes that while a citizen of readmitted between July 1, 1924, and
Mexico he entered the United States December 16, 1943, inclusive, as a re-
across the Mexican border prior to July turning Chinese laborer who acquired
1, 1908; an alien who establishes that, lawful permanent residence prior to
while a citizen of Mexico, he entered July 1, 1924; a person erroneously ad-
the United States at the port of Pre- mitted between July 1, 1924, and June
sidio, Texas, prior to October 21, 1918, 6, 1927, inclusive, as a United States
and an alien for whom a record of his citizen under section 1993 of the Re-
actual admission to the United States vised Statutes of the United States, as
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does not exist but who establishes that amended, his father not having resided
he gained admission to the United in the United States prior to his birth;
States prior to July 1, 1924, pursuant to an alien admitted at any time after
preexamination at a United States im- June 30, 1924, under section 4 (b) or (d)
24
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Department of Homeland Security § 101.1
of the Immigration Act of 1924; an alien cept if admitted temporarily under the
wife of a United States citizen admit- 9th proviso to section 3 of the Immigra-
ted between June 13, 1930, and Decem- tion Act of 1917, or as an accredited of-
ber 16, 1943, inclusive, under section ficial of a foreign government, his
4(a) of the Immigration Act of 1924; an suite, family, or guest, or as a seaman
alien admitted on or after December 17, in pursuit of his calling; an alien ad-
1943, under section 4(f) of the Immigra- mitted under the Act of May 19, 1921, as
tion Act of 1924; an alien admitted on amended, who was admissible for per-
or after December 17, 1943, under sec- manent residence under that Act not-
tion 317(c) of the Nationality Act of withstanding the quota limitation’s
1940, as amended; an alien admitted on thereof and his accompanying wife or
or after December 17, 1943, as a pref- unmarried son or daughter under 21
erence or nonpreference quota immi- who was admissible for permanent resi-
grant pursuant to section 2 of that act; dence under that Act notwithstanding
and a Chinese or Japanese alien admit- the quota limitations thereof; and an
ted to the United States between July alien admitted under the Act of May
1, 1924, and December 23, 1952, both 19, 1921, as amended, who was charged
dates inclusive, as the wife or minor under that Act to the proper quota at
son or daughter of a treaty merchant the time of his admission or subse-
admitted before July 1, 1924, if the hus- quently and who remained so charged.
band-father was lawfully admitted to (h) Citizens of the Trust Territory of the
the United States as a treaty merchant Pacific Islands who entered Guam prior to
before July 1, 1924, or, while maintain- December 24, 1952. An alien who estab-
ing another status under which he was lishes that while a citizen of the Trust
admitted before that date, and his sta- Territory of the Pacific Islands he en-
tus changed to that of a treaty mer- tered Guam prior to December 24, 1952,
chant or treaty trader after that date, by records, such as Service records sub-
and was maintaining the changed sta- sequent to June 15, 1952, records of the
tus at the time his wife or minor son or Guamanian Immigration Service,
daughter entered the United States. records of the Navy or Air Force, or
(f) Citizens of the Philippine Islands— records of contractors of those agen-
(1) Entry prior to May 1, 1934. An alien cies, and was residing in Guam on De-
who establishes that he entered the cember 24, 1952.
United States prior to May 1, 1934, and (i) Aliens admitted to Guam. An alien
that he was on the date of his entry a who establishes that he was admitted
citizen of the Philippine Islands, pro- to Guam prior to December 24, 1952, by
vided that for the purpose of peti- records such as Service records subse-
tioning for naturalization he shall not quent to June 15, 1952, records of the
be regarded as having been lawfully ad- Guamanian Immigration Service,
mitted for permanent residence unless records of the Navy or Air Force, or
he was a citizen of the Commonwealth records of contractors of those agen-
of the Philippines on July 2, 1946. cies; that he was not excludable under
(2) Entry between May 1, 1934, and July the Act of February 5, 1917, as amend-
3, 1946. An alien who establishes that ed; and that he continued to reside in
he entered Hawaii between May 1, 1934, Guam until December 24, 1952, and
and July 3, 1946, inclusive, under the thereafter was not admitted or re-
provisions of the last sentence of sec- admitted into Guam as a non-
tion 8(a)(1) of the Act of March 24, 1934, immigrant, provided that the provi-
as amended, that he was a citizen of sions of this paragraph shall not apply
the Philippine Islands when he entered, to an alien who was exempted from the
and that a record of such entry exists. contract laborer provisions of section 3
(g) Temporarily admitted aliens. The of the Immigration Act of February 5,
following aliens who when admitted ex- 1917, as amended, through the exercise,
pressed an intention to remain in the expressly or impliedly, of the 4th or 9th
United States temporarily or to pass in provisos to section 3 of that act.
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transit through the United States, for (j) Erroneous admission as United
whom records of admission exist, but States citizens or as children of citizens.
who remained in the United States: An (1)(i) An alien for whom there exists a
alien admitted prior to June 3, 1921, ex- record of admission prior to September
25
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§ 101.2 8 CFR Ch. I (1–1–10 Edition)
11, 1957, as a United States citizen who partment or Service knew of the can-
establishes that at the time of such ad- cellation.
mission he was the child of a United
[23 FR 9119, Nov. 26, 1958, as amended at 24
States citizen parent; he was erro- FR 2583, Apr. 3, 1959; 24 FR 6476, Aug. 12, 1959;
neously issued a United States pass- 25 FR 581, Jan. 23, 1960; 31 FR 535, Jan. 15,
port or included in the United States 1966]
passport of his citizen parent accom-
panying him or to whom he was des- § 101.2 Presumption of lawful admis-
tined; no fraud or misrepresentation sion; entry under erroneous name
or other errors.
was practiced by him in the issuance of
the passport or in gaining admission; An alien who entered the United
he was otherwise admissible at the States as either an immigrant or non-
time of entry except for failure to meet immigrant under any of the following
visa or passport requirements; and he circumstances shall be regarded as hav-
has maintained a residence in the ing been lawfully admitted in such sta-
United States since the date of admis- tus, except as otherwise provided in
sion, or (ii) an alien who meets all of this part: An alien otherwise admis-
the foregoing requirements except that sible whose entry was made and re-
if he were, in fact, a citizen of the corded under other than his full true
United States a passport would not and correct name or whose entry
have been required, or it had been indi- record contains errors in recording sex,
vidually waived, and was erroneously names of relatives, or names of foreign
admitted as a United States citizen by places of birth or residence, provided
a Service officer. For the purposes of that he establishes by clear, unequivo-
all of the foregoing, the terms child and cal, and convincing evidence that the
parent shall be defined as in section record of the claimed admission relates
101(b) of the Immigration and Nation- to him, and, if entry occurred on or
after May 22, 1918, if under other than
ality Act, as amended.
his full, true and correct name that he
(2) An alien admitted to the United also establishes that the name was not
States before July 1, 1948, in possession adopted for the purpose of concealing
of a section 4(a) 1924 Act nonquota im- his identity when obtaining a passport
migration visa issued in accordance or visa, or for the purpose of using the
with State Department regulations, in- passport or visa of another person or
cluding a child of a United States cit- otherwise evading any provision of the
izen after he reached the age of 21, in immigration laws, and that the name
the absence of fraud or misrepresenta- used at the time of entry was one by
tion; a member of a naturalized per- which he had been known for a suffi-
son’s family who was admitted to the cient length of time prior to making
United States as a United States cit- application for a passport or visa to
izen or as a section 4(a) 1924 Act have permitted the issuing authority
nonquota immigrant on the basis of or authorities to have made any nec-
that naturalization, unless he know- essary investigation concerning him or
ingly participated in the unlawful nat- that his true identity was known to
uralization of the parent or spouse ren- such officials.
dered void by cancellation, or knew at [32 FR 9622, July 4, 1967]
any time prior to his admission to the
United States of the cancellation; and § 101.3 Creation of record of lawful
a member of a naturalized person’s permanent resident status for per-
family who knew at any time prior to son born under diplomatic status in
his admission to the United States of the United States.
the cancellation of the naturalization (a) Person born to foreign diplomat—(1)
of his parent or spouse but was admit- Status of person. A person born in the
ted to the United States as a United United States to a foreign diplomatic
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States citizen pursuant to a State De- officer accredited to the United States,
partment or Service determination as a matter of international law, is not
based upon a then prevailing adminis- subject to the jurisdiction of the
trative view, provided the State De- United States. That person is not a
26
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Department of Homeland Security § 101.5
United States citizen under the Four- United States to a foreign diplomatic
teenth Amendment to the Constitu- officer is not subject to the jurisdiction
tion. Such a person may be considered of the United States, his/her registra-
a lawful permanent resident at birth. tion as a lawful permanent resident of
(2) Definition of foreign diplomatic offi- the United States is voluntary. The
cer. Foreign diplomatic officer means a provisions of section 262 of the Act do
person listed in the State Department not apply to such a person unless and
Diplomatic List, also known as the until that person ceases to have the
Blue List. It includes ambassadors, rights, privileges, exemptions, or im-
ministers, chargés d’affaires, coun- munities which may be claimed by a
selors, secretaries and attachés of em- foreign diplomatic officer.
bassies and legations as well as mem- (d) Retention of lawful permanent resi-
bers of the Delegation of the Commis- dence. To be eligible for lawful perma-
sion of the European Communities. The nent resident status under paragraph
term also includes individuals with (a) of this section, an alien must estab-
comparable diplomatic status and im- lish that he/she has not abandoned his/
munities who are accredited to the her residence in the United States. One
United Nations or to the Organization of the tests for retention of lawful per-
of American States, and other individ- manent resident status is continuous
uals who are also accorded comparable residence, not continuous physical
diplomatic status. presence, in the United States. Such a
(b) Child born subject to the jurisdiction person will not be considered to have
of the United States. A child born in the abandoned his/her residence in the
United States is born subject to the ju- United States solely by having been ad-
risdiction of the United States and is a mitted to the United States in a non-
United States citizen if the parent is immigrant classification under para-
not a ‘‘foreign diplomatic officer’’ as graph (15)(A) or (15)(G) of section 101(a)
defined in paragraph (a)(2) of this sec- of the Act after a temporary stay in a
tion. This includes, for example, a foreign country or countries on one or
child born in the United States to one several occasions.
of the following foreign government of- (Secs. 101(a)(20), 103, 262, 264 of the Immigra-
ficials or employees: tion and Nationality Act, as amended; 8
(1) Employees of foreign diplomatic U.S.C. 1101(a)(20), 1103, 1302, 1304)
missions whose names appear in the
[47 FR 940, Jan. 8, 1982]
State Department list entitled ‘‘Em-
ployees of Diplomatic Missions Not § 101.4 Registration procedure.
Printed in the Diplomatic List,’’ also
known as the White List; employees of The procedure for an application for
foreign diplomatic missions accredited creation of a record of lawful perma-
to the United Nations or the Organiza- nent residence and a Permanent Resi-
tion of American States; or foreign dip- dent Card, Form I–551, for a person eli-
lomats accredited to other foreign gible for presumption of lawful admis-
states. The majority of these individ- sion for permanent residence under
uals enjoy certain diplomatic immuni- § 101.1 or § 101.2 or for lawful permanent
ties, but they are not ‘‘foreign diplo- residence as a person born in the
matic officers’’ as defined in paragraph United States to a foreign diplomatic
(a)(2) of this section. The immunities, officer under § 101.3 is described in
if any, of their family members are de- § 264.2 of this chapter.
rived from the status of the employees (Secs. 101(a)(20), 103, 262, 264 of the Immigra-
or diplomats. tion and Nationality Act, as amended; 8
(2) Foreign government employees U.S.C. 1101(a)(20), 1103, 1302, 1304)
with limited or no diplomatic immu- [47 FR 941, Jan. 8, 1982, as amended at 63 FR
nity such as consular officials named 70315, Dec. 21, 1998]
on the State Department list entitled
‘‘Foreign Consular Officers in the § 101.5 Special immigrant status for
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Pt. 103 8 CFR Ch. I (1–1–10 Edition)
shall be made on Form I–485. The appli- United States. Absence from the
cation date of the I–485 shall be the United States by the G–4 spouse or un-
date of acceptance by the Service as married son or daughter without the
properly filed. If the application date is principle G–4 shall not be subtracted
other than the fee receipt date it must from the aggregate period of residence
be noted and initialed by a Service offi- and physical presence if on customary
cer. The date of application for adjust- leave as recognized by the inter-
ment of status is the closing date for national organization employer. Ab-
computing the residence and physical sence by the unmarried son or daugh-
presence requirement. The applicant ter while enrolled in a school outside
must have complied with all require- the United States will not be counted
ments as of the date of application. toward the physical presence require-
(b) Documentation. All documents ment.
must be submitted in accordance with (d) Maintenance of nonimmigrant sta-
§ 103.2(b) of this chapter. The applica- tus. Section 101(a)(27)(I) (i), and (ii) re-
tion shall be accompanied by documen- quires the applicant to accrue the re-
tary evidence establishing the aggre- quired period of residence and physical
gate residence and physical presence presence in the United States while
required. Documentary evidence may maintaining status as a G–4 or N non-
include official employment immigrant. Section 101(a)(27)(I)(iii) re-
verification, records of official or per- quires such time accrued only in G–4
sonnel transactions or recordings of nonimmigrant status.
events occurring during the period of Maintaining G–4 status for this pur-
claimed residence and physical pres- pose is defined as maintaining qualified
ence. Affidavits of credible witnesses employment with a ‘‘G’’ international
may also be accepted. Persons unable organization or maintaining the quali-
to furnish evidence in their own names fying family relationship with the G–4
may furnish evidence in the names of international organization officer or
parents or other persons with whom employee. Maintaining status as an N
they have been living, if affidavits of nonimmigrant for this purpose requires
the parents or other persons are sub- the qualifying family relationship to
mitted attesting to the claimed resi- remain in effect. Unauthorized employ-
dence and physical presence. The ment will not remove an otherwise eli-
claimed family relationship to the gible alien from G–4 status for resi-
principle G–4 international organiza- dence and physical presence require-
tion officer or employee must be sub- ments, provided the qualifying G–4 sta-
stantiated by the submission of tus is maintained.
verifiable civil documents.
[54 FR 5927, Feb. 7, 1989]
(c) Residence and physical presence re-
quirements. All applicants applying
under sections 101(a)(27)(I) (i), (ii), and PART 103—POWERS AND DUTIES;
(iii) of the INA must have resided and AVAILABILITY OF RECORDS
been physically present in the United
States for a designated period of time. Sec.
For purposes of this section only, an 103.1 Delegations of authority; designation
absence from the United States to con- of immigration officers.
103.2 Applications, petitions, and other doc-
duct official business on behalf of the uments.
employing organization, or approved 103.3 Denials, appeals, and precedent deci-
customary leave shall not be sub- sions.
tracted from the aggregated period of 103.4 Certifications.
required residence or physical presence 103.5 Reopening or reconsideration.
for the current or former G–4 officer or 103.5a Service of notification, decisions, and
employee or the accompanying spouse other papers by the Service.
and unmarried sons or daughters of 103.5b Application for further action on an
approved application or petition.
such officer or employee, provided resi-
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Department of Homeland Security § 103.2
103.9 Availability of decisions and interpre- officer, Border Patrol agent, aircraft
tive material under the Freedom of In- pilot, airplane pilot, helicopter pilot,
formation Act. deportation officer, detention enforce-
103.10 Requests for records under the Free-
dom of Information Act.
ment officer, detention officer, investi-
103.11 Business information. gator, special agent, investigative as-
103.12 Definition of the term ‘‘lawfully sistant, immigration enforcement
present’’ aliens for purposes of applying agent, intelligence officer, intelligence
for Title II Social Security benefits agent, general attorney (except with
under Public Law 104–193. respect to CBP, only to the extent that
103.20 Purpose and scope. the attorney is performing any immi-
103.21 Access by individuals to records
gration function), applications adjudi-
maintained about them.
103.22 Records exempt in whole or in part. cator, contact representative, legaliza-
103.23 Special access procedures. tion adjudicator, legalization officer,
103.24 Requests for accounting of record dis- legalization assistant, forensic docu-
closure. ment analyst, fingerprint specialist,
103.25 Notice of access decisions; time lim- immigration information officer, im-
its. migration agent (investigations), asy-
103.26 Fees for copies of records. lum officer, other officer or employee
103.27 Appeals from denials of access.
103.28 Requests for correction of records. of the Department of Homeland Secu-
103.29 Records not subject to correction. rity or of the United States as des-
103.30 Accounting for disclosures. ignated by the Secretary of Homeland
103.31 Notices of subpoenas and emergency Security as provided in § 2.1 of this
disclosures. chapter. Any customs officer, as de-
103.32 Information forms. fined in 19 CFR 24.16, is hereby author-
103.33 Contracting record systems.
103.34 Security of records systems.
ized to exercise the powers and duties
103.35 Use and collection of Social Security of an immigration officer as specified
numbers. by the Act and this chapter.
103.36 Employee standards of conduct with [68 FR 10923, Mar. 6, 2003, as amended at 68
regard to privacy.
FR 35275, June 13, 2003; 69 FR 35234, June 24,
103.37 Precedent decisions.
2004]
103.38 Genealogy Program.
103.39 Historical Records.
103.40 Genealogical research requests.
§ 103.2 Applications, petitions, and
103.41 Genealogy request fees.
other documents.
AUTHORITY: 5 U.S.C. 301, 552, 552a; 8 U.S.C.
(a) Filing—(1) General. Every applica-
1101, 1103, 1304, 1356; 31 U.S.C. 9701; Public tion, petition, appeal, motion, request,
Law 107–296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); or other document submitted on any
E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 form prescribed by this chapter I, not-
Comp., p. 166; 8 CFR part 2. withstanding any other regulations to
SOURCE: 40 FR 44481, Sept. 26, 1975, unless the contrary, must be filed with the lo-
otherwise noted. cation and executed in accordance with
the instructions on the form, such in-
§ 103.1 Delegations of authority; des- structions being hereby incorporated
ignation of immigration officers. into the particular section of the regu-
(a) Delegations of authority. Delega- lations in this chapter I requiring its
tions of authority to perform functions submission. The form must be filed
and exercise authorities under the im- with the appropriate filing fee required
migration laws may be made by the by § 103.7. Except as exempted by para-
Secretary of Homeland Security as pro- graph (e) of this section, forms which
vided by § 2.1 of this chapter. require an applicant, petitioner, spon-
(b) Immigration Officer. The following sor, beneficiary, or other individual to
employees of the Department of Home- complete Form FD–258, Applicant Card,
land Security, including senior or su- must also be filed with the service fee
pervisory officers of such employees, for fingerprinting, as required by
are designated as immigration officers § 103.7(b)(1), for each individual who re-
authorized to exercise the powers and quires fingerprinting. Filing fees and
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§ 103.2 8 CFR Ch. I (1–1–10 Edition)
30
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Department of Homeland Security § 103.2
regulations and/or the form’s instruc- that the applicant or petitioner submit
tions. Any evidence submitted in con- the required document or statement.
nection with the application or peti- (iii) Evidence provided with a self-peti-
tion is incorporated into and consid- tion filed by a spouse or child of abusive
ered part of the relating application or citizen or resident. The USCIS will con-
petition. sider any credible evidence relevant to
(2) Submitting secondary evidence and a self-petition filed by a qualified
affidavits—(i) General. The non-exist- spouse or child of an abusive citizen or
ence or other unavailability of required lawful permanent resident under sec-
evidence creates a presumption of in- tion 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),
eligibility. If a required document, 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the
such as a birth or marriage certificate, Act. The self-petitioner may, but is not
does not exist or cannot be obtained, required to, demonstrate that preferred
an applicant or petitioner must dem- primary or secondary evidence is un-
onstrate this and submit secondary available. The determination of what
evidence, such as church or school evidence is credible and the weight to
records, pertinent to the facts at issue. be given that evidence shall be within
If secondary evidence also does not the sole discretion of USCIS.
exist or cannot be obtained, the appli- (3) Translations. Any document con-
cant or petitioner must demonstrate taining foreign language submitted to
the unavailability of both the required USCIS shall be accompanied by a full
document and relevant secondary evi- English language translation which the
dence, and submit two or more affida- translator has certified as complete
vits, sworn to or affirmed by persons and accurate, and by the translator’s
who are not parties to the petition who certification that he or she is com-
have direct personal knowledge of the petent to translate from the foreign
event and circumstances. Secondary language into English.
evidence must overcome the unavail- (4) Submitting copies of documents. Ap-
ability of primary evidence, and affida- plication and petition forms, and docu-
vits must overcome the unavailability ments issued to support an application
of both primary and secondary evi- or petition (such as labor certifi-
dence. cations, Form DS 2019, medical exami-
(ii) Demonstrating that a record is not nations, affidavits, formal consulta-
available. Where a record does not tions, letters of current employment
exist, the applicant or petitioner must and other statements) must be sub-
submit an original written statement mitted in the original unless pre-
on government letterhead establishing viously filed with USCIS. Official docu-
this from the relevant government or ments issued by the Department or by
other authority. The statement must the former Immigration and Natu-
indicate the reason the record does not ralization Service need not be sub-
exist, and indicate whether similar mitted in the original unless required
records for the time and place are by USCIS. Unless otherwise required
available. However, a certification by the applicable regulation or form’s
from an appropriate foreign govern- instructions, a legible photocopy of
ment that a document does not exist is any other supporting document may be
not required where the Department of submitted. Applicants and petitioners
State’s Foreign Affairs Manual indi- need only submit those original docu-
cates this type of document generally ments necessary to support the benefit
does not exist. An applicant or peti- sought. However, original documents
tioner who has not been able to acquire submitted when not required will re-
the necessary document or statement main a part of the record.
from the relevant foreign authority (5) Request for an original document.
may submit evidence that repeated USCIS may, at any time, request sub-
good faith attempts were made to ob- mission of an original document for re-
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tain the required document or state- view. The request will set a deadline
ment. However, where USCIS finds for submission of the original docu-
that such documents or statements are ment. Failure to submit the requested
generally available, it may require original document by the deadline may
31
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§ 103.2 8 CFR Ch. I (1–1–10 Edition)
result in denial or revocation of the un- discretion may deny the application or
derlying application or benefit. An petition for lack of initial evidence or
original document submitted in re- for ineligibility or request that the
sponse to such a request, when no missing initial evidence be submitted
longer required by USCIS, will be re- within a specified period of time as de-
turned to the petitioner or applicant termined by USCIS.
upon completion of the adjudication. If (iii) Other evidence. If all required ini-
USCIS does not return an original doc- tial evidence has been submitted but
ument within a reasonable time after the evidence submitted does not estab-
completion of the adjudication, the pe- lish eligibility, USCIS may: deny the
titioner or applicant may request re- application or petition for ineligibility;
turn of the original document by sub- request more information or evidence
mitting a properly completed and
from the applicant or petitioner, to be
signed Form G–884 to the adjudicating
submitted within a specified period of
USCIS office.
time as determined by USCIS; or notify
(6) Withdrawal. An applicant or peti-
the applicant or petitioner of its intent
tioner may withdraw an application or
petition at any time until a decision is to deny the application or petition and
issued by USCIS or, in the case of an the basis for the proposed denial, and
approved petition, until the person is require that the applicant or petitioner
admitted or granted adjustment or submit a response within a specified
change of status, based on the petition. period of time as determined by USCIS.
However, a withdrawal may not be re- (iv) Process. A request for evidence or
tracted. notice of intent to deny will be in writ-
(7) Testimony. The USCIS may require ing and will specify the type of evi-
the taking of testimony, and may di- dence required, and whether initial evi-
rect any necessary investigation. When dence or additional evidence is re-
a statement is taken from and signed quired, or the bases for the proposed
by a person, he or she shall, upon re- denial sufficient to give the applicant
quest, be given a copy without fee. Any or petitioner adequate notice and suffi-
allegations made subsequent to filing cient information to respond. The re-
an application or petition which are in quest for evidence or notice of intent
addition to, or in substitution for, to deny will indicate the deadline for
those originally made, shall be filed in response, but in no case shall the max-
the same manner as the original appli- imum response period provided in a re-
cation, petition, or document, and ac- quest for evidence exceed twelve
knowledged under oath thereon. weeks, nor shall the maximum re-
(8) Request for Evidence; Notice of In- sponse time provided in a notice of in-
tent to Deny—(i) Evidence of eligibility or tent to deny exceed thirty days. Addi-
ineligibility. If the evidence submitted tional time to respond to a request for
with the application or petition estab- evidence or notice of intent to deny
lishes eligibility, USCIS will approve
may not be granted.
the application or petition, except that
(9) Request for appearance. An appli-
in any case in which the applicable
statute or regulation makes the ap- cant, a petitioner, a sponsor, a bene-
proval of a petition or application a ficiary, or other individual residing in
matter entrusted to USCIS discretion, the United States at the time of filing
USCIS will approve the petition or ap- an application or petition may be re-
plication only if the evidence of record quired to appear for fingerprinting or
establishes both eligibility and that for an interview. A petitioner shall also
the petitioner or applicant warrants a be notified when a fingerprinting no-
favorable exercise of discretion. If the tice or an interview notice is mailed or
record evidence establishes ineligi- issued to a beneficiary, sponsor, or
bility, the application or petition will other individual. The applicant, peti-
be denied on that basis. tioner, sponsor, beneficiary, or other
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(ii) Initial evidence. If all required ini- individual may appear as requested by
tial evidence is not submitted with the USCIS, or prior to the dates and times
application or petition or does not for fingerprinting or of the date and
demonstrate eligibility, USCIS in its time of interview:
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Department of Homeland Security § 103.2
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§ 103.2 8 CFR Ch. I (1–1–10 Edition)
34
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Department of Homeland Security § 103.2
Receipt Cards (Form I–151), other reg- within one year of its inception, the
istration receipt forms (Forms AR–3, district director shall review the mat-
AR–3a, and AR–103, provided that such ter and determine whether adjudica-
forms were issued or endorsed to show tion of the petition or application
admission for permanent residence), should be held in abeyance for six
passports, and reentry permits. An offi- months or until the investigation is
cial record of a Department index card completed, whichever comes sooner. If,
must bear a designated immigrant visa after six months of the district direc-
symbol and must have been prepared tor’s determination, the investigation
by an authorized official of the Depart- has not been completed, the matter
ment in the course of processing immi- shall be reviewed again by the district
grant admissions or adjustments to director and, if he/she concludes that
permanent resident status. Other more time is needed to complete the
cards, certificates, declarations, per- investigation, adjudication may be
mits, and passports must have been held in abeyance for up to another six
issued or endorsed to show admission months. If the investigation is not
for permanent residence. Except as completed at the end of that time, the
otherwise provided in 8 CFR part 101, matter shall be referred to the regional
and in the absence of countervailing commissioner, who may authorize that
evidence, such official records will be adjudication be held in abeyance for
regarded as establishing lawful admis- another six months. Thereafter, if the
sion for permanent residence. Associate Commissioner, Examina-
(ii) Assisting self-petitioners who are tions, with the concurrence of the As-
spousal-abuse victims. If a self-petitioner sociate Commissioner, Enforcement,
filing a petition under section determines it is necessary to continue
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), to withhold adjudication pending com-
204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the pletion of the investigation, he/she
Act is unable to present primary or shall review that determination every
secondary evidence of the abuser’s sta- six months.
tus, USCIS will attempt to electroni-
(19) Notification. An applicant or peti-
cally verify the abuser’s citizenship or
tioner shall be sent a written decision
immigration status from information
on his or her application, petition, mo-
contained in the Department’s auto-
mated or computerized records. Other tion, or appeal. Where the applicant or
Department records may also be re- petitioner has authorized representa-
viewed at the discretion of the adjudi- tion pursuant to § 103.2(a), that rep-
cating officer. If USCIS is unable to resentative shall also be notified. Doc-
identify a record as relating to the uments produced after an approval no-
abuser, or the record does not establish tice is sent, such as an alien registra-
the abuser’s immigration or citizenship tion card, shall be mailed directly to
status, the self-petition will be adju- the applicant or petitioner.
dicated based on the information sub- (c)–(d) [Reserved]
mitted by the self-petitioner. (e) Fingerprinting—(1) General. USCIS
(18) Withholding adjudication. A dis- regulations in this chapter, including
trict director may authorize with- the instructions to benefit applications
holding adjudication of a visa petition and petitions, require certain appli-
or other application if the district di- cants, petitioners, beneficiaries, spon-
rector determines that an investiga- sors, and other individuals to be
tion has been undertaken involving a fingerprinted on Form FD–258, Appli-
matter relating to eligibility or the ex- cant Card, for the purpose of con-
ercise of discretion, where applicable, ducting criminal background checks.
in connection with the application or On and after December 3, 1997, USCIS
petition, and that the disclosure of in- will accept Form FD–258, Applicant
formation to the applicant or peti- Card, only if prepared by a USCIS of-
tioner in connection with the adjudica- fice, a registered State or local law en-
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§ 103.2 8 CFR Ch. I (1–1–10 Edition)
pleted Form FD–258, Applicant Card. correct service fee for fingerprinting
There is no appeal from denial of an ap- will not be rejected as improperly filed,
plication or petition for failure to sub- pursuant to paragraph (a)(7)(i) of this
mit a properly completed Form FD–258, section. However, the application or
36
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Department of Homeland Security § 103.2
petition will not continue processing The USCIS will also notify the appli-
and USCIS will not issue a notice re- cant or petitioner and, when appro-
questing appearance for fingerprinting priate, the applicant or petitioner’s
to the individuals who require representative as defined in paragraph
fingerprinting until the correct service (a)(3) of this section, of the non-pay-
fee for fingerprinting has been sub- ment and request to pay. If the correct
mitted. The USCIS will notify the re- service fee for fingerprinting and asso-
mitter of the filing fee for the applica- ciated service charges are not paid
tion or petition of the additional within 14 calendar days, the applica-
amount required for the fingerprinting tion or petition will be denied for fail-
service fee and request submission of ure to submit the correct service fee
the correct fee. The USCIS will also no- for fingerprinting.
tify the applicant or petitioner, and,
(f) Requests for Premium Processing
when appropriate, the applicant or pe-
Service—(1) Filing information. A peti-
titioner’s representative, as defined in
tioner or applicant requesting Pre-
paragraph (a)(3) of this section, of the
mium Processing Service shall submit
deficiency. Failure to submit the cor-
rect fee for fingerprinting in response Form I–907 with the appropriate fee to
to a notice of deficiency within the the Director of the service center hav-
time allotted in the notice will result ing jurisdiction over the application or
in denial of the application or petition petition. Premium Processing Service
for failure to submit the correct serv- guarantees 15 calendar day processing
ice fee for fingerprinting. There is no of certain employment-based petitions
appeal from the denial of an applica- and applications. The 15 calendar day
tion or petition for failure to submit processing period begins when USCIS
the correct service fee for receives Form I–907, with the fee, at
fingerprinting. A motion to re-open an the designated address contained in the
application or petition denied for fail- instructions to the form. USCIS will
ure to submit the correct service fee refund the fee for Premium Processing
for fingerprinting will be granted only Service, but continue to process the
on proof that: case, unless within 15 calendar days of
(A) The correct service fee for receiving the application or petition
fingerprinting was submitted at the and Form I–907, USCIS issues and
time of filing the application or peti- serves on the petitioner or applicant an
tion; approval notice, a denial notice, a no-
(B) The correct service fee for tice of intent to deny, a request for evi-
fingerprinting was submitted in re- dence, or opens an investigation relat-
sponse to the notice of deficiency with- ing to the application or petition for
in the time allotted in the notice; or fraud or misrepresentation.
(C) The notice of deficiency was sent (2) Applications and petitions eligible
to an address other than the address on for Premium Processing Service. USCIS
the application or petition, or the no-
will designate and terminate petitions
tice of representation, or that the ap-
and applications and classifications
plicant or petitioner notified USCIS, in
within such petitions and applications
writing, of a change of address or
as eligible for Premium Processing
change of representation subsequent to
filing and before the notice of defi- Service by publication of notices in the
ciency was sent and USCIS notice of FEDERAL REGISTER. USCIS will an-
deficiency was not sent to the new ad- nounce by its Web site at http://
dress. www.uscis.gov the dates upon which the
(iv) Non-payment of service fee for availability of Premium Processing
fingerprinting. If a check or other finan- Service begins and ends for a des-
cial instrument used to pay a service ignated petition or application and any
fee for fingerprinting is subsequently designated classifications within a des-
returned as not payable, the remitter ignated petition or application, and ap-
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§ 103.3 8 CFR Ch. I (1–1–10 Edition)
38
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Department of Homeland Security § 103.3
in 8 CFR 292.2 or in any other statute peal, the appeal is considered improp-
or regulation. erly filed. In such a case, any filing fee
(2) AAU appeals in other than special the Service has accepted will not be re-
agricultural worker and legalization funded regardless of the action taken.
cases—(i) Filing appeal. The affected (ii) When favorable action warranted. If
party shall file an appeal on Form I– the reviewing official decides favorable
290B. Except as otherwise provided in action is warranted with respect to an
this chapter, the affected party must otherwise properly filed appeal, that
pay the fee required by § 103.7 of this official shall ask the attorney or rep-
part. The affected party shall file the resentative to submit Form G–28 to the
complete appeal including any sup- official’s office within 15 days of the re-
porting brief with the office where the quest. If Form G–28 is not submitted
unfavorable decision was made within within the time allowed, the official
30 days after service of the decision. may, on his or her own motion, under
(ii) Reviewing official. The official § 103.5(a)(5)(i) of this part, make a new
who made the unfavorable decision decision favorable to the affected party
being appealed shall review the appeal without notifying the attorney or rep-
unless the affected party moves to a resentative.
new jurisdiction. In that instance, the (iii) When favorable action not war-
official who has jurisdiction over such ranted. If the reviewing official decides
a proceeding in that geographic loca- favorable action is not warranted with
tion shall review it. respect to an otherwise properly filed
(iii) Favorable action instead of for- appeal, that official shall ask the at-
warding appeal to AAU. The reviewing torney or representative to submit
official shall decide whether or not fa- Form G–28 directly to the AAU. The of-
vorable action is warranted. Within 45 ficial shall also forward the appeal and
days of receipt of the appeal, the re- the relating record of proceeding to the
viewing official may treat the appeal AAU. The appeal may be considered
as a motion to reopen or reconsider and properly filed as of its original filing
take favorable action. However, that date if the attorney or representative
official is not precluded from reopening submits a properly executed Form G–28
a proceeding or reconsidering a deci- entitling that person to file the appeal.
sion on his or her own motion under (B) Untimely appeal—(1) Rejection
§ 103.5(a)(5)(i) of this part in order to without refund of filing fee. An appeal
make a new decision favorable to the which is not filed within the time al-
affected party after 45 days of receipt lowed must be rejected as improperly
of the appeal. filed. In such a case, any filing fee the
(iv) Forwarding appeal to AAU. If the Service has accepted will not be re-
reviewing official will not be taking fa- funded.
vorable action or decides favorable ac- (2) Untimely appeal treated as motion.
tion is not warranted, that official If an untimely appeal meets the re-
shall promptly forward the appeal and quirements of a motion to reopen as
the related record of proceeding to the described in § 103.5(a)(2) of this part or
AAU in Washington, DC. a motion to reconsider as described in
(v) Improperly filed appeal—(A) Appeal § 103.5(a)(3) of this part, the appeal
filed by person or entity not entitled to must be treated as a motion, and a de-
file it—(1) Rejection without refund of fil- cision must be made on the merits of
ing fee. An appeal filed by a person or the case.
entity not entitled to file it must be re- (vi) Brief. The affected party may
jected as improperly filed. In such a submit a brief with Form I–290B.
case, any filing fee the Service has ac- (vii) Additional time to submit a brief.
cepted will not be refunded. The affected party may make a written
(2) Appeal by attorney or representative request to the AAU for additional time
without proper Form G–28—(i) General. If to submit a brief. The AAU may, for
an appeal is filed by an attorney or rep- good cause shown, allow the affected
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§ 103.3 8 CFR Ch. I (1–1–10 Edition)
party shall submit the brief directly to (A) Fails to state the reason for ap-
the AAU. peal;
(ix) Withdrawal of appeal. The af- (B) Is filed solely on the basis of a de-
fected party may withdraw the appeal, nial for failure to file the application
in writing, before a decision is made. for adjustment of status under section
(x) Decision on appeal. The decision 210 or 245A in a timely manner; or
must be in writing. A copy of the deci- (C) Is patently frivolous; will be sum-
sion must be served on the affected marily dismissed. An appeal received
party and the attorney or representa- after the thirty (30) day period has
tive of record, if any. tolled will not be accepted for proc-
(3) Denials and appeals of special agri- essing.
cultural worker and legalization applica- (4) Denials and appeal of Replenish-
tions and termination of lawful temporary ment Agricultural Worker petitions and
resident status under sections 210 and waivers and termination of lawful tem-
245A. (i) Whenever an application for porary resident status under section 210A.
legalization or special agricultural (i) Whenever a petition for Replenish-
worker status is denied or the status of ment Agricultural Worker status, or a
a lawful temporary resident is termi- request for a waiver incident to such
nated, the alien shall be given written filing, is denied in accordance with the
notice setting forth the specific rea- provisions of part 210a of this title, the
sons for the denial on Form I–692, No- alien shall be given written notice set-
tice of Denial. Form I–692 shall also ting forth the specific reasons for the
contain advice to the applicant that he denial on Form I–692, Notice of Denial.
or she may appeal the decision and Form I–692 shall also contain advice to
that such appeal must be taken within the alien that he or she may appeal the
30 days after service of the notification decision and that such appeal must be
of decision accompanied by any addi- taken within thirty (30) days after
tional new evidence, and a supporting service of the notification of decision
brief if desired. The Form I–692 shall accompanied by any additional new
additionally provide a notice to the evidence, and a supporting brief if de-
alien that if he or she fails to file an sired. The Form I–692 shall additionally
appeal from the decision, the Form I– provide a notice to the alien that if he
692 will serve as a final notice of ineli- or she fails to file an appeal from the
gibility. decision, the Form I–692 shall serve as
(ii) Form I–694, Notice of Appeal, in a final notice of ineligibility.
triplicate, shall be used to file the ap- (ii) Form I–694, Notice of Appeal, in
peal, and must be accompanied by the triplicate, shall be used to file the ap-
appropriate fee. Form I–694 shall be peal, and must be accompanied by the
furnished with the notice of denial at appropriate fee. Form I–694 shall be
the time of service on the alien. furnished with the notice of denial at
(iii) Upon receipt of an appeal, the the time of service on the alien.
administrative record will be for- (iii) Upon receipt of an appeal, the
warded to the Administrative Appeals administrative record will be for-
Unit as provided by § 103.1(f)(2) of this warded to the Administrative Appeals
part for review and decision. The deci- Unit as provided by § 103.1(f)(2) of this
sion on the appeal shall be in writing, part for review and decision. The deci-
and if the appeal is dismissed, shall in- sion on the appeal shall be in writing,
clude a final notice of ineligibility. A and if the appeal is dismissed, shall in-
copy of the decision shall be served clude a final notice of ineligibility. A
upon the applicant and his or her at- copy of the decision shall be served
torney or representative of record. No upon the petitioner and his or her at-
further administrative appeal shall lie torney or representative of record. No
from this decision, nor may the appli- further administrative appeal shall lie
cation be filed or reopened before an from this decision, nor may the peti-
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immigration judge or the Board of Im- tion be filed or reopened before an im-
migration Appeals during exclusion or migration judge or the Board of Immi-
deportation proceedings. gration Appeals during exclusion or de-
(iv) Any appeal which is filed that: portation proceedings.
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Department of Homeland Security § 103.4
(iv) Any appeal which is filed that: lished and made available to the public
Fails to state the reason for the appeal; as described in § 103.9(a) of this part.
is filed solely on the basis of a denial
[31 FR 3062, Feb. 24, 1966, as amended at 37
for failure to file the petition for ad- FR 927, Jan. 21, 1972; 48 FR 36441, Aug. 11,
justment of status under part 210a of 1983; 49 FR 7355, Feb. 29, 1984; 52 FR 16192,
this title in a timely manner; or is pat- May 1, 1987; 54 FR 29881, July 17, 1989; 55 FR
ently frivolous, will be summarily dis- 20769, 20775, May 21, 1990; 55 FR 23345, June 7,
missed. An appeal received after the 1990; 57 FR 11573, Apr. 6, 1992; 68 FR 9832, Feb.
28, 2003]
thirty (30) day period has tolled will
not be accepted for processing. § 103.4 Certifications.
(b) Oral argument regarding appeal be-
fore AAU—(1) Request. If the affected (a) Certification of other than special
party desires oral argument, the af- agricultural worker and legalization
fected party must explain in writing cases—(1) General. The Commissioner or
specifically why oral argument is nec- the Commissioner’s delegate may di-
essary. For such a request to be consid- rect that any case or class of cases be
certified to another Service official for
ered, it must be submitted within the
decision. In addition, regional commis-
time allowed for meeting other re-
sioners, regional service center direc-
quirements.
tors, district directors, officers in
(2) Decision about oral argument. The charge in districts 33 (Bangkok, Thai-
Service has sole authority to grant or land), 35 (Mexico City, Mexico), and 37
deny a request for oral argument. Upon (Rome, Italy), and the Director, Na-
approval of a request for oral argu- tional Fines Office, may certify their
ment, the AAU shall set the time, date, decisions to the appropriate appellate
place, and conditions of oral argument. authority (as designated in this chap-
(c) Service precedent decisions. The ter) when the case involves an unusu-
Secretary of Homeland Security, or ally complex or novel issue of law or
specific officials of the Department of fact.
Homeland Security designated by the (2) Notice to affected party. When a
Secretary with the concurrence of the case is certified to a Service officer,
Attorney General, may file with the the official certifying the case shall no-
Attorney General decisions relating to tify the affected party using a Notice
the administration of the immigration of Certification (Form I–290C). The af-
laws of the United States for publica- fected party may submit a brief to the
tion as precedent in future proceedings, officer to whom the case is certified
and upon approval of the Attorney within 30 days after service of the no-
General as to the lawfulness of such de- tice. If the affected party does not wish
cision, the Director of the Executive to submit a brief, the affected party
Office for Immigration Review shall may waive the 30-day period.
cause such decisions to be published in (3) Favorable action. The Service offi-
the same manner as decisions of the cer to whom a case is certified may
Board and the Attorney General. In ad- suspend the 30-day period for submis-
dition to Attorney General and Board sion of a brief if that officer takes ac-
decisions referred to in § 1003.1(g) of tion favorable to the affected party.
chapter V, designated Service decisions (4) Initial decision. A case within the
are to serve as precedents in all pro- appellate jurisdiction of the Associate
ceedings involving the same issue(s). Commissioner, Examinations, or for
Except as these decisions may be modi- which there is no appeal procedure may
fied or overruled by later precedent de- be certified only after an initial deci-
sion is made.
cisions, they are binding on all Service
employees in the administration of the (5) Certification to AAU. A case de-
scribed in paragraph (a)(4) of this sec-
Act. Precedent decisions must be pub-
tion may be certified to the AAU.
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§ 103.5 8 CFR Ch. I (1–1–10 Edition)
(whether made initially or upon re- new jurisdiction. In that instance, the
view) is the decision which may be ap- new official having jurisdiction is the
pealed to the Board under § 3.1(b) of official over such a proceeding in the
this chapter. new geographical locations.
(7) Other applicable provisions. The (iii) Filing Requirements—A motion
provisions of § 103.3(a)(2)(x) of this part shall be submitted on Form I–290B and
also apply to decisions on certified may be accompanied by a brief. It must
cases. The provisions of § 103.3(b) of this be:
part also apply to requests for oral ar- (A) In writing and signed by the af-
gument regarding certified cases con- fected party or the attorney or rep-
sidered by the AAU. resentative of record, if any;
(b) Certification of denials of special ag- (B) Accompanied by a nonrefundable
ricultural worker and legalization appli- fee as set forth in § 103.7;
cations. The Regional Processing Facil- (C) Accompanied by a statement
ity director or the district director about whether or not the validity of
may, in accordance with paragraph (a) the unfavorable decision has been or is
of this section, certify a decision to the the subject of any judicial proceeding
Associate Commissioner, Examinations and, if so, the court, nature, date, and
(Administrative Appeals Unit) (the ap- status or result of the proceeding;
pellate authority designated in (D) Addressed to the official having
§ 103.1(f)(2)) of this part, when the case jurisdiction; and
involves an unusually complex or novel (E) Submitted to the office maintain-
question of law or fact. ing the record upon which the unfavor-
[52 FR 661, Jan. 8, 1987, as amended at 53 FR able decision was made for forwarding
43985, Oct. 31, 1988; 55 FR 20770, May 21, 1990] to the official having jurisdiction.
(iv) Effect of motion or subsequent ap-
§ 103.5 Reopening or reconsideration. plication or petition. Unless the Service
(a) Motions to reopen or reconsider in directs otherwise, the filing of a mo-
other than special agricultural worker tion to reopen or reconsider or of a sub-
and legalization cases—(1) When filed by sequent application or petition does
affected party—(i) General. Except not stay the execution of any decision
where the Board has jurisdiction and as in a case or extend a previously set de-
otherwise provided in 8 CFR parts 3, parture date.
210, 242 and 245a, when the affected (2) Requirements for motion to reopen.
party files a motion, the official having A motion to reopen must state the new
jurisdiction may, for proper cause facts to be provided in the reopened
shown, reopen the proceeding or recon- proceeding and be supported by affida-
sider the prior decision. Motions to re- vits or other documentary evidence. A
open or reconsider are not applicable to motion to reopen an application or pe-
proceedings described in § 274a.9 of this tition denied due to abandonment must
chapter. Any motion to reconsider an be filed with evidence that the decision
action by the Service filed by an appli- was in error because:
cant or petitioner must be filed within (i) The requested evidence was not
30 days of the decision that the motion material to the issue of eligibility;
seeks to reconsider. Any motion to re- (ii) The required initial evidence was
open a proceeding before the Service submitted with the application or peti-
filed by an applicant or petitioner, tion, or the request for initial evidence
must be filed within 30 days of the deci- or additional information or appear-
sion that the motion seeks to reopen, ance was complied with during the al-
except that failure to file before this lotted period; or
period expires, may be excused in the (iii) The request for additional infor-
discretion of the Service where it is mation or appearance was sent to an
demonstrated that the delay was rea- address other than that on the applica-
sonable and was beyond the control of tion, petition, or notice of representa-
the applicant or petitioner. tion, or that the applicant or peti-
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(ii) Jurisdiction. The official having tioner advised the Service, in writing,
jurisdiction is the official who made of a change of address or change of rep-
the latest decision in the proceeding resentation subsequent to filing and
unless the affected party moves to a before the Service’s request was sent,
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Department of Homeland Security § 103.5
and the request did not go to the new (8) Treating an appeal as a motion. The
address. official who denied an application or
(3) Requirements for motion to recon- petition may treat the appeal from
sider. A motion to reconsider must that decision as a motion for the pur-
state the reasons for reconsideration pose of granting the motion.
and be supported by any pertinent (b) Motions to reopen or reconsider de-
precedent decisions to establish that nials of special agricultural worker and
the decision was based on an incorrect legalization applications. Upon the filing
application of law or Service policy. A of an appeal to the Associate Commis-
motion to reconsider a decision on an sioner, Examinations (Administrative
application or petition must, when Appeals Unit), the Director of a Re-
filed, also establish that the decision gional Processing Facility or the con-
was incorrect based on the evidence of sular officer at an Overseas Processing
record at the time of the initial deci- Office may sua sponte reopen any pro-
sion. ceeding under his or her jurisdiction
(4) Processing motions in proceedings opened under part 210 or 245a of this
before the Service. A motion that does chapter and may reconsider any deci-
not meet applicable requirements shall sion rendered in such proceeding. The
be dismissed. Where a motion to reopen new decision must be served on the ap-
is granted, the proceeding shall be re- pellant within 45 days of receipt of any
opened. The notice and any favorable brief and/or new evidence, or upon expi-
decision may be combined. ration of the time allowed for the sub-
(5) Motion by Service officer—(i) Service
mission of a brief. The Associate Com-
motion with decision favorable to affected
missioner, Examinations, or the Chief
party. When a Service officer, on his or
of the Administrative Appeals Unit
her own motion, reopens a Service pro-
may sua sponte reopen any proceeding
ceeding or reconsiders a Service deci-
conducted by that Unit under part 210
sion in order to make a new decision
or 245a of this chapter and reconsider
favorable to the affected party, the
any decision rendered in such pro-
Service officer shall combine the mo-
ceeding. Motions to reopen a pro-
tion and the favorable decision in one
ceeding or reconsider a decision under
action.
part 210 or 245a of this chapter shall
(ii) Service motion with decision that
may be unfavorable to affected party. not be considered.
When a Service officer, on his or her (c) Motions to reopen or reconsider deci-
own motion, reopens a Service pro- sions on replenishment agricultural work-
ceeding or reconsiders a Service deci- er petitions. (1) The director of a re-
sion, and the new decision may be un- gional processing facility may sua
favorable to the affected party, the of- sponte reopen any proceeding under
ficer shall give the affected party 30 part 210a of this title which is within
days after service of the motion to sub- his or her jurisdiction and may render
mit a brief. The officer may extend the a new decision. This decision may re-
time period for good cause shown. If verse a prior favorable decision when it
the affected party does not wish to sub- is determined that there was fraud dur-
mit a brief, the affected party may ing the registration or petition proc-
waive the 30-day period. esses and the petitioner was not enti-
(6) Appeal to AAU from Service decision tled to the status granted. The peti-
made as a result of a motion. A field of- tioner must be given an opportunity to
fice decision made as a result of a mo- offer evidence in support of the peti-
tion may be applied to the AAU only if tion and in opposition to the grounds
the original decision was appealable to for reopening the petition before a new
the AAU. decision is rendered.
(7) Other applicable provisions. The (2) The Associate Commissioner, Ex-
provisions of § 103.3(a)(2)(x) of this part aminations or the Chief of the Admin-
also apply to decisions on motions. The istrative Appeals Unit may sua sponte
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§ 103.5a 8 CFR Ch. I (1–1–10 Edition)
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Department of Homeland Security § 103.6
or petition must be filed on Form I–824 (2) Bond riders—(i) General. Bond rid-
by the applicant or petitioner who filed ers shall be prepared on Form I–351,
the original application or petition. It Bond Riders, and attached to Form I–
must be filed with the fee required in 352. If a condition to be included in a
§ 103.7 and the initial evidence required bond is not on Form I–351, a rider con-
on the application form. Form I–824 taining the condition shall be executed.
may accompany the original applica- (ii) [Reserved]
tion or petition, or may be filed after (b) Acceptable sureties. Either a com-
the approval of the original application pany holding a certificate from the
or petition. Secretary of the Treasury under 6
(b) Requested actions. A person whose U.S.C. 6–13 as an acceptable surety on
application was approved may, during Federal bonds, or a surety who deposits
its validity period, apply for a dupli- cash or U.S. bonds or notes of the class
cate approval notice or any other ac- described in 6 U.S.C. 15 and Treasury
tion specifically provided for on the Department regulations issued pursu-
form. A petitioner whose petition was ant thereto and which are not redeem-
approved may, during the validity of able within 1 year from the date they
the petition, request that the Service: are offered for deposit is an acceptable
(1) Issue a duplicate approval notice; surety.
(2) Notify another consulate of the (c) Cancellation—(1) Public charge
approved petition; bonds. A public charge bond posted for
(3) Notify a consulate of the person’s an immigrant shall be cancelled when
adjustment of status for the purpose of the alien dies, departs permanently
visa issuance to dependents; or from the United States or is natural-
(4) Take any other action specifically ized, provided the immigrant did not
provided for on the form. become a public charge prior to death,
(c) Processing. The application shall departure, or naturalization. The dis-
be approved if the Service determines trict director may cancel a public
the applicant has fully demonstrated charge bond at any time if he/she finds
eligibility for the requested action. that the immigrant is not likely to be-
There is no appeal from the denial of come a public charge. A bond may also
an application filed on Form I–824. be cancelled in order to allow substi-
[59 FR 1463, Jan. 11, 1994] tution of another bond. A public charge
bond shall be cancelled by the district
§ 103.6 Surety bonds. director upon review following the fifth
(a) Posting of surety bonds—(1) Exten- anniversity of the admission of the im-
sion agreements; consent of surety; collat- migrant, provided that the alien has
eral security. All surety bonds posted in filed Form I–356, Request for Cancella-
immigration cases shall be executed on tion of Public Charge Bond, and the
Form I–352, Immigration Bond, a copy district director finds that the immi-
of which, and any rider attached there- grant did not become a public charge
to, shall be furnished the obligor. A prior to the fifth anniversary. If Form
district director is authorized to ap- I–356 is not filed, the bond shall remain
prove a bond, a formal agreement to in effect until the form is filed and the
extension of liability of surety, a re- district director reviews the evidence
quest for delivery of collateral security supporting the form and renders a deci-
to a duly appointed and undischarged sion to breach or cancel the bond.
administrator or executor of the estate (2) Maintenance of status and depar-
of a deceased depositor, and a power of ture bonds. When the status of a non-
attorney executed on Form I–312, Des- immigrant who has violated the condi-
ignation of Attorney in Fact. All other tions of his admission has been ad-
matters relating to bonds, including a justed as a result of administrative or
power of attorney not executed on legislative action to that of a perma-
Form I–312 and a request for delivery of nent resident retroactively to a date
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collateral security to other than the prior to the violation, any outstanding
depositor or his or her approved attor- maintenance of status and departure
ney in fact, shall be forwarded to the bond shall be canceled. If an applica-
regional director for approval. tion for adjustment of status is made
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§ 103.7 8 CFR Ch. I (1–1–10 Edition)
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Department of Homeland Security § 103.7
the amount prescribed by law or regu- ment of Homeland Security if the re-
lation. Except for fees remitted di- mittance is found uncollectible. Fur-
rectly to the Board of Immigration Ap- thermore, legal and statutory dead-
peals pursuant to the provisions of 8 lines will not be deemed to have been
CFR 1003.8, or as the Attorney General met if payment is not made within 10
otherwise may provide by regulation, business days after notification by the
any fee relating to any Department of Department of Homeland Security of
Justice Executive Office for Immigra- the dishonored check.
tion Review proceeding shall be paid (b) Amounts of fees. (1) The following
to, and accepted by, any BCIS office fees and charges are prescribed:
authorized to accept fees. The immi- For certification of true copies, each—$2.00
gration court does not collect fees. For attestation under seal—$2.00
Payment of any fee under this section For capturing biometric information (Bio-
does not constitute filing of the docu- metric Fee). A service fee of $80 will be
ment with the Board of Immigration charged for any individual who is required
Appeals or with the Immigration to have biometric information captured in
connection with an application or petition
Court. The Department of Homeland for certain immigration and naturalization
Security shall return to the payer, at benefits (other than asylum), and whose
the time of payment, a receipt for any residence is in the United States; provided
fee paid. The BCIS shall also return to that: Extension for intercountry adoptions: If
the payer any documents, submitted applicable, no biometric service fee is
with the fee, relating to any Immigra- charged when a written request for an ex-
tion Court proceeding. tension of the approval period is received
by USCIS prior to the expiration date of
(2) Remittances must be drawn on a
approval indicated on the Form I–171H if a
bank or other institution located in Form I–600 has not yet been submitted in
the United States and be payable in connection with an approved Form I–600A.
United States currency. Fees in the This extension without fee is limited to
form of postage stamps shall not be ac- one occasion. If the approval extension ex-
cepted. Remittances to the Department pires prior to submission of an associated
of Homeland Security shall be made Form I–600, then a complete application
payable to the ‘‘Department of Home- and fee must be submitted for a subsequent
application.
land Security’’ except that in case of DCL System Costs Fee. For use of a Dedi-
applicants residing in the Virgin Is- cated Commuter Lane (DCL) located at
lands of the United States, the remit- specific Ports of Entry of the United
tances shall be made payable to the States by an approved participant in a des-
‘‘Commissioner of Finance of the Vir- ignated vehicle—$80.00, with the maximum
gin Islands’’ and, in the case of appli- amount of $160.00 payable by a family (hus-
cants residing in Guam, the remit- band, wife, and minor children under 18
years-of-age). Payable following approval
tances shall be made payable to the
of the application but before use of the
‘‘Treasurer, Guam.’’ If an application DCL by each participant. This fee is non-
to the Department of Homeland Secu- refundable, but may be waived by the dis-
rity is submitted from outside the trict director. If a participant wishes to en-
United States, remittance may be roll more than one vehicle for use in the
made by bank international money PORTPASS system, he or she will be as-
order or foreign draft drawn on a finan- sessed with an additional fee of—$42 for
cial institution in the United States each additional vehicle enrolled.
Form G–1041. For filing a request for a
and payable to the Department of
search of indices to historical records to be
Homeland Security. Remittances to used in genealogical research—$20. The
the Board of Immigration Appeals shall search fee is not refundable.
be made payable to the ‘‘United States Form G–1041A. For filing a request for a copy
Department of Justice,’’ in accordance of historical records to be used in genea-
with 8 CFR 1003.8. A charge of $30.00 logical research—$20 for each file copy
will be imposed if a check in payment from microfilm or $35 for each file copy
of a fee or any other matter is not hon- from a textual record. In some cases, the
researcher may be unable to determine the
ored by the bank or financial institu-
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§ 103.7 8 CFR Ch. I (1–1–10 Edition)
USCIS locates the file and it is a textual the interest of the United States Govern-
file, the Genealogy Program will notify the ment—$545.
researcher to remit the additional $15. The Form I–193. For filing an application for
Genealogy Program will refund the records waiver of passport and/or visa—$545.
request fee only when it is unable to locate Form I–212. For filing an application for per-
the file previously identified in response to mission to reapply for an excluded, de-
the index search request. ported or removed alien, an alien who has
Form I–17. For filing a petition for school fallen into distress, an alien who has been
certification—$1,700, plus a site visit fee of removed as an alien enemy, or an alien
$655 for each location listed on the form. who has been removed at government ex-
Form I–68. For application for issuance of pense in lieu of deportation—$545.
the Canadian Border Boat Landing Permit Form I–246. For filing application for stay
under section 235 of the Act—$16.00. The of deportation under part 243 of this chap-
maximum amount payable by a family ter—$155.00
(husband, wife, unmarried children under Form I–290B. For filing an appeal from any
21 years of age, parents of either husband decision under the immigration laws in
or wife) shall be $32.00. any type of proceeding over which the
Form I–90. For filing an application for a Board of Immigration Appeals does not
Permanent Resident Card (Form I–551) in have appellate jurisdiction—$585 (the fee
lieu of an obsolete card or in lieu of one will be the same when an appeal is taken
lost, mutilated, or destroyed, or for a from the denial of a petition with one or
change in name—$290. multiple beneficiaries, provided that they
are all covered by the same petition, and
Form I–94. For issuance of Arrival/Depar-
therefore, the same decision). Motions. For
ture Record at a land border Port-of-
filing a motion to reopen or reconsider any
Entry—$6.00.
DHS decision in any type of proceeding
Form I–94W. For issuance of Nonimmigrant
over which the Executive Office for Immi-
Visa Waiver Arrival/Departure Form at a
gration Review does not have jurisdiction.
land border Port-of-Entry under section 217
This fee shall be charged whenever a mo-
of the Act—$6.00.
tion is filed to reopen or reconsider a sin-
Form I–102. For filing a petition for an appli- gle decision, whether it applies to one or
cation (Form I–102) for Arrival/Departure multiple beneficiaries—$585.
Record (Form I–94) or Crewman’s Landing Form I–360. For filing a petition for an
Permit (Form I–95), in lieu of one lost, mu- Amerasian, Widow(er), or Special Immi-
tilated, or destroyed—$320. grant—$375, except there is no fee for a pe-
Form I–129. For filing a petition for a non- tition seeking classification as: An
immigrant worker—$320. Amerasian; a self-petitioning battered or
Form I–129CW. For an employer to petition abused spouse, parent, or child of a United
for CW status on behalf of one or more States citizen or lawful permanent resi-
beneficiaries—$320 plus a supplemental dent; or a Special Immigrant—Juvenile.
CNMI education funding fee of $150 per ben- Form I–485. For filing an application for per-
eficiary per year. The CNMI education manent resident status or creation of a
funding fee cannot be waived. record of lawful permanent residence—$930
Form I–129F. For filing a petition to classify for an applicant fourteen years of age or
a nonimmigrant as a fiancée or fiancé older; $600 for an applicant under the age of
under section 214(d) of the Act—$455; no fee fourteen years when submitted concur-
for a K–3 spouse as designated in 8 CFR rently for adjudication with the Form I–485
214.1(a)(2) who is the beneficiary of an im- of a parent and the applicant is seeking to
migrant petition filed by a United States adjust status as a derivative of the parent,
citizen on Form I–130. based on a relationship to the same indi-
Form I–130. For filing a petition to classify vidual who provides the basis for the par-
status of an alien relative for issuance of ent’s adjustment of status, or under the
an immigrant visa under section 204(a) of same legal authority as the parent; no fee
the Act—$355. for an applicant filing as a refugee under
Form I–131. For filing an application for section 209(a) of the Act; provided that no
travel document—$305. additional fee will be charged for a request
Form I–140. For filing a petition to classify for travel document (advance parole) or
preference status of an alien on the basis of employment authorization filed by an ap-
profession or occupation under section plicant who has paid the Form I–485 appli-
204(a) of the Act—$475. cation fee, regardless of whether the Form
Form I–191. For filing an application for dis- I–131 or Form I–765 is required to be filed
cretionary relief under section 212(c) of the by such applicant to receive these benefits.
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Department of Homeland Security § 103.7
the applicant is an unmarried child who is Form I–695. For filing an application for re-
less than 17 years of age, or when the appli- placement of temporary resident card
cant is the spouse or the unmarried child (Form I–688)—$130.
less than 21 years of age of a legalized alien Form I–698. For filing an application for ad-
and is qualified for and has applied for vol- justment from temporary resident status
untary departure under the family unity to that of lawful permanent resident under
program. section 245A(b)(1) of the Act. For appli-
Form I–526. For filing a petition for an alien cants filing within thirty-one months from
entrepreneur—$1,435. the date of adjustment to temporary resi-
Form I–539. For filing an application to ex- dent status, a fee of $1,370 for each applica-
tend or change nonimmigrant status—$300. tion is required at the time of filing with
Form I–570. For filing application for the Department of Homeland Security. For
issuance or extension of refugee travel doc- applicants filing after thirty-one months
ument—$45.00 from the date of approval of temporary
Form I–600. For filing a petition to classify resident status, who file their applications
on or after July 9, 1991, a fee of $1,410 is re-
an orphan as an immediate relative for
quired. The adjustment date is the date of
issuance of an immigrant visa under sec-
filing of the application for permanent res-
tion 204(a) of the Act. (When more than one
idence or the applicant’s eligibility date,
petition is submitted by the same peti-
whichever is later.
tioner on behalf of orphans who are broth-
ers or sisters, only one fee will be re- Form I–700. For filing application for status
quired.)—$670. as a temporary resident under section
210(a)(1) of the Act, as amended—to be re-
Form I–600A. For filing an application for ad-
mitted in the form of a cashier’s check,
vance processing of orphan petition. (When
certified bank check or a money order. A
more than one petition is submitted by the
fee of one hundred and eighty-five dollars
same petitioner on behalf of orphans who ($185.00) for each application or fifty dol-
are brothers or sisters, only one fee will be lars ($50.00) for each application for a
required.)—$670. No fee is charged if Form minor child (under 18 years of age) is re-
I–600 has not yet been submitted in connec- quired at the time of filing with the Immi-
tion with an approved Form I–600A if a gration and Naturalization Service. The
written request from the applicant for an maximum amount payable by a family
extension of the approval has been received (husband, wife, and any minor children)
by USCIS prior to the expiration date of shall be four hundred and twenty dollars
approval indicated on the Form I–171H. ($420.00).
This extension will require an update of Form I–751. For filing a petition to remove
the applicant’s home study and a deter- the conditions on residence, based on mar-
mination from USCIS that proper care will riage—$465.
be provided to an adopted orphan. A no fee
Form I–765. For filing an application for em-
extension is limited to one occasion. If the
ployment authorization pursuant to 8 CFR
Form I–600A approval extension expires
274a.13—$340.
prior to submission of an associated Form
I–600, then a complete application and fee Form I–800. For filing a petition to classify a
must be submitted for any subsequent ap- Convention adoptee as an immediate rel-
plication. ative.
Form I–601. For filing an application for —No fee for the first Form I–800 filed for a
waiver of ground of inadmissibility—$545. child on the basis of an approved Form I–
Form I–612. For filing an application for 800A, filed during the approval period.
waiver of the foreign-residence require- —If more than one Form I–800 is filed during
ment under section 212(e) of the Act—$545. the approval period for different children,
Form I–687. For filing an application for sta- the fee is $670 for the second and each sub-
tus as a temporary resident under section sequent Form I–800 submitted.
245A(a) of the Act. A fee of $710 for each ap- —If the children are already siblings before
plication is required at the time of filing the proposed adoption, however, only one
with the Department of Homeland Secu- filing fee of $670 is required, regardless of
rity. the sequence of submission of the Form I–
Form I–690. For filing an application for 800.
waiver of a ground of inadmissibility under Form I–800A. For filing an application for de-
section 212(a) of the Act as amended, in termination of suitability to adopt a child
conjunction with the application under from a Convention country—$670.
sections 210 or 245A of the Act, or a peti- For filing a Form I–800A, Supplement 3,
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tion under section 210A of the Act—$185. Request for Action on Approved Form I–
Form I–694. For appealing the denial of an 800A—$340, except that this filing fee is not
applications under sections 210 or 245A of charged if no Form I–800 has been filed based
the Act, or a petition under section 210A of on the approval of the Form I–800A, and
the Act—$545. Form I–800A Supplement 3 is filed in order to
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§ 103.7 8 CFR Ch. I (1–1–10 Edition)
obtain a first extension of the approval of —$155 for adjudication by the Immigration
the Form I–800A. * * * Court (a single fee of $155 will be charged
Form I–805. For filing a petition for status whenever applications are filed by two or
as a temporary resident under § 210A. A fee more aliens in the same proceedings). The
of one hundred and seventy-five dollars $155 fee is not required if the Form I–881 is
($175.00) for each petition, is to be remitted referred to the Immigration Court by the
in the form of a cashier’s check, certified Department of Homeland Security.
bank check or money order at the time of Form I–901. For remittance of the I–901
filing with the Immigration and Natu- SEVIS fee for F and M students—$200. For
ralization Service. remittance of the I–901 SEVIS fee for cer-
Form I–807. For filing a request for consid- tain J exchange visitors—$180. For remit-
eration as a replenishment agricultural tance of the I–901 SEVIS fee for J–1 au
worker (RAW) during an announced period
pairs, camp counselors, and participants in
of registration under 8 CFR 210a.3. A fee of
a summer work/travel program—$35. There
ten dollars ($10.00) is to be remitted in the
is no I–901 SEVIS fee remittance obligation
form of a cashier’s check, certified bank
for J exchange visitors in federally-funded
check or money order at the time of mail-
programs with a program identifier des-
ing to the Immigration and Naturalization
ignation prefix that begins with G–1, G–2,
Service.
G–3 or G–7.
Form I–817. For filing an application for vol-
untary departure under the Family Unity Form I–905. Application for authorization to
Program—$440. issue certification for health care work-
Form I–821. For filing an initial application ers—$230.
for Temporary Protected Status under sec- Form I–907. For filing a request for Premium
tion 244 of the Act as amended by section Processing Service for certain employment
308(a)(7) of the Illegal Immigration Reform based applications and petitions-$1,000. The
and Immigrant Responsibility Act of 1996, fee for Premium Processing Service may
as amended by the Immigration Act of not be waived.
1990, to be remitted in the form of a cash- Form I–929. For U–1 principal applicant to
ier’s check, certified bank check, or money submit for each qualifying family member
order. The exact amount of the fee, not to who plans to seek an immigrant visa or ad-
exceed fifty dollars ($50.00), will be deter- justment of U status—$215.
mined at the time a foreign state is des- Form N–300. For filing an application for
ignated for Temporary Protected Status. declaration of intention—$235.
Form I–823. For application to a Form N–336. For filing a request for hearing
PORTPASS program under section 286 of on a decision in naturalization proceedings
the Act—$25.00, with the maximum amount under section 336 of the Act—$605.
of $50.00 payable by a family (husband, Form N–400. For filing an application for
wife, and minor children under 18 years of naturalization (other than such applica-
age). The application fee may be waived by tion filed on or after October 1, 2004, by an
the district director. If fingerprints are re- applicant who meets the requirements of
quired, the inspector will inform the appli- sections 328 or 329 of the Act with respect
cant of the current Federal Bureau of In- to military service, for which no fee is
vestigation fee for conducting fingerprint charged)—$595.
checks prior to accepting the application Form N–410. For filing motion for amend-
fee. Both the application fee (if not waived) ment of petition for naturalization when
and the fingerprint fee must be paid to the motion is for the convenience of the peti-
Immigration and Naturalization Service tioner—$50.00
before the application will be processed. Form N–455. For filing application for
The fingerprint fee may not be waived. For transfer of petition for naturalization
replacement of PORTPASS documentation under section 335(i) of the Act, except when
during the participation period—$25.00. transfer is of a petition for naturalization
Form I–824. For filing for action on an ap- filed under the Act of October 24, 1968, Pub.
proved application or petition—$340. L. 90–633—$90.00.
Form I–829. For filing a petition by entre- Form N–470. For filing an application for
preneur to remove conditions—$2,850. benefits under section 316(b) or 317 of the
Form I–881. For filing an application for sus- Act—$305.
pension of deportation or special rule can- Form N–565. For filing an application for a
cellation of removal (pursuant to section certificate of naturalization or declaration
203 of Public Law 105–100): of intention in lieu of a certificate or dec-
—$275 for adjudication by the Department of laration alleged to have been lost, muti-
Homeland Security, except that the max- lated, or destroyed; for a certificate of citi-
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imum amount payable by family members zenship in a changed name under section
(related as husband, wife, unmarried child 343(c) of the Act; or for a special certificate
under 21, unmarried son, or unmarried of naturalization to obtain recognition as a
daughter) who submit applications at the citizen of the United States by a foreign
same time shall be $550. state under section 343(b) of the Act—$380.
50
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Department of Homeland Security § 103.7
Form N–600. For filing an application for a shall be the amount prescribed in para-
certificate of citizenship under section graph (b)(1) of this section, plus the
309(c) or section 341 of the Act—$460, for ap- latest inflation adjustment, rounded to
plications filed on behalf of a biological
child and $420 for applications filed on be-
the nearest $5 increment.
half of an adopted child. (4) For the schedule of fees relating
Form N–600K. For filing an application for to proceedings before the immigration
citizenship and issuance of certificate judges and the Board of Immigration
under section 322 of the Act—$460, for an Appeals, see 8 CFR 1103.7.
application filed on behalf of a biological (c) Waiver of fees. (1) Except as other-
child and $420 for an application filed on wise provided in this paragraph (c), any
behalf of an adopted child.
Form N–644. For filing an application for
of the fees prescribed in paragraph (b)
posthumous citizenship—$80. of this section relating to applications,
Request. For special statistical tabulations a petitions, appeals, motions, or requests
charge will be made to cover the cost of may be waived by the Department of
the work involved—Cost Homeland Security in any case under
Request. For set of monthly, semiannual, or its jurisdiction in which the alien or
annual tables entitled ‘‘Passenger Travel other party affected is able to substan-
Reports via Sea and Air’’ 1—$7.00
Request. For classification of a citizen of
tiate that he or she is unable to pay
Canada to be engaged in business activities the prescribed fee. The person seeking
at a professional level pursuant to section a fee waiver must file his or her affi-
214(e) of the Act (Chapter 16 of the North davit, or unsworn declaration made
American Free Trade Agreement)—$50.00 pursuant to 28 U.S.C. 1746, asking for
Request. For requesting authorization for permission to prosecute without pay-
parole of an alien into the United States— ment of fee of the application, petition,
$65.00.
appeal, motion, or request, and stating
(2) Fees for production or disclosure his or her belief that he or she is enti-
of records under 5 U.S.C. 552 shall be tled to or deserving of the benefit re-
charged in accordance with the regula- quested and the reasons for his or her
tions of the Department of Homeland inability to pay. The officer of the De-
Security at 6 CFR 5.11. partment of Homeland Security having
(3) The fees prescribed in paragraph jurisdiction to render a decision on the
(b)(1) of this section shall be adjusted application, petition, appeal, motion,
annually on or after October 1, 2005, by or request may, in his or her discre-
publication of an inflation adjustment. tion, grant the waiver of fee. Fees for
The inflation adjustment will be an- ‘‘Passenger Travel Reports via Sea and
nounced by notice in the FEDERAL REG- Air’’ and for special statistical tabula-
ISTER, and the adjustment shall be a tions may not be waived. The payment
composite of the Federal civilian pay of the additional sum prescribed by
raise assumption and non-pay inflation section 245(i) of the Act when applying
factor for that fiscal year issued by the for adjustment of status under section
Office of Management and Budget for 245 of the Act may not be waived. The
agency use in implementing OMB Cir- fees for Form I–907, Request for Pre-
cular A–76, weighted by pay and non- mium Processing Services, and for
pay proportions of total funding for Forms G–1041 and G–1041A, Genealogy
that fiscal year. If Congress enacts a Program request forms, may not be
different Federal civilian pay raise per- waived. For provisions relating to the
centage than the percentage issued by authority of the immigration judges or
OMB for Circular A–76, the Department the Board to waive fees prescribed in
of Homeland Security may adjust the paragraph (b) of this section in cases
fees, during the current year or a fol- under their jurisdiction, see 8 CFR
lowing year to reflect the enacted 1003.24 and 1003.8.
level. The prescribed fee or charge (2) Fees under the Freedom of Infor-
mation Act, as amended, may be
1 Available from Immigration & Natu- waived or reduced where the Depart-
ralization Service for years 1975 and before.
ment of Homeland Security determines
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§ 103.8 8 CFR Ch. I (1–1–10 Edition)
(3) When the prescribed fee is for missioner, Records Systems Division,
services to be performed by the clerk of the Director, Records Management
court under section 344(a) of the Act, Branch, or their designee, authorized
the affidavit for waiver of the fee shall in writing to make certification in
be filed with the district director or of- their absence—copies of files, docu-
ficer in charge of the BCIS having ad- ments, and records in the custody of
ministrative jurisdiction over the place the Central Office.
in which the court is located at least 7 (2) A regional commissioner, or dis-
days prior to the date the fee is re- trict director, or the designee of either,
quired to be paid. If the waiver is authorized in writing to make certifi-
granted, there shall be delivered to the cation in his absence—copies of files,
clerk of court by a BCIS representative documents, and records in the custody
on or before the date the fee is required of his office.
to be paid, a notice prepared on BCIS (3) The Immigration and Naturaliza-
letterhead and signed by the officer tion Service Program Coordinator, El
granting the waiver, that the fee has Paso Intelligence Center, or the des-
been waived pursuant to this para- ignee, authorized in writing to make
graph. certification in event of the Program
(4) Fees for applications for Tem- Coordinator’s absence—copies of files,
porary Protected Status may be waived documents, and records of the Immi-
pursuant to 8 CFR 244.20. gration and Naturalization Service in
(5) No fee relating to any application, the custody of that office.
petition, appeal, motion, or request (4) The Assistant Commissioner,
made to U.S. Citizenship and Immigra- Records Systems Division, the Direc-
tion Services may be waived under tor, Records Management Branch, or
paragraph (c)(1) of this section except the Chief, Records Operations Section,
for the following: Central Office, or their designee, au-
(i) Biometrics; Form I–90; Form I– thorized in writing to make certifi-
129CW; Form I–751; Form I–765; Form I– cation in their absence—the non-exist-
817; I–929; Form N–300; Form N–336; ence of an official Service records.
Form N–400; Form N–470; Form N–565; [38 FR 35296, Dec. 27, 1973]
Form N–600; Form N–600K; and Form I–
290B and motions filed with U.S. Citi- EDITORIAL NOTE: For FEDERAL REGISTER ci-
tations affecting § 103.7, see the List of CFR
zenship and Immigration Services re-
Sections Affected, which appears in the
lating to the specified forms in this Finding Aids section of the printed volume
paragraph (c); and and on GPO Access.
(ii) Only in the case of an alien in
EDITORIAL NOTE: At 73 FR 55698, Sept. 26,
lawful nonimmigrant status under sec-
2008, § 103.7 was amended by revising Form I–
tions 101(a)(15)(T) or (U) of the Act; an 290B. However the amendment could not be
applicant under section 209(b) of the incorporated because the text of the newly
Act; an approved VAWA self-petitioner; revised form was not printed.
or an alien to whom section 212(a)(4) of
the Act does not apply with respect to § 103.8 Definitions pertaining to avail-
adjustment of status: Form I–485 and ability of information under the
Form I–601; and Freedom of Information Act.
(iii) Form I–192 and Form I–193 (only Sections 103.8, 103.9, and 103.10 of this
in the case of an alien applying for law- part comprise the Service regulations
ful nonimmigrant status under sec- under the Freedom of Information Act,
tions 101(a)(15)(T) or (U)). 5 U.S.C. 552. These regulations supple-
(d) Authority to certify records. When- ment those of the Department of Jus-
ever authorized under 5 U.S.C. 552 or tice, 28 CFR part 16, subpart A. As used
any other law to furnish information in this part the following definitions
from records to persons entitled there- shall apply:
to, the following officials, or their des- (a) The term access means providing a
ignees authorized in writing as speci- copy of the record requested or afford-
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fied below, have authority to make cer- ing the opportunity for an in-person re-
tification, as follows: view of the original record or a copy
(1) The Associate Commissioner, In- thereof. The determination to permit
formation Systems, the Assistant Com- an in-person review is discretionary
52
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Department of Homeland Security § 103.9
and will only be made when specifi- decisions may be read at principal
cally requested. Whenever providing Service offices.
in-person access will unreasonably dis- (b) Unpublished decisions. Each dis-
rupt the normal operations of an office, trict director in the United States will
the requester may be sent a copy of the maintain copies of unpublished Service
requested records that are nonexempt and Board decisions relating to pro-
in lieu of the in-person review. ceedings in which the initial decision
(b) The term decision means a final was made in his district. Each regional
written determination in a proceeding commissioner will maintain copies of
under the Act accompanied by a state-
unpublished decisions made by him.
ment of reasons. Orders made by check
The Central Office will maintain copies
marks, stamps, or brief endorsements
on a national basis of unpublished
which are not supported by a reasoned
explanation, or those incorporating Service decisions.
preprinted language on Service forms (c) Deletion of identifying details. To
are not decisions. the extent that information in deci-
(c) The term records includes records sions is exempt from disclosure under
of proceedings, documents, reports, and the Freedom of Information Act (5
other papers maintained by the Serv- U.S.C. 552), the deciding officer shall
ice. provide for deletion of identifying de-
(d) The term record of proceeding is tails, as appropriate, from copies of de-
the official history of any hearing, ex- cisions made available to the public.
amination, or proceeding before the (d) Statements of policy, interpretations,
Service, and in addition to the applica- manuals, instructions to staff. State-
tion, petition or other initiating docu- ments of policy, interpretations, and
ment, includes the transcript of hear- those manuals and instructions to staff
ing or interview, exhibits, and any (or portions thereof), affecting the pub-
other evidence relied upon in the adju- lic, will be made available at district
dication; papers filed in connection offices in the United States and at the
with the proceedings, including mo- Central Office with an accompanying
tions and briefs; the Service officer’s
index of any material which is issued
determination; notice of appeal or cer-
on or after July 4, 1967.
tification; the Board or other appellate
determination; motions to reconsider (e) Public reading rooms. The Central
or reopen; and documents submitted in Office and each district office in the
support of appeals, certifications, or United States will provide a reading
motions. room or reading area where the mate-
rial described in this section will be
[32 FR 9623, July 4, 1967, as amended at 40 FR
made available to the public. Addi-
7236, Feb. 19, 1975; 52 FR 2942, Jan. 29, 1987; 58
FR 31148, June 1, 1993] tional material will be made available
in the public reading rooms, including
§ 103.9 Availability of decisions and in- the immigration and nationality laws,
terpretive material under the Free- title 8 of the United States Code Anno-
dom of Information Act. tated, title 8 of the Code of Federal
(a) Precedent decisions. There may be Regulations—Chapter I, a complete set
purchased from the Superintendent of of the forms listed in parts 299 and 499
Documents, U.S. Government Printing of this chapter, and the Department of
Office, Washington, DC 20402, bound State Foreign Affairs Manual, Volume
volumes of designated precedent deci- 9—Visas. Fees will not be charged for
sions entitled ‘‘Administrative Deci- providing access to any of these mate-
sions Under Immigration and Nation- rials, but fees in accordance with
ality Laws of the United States,’’ each § 103.7(b) will be charged for furnishing
containing a cumulative index. Prior copies.
to publication in volume from current
precedent decisions, known as interim [32 FR 9623, July 4, 1967, as amended at 36 FR
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decisions, are obtainable from the Su- 20151, Oct. 16, 1971; 40 FR 7237, Feb. 19, 1975;
perintendent of Documents on a single 48 FR 49652, Oct. 27, 1983]
copy or yearly subscription basis.
Bound volumes and current precedent
53
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§ 103.10 8 CFR Ch. I (1–1–10 Edition)
under this section pertaining to the poses of 5 U.S.C 552 (a)(6) until it has
availability of a record must describe been or would have been received by
the record with sufficient specificity the appropriate office with the exercise
with respect to names, dates, subject of due diligence by Service personnel.
54
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Department of Homeland Security § 103.12
55
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§ 103.20 8 CFR Ch. I (1–1–10 Edition)
tems of records maintained by the sought by the name and any other per-
Service which are identifiable by indi- sonal identifiers for the individual
vidual name or identifier and which are (such as the alien file number or Social
retrieved by individual name or identi- Security Account Number), date and
56
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Department of Homeland Security § 103.22
place of birth, and type of file in which person or by mail, shall describe the
the record is believed to be located. nature of the records sought, the ap-
(b) Verification of identity. The fol- proximate dates covered by the record,
lowing standards are applicable to any the system in which it is thought to be
individual who requests records con- included as described in the ‘‘Notice of
cerning himself, unless other provi- Systems of Records’’ published in the
sions for identity verification are spec- FEDERAL REGISTER, and the identity of
ified in the published notice pertaining the individual or office of the Service
to the particular system of records. having custody of the system of
(1) An individual seeking access to records. In addition, the published
records about himself in person shall ‘‘Notice of Systems of Records’’ for in-
establish his identity by the presen- dividual systems may include further
tation of a single document bearing a requirements of specification, where
photograph (such as a passport, Perma- necessary, to retrieve the individual
nent Resident Card or identification record from the system.
badge) or by the presentation of two (f) Agreement to pay fees. In accord-
items of identification which do not ance with 28 CFR 16.3(c) a requester
bear a photograph but do bear both a automatically agrees to pay fees up to
name and address (such as a driver’s li- $25.00 by filing a Privacy Act request
cense, or credit card). unless a waiver or reduction of fees is
(2) Individuals seeking access to sought. Accordingly, all letters of ac-
records about themselves by mail shall knowledgement must confirm the re-
establish their identify by submitting a quester’s obligation to pay.
notarized signature along with their [40 FR 44481, Sept. 26, 1975; 40 FR 46092, Oct.
address, date of birth, place of birth, 6, 1975, as amended at 42 FR 33025, June 29,
and alien or employee identification 1977; 48 FR 49653, Oct. 27, 1983; 58 FR 31149,
number if applicable. Form DOJ 361, June 1, 1993; 63 FR 70315, Dec. 21, 1998]
Certification of Identity, may be ob-
tained from any Service office and used § 103.22 Records exempt in whole or in
to obtain the notarized signature need- part.
ed to verify identity. (a) When individuals request records
(c) Verification of guardianship. The about themselves which are exempt
parent or guardian of a child or of a from access pursuant to the Privacy
person judicially determined to be in- Act exemptions in 5 U.S.C. 552a(d)(5),
competent and seeking to act on behalf (j) or (k), their requests shall also be
of such child or incompetent, shall, in considered under the Freedom of Infor-
addition to establishing his own iden- mation Act, 5 U.S.C. 552, and, unless
tity, establish the identity of the child the records are exempt under both
or other person he represents as re- Acts, the request shall be granted. If
quired in paragraph (b) of this section, exemptions under both Acts permit the
and establish his own parentage or denial of the records sought and there
guardianship of the subject of the is good reason to invoke the exemp-
record by furnishing either a copy of a tions, the individual shall be provided a
birth certificate showing parentage or denial of his/her request in writing
a court order establishing the guard- with the governing exemptions cited. If
ianship. the disclosure of the existence of a
(d) Accompanying persons. An indi- criminal law enforcement proceeding
vidual seeking to review records per- record could itself interfere with a
taining to himself may be accompanied pending law enforcement proceeding of
by another individual of his own choos- which there is reason to believe the
ing. Both the individual seeking access subject is unaware, the Service may,
and the individual accompanying him during only such time as the cir-
shall be required to sign the required cumstance continues, treat the records
form indicating that the Service is au- as not subject to the requirements of 5
thorized to discuss the contents of the U.S.C. 552.
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subject record in the presence of both (b) Individual requests for access to
individuals. records which have been exempted
(e) Specification of records sought. Re- from access pursuant to 5 U.S.C.
quests for access to records, either in 552a(k) shall be processed as follows:
57
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§ 103.23 8 CFR Ch. I (1–1–10 Edition)
(1) A request for information classi- the confidential source, the document
fied by the Service under Executive with deletions made or the summary
Order 12356 on National Security Informa- shall be furnished to the requester.
tion requires the Service to review the (4) Testing or examination material
information to determine whether it which has been exempted pursuant to 5
continues to warrant classification U.S.C. 552a(k)(6) shall not be made
under the criteria of the Executive available to an individual if disclosure
Order. Information which no longer would compromise the objectivity or
warrants classification shall be declas- fairness of the testing or examination
sified and made available to the indi- process but shall be made available if
vidual, if not otherwise exempt. If the no such compromise possibility exists.
information continues to warrant clas- (5) The Service records which are ex-
sification, the individual shall be ad- empted and the reasons for the exemp-
vised that the information sought is tions are enumerated in 28 CFR 16.99.
classified; that it has been reviewed
and continues to warrant classifica- [40 FR 44481, Sept. 26, 1975, as amended at 48
FR 49653, Oct. 27, 1983; 58 FR 31149, June, 1,
tion; and that it has been exempted 1993]
from access under 5 U.S.C. 552a(k)(1).
Information which has been exempted § 103.23 Special access procedures.
under 5 U.S.C. 552a(j) and which is also
classified, shall be reviewed as required (a) Records of other agencies. When in-
by this paragraph but the response to formation sought from a system of
the individual shall be in the form pre- records of the Service includes infor-
scribed by paragraph (a) of this section. mation from other agencies or compo-
(2) Requests for information which nents of the Department of Justice
has been exempted from disclosure pur- that has been classified under Execu-
suant to 5 U.S.C. 552a(k)(2) shall be re- tive Order 12356, the request and the re-
sponded to in the manner provided in quested documents shall be referred to
paragraph (a) of this section unless a the appropriate agency or other compo-
review of the information indicates nent for classification review and proc-
that the information has been used or essing. Only with the consent of the re-
is being used to deny the individual sponsible agency or component, may
any right, privilege or benefit for the requester be informed of the refer-
which he is eligible or to which he ral as specified in section 3.4(f) of E.O.
would otherwise be entitled under Fed- 12356.
eral law. In that event, the individual (b) Medical records. When an indi-
shall be advised of the existence of the vidual requests medical records con-
record and shall be provided the infor- cerning himself, which are not other-
mation except to the extent it would wise exempt from disclosure, the re-
identify a confidential source. If and sponsible official as specified in
only if information identifying a con- § 103.10(a) of this part shall, if deemed
fidential source can be deleted or the necessary, advise the individual that
pertinent parts of the record summa- records will be provided only to a phy-
rized in a manner which protects the sician designated in writing by the in-
identity of the confidential source, the dividual. Upon receipt of the designa-
document with deletions made or the tion, the responsible official as speci-
summary shall be furnished to the re- fied in § 103.10(a) of this part will per-
quester. mit the physician to review the records
(3) Information compiled as part of or to receive copies of the records by
an employee background investigation mail, upon proper verification of iden-
which has been exempted pursuant to 5 tity. The determination of which
U.S.C. 552a(k)(5) shall be made avail- records should be made available di-
able to an individual upon request ex- rectly to the individual and which
cept to the extent that it identifies a records should not be disclosed because
confidential source. If and only if infor- of possible harm to the individual shall
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Department of Homeland Security § 103.28
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§ 103.29 8 CFR Ch. I (1–1–10 Edition)
tion Disclosure (Privacy Act), or other disclosed to any person under compel-
disclosure document shall be used for ling circumstances affecting health or
this accounting. The responsible offi- safety, the individual shall be notified
cial as specified in § 103.10(a) of this at his last known address within 10
60
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Department of Homeland Security § 103.38
working days of the disclosure. Notifi- General, decisions of the Board, and de-
cation shall include the following in- cisions of the Attorney General, shall
formation: The nature of the informa- be binding on all officers and employ-
tion disclosed, the person or agency to ees of the Department of Homeland Se-
whom it was disclosed, the date of the curity or immigration judges in the ad-
disclosure, and the compelling cir- ministration of the immigration laws
cumstances justifying the disclosure. of the United States. By majority vote
Notification shall be given by the offi- of the permanent Board members, se-
cer who made or authorized the disclo- lected decisions of the Board rendered
sure. by a three-member panel or by the
Board en banc may be designated to
§ 103.32 Information forms. serve as precedents in all proceedings
(a) Review of forms. The Service shall involving the same issue or issues. Se-
be responsible for the review of forms lected decisions designated by the
it uses to collect information from and Board, decisions of the Attorney Gen-
about individuals. eral, and decisions of the Secretary of
(b) Scope of review. The Service Forms Homeland Security to the extent au-
Control Unit shall review each form to thorized in paragraph (i) of this sec-
assure that it complies with the re- tion, shall serve as precedents in all
quirements of 28 CFR 16.52. proceedings involving the same issue or
issues.
§ 103.33 Contracting record systems. (h) Referral of cases to the Attorney
Any contract by the Service for the General. (1) The Board shall refer to the
operation of a record system shall be in Attorney General for review of its deci-
compliance with 28 CFR 16.55. sion all cases which:
(i) The Attorney General directs the
[40 FR 44481, Sept. 26, 1975, as amended at 58 Board to refer to him.
FR 31150, June 1, 1993] (ii) The Chairman or a majority of
the Board believes should be referred to
§ 103.34 Security of records systems.
the Attorney General for review.
The security of records systems shall (iii) The Secretary of Homeland Se-
be in accordance with 28 CFR 16.54. curity, or specific officials of the De-
partment of Homeland Security des-
§ 103.35 Use and collection of Social ignated by the Secretary with the con-
Security numbers.
currence of the Attorney General, re-
The use and collection of Social Se- fers to the Attorney General for re-
curity numbers shall be in accordance view.
with 28 CFR 16.56. (2) In any case the Attorney General
[40 FR 44481, Sept. 26, 1975, as amended at 58 decides, the Attorney General’s deci-
FR 31150, June 1, 1993] sion shall be stated in writing and shall
be transmitted to the Board or Sec-
§ 103.36 Employee standards of con- retary, as appropriate, for transmittal
duct with regard to privacy. and service as provided in paragraph (f)
Service employee standards of con- of this section.
duct with regard to privacy shall be in (i) Publication of Secretary’s precedent
compliance with 28 CFR 16.57. decisions. The Secretary of Homeland
Security, or specific officials of the De-
[40 FR 44481, Sept. 26, 1975, as amended at 58
partment of Homeland Security des-
FR 31150, June 1, 1993]
ignated by the Secretary with the con-
§ 103.37 Precedent decisions. currence of the Attorney General, may
file with the Attorney General Service
(a) Proceedings before the immigra-
precedent decisions as set forth in
tion judges, the Board of Immigration
§ 103.3(c).
Appeals and the Attorney General are
governed by part 1003 of 8 CFR chapter [68 FR 9832, Feb. 28, 2003]
V.
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§ 103.39 8 CFR Ch. I (1–1–10 Edition)
used; street address; post-office ad- tered the 6 million and 7 million series
dress; date of birth; place of birth; citi- of A–numbers between circa 1944 and
zenship; sex; marital status; race; May 1, 1951. Any documents dated after
height; weight; hair and eye color; May 1, 1951, though found in an A–File
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Department of Homeland Security § 103.40
numbered below 8 million, will remain bered below 8 million must be identi-
subject to FOIA/PA restrictions. fied by Alien Registration Number.
[73 FR 28030, May 15, 2008]
Visa Files must be identified by the
Visa File Number. Registry Files must
§ 103.40 Genealogical Research Re- be identified by the Registry File Num-
quests. ber (for example, R–12345).
(a) Nature of requests. Genealogy re- (e) Information required for release of
quests are requests for searches and/or records. Subjects will be presumed de-
copies of historical records relating to ceased if their birth dates are more
a deceased person, usually for gene- than 100 years prior to the date of the
alogy and family history research pur- request. In other cases, the subject is
poses. presumed to be living until the re-
(b) Manner of requesting genealogical questor establishes to the satisfaction
searches and records. Requests must be of the Genealogy Program Office that
submitted on Form G–1041, Genealogy the subject is deceased. As required on
Index Search Request, or Form G– Form G–1041A, primary or secondary
1041A, Genealogy Records Request, and documentary evidence of the subject’s
mailed to the address listed on the death will be required (including but
form. Beginning on August 13, 2008, not limited to death records, published
USCIS will accept requests electroni- obituaries or eulogies, published death
cally through its Web site at http:// notices, church or bible records, photo-
www.USCIS.gov. A separate request on graphs of gravestones, and/or copies of
Form G–1041 must be submitted for official documents relating to payment
each individual searched, and that of death benefits). All documentary
form will call for the name, aliases, evidence must be attached to Form G–
and all alternate spellings relating to 1041A or submitted in accordance with
the one individual immigrant. Form G– instructions provided on Form G–
1041A may be submitted to request one 1041A.
or more separate records relating to (f) Processing of index search requests.
separate individuals. This service is designed for customers
(c) Information required to perform who are unsure whether USCIS has any
index search. As required on Form G– record of their ancestor, or who suspect
1041, all requests for index searches to a record exists but cannot identify that
identify records of individual immi- record by number. Each request for
grants must include the immigrant’s index search services will generate a
full name (including variant spellings search of the indices to determine the
of the name and/or aliases, if any), date existence of responsive historical
of birth, and place of birth. The date of records. If no record is found, USCIS
birth must be at least as specific as a will notify the customer accordingly. If
year, and the place of birth must be at records are found, USCIS will provide
least as specific as a country (pref- the customer with the search results,
erably the country name as it existed including the type of record found and
at the time of the immigrant’s immi- the file number or other information
gration or naturalization). Additional identifying the record. The customer
information about the immigrant’s can use this information to request a
date of arrival in the United States, copy of the record(s).
residence at time of naturalization, (g) Processing of record copy requests.
name of spouse, and names of children This service is designed for customers
may be required to ensure a successful who can identify a specific record or
search. file to be retrieved, copied, reviewed,
(d) Information required to retrieve and released. Customers may identify
records. As required on Form G–1041A, one or more files in a single request.
requests for copies of historical records However, separate fees will apply to
or files must identify the record by each file requested. Upon receipt of re-
number or other specific data used by quests identifying specific records by
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§ 103.41 8 CFR Ch. I (1–1–10 Edition)
will find a record that contains data 204.7 Preservation of benefits contained in
that is not releasable to the customer. savings clause of Immigration and Na-
An example would be names and birth tionality Act Amendments of 1976.
204.8 [Reserved]
dates of persons who might be living. 204.9 Special immigrant status for certain
The FOIA/PA only permits release of aliens who have served honorably (or are
this type of information when the af- enlisted to serve) in the Armed Forces of
fected individual submits a release au- the United States for at least 12 years.
thorization to USCIS. Therefore, the 204.10 Petitions by, or for, certain scientists
Genealogy Program Office will contact of the Commonwealth of Independent
and inform the customer of this re- States or the Baltic states.
quirement. The customer will have the 204.11 Special immigrant status for certain
aliens declared dependent on a juvenile
opportunity to submit the release au- court (special immigrant juvenile).
thorization. The customer can also 204.12 How can second-preference immi-
agree to the transfer of the document grant physicians be granted a national
request to the FOIA/PA program for interest waiver based on service in a
treatment as a FOIA/PA request as de- medically underserved area or VA facil-
scribed in 6 CFR Part 5. Document re- ity?
trieval charges will apply in all cases 204.13 How can the International Broad-
where documents are retrieved. casting Bureau of the United States
Broadcasting Board of Governors peti-
[73 FR 28031, May 15, 2008] tion for a fourth preference special immi-
grant broadcaster?
§ 103.41 Genealogy request fees.
(a) Genealogy search fee. See 8 CFR Subpart B [Reserved]
103.7(b)(1). Subpart C—Intercountry Adoption of a
(b) Genealogy records fees. See 8 CFR Convention Adoptee
103.7(b)(1).
(c) Manner of submission. When a re- 204.300 Scope of this subpart.
quest is submitted online, credit card 204.301 Definitions.
payments are required. These pay- 204.302 Role of service providers.
204.303 Determination of habitual residence.
ments will be processed through the 204.304 Improper inducement prohibited.
Treasury Department’s Pay.Gov finan- 204.305 State preadoption requirements.
cial management system. Cashier’s 204.306 Classification as an immediate rel-
checks or money orders in the exact ative based on Convention adoption.
amount must be submitted for requests 204.307 Who may file a Form I–800A or Form
submitted with Form G–1041 or Form I–800.
G–1041A in accordance with 8 CFR 204.308 Where to file Form I–800A or Form I–
800.
103.7(a)(1). Personal Checks will not be 204.309 Factors requiring denial of a Form
accepted. I–800A or Form I–800.
[73 FR 28031, May 15, 2008] 204.310 Filing requirements for Form I–800A.
204.311 Convention adoption home study re-
quirements.
PART 109 [RESERVED] 204.312 Adjudication of the Form I–800A.
204.313 Filing and adjudication of the Form
PART 204—IMMIGRANT PETITIONS I–800.
204.314 Appeal.
Subpart A—Immigrant Visa Petitions AUTHORITY: 8 U.S.C. 1101, 1103, 1151, 1153,
1154, 1182, 1184, 1186a, 1255, 1641; 8 CFR part 2.
Sec.
204.1 General information about immediate
relative and family-sponsored petitions. Subpart A—Immigrant Visa
204.2 Petitions for relatives, widows and Petitions
widowers, and abused spouses and chil-
dren. § 204.1 General information about im-
204.3 Orphan cases under section 101(b)(1)(F) mediate relative and family-spon-
of the Act (non-Convention cases). sored petitions.
204.4 Amerasian child of a United States
(a) Types of petitions. Petitions may
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citizen.
204.5 Petitions for employment-based immi- be filed for an alien’s classification as
grants. an immediate relative under section
204.6 Petitions for employment creation 201(b) of the Act or as a preference im-
aliens. migrant under section 203(a) of the Act
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Department of Homeland Security § 204.1
(6) Any person filing a petition under fice abroad prior to stateside referral,
section 204(f) of the Act as, or on behalf if they deem it necessary. A consular
of, an Amerasian for classification as official may not accept or approve a
an immediate relative under section self-petition filed by the spouse or
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§ 204.1 8 CFR Ch. I (1–1–10 Edition)
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Department of Homeland Security § 204.2
to, one or more of the following docu- be adjudicated based on the informa-
ments: tion submitted by the self-petitioner.
(i) A baptismal certificate with the [57 FR 41056, Sept. 9, 1992, as amended at 58
seal of the church, showing the date FR 48778, Sept. 20, 1993; 61 FR 13072, 13073,
and place of birth in the United States Mar. 26, 1996; 63 FR 70315, Dec. 21, 1998; 72 FR
and the date of baptism; 19106, Apr. 17, 2007; 72 FR 56853, Oct. 4, 2007; 74
(ii) Affidavits sworn to by persons FR 26936, June 5, 2009]
who were living at the time and who § 204.2 Petitions for relatives, widows
have personal knowledge of the event and widowers, and abused spouses
to which they attest. The affidavits and children.
must contain the affiant’s full name (a) Petition for a spouse—(1) Eligibility.
and address, date and place of birth, re- A United States citizen or alien admit-
lationship to the parties, if any, and ted for lawful permanent residence
complete details concerning how the may file a petition on behalf of a
affiant acquired knowledge of the spouse.
event; (i) Marriage within five years of peti-
(iii) Early school records (preferably tioner’s obtaining lawful permanent resi-
from the first school) showing the date dent status. (A) A visa petition filed on
of admission to the school, the child’s behalf of an alien by a lawful perma-
date and place of birth, and the nent resident spouse may not be ap-
name(s) and place(s) of birth of the par- proved if the marriage occurred within
ent(s); five years of the petitioner being ac-
(iv) Census records showing the corded the status of lawful permanent
name, place of birth, and date of birth resident based upon a prior marriage to
or age of the petitioner; or a United States citizen or alien law-
(v) If it is determined that it would fully admitted for permanent resi-
dence, unless:
cause unusual delay or hardship to ob-
(1) The petitioner establishes by clear
tain documentary proof of birth in the
and convincing evidence that the mar-
United States, a United States citizen
riage through which the petitioner
petitioner who is a member of the gained permanent residence was not
Armed Forces of the United States and entered into for the purposes of evad-
who is serving outside the United ing the immigration laws; or
States may submit a statement from (2) The marriage through which the
the appropriate authority of the Armed petitioner obtained permanent resi-
Forces. The statement should attest to dence was terminated through death.
the fact that the personnel records of (B) Documentation. The petitioner
the Armed Forces show that the peti- should submit documents which cover
tioner was born in the United States on the period of the prior marriage. The
a certain date. types of documents which may estab-
(3) Evidence submitted with a self-peti- lish that the prior marriage was not
tion. If a self-petitioner filing under entered into for the purpose of evading
section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), the immigration laws include, but are
204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the not limited to:
Act is unable to present primary or (1) Documentation showing joint
secondary evidence of the abuser’s sta- ownership of property;
tus, the Service will attempt to elec- (2) A lease showing joint tenancy of a
tronically verify the abuser’s citizen- common residence;
ship or immigration status from infor- (3) Documentation showing commin-
mation contained in Service computer- gling of financial resources;
ized records. Other Service records may (4) Birth certificate(s) of child(ren)
born to the petitioner and prior spouse;
also be reviewed at the discretion of
(5) Affidavits sworn to or affirmed by
the adjudicating officer. If the Service
third parties having personal knowl-
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is unable to identify a record as relat- edge of the bona fides of the prior mar-
ing to the abuser or the record does not ital relationship. (Each affidavit must
establish the abuser’s immigration or contain the full name and address, date
citizenship status, the self-petition will and place of birth of the person making
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§ 204.2 8 CFR Ch. I (1–1–10 Edition)
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Department of Homeland Security § 204.2
to the spouses, if any. The affidavit 203(c) of the Act based upon any rel-
must contain complete information ative petition filed during the prohib-
and details explaining how the person ited period, unless an exemption con-
acquired his or her knowledge of the tained in this part has been granted.
marriage. Affidavits should be sup- Furthermore, a preference beneficiary
ported, if possible, by one or more shall not be accorded a priority date
types of documentary evidence listed prior to November 29, 1990, based upon
in this paragraph); or the approval of a request for consider-
(6) Any other documentation which is ation for the bona fide marriage ex-
relevant to establish that the marriage emption contained in this part.
was not entered into in order to evade
(2) Evidence for petition for a spouse. In
the immigration laws of the United
addition to evidence of United States
States.
(C) Decision. Any petition filed during citizenship or lawful permanent resi-
the prohibited period shall be denied, dence, the petitioner must also provide
unless the petitioner establishes eligi- evidence of the claimed relationship. A
bility for an exemption from the gen- petition submitted on behalf of a
eral prohibition. The petitioner shall spouse must be accompanied by a re-
be notified in writing of the decision of cent ADIT-style photograph of the pe-
the director. titioner, a recent ADIT-style photo-
(D) Denials. The denial of a petition graph of the beneficiary, a certificate
because the marriage took place during of marriage issued by civil authorities,
the prohibited period shall be without and proof of the legal termination of
prejudice to the filing of a new petition all previous marriages of both the peti-
after the beneficiary has resided out- tioner and the beneficiary. However,
side the United States for the required non-ADIT-style photographs may be
period of two years following the mar- accepted by the district director when
riage. The denial shall also be without the petitioner or beneficiary reside(s)
prejudice to the consideration of a new in a country where such photographs
petition or a motion to reopen the visa are unavailable or cost prohibitive.
petition proceedings if deportation or (3) Decision on and disposition of peti-
exclusion proceedings are terminated tion. The approved petition will be for-
after the denial other than by the bene-
warded to the Department of State’s
ficiary’s departure from the United
Processing Center. If the beneficiary is
States. Furthermore, the denial shall
in the United States and is eligible for
be without prejudice to the consider-
ation of a new petition or motion to re- adjustment of status under section 245
open the visa petition proceedings, if of the Act, the approved petition will
the petitioner establishes eligibility be retained by the Service. If the peti-
for the bona fide marriage exemption tion is denied, the petitioner will be
contained in this part: Provided, That notified of the reasons for the denial
no motion to reopen visa petition pro- and of the right to appeal in accord-
ceedings may be accepted if the ap- ance with the provisions of 8 CFR 3.3.
proval of the motion would result in (4) Derivative beneficiaries. No alien
the beneficiary being accorded a pri- may be classified as an immediate rel-
ority date within the meaning of sec- ative as defined in section 201(b) of the
tion 203(c) of the Act earlier than No- Act unless he or she is the direct bene-
vember 29, 1990. ficiary of an approved petition for that
(E) Appeals. The decision of the Board classification. Therefore, a child of an
of Immigration Appeals concerning the alien approved for classification as an
denial of a relative visa petition be- immediate relative spouse is not eligi-
cause the petitioner failed to establish ble for derivative classification and
eligibility for the bona fide marriage must have a separate petition filed on
exemption contained in this part will his or her behalf. A child accom-
constitute the single level of appellate
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§ 204.2 8 CFR Ch. I (1–1–10 Edition)
fairs Manual (FAM). When the FAM citizen or lawful permanent resident—(1)
shows that primary documents are gen- Eligibility—(i) Basic eligibility require-
erally available in the country at issue ments. A spouse may file a self-petition
but the petitioner claims that his or under section 204(a)(1)(A)(iii) or
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Department of Homeland Security § 204.2
204(a)(1)(B)(ii) of the Act for his or her relative status. The self-petitioner
classification as an immediate relative would not be precluded, however, from
or as a preference immigrant if he or filing a new self-petition for immediate
she: relative classification after the abus-
(A) Is the spouse of a citizen or law- er’s naturalization, provided the self-
ful permanent resident of the United petitioner continues to meet the self-
States; petitioning requirements.
(B) Is eligible for immigrant classi- (iv) Eligibility for immigrant classifica-
fication under section 201(b)(2)(A)(i) or tion. A self-petitioner is required to
203(a)(2)(A) of the Act based on that re- comply with the provisions of section
lationship; 204(c) of the Act, section 204(g) of the
(C) Is residing in the United States; Act, and section 204(a)(2) of the Act.
(D) Has resided in the United States (v) Residence. A self-petition will not
with the citizen or lawful permanent be approved if the self-petitioner is not
resident spouse; residing in the United States when the
(E) Has been battered by, or has been self-petition is filed. The self-petitioner
the subject of extreme cruelty per- is not required to be living with the
petrated by, the citizen or lawful per- abuser when the petition is filed, but
manent resident during the marriage; he or she must have resided with the
or is that parent of a child who has abuser in the United States in the past.
been battered by, or has been the sub- (vi) Battery or extreme cruelty. For the
ject of extreme cruelty perpetrated by, purpose of this chapter, the phrase
the citizen or lawful permanent resi- ‘‘was battered by or was the subject of
dent during the marriage; extreme cruelty’’ includes, but is not
(F) Is a person of good moral char- limited to, being the victim of any act
acter; or threatened act of violence, including
(G) Is a person whose deportation any forceful detention, which results or
would result in extreme hardship to threatens to result in physical or men-
himself, herself, or his or her child; and tal injury. Psychological or sexual
(H) Entered into the marriage to the abuse or exploitation, including rape,
citizen or lawful permanent resident in molestation, incest (if the victim is a
good faith. minor), or forced prostitution shall be
(ii) Legal status of the marriage. The considered acts of violence. Other abu-
self-petitioning spouse must be legally sive actions may also be acts of vio-
married to the abuser when the peti- lence under certain circumstances, in-
tion is properly filed with the Service. cluding acts that, in and of themselves,
A spousal self-petition must be denied may not initially appear violent but
if the marriage to the abuser legally that are a part of an overall pattern of
ended through annulment, death, or di- violence. The qualifying abuse must
vorce before that time. After the self- have been committed by the citizen or
petition has been properly filed, the lawful permanent resident spouse,
legal termination of the marriage will must have been perpetrated against the
have no effect on the decision made on self-petitioner or the self-petitioner’s
the self-petition. The self-petitioner’s child, and must have taken place dur-
remarriage, however, will be a basis for ing the self-petitioner’s marriage to
the denial of a pending self-petition. the abuser.
(iii) Citizenship or immigration status (vii) Good moral character. A self-peti-
of the abuser. The abusive spouse must tioner will be found to lack good moral
be a citizen of the United States or a character if he or she is a person de-
lawful permanent resident of the scribed in section 101(f) of the Act. Ex-
United States when the petition is filed tenuating circumstances may be taken
and when it is approved. Changes in the into account if the person has not been
abuser’s citizenship or lawful perma- convicted of an offense or offenses but
nent resident status after the approval admits to the commission of an act or
will have no effect on the self-petition. acts that could show a lack of good
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§ 204.2 8 CFR Ch. I (1–1–10 Edition)
(ix) Good faith marriage. A spousal clude, but is not limited to, reports and
self-petition cannot be approved if the affidavits from police, judges and other
self-petitioner entered into the mar- court officials, medical personnel,
riage to the abuser for the primary school officials, clergy, social workers,
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Department of Homeland Security § 204.2
and other social service agency per- that one spouse has been listed as the
sonnel. Persons who have obtained an other’s spouse on insurance policies,
order of protection against the abuser property leases, income tax forms, or
or have taken other legal steps to end bank accounts; and testimony or other
the abuse are strongly encouraged to evidence regarding courtship, wedding
submit copies of the relating legal doc- ceremony, shared residence and experi-
uments. Evidence that the abuse vic- ences. Other types of readily available
tim sought safe-haven in a battered evidence might include the birth cer-
women’s shelter or similar refuge may tificates of children born to the abuser
be relevant, as may a combination of and the spouse; police, medical, or
documents such as a photograph of the court documents providing information
visibly injured self-petitioner sup- about the relationship; and affidavits
ported by affidavits. Other forms of of persons with personal knowledge of
credible relevant evidence will also be the relationship. All credible relevant
considered. Documentary proof of non- evidence will be considered.
qualifying abuses may only be used to (3) Decision on and disposition of the
establish a pattern of abuse and vio- petition—(i) Petition approved. If the
lence and to support a claim that self-petitioning spouse will apply for
qualifying abuse also occurred. adjustment of status under section 245
(v) Good moral character. Primary evi- of the Act, the approved petition will
dence of the self-petitioner’s good be retained by the Service. If the self-
moral character is the self-petitioner’s petitioner will apply for an immigrant
affidavit. The affidavit should be ac- visa abroad, the approved self-petition
companied by a local police clearance will be forwarded to the Department of
or a state-issued criminal background State’s National Visa Center.
check from each locality or state in (ii) Petition denied. If the self-petition
the United States in which the self-pe- is denied, the self-petitioner will be no-
titioner has resided for six or more tified in writing of the reasons for the
months during the 3-year period imme- denial and of the right to appeal the
diately preceding the filing of the self- decision.
petition. Self-petitioners who lived (4) Derivative beneficiaries. A child ac-
outside the United States during this companying or following-to-join the
time should submit a police clearance, self-petitioning spouse may be ac-
criminal background check, or similar corded the same preference and pri-
report issued by the appropriate au- ority date as the self-petitioner with-
thority in each foreign country in out the necessity of a separate peti-
which he or she resided for six or more tion, if the child has not been classified
months during the 3-year period imme- as an immigrant based on his or her
diately preceding the filing of the self- own self-petition. A derivative child
petition. If police clearances, criminal who had been included in a parent’s
background checks, or similar reports self-petition may later file a self-peti-
are not available for some or all loca- tion, provided the child meets the self-
tions, the self-petitioner may include petitioning requirements. A child who
an explanation and submit other evi- has been classified as an immigrant
dence with his or her affidavit. The based on a petition filed by the abuser
Service will consider other credible or another relative may also be deriva-
evidence of good moral character, such tively included in a parent’s self-peti-
as affidavits from responsible persons tion. The derivative child must be un-
who can knowledgeably attest to the married, less than 21 years old, and
self-petitioner’s good moral character. otherwise qualify as the self-peti-
(vi) Extreme hardship. Evidence of ex- tioner’s child under section 101(b)(1)(F)
treme hardship may include affidavits, of the Act until he or she becomes a
birth certificates of children, medical lawful permanent resident based on the
reports, protection orders and other derivative classification.
court documents, police reports, and (5) Name change. If the self-peti-
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§ 204.2 8 CFR Ch. I (1–1–10 Edition)
years of age under section 203(a)(1) or tificate and the parents’ marriage cer-
for a married son or daughter for pref- tificate or other evidence of
erence classification under section legitimation issued by civil authori-
203(a)(3) of the Act. An alien lawfully ties.
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Department of Homeland Security § 204.2
(iii) Primary evidence for an illegitimate vits of friends, neighbors, school offi-
child or son or daughter. If a petition is cials, or other associates knowledge-
submitted by the mother, the child’s able about the relationship.
birth certificate, issued by civil au- (iv) Primary evidence for a stepchild. If
thorities and showing the mother’s a petition is submitted by a stepparent
name, must accompany the petition. If on behalf of a stepchild or stepson or
the mother’s name on the birth certifi- stepdaughter, the petition must be sup-
cate is different from her name as re- ported by the stepchild’s or stepson’s
flected in the petition, evidence of the or stepdaughter’s birth certificate,
name change must also be submitted. issued by civil authorities and showing
If the petition is submitted by the pur- the name of the beneficiary’s parent to
ported father of a child or son or whom the petitioner is married, a mar-
daughter born out of wedlock, the fa-
riage certificate issued by civil au-
ther must show that he is the natural
thorities which shows that the peti-
father and that a bona fide parent-child
tioner and the child’s natural parent
relationship was established when the
child or son or daughter was unmarried were married before the stepchild or
and under twenty-one years of age. stepson or stepdaughter reached the
Such a relationship will be deemed to age of eighteen; and evidence of the
exist or to have existed where the fa- termination of any prior marriages of
ther demonstrates or has demonstrated the petitioner and the natural parent
an active concern for the child’s sup- of the stepchild or stepson or step-
port, instruction, and general welfare. daughter.
Primary evidence to establish that the (v) Secondary evidence. When it is es-
petitioner is the child’s natural father tablished that primary evidence is not
is the beneficiary’s birth certificate, available, secondary evidence may be
issued by civil authorities and showing accepted. To determine the availability
the father’s name. If the father’s name of primary documents, the Service will
has been legally changed, evidence of refer to the Department of State’s For-
the name change must accompany the eign Affairs Manual (FAM). When the
petition. Evidence of a parent/child re- FAM shows that primary documents
lationship should establish more than are generally available in the country
merely a biological relationship. Emo- at issue but the petitioner claims that
tional and/or financial ties or a genuine his or her document is unavailable, a
concern and interest by the father for letter from the appropriate registrar
the child’s support, instruction, and stating that the document is not avail-
general welfare must be shown. There able will be required before the Service
should be evidence that the father and will accept secondary evidence. Sec-
child actually lived together or that ondary evidence will be evaluated for
the father held the child out as being its authenticity and credibility. Sec-
his own, that he provided for some or ondary evidence may take the form of
all of the child’s needs, or that in gen-
historical evidence; such evidence must
eral the father’s behavior evidenced a
have been issued contemporaneously
genuine concern for the child. The
with the event which it documents any
most persuasive evidence for estab-
lishing a bona fide parent/child rela- may include, but is not limited to,
tionship and financial responsibility by medical records, school records, and re-
the father is documentary evidence ligious documents. Affidavits may also
which was contemporaneous with the by accepted. When affidavits are sub-
events in question. Such evidence may mitted, they must be sworn to by per-
include, but is not limited to: money sons who were born at the time of and
order receipts or cancelled checks who have personal knowledge of the
showing the father’s financial support event to which they attest. Any affi-
of the beneficiary; the father’s income davit must contain the affiant’s full
tax returns; the father’s medical or in- name and address, date and place of
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surance records which include the ben- birth, relationship to the party, if any,
eficiary as a dependent; school records and complete details concerning how
for the beneficiary; correspondence be- the affiant acquired knowledge of the
tween the parties; or notarized affida- event.
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§ 204.2 8 CFR Ch. I (1–1–10 Edition)
(vi) Blood tests. The director may re- shall be deemed to mark the com-
quire that a specific Blood Group Anti- mencement of legal custody. An infor-
gen Test be conducted of the bene- mal custodial or guardianship docu-
ficiary and the beneficiary’s father and ment, such as a sworn affidavit signed
mother. In general, blood tests will be before a notary public, is insufficient
required only after other forms of evi- for this purpose.
dence have proven inconclusive. If the (B) Evidence must also be submitted
specific Blood Group Antigen Test is to show that the beneficiary resided
also found not to be conclusive and the with the petitioner for at least two
director determines that additional years. Generally, such documentation
evidence is needed, a Human Leucocyte must establish that the petitioner and
Antigen (HLA) test may be requested. the beneficiary resided together in a
Tests will be conducted, at the expense
familial relationship. Evidence of pa-
of the petitioner or beneficiary, by the
rental control may include, but is not
United States Public Health Service
limited to, evidence that the adoptive
physician who is authorized overseas or
parent owns or maintains the property
by a qualified medical specialist des-
ignated by the district director. The re- where the child resides and provides fi-
sults of the test should be reported on nancial support and day-to-day super-
Form G–620. Refusal to submit to a vision. The evidence must clearly indi-
Specific Blood Group Antigen or HLA cate the physical living arrangements
test when requested may constitute a of the adopted child, the adoptive par-
basis for denial of the petition, unless a ent(s), and the natural parent(s) for the
legitimate religious objection has been period of time during which the adop-
established. When a legitimate reli- tive parent claims to have met the res-
gious objection is established, alter- idence requirement. When the adopted
nate forms of evidence may be consid- child continued to reside in the same
ered based upon documentation already household as a natural parent(s) during
submitted. the period in which the adoptive parent
(vii) Primary evidence for an adopted petitioner seeks to establish his or her
child or son or daughter. A petition may compliance with this requirement, the
be submitted on behalf of an adopted petitioner has the burden of estab-
child or son or daughter by a United lishing that he or she exercised pri-
States citizen or lawful permanent mary parental control during that pe-
resident if the adoption took place be- riod of residence.
fore the beneficiary’s sixteenth birth- (C) Legal custody and residence oc-
day, and if the child has been in the curring prior to or after the adoption
legal custody of the adopting parent or will satisfy both requirements. Legal
parents and has resided with the adopt- custody, like residence, is accounted
ing parent or parents for at least two for in the aggregate. Therefore, a break
years. A copy of the adoption decree, in legal custody or residence will not
issued by the civil authorities, must
affect the time already fulfilled. To
accompany the petition.
meet the definition of child contained
(A) Legal custody means the assump-
in sections 101(b)(1)(E) and 101(b)(2) of
tion of responsibility for a minor by an
the Act, the child must have been
adult under the laws of the state and
under the order or approval of a court under 16 years of age when the adop-
of law or other appropriate government tion is finalized.
entity. This provision requires that a (D) On or after the Convention effec-
legal process involving the courts or tive date, as defined in 8 CFR part
other recognized government entity 204.301, a United States citizen who is
take place. If the adopting parent was habitually resident in the United
granted legal custody by the court or States, as determined under 8 CFR
recognized governmental entity prior 204.303, may not file a Form I–130 under
to the adoption, that period may be this section on behalf of child who was
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Department of Homeland Security § 204.2
date. In the case of any adoption occur- showing name change, or other similar
ring on or after the Convention effec- evidence) must accompany the peti-
tive date, a Form I–130 may be filed tion. If the beneficiary’s name has been
and approved only if the United States legally changed, evidence of the name
citizen petitioner was not habitually change must also accompany the peti-
resident in the United States at the tion.
time of the adoption. (e) Self-petition by child of abusive cit-
(E) For purposes of paragraph izen or lawful permanent resident—(1)
(d)(2)(vii)(D) of this section, USCIS will Eligibility. (i) A child may file a self-pe-
deem a United States citizen, 8 CFR tition under section 204(a)(1)(A)(iv) or
204.303 notwithstanding, to have been 204(a)(1)(B)(iii) of the Act if he or she:
habitually resident outside the United (A) Is the child of a citizen or lawful
States, if the citizen satisfies the 2- permanent resident of the United
year joint residence and custody re- States;
quirements by residing with the child (B) Is eligible for immigrant classi-
outside the United States. fication under section 201(b)(2)(A)(i) or
(F) For purposes of paragraph 203(a)(2)(A) of the Act based on that re-
(d)(2)(vii)(D) of this section, USCIS will lationship;
not approve a Form I–130 under section (C) Is residing in the United States;
101(b)(1)(E) of the Act on behalf of an (D) Has resided in the United States
alien child who is present in the United with the citizen or lawful permanent
States based on an adoption that is en- resident parent;
tered on or after the Convention effec- (E) Has been battered by, or has been
tive date, but whose habitual residence the subject of extreme cruelty per-
immediately before the child’s arrival petrated by, the citizen or lawful per-
in the United States was in a Conven- manent resident parent while residing
tion country. However, the U.S. citizen with that parent;
seeking the child’s adoption may file a (F) Is a person of good moral char-
Form I–800A and Form I–800 under 8 acter; and
CFR part 204, subpart C. (G) Is a person whose deportation
(3) Decision on and disposition of peti- would result in extreme hardship to
tion. The approved petition will be for- himself or herself.
warded to the Department of State’s (ii) Parent-child relationship to the
Processing Center. If the beneficiary is abuser. The self-petitioning child must
in the United States and is eligible for be unmarried, less than 21 years of age,
adjustment of status under section 245 and otherwise qualify as the abuser’s
of the Act, the approved petition will child under the definition of child con-
be retained by the Service. If the peti- tained in section 101(b)(1) of the Act
tion is denied, the petitioner will be when the petition is filed and when it
notified of the reasons for the denial is approved. Termination of the abus-
and of the right to appeal in accord- er’s parental rights or a change in legal
ance with the provisions of 8 CFR 3.3. custody does not alter the self-peti-
(4) Derivative beneficiaries. A spouse or tioning relationship provided the child
child accompanying or following to meets the requirements of section
join a principal alien as used in this 101(b)(1) of the Act.
section may be accorded the same pref- (iii) Citizenship or immigration status
erence and priority date as the prin- of the abuser. The abusive parent must
cipal alien without the necessity of a be a citizen of the United States or a
separate petition. However, a child of lawful permanent resident of the
an alien who is approved for classifica- United States when the petition is filed
tion as an immediate relative is not el- and when it is approved. Changes in the
igible for derivative classification and abuser’s citizenship or lawful perma-
must have a separate petition approved nent resident status after the approval
on his or her behalf. will have no effect on the self-petition.
(5) Name change. When the peti- A self-petition approved on the basis of
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tioner’s name does not appear on the a relationship to an abusive lawful per-
child’s birth certificate, evidence of the manent resident will not be automati-
name change (such as the petitioner’s cally upgraded to immediate relative
marriage certificate, legal document status. The self-petitioning child would
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§ 204.2 8 CFR Ch. I (1–1–10 Edition)
not be precluded, however, from filing under section 212(a) of the Act would
a new self-petition for immediate rel- not be precluded from being found to be
ative classification after the abuser’s a person of good moral character, pro-
naturalization, provided the self-peti- vided the person has not been con-
tioning child continues to meet the victed for the commission of the of-
self-petitioning requirements. fense or offenses in a court of law. A
(iv) Eligibility for immigrant classifica- self-petitioner will also be found to
tion. A self-petitioner is required to lack good moral character, unless he or
comply with the provisions of section she establishes extenuating cir-
204(c) of the Act, section 204(g) of the cumstances, if he or she willfully failed
Act, and section 204(a)(2) of the Act. or refused to support dependents; or
(v) Residence. A self-petition will not committed unlawful acts that ad-
be approved if the self-petitioner is not versely reflect upon his or her moral
residing in the United States when the character, or was convicted or impris-
self-petition is filed. The self-petitioner oned for such acts, although the acts
is not required to be living with the do not require an automatic finding of
abuser when the petition is filed, but lack of good moral character. A self-pe-
he or she must have resided with the titioner’s claim of good moral char-
abuser in the United States in the past. acter will be evaluated on a case-by-
(vi) Battery or extreme cruelty. For the case basis, taking into account the pro-
purpose of this chapter, the phrase visions of section 101(f) of the Act and
‘‘was battered by or was the subject of the standards of the average citizen in
extreme cruelty’’ includes, but is not the community. If the results of record
limited to, being the victim of any act checks conducted prior to the issuance
or threatened act of violence, including of an immigrant visa or approval of an
any forceful detention, which results or application for adjustment of status
threatens to result in physical or men- disclose that the self-petitioner is no
tal injury. Psychological or sexual longer a person of good moral char-
abuse or exploitation, including rape, acter or that he or she has not been a
molestation, incest (if the victim is a person of good moral character in the
minor), or forced prostitution shall be past, a pending self-petition will be de-
considered acts of violence. Other abu- nied or the approval of a self-petition
sive actions may also be acts of vio- will be revoked.
lence under certain circumstances, in- (viii) Extreme hardship. The Service
cluding acts that, in and of themselves, will consider all credible evidence of
may not initially appear violent but extreme hardship submitted with a
are a part of an overall pattern of vio- self-petition, including evidence of
lence. The qualifying abuse must have hardship arising from circumstances
been committed by the citizen or law- surrounding the abuse. The extreme
ful permanent resident parent, must hardship claim will be evaluated on a
have been perpetrated against the self- case-by-case basis after a review of the
petitioner, and must have taken place evidence in the case. Self-petitioners
while the self-petitioner was residing are encouraged to cite and document
with the abuser. all applicable factors, since there is no
(vii) Good moral character. A self-peti- guarantee that a particular reason or
tioner will be found to lack good moral reasons will result in a finding that de-
character if he or she is a person de- portation would cause extreme hard-
scribed in section 101(f) of the Act. Ex- ship. Hardship to persons other than
tenuating circumstances may be taken the self-petitioner cannot be consid-
into account if the person has not been ered in determining whether a self-pe-
convicted of an offense or offenses but titioning child’s deportation would
admits to the commission of an act or cause extreme hardship.
acts that could show a lack of good (2) Evidence for a child’s self-petition—
moral character under section 101(f) of (i) General. Self-petitioners are encour-
the Act. A person who was subjected to aged to submit primary evidence when-
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abuse in the form of forced prostitution ever possible. The Service will con-
or who can establish that he or she was sider, however, any credible evidence
forced to engage in other behavior that relevant to the petition. The deter-
could render the person excludable mination of what evidence is credible
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Department of Homeland Security § 204.2
and the weight to be given that evi- tioner is residing in the United States
dence shall be within the sole discre- when the self-petition is filed. Employ-
tion of the Service. ment records, school records, hospital
(ii) Relationship. A self-petition filed or medical records, rental records, in-
by a child must be accompanied by evi- surance policies, affidavits or any
dence of citizenship of the United other type of relevant credible evi-
States citizen or proof of the immigra- dence of residency may be submitted.
tion status of the lawful permanent (iv) Abuse. Evidence of abuse may in-
resident abuser. It must also be accom- clude, but is not limited to, reports and
panied by evidence of the relationship. affidavits from police, judges and other
Primary evidence of the relationship court officials, medical personnel,
between: school officials, clergy, social workers,
(A) The self-petitioning child and an and other social service agency per-
abusive biological mother is the self- sonnel. Persons who have obtained an
petitioner’s birth certificate issued by order of protection against the abuser
civil authorities; or taken other legal steps to end the
(B) A self-petitioning child who was abuse are strongly encouraged to sub-
born in wedlock and an abusive biologi- mit copies of the relating legal docu-
cal father is the child’s birth certifi- ments. Evidence that the abuse victim
cate issued by civil authorities, the sought safe-haven in a battered wom-
marriage certificate of the child’s par- en’s shelter or similar refuge may be
ents, and evidence of legal termination relevant, as may a combination of doc-
of all prior marriages, if any; uments such as a photograph of the
(C) A legitimated self-petitioning visibly injured self-petitioner sup-
child and an abusive biological father ported by affidavits. Other types of
is the child’s birth certificate issued by credible relevant evidence will also be
civil authorities, and evidence of the considered. Documentary proof of non-
child’s legitimation; qualifying abuse may only be used to
(D) A self-petitioning child who was establish a pattern of abuse and vio-
born out of wedlock and an abusive bio- lence and to support a claim that
logical father is the child’s birth cer- qualifying abuse also occurred.
tificate issued by civil authorities (v) Good moral character. Primary evi-
showing the father’s name, and evi- dence of the self-petitioner’s good
dence that a bona fide parent-child re- moral character is the self-petitioner’s
lationship has been established be- affidavit. The affidavit should be ac-
tween the child and the parent; companied by a local police clearance
(E) A self-petitioning stepchild and or a state-issued criminal background
an abusive stepparent is the child’s check from each locality or state in
birth certificate issued by civil au- the United States in which the self-pe-
thorities, the marriage certificate of titioner has resided for six or more
the child’s parent and the stepparent months during the 3-year period imme-
showing marriage before the stepchild diately preceding the filing of the self-
reached 18 years of age, and evidence of petition. Self-petitioners who lived
legal termination of all prior mar- outside the United States during this
riages of either parent, if any; and time should submit a police clearance,
(F) An adopted self-petitioning child criminal background check, or similar
and an abusive adoptive parent is an report issued by the appropriate au-
adoption decree showing that the adop- thority in the foreign country in which
tion took place before the child he or she resided for six or more
reached 16 years of age, and evidence months during the 3-year period imme-
that the child has been residing with diately preceding the filing of the self-
and in the legal custody of the abusive petition. If police clearances, criminal
adoptive parent for at least 2 years. background checks, or similar reports
(iii) Residence. One or more docu- are not available for some or all loca-
ments may be submitted showing that tions, the self-petitioner may include
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the self-petitioner and the abuser have an explanation and submit other evi-
resided together in the United States. dence with his or her affidavit. The
One or more documents may also be Service will consider other credible
submitted showing that the self-peti- evidence of good moral character, such
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§ 204.2 8 CFR Ch. I (1–1–10 Edition)
as affidavits from responsible persons prima facie eligibility does not relieve
who can knowledgeably attest to the the petitioner of the burden of pro-
self-petitioner’s good moral character. viding additional evidence in support
A child who is less than 14 years of age of the petition and does not establish
is presumed to be a person of good eligibility for the underlying petition.
moral character and is not required to (iii) If the Service determines that a
submit affidavits of good moral char- petitioner has made a ‘‘prima facie
acter, police clearances, criminal back- case’’ the Service shall issue a Notice
ground checks, or other evidence of of Prima Facie Case to the petitioner.
good moral character. Such Notice shall be valid until the
(vi) Extreme hardship. Evidence of ex- Service either grants or denies the pe-
treme hardship may include affidavits, tition.
medical reports, protection orders and (iv) For purposes of adjudicating the
other court documents, police reports, petition submitted under paragraph
and other relevant credible evidence. (e)(1) of this section, a prima facie de-
(3) Decision on and disposition of the termination:
petition—(i) Petition approved. If the (A) Shall not be considered evidence
self-petitioning child will apply for ad- in support of the petition;
justment of status under section 245 of (B) Shall not be construed to make a
the Act, the approved petition will be determination of the credibility or pro-
retained by the Service. If the self-peti- bative value of any evidence submitted
tioner will apply for an immigrant visa along with that petition; and,
abroad, the approved self-petition will (C) Shall not relieve the self-peti-
be forwarded to the Department of tioner of his or her burden of com-
State’s National Visa Center. plying with all of the evidentiary re-
(ii) Petition denied. If the self-petition quirements of paragraph (e)(2) of this
is denied, the self-petitioner will be no- section.
tified in writing of the reasons for the (f) Petition for a parent—(1) Eligibility.
denial and of the right to appeal the Only a United States citizen who is
decision. twenty-one years of age or older may
(4) Derivative beneficiaries. A child of a file a petition on behalf of a parent for
self-petitioning child is not eligible for classification under section 201(b) of
derivative classification and must have the Act.
a petition filed on his or her behalf if (2) Evidence to support a petition for a
seeking immigrant classification. parent. In addition to evidence of
(5) Name change. If the self-peti- United States citizenship as listed in
tioner’s current name is different than § 204.1(g) of this part, the petitioner
the name shown on the documents, evi- must also provide evidence of the
dence of the name change (such as the claimed relationship.
petitioner’s marriage certificate, legal (i) Primary evidence if petitioner is a le-
document showing the name change, or gitimate son or daughter. If a petition is
other similar evidence) must accom- submitted on behalf of the mother, the
pany the self-petition. birth certificate of the petitioner show-
(6) Prima facie determination. (i) Upon ing the mother’s name must accom-
receipt of a self-petition under para- pany the petition. If the mother’s name
graph (e)(1) of this section, the Service on the birth certificate is different
shall make a determination as to from her name as reflected in the peti-
whether the petition and the sup- tion, evidence of the name change must
porting documentation establish a also be submitted. If a petition is sub-
‘‘prima facie case’’ for purposes of 8 mitted on behalf of the father, the
U.S.C. 1641, as amended by section 501 birth certificate of the petitioner, a
of Public Law 104–208. marriage certificate of the parents, and
(ii) For purposes of paragraph (e)(6)(i) proof of legal termination of the par-
of this section, a prima facie case is es- ents’ prior marriages, if any, issued by
tablished only if the petitioner submits civil authorities must accompany the
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a completed Form I–360 and other evi- petition. If the father’s name on the
dence supporting all of the elements birth certificate has been legally
required of a self-petitioner in para- changed, evidence of the name change
graph (e)(1) of this section. A finding of must also accompany the petition.
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Department of Homeland Security § 204.2
civil authorities and showing the fa- counted toward fulfillment of the two-
ther’s name. If the father’s name has year legal custody requirement. How-
been legally changed, evidence of the ever, if custody was not granted prior
name change must accompany the peti- to the adoption, the adoption decree
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§ 204.2 8 CFR Ch. I (1–1–10 Edition)
shall be deemed to mark the com- tive classification and must have a sep-
mencement of legal custody. An infor- arate petition approved on his or her
mal custodial or guardianship docu- behalf.
ment, such as a sworn affidavit signed (g) Petition for a brother or sister—(1)
before a notary public, is insufficient Eligibility. Only a United States citizen
for this purpose. who is twenty-one years of age or older
(B) Evidence must also be submitted may file a petition of a brother or sis-
to show that the beneficiary resided ter for classification under section
with the petitioner for at least two 203(a)(4) of the Act.
years. Generally, such documentation (2) Evidence to support a petition for
must establish that the petitioner and brother or sister. In addition to evidence
the beneficiary resided together in a of United States citizenship, the peti-
parental relationship. The evidence tioner must also provide evidence of
must clearly indicate the physical liv- the claimed relationship.
ing arrangements of the adopted child, (i) Primary evidence if the siblings
the adoptive parent(s), and the natural share a common mother or are both legiti-
parent(s) for the period of time during mate children of a common father. If a
which the adoptive parent claims to sibling relationship is claimed through
have met the residence requirement. a common mother, the petition must
(C) Legal custody and residence oc- be supported by a birth certificate of
curring prior to or after the adoption the petitioner and a birth certificate of
will satisfy both requirements. Legal the beneficiary showing a common
custody, like residence, is accounted mother. If the mother’s name on one
for in the aggregate. Therefore, a break birth certificate is different from her
in legal custody or residence will not name as reflected on the other birth
affect the time already fulfilled. To certificate or in the petition, evidence
meet the definition of child contained of the name change must also be sub-
in sections 101(b)(1)(E) and 101(b)(2) of mitted. If a sibling relationship is
the Act, the child must have been claimed through a common father, the
under 16 years of age when the adop- birth certificates of the beneficiary and
tion is finalized. petitioner, a marriage certificate of
(v) Name change. When the petition is the parents’ and proof of legal termi-
filed by a child for the child’s parent, nation of the parents, prior mar-
and the parent’s name is not on the riage(s), if any, issued by civil authori-
child’s birth certificate, evidence of the ties must accompany the petition. If
name change (such as the parent’s mar- the father’s name has been legally
riage certificate, a legal document changed, evidence of the name change
showing the parent’s name change, or must also accompany the petition.
other similar evidence) must accom- (ii) Primary evidence if either or both
pany the petition. If the petitioner’s siblings are legitimated. A child can be
name has been legally changed, evi- legitimated through the marriage of
dence of the name change must also ac- his or her natural parents, by the laws
company the petition. of the country or state of the child’s
(3) Decision on and disposition of peti- residence or domicile, or by the laws of
tion. The approved petition will be for- the country or state of the father’s res-
warded to the Department of State’s idence or domicile. If the legitimation
Processing Center. If the beneficiary is is based on the natural parents’ mar-
in the United States and is eligible for riage, such marriage must have taken
adjustment of status under section 245 place while the child was under the age
of the Act, the approved petition will of eighteen. If the legitimation is based
be retained by the Service. If the peti- on the laws of the country or state of
tion is denied, the petitioner will be the child’s residence or domicile, the
notified of the reasons for the denial law must have taken effect before the
and of the right to appeal in accord- child’s eighteenth birthday. If based on
ance with the provisions of 8 CFR 3.3. the laws of the country or state of the
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Department of Homeland Security § 204.2
child has been legitimated. Primary vits of friends, neighbors, school offi-
evidence of the relationship should cials, or other associates knowledge-
consist of the petitioner’s birth certifi- able about the relationship.
cate, the beneficiary’s birth certificate, (iv) Primary evidence for stepsiblings. If
and the parents’ marriage certificate the petition is submitted on behalf of a
or other evidence of legitimation brother or sister having a common fa-
issued by civil authorities. ther, the relationship of both the peti-
(iii) Primary evidence if either sibling is tioner and the beneficiary to the father
illegitimate. If one or both of the sib- must be established as required in
lings is (are) the illegitimate child(ren) paragraphs (g)(2)(ii) and (g)(2)(iii) of
of a common father, the petitioner this section. If the petitioner and bene-
must show that they are the natural ficiary are stepsiblings through the
children of the father and that a bona marriages of their common father to
fide parent-child relationship was es- different mothers, the marriage certifi-
tablished when the illegitimate cates of the parents and evidence of the
child(ren) was (were) unmarried and termination of any prior marriages of
under twenty-one years of age. Such a the parents must be submitted.
relationship will be deemed to exist or (3) Decision on and disposition of peti-
to have existed where the father dem- tion. The approved petition will be for-
onstrates or has demonstrated an ac- warded to the Department of State’s
tive concern for the child’s support, in- Processing Center. If the beneficiary is
struction, and general welfare. Pri- in the United States and is eligible for
mary evidence is the petitioner’s and adjustment of status under section 245
beneficiary’s birth certificates, issued of the Act, the approved petition will
by civil authorities and showing the fa- be retained by the Service. If the peti-
ther’s name, and evidence that the sib- tion is denied, the petitioner will be
lings have or had a bona fide parent/ notified of the reasons for the denial
child relationship with the natural fa-
and of the right to appeal in accord-
ther. If the father’s name has been le-
ance with the provisions of 8 CFR 3.3.
gally changed, evidence of the name
(4) Derivative beneficiaries. A spouse or
change must accompany the petition.
Evidence of a parent/child relationship a child accompanying or following to
should establish more than merely a join a principal alien beneficiary under
biological relationship. Emotional and/ this section may be accorded the same
or financial ties or a genuine concern preference and priority date as the
and interest by the father for the principal alien without the necessity of
child’s support, instruction, and gen- a separate petition.
eral welfare must be shown. There (5) Name change. If the name of the
should be evidence that the father and petitioner, the beneficiary, or both has
child actually lived together or that been legally changed, evidence showing
the father held the child out as being the name change (such as a marriage
his own, that he provided for some or certificate, a legal document showing
all of the child’s needs, or that in gen- the name change, or other similar evi-
eral the father’s behavior evidenced a dence) must accompany the petition.
genuine concern for the child. The (h) Validity of approved petitions—(1)
most persuasive evidence for estab- General. Unless terminated pursuant to
lishing a bona fide parent/child rela- section 203(g) of the Act or revoked
tionship is documentary evidence pursuant to part 205 of this chapter,
which was contemporaneous with the the approval of a petition to classify an
events in question. Such evidence may alien as a preference immigrant under
include, but is not limited to: money paragraphs (a)(1), (a)(2), (a)(3), or (a)(4)
order receipts or canceled checks show- of section 203 of the Act, or as an im-
ing the father’s financial support of the mediate relative under section 201(b) of
beneficiary; the father’s income tax re- the Act, shall remain valid for the du-
turns; the father’s medical or insur- ration of the relationship to the peti-
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ance records which include the bene- tioner and of the petitioner’s status as
ficiary as a dependent; school records established in the petition.
for the beneficiary; correspondence be- (2) Subsequent petition by same peti-
tween the parties; or notarized affida- tioner for same beneficiary. When a visa
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§ 204.2 8 CFR Ch. I (1–1–10 Edition)
petition has been approved, and subse- approved for preference status under
quently a new petition by the same pe- section 203(a)(3) of the Act as of the
titioner is approved for the same pref- date the beneficiary marries. The bene-
erence classification on behalf of the ficiary’s priority date is the same as
same beneficiary, the latter approval the date the petition for classification
shall be regarded as a reaffirmation or under section 203(a)(1) of the Act was
reinstatement of the validity of the properly filed.
original petition, except when the (ii) A currently valid petition pre-
original petition has been terminated viously approved to classify a child of a
pursuant to section 203(g) of the Act or United States citizen as an immediate
revoked pursuant to part 205 of this relative under section 201(b) of the Act
chapter, or when an immigrant visa shall be regarded as having been ap-
has been issued to the beneficiary as a proved for preference status under sec-
result of the petition approval. A self- tion 203(a)(3) of the Act as of the date
petition filed under section the beneficiary marries. The bene-
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), ficiary’s priority date is the same as
204(a)(1)(B)(ii), 204(a)(1)(B)(iii) of the the date the petition for 201(b) classi-
Act based on the relationship to an fication was properly filed.
abusive citizen or lawful permanent (iii) A currently valid petition
resident of the United States will not classifying the married son or married
be regarded as a reaffirmation or rein- daughter of a United States citizen for
statement of a petition previously filed preference status under section
by the abuser. A self-petitioner who 203(a)(3) of the Act shall, upon legal
has been the beneficiary of a visa peti- termination of the beneficiary’s mar-
tion filed by the abuser to accord the riage, be regarded as having been ap-
self-petitioner immigrant classifica- proved under section 203(a)(1) of the
tion as his or her spouse or child, how- Act if the beneficiary is over twenty-
ever, will be allowed to transfer the one years of age. The beneficiary’s pri-
visa petition’s priority date to the self- ority date is the same as the date the
petition. The visa petition’s priority petition for classification under sec-
date may be assigned to the self-peti- tion 203(a)(3) of the Act was properly
tion without regard to the current va- filed. If the beneficiary is under twen-
lidity of the visa petition. The burden ty-one years of age, the petition shall
of proof to establish the existence of be regarded as having been approved
and the filing date of the visa petition for classification as an immediate rel-
lies with the self-petitioner, although ative under section 201(b) of the Act as
the Service will attempt to verify a of the date the petition for classifica-
claimed filing through a search of the tion under section 203(a)(3) of the Act
Service’s computerized records or other was properly filed.
records deemed appropriate by the ad- (iv) A currently valid visa petition
judicating officer. A new self-petition previously approved to classify the
filed under section 204(a)(1)(A)(iii), beneficiary as an immediate relative as
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or the spouse of a United States citizen
204(a)(1)(B)(iii) of the Act will not be must be regarded, upon the death of
regarded as a reaffirmation or rein- the petitioner, as having been approved
statement of the original self-petition as a Form I–360, Petition for
unless the prior and the subsequent Amerasian, Widow(er) or Special Immi-
self-petitions are based on the relation- grant for classification under para-
ship to the same abusive citizen or law- graph (b) of this section, if, on the date
ful permanent resident of the United of the petitioner’s death, the bene-
States. ficiary satisfies the requirements of
(i) Automatic conversion of preference paragraph (b)(1) of this section. If the
classification—(1) By change in bene- petitioner dies before the petition is
ficiary’s marital status. (i) A currently approved, but, on the date of the peti-
valid petition previously approved to tioner’s death, the beneficiary satisfies
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Department of Homeland Security § 204.3
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§ 204.3 8 CFR Ch. I (1–1–10 Edition)
abandonment unless the third party tions and that, as a result, the child
(such as a governmental agency, a has become a ward of a competent au-
court of competent jurisdiction, an thority in accordance with the laws of
adoption agency, or an orphanage) is the foreign-sending country.
authorized under the child welfare laws Disappearance of both parents means
of the foreign-sending country to act in that both parents have unaccountably
such a capacity. A child who is placed or inexplicably passed out of the child’s
temporarily in an orphanage shall not life, their whereabouts are unknown,
be considered to be abandoned if the there is no reasonable hope of their re-
parents express an intention to re- appearance, and there has been a rea-
trieve the child, are contributing or at- sonable effort to locate them as deter-
tempting to contribute to the support mined by a competent authority in ac-
of the child, or otherwise exhibit ongo- cordance with the laws of the foreign-
ing parental interest in the child. A sending country.
child who has been given uncondition- Foreign-sending country means the
ally to an orphanage shall be consid- country of the orphan’s citizenship, or
ered to be abandoned. if he or she is not permanently residing
Adult member of the prospective adop- in the country of citizenship, the coun-
tive parents’ household means an indi- try of the orphan’s habitual residence.
vidual, other than a prospective adop- This excludes a country to which the
tive parent, over the age of 18 whose orphan travels temporarily, or to
principal or only residence is the home which he or she travels either as a prel-
of the prospective adoptive parents.
ude to, or in conjunction with, his or
This definition excludes any child of
her adoption and/or immigration to the
the prospective adoptive parents,
United States.
whose principal or only residence is the
home of the prospective adoptive par- Home study preparer means any party
ents, who reaches his or her eighteenth licensed or otherwise authorized under
birthday after the prospective adoptive the law of the State of the orphan’s
parents have filed the advanced proc- proposed residence to conduct the re-
essing application (or the advanced search and preparation for a home
processing application concurrently study, including the required personal
with the orphan petition) unless the di- interview(s). This term includes a pub-
rector has an articulable and sub- lic agency with authority under that
stantive reason for requiring an eval- State’s law in adoption matters, public
uation by a home study preparer and/or or private adoption agencies licensed
fingerprint check. or otherwise authorized by the laws of
Advanced processing application means that State to place children for adop-
Form I–600A (Application for Advanced tion, and organizations or individuals
Processing of Orphan Petition) com- licensed or otherwise authorized to
pleted in accordance with the form’s conduct the research and preparation
instructions and submitted with the re- for a home study, including the re-
quired supporting documentation and quired personal interview(s), under the
the fee as required in 8 CFR 103.7(b)(1). laws of the State of the orphan’s pro-
The application must be signed in ac- posed residence. In the case of an or-
cordance with the form’s instructions phan whose adoption has been finalized
by the married petitioner and spouse, abroad and whose adoptive parents re-
or by the unmarried petitioner. side abroad, the home study preparer
Application is synonymous with ad- includes any party licensed or other-
vanced processing application. wise authorized to conduct home stud-
Competent authority means a court or ies under the law of any State of the
governmental agency of a foreign-send- United States, or any party licensed or
ing country having jurisdiction and au- otherwise authorized by the foreign
thority to make decisions in matters of country’s adoption authorities to con-
child welfare, including adoption. duct home studies under the laws of
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Department of Homeland Security § 204.3
basic needs, consistent with the local Separation from both parents means
standards of the foreign sending country. the involuntary severance of the child
Loss from both parents means the in- from his or her parents by action of a
voluntary severance or detachment of competent authority for good cause
the child from the parents in a perma- and in accordance with the laws of the
nent manner such as that caused by a foreign-sending country. The parents
natural disaster, civil unrest, or other must have been properly notified and
calamitous event beyond the control of granted the opportunity to contest
the parents, as verified by a competent such action. The termination of all pa-
authority in accordance with the laws rental rights and obligations must be
of the foreign sending country. permanent and unconditional.
Orphan petition means Form I–600 Sole parent means the mother when it
(Petition to Classify Orphan as an Im- is established that the child is illegit-
mediate Relative). The petition must imate and has not acquired a parent
be completed in accordance with the within the meaning of section 101(b)(2)
form’s instructions and submitted with of the Act. An illegitimate child shall
the required supporting documentation be considered to have a sole parent if
and, if there is not an advanced proc- his or her father has severed all paren-
essing application approved within the tal ties, rights, duties, and obligations
previous 18 months or pending, the fee to the child, or if his or her father has,
as required in 8 CFR 103.7(b)(1). The pe- in writing, irrevocably released the
tition must be signed in accordance child for emigration and adoption. This
with the form’s instructions by the definition is not applicable to children
married petitioner and spouse, or the born in countries which make no dis-
unmarried petitioner. tinction between a child born in or out
of wedlock, since all such children are
Overseas site means the Department
considered to be legitimate. In all
of State immigrant visa-issuing post
cases, a sole parent must be incapable
having jurisdiction over the orphan’s
of providing proper care as that term is
residence, or in foreign countries in
defined in this section.
which the Services has an office or of-
Surviving parent means the child’s liv-
fices, the Service office having jurisdic- ing parent when the child’s other par-
tion over the orphan’s residence. ent is dead, and the child has not ac-
Petition is synonymous with orphan quired another parent within the
petition. meaning of section 101(b)(2) of the Act.
Petitioner means a married United In all cases, a surviving parent must be
States citizen of any age, or an unmar- incapable of providing proper care as
ried United States citizen who is at that term is defined in this section.
least 24 years old at the time he or she (c) Supporting documentation for an
files the advanced processing applica- advanced processing application. The
tion and at least 25 years old at the prospective adoptive parents may file
time he or she files the orphan peti- an advanced processing application be-
tion. In the case of a married couple, fore an orphan is identified in order to
both of whom are United States citi- secure the necessary clearance to file
zens, either party may be the peti- the orphan petition. Any document not
tioner. in the English language must be ac-
Prospective adoptive parents means a companied by a certified English trans-
married United States citizen of any lation.
age and his or her spouse of any age, or (1) Required supporting documentation
an unmarried United States citizen that must accompany the advanced proc-
who is at least 24 years old at the time essing application. The following sup-
he or she files the advanced processing porting documentation must accom-
application and at least 25 years old at pany an advanced processing applica-
the time he or she files the orphan pe- tion at the time of filing:
tition. The spouse of the United States (i) Evidence of the petitioner’s
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§ 204.3 8 CFR Ch. I (1–1–10 Edition)
the spouse’s United States citizenship (d) Supporting documentation for a pe-
or lawful immigration status; tition for an identified orphan. Any docu-
(ii) A copy of the petitioner’s mar- ment not in the English language must
riage certificate to his or her spouse, if be accompanied by a certified English
the petitioner is currently married; translation. If an orphan has been iden-
(iii) Evidence of legal termination of tified for adoption and the advanced
all previous marriages for the peti- processing application is pending, the
tioner and/or spouse, if previously mar- prospective adoptive parents may file
ried; and the orphan petition at the Service of-
(iv) Evidence of compliance with fice where the application is pending.
preadoption requirements, if any, of The prospective adoptive parents who
the State of the orphan’s proposed resi- have an approved advanced processing
dence in cases where it is known that application must file an orphan peti-
there will be no adoption abroad, or tion and all supporting documents
that both members of the married pro- within eighteen months of the date of
spective adoptive couple or the unmar- the approval of the advanced proc-
ried prospective adoptive parent will essing application. If the prospective
not personally see the child prior to, or adoptive parents fail to file the orphan
during, the adoption abroad, and/or petition within the eighteen-month pe-
that the adoption abroad will not be riod, the advanced processing applica-
full and final. Any preadoption require- tion shall be deemed abandoned pursu-
ments which cannot be met at the time ant to paragraph (h)(7) of this section.
the advanced processing application is If the prospective adoptive parents file
filed because of operation of State law the orphan petition after the eighteen-
must be noted and explained when the month period, the petition shall be de-
application is filed. Preadoption re- nied pursuant to paragraph (h)(13) of
quirements must be met at the time this section. Prospective adoptive par-
the petition is filed, except for those ents who do not have an advanced proc-
which cannot be met until the orphan essing application approved or pending
arrives in the United States. may file the application and petition
(2) Home study. The home study must concurrently on one Form I–600 if they
comply with the requirements con- have identified an orphan for adoption.
tained in paragraph (e) of this section. An orphan petition must be accom-
If the home study is not submitted panied by full documentation as fol-
when the advanced processing applica- lows:
tion is filed, it must be submitted with-
(1) Filing an orphan petition after the
in one year of the filing date of the ad-
advanced processing application has been
vanced processing application, or the
approved. The following supporting doc-
application will be denied pursuant to
umentation must accompany an or-
paragraph (h)(5) of this section.
phan petition filed after approval of
(3) After receipt of a properly filed
the advanced processing application:
advanced processing application, the
(i) Evidence of approval of the ad-
Service will fingerprint each member
of the married prospective adoptive vanced processing application;
couple or the unmarried prospective (ii) The orphan’s birth certificate, or
adoptive parent, as prescribed in if such a certificate is not available, an
§ 103.2(e) of this chapter. The Service explanation together with other proof
will also fingerprint each additional of identity and age;
adult member of the prospective adop- (iii) Evidence that the child is an or-
tive parents’ household, as prescribed phan as appropriate to the case:
in § 103.2(e) of this chapter. The Service (A) Evidence that the orphan has
may waive the requirement that each been abandoned or deserted by, sepa-
additional adult member of the pro- rated or lost from both parents, or that
spective adoptive parents’ household be both parents have disappeared as those
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Department of Homeland Security § 204.3
(C) If the orphan has only a sole or to section 101(b)(1)(F) of the Act, be-
surviving parent, as defined in para- cause the unmarried petitioner, or
graph (b) of this section, evidence of married petitioner and spouse, did not
this fact and evidence that the sole or personally see the orphan prior to or
surviving parent is incapable of pro- during the adoption proceeding abroad,
viding for the orphan’s care and has ir- and/or the adoption abroad was not full
revocably released the orphan for emi- and final.
gration and adoption; and (2) Filing an orphan petition while the
(iv) Evidence of adoption abroad or advanced processing application is pend-
that the prospective adoptive parents ing. An orphan petition filed while an
have, or a person or entity working on advanced processing application is
their behalf has, custody of the orphan pending must be filed at the Service of-
for emigration and adoption in accord- fice where the application is pending.
ance with the laws of the foreign-send- The following supporting documenta-
ing country: tion must accompany an orphan peti-
(A) A legible, certified copy of the tion filed while the advanced proc-
adoption decree, if the orphan has been essing application is pending:
the subject of a full and final adoption (i) A photocopy of the fee receipt re-
abroad, and evidence that the unmar- lating to the advanced processing ap-
ried petitioner, or married petitioner plication, or if not available, other evi-
and spouse, saw the orphan prior to or dence that the advanced processing ap-
during the adoption proceeding abroad; plication has been filed, such as a
or statement including the date when the
(B) If the orphan is to be adopted in application was filed;
the United States because there was no (ii) The home study, if not already
adoption abroad, or the unmarried pe- submitted; and
titioner, or married petitioner and (iii) The supporting documentation
spouse, did not personally see the or- for an orphan petition required in para-
phan prior to or during the adoption graph (d)(1) of this section, except for
proceeding abroad, and/or the adoption paragraph (d)(1)(i) of this section.
abroad was not full and final: (3) Filing an orphan petition concur-
(1) Evidence that the prospective rently with the advanced processing ap-
adoptive parents have, or a person or plication. A petition filed concurrently
entity working on their behalf has, se- with the advanced processing applica-
cured custody of the orphan in accord- tion must be submitted on Form I–600,
ance with the laws of the foreign-send- completed and signed in accordance
ing country; with the form’s instructions. (Under
(2) An irrevocable release of the or- this concurrent procedure, Form I–600
phan for emigration and adoption from serves as both the Forms I–600A and I–
the person, organization, or competent 600, and the prospective adoptive par-
authority which had the immediately ents should not file a separate Form I–
previous legal custody or control over 600A). The following supporting docu-
the orphan if the adoption was not full mentation must accompany a petition
and final under the laws of the foreign- filed concurrently with the application
sending country; under this provision:
(3) Evidence of compliance with all (i) The supporting documentation for
preadoption requirements, if any, of an advanced processing application re-
the State of the orphan’s proposed resi- quired in paragraph (c) of this section;
dence. (Any such requirements that and
cannot be complied with prior to the (ii) The supporting documentation
orphan’s arrival in the United States for an orphan petition required in para-
because of State law must be noted and graph (d)(1) of this section, except for
explained); and paragraph (d)(1)(i) of this section.
(4) Evidence that the State of the or- (e) Home study requirements. For im-
phan’s proposed residence allows re- migration purposes, a home study is a
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adoption or provides for judicial rec- process for screening and preparing
ognition of the adoption abroad if there prospective adoptive parents who are
was an adoption abroad which does not interested in adopting an orphan from
meet statutory requirements pursuant another country. The home study
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§ 204.3 8 CFR Ch. I (1–1–10 Edition)
should be tailored to the particular sit- must include a discussion of the fol-
uation of the prospective adoptive par- lowing areas:
ents: for example, a family which pre- (i) Assessment of the physical, mental,
viously has adopted children will re- and emotional capabilities of the prospec-
quire different preparation than a fam- tive adoptive parents to properly parent
ily that has no adopted children. If the orphan. The home study preparer
there are any additional adult mem- must make an initial assessment of
bers of the prospective adoptive par- how the physical, mental, and emo-
ents’ household, the home study must tional health of the prospective adop-
address this fact. The home study pre- tive parents would affect their ability
parer must interview any additional to properly care for the prospective or-
adult member of the prospective adop- phan. If the home study preparer deter-
tive parents’ household and assess him mines that there are areas beyond his
or her in light of the requirements of or her expertise which need to be ad-
paragraphs (e)(1), (e)(2)(i), (iii), (iv), and dressed, he or she shall refer the pro-
(v) of this section. A home study must spective adoptive parents to an appro-
be conducted by a home study pre- priate licensed professional, such as a
parer, as defined in paragraph (b) of physician, psychiatrist, clinical psy-
this section. The home study, or the
chologist, or clinical social worker for
most recent update to the home study,
an evaluation. Some problems may not
must not be more than six months old
necessarily disqualify applicants. For
at the time the home study is sub-
example, certain physical limitations
mitted to the Service. Only one copy of
may indicate which categories of chil-
the home study must be submitted to
dren may be most appropriately placed
the Service. Ordinarily, a home study
with certain prospective adoptive par-
(or a home study and update as dis-
cussed above) will not have to be up- ents. Certain mental and emotional
dated after it has been submitted to health problems may be successfully
the Service unless there is a significant treated. The home study must include
change in the household of the prospec- the home study preparer’s assessment
tive adoptive parents such as a change of any such potential problem areas, a
in residence, marital status, criminal copy of any outside evaluation(s), and
history, financial resources, and/or the the home study preparer’s rec-
addition of one or more children or ommended restrictions, if any, on the
other dependents to the family prior to characteristics of the child to be placed
the orphan’s immigration into the in the home. Additionally, the home
United States. In addition to meeting study preparer must apply the require-
any State, professional, or agency re- ments of this paragraph to each adult
quirements, a home study must include member of the prospective adoptive
the following: parents’ household.
(1) Personal interview(s) and home (ii) Assessment of the finances of the
visit(s). The home study preparer must prospective adoptive parents. The finan-
conduct at least one interview in per- cial assessment must include a descrip-
son, and at least one home visit, with tion of the income, financial resources,
the prospective adoptive couple or the debts, and expenses of the prospective
unmarried prospective adoptive parent. adoptive parents. A statement con-
Each additional adult member of the cerning the evidence that was consid-
prospective adoptive parents’ house- ered to verify the source and amount of
hold must also be interviewed in person income and financial resources must be
at least once. The home study report included. Any income designated for
must state the number of such inter- the support of one or more children in
views and visits, and must specify any the care and custody of the prospective
other contacts with the prospective adoptive parents, such as funds for fos-
adoptive parents and any adult mem- ter care, or any income designated for
ber of the prospective adoptive parents’ the support of another member of the
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Department of Homeland Security § 204.3
a detailed financial statement or sup- (2) Inquiring about abuse and violence.
porting financial documents. However, The home study preparer must ask
should the need arise, the Service re- each prospective adoptive parent
serves the right to ask for such de- whether he or she has a history of sub-
tailed documentation. stance abuse, sexual or child abuse, or
(iii) History of abuse and/or violence— domestic violence, even if it did not re-
(A) Screening for abuse and violence—1) sult in an arrest or conviction. The
Checking available child abuse registries. home study preparer must include each
The home study preparer must ensure prospective adoptive parent’s response
that a check of each prospective adop- to the questions regarding abuse and
tive parent and each adult member of violence. Additionally, the home study
the prospective adoptive parents’ preparer must apply the requirements
household has been made with avail- of this paragraph to each adult member
able child abuse registries and must in- of the prospective adoptive parents’
clude in the home study the results of household.
the checks including, if applicable, a (B) Information concerning history of
report that no record was found to abuse and/or violence. If the petitioner
exist. Depending on the access allowed and/or spouse, if married, disclose(s)
by the state of proposed residence of any history of abuse and/or violence as
the orphan, the home study preparer set forth in paragraph (e)(2)(iii)(A) of
must take one of the following courses this section, or if, in the absence of
of action: such disclosure, the home study pre-
(i) If the home study preparer is al- parer becomes aware of any of the fore-
lowed access to information from the going, the home study report must con-
child abuse registries, he or she shall tain an evaluation of the suitability of
make the appropriate checks for each the home for adoptive placement of an
of the prospective adoptive parents and orphan in light of this history. This
for each adult member of the prospec- evaluation must include information
tive adoptive parents’ household; concerning all arrests or convictions or
(ii) If the State requires the home history of substance abuse, sexual or
study preparer to secure permission child abuse, and/or domestic violence
from each of the prospective adoptive and the date of each occurrence. A cer-
parents and for each adult member of tified copy of the documentation show-
the prospective adoptive parents’ ing the final disposition of each inci-
household before gaining access to in- dent, which resulted in arrest, indict-
formation in such registries, the home ment, conviction, and/or any other ju-
study preparer must secure such per- dicial or administrative action, must
mission from those individuals, and accompany the home study. Addition-
make the appropriate checks; ally, the prospective adoptive parent
(iii) If the State will only release in- must submit a signed statement giving
formation directly to each of the pro- details including mitigating cir-
spective adoptive parents and directly cumstances, if any, about each inci-
to the adult member of the prospective dent. The home study preparer must
adoptive parents’ household, those in- apply the requirements of this para-
dividuals must secure such information graph to each adult member of the pro-
and provide it to the home study pre- spective adoptive parents’ household.
parer. The home study preparer must (C) Evidence of rehabilitation. If a pro-
include the results of these checks in spective adoptive parent has a history
the home study; of substance abuse, sexual or child
(iv) If the State will not release infor- abuse, and/or domestic violence, the
mation to either the home study pre- home study preparer may, neverthe-
parer or the prospective adoptive par- less, make a favorable finding if the
ents and the adult members of the pro- prospective adoptive parent has dem-
spective adoptive parents’ household, onstrated appropriate rehabilitation.
this must be noted in the home study; In such a case, a discussion of such re-
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§ 204.3 8 CFR Ch. I (1–1–10 Edition)
home study. Evidence of rehabilitation study, and must include each prospec-
may include an evaluation of the seri- tive adoptive parent’s response to this
ousness of the arrest(s), conviction(s), question in the home study report. If a
or history of abuse, the number of such prospective adoptive parent previously
incidents, the length of time since the has been rejected or found to be unsuit-
last incident, and any type of coun- able, the reasons for such a finding
seling or rehabilitation programs must be set forth as well as the rea-
which have been successfully com- son(s) why he or she is not being favor-
pleted. Evidence of rehabilitation may ably considered as a prospective adop-
also be provided by an appropriate li- tive parent. A copy of each previous re-
censed professional, such as a psychia- jection and/or unfavorable home study
trist, clinical psychologist, or clinical must be attached to the favorable
social worker. The home study report home study. Additionally, the home
must include all facts and cir- study preparer must apply the require-
cumstances which the home study pre- ments of this paragraph to each adult
parer has considered, as well as the member of the prospective adoptive
preparer’s reasons for a favorable deci- parents’ household.
sion regarding the prospective adoptive (v) Criminal history. The prospective
parent. Additionally, if any adult mem- adoptive parents and the adult mem-
ber of the prospective adoptive parents’ bers of the prospective adoptive par-
household has a history of substance ents’ household are expected to dis-
abuse, sexual or child abuse, and/or do- close to the home study preparer and
mestic violence, the home study pre- the Service any history of arrest and/or
parer must apply the requirements of conviction early in the advanced proc-
this paragraph to that adult member of essing procedure. Failure to do so may
the prospective adoptive parents’ result in denial pursuant to paragraph
household. (h)(4) of this section or in delays. Early
(D) Failure to disclose or cooperate. disclosure provides the prospective
Failure to disclose an arrest, convic- adoptive parents with the best oppor-
tion, or history of substance abuse, tunity to gather and present evidence,
sexual or child abuse, and/or domestic and it gives the home study preparer
violence by the prospective adoptive and the Service the opportunity to
parents or an adult member of the pro- properly evaluate the criminal record
spective adoptive parents’ household to in light of such evidence. When such in-
the home study preparer and to the formation is not presented early in the
Service, may result in the denial of the process, it comes to light when the fin-
advanced processing application or, if gerprint checks are received by the
applicable, the application and orphan Service. By that time, the prospective
petition, pursuant to paragraph (h)(4) adoptive parents are usually well into
of this section. Failure by the prospec- preadoption proceedings of identifying
tive adoptive parents or an adult mem- a child and may even have firm travel
ber of the prospective adoptive parents’ plans. At times, the travel plans have
household to cooperate in having avail- to be rescheduled while the issues
able child abuse registries in accord- raised by the criminal record are ad-
ance with paragraphs (e)(2)(iii)(A)(1) dressed. It is in the best interests of all
and (e)(2)(iii)(A)(1)(i) through parties to have any criminal records
(e)(2)(iii)(A)(1)(iii) of this section will disclosed and resolved early in the
result in the denial of the advanced process.
processing application or, if applicable, (3) Living accommodations. The home
the application and orphan petition, study must include a detailed descrip-
pursuant to paragraph (h)(4) of this tion of the living accommodations
section. where the prospective adoptive parents
(iv) Previous rejection for adoption or currently reside. If the prospective
prior unfavorable home study. The home adoptive parents are planning to move,
study preparer must ask each prospec- the home study must include a descrip-
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Department of Homeland Security § 204.3
residing abroad at the time of the the home study preparer must certify
home study, the home study must in- that he or she is licensed or otherwise
clude a description of the living accom- authorized to conduct home studies
modations where the child will reside under the law of any State of the
in the United States with the prospec- United States, or authorized by the
tive adoptive parents, if known. Each adoption authorities of the foreign
description must include an assessment country to conduct home studies under
of the suitability of accommodations the laws of the foreign country. In
for a child and a determination wheth- every case, this statement must cite
er such space meets applicable State the State or country under whose au-
requirements, if any. thority the home study preparer is li-
(4) Handicapped or special needs or- censed or authorized, the specific law
phan. A home study conducted in con- or regulation authorizing the preparer
junction with the proposed adoption of to conduct home studies, the license
a special needs or handicapped orphan number, if any, and the expiration
must contain a discussion of the pro- date, if any, of this authorization or li-
spective adoptive parents’ preparation, cense.
willingness, and ability to provide (8) Review of home study. If the pro-
proper care for such an orphan. spective adoptive parents reside in a
(5) Summary of the counseling given State which requires the State to re-
and plans for post-placement counseling. view the home study, such a review
The home study must include a sum- must occur and be documented before
mary of the counseling given to pre- the home study is submitted to the
pare the prospective adoptive parents Service. If the prospective adoptive
for an international adoption and any parents reside abroad, an appropriate
plans for post-placement counseling. public or private adoption agency li-
Such preadoption counseling must in- censed, or otherwise authorized, by any
clude a discussion of the processing, ex- State of the United States to place
penses, difficulties, and delays associ- children for adoption, must review and
ated with international adoptions. favorably recommend the home study
(6) Specific approval of the prospective before it is submitted to the Service.
adoptive parents for adoption. If the (9) Home study updates and amend-
home study preparer’s findings are fa- ments—(i) Updates. If the home study is
vorable, the home study must contain more than six months old at the time
his or her specific approval of the pro- it would be submitted to the Service,
spective adoptive parents for adoption the prospective adoptive parents must
and a discussion of the reasons for such ensure that it is updated by a home
approval. The home study must include study preparer before it is submitted to
the number of orphans which the pro- the Service. Each update must include
spective adoptive parents may adopt. screening in accordance with para-
The home study must state whether graphs (e)(2)(iii) (A) and (B) of this sec-
there are any specific restrictions to tion.
the adoption such as nationality, age, (ii) Amendments. If there have been
or gender of the orphan. If the home any significant changes, such as a
study preparer has approved the pro- change in the residence of the prospec-
spective parents for a handicapped or tive adoptive parents, marital status,
special needs adoption, this fact must criminal history, financial resources,
be clearly stated. and/or the addition of one or more chil-
(7) Home study preparer’s certification dren or other dependents to the family,
and statement of authority to conduct the prospective adoptive parents must
home studies. The home study must in- ensure that the home study is amended
clude a statement in which the home by a home study preparer to reflect
study preparer certifies that he or she any such changes. If the orphan’s pro-
is licensed or otherwise authorized by posed State of residence has changed,
the State of the orphan’s proposed resi- the home study amendment must con-
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§ 204.3 8 CFR Ch. I (1–1–10 Edition)
complied with in the case of an orphan (3) Special circumstances. If both mem-
coming to the United States to be bers of the prospective adoptive couple
adopted. or the unmarried prospective adoptive
(10) ‘‘Grandfather’’ provision for home parent intend to travel abroad to see
study. A home study properly com- the child prior to or during the adop-
pleted in conformance with the regula- tion, the Act permits the application
tions in force prior to September 30, and/or petition, if otherwise approv-
1994, shall be considered acceptable if able, to be approved without
submitted to the Service within 90 days preadoption requirements having been
of September 30, 1994. Any such home met. However, if plans change and both
study accepted under this ‘‘grand- members of the prospective adoptive
father’’ provision must include screen- couple or the unmarried prospective
ing in accordance with paragraphs adoptive parent fail to see the child
(e)(2)(iii) (A) and (B) of this section. prior to or during the adoption, then
Additionally, any such home study preadoption requirements must be met
submitted under this ‘‘grandfather’’ before the immigrant visa can be
provision which is more than six issued, except for those preadoption re-
months old at the time of its submis- quirements that cannot be met until
sion must be amended or updated pur- the child is physically in the United
suant to the requirements of paragraph States because of operation of State
(e)(9) of this section. law.
(4) Evidence of compliance. In every
(f) State preadoption requirements—(1)
case where compliance with
General. Many States have preadoption
preadoption requirements is required,
requirements which, under the Act,
the evidence of compliance must be in
must be complied with in every case in
accordance with applicable State law,
which a child is coming to such a State regulation, and procedure.
as an orphan to be adopted in the (g) Where to file. Form I–600, Petition
United States. to Classify Orphan as an Immediate
(2) Child coming to be adopted in the Relative, and Form I–600A, Application
United States. An orphan is coming to for Advanced Processing of Orphan Pe-
be adopted in the United States if he or tition, must be filed in accordance with
she will not be or has not been adopted the instructions on the form.
abroad, or if the unmarried petitioner (h) Adjudication and decision—(1)
or both the married petitioner and ‘‘Grandfather’’ provision for advanced
spouse did not or will not personally processing application and/or orphan peti-
see the orphan prior to or during the tion. All applications and petitions
adoption proceeding abroad, and/or if filed under prior regulations which are
the adoption abroad will not be, or was filed before and are still pending on
not, full and final. If the prospective September 30, 1994, shall be processed
adoptive parents reside in a State with and adjudicated under the prior regula-
preadoption requirements and they tions.
plan to have the child come to the (2) Director’s responsibility to make an
United States for adoption, they must independent decision in an advanced
submit evidence of compliance with processing application. No advanced
the State’s preadoption requirements processing application shall be ap-
to the Service. Any preadoption re- proved unless the director is satisfied
quirements which by operation of that proper care will be provided for
State law cannot be met before filing the orphan. If the director has reason
the advanced processing application to believe that a favorable home study,
must be noted. Such requirements or update, or both are based on an in-
must be met prior to filing the peti- adequate or erroneous evaluation of all
tion, except for those which cannot be the facts, he or she shall attempt to re-
met by operation of State law until the solve the issue with the home study
orphan is physically in the United preparer, the agency making the rec-
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Department of Homeland Security § 204.3
to cooperate in checking child abuse reg- checks in accordance with current pol-
istries. Failure to disclose an arrest, icy. Such abandonment shall be with-
conviction, or history of substance out prejudice to a new filing at any
abuse, sexual or child abuse, and/or do- time with fee.
95
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§ 204.3 8 CFR Ch. I (1–1–10 Edition)
(8) Orphan petition approved by a state- nied. This action shall be without prej-
side Service office. If the orphan petition udice to a new filing at any time with
is approved by a stateside Service of- fee.
fice, the prospective adoptive parents (14) Revocation. The approval of an
shall be advised in writing, telegraphic advanced processing application or an
notification shall be sent to the immi- orphan petition shall be automatically
grant visa-issuing post pursuant to revoked in accordance with § 205.1 of
paragraph (j)(3) of this section, and the this chapter, if an applicable reason ex-
petition and supporting documents ists. The approval of an advanced proc-
shall be forwarded to the Department essing application or an orphan peti-
of State. tion shall be revoked if the director be-
(9) Orphan petition approved by an comes aware of information that would
overseas Service office. If the orphan pe- have resulted in denial had it been
tition is approved by an overseas Serv- known at the time of adjudication.
ice office located in the country of the Such a revocation or any other revoca-
orphan’s residence, the prospective tion on notice shall be made in accord-
adoptive parents shall be advised in ance with § 205.2 of this chapter.
writing, and the petition and sup- (i) Child-buying as a ground for denial.
porting documents shall be forwarded An orphan petition must be denied
to the immigrant visa-issuing post hav- under this section if the prospective
ing jurisdiction for immigrant visa adoptive parents or adoptive parent(s),
processing. or a person or entity working on their
(10) Orphan petition approved at an im- behalf, have given or will given money
migrant visa-issuing post. If the orphan or other consideration either directly
petition is approved at an immigrant or indirectly to the child’s parent(s),
visa-issuing post, the post shall ini- agent(s), other individual(s), or entity
tiate immigrant visa processing. as payment for the child or as an in-
(11) Orphan petition found to be ‘‘not ducement to release the child. Nothing
readily approvable’’ by a consular officer. in this paragraph shall be regarded as
If the consular officer adjudicating the precluding reasonable payment for nec-
orphan petition finds that it is ‘‘not essary activities such as administra-
readily approvable,’’ he or she shall no- tive, court, legal, translation, and/or
tify the prospective adoptive parents in medical services related to the adop-
his or her consular district and forward tion proceedings.
the petition, the supporting docu- (j) Telegraphic notifications—(1) Tele-
ments, the findings of the I–604 inves- graphic notification of approval of ad-
tigation conducted pursuant to para- vanced processing application. Unless
graph (k)(1) of this section, and any conditions preclude normal telegraphic
other relating documentation to the transmissions, whenever an advanced
overseas Service office having jurisdic- processing application is approved in
tion pursuant to § 100.4(b) of this chap- the United States, the director shall
ter. send telegraphic notification of the ap-
(12) Orphan petition denied: petitioner proval to the overseas site if a prospec-
fails to establish that the child is an or- tive adoptive parent advises the direc-
phan. If the director finds that the pe- tor that the petitioner intends to trav-
titioner has failed to establish that the el abroad and file the orphan petition
child is an orphan who is eligible for abroad.
the benefits sought, the applicable pro- (2) Requesting a change in visa-issuing
visions of 8 CFR part 103 regarding a posts. If a prospective adoptive parent
letter of intent to deny and notifica- is in the United States, he or she may
tion of appeal rights shall govern. request the director to transfer notifi-
(13) Orphan petition denied: petitioner cation of the approved advanced proc-
files orphan petition more than eighteen essing application to another visa-
months after the approval of the ad- issuing post. Such a request shall be
vanced processing application. If the pe- made on Form I–824 (Application for
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Department of Homeland Security § 204.3
designated posts. The following shall priate Service office for action. De-
be inserted after the last numbered pending on the circumstances sur-
standard entry. ‘‘To: [insert name of rounding the case, the I–604 investiga-
previously designated visa-issuing post tion shall include, but shall not nec-
or overseas Service office]. Pursuant to essarily be limited to, document
the petitioner’s request, the Visas 37 checks, telephonic checks, interview(s)
cable previously sent to your post/of- with the natural parent(s), and/or a
fice in this matter is hereby invali- field investigation.
dated. The approval is being trans- (2) Authority of consular officers. An
ferred to the other post/office addressed American consular officer is authorized
in this telegram. Please forward the to approve an orphan petition if the
approved advanced processing applica- Service has made a favorable deter-
tion to that destination.’’ Prior to mination on the related advanced proc-
sending such a telegram, the director essing application, and the petitioner,
must ensure that the change in posts who has traveled abroad to a country
does not alter any conditions of the ap- with no Service office in order to lo-
proval. cate or adopt an orphan, has properly
(3) Telegraphic notification of approval filed the petition, and the petition is
of an orphan petition. Unless conditions approvable. A consular officer, how-
preclude normal telegraphic trans- ever, shall refer any petition which is
missions, whenever a petition is ap- ‘‘not clearly approvable’’ for a decision
proved by a stateside Service office, by the Service office having jurisdic-
the director shall send telegraphic no- tion pursuant to § 100.4(b) of this chap-
tification of the approval to the immi- ter. The consular officer’s adjudication
grant visa-issuing post. includes all aspects of eligibility for
(k) Other considerations—(1) I–604 in- classification as an orphan under sec-
vestigations. An I–604 investigation tion 101(b)(1)(F) of the Act other than
must be completed in every orphan the issue of the ability of the prospec-
case. The investigation must be com- tive adoptive parents to furnish proper
pleted by a consular officer except care to the orphan. However, if the
when the petition is properly filed at a consular officer has a well-founded and
Service office overseas, in which case it substantive reason to believe that the
must be completed by a Service officer. advanced processing approval was ob-
An I–604 investigation shall be com- tained on the basis of fraud or mis-
pleted before a petition is adjudicated representation, or has knowledge of a
abroad. When a petition is adjudicated change in material fact subsequent to
by a stateside Service office, the I–604 the approval of the advanced proc-
investigation is normally completed essing application, he or she shall con-
after the case has been forwarded to sult with the Service office having ju-
visa-issuing post abroad. However, in a risdiction pursuant to § 100.4(b) of this
case where the director of a stateside chapter.
Service office adjudicating the petition (3) Child in the United States. A child
has articulable concerns that can only who is in parole status and who has not
be resolved through the I–604 investiga- been adopted in the United States is el-
tion, he or she shall request the inves- igible for the benefits of an orphan pe-
tigation prior to adjudication. In any tition when all the requirements of sec-
case in which there are significant dif- tions 101(b)(1)(F) and 204 (d) and (e) of
ferences between the facts presented in the Act have been met. A child in the
the approved advanced processing ap- United States either illegally or as a
plication and/or orphan petition and nonimmigrant, however, is ineligible
the facts uncovered by the I–604 inves- for the benefits of an orphan petition.
tigation, the overseas site may consult (4) Liaison. Each director shall de-
directly with the appropriate Service velop and maintain liaison with State
office. In any instance where an I–604 Government adoption authorities hav-
investigation reveals negative informa- ing jurisdiction within his or her juris-
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§ 204.4 8 CFR Ch. I (1–1–10 Edition)
adoptions. Such parties include, but mit all required documents within one
are not necessarily limited to, adoption year of the date of the request or the
agencies, organizations representing petition will be considered to have
adoption agencies, organizations rep- been abandoned. To reactivate an aban-
resenting adoptive parents, and adop- doned petition, the petitioner must
tion attorneys. submit a new petition, Form I–360,
[59 FR 38881, Aug. 1, 1994; 59 FR 42878, Aug. 19,
without the previously submitted docu-
1994, as amended at 63 FR 12986, Mar. 17, 1998; mentation, to the Service office having
68 FR 46926, Aug. 7, 2003; 72 FR 56853, Oct. 4, jurisdiction over the prior petition.
2007; 74 FR 26936, June 5, 2009] (2) Final processing. Upon submission
of the documentary evidence required
§ 204.4 Amerasian child of a United in paragraph (f)(1) of this section, the
States citizen. director shall complete the adjudica-
(a) Eligibility. An alien is eligible for tion of the petition.
benefits under Public Law 97–359 as the (e) One-stage processing. If all docu-
Amerasian child or son or daughter of mentary evidence required in para-
a United States citizen if there is rea- graph (f)(1) of this section is available
son to believe that the alien was born when the petition is initially filed, the
in Korea, Vietnam, Laos, Kampuchea, petitioner may submit it at that time.
or Thailand after December 31, 1950, In that case, the director shall consider
and before October 22, 1982, and was fa- all evidence without using the two-
thered by a United States citizen. Such stage processing procedure set out in
an alien is eligible for classification paragraph (d) of this section.
under sections 201(b), 203(a)(1), or (f) Evidence to support a petition for an
203(a)(3) of the Act as the Amerasian Amerasian child of a United States cit-
child or son or daughter of a United izen—(1) Two-stage processing of peti-
States citizen, pursuant to section tion—(i) Preliminary processing. (A) A
204(f) of the Act. petition filed by or on behalf of an
(b) Filing petition. Any alien claiming Amerasian under this section must be
to be eligible for benefits as an accompanied by evidence that the ben-
Amerasian under Public Law 97–359, or eficiary was born in Korea, Vietnam,
any person on the alien’s behalf, may Laos, Kampuchea, or Thailand after
file a petition, Form I–360, Petition for December 31, 1950, and before October
Amerasian, Widow, or Special Immi- 22, 1982. If the beneficiary was born in
grant. Any person filing the petition Vietnam, the beneficiary’s ID card
must either be eighteen years of age or must be submitted, if available. If it is
older or be an emancipated minor. In not available, the petitioner must sub-
addition, a corporation incorporated in mit an affidavit explaining why the
the United States may file the petition beneficiary’s ID card is not available.
on the alien’s behalf. Evidence that the beneficiary was fa-
(c) Jurisdiction. The petition must be thered by a United States citizen must
filed in accordance with the instruc- also be presented. The putative father
tions on the form. must have been a United States citizen
(d) Two-stage processing—(1) Prelimi- at the time of the beneficiary’s birth or
nary processing. Upon initial submis- at the time of the father’s death, if his
sion of a petition with the documen- death occurred prior to the bene-
tary evidence required in paragraph ficiary’s birth. It is not required that
(f)(1) of this section, the director shall the name of the father be given. Such
adjudicate the petition to determine evidence may include, but need not be
whether there is reason to believe the limited to:
beneficiary was fathered by a United (1) The beneficiary’s birth and bap-
States citizen. If the preliminary proc- tismal certificates or other religious
essing is completed in a satisfactory documents;
manner, the director shall advise the (2) Local civil records;
petitioner to submit the documentary (3) Affidavits from knowledgeable
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Department of Homeland Security § 204.4
99
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§ 204.4 8 CFR Ch. I (1–1–10 Edition)
information regarding any family sepa- tion is denied, the petitioner may ap-
ration or dislocation abroad that re- peal the decision under part 103 of this
sults from the placement, must also be chapter.
submitted. In addition, the agency (2) Denial upon completion of prelimi-
must submit to the Director, Outreach nary processing. The director may deny
Program, Immigration and Naturaliza- the petition upon completion of the
tion Service, Washington, DC, within preliminary processing under para-
90 days of each occurrence, reports of graph (d) of this section for:
any breakdowns in sponsorship that (i) Failure to establish that there is
occur, and reports of the steps taken to reason to believe the alien was fathered
remedy these breakdowns. The peti- by a United States citizen; or
tioner must also submit a statement (ii) Failure to meet the sponsorship
from the agency: requirements if the fingerprints of the
(1) Indicating that, before signing the sponsor, required in paragraph (f)(1) of
sponsorship agreement, the sponsor has this section, were submitted during the
been provided a report covering pre- preliminary processing and the com-
placement screening and evaluation, pleted background check of the sponsor
including a health evaluation, of the discloses adverse information resulting
beneficiary; in a finding that the sponsor is not of
(2) Describing the agency’s orienta- good moral character.
tion of both the sponsor and the bene- (3) Denial upon completion of final
ficiary on the legal and cultural as- processing. The director may deny the
pects of the placement; petition upon completion of final proc-
(3) Describing the initial facilitation essing if it is determined that the spon-
of the placement through introduction, sorship requirements, or one or more of
translation, and similar services; and the other applicable requirements,
(4) Describing the contingency plans have not been met.
to place the beneficiary in another (4) Denial upon completion of one-stage
suitable home if the initial placement processing. The director may deny the
fails. The new sponsor must execute petition upon completion of all proc-
and submit a Form I–361 to the Service essing if any of the applicable require-
office having jurisdiction over the ments in a case being processed under
beneficiary’s residence in the United the one-stage processing described in
States. The original sponsor nonethe- paragraph (e) of this section are not
less retains financial responsibility for met.
the beneficiary under the terms of the (h) Classification of Public Law 97–359
guarantee of financial support and in- Amerasian. If the petition is approved
tent to petition for legal custody which the beneficiary is classified as follows:
that sponsor executed, unless that re- (1) An unmarried beneficiary under
sponsibility is assumed by a new spon- the age of twenty-one is classified as
sor. In the event that the new sponsor the child of a United States citizen
does not comply with the terms of the under section 201(b) of the Act;
new guarantee of financial support and (2) An unmarried beneficiary twenty-
intent to petition for legal custody and one years of age or older is classified as
if, for any reason, that guarantee is not the unmarried son or daughter of a
enforced, the original sponsor again be- United States citizen under section
comes financially responsible for the 203(a)(1) of the Act; and
beneficiary. (3) A married beneficiary is classified
(2) One-stage processing of petition. If as the married son or daughter of a
the petitioner chooses to have the peti- United States citizen under section
tion processed under the one-stage 203(a)(3) of the Act.
processing procedure described in para- (i) Enforcement of affidavit of financial
graph (e) of this section, the petitioner support and intent to petition for legal
must submit all evidence required by custody. A guarantee of financial sup-
paragraph (f)(1) of this section. port and intent to petition for legal
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(g) Decision—(1) General. The director custody on Form I–361 may be enforced
shall notify the petitioner of the deci- against the alien’s sponsor in a civil
sion and, if the petition is denied, of suit brought by the Attorney General
the reasons for the denial. If the peti- in the United States District Court for
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Department of Homeland Security § 204.5
the district in which the sponsor re- petition for classification under sec-
sides, except that the sponsor’s estate tion 203(b)(1)(A) or 203(b)(4) of the Act
is not liable under the guarantee if the (as it relates to special immigrants
sponsor dies or is adjudicated as bank- under section 101(a)(27)(C) of the Act).
rupt under title 11, United States Code. (d) Priority date. The priority date of
After admission to the United States, any petition filed for classification
if the beneficiary of a petition requires under section 203(b) of the Act which is
enforcement of the guarantee of finan- accompanied by an individual labor
cial support and intent to petition for certification from the Department of
legal custody executed by the bene- Labor shall be the date the request for
ficiary’s sponsor, the beneficiary may certification was accepted for proc-
file Form I–363 with USCIS. If the bene- essing by any office within the employ-
ficiary is under eighteen years of age, ment service system of the Department
any agency or individual (other than of Labor. The priority date of any peti-
the sponsor) having legal custody of tion filed for classification under sec-
the beneficiary, or a legal guardian tion 203(b) of the Act which is accom-
acting on the alien’s behalf, may file panied by an application for Schedule
Form I–363. A designation or with evidence that
[57 FR 41066, Sept. 9, 1992, as amended at 63 the alien’s occupation is a shortage oc-
FR 12986, Mar. 17, 1998; 74 FR 26936, June 5, cupation within the Department of La-
2009] bor’s Labor Market Information Pilot
Program shall be the date the com-
§ 204.5 Petitions for employment-based pleted, signed petition (including all
immigrants. initial evidence and the correct fee) is
(a) General. A petition to classify an properly filed with the Service. The
alien under section 203(b)(1), 203(b)(2), priority date of a petition filed for
or 203(b)(3) of the Act must be filed on classification as a special immigrant
Form I–140, Petition for Immigrant under section 203(b)(4) of the Act shall
Worker. A petition to classify an alien be the date the completed, signed peti-
under section 203(b)(4) (as it relates to tion (including all initial evidence and
special immigrants under section the correct fee) is properly filed with
101(a)(27)(C)) must be filed on kForm I– the Service. The priority date of an
360, Petition for Amerasian, Widow, or alien who filed for classification as a
Special Immigrant. A separate Form I– special immigrant prior to October 1,
140 or I–360 must be filed for each bene- 1991, and who is the beneficiary of an
ficiary, accompanied by the applicable approved I–360 petition after October 1,
fee. A petition is considered properly 1991, shall be the date the alien applied
filed if it is: for an immigrant visa or adjustment of
(1) Accepted for processing under the status. In the case of a special immi-
provisions of part 103; grant alien who applied for adjustment
(2) Accompanied by any required in- before October 1, 1991, Form I–360 may
dividual labor certification, applica- be accepted and adjudicated at a Serv-
tion for Schedule A designation, or evi- ice District Office or sub-office.
dence that the alien’s occupation quali- (e) Retention of section 203(b) (1), (2), or
fies as a shortage occupation within (3) priority date. A petition approved on
the Department of Labor’s Labor Mar- behalf of an alien under sections 203(b)
ket Information Pilot Program; and (1), (2), or (3) of the Act accords the
(3) Accompanied by any other re- alien the priority date of the approved
quired supporting documentation. petition for any subsequently filed pe-
(b) Jurisdiction. Form I–140 or I–360 tition for any classification under sec-
must be filed in accordance with the tions 203(b) (1), (2), or (3) of the Act for
instructions on the form. which the alien may qualify. In the
(c) Filing petition. Any United States event that the alien is the beneficiary
employer desiring and intending to em- of multiple petitions under sections
ploy an alien may file a petition for 203(b) (1), (2), or (3) of the Act, the alien
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classification of the alien under section shall be entitled to the earliest priority
203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or date. A petition revoked under sections
203(b)(3) of the Act. An alien, or any 204(e) or 205 of the Act will not confer
person in the alien’s behalf, may file a a priority date, nor will any priority
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Department of Homeland Security § 204.5
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§ 204.5 8 CFR Ch. I (1–1–10 Edition)
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Department of Homeland Security § 204.5
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§ 204.5 8 CFR Ch. I (1–1–10 Edition)
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Department of Homeland Security § 204.5
for which qualified workers are not requirements for the Labor Market In-
available in the United States. formation Pilot Program occupation
Professional means a qualified alien designation. The minimum require-
who holds at least a United States bac- ments for this classification are at
calaureate degree or a foreign equiva- least two years of training or experi-
lent degree and who is a member of the ence.
professions. (C) Professionals. If the petition is for
Skilled worker means an alien who is a professional, the petition must be ac-
capable, at the time of petitioning for companied by evidence that the alien
this classification, of performing holds a United States baccalaureate de-
skilled labor (requiring at least two gree or a foreign equivalent degree and
years training or experience), not of a by evidence that the alien is a member
temporary or seasonal nature, for of the professions. Evidence of a bacca-
which qualified workers are not avail- laureate degree shall be in the form of
able in the United States. Relevant an official college or university record
post-secondary education may be con- showing the date the baccalaureate de-
sidered as training for the purposes of gree was awarded and the area of con-
this provision. centration of study. To show that the
(3) Initial evidence—(i) Labor certifi- alien is a member of the professions,
cation or evidence that alien qualifies for the petitioner must submit evidence
Labor Market Information Pilot Program. showing that the minimum of a bacca-
Every petition under this classification laureate degree is required for entry
must be accompanied by an individual into the occupation.
labor certification from the Depart- (D) Other workers. If the petition is
ment of Labor, by an application for for an unskilled (other) worker, it must
Schedule A designation, or by docu- be accompanied by evidence that the
mentation to establish that the alien alien meets any educational, training
qualifies for one of the shortage occu- and experience, and other requirements
pations in the Department of Labor’s of the labor certification.
Labor Market Information Pilot Pro- (4) Differentiating between skilled and
gram. To apply for Schedule A designa- other workers. The determination of
tion or to establish that the alien’s oc- whether a worker is a skilled or other
cupation is a shortage occupation with worker will be based on the require-
the Labor Market Pilot Program, a ments of training and/or experience
fully executed uncertified Form ETA– placed on the job by the prospective
750 in duplicate must accompany the employer, as certified by the Depart-
petition. The job offer portion of an in- ment of Labor. In the case of a Sched-
dividual labor certification, Schedule A ule A occupation or a shortage occupa-
application, or Pilot Program applica- tion within the Labor Market Pilot
tion for a professional must dem- Program, the petitioner will be re-
onstrate that the job requires the min- quired to establish to the director that
imum of a baccalaureate degree. the job is a skilled job, i.e., one which
(ii) Other documentation—(A) General. requires at least two years of training
Any requirements of training or experi- and/or experience.
ence for skilled workers, professionals, (m) Religious workers. This paragraph
or other workers must be supported by governs classification of an alien as a
letters from trainers or employers giv- special immigrant religious worker as
ing the name, address, and title of the defined in section 101(a)(27)(C) of the
trainer or employer, and a description Act and under section 203(b)(4) of the
of the training received or the experi- Act. To be eligible for classification as
ence of the alien. a special immigrant religious worker,
(B) Skilled workers. If the petition is the alien (either abroad or in the
for a skilled worker, the petition must United States) must:
be accompanied by evidence that the (1) For at least the two years imme-
alien meets the educational, training diately preceding the filing of the peti-
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or experience, and any other require- tion have been a member of a religious
ments of the individual labor certifi- denomination that has a bona fide non-
cation, meets the requirements for profit religious organization in the
Schedule A designation, or meets the United States.
107
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§ 204.5 8 CFR Ch. I (1–1–10 Edition)
(2) Be coming to the United States to Bona fide organization which is affili-
work in a full time (average of at least ated with the religious denomination
35 hours per week) compensated posi- means an organization which is closely
tion in one of the following occupa- associated with the religious denomi-
tions as they are defined in paragraph nation and which is exempt from tax-
(m)(5) of this section: ation as described in section 501(c)(3) of
(i) Solely in the vocation of a min- the Internal Revenue Code of 1986, sub-
ister of that religious denomination; sequent amendment or equivalent sec-
(ii) A religious vocation either in a tions of prior enactments of the Inter-
professional or nonprofessional capac- nal Revenue Code and possessing a cur-
ity; or rently valid determination letter from
(iii) A religious occupation either in the IRS confirming such exemption.
a professional or nonprofessional ca- Denominational membership means
pacity. membership during at least the two-
(3) Be coming to work for a bona fide year period immediately preceding the
non-profit religious organization in the filing date of the petition, in the same
United States, or a bona fide organiza- type of religious denomination as the
tion which is affiliated with the reli- United States religious organization
gious denomination in the United where the alien will work.
States. Minister means an individual who:
(4) Have been working in one of the (A) Is fully authorized by a religious
positions described in paragraph (m)(2) denomination, and fully trained ac-
of this section, either abroad or in law- cording to the denomination’s stand-
ful immigration status in the United ards, to conduct such religious worship
States, and after the age of 14 years and perform other duties usually per-
continuously for at least the two-year formed by authorized members of the
period immediately preceding the fil- clergy of that denomination;
ing of the petition. The prior religious (B) Is not a lay preacher or a person
work need not correspond precisely to not authorized to perform duties usu-
the type of work to be performed. A ally performed by clergy;
break in the continuity of the work (C) Performs activities with a ration-
during the preceding two years will not al relationship to the religious calling
affect eligibility so long as: of the minister; and
(i) The alien was still employed as a (D) Works solely as a minister in the
religious worker; United States, which may include ad-
(ii) The break did not exceed two ministrative duties incidental to the
years; and duties of a minister.
(iii) The nature of the break was for Petition means USCIS Form I–360, Pe-
further religious training or for sab- tition for Amerasian, Widow(er), or
batical that did not involve unauthor- Special Immigrant, a successor form,
ized work in the United States. How- or other form as may be prescribed by
ever, the alien must have been a mem- USCIS, along with a supplement con-
ber of the petitioner’s denomination taining attestations required by this
throughout the two years of qualifying section, the fee specified in 8 CFR
employment. 103.7(b)(1), and supporting evidence
(5) Definitions. As used in paragraph filed as provided by this part.
(m) of this section, the term: Religious denomination means a reli-
Bona fide non-profit religious organiza- gious group or community of believers
tion in the United States means a reli- that is governed or administered under
gious organization exempt from tax- a common type of ecclesiastical gov-
ation as described in section 501(c)(3) of ernment and includes one or more of
the Internal Revenue Code of 1986, sub- the following:
sequent amendment or equivalent sec- (A) A recognized common creed or
tions of prior enactments of the Inter- statement of faith shared among the
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Department of Homeland Security § 204.5
(D) Common religious services and tions of prior enactments of the Inter-
ceremonies; nal Revenue Code.
(E) Common established places of re- (6) Filing requirements. A petition
ligious worship or religious congrega- must be filed as provided in the peti-
tions; or tion form instructions either by the
(F) Comparable indicia of a bona fide alien or by his or her prospective
religious denomination. United States employer. After the date
Religious occupation means an occupa- stated in section 101(a)(27)(C) of the
tion that meets all of the following re- Act, immigration or adjustment of sta-
quirements: tus on the basis of this section is lim-
(A) The duties must primarily relate ited solely to ministers.
to a traditional religious function and (7) Attestation. An authorized official
be recognized as a religious occupation of the prospective employer of an alien
within the denomination. seeking religious worker status must
(B) The duties must be primarily re- complete, sign and date an attestation
lated to, and must clearly involve, in- prescribed by USCIS and submit it
culcating or carrying out the religious along with the petition. If the alien is
creed and beliefs of the denomination. a self-petitioner and is also an author-
(C) The duties do not include posi- ized official of the prospective em-
tions that are primarily administrative ployer, the self-petitioner may sign the
or support such as janitors, mainte- attestation. The prospective employer
nance workers, clerical employees, must specifically attest to all of the
fund raisers, persons solely involved in following:
the solicitation of donations, or similar (i) That the prospective employer is a
positions, although limited administra- bona fide non-profit religious organiza-
tive duties that are only incidental to tion or a bona fide organization which
religious functions are permissible. is affiliated with the religious denomi-
(D) Religious study or training for re- nation and is exempt from taxation;
ligious work does not constitute a reli- (ii) The number of members of the
gious occupation, but a religious work- prospective employer’s organization;
er may pursue study or training inci- (iii) The number of employees who
dent to status. work at the same location where the
Religious vocation means a formal beneficiary will be employed and a
lifetime commitment, through vows, summary of the type of responsibilities
investitures, ceremonies, or similar in- of those employees. USCIS may request
dicia, to a religious way of life. The re- a list of all employees, their titles, and
ligious denomination must have a class a brief description of their duties at its
of individuals whose lives are dedicated discretion;
to religious practices and functions, as (iv) The number of aliens holding spe-
distinguished from the secular mem- cial immigrant or nonimmigrant reli-
bers of the religion. Examples of indi- gious worker status currently em-
viduals practicing religious vocations ployed or employed within the past five
include nuns, monks, and religious years by the prospective employer’s or-
brothers and sisters. ganization;
Religious worker means an individual (v) The number of special immigrant
engaged in and, according to the de- religious worker and nonimmigrant re-
nomination’s standards, qualified for a ligious worker petitions and applica-
religious occupation or vocation, tions filed by or on behalf of any aliens
whether or not in a professional capac- for employment by the prospective em-
ity, or as a minister. ployer in the past five years;
Tax-exempt organization means an or- (vi) The title of the position offered
ganization that has received a deter- to the alien, the complete package of
mination letter from the IRS estab- salaried or non-salaried compensation
lishing that it, or a group that it be- being offered, and a detailed descrip-
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longs to, is exempt from taxation in ac- tion of the alien’s proposed daily du-
cordance with sections 501(c)(3) of the ties;
Internal Revenue Code of 1986 or subse- (vii) That the alien will be employed
quent amendments or equivalent sec- at least 35 hours per week;
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§ 204.5 8 CFR Ch. I (1–1–10 Edition)
(viii) The specific location(s) of the tion that specifies the purposes of the
proposed employment; organization;
(ix) That the alien has worked as a (C) Organizational literature, such as
religious worker for the two years im- books, articles, brochures, calendars,
mediately preceding the filing of the flyers and other literature describing
application and is otherwise qualified the religious purpose and nature of the
for the position offered; activities of the organization; and
(x) That the alien has been a member (D) A religious denomination certifi-
of the denomination for at least two cation. The religious organization
years immediately preceding the filing must complete, sign and date a reli-
of the application; gious denomination certification certi-
(xi) That the alien will not be en- fying that the petitioning organization
gaged in secular employment, and any is affiliated with the religious denomi-
salaried or non-salaried compensation nation. The certification is to be sub-
for the work will be paid to the alien mitted by the petitioner along with the
by the attesting employer; and petition.
(9) Evidence relating to the qualifica-
(xii) That the prospective employer
tions of a minister. If the alien is a min-
has the ability and intention to com-
ister, the petitioner must submit the
pensate the alien at a level at which
following:
the alien and accompanying family
(i) A copy of the alien’s certificate of
members will not become public
ordination or similar documents re-
charges, and that funds to pay the
flecting acceptance of the alien’s quali-
alien’s compensation do not include
fications as a minister in the religious
any monies obtained from the alien,
denomination; and
excluding reasonable donations or tith-
(ii) Documents reflecting acceptance
ing to the religious organization.
of the alien’s qualifications as a min-
(8) Evidence relating to the petitioning ister in the religious denomination, as
organization. A petition shall include well as evidence that the alien has
the following initial evidence relating completed any course of prescribed
to the petitioning organization: theological education at an accredited
(i) A currently valid determination theological institution normally re-
letter from the Internal Revenue Serv- quired or recognized by that religious
ice (IRS) establishing that the organi- denomination, including transcripts,
zation is a tax-exempt organization; or curriculum, and documentation that
(ii) For a religious organization that establishes that the theological insti-
is recognized as tax-exempt under a tution is accredited by the denomina-
group tax-exemption, a currently valid tion, or
determination letter from the IRS es- (iii) For denominations that do not
tablishing that the group is tax-ex- require a prescribed theological edu-
empt; or cation, evidence of:
(iii) For a bona fide organization that (A) The denomination’s requirements
is affiliated with the religious denomi- for ordination to minister;
nation, if the organization was granted (B) The duties allowed to be per-
tax-exempt status under section formed by virtue of ordination;
501(c)(3) of the Internal Revenue Code (C) The denomination’s levels of ordi-
of 1986, or subsequent amendment or nation, if any; and
equivalent sections of prior enactments (D) The alien’s completion of the de-
of the Internal Revenue Code, as some- nomination’s requirements for ordina-
thing other than a religious organiza- tion.
tion: (10) Evidence relating to compensation.
(A) A currently valid determination Initial evidence must include verifiable
letter from the IRS establishing that evidence of how the petitioner intends
the organization is a tax-exempt orga- to compensate the alien. Such com-
nization; pensation may include salaried or non-
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§ 204.6 8 CFR Ch. I (1–1–10 Edition)
and the reasons for the time period will Commercial enterprise means any for-
be explained in a written notice to the profit activity formed for the ongoing
petitioner. conduct of lawful business including,
[56 FR 60905, Nov. 29, 1991, as amended at 59
but not limited to, a sole proprietor-
FR 502, Jan. 5, 1994; 59 FR 27229, May 26, 1994; ship, partnership (whether limited or
60 FR 29753, June 6, 1995; 61 FR 33305, June 27, general), holding company, joint ven-
1996; 67 FR 49563, July 31, 2002; 73 FR 72291, ture, corporation, business trust, or
Nov. 26, 2008; 73 FR 78127, Dec. 19, 2008; 74 FR other entity which may be publicly or
26936, June 5, 2009] privately owned. This definition in-
cludes a commercial enterprise con-
§ 204.6 Petitions for employment cre-
ation aliens. sisting of a holding company and its
wholly-owned subsidiaries, provided
(a) General. A petition to classify an that each such subsidiary is engaged in
alien under section 203(b)(5) of the Act a for-profit activity formed for the on-
must be filed on Form I–526, Immigrant going conduct of a lawful business.
Petition by Alien Entrepreneur. The This definition shall not include a non-
petition must be accompanied by the commercial activity such as owning
appropriate fee. Before a petition is and operating a personal residence.
considered properly filed, the petition Employee means an individual who
must be signed by the petitioner, and provides services or labor for the new
the initial supporting documentation commercial enterprise and who re-
required by this section must be at- ceives wages or other remuneration di-
tached. Legible photocopies of sup- rectly from the new commercial enter-
porting documents will ordinarily be prise. In the case of the Immigrant In-
acceptable for initial filing and ap-
vestor Pilot Program, ‘‘employee’’ also
proval. However, at the discretion of
means an individual who provides serv-
the director, original documents may
ices or labor in a job which has been
be required.
created indirectly through investment
(b) [Reserved]
in the new commercial enterprise. This
(c) Eligibility to file. A petition for
definition shall not include inde-
classification as an alien entrepreneur
pendent contractors.
may only be filed by any alien on his or
her own behalf. Full-time employment means employ-
(d) Priority date. The priority date of ment of a qualifying employee by the
a petition for classification as an alien new commercial enterprise in a posi-
entrepreneur is the date the petition is tion that requires a minimum of 35
properly filed with the Service or, if working hours per week. In the case of
filed prior to the effective date of these the Immigrant Investor Pilot Program,
regulations, the date the Form I–526 ‘‘full-time employment’’ also means
was received at the appropriate Service employment of a qualifying employee
Center. in a position that has been created in-
(e) Definitions. As used in this sec- directly through revenues generated
tion: from increased exports resulting from
Capital means cash, equipment, in- the Pilot Program that requires a min-
ventory, other tangible property, cash imum of 35 working hours per week. A
equivalents, and indebtedness secured job-sharing arrangement whereby two
by assets owned by the alien entre- or more qualifying employees share a
preneur, provided that the alien entre- full-time position shall count as full-
preneur is personally and primarily lia- time employment provided the hourly
ble and that the assets of the new com- requirement per week is met. This defi-
mercial enterprise upon which the peti- nition shall not include combinations
tion is based are not used to secure any of part-time positions even if, when
of the indebtedness. All capital shall be combined, such positions meet the
valued at fair market value in United hourly requirement per week.
States dollars. Assets acquired, di- High employment area means a part of
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Department of Homeland Security § 204.6
worth prior to such loss. For purposes as the basis of a petition on Form I–526.
of determining whether or not the No allocation need be made among per-
troubled business has been in existence sons not seeking classification under
for two years, successors in interest to section 203(b)(5) of the Act or among
113
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Department of Homeland Security § 204.6
the form of stock purchase agreements, new commercial enterprise, and for
investment agreements, certified fi- which the petitioner is personally and
nancial reports, payroll records, or any primarily liable.
similar instruments, agreements, or (3) To show that the petitioner has
documents evidencing the investment invested, or is actively in the process
in the commercial enterprise and the of investing, capital obtained through
resulting substantial change in the net lawful means, the petition must be ac-
worth, number of employees. companied, as applicable, by:
(2) To show that the petitioner has (i) Foreign business registration
invested or is actively in the process of records;
investing the required amount of cap-
(ii) Corporate, partnership (or any
ital, the petition must be accompanied
other entity in any form which has
by evidence that the petitioner has
placed the required amount of capital filed in any country or subdivision
at risk for the purpose of generating a thereof any return described in this
return on the capital placed at risk. subpart), and personal tax returns in-
Evidence of mere intent to invest, or of cluding income, franchise, property
prospective investment arrangements (whether real, personal, or intangible),
entailing no present commitment, will or any other tax returns of any kind
not suffice to show that the petitioner filed within five years, with any taxing
is actively in the process of investing. jurisdiction in or outside the United
The alien must show actual commit- States by or on behalf of the peti-
ment of the required amount of capital. tioner;
Such evidence may include, but need (iii) Evidence identifying any other
not be limited to: source(s) of capital; or
(i) Bank statement(s) showing (iv) Certified copies of any judgments
amount(s) deposited in United States or evidence of all pending govern-
business account(s) for the enterprise; mental civil or criminal actions, gov-
(ii) Evidence of assets which have ernmental administrative proceedings,
been purchased for use in the United and any private civil actions (pending
States enterprise, including invoices, or otherwise) involving monetary judg-
sales receipts, and purchase contracts ments against the petitioner from any
containing sufficient information to court in or outside the United States
identify such assets, their purchase within the past fifteen years.
costs, date of purchase, and purchasing (4) Job creation—(i) General. To show
entity; that a new commercial enterprise will
(iii) Evidence of property transferred create not fewer than ten (10) full-time
from abroad for use in the United positions for qualifying employees, the
States enterprise, including United petition must be accompanied by:
States Customs Service commercial
(A) Documentation consisting of pho-
entry documents, bills of lading, and
tocopies of relevant tax records, Form
transit insurance policies containing
I–9, or other similar documents for ten
ownership information and sufficient
(10) qualifying employees, if such em-
information to identify the property
ployees have already been hired fol-
and to indicate the fair market value
of such property; lowing the establishment of the new
(iv) Evidence of monies transferred commercial enterprise; or
or committed to be transferred to the (B) A copy of a comprehensive busi-
new commercial enterprise in exchange ness plan showing that, due to the na-
for shares of stock (voting or non- ture and projected size of the new com-
voting, common or preferred). Such mercial enterprise, the need for not
stock may not include terms requiring fewer than ten (10) qualifying employ-
the new commercial enterprise to re- ees will result, including approximate
deem it at the holder’s request; or dates, within the next two years, and
(v) Evidence of any loan or mortgage when such employees will be hired.
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§ 204.6 8 CFR Ch. I (1–1–10 Edition)
the statutory employment creation re- agement of the new commercial enter-
quirement, the petition must be ac- prise.
companied by evidence that the num- (6) If applicable, to show that the new
ber of existing employees is being or commercial enterprise has created or
will be maintained at no less than the will create employment in a targeted
pre-investment level for a period of at employment area, the petition must be
least two years. Photocopies of tax accompanied by:
records, Forms I–9, or other relevant (i) In the case of a rural area, evi-
documents for the qualifying employ- dence that the new commercial enter-
ees and a comprehensive business plan prise is principally doing business
shall be submitted in support of the pe- within a civil jurisdiction not located
tition. within any standard metropolitan sta-
(iii) Immigrant Investor Pilot Program. tistical area as designated by the Of-
To show that the new commercial en- fice of Management and Budget, or
terprise located within a regional cen- within any city or town having a popu-
ter approved for participation in the lation of 20,000 or more as based on the
Immigrant Investor Pilot Program most recent decennial census of the
meets the statutory employment cre- United States; or
ation requirement, the petition must (ii) In the case of a high unemploy-
be accompanied by evidence that the ment area:
investment will create full-time posi- (A) Evidence that the metropolitan
tions for not fewer than 10 persons ei- statistical area, the specific county
ther directly or indirectly through rev- within a metropolitan statistical area,
enues generated from increased exports or the county in which a city or town
resulting from the Pilot Program. Such with a population of 20,000 or more is
evidence may be demonstrated by rea- located, in which the new commercial
sonable methodologies including those enterprise is principally doing business
set forth in paragraph (m)(3) of this has experienced an average unemploy-
section. ment rate of 150 percent of the national
average rate; or
(5) To show that the petitioner is or
(B) A letter from an authorized body
will be engaged in the management of
of the government of the state in which
the new commercial enterprise, either
the new commercial enterprise is lo-
through the exercise of day-to-day
cated which certifies that the geo-
managerial control or through policy
graphic or political subdivision of the
formulation, as opposed to maintaining
metropolitan statistical area or of the
a purely passive role in regard to the
city or town with a population of 20,000
investment, the petition must be ac-
or more in which the enterprise is prin-
companied by: cipally doing business has been des-
(i) A statement of the position title ignated a high unemployment area.
that the petitioner has or will have in The letter must meet the requirements
the new enterprise and a complete de- of 8 CFR 204.6(i).
scription of the position’s duties; (k) Decision. The petitioner will be
(ii) Evidence that the petitioner is a notified of the decision, and, if the pe-
corporate officer or a member of the tition is denied, of the reasons for the
corporate board of directors; or denial and of the petitioner’s right of
(iii) If the new enterprise is a part- appeal to the Associate Commissioner
nership, either limited or general, evi- for Examinations in accordance with
dence that the petitioner is engaged in the provisions of part 103 of this chap-
either direct management or policy ter. The decision must specify whether
making activities. For purposes of this or not the new commercial enterprise
section, if the petitioner is a limited is principally doing business within a
partner and the limited partnership targeted employment area.
agreement provides the petitioner with (l) Disposition of approved petition.
certain rights, powers, and duties nor- The approved petition will be for-
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Department of Homeland Security § 204.6
will be forwarded to the consulate hav- pact on the regional or national econ-
ing jurisdiction over the place of the omy in general as reflected by such fac-
petitioner’s last residence abroad. If tors as increased household earnings,
the petitioner is eligible for adjust- greater demand for business services,
ment of status to conditional perma- utilities, maintenance and repair, and
nent residence, and if the petition indi- construction both within and without
cates that the petitioner intends to the regional center; and
apply for such adjustment, the ap- (v) Is supported by economically or
proved petition will be retained by the statistically valid forecasting tools, in-
Service for consideration in conjunc- cluding, but not limited to, feasibility
tion with the application for adjust- studies, analyses of foreign and domes-
ment of status. tic markets for the goods or services to
(m) Immigrant Investor Pilot Program— be exported, and/or multiplier tables.
(1) Scope. The Immigrant Investor Pilot (4) Submission of proposals to partici-
Program is established solely pursuant pate in the Immigrant Investor Pilot Pro-
to the provisions of section 610 of the gram. On August 24, 1993, the Service
Departments of Commerce, Justice, will accept proposals from regional
and State, the Judiciary, and Related centers seeking approval to participate
Agencies Appropriation Act, and sub- in the Immigrant Investor Pilot Pro-
ject to all conditions and restrictions gram. Regional centers that have been
stipulated in that section. Except as approved by the Assistant Commis-
provided herein, aliens seeking to ob- sioner for Adjudications will be eligible
tain immigration benefits under this to participate in the Immigrant Inves-
paragraph continue to be subject to all tor Pilot Program.
conditions and restrictions set forth in (5) Decision to participate in the Immi-
section 203(b)(5) of the Act and this sec- grant Investor Pilot Program. The Assist-
tion. ant Commissioner for Adjudications
(2) Number of immigrant visas allocated. shall notify the regional center of his
The annual allocation of the visas or her decision on the request for ap-
available under the Immigrant Inves- proval to participate in the Immigrant
tor Pilot Program is set at 300 for each Investor Pilot Program, and, if the pe-
of the five fiscal years commencing on tition is denied, of the reasons for the
October 1, 1993. denial and of the regional center’s
(3) Requirements for regional centers. right of appeal to the Associate Com-
Each regional center wishing to par- missioner for Examinations. Notifica-
ticipate in the Immigrant Investor tion of denial and appeal rights, and
Pilot Program shall submit a proposal the procedure for appeal shall be the
to the Assistant Commissioner for Ad- same as those contained in 8 CFR 103.3.
judications, which: (6) Termination of participation of re-
(i) Clearly describes how the regional gional centers. To ensure that regional
center focuses on a geographical region centers continue to meet the require-
of the United States, and how it will ments of section 610(a) of the Appro-
promote economic growth through in- priations Act, the Assistant Commis-
creased export sales, improved regional sioner for Adjudications shall issue a
productivity, job creation, and in- notice of intent to terminate the par-
creased domestic capital investment; ticipation of a regional center in the
(ii) Provides in verifiable detail how pilot program upon a determination
jobs will be created indirectly through that the regional center no longer
increased exports; serves the purpose of promoting eco-
(iii) Provides a detailed statement re- nomic growth, including increased ex-
garding the amount and source of cap- port sales, improved regional produc-
ital which has been committed to the tivity, job creation, and increased do-
regional center, as well as a description mestic capital investment. The notice
of the promotional efforts taken and of intent to terminate shall be made
planned by the sponsors of the regional upon notice to the regional center and
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§ 204.7 8 CFR Ch. I (1–1–10 Edition)
in the process of investing within a re- petition for Armed Forces special im-
gional center which has been approved migrant status in his or her own be-
by the Service for participation in the half. The person filing the petition is
Pilot Program. not required to be a citizen or lawful
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Department of Homeland Security § 204.9
of the Act was approved. The spouse or (2) Any documents submitted in sup-
child of an immigrant classified as a port of the petition must meet the evi-
section 103(a)(27)(K) special immigrant dentiary requirements as set forth in 8
is entitled to a derivative status cor- CFR part 103.
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§ 204.10 8 CFR Ch. I (1–1–10 Edition)
alien under section 203(b)(2) of the Act before the limit of 950 visas has been
as a scientist or engineer of the eligible reached, whichever is earliest. To clar-
independent states of the former Soviet ify that the petition is for a Soviet sci-
Union or the Baltic states must be filed entist, the petitioner should clearly
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Department of Homeland Security § 204.11
print the words ‘‘SOVIET SCIENTIST’’ tion prescribed under paragraph (e) of
in Part 2 of Form I–140 and check block this section.
‘‘d’’, indicating the petition is for a (h) Aliens previously granted permanent
member of the professions holding an residence. No alien previously granted
advanced degree or an alien of excep- lawful permanent residence may re-
tional ability. quest or be granted classification or
(2) [Reserved] any benefits under this provision.
(d) Priority date. The priority date of (i) Decision—(1) Approval. If the peti-
any petition filed for this classification tion is approved and the beneficiary is
is the date the completed, signed peti- outside the United States the applicant
tion (including all initial evidence as will be notified of the decision and the
defined in paragraph (e) of this section petition will be forwarded to the Na-
and the correct fee) is properly filed tional Visa Center. If the beneficiary is
with the USCIS. in the United States and seeks to apply
(e) Initial evidence. The petition must for adjustment of status, the petition
be accompanied by: will be retained by USCIS.
(2) Denial. If the petition is denied,
(1) Evidence that the alien is a na-
the petitioner will be advised of the de-
tional of one of the independent states
cision and of the right to appeal in ac-
of the former Soviet Union or one of
cordance with 8 CFR part 103.
the Baltic States as defined in para- (j) Rejection. Petitions filed under
graph (b) of this section. Such evidence this provision on or after September 30,
may include, but is not limited to, 2006 or after the limit of 950 visas has
identifying page(s) from a passport been reached will be rejected and the
issued by the former Soviet Union, or fee refunded.
by one of the independent or Baltic
states; and [70 FR 21131, Apr. 25, 2005, as amended at 74
FR 26937, June 5, 2009]
(2) A letter from the Department of
State, Bureau of Nonproliferation that § 204.11 Special immigrant status for
verifies that the alien possesses exper- certain aliens declared dependent
tise in nuclear, chemical, biological, or on a juvenile court (special immi-
other high-technology field or who has grant juvenile).
prior or current work experience in (a) Definitions.
high-technology defense projects which Eligible for long-term foster care means
are clearly applicable to the design, de- that a determination has been made by
velopment, or production of ballistic the juvenile court that family reunifi-
missiles, nuclear, biological, chemical, cation is no longer a viable option. A
or other high-technology weapons of child who is eligible for long-term fos-
mass destruction and endorses the ap- ter care will normally be expected to
plicant as having exceptional ability in remain in foster care until reaching
one or more of these fields. Such en- the age of majority, unless the child is
dorsement shall establish that the adopted or placed in a guardianship sit-
alien possesses exceptional ability in uation. For the purposes of estab-
the relevant field. lishing and maintaining eligibility for
(f) No offer of employment required. classification as a special immigrant
Neither an offer of employment nor a juvenile, a child who has been adopted
labor certification is required for this or placed in guardianship situation
classification. after having been found dependent
(g) Consultation with other United upon a juvenile court in the United
States Government agencies. USCIS may States will continue to be considered
consult with other United States Gov- to be eligible for long-term foster care.
ernment agencies, such as the Depart- Juvenile court means a court located
ments of Defense and Energy or other in the United States having jurisdic-
relevant agencies with expertise in nu- tion under State law to make judicial
clear, chemical, biological, or other determinations about the custody and
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§ 204.12 8 CFR Ch. I (1–1–10 Edition)
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Department of Homeland Security § 204.12
(i) In a geographical area or areas tract for the required period of clinical
designated by the Secretary of Health medical practice, or an employment
and Human Services (HHS) as a Medi- commitment letter from a VA facility.
cally Underserved Area, a Primary The contract or letter must have been
Medical Health Professional Shortage issued and dated within 6 months prior
Area, or a Mental Health Professional to the date the petition is filed.
Shortage Area, and in a medical spe- (ii) If the physician will establish his
ciality that is within the scope of the or her own practice, the physician’s
Secretary’s designation for the geo- sworn statement committing to the
graphical area or areas; or full-time practice of clinical medicine
(ii) At a health care facility under for the required period, and describing
the jurisdiction of the Secretary of the steps the physician has taken or in-
Veterans Affairs (VA); and tends to actually take to establish the
(3) A Federal agency or the depart- practice.
ment of public health of a State, terri- (2) Evidence that the physician will
tory of the United States, or the Dis- provide full-time clinical medical serv-
trict of Columbia, has previously deter- ice:
mined that the physician’s work in (i) In a geographical area or areas
that area or facility is in the public in- designated by the Secretary of HHS as
terest. having a shortage of health care profes-
(b) Is there a time limit on how long the
sionals and in a medical speciality that
physician has to complete the required
is within the scope of the Secretary’s
medical service? (1) If the physician al-
designation for the geographical area
ready has authorization to accept em-
or areas; or
ployment (other than as a J–1 exchange
alien), the beneficiary physician must (ii) In a facility under the jurisdic-
complete the aggregate 5 years of tion of the Secretary of VA.
qualifying full-time clinical practice (3) A letter (issued and dated within
during the 6-year period beginning on 6 months prior to the date on which the
the date of approval of the Form I–140. petition is filed) from a Federal agency
(2) If the physician must obtain au- or from the department of public
thorization to accept employment be- health (or equivalent) of a State or ter-
fore the physician may lawfully begin ritory of the United States or the Dis-
working, the physician must complete trict of Columbia, attesting that the
the aggregate 5 years of qualifying full- alien physician’s work is or will be in
time clinical practice during the 6-year the public interest.
period beginning on the date of the (i) An attestation from a Federal
Service issues the necessary employ- agency must reflect the agency’s
ment authorization document. knowledge of the alien’s qualifications
(c) Are there special requirements for and the agency’s background in mak-
these physicians? Petitioners requesting ing determinations on matters involv-
the national interest waiver as de- ing medical affairs so as to substan-
scribed in this section on behalf of a tiate the finding that the alien’s work
qualified alien physician, or alien phy- is or will be in the public interest.
sicians self-petitioning for second pref- (ii) An attestation from the public
erence classification, must meet all eli- health department of a State, terri-
gibility requirements found in para- tory, or the District of Columbia must
graphs (k)(1) through (k)(3) of § 204.5. In reflect that the agency has jurisdiction
addition, the petitioner or self-peti- over the place where the alien physi-
tioner must submit the following evi- cian intends to practice clinical medi-
dence with Form I–140 to support the cine. If the alien physician intends to
request for a national interest waiver. practice clinical medicine in more than
Physicians planning to divide the prac- one underserved area, attestations
tice of full-time clinical medicine be- from each intended area of practice
tween more than one underserved area must be included.
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must submit the following evidence for (4) Evidence that the alien physician
each area of intended practice. meets the admissibility requirements
(1)(i) If the physician will be an em- established by section 212(a)(5)(B) of
ployee, a full-time employment con- the Act.
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§ 204.12 8 CFR Ch. I (1–1–10 Edition)
1999, but prior to the effective date of by the evidence required in paragraph
this rule. (c) of this section. The Service must
(4) Petitions filed prior to November 1, deny any motion to reopen or recon-
1998. For petitions filed prior to No- sider a decision denying an immigrant
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Department of Homeland Security § 204.13
visa petition if the decision became served area does not constitute a new
final before November 12, 1999, without 6-year period in which the physician
prejudice to the filing of a new visa pe- must complete the aggregate 5 years of
tition with a national interest waiver service.
request that comports with section (2) If the physician intends to estab-
203(b)(2)(B)(ii) of the Act. lish his or her own practice, the physi-
(e) May physicians file adjustment of cian must submit a new Form I–140
status applications? Upon approval of a (with fee) will all the evidence required
second preference employment-based in paragraph (c) of this section, includ-
immigrant petition, Form I–140, and ing the special requirement of para-
national interest waiver based on a graph (c)(1)(ii) of this section and a
full-time clinical practice in a shortage copy of the approval notice from the
area or areas of the United States, an initial Form I–140. If approved, the new
alien physician may submit Form I– petition will be matched with the pend-
485, Application to Register Permanent ing adjustment of status application.
Residence or Adjust Status, to the ap- The beneficiary will retain the priority
propriate Service Center. The Service date from the initial Form I–140. The
will not approve the alien physician’s Service will calculate the amount of
application for adjustment of status time the physician was between prac-
until the alien physician submits evi- tices so as to adjust the count of the
dence documenting that the alien phy- aggregate time served in an under-
sician has completed the period of re- served area. This calculation will be
quired service. Specific instructions for based on the evidence the physician
alien physicians filing adjustment ap- submits pursuant to the requirements
plications are found in § 245.18 of this of § 245.18(d) of this chapter. An ap-
chapter. proved change of practice to another
(f) May a physician practice clinical underserved area does not constitute a
medicine in a different underserved area? new 6-year period in which the physi-
Physicians in receipt of an approved cian must complete the aggregate 5
Form I–140 with a national interest years of service.
waiver based on full-time clinical prac- (g) Do these provisions have any effect
tice in a designated shortage area and on physicians with foreign residence re-
a pending adjustment of status applica- quirements? Because the requirements
tion may apply to the Service if the of section 203(b)(2)(B)(ii) of the Act are
physician is offered new employment not exactly the same as the require-
to practice full-time in another under- ments of section 212(e) or 214(l) of the
served area of the United States. Act, approval of a national interest
(1) If the physician beneficiary has waiver under section 203(b)(2)(B)(ii) of
found a new employer desiring to peti- the Act and this paragraph does not re-
tion the Service on the physician’s be- lieve the alien physician of any foreign
half, the new petitioner must submit a residence requirement that the alien
new Form I–140 (with fee) with all the physician may have under section
evidence required in paragraph (c) of 212(e) of the Act.
this section, including a copy of the ap-
[65 FR 53893, Sept. 6, 2000; 65 FR 57861, Sept.
proval notice from the initial Form I– 26, 2000]
140. If approved, the new petition will
be matched with the pending adjust- § 204.13 How can the International
ment of status application. The bene- Broadcasting Bureau of the United
ficiary will retain the priority date States Broadcasting Board of Gov-
from the initial Form I–140. The Serv- ernors petition for a fourth pref-
ice will calculate the amount of time erence special immigrant broad-
the physician was between employers caster?
so as to adjust the count of the aggre- (a) Which broadcasters qualify? Under
gate time served in an underserved section 203(b)(4) of the Act, the Inter-
area. This calculation will be based on national Broadcasting Bureau of the
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§ 204.300 8 CFR Ch. I (1–1–10 Edition)
children) to work as a broadcaster for the necessary skills that make him or
the BBG or a grantee of the BBG in the her qualified for the broadcasting-re-
United States. For the purposes of this lated position within the BBG or BBG
section, the terms: grantee.
BBG grantee means Radio Free Asia, (2) [Reserved]
Inc (RFA) or Radio Free Europe/Radio
[66 FR 51821, Oct. 11, 2001, as amended at 74
Liberty, Inc. (RFE/RL); and
FR 26937, June 5, 2009]
Broadcaster means a reporter, writer,
translator, editor, producer or an-
nouncer for news broadcasts; hosts for Subpart B [Reserved]
news broadcasts, news analysis, edi-
torial and other broadcast features; or Subpart C—Intercountry Adoption
a news analysis specialist. The term of a Convention Adoptee
broadcaster does not include individ-
uals performing purely technical or SOURCE: 72 FR 56854, Oct. 4, 2007, unless
support services for the BBG or a BBG otherwise noted.
grantee.
(b) Is there a yearly limit on the number § 204.300 Scope of this subpart.
of visas available for alien broadcasters
(a) Convention adoptees. This subpart
petitioned by the BBG or a BBG grantee?
governs the adjudication of a Form I–
(1) Under the provisions of section
800A or Form I–800 for a Convention
203(b)(4) of the Act, a yearly limit of
adoptee under section 101(b)(1)(G) of
100 fourth preference special immi-
the Act. The provisions of this subpart
grant visas are available to aliens in-
enter into force on the Convention ef-
tending to work as broadcasters in the
fective date, as defined in 8 CFR
United States for the BBG or a BBG
204.301.
grantee. These 100 visas are available
in any fiscal year beginning on or after (b) Orphan cases. On or after the Con-
October 1, 2000. vention effective date, no Form I–600A
(2) The alien broadcaster’s accom- or I–600 may be filed under section
panying spouse and children are not 101(b)(1)(F) of the Act and 8 CFR 204.3
counted towards the 100 special broad- in relation to the adoption of a child
caster visa limit. who is habitually resident in a Conven-
(c) What form should the BBG use to tion country. If a Form I–600A or Form
petition for these special alien broad- I–600 was filed before the Convention
casters? The BBG or a BBG grantee effective date, the case will continue to
shall use Form I–360, Petition for be governed by 8 CFR 204.3, as in effect
Amerasian, Widow(er), or Special Im- before the Convention effective date.
migrant, to petition for an alien broad- (c) Adopted children. This subpart
caster. The petition must be submitted does not apply to the immigrant visa
with the correct fee noted on the form. classification of adopted children, as
(d) Will the BBG need to submit supple- defined in section 101(b)(1)(E) of the
mental evidence with Form I–360 for alien Act. For the procedures that govern
broadcasters? (1) All Form I–360 peti- classification of adopted children as de-
tions submitted by the BBG or a BBG fined in section 101(b)(1)(E) of the Act,
grantee on behalf of an alien for a see 8 CFR 204.2.
broadcaster position with the BBG or
§ 204.301 Definitions.
BBG grantee must be accompanied by a
signed and dated supplemental attesta- The definitions in 22 CFR 96.2 apply
tion that contains the following infor- to this subpart C. In addition, as used
mation about the prospective alien in this subpart C, the term:
broadcaster: Abandonment means:
(i) The job title and a full description (1) That a child’s parent has willfully
of the job to be performed; and forsaken all parental rights, obliga-
(ii) The broadcasting expertise held tions, and claims to the child, as well
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by the alien, including how long the as all custody of the child without in-
alien has been performing duties that tending to transfer, or without trans-
relate to the prospective position or a ferring, these rights to any specific in-
statement as to how the alien possesses dividual(s) or entity.
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Department of Homeland Security § 204.301
(2) The child’s parent must have ac- Central Authority function by delega-
tually surrendered such rights, obliga- tion) or any other governmental agen-
tions, claims, control, and possession. cy, the person must certify the truth of
(3) That a parent’s knowledge that a the facts stated in the declaration. Any
specific person or persons may adopt a other individual who signs a declara-
child does not void an abandonment; tion must sign the declaration under
however, a purported act of abandon- penalty of perjury under United States
ment cannot be conditioned on the law.
child’s adoption by that specific person Adoption means the judicial or ad-
or persons. ministrative act that establishes a per-
(4) That if the parent(s) entrusted the manent legal parent-child relationship
child to a third party for custodial care between a minor and an adult who is
in anticipation of, or preparation for, not already the minor’s legal parent
adoption, the third party (such as a and terminates the legal parent-child
governmental agency, a court of com- relationship between the adoptive child
petent jurisdiction, an adoption agen- and any former parent(s).
cy, or an orphanage) must have been Adult member of the household means:
authorized under the Convention coun- (1) Any individual other than the ap-
try’s child welfare laws to act in such plicant, who has the same principal
a capacity. residence as the applicant and who had
(5) That, if the parent(s) entrusted reached his or her 18th birthday on or
the child to an orphanage, the par- before the date a Form I–800A is filed;
ent(s) did not intend the placement to or
be merely temporary, with the inten- (2) Any person who has not yet
tion of retaining the parent-child rela- reached his or her 18th birthday before
tionship, but that the child is aban- the date a Form I–800A is filed, or who
doned if the parent(s) entrusted the does not actually live at the same resi-
child permanently and unconditionally dence, but whose presence in the resi-
to an orphanage. dence is relevant to the issue of suit-
(6) That, although a written docu- ability to adopt, if the officer adjudi-
ment from the parent(s) is not nec- cating the Form I–800A concludes,
essary to prove abandonment, if any based on the facts of the case, that it is
written document signed by the par- necessary to obtain an evaluation of
ent(s) is presented to prove abandon- how that person’s presence in the home
ment, the document must specify affects the determination whether the
whether the parent(s) who signed the applicant is suitable as the adoptive
document was (were) able to read and parent(s) of a Convention adoptee.
understand the language in which the Applicant means the U.S. citizen (and
document is written. If the parent is his or her spouse, if any) who has filed
not able to read or understand the lan- a Form I–800A under this subpart C.
guage in which the document is writ- The applicant may be an unmarried
ten, then the document is not valid un- U.S. citizen who is at least 24 years old
less the document is accompanied by a when the Form I–800A is filed, or a
declaration, signed by an identified in- married U.S. citizen of any age and his
dividual, establishing that that identi- or her spouse of any age. Although the
fied individual is competent to trans- singular term ‘‘applicant’’ is used in
late the language in the document into this subpart, the term includes both a
a language that the parent understands married U.S. citizen and his or her
and that the individual, on the date spouse.
and at the place specified in the dec- Birth parent means a ‘‘natural par-
laration, did in fact read and explain ent’’ as used in section 101(b)(1)(G) of
the document to the parent in a lan- the Act.
guage that the parent understands. The Central Authority means the entity
declaration must also indicate the lan- designated as such under Article 6(1) of
guage used to provide this explanation. the Convention by any Convention
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If the person who signed the declara- country or, in the case of the United
tion is an officer or employee of the States, the United States Department
Central Authority (but not of an agen- of State. Except as specified in this
cy or entity authorized to perform a Part, ‘‘Central Authority’’ also means,
127
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§ 204.301 8 CFR Ch. I (1–1–10 Edition)
solely for purposes of this Part, an in- half, the custody order must indicate
dividual who or entity that is per- that the child is to be adopted in the
forming a Central Authority function, United States by the petitioner.
having been authorized to do so by the (3) A foreign judicial or administra-
designated Central Authority, in ac- tive act that is called an adoption but
cordance with the Convention and the that does not terminate the legal par-
law of the Central Authority’s country. ent-child relationship between the
Competent authority means a court or former parent(s) and the adopted child
governmental agency of a foreign coun- and does not create the permanent
try that has jurisdiction and authority legal parent-child relationship between
to make decisions in matters of child
the petitioner and the adopted child
welfare, including adoption.
will be deemed a grant of custody of
Convention means the Convention on
Protection of Children and Co-oper- the child for purposes of this part, but
ation in Respect of Intercountry Adop- only if the judicial or administrative
tion, opened for signature at The act expressly authorizes the custodian
Hague on May 29, 1993. to take the child out of the country of
Convention adoptee means a child ha- the child’s habitual residence and to
bitually resident in a Convention coun- bring the child to the United States for
try who is eligible to immigrate to the adoption in the United States by the
United States on the basis of a Conven- petitioner.
tion adoption. Deserted or desertion means that a
Convention adoption, except as speci- child’s parent has willfully forsaken
fied in 8 CFR 204.300(b), means the the child and has refused to carry out
adoption, on or after the Convention parental rights and obligations and
effective date, of an alien child habit- that, as a result, the child has become
ually resident in a Convention country a ward of a competent authority in ac-
by a U.S. citizen habitually resident in cordance with the laws of the Conven-
the United States, when in connection tion country.
with the adoption the child has moved, Disappeared or Disappearance means
or will move, from the Convention that a child’s parent has unaccount-
country to the United States.
ably or inexplicably passed out of the
Convention country means a country
child’s life so that the parent’s where-
that is a party to the Convention and
abouts are unknown, there is no rea-
with which the Convention is in force
for the United States. sonable expectation of the parent’s re-
Convention effective date means the appearance, and there has been a rea-
date on which the Convention enters sonable effort to locate the parent as
into force for the United States as an- determined by a competent authority
nounced by the Secretary of State in accordance with the laws of the Con-
under 22 CFR 96.17. vention country. A stepparent who
Custody for purposes of emigration and under the definition of ‘‘Parent’’ in
adoption exists when: this section is deemed to be a child’s
(1) The competent authority of the legal parent, may be found to have dis-
country of a child’s habitual residence appeared if it is established that the
has, by a judicial or administrative act stepparent either never knew of the
(which may be either the act granting child’s existence, or never knew of
custody of the child or a separate judi- their legal relationship to the child.
cial or administrative act), expressly Home study preparer means a person
authorized the petitioner, or an indi- (whether an individual or an agency)
vidual or entity acting on the peti- authorized under 22 CFR part 96 to con-
tioner’s behalf, to take the child out of duct home studies for Convention adop-
the country of the child’s habitual resi- tion cases, either as a public domestic
dence and to bring the child to the authority, an accredited agency, a tem-
United States for adoption in the
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Department of Homeland Security § 204.301
other authorization that may be re- legal custodian in a language that the
quired to conduct adoption home stud- legal custodian understands. The dec-
ies under the law of the jurisdiction in laration must also indicate the lan-
which the home study is conducted. guage used to provide this explanation.
Incapable of providing proper care If the person who signed the declara-
means that, in light of all the relevant tion is an officer or employee of the
circumstances including but not lim- Central Authority (but not of an agen-
ited to economic or financial concerns, cy or entity authorized to perform a
extreme poverty, medical, mental, or Central Authority function by delega-
emotional difficulties, or long term-in- tion) or any other governmental agen-
carceration, the child’s two living birth cy, the person must certify the truth of
parents are not able to provide for the the facts stated in the declaration. Any
child’s basic needs, consistent with the other individual who signs a declara-
local standards of the Convention tion must sign the declaration under
country. penalty of perjury under United States
Irrevocable consent means a document law.
which indicates the place and date the (2) If more than one individual or en-
document was signed by a child’s legal tity is the child’s legal custodian, the
custodian, and which meets the other consent of each legal custodian may be
requirements specified in this defini- recorded in one document, or in an ad-
tion, in which the legal custodian free- ditional document, but all documents,
ly consents to the termination of the taken together, must show that each
legal custodian’s legal relationship legal custodian has given the necessary
with the child. If the irrevocable con- irrevocable consent.
sent is signed by the child’s birth Legal custodian means the individual
mother or any legal custodian other who, or entity that, has legal custody
than the birth father, the irrevocable of a child, as defined in 22 CFR 96.2.
consent must have been signed after Officer means a USCIS officer with
the child’s birth; the birth father may jurisdiction to adjudicate Form I–800A
sign an irrevocable consent before the or Form I–800 or a Department of State
child’s birth if permitted by the law of officer with jurisdiction, by delegation
the child’s habitual residence. This from USCIS, to grant either provi-
provision does not preclude a birth fa- sional or final approval of a Form I–800.
ther from giving consent to the termi- Parent means any person who is re-
nation of his legal relationship to the lated to a child as described in section
child before the child’s birth, if the 101(b)(1)(A), (B), (C), (D), (E), (F), or (G)
birth father is permitted to do so under and section 101(b)(2) of the Act, except
the law of the country of the child’s that a stepparent described in section
habitual residence. 101(b)(1)(B) of the Act is not considered
(1) To qualify as an irrevocable con- a child’s parent, solely for purposes of
sent under this definition, the docu- classification of the child as a Conven-
ment must specify whether the legal tion adoptee, if the petitioner estab-
custodian is able to read and under- lishes that, under the law of the Con-
stand the language in which the con- vention country, there is no legal par-
sent is written. If the legal custodian is ent-child relationship between a step-
not able to read or understand the lan- parent and stepchild. This definition
guage in which the document is writ- includes a stepparent if the stepparent
ten, then the document does not qual- adopted the child, or if the stepparent,
ify as an irrevocable consent unless the under the law of the Convention coun-
document is accompanied by a declara- try, became the child’s legal parent by
tion, signed, by an identified indi- marrying the other legal parent. A
vidual, establishing that that identi- stepparent who is a legal parent may
fied individual is competent to trans- consent to the child’s adoption, or may
late the language in the irrevocable be found to have abandoned or deserted
consent into a language that the par- the child, or to have disappeared from
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ent understands, and that the indi- the child’s life, in the same manner as
vidual, on the date and at the place would apply to any other legal parent.
specified in the declaration, did in fact Petitioner means the U.S. citizen (and
read and explain the consent to the his or her spouse, if any) who has filed
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§ 204.302 8 CFR Ch. I (1–1–10 Edition)
a Form I–800 under this subpart C. The not engage in any act that constitutes
petitioner may be an unmarried U.S. the legal representation, as defined in 8
citizen who is at least 25 years old CFR 1.1(i), (j) and (m), of the applicant
when the Form I–800 is filed, or a mar- (for a Form I–800A case) or petitioner
ried U.S. citizen of any age and his or (for a Form I–800 case) unless author-
her spouse of any age. Although the ized to do so as provided in 8 CFR part
singular term ‘‘petitioner’’ is used in 292. An individual authorized under 8
this subpart, the term includes both a CFR part 292 to practice before USCIS
married U.S. citizen and his or her may provide legal services in connec-
spouse. tion with a Form I–800A or I–800 case,
Sole parent means: but may not provide any of the six spe-
(1) The child’s mother, when the com- cific adoption services identified in 22
petent authority has determined that CFR 96.2, unless the individual is au-
the child’s father has abandoned or de- thorized to do so under 22 CFR part 96
serted the child, or has disappeared (for services provided in the United
from the child’s life; or States) or under the laws of the coun-
(2) The child’s father, when the com- try of the child’s habitual residence
petent authority has determined that (for services performed outside the
the child’s mother has abandoned or United States). The provisions of 8 CFR
deserted the child, or has disappeared 292.5 concerning sending notices about
from the child’s life; except that a case do not apply to an adoption
(3) A child’s parent is not a sole par- agency or facilitator that is not au-
ent if the child has acquired another thorized under 8 CFR part 292 to engage
parent within the meaning of section in representation before USCIS.
101(b)(2) of the Act and this section. (c) Application of the Privacy Act. Ex-
Suitability as adoptive parent(s) means cept as permitted by the Privacy Act, 5
that USCIS is satisfied, based on the U.S.C. 552a and the relevant Privacy
evidence of record, that it is reasonable Act notice concerning the routine use
to conclude that the applicant is capa- of information, USCIS may not dis-
ble of providing, and will provide, prop- close or give access to any information
er parental care to an adopted child. or record relating to any applicant or
Surviving parent means the child’s liv- petitioner who has filed a Form I–800A
ing parent when the child’s other par- or Form I–800 to any individual or enti-
ent is dead, and the child has not ac- ty other than that person, including
quired another parent within the but not limited to an accredited agen-
meaning of section 101(b)(2) of the Act cy, temporarily accredited agency, ap-
and this section. proved person, public domestic author-
ity, exempted provider, or supervised
§ 204.302 Role of service providers. provider, unless the applicant who filed
(a) Who may provide services in Con- the Form I–800A or the petitioner who
vention adoption cases. Subject to the filed Form I–800 has filed a written con-
limitations in paragraph (b) or (c) of sent to disclosure, as provided by the
this section, a U.S. citizen seeking to Privacy Act, 5 U.S.C. 552a.
file a Form I–800A or I–800 may use the
services of any individual or entity au- § 204.303 Determination of habitual
thorized to provide services in connec- residence.
tion with adoption, except that the (a) U.S. Citizens. For purposes of this
U.S. citizen must use the services of an subpart, a U.S. citizen who is seeking
accredited agency, temporarily accred- to have an alien classified as the U.S.
ited agency, approved person, super- citizen’s child under section
vised provider public domestic author- 101(b)(1)(G) of the Act is deemed to be
ity or exempted provider when required habitually resident in the United
to do so under 22 CFR part 96. States if the individual:
(b) Unauthorized practice of law pro- (1) Has his or her domicile in the
hibited. An adoption agency or United States, even if he or she is liv-
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Department of Homeland Security § 204.304
(i) The citizen will have established a amount) or anything of value (whether
domicile in the United States on or be- the value is great or small), directly or
fore the date of the child’s admission indirectly, to induce or influence any
to the United States for permanent res- decision concerning:
idence as a Convention adoptee; or (1) The placement of a child for adop-
(ii) The citizen indicates on the Form tion;
I–800 that the citizen intends to bring (2) The consent of a parent, a legal
the child to the United States after custodian, individual, or agency to the
adopting the child abroad, and before adoption of a child;
the child’s 18th birthday, at which time (3) The relinquishment of a child to a
the child will be eligible for, and will competent authority, or to an agency
apply for, naturalization under section or person as defined in 22 CFR 96.2, for
322 of the Act and 8 CFR part 322. This the purpose of adoption; or
option is not available if the child will (4) The performance by the child’s
be adopted in the United States. parent or parents of any act that
(b) Convention adoptees. A child whose makes the child a Convention adoptee.
classification is sought as a Convention (b) Permissible payments. Paragraph
adoptee is, generally, deemed for pur- (a) of this section does not prohibit an
poses of this subpart C to be habitually applicant/petitioner, or an individual
resident in the country of the child’s or entity acting on behalf of an appli-
citizenship. If the child’s actual resi- cant/petitioner, from paying the rea-
dence is outside the country of the sonable costs incurred for the services
child’s citizenship, the child will be designated in this paragraph. A pay-
deemed habitually resident in that ment is not reasonable if it is prohib-
other country, rather than in the coun- ited under the law of the country in
try of citizenship, if the Central Au- which the payment is made or if the
thority (or another competent author- amount of the payment is not commen-
ity of the country in which the child surate with the costs for professional
has his or her actual residence) has de- and other services in the country in
termined that the child’s status in that which any particular service is pro-
country is sufficiently stable for that vided. The permissible services are:
country properly to exercise jurisdic- (1) The services of an adoption serv-
tion over the child’s adoption or cus- ice provider in connection with an
tody. This determination must be made adoption;
by the Central Authority itself, or by (2) Expenses incurred in locating a
another competent authority of the child for adoption;
country of the child’s habitual resi- (3) Medical, hospital, nursing, phar-
dence, but may not be made by a non- maceutical, travel, or other similar ex-
governmental individual or entity au- penses incurred by a mother or her
thorized by delegation to perform Cen- child in connection with the birth or
tral Authority functions. The child will any illness of the child;
not be considered to be habitually resi- (4) Counseling services for a parent or
dent in any country to which the child a child for a reasonable time before and
travels temporarily, or to which he or after the child’s placement for adop-
she travels either as a prelude to, or in tion;
conjunction with, his or her adoption (5) Expenses, in an amount commen-
and/or immigration to the United surate with the living standards in the
States. country of the child’s habitual resi-
dence, for the care of the birth mother
§ 204.304 Improper inducement pro- while pregnant and immediately fol-
hibited. lowing the birth of the child;
(a) Prohibited payments. Neither the (6) Expenses incurred in obtaining
applicant/petitioner, nor any indi- the home study;
vidual or entity acting on behalf of the (7) Expenses incurred in obtaining
applicant/petitioner may, directly or the reports on the child as described in
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§ 204.305 8 CFR Ch. I (1–1–10 Edition)
any legal services performed for a par- (2) Then, once USCIS has approved
ent who consents to the adoption of a the Form I–800A and a child has been
child or relinquishes the child to an identified as an alien who may qualify
agency; and as a Convention adoptee, the U.S. cit-
(9) Any other service the payment for izen must file a Form I–800 under 8
which the officer finds, on the basis of CFR 204.313.
the facts of the case, was reasonably
necessary. § 204.307 Who may file a Form I–800A
(c) Department of State requirements. or Form I–800.
See 22 CFR 96.34, 96.36 and 96.40 for ad- (a) Eligibility to file Form I–800A. Ex-
ditional regulatory information con- cept as provided in paragraph (c) of
cerning fees in relation to Convention this section, the following persons may
adoptions. file a Form I–800A:
(1) An unmarried United States cit-
§ 204.305 State preadoption require- izen who is at least 24 years old and
ments. who is habitually resident in the
State preadoption requirements must United States, as determined under 8
be complied with when a child is com- CFR 204.303(a); or
ing into the State as a Convention (2) A married United States citizen,
adoptee to be adopted in the United who is habitually resident in the
States. A qualified Convention adoptee United States, as determined under 8
is deemed to be coming to be adopted CFR 204.303(a), and whose spouse will
in the United States if either of the fol- also adopt any child adopted by the cit-
lowing factors exists: izen based on the approval of a Form I–
(a) The applicant/petitioner will not 800A; and
complete the child’s adoption abroad; (3) The citizen’s spouse must also be
or either a U.S. citizen, a non-citizen U.S.
(b) In the case of a married applicant/ national, or an alien who, if living in
petitioner, the child was adopted the United States, holds a lawful sta-
abroad only by one of the spouses, tus under U.S. immigration law. If an
rather than by the spouses jointly, so alien spouse is present in a lawful sta-
that it will be necessary for the other tus other than the status of an alien
spouse to adopt the child after the lawfully admitted for permanent resi-
child’s admission. dence, such status will be a factor eval-
uated in determining whether the fam-
§ 204.306 Classification as an imme- ily’s situation is sufficiently stable to
diate relative based on a Conven- support a finding that the applicant is
tion adoption.
suitable as the adoptive parents of a
(a) Unless 8 CFR 204.309 requires the Convention adoptee.
denial of a Form I–800A or Form I–800, (b) Eligibility to file a Form I–800. Ex-
a child is eligible for classification as cept as provided in paragraph (c) of
an immediate relative, as defined in this section, the following persons may
section 201(b)(2)(A)(i) of the Act, on the file a Form I–800:
basis of a Convention adoption, if the (1) An unmarried United States cit-
U.S. citizen who seeks to adopt the izen who is at least 25 years old and
child establishes that: who is habitually resident in the
(1) The United States citizen is (or, if United States, as determined under 8
married, the United States citizen and CFR 204.303(a); or
the United States citizen’s spouse are) (2) A married United States citizen,
eligible and suitable to adopt; and who is habitually resident in the
(2) The child is a Convention adoptee. United States as determined under 8
(b) A U.S. citizen seeking to have CFR 204.303(a), and whose spouse will
USCIS classify an alien child as the also adopt the child the citizen seeks
U.S. citizen’s child under section to adopt. The spouse must be either a
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Department of Homeland Security § 204.309
(3) The person has an approved and The petitioner may also file the Form
unexpired Form I–800A. I–800 with a visa-issuing post that
(c) Exceptions. (1) No applicant may would have jurisdiction to adjudicate a
file a Form I–800A, and no petitioner visa application filed by or on behalf of
may file a Form I–800, if: the Convention adoptee, when filing
(i) The applicant filed a prior Form I– with the visa-issuing post is permitted
800A that USCIS denied under 8 CFR by the instructions that accompany
204.309(a); or Form I–800.
(ii) The applicant filed a prior Form (c) Final approval of Form I–800. Once
I–600A under 8 CFR 204.3 that USCIS a Form I–800 has been provisionally ap-
denied under 8 CFR 204.3(h)(4); or proved under 8 CFR 204.313(g) and the
(iii) The petitioner filed a prior Form petitioner has either adopted or ob-
I–800 that USCIS denied under 8 CFR tained custody of the child for purposes
204.309(b)(3); or of emigration and adoption, the De-
(iv) The petitioner filed a prior Form partment of State officer with jurisdic-
I–600 under 8 CFR 204.3 that USCIS de- tion to adjudicate the child’s applica-
nied under 8 CFR 204.3(i). tion for an immigrant or non-
(2) This bar against filing a subse- immigrant visa has jurisdiction to
quent Form I–800A or Form I–800 ex- grant final approval of the Form I–800.
pires one year after the date on which The Department of State officer may
the decision denying the prior Form I– approve the Form I–800, but may not
800A, I–600A, I–800 or I–600 became ad- deny it; the Department of State offi-
ministratively final. If the applicant cer must refer any Form I–800 that is
(for a Form I–800A or I–600A case) or ‘‘not clearly approvable’’ for a decision
the petitioner (for a Form I–800 or I–600 by a USCIS office having jurisdiction
case) does not appeal the prior deci- over Form I–800 cases. If the Depart-
sion, the one-year period ends one year ment of State officer refers the Form I–
after the date of the original decision 800 to USCIS because it is ‘‘not clearly
denying the prior Form I–800A, I–600A, approvable,’’ then USCIS has jurisdic-
I–800 or I–600. Any Form I–800A, or tion to approve or deny the Form I–800.
Form I–800 filed during this one-year In the case of an alien child who is in
period will be denied. If the applicant the United States and who is eligible
(for a Form I–800A or Form I–600A case) both under 8 CFR 204.309(b)(4) for ap-
or petitioner (for a Form I–800 or I–600 proval of a Form I–800 and under 8 CFR
case) appeals the prior decision, the bar part 245 for adjustment of status, the
to filing a new Form I–800A or I–800 ap- USCIS office with jurisdiction to adju-
plies while the appeal is pending and dicate the child’s adjustment of status
ends one year after the date of an Ad- application also has jurisdiction to
ministrative Appeals Office decision af- grant final approval of the Form I–800.
firming the denial. (d) Use of electronic filing. When, and
(3) Any facts underlying a prior de- if, USCIS adopts electronic, internet-
nial of a Form I–800A, I–800, I–600A, or based or other digital means for filing
I–600 are relevant to the adjudication Convention cases, the terms ‘‘filing a
of any subsequently filed Form I–800A Form I–800A’’ and ‘‘filing a Form I–800’’
or Form I–800 that is filed after the ex- will include an additional option. Rath-
piration of this one year bar. er than filing the Form I–800A or Form
I–800 and accompanying evidence in a
§ 204.308 Where to file Form I–800A or paper format, the submission of the
Form I–800. same required information and accom-
(a) Form I–800A. An applicant must panying evidence may be filed accord-
file a Form I–800A with the USCIS of- ing to the digital filing protocol that
fice identified in the instructions that USCIS adopts.
accompany Form I–800A.
(b) Form I–800. After a Form I–800A § 204.309 Factors requiring denial of a
has been approved, a petitioner may Form I–800A or Form I–800.
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file a Form I–800 on behalf of a Conven- (a) Form I–800A. A USCIS officer must
tion adoptee with the stateside or over- deny a Form I–800A if:
seas USCIS office identified in the in- (1) The applicant or any additional
structions that accompany Form I–800. adult member of the household failed
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§ 204.309 8 CFR Ch. I (1–1–10 Edition)
new grant of adoption or custody. The with the child’s parent) nephew, niece,
prior adoption must be voided, vacated, husband, former husband, wife, former
annulled or otherwise terminated be- wife, father-in-law, mother-in-law, son-
fore the petitioner files a Form I–800. in-law, daughter-in-law, brother-in-
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Department of Homeland Security § 204.310
law, sister-in-law, stepfather, step- (a) or a Form I–800 under paragraph (b)
mother, stepson, stepdaughter, step- of this section, the USCIS officer will
brother, stepsister, half brother, or half notify the applicant (for a Form I–800A
sister of the child’s parent(s). case) or petitioner (for a Form I–800
(3) The USCIS officer finds that the case) in writing of the intent to deny
petitioner, or any individual or entity the Form I–800A or Form I–800 and pro-
acting on behalf of the petitioner has vide 30 days in which to submit evi-
engaged in any conduct related to the dence and argument to rebut the claim
adoption or immigration of the child that this section requires denial of the
that is prohibited by 8 CFR 204.304, or Form I–800A or Form I–800.
that the petitioner has concealed or (d) Rebuttal of intent to deny. If USCIS
misrepresented any material facts con- notifies the applicant that USCIS in-
cerning payments made in relation to tends to deny a Form I–800A under
the adoption; paragraph (a) of this section, because
(4) The child is present in the United the applicant or any additional adult
States, unless the petitioner, after member(s) of the household failed to
compliance with the requirements of disclose to the home study preparer or
this subpart, either adopt(s) the child to USCIS, or concealed or misrepre-
in the Convention country, or else, sented, any fact(s) concerning the ar-
after having obtained custody of the rest, conviction, or history of sub-
child under the law of the Convention stance abuse, sexual abuse or child
country for purposes of emigration and abuse, and/or family violence, or other
adoption, adopt(s) the child in the criminal history, or failed to cooperate
United States. This subpart does not in search of child abuse registries, or
require the child’s actual return to the failed to disclose a prior home study,
Convention country; whether to permit the applicant may rebut the intent to
the child’s adoption without the child’s deny only by establishing, by clear and
return is a matter to be determined by convincing evidence that:
the Central Authority of the country of
(1) The applicant or additional adult
the child’s habitual residence, but ap-
member of the household did, in fact,
proval of a Form I–800 does not relieve
disclose the information; or
an alien child of his or her ineligibility
for adjustment of status under section (2) If it was an additional adult mem-
245 of the Act, if the child is present in ber of the household who failed to co-
the United States without inspection operate in the search of child abuse
or is otherwise ineligible for adjust- registries, or who failed to disclose to
ment of status. If the child is in the the home study preparer or to USCIS,
United States but is not eligible for ad- or concealed or misrepresented, any
justment of status, the Form I–800 may fact(s) concerning the arrest, convic-
be provisionally approved only if the tion, or history of substance abuse,
child will leave the United States after sexual abuse or child abuse, and/or
the provisional approval and apply for family violence, or other criminal his-
a visa abroad before the final approval tory, or failed to disclose a prior home
of the Form I–800. study, that that person is no longer a
(5) Except as specified in 8 CFR member of the household and that that
204.312(e)(2)(ii) with respect to a new person’s conduct is no longer relevant
Form I–800 filed with a new Form I– to the suitability of the applicant as
800A to reflect a change in marital sta- the adoptive parent of a Convention
tus, the petitioner files the Form I–800: adoptee.
(i) Before the approval of a Form I–
800A, or § 204.310 Filing requirements for Form
I–800A.
(ii) After the denial of a Form I–800A;
or (a) Completing and filing the Form. A
(iii) After the expiration of the ap- United States citizen seeking to be de-
proval of a Form I–800A; termined eligible and suitable as the
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§ 204.310 8 CFR Ch. I (1–1–10 Edition)
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Department of Homeland Security § 204.311
ate in completion of a home study. by the person to whom the arrest re-
(6) Include the home study preparer’s lates.
signature, in accordance with para- (13) Contain an evaluation of the
graph (f) of this section. suitability of the home for adoptive
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§ 204.311 8 CFR Ch. I (1–1–10 Edition)
placement of a child in light of any ap- (ii) Disclose any arrest, conviction,
plicant’s or additional adult member of or other adverse criminal history,
the household’s history of abuse and/or whether in the United States or
violence as an offender, whether this abroad, even if the record of the arrest,
history is disclosed by an applicant or conviction or other adverse criminal
any additional adult member of the history has been expunged, sealed, par-
household or is discovered by home doned, or the subject of any other ame-
study preparer, regardless of the source lioration. A person with a criminal his-
of the home study preparer’s discovery. tory may be able to establish sufficient
A single incident of sexual abuse, child rehabilitation.
abuse, or family violence is sufficient (iii) Disclose other relevant informa-
to constitute a ‘‘history’’ of abuse and/ tion, such as physical, mental or emo-
or violence. tional health issues, or behavioral
(14) Contain an evaluation of the issues, as specified in paragraph (m) of
suitability of the home for adoptive this section. Such problems may not
placement of a child in light of disclo- necessarily preclude approval of a
sure by an applicant, or any additional Form I–800A, if, for example, they have
adult member of the household, of a been or are being successfully treated.
history of substance abuse. A person (2) This duty of candor is an ongoing
has a history of substance abuse if his duty, and continues while the Form I–
or her current or past use of alcohol, 800A is pending, after the Form I–800A
controlled substances, or other sub- is approved, and while any subsequent
stances impaired or impairs his or her Form I–800 is pending, and until there
ability to fulfill obligations at work, is a final decision admitting the Con-
school, or home, or creates other social vention adoptee to the United States
or interpersonal problems that may ad- with a visa. The applicant and any ad-
versely affect the applicant’s suit- ditional adult member of the household
ability as an adoptive parent. must notify the home study preparer
and USCIS of any new event or infor-
(15) Include a general description of
mation that might warrant submission
the information disclosed in accord-
of an amended or updated home study.
ance with paragraph (m) of this section
(e) State standards. In addition to the
concerning the physical, mental, and
requirements of this section, the home
emotional health of the applicant and
study preparer must prepare the home
of any additional adult member of the
study according to the requirements
household.
that apply to a domestic adoption in
(16) Identify the agency involved in the State of the applicant’s actual or
each prior or terminated home study in proposed residence in the United
accordance with paragraph (o) of this States.
section, when the prior home study (f) Home study preparer’s signature.
process began, the date the prior home The home study preparer (or, if the
study was completed, and whether the home study is prepared by an entity,
prior home study recommended for or the officer or employee who has au-
against finding the applicant or addi- thority to sign the home study for the
tional adult member of the household entity) must personally sign the home
suitable for adoption, foster care, or study, and any updated or amended
other custodial care of a child. If a home study. The home study preparer’s
prior home study was terminated with- signature must include a declaration,
out completion, the current home under penalty of perjury under United
study must indicate when the prior States law, that:
home study began, the date of termi- (1) The signer personally, and with
nation, and the reason for the termi- the professional diligence reasonably
nation. necessary to protect the best interests
(d) Duty to disclose. (1) The applicant, of any child whom the applicant might
and any additional adult members of adopt, either actually conducted or su-
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the household, each has a duty of can- pervised the home study, including per-
dor and must: sonal interview(s), the home visits, and
(i) Give true and complete informa- all other aspects of the investigation
tion to the home study preparer. needed to prepare the home study; if
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Department of Homeland Security § 204.311
the signer did not personally conduct (5) Apply the requirements of this
the home study, the person who actu- paragraph to each additional adult
ally did so must be identified; member of the household.
(2) The factual statements in the (h) Financial considerations. (1) As-
home study are true and correct, to the sessment of the finances of the appli-
best of the signer’s knowledge, infor- cant must include:
mation and belief; and (i) A description of the applicant’s in-
(3) The home study preparer has ad- come, financial resources, debts, and
vised the applicant of the duty of can- expenses.
dor under paragraph (d) of this section, (ii) A statement concerning the evi-
specifically including the on-going dence that was considered to verify the
duty under paragraph (d)(2) of this sec- source and amount of income and fi-
tion concerning disclosure of new nancial resources.
events or information warranting sub- (2) Any income designated for the
mission of an updated or amended support of one or more children in the
home study. applicant’s care and custody, such as
(g) Personal interview(s) and home funds for foster care, or any income
visit(s). The home study preparer must: designated for the support of another
(1) Conduct at least one interview in member of the household, must not be
person, and at least one home visit, counted towards the financial re-
with the applicant. sources available for the support of a
(2) Interview, at least once, each ad- prospective adoptive child.
ditional adult member of the house- (3) USCIS will not routinely require a
hold, as defined in 8 CFR 204.301. The detailed financial statement or sup-
interview with an additional adult porting financial documents. However,
member of the household should also should the need arise, USCIS reserves
be in person, unless the home study the right to ask for such detailed docu-
preparer determines that interviewing mentation.
that individual in person is not reason- (i) Checking available child abuse reg-
ably feasible and explains in the home istries. The home study preparer must
study the reason for this conclusion. ensure that a check of the applicant,
(3) Provide information on and assess and of each additional adult member of
the suitability of the applicant as the the household, has been made with
adoptive parent of a Convention available child abuse registries in any
adoptee based on the applicant’s back- State or foreign country that the appli-
ground, family and medical history (in- cant, or any additional adult member
cluding physical, mental and emo- of the household, has resided in since
tional health), social environment, rea- that person’s 18th birthday. USCIS
sons for adoption, ability to undertake may also conduct its own check of any
an intercountry adoption, and the child abuse registries to which USCIS
characteristics of the child(ren) for has access. Depending on the extent of
whom they would be qualified to care. access to a relevant registry allowed by
(4) Refer the applicant to an appro- the State or foreign law, the home
priate licensed professional, such as a study preparer must take one of the
physician, psychiatrist, clinical psy- following courses of action:
chologist, clinical social worker, or (1) If the home study preparer is al-
professional substance abuse counselor, lowed access to information from the
for an evaluation and written report, if child abuse registries, he or she must
the home study preparer determines make the appropriate checks for the
that there are areas beyond his or her applicant and each additional adult
expertise that need to be addressed. member of the household;
The home study preparer must also (2) If the State or foreign country re-
make such a referral if such a referral quires the home study preparer to se-
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would be required for a domestic adop- cure permission from the applicant and
tion under the law of the State of the each additional adult member of the
applicant’s actual or proposed place of household before gaining access to in-
residence in the United States. formation in such registries, the home
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§ 204.311 8 CFR Ch. I (1–1–10 Edition)
study preparer must secure such per- tation as described in paragraph (l) of
mission from those individuals and this section.
make the appropriate checks; (l) Evidence of rehabilitation. If an ap-
(3) If the State or foreign country plicant, or any additional adult mem-
will only release information directly ber of the household, has a history of
to an individual to whom the informa- substance abuse, sexual abuse or child
tion relates, then the applicant and the abuse, and/or family violence as an of-
additional adult member of the house- fender, or any other criminal history,
hold must secure such information and the home study preparer may, never-
provide it to the home study preparer. theless, make a favorable finding if the
(4) If the State or foreign country applicant has demonstrated that the
will release information neither to the person with this adverse history has
home study preparer nor to the person achieved appropriate rehabilitation. A
to whom the information relates, or favorable recommendation cannot be
has not done so within 6 months of a made based on a claim of rehabilita-
written request for the information, tion while an applicant or any addi-
this unavailability of information must tional adult member of the household
be noted in the home study. is on probation, parole, supervised re-
(j) Inquiring about history of abuse or lease, or other similar arrangement for
violence as an offender. The home study any conviction. The home study must
preparer must ask each applicant and include a discussion of the claimed re-
each additional adult member of the habilitation, which demonstrates that
household whether he or she has a his- the applicant is suitable as the adop-
tory as an offender, whether in the tive parent(s) of a Convention adoptee.
United States or abroad, of substance Evidence of rehabilitation may in-
abuse, sexual abuse, or child abuse, or clude:
family violence, even if such history
(1) An evaluation of the seriousness
did not result in an arrest or convic-
of the arrest(s), conviction(s), or his-
tion. This evaluation must include:
tory of abuse, the number of such inci-
(1) The dates of each arrest or convic-
dents, the length of time since the last
tion or history of substance abuse, sex-
incident, the offender’s acceptance of
ual abuse or child abuse, and/or family
responsibility for his or her conduct,
violence; or,
and any type of counseling or rehabili-
(2) If not resulting in an arrest, the
tation programs which have been suc-
date or time period (if occurring over
cessfully completed, or
an extended period of time) of each oc-
currence and (2) A written opinion from an appro-
priate licensed professional, such as a
(3) Details including any mitigating
circumstances about each incident. psychiatrist, clinical psychologist, or
clinical social worker.
Each statement must be signed,
under penalty of perjury, by the person (m) Assessment with respect to physical,
to whom the incident relates. mental and emotional health or behav-
(k) Criminal history. The applicant, ioral issues. The home study must ad-
and any additional adult members of dress the current physical, mental and
the household, must also disclose to emotional health of the applicant, or
the home study preparer and USCIS any additional adult member of the
any history, whether in the United household, as well as any history of ill-
States or abroad, of any arrest and/or ness or of any mental, emotional, psy-
conviction (other than for minor traffic chological, or behavioral instability if
offenses) in addition to the information the home study preparer determines, in
that the person must disclose under the exercise of reasonable professional
paragraph (j) of this section. If an ap- judgment, that the suitability of the
plicant or an additional adult member applicant as an adoptive parent may be
of the household has a criminal record, affected adversely by such history.
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the officer may still find that the ap- Paragraph (g)(4) of this section, regard-
plicant will be suitable as the adoptive ing referral to professionals, applies to
parent of a Convention adoptee, if any home study involving prior psy-
there is sufficient evidence of rehabili- chiatric care, or issues arising from
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Department of Homeland Security § 204.311
sexual abuse, child abuse, or family vi- must contain a discussion of the prepa-
olence issues if, in the home study pre- ration, willingness, and ability of the
parer’s reasonable professional judg- applicant to provide proper care for a
ment, such referral(s) may be nec- child with the handicap or special
essary or helpful to the proper comple- needs. This information will be used to
tion of the home study. evaluate the suitability of the appli-
(n) Prior home study. The home study cant as the adoptive parent of a special
preparer must ask each applicant, and needs or handicapped child. If this in-
any additional adult member of the formation is not included in the home
household, whether he or she pre- study, an updated or amended home
viously has had a prior home study study will be necessary if the applicant
completed, or began a home study seeks to adopt a handicapped or special
process in relation to an adoption or to needs child.
any form of foster or other custodial (q) Addressing a Convention country’s
care of a child that was not completed, specific requirements. If the Central Au-
whether or not the prior home study thority of the Convention country has
related to an intercountry adoption, notified the Secretary of State of any
and must include each individual’s re- specific requirements that must be met
sponse to this question in the home in order to adopt in the Convention
study report. A copy of any previous country, the home study must include
home study that did not favorably rec- a full and complete statement of all
ommend the applicant or additional facts relevant to the applicant’s eligi-
adult member of the household must be bility for adoption in the Convention
attached to any home study submitted country, in light of those specific re-
with a Form I–800A. If a copy of any quirements.
prior home study that did not favor- (r) Specific approval for adoption. If
ably recommend the applicant or addi- the home study preparer’s findings are
tional adult member of the household favorable, the home study must con-
is no longer available, the current tain his or her specific approval of the
home study must explain why the prior applicant for adoption of a child from
home study is no longer available. The the specific Convention country or
home study preparer must evaluate the countries, and a discussion of the rea-
relevance of any prior unfavorable or sons for such approval. The home study
uncompleted home study to the suit- must include the number of children
ability of the applicant as the adoptive the applicant may adopt at the same
parent of a Convention adoptee. time. The home study must state
(o) Living accommodations. The home whether there are any specific restric-
study must include a detailed descrip- tions to the adoption based on the age
tion of the living accommodations or gender, or other characteristics of
where the applicant currently resides. the child. If the home study preparer
If the applicant is planning to move, has approved the applicant for a handi-
the home study must include a descrip- capped or special needs adoption, this
tion of the living accommodations fact must be clearly stated.
where the child will reside with the ap- (s) Home study preparer’s authority to
plicant, if known. If the applicant is re- conduct home studies. The home study
siding abroad at the time of the home must include a statement in which the
study, the home study must include a home study preparer certifies that he
description of the living accommoda- or she is authorized under 22 CFR part
tions where the child will reside in the 96 to complete home studies for Con-
United States with the applicant, if vention adoption cases. The certifi-
known. Each description must include cation must specify the State or coun-
an assessment of the suitability of ac- try under whose authority the home
commodations for a child and a deter- study preparer is licensed or author-
mination whether such space meets ap- ized, cite the specific law or regulation
plicable State requirements, if any. authorizing the preparer to conduct
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(p) Handicapped or special needs child. home studies, and indicate the license
A home study conducted in conjunc- number, if any, and the expiration
tion with the proposed adoption of a date, if any, of this authorization or li-
special needs or handicapped child cense. The certification must also
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§ 204.311 8 CFR Ch. I (1–1–10 Edition)
specify the basis under 22 CFR part 96 capped or special needs child, if the
(public domestic authority, accredited home study did not already address the
agency, temporarily accredited agency, applicant’s suitability as the adoptive
approved person, exempted provider, or parent of a child with the particular
supervised provider) for his or her au- handicap or special need;
thorization to conduct Convention (v) A change to a different Conven-
adoption home studies. tion country. This change requires the
(t) Review of home study. (1) If the law updated home study to address suit-
of the State in which the applicant re- ability under the requirements of the
sides requires the competent authority new Convention country;
in the State to review the home study, (vi) A lapse of more than 6 months
such a review must occur and be docu- between the date the home study is
mented before the home study is sub- completed and the date it is submitted
mitted to USCIS. to USCIS; or
(2) When the home study is not per- (vii) A change to the child’s proposed
formed in the first instance by an ac- State of residence. The preadoption re-
credited agency or temporarily accred- quirements of the new State must be
ited agency, as defined in 22 CFR part complied with in the case of a child
96, then an accredited agency or tempo- coming to the United States to be
rarily accredited agency, as defined in adopted.
22 CFR part 96, must review and ap-
(2) Any updated or amended home
prove the home study as specified in 22
study must:
CFR 96.47(c) before the home study is
(i) Meet the requirements of this sec-
submitted to USCIS. This requirement
tion;
for review and approval by an accred-
ited agency or temporarily accredited (ii) Be accompanied by a copy of the
agency does not apply to a home study home study that is being updated or
that was actually prepared by a public amended, including all prior updates
domestic authority, as defined in 22 and amendments;
CFR 96.2. (iii) Include a statement from the
(u) Home study updates and amend- preparer that he or she has reviewed
ments. (1) A new home study amend- the home study that is being updated
ment or update will be required if there or amended and is personally and fully
is: aware of its contents; and
(i) A significant change in the appli- (iv) Address whether the home study
cant’s household, such as a change in preparer recommends approval of the
residence, marital status, criminal his- proposed adoption and the reasons for
tory, financial resources; or the recommendation.
(ii) The addition of one or more chil- (3) If submission of an updated or
dren in the applicant’s home, whether amended home study becomes nec-
through adoption or foster care, birth, essary before USCIS adjudicates the
or any other means. Even if the origi- Form I–800A, the applicant may simply
nal home study provided for the adop- submit the updated or amended home
tion of more than one adopted child, study to the office that has jurisdiction
the applicant must submit an amended over the Form I–800A.
home study recommending adoption of (4) If it becomes necessary to file an
an additional child, because the addi- updated or amended home study after
tion of the already adopted child(ren) USCIS has approved the Form I–800A,
to the applicant’s household is a sig- the applicant must file a Form I–800A
nificant change in the household that Supplement 3 with the filing fee speci-
should be assessed before the adoption fied in 8 CFR 103.7(b)(1) and the amend-
of any additional child(ren); ed or updated home study. If USCIS de-
(iii) The addition of other dependents termines that the amended or updated
or additional adult member(s) of the home study shows that the applicant
household to the family prior to the remains suitable as the adoptive par-
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Department of Homeland Security § 204.312
wants to have USCIS extend the ap- provisions of 8 CFR 103.2(b)(16) relating
proval period for the Form I–800A, the to the applicant’s right to review and
applicant must submit the updated or rebut adverse information.
amended home study with an extension (c) Denial of application. (1) The
request under 8 CFR 204.312(e)(3), rath- USCIS officer will deny the Form I–
er than under this paragraph (u) of this 800A if the officer finds that the appli-
section. cant has failed to establish that the ap-
(5) Each update must indicate that plicant is:
the home study preparer has updated (i) Eligible under 8 CFR 204.307(a) to
the screening of the applicant and any file Form I–800A; or
additional adult member of the house- (ii) Suitable as the adoptive parent of
hold under paragraphs (i) through (l) of a child from the Convention country.
this section, and must indicate the re- (2) Before denying a Form I–800A, the
sults of this updated screening. USCIS officer will comply with 8 CFR
103.2(b)(16), if required to do so under
§ 204.312 Adjudication of the Form I– that provision, and may issue a request
800A. for evidence or a notice of intent to
(a) USCIS action. The USCIS officer deny under 8 CFR 103.2(b)(8).
must approve a Form I–800A if the offi- (3) A denial will be in writing, giving
cer finds, based on the evidence of the reason for the denial and notifying
record, that the applicant is eligible the applicant of the right to appeal, if
under 8 CFR 204.307(a) to file a Form I– any, as provided in 8 CFR 204.314.
800A and the USCIS officer is satisfied (4) It is for the Central Authority of
that the applicant is suitable as the the other Convention country to deter-
adoptive parent of a child from the mine how its own adoption require-
specified Convention country. If the ap- ments, as disclosed in the home study
plicant sought approval for more than under 8 CFR 204.311(q), should be ap-
one Convention country, the decision plied in a given case. For this reason,
will specify each country for which the the fact that the applicant may be in-
Form I–800A is approved, and will also eligible to adopt in the other Conven-
specify whether the Form I–800A is de- tion country under those requirements,
nied with respect to any particular will not warrant the denial of a Form
Convention country. I–800A, if USCIS finds that the appli-
(b) Evaluation of the home study. In cant has otherwise established eligi-
determining suitability to adopt, the bility and suitability as the adoptive
USCIS officer will give considerable parent of a Convention adoptee.
weight to the home study, but is not (d) Approval notice. (1) If USCIS ap-
bound by it. Even if the home study is proves the Form I–800A, USCIS will no-
favorable, the USCIS officer must deny tify the applicant in writing as well as
the Form I–800A if, on the basis of the the Department of State. The notice of
evidence of record, the officer finds, for approval will specify:
a specific and articulable reason, that (i) The expiration date for the notice
the applicant has failed to establish of approval, as determined under para-
that he or she is suitable as the adop- graph (e) of this section, and
tive parent of a child from the Conven- (ii) The name(s) and marital status of
tion country. The USCIS officer may the applicant; and
consult the accredited agency or tem- (iii) If the applicant is not married
porarily accredited agency that ap- and not yet 25 years old, the appli-
proved the home study, the home study cant’s date of birth.
preparer, the applicant, the relevant (2) Once USCIS approves the Form I–
State or local child welfare agency, or 800A, or extends the validity period for
any appropriate licensed professional, a prior approval under paragraph (e) of
as needed to clarify issues concerning this section, any submission of the
whether the applicant is suitable as the home study to the Central Authority of
adoptive parent of a Convention the country of the child’s habitual resi-
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adoptee. If this consultation yields evi- dence must consist of the entire and
dence that is adverse to the applicant, complete text of the same home study
the USCIS officer may rely on the evi- and of any updates or amendments sub-
dence only after complying with the mitted to USCIS.
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§ 204.312 8 CFR Ch. I (1–1–10 Edition)
than 90 days before the expiration of ocation provided for in paragraph (e)(2)
the validity period for the Form I–800A of this section, the approval of a Form
approval, but must do so on or before I–800A may be revoked pursuant to 8
the date on which the validity period CFR 205.1 or 205.2.
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Department of Homeland Security § 204.313
§ 204.313 Filing and adjudication of a in the United States with that peti-
Form I–800. tioner.
(a) When to file. Once a Form I–800A (c) Filing deadline. (1) The petitioner
has been approved and the Central Au- must file the Form I–800 before the ex-
thority has proposed placing a child for piration of the notice of the approval of
adoption by the petitioner, the peti- the Form I–800A and before the child’s
tioner may file the Form I–800. The pe- 16th birthday. Paragraphs (c)(2) and (3)
titioner must complete the Form I–800 of this section provide special rules for
in accordance with the instructions determining that this requirement has
that accompany the Form I–800, and been met.
must sign the Form I–800 personally. In (2) If the appropriate Central Author-
the case of a married petitioner, one ity places the child with the petitioner
spouse cannot sign for the other, even for intercountry adoption more than 6
under a power of attorney or similar months after the child’s 15th birthday
agency arrangement. The petitioner but before the child’s 16th birthday,
may then file the Form I–800 with the the petitioner must still file the Form
stateside or overseas USCIS office or I–800 before the child’s 16th birthday. If
the visa issuing post that has jurisdic- the evidence required by paragraph
tion under 8 CFR 204.308(b) to adju- (d)(3) or (4) of this section is not yet
dicate the Form I–800, together with available, instead of that evidence, the
the evidence specified in this section petitioner may submit a statement
and the filing fee specified in 8 CFR from the primary provider, signed
103.7(b)(1), if more than one Form I–800 under penalty of perjury under United
is filed for children who are not sib- States law, confirming that the Cen-
lings. tral Authority has, in fact, made the
(b) What to include on the Form. (1) adoption placement on the date speci-
The petitioner must specify on the fied in the statement. Submission of a
Form I–800 either that: Form I–800 with this statement will
(i) The child will seek an immigrant satisfy the statutory requirement that
visa, if the Form I–800 is approved, be- the petition must be submitted before
cause the child will reside in the the child’s 16th birthday, but no provi-
United States with the petitioner (in
sional or final approval of the Form I–
the case of a married petitioner, if only
800 will be granted until the evidence
one spouse is a United States citizen,
required by paragraph (d)(3) or (4) of
with that spouse) after the child’s ad-
this section has been submitted. When
mission to the United States on the
submitted, the evidence required by
basis of the proposed adoption; or
paragraph (d)(3) and (4) must affirma-
(ii) The child will seek a non-
tively show that the Central Authority
immigrant visa, in order to travel to
the United States to obtain naturaliza- did, in fact, make the adoption place-
tion under section 322 of the Act, be- ment decision before the child’s 16th
cause the petitioner intends to com- birthday.
plete the adoption abroad and the peti- (3) If the Form I–800A was filed after
tioner and the child will continue to the child’s 15th birthday but before the
reside abroad immediately following child’s 16th birthday, the filing date of
the adoption, rather than residing in the Form I–800A will be deemed to be
the United States with the petitioner. the filing date of the Form I–800, pro-
This option is not available if the child vided the Form I–800 is filed not more
will be adopted in the United States. than 180 days after the initial approval
(2) In applying this paragraph (b), if a of the Form I–800A.
petitioner is a United States citizen (d) Required evidence. Except as speci-
who is domiciled in the United States, fied in paragraph (c)(2) of this section,
but who is posted abroad temporarily the petitioner must submit the fol-
under official orders as a member of lowing evidence with the properly com-
the Uniformed Services as defined in 5 pleted Form I–800:
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U.S.C. 2101, or as a civilian officer or (1) The Form I–800A approval notice
employee of the United States Govern- and, if applicable, proof that the ap-
ment, the child will be deemed to be proval period has been extended under
coming to the United States to reside 8 CFR 204.312(e);
145
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§ 204.313 8 CFR Ch. I (1–1–10 Edition)
(2) A statement from the primary (i) A copy of the child’s birth certifi-
provider, as defined in 22 CFR 96.2, cate, or secondary evidence of the
signed under penalty of perjury under child’s age; and
United States law, indicating that all (ii) A copy of the irrevocable con-
of the pre-placement preparation and sent(s) signed by the legal custodian(s)
training provided for in 22 CFR 96.48 and any other individual or entity who
has been completed; must consent to the child’s adoption
(3) The report required under article unless, as permitted under article 16 of
16 of the Convention, specifying the the Convention, the law of the country
child’s name and date of birth, the rea- of the child’s habitual residence pro-
sons for making the adoption place- vides that their identities may not be
ment, and establishing that the com- disclosed, so long as the Central Au-
petent authority has, as required under thority of the country of the child’s ha-
article 4 of the Convention: bitual residence certifies in its report
(i) Established that the child is eligi- that the required documents exist and
ble for adoption; that they establish the child’s age and
(ii) Determined, after having given availability for adoption;
due consideration to the possibility of (iii) A statement, signed under pen-
placing the child for adoption within alty of perjury by the primary provider
the Convention country, that inter- (or an authorized representative if the
country adoption is in the child’s best primary provider is an agency or other
interests; juridical person), certifying that the
(iii) Ensured that the legal custodian, report is a true, correct, and complete
after having been counseled as re- copy of the report obtained from the
quired, concerning the effect of the Central Authority of the Convention
child’s adoption on the legal country;
custodian’s relationship to the child (iv) A summary of the information
and on the child’s legal relationship to provided to the petitioner under 22
his or her family of origin, has freely CFR 96.49(d) and (f) concerning the
consented in writing to the child’s child’s medical and social history. This
adoption, in the required legal form; summary, or a separate document,
(iv) Ensured that if any individual or must include:
entity other than the legal custodian (A) A statement concerning whether,
must consent to the child’s adoption, from any examination as described in
this individual or entity, after having 22 CFR 96.49(e) or for any other reason,
been counseled as required concerning there is reason to believe that the child
the effect of the child’s adoption, has has any medical condition that makes
freely consented in writing, in the re- the child inadmissible under section
quired legal form, to the child’s adop- 212(a)(1) of the Act; if the medical in-
tion; formation that is available at the pro-
(v) Ensured that the child, after hav- visional approval stage is not sufficient
ing been counseled as appropriate con- to assess whether the child may be in-
cerning the effects of the adoption; has admissible under section 212(a)(1), the
freely consented in writing, in the re- submission of this information may be
quired legal form, to the adoption, if deferred until the petitioner seeks final
the child is of an age that, under the approval of the Form I–800;
law of the country of the child’s habit- (B) If both of the child’s birth parents
ual residence, makes the child’s con- were the child’s legal custodians and
sent necessary, and that consideration signed the irrevocable consent, the fac-
was given to the child’s wishes and tual basis for determining that they
opinions; and are incapable of providing proper care
(vi) Ensured that no payment or in- for the child, as defined in 8 CFR
ducement of any kind has been given to 204.301;
obtain the consents necessary for the (C) Information about the cir-
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Department of Homeland Security § 204.313
makes it unnecessary to provide a copy proved Form I–800A or Form I–800 and
of the death certificate; the facts uncovered by the investiga-
(D) If a sole birth parent was the tion, the office conducting the inves-
legal custodian, the circumstances tigation may consult directly with the
leading to the determination that the appropriate USCIS office. In any in-
other parent abandoned or deserted the stance where the investigation reveals
child, or disappeared from the child’s negative information sufficient to sus-
life; and tain a denial of the Form I–800 (includ-
(E) If the legal custodian was the ing a denial of a Form I–800 that had
child’s prior adoptive parent(s) or any been provisionally approved) or the
individual or entity other than the revocation of the final approval of the
child’s birth parent(s), the cir- Form I–800, the results of the inves-
cumstances leading to the custodian’s tigation, including any supporting doc-
acquisition of custody of the child and umentation, and the Form I–800 and its
the legal basis of that custody. supporting documentation will be for-
(v) If the child will be adopted in the warded to the appropriate USCIS office
United States, the primary provider’s for action. Although USCIS is not pre-
written report, signed under penalty of cluded from denying final approval of a
perjury by the primary provider (or an Form I–800 based on the results of an
authorized representative if the pri- investigation under this paragraph, the
mary provider is an agency or other ju- grant of provisional approval under
ridical person) detailing the primary paragraph (g), and the fact that the De-
adoption service provider’s plan for
partment of State has given the notice
post-placement duties, as specified in
contemplated by article 5(c) of the
22 CFR 96.50; and
Convention, shall constitute prima
(5) If the child may be inadmissible
facie evidence that the grant of adop-
under any provision of section 212(a)
tion or custody for purposes of adop-
for which a waiver is available, a prop-
tion will, ordinarily, warrant final ap-
erly completed waiver application for
proval of the Form I–800. The Form I–
each such ground; and
800 may still be denied, however, if the
(6) Either a Form I–864W, Intending
Secretary of State declines to issue the
Immigrant’s I–864 Exemption, or a
certificate provided for under section
Form I–864, Affidavit of Support, as
specified in 8 CFR 213a.2. 204(d)(2) of the Act or if the investiga-
(e) Obtaining the home study and sup- tion under this paragraph establishes
porting evidence. The materials from the existence of facts that clearly war-
the Form I–800A proceeding will be in- rant denial of the petition.
cluded in the record of the Form I–800 (g) Provisional approval. (1) The offi-
proceeding. cer will consider the evidence described
(f) Investigation. An investigation in paragraph (d) of this section and any
concerning the alien child’s status as a additional evidence acquired as a re-
Convention adoptee will be completed sult of any investigation completed
before the Form I–800 is adjudicated in under paragraph (f) of this section, to
any case in which the officer with ju- determine whether the preponderance
risdiction to grant provisional or final of the evidence shows that the child
approval of the Form I–800 determines, qualifies as a Convention adoptee. Un-
on the basis of specific facts, that com- less 8 CFR 204.309(b) prohibits approval
pleting the investigation will aid in the of the Form I–800, the officer will serve
provisional or final adjudication of the the petitioner with a written order pro-
Form I–800. Depending on the cir- visionally approving the Form I–800 if
cumstances surrounding the case, the the officer determines that the child
investigation may include, but is not does qualify for classification as a
limited to, document checks, telephone ‘‘child’’ under section 101(b)(1)(G), and
checks, interview(s) with the birth or that the proposed adoption or grant of
prior adoptive parent(s), a field inves- custody will meet the Convention re-
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§ 204.313 8 CFR Ch. I (1–1–10 Edition)
eligible for classification as a Conven- shows that the child was adopted only
tion adoptee, adjudicate any waiver ap- by one spouse, but not by both, will be
plication and (if any necessary waiver deemed to show that the petitioner has
of inadmissibility is granted) direct the acquired sufficient custody to bring the
petitioner to obtain and present the child to the United States for adoption
evidence required under paragraph (h) by the other spouse;
of this section in order to obtain final (B) If not already provided before the
approval of the Form I–800. provisional approval (because, for ex-
(ii) The grant of a waiver of inadmis- ample, the petitioner thought the child
sibility in conjunction with the provi- would be adopted abroad, but that plan
sional approval of a Form I–800 is con- has changed so that the child will now
ditioned upon the issuance of an immi- be adopted in the United States), a
grant or nonimmigrant visa for the statement from the primary provider,
child’s admission to the United States signed under penalty of perjury under
based on the final approval of the same United States law, summarizing the
Form I–800. If the Form I–800 is finally plan under 22 CFR 96.50 for monitoring
denied or the immigrant or non- of the placement until the adoption is
immigrant visa application is denied, finalized in the United States;
the waiver is void. (C) If not already provided before the
(2) If the petitioner filed the Form I– provisional approval (because, for ex-
800 with USCIS and the child will apply ample, the petitioner thought the child
for an immigrant or nonimmigrant would be adopted abroad, but that plan
visa, then, upon provisional approval of has changed so that the child will now
the Form I–800, the officer will forward be adopted in the United States), a
the notice of provisional approval, written description of the preadoption
Form I–800, and all supporting evidence requirements that apply to adoptions
to the Department of State. If the child in the State of the child’s proposed res-
will apply for adjustment of status, idence and a description of when and
USCIS will retain the record of pro- how, after the child’s immigration, the
ceeding. petitioner intends to complete the
(h) Final approval. (1) To obtain final child’s adoption. The written descrip-
approval of a provisionally approved tion must include a citation to the rel-
Form I–800, the petitioner must submit evant State statutes or regulations and
to the Department of State officer who specify how the petitioner intends to
has jurisdiction of the child’s applica- comply with any requirements that
tion for an immigrant or non- can be satisfied only after the child ar-
immigrant visa, or to the USCIS officer rives in the United States.
who has jurisdiction of the child’s ad- (2) If the Secretary of State, after re-
justment of status application, a copy viewing the evidence that the peti-
of the following document(s): tioner provides under paragraph
(i) If the child is adopted in the Con- (h)(1)(i) or (ii) of this section, issues
vention country, the adoption decree the certificate required under section
or administrative order from the com- 204(d)(2) of the Act, the Department of
petent authority in the Convention State officer who has jurisdiction over
country showing that the petitioner the child’s visa application has author-
has adopted the child; in the case of a ity, on behalf of USCIS, to grant final
married petitioner, the decree or order approval of a Form I–800. In the case of
must show that both spouses adopted an alien who will apply for adjustment
the child; or of status, the USCIS officer with juris-
(ii) If the child will be adopted in the diction of the adjustment application
United States: has authority to grant this final ap-
(A) The decree or administrative proval upon receiving the Secretary of
order from the competent authority in State’s certificate under section
the Convention country giving custody 204(d)(2) of the Act.
of the child for purposes of emigration (i) Denial of Form I–800. (1) A USCIS
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Department of Homeland Security § 205.1
(4) Form I–800 filed either before ter of discretion exercised for humani-
USCIS approved a Form I–800A or after tarian reasons in light of the facts of a
the expiration of the approval of a particular case, that it is inappropriate
Form I–800A. to revoke the approval of the petition.
149
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§ 205.1 8 CFR Ch. I (1–1–10 Edition)
USCIS may make this determination 204(a)(1)(A)(iv) of the Act, however, will
only if the principal beneficiary of the remain valid for the duration of the re-
visa petition asks for reinstatement of lationship to accord preference status
the approval of the petition and estab- under section 203(a)(3) of the Act if he
lishes that a person related to the prin- or she marries.
cipal beneficiary in one of the ways de- (H) Upon the marriage of a person ac-
scribed in section 213A(f)(5)(B) of the corded preference status as a son or
Act is willing and able to file an affi- daughter of a United States citizen
davit of support under 8 CFR part 213a under section 203(a)(1) of the Act. A pe-
as a substitute sponsor. tition filed on behalf of the son or
(D) Upon the legal termination of the daughter, however, will remain valid
marriage when a citizen or lawful per- for the duration of the relationship to
manent resident of the United States accord preference status under section
has petitioned to accord his or her 203(a)(3) of the Act.
spouse immediate relative or family- (I) Upon the marriage of a person ac-
sponsored preference immigrant classi- corded status as a son or daughter of a
fication under section 201(b) or section lawful permanent resident alien under
203(a)(2) of the Act. The approval of a section 203(a)(2) of the Act.
spousal self-petition based on the rela- (J) Upon legal termination of the pe-
tionship to an abusive citizen or lawful titioner’s status as an alien admitted
permanent resident of the United for lawful permanent residence in the
States filed under section United States unless the petitioner be-
204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the came a United States citizen. The pro-
Act, however, will not be revoked sole- visions of 8 CFR 204.2(i)(3) shall apply if
ly because of the termination of the the petitioner became a United States
marriage to the abuser. citizen.
(E) Upon the remarriage of the (ii) Petition for Pub. L. 97–359
spouse of an abusive citizen or lawful Amerasian. (A) Upon formal notice of
permanent resident of the United withdrawal filed by the petitioner with
States when the spouse has self-peti- the officer who approved the petition.
tioned under section 204(a)(1)(A)(iii) or (B) Upon the death of the beneficiary.
204(a)(1)(B)(ii) of the Act for immediate (C) Upon the death or bankruptcy of
relative classification under section the sponsor who executed Form I–361,
201(b) of the Act or for preference clas- Affidavit of Financial Support and In-
sification under section 203(a)(2) of the tent to Petition for Legal Custody for
Act. Pub. L. 97–359 Amerasian. In that
(F) Upon a child reaching the age of event, a new petition may be filed in
21, when he or she has been accorded the beneficiary’s behalf with the docu-
immediate relative status under sec- mentary evidence relating to sponsor-
tion 201(b) of the Act. A petition filed ship and, in the case of a beneficiary
on behalf of a child under section under 18 years of age, placement. If the
204(a)(1)(A)(i) of the Act or a self-peti- new petition is approved, it will be
tion filed by a child of an abusive given the priority date of the pre-
United States citizen under section viously approved petition.
204(a)(1)(A)(iv) of the Act, however, will (D) Upon the death or substitution of
remain valid for the duration of the re- the petitioner if other than the bene-
lationship to accord preference status ficiary or sponsor. However, if the peti-
under section 203(a)(1) of the Act if the tioner dies or no longer desires or is
beneficiary remains unmarried, or to able to proceed with the petition, and
accord preference status under section another person 18 years of age or older,
203(a)(3) of the Act if he or she marries. an emancipated minor, or a corpora-
(G) Upon the marriage of a child, tion incorporated in the United States
when he or she has been accorded im- desires to be substituted for the de-
mediate relative status under section ceased or original petitioner, a written
201(b) of the Act. A petition filed on be- request may be submitted to the Serv-
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half of the child under section ice or American consular office where
204(a)(1)(A)(i) of the Act or a self-peti- the petition is located to reinstate the
tion filed by a child of an abusive petition and restore the original pri-
United States citizen under section ority date.
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Department of Homeland Security § 205.2
(E) Upon the beneficiary’s reaching (D) Upon the termination of the
the age of 21 when the beneficiary has beneficiary’s eligibility for long-term
been accorded classification under sec- foster care; or
tion 201(b) of the Act. Provided that all (E) Upon the determination in ad-
requirements of section 204(f) of the ministrative or judicial proceedings
Act continue to be met, however, the that it is in the beneficiary’s best in-
petition is to be considered valid for terest to be returned to the country of
purposes of according the beneficiary nationality or last habitual residence
preference classification under section of the beneficiary or of his or her par-
203(a)(1) of the Act if the beneficiary ent or parents.
(b) Notice. When it shall appear to the
remains unmarried or under section
director that the approval of a petition
203(a)(3) if the beneficiary marries.
has been automatically revoked, he or
(F) Upon the beneficiary’s marriage she shall cause a notice of such revoca-
when the beneficiary has been accorded tion to be sent promptly to the con-
classification under section 201(b) or sular office having jurisdiction over
section 203(a)(1) of the Act. Provided the visa application and a copy of such
that all requirements of section 204(f) notice to be mailed to the petitioner’s
of the Act continue to be met, however, last known address.
the petition is to be considered valid
[61 FR 13077, Mar. 26, 1996, as amended at 71
for purposes of according the bene- FR 35749, June 21, 2006]
ficiary preference classification under
section 203(a)(3) of the Act. § 205.2 Revocation on notice.
(iii) Petitions under section 203(b), (a) General. Any Service officer au-
other than special immigrant juvenile pe- thorized to approve a petition under
titions. (A) Upon invalidation pursuant section 204 of the Act may revoke the
to 20 CFR Part 656 of the labor certifi- approval of that petition upon notice
cation in support of the petition. to the petitioner on any ground other
(B) Upon the death of the petitioner than those specified in § 205.1 when the
or beneficiary. necessity for the revocation comes to
(C) Upon written notice of with- the attention of this Service.
drawal filed by the petitioner, in em- (b) Notice of intent. Revocation of the
ployment-based preference cases, with approval of a petition of self-petition
any officer of the Service who is au- under paragraph (a) of this section will
thorized to grant or deny petitions. be made only on notice to the peti-
(D) Upon termination of the employ- tioner or self-petitioner. The petitioner
er’s business in an employment-based or self-petitioner must be given the op-
preference case under section portunity to offer evidence in support
203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or of the petition or self-petition and in
203(b)(3) of the Act. opposition to the grounds alleged for
(iv) Special immigrant juvenile peti- revocation of the approval.
tions. Unless the beneficiary met all of (c) Notification of revocation. If, upon
reconsideration, the approval pre-
the eligibility requirements as of No-
viously granted is revoked, the director
vember 29, 1990, and the petition re-
shall provide the petitioner or the self-
quirements as of November 29, 1990, and
petitioner with a written notification
the petition for classification as a spe-
of the decision that explains the spe-
cial immigrant juvenile was filed be-
cific reasons for the revocation. The di-
fore June 1, 1994, or unless the change rector shall notify the consular officer
in circumstances resulted from the having jurisdiction over the visa appli-
beneficiary’s adoption or placement in cation, if applicable, of the revocation
a guardianship situation: of an approval.
(A) Upon the beneficiary reaching the (d) Appeals. The petitioner or self-pe-
age of 21; titioner may appeal the decision to re-
(B) Upon the marriage of the bene- voke the approval within 15 days after
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152
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Department of Homeland Security § 207.7
applicant from his/her present abode to priority date for purposes of case con-
the place of resettlement in the United trol. Refugees or groups of refugees
States must be guaranteed by the spon- may be selected from these lists in a
sor. manner that will best support the poli-
[46 FR 45118, Sept. 10, 1981, as amended at 64
cies and interests of the United States.
FR 27661, May 21, 1999] The Attorney General may adopt ap-
propriate criteria for selecting the ref-
§ 207.3 Waivers of inadmissibility. ugees and assignment of processing pri-
(a) Authority. Section 207(c)(3) of the orities for each designated group based
Act sets forth grounds of inadmis- upon such considerations as: Reuniting
sibility under section 212(a) of the Act families, close association with the
which are not applicable and those United States, compelling humani-
which may be waived in the case of an tarian concerns, and public interest
otherwise qualified refugee and the factors.
conditions under which such waivers
may be approved. Officers in charge of § 207.6 Control over approved refugee
numbers.
overseas offices are delegated author-
ity to initiate the necessary investiga- Current numerical accounting of ap-
tions to establish the facts in each proved refugees is maintained for each
waiver application pending before them special group designated by the Presi-
and to approve or deny such waivers. dent. As refugee status is authorized
(b) Filing requirements. The applicant for each applicant, the total count is
for a waiver must submit Form I–602, reduced correspondingly from the ap-
Application by Refugee for Waiver of propriate group so that information is
Grounds of Inadmissibility, with the readily available to indicate how many
Service office processing his or her refugee numbers remain available for
case. The burden is on the applicant to issuance.
show that the waiver should be granted
based upon humanitarian grounds, § 207.7 Derivatives of refugees.
family unity, or the public interest. (a) Eligibility. A spouse, as defined in
The applicant shall be notified in writ- section 101(a)(35) of the Act, and/or
ing of the decision, including the rea- child(ren), as defined in section
sons for denial, if the application is de- 101(b)(1)(A), (B), (C), (D), or (E) of the
nied. There is no appeal from such deci- Act, shall be granted refugee status if
sion. accompanying or following-to-join the
[62 FR 10336, Mar. 6, 1997] principal alien. An accompanying de-
rivative is a spouse or child of a ref-
§ 207.4 Approved application. ugee who is in the physical company of
Approval of Form I–590 by an officer the principal refugee when he or she is
in charge outside the United States au- admitted to the United States, or a
thorizes the district director of the spouse or child of a refugee who is ad-
port of entry in the United States to mitted within 4 months following the
admit the applicant conditionally as a principal refugee’s admission. A fol-
refugee upon arrival at the port within lowing-to-join derivative, on the other
four months of the date the Form I–590 hand, is a spouse or child of a refugee
was approved. There is no appeal from who seeks admission more than 4
a denial of refugee status under this months after the principal refugee’s ad-
chapter. mission to the United States.
(b) Ineligibility. The following rel-
§ 207.5 Waiting lists and priority han- atives of refugees are ineligible for ac-
dling. companying or following-to-join bene-
Waiting lists are maintained for each fits:
designated refugee group of special hu- (1) A spouse or child who has pre-
manitarian concern. Each applicant viously been granted asylee or refugee
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§ 207.7 8 CFR Ch. I (1–1–10 Edition)
in the legal custody and living with the the refugee’s admission to the United
parent(s) for at least 2 years; States, whichever is later, unless the
(3) A stepchild, if the marriage that Service determines that the filing pe-
created this relationship took place riod should be extended for humani-
after the child became 18 years old; tarian reasons. There is no time limit
(4) A husband or wife if each/both imposed on a family member’s travel
were not physically present at the mar- to the United States once the Form I–
riage ceremony, and the marriage was 730 has been approved, provided that
not consummated (section 101(a)(35) of the relationship of spouse or child con-
the Act); tinues to exist and approval of the
(5) A husband or wife if the U.S. At- Form I–730 petition has not been subse-
torney General has determined that quently revoked. There is no fee for fil-
such alien has attempted or conspired ing this petition.
to enter into a marriage for the pur- (e) Evidence. Documentary evidence
pose of evading immigration laws; and consists of those documents which es-
(6) A parent, sister, brother, grand- tablish that the petitioner is a refugee,
parent, grandchild, nephew, niece, and evidence of the claimed relation-
uncle, aunt, cousin or in-law. ship of the petitioner to the bene-
(c) Relationship. The relationship of a ficiary. The burden of proof is on the
spouse and child as defined in sections petitioner to establish by a preponder-
101(a)(35) and 101(b) (1)(A), (B), (C), (D), ance of the evidence that any person on
or (E), respectively, of the Act, must whose behalf he/she is making a re-
have existed prior to the refugee’s ad- quest under this section is an eligible
mission to the United States and must spouse or unmarried, minor child. Evi-
continue to exist at the time of filing dence to establish the claimed rela-
for accompanying or following-to-join tionship for a spouse or unmarried,
benefits and at the time of the spouse minor child as set forth in 8 CFR part
or child’s subsequent admission to the 204 must be submitted with the request
United States. If the refugee proves for accompanying or following-to-join
that the refugee is the parent of a child benefits. Where possible this will con-
who was born after the refugee’s admis- sist of the documents specified in
sion as a refugee, but who was in utero § 204.2(a (1)(i)(B), (a)(1)(iii)(B), (a)(2),
on the date of the refugee’s admission (d)(2), and (d)(5) of this chapter. In ad-
as a refugee, the child shall be eligible dition, a recent photograph of each de-
to accompany or follow-to-join the ref- rivative must accompany the Form I–
ugee. The child’s mother, if not the 730. The photograph must clearly iden-
principal refugee, shall not be eligible tify the derivative, and will be made
to accompany or follow-to-join the part of the derivative’s immigration
principal refugee unless the child’s record for identification purposes.
mother was the principal refugee’s (f) Approvals—(1) Spouse or child in the
spouse on the date of the principal ref- United States. When a spouse or child of
ugee’s admission as a refugee. a refugee is in the United States and
(d) Filing. A refugee may request ac- the Form I–730 is approved, the Service
companying or following-to-join bene- will notify the refugee of such approval
fits for his/her spouse and unmarried, on Form I–797, Notice of Action. Em-
minor child(ren) (whether the spouse ployment will be authorized incident to
and children are in or outside the status.
United States) by filing a separate (2) Spouse or child outside the United
Form I–730 Refugee/Asylee Relative Pe- States. When a spouse or child of a ref-
tition, for each qualifying family mem- ugee is outside the United States and
ber with the designated Service office. the Form I–730 is approved, the Service
The Form I–730 may only be filed by will notify the refugee of such approval
the principal refugee. Family members on Form I–797. The approved Form I–
who derived their refugee status are 730 will be sent by the Service to the
not eligible to file the Form I–730 on Department of State for forwarding to
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Department of Homeland Security Pt. 208
(3) Benefits. The approval of the Form shall notify the alien in writing of the
I–730 shall remain valid for the dura- Service’s intent to terminate the
tion of the relationship to the refugee alien’s refugee status. The alien shall
and, in the case of a child, while the have 30 days from the date notice is
child is under 21 years of age and un- served upon him/her or, delivered to
married, provided also that the prin- his/her last known address, to present
cipal’s status has not been revoked. written or oral evidence to show why
However, the approved Form I–730 will the alien’s refugee status should not be
cease to confer immigration benefits terminated. There is no appeal under
after it has been used by the bene- this chapter from the termination of
ficiary for admission to the United refugee status by the district director.
States as a derivative of a refugee. To Upon termination of refugee status,
demonstrate employment authoriza- the district director shall process the
tion, the Service will issue a Form I–94, alien under sections 235, 240, and 241 of
Arrival-Departure Record, which also the Act.
reflects the derivative’s current status [46 FR 45118, Sept. 10, 1981, as amended at 62
as a refugee, or the derivative may FR 10337, Mar. 6, 1997. Redesignated at 63 FR
apply under § 274a.12(a) of this chapter, 3795, Jan. 27, 1998]
using Form I–765, Application for Em-
ployment Authorization, and a copy of PART 208—PROCEDURES FOR ASY-
the Form I–797.
(g) Denials. If the spouse or child of a
LUM AND WITHHOLDING OF RE-
refugee is found to be ineligible for de- MOVAL
rivative status, a written notice ex-
plaining the basis for denial shall be Subpart A—Asylum and Withholding of
forwarded to the principal refugee. Removal
There shall be no appeal from this deci- Sec.
sion. However, the denial shall be with- 208.1 General.
out prejudice to the consideration of a 208.2 Jurisdiction.
new petition or motion to reopen the 208.3 Form of application.
refugee or asylee relative petition pro- 208.4 Filing the application.
208.5 Special duties toward aliens in cus-
ceeding, if the refugee establishes eligi- tody of DHS.
bility for the accompanying or fol- 208.6 Disclosure to third parties.
lowing-to-join benefits contained in 208.7 Employment authorization.
this part. 208.8 Limitations on travel outside the
United States.
[63 FR 3795, Jan. 27, 1998] 208.9 Procedure for interview before an asy-
lum officer.
§ 207.8 Physical presence in the United 208.10 Failure to appear at an interview be-
States. fore an asylum officer or failure to follow
For the purpose of adjustment of sta- requirements for fingerprint processing.
tus under section 209(a)(1) of the Act, 208.11 Comments from the Department of
the required one year physical presence State.
208.12 Reliance on information compiled by
of the applicant in the United States is other sources.
computed from the date the applicant 208.13 Establishing asylum eligibility.
entered the United States as a refugee. 208.14 Approval, denial, referral, or dis-
missal of application.
[46 FR 45118, Sept. 10, 1981. Redesignated at
208.15 Definition of ‘‘firm resettlement.’’
63 FR 3795, Jan. 27, 1998]
208.16 Withholding of removal under section
241(b)(3)(B) of the Act and withholding of
§ 207.9 Termination of refugee status.
removal under the Convention Against
The refugee status of any alien (and Torture.
of the spouse or child of the alien) ad- 208.17 Deferral of removal under the Con-
mitted to the United States under sec- vention Against Torture.
tion 207 of the Act shall be terminated 208.18 Implementation of the Convention
Against Torture.
by any district director in whose dis-
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208.19 Decisions.
trict the alien is found if the alien was 208.20 Determining if an asylum application
not a refugee within the meaning of is frivolous.
section 101(a)(42) of the Act at the time 208.21 Admission of the asylee’s spouse and
of admission. The district director children.
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§ 208.1 8 CFR Ch. I (1–1–10 Edition)
208.22 Effect on exclusion, deportation, and or reconsider must meet the require-
removal proceedings. ments of sections 240(c)(6) and (c)(7) of
208.23 Restoration of status. the Act, and 8 CFR parts 3 and 103,
208.24 Termination of asylum or with-
holding of removal or deportation.
where applicable.
208.25–208.29 [Reserved] (2) Commonwealth of the Northern Mar-
iana Islands. The provisions of this sub-
Subpart B—Credible Fear of Persecution part A shall not apply prior to January
1, 2015, to an alien physically present in
208.30 Credible fear determinations involv- or arriving in the Commonwealth of
ing stowaways and applicants for admis-
sion found inadmissible pursuant to sec-
the Northern Mariana Islands seeking
tion 212(a)(6)(C) or 212(a)(7) of the Act. to apply for asylum. No application for
208.31 Reasonable fear of persecution or tor- asylum may be filed prior to January 1,
ture determinations involving aliens or- 2015, pursuant to section 208 of the Act
dered removed under section 238(b) of the by an alien physically present in or ar-
Act and aliens whose removal is rein- riving in the Commonwealth of the
stated under section 241(a)(5) of the Act. Northern Mariana Islands. Effective on
AUTHORITY: 8 U.S.C. 1101, 1103, 1158, 1226, the transition program effective date,
1252, 1282; Title VII of Public Law 110–229; 8 the provisions of this subpart A shall
CFR part 2. apply to aliens physically present in or
SOURCE: 62 FR 10337, Mar. 6, 1997, unless arriving in the CNMI with respect to
otherwise noted. withholding of removal under section
241(b)(3) of the Act and withholding and
Subpart A—Asylum and deferral of removal under the Conven-
Withholding of Removal tion Against Torture.
(b) Training of asylum officers. The Di-
§ 208.1 General. rector of International Affairs shall en-
sure that asylum officers receive spe-
(a) Applicability. (1) General. Unless
cial training in international human
otherwise provided in this chapter I,
rights law, nonadversarial interview
this subpart A shall apply to all appli-
techniques, and other relevant national
cations for asylum under section 208 of
and international refugee laws and
the Act or for withholding of deporta-
principles. The Director of Inter-
tion or withholding of removal under
national Affairs shall also, in coopera-
section 241(b)(3) of the Act, or under
tion with the Department of State and
the Convention Against Torture,
other appropriate sources, compile and
whether before an asylum officer or an
immigration judge, regardless of the disseminate to asylum officers infor-
date of filing. For purposes of this mation concerning the persecution of
chapter I, withholding of removal shall persons in other countries on account
also mean withholding of deportation of race, religion, nationality, member-
under section 243(h) of the Act, as it ship in a particular social group, or po-
appeared prior to April 1, 1997, except litical opinion, torture of persons in
as provided in § 208.16(d). Such applica- other countries, and other information
tions are referred to as ‘‘asylum appli- relevant to asylum determinations,
cations.’’ The provisions of this part and shall maintain a documentation
208 shall not affect the finality or va- center with information on human
lidity of any decision made by a dis- rights conditions.
trict director, an immigration judge, or [64 FR 8487, Feb. 19, 1999, as amended at 74
the Board of Immigration Appeals in FR 55736, Oct. 28, 2009]
any such case prior to April 1, 1997. No
asylum application that was filed with § 208.2 Jurisdiction
a district director, asylum officer, or (a) Office of International Affairs. Ex-
immigration judge prior to April 1, cept as provided in paragraph (b) or (c)
1997, may be reopened or otherwise re- of this section, the Office of Inter-
considered under the provisions of this national Affairs shall have initial ju-
part 208 except by motion granted in risdiction over an asylum application
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Department of Homeland Security § 208.2
jurisdiction over credible fear deter- cant for admission to the Common-
minations under § 208.30 and reasonable wealth of the Northern Mariana Is-
fear determinations under § 208.31. lands, then he or she shall not be eligi-
(b) Jurisdiction of Immigration Court in ble for asylum prior to January 1, 2015;
general. Immigration judges shall have (iv) An alien who was admitted to the
exclusive jurisdiction over asylum ap- United States pursuant to the Visa
plications filed by an alien who has Waiver Program under section 217 of
been served a Form I–221, Order to the Act and has remained longer than
Show Cause; Form I–122, Notice to Ap- authorized or has otherwise violated
plicant for Admission Detained for a his or her immigration status, except
Hearing before an Immigration Judge; that if such an alien was admitted to
or Form I–862, Notice to Appear, after the Commonwealth of the Northern
the charging document has been filed Mariana Islands, then he or she shall
with the Immigration Court. Immigra- not be eligible for asylum in the Com-
tion judges shall also have jurisdiction monwealth of the Northern Mariana Is-
over any asylum applications filed lands prior to January 1, 2015;
prior to April 1, 1997, by alien crew- (v) An alien who has been ordered re-
members who have remained in the moved under § 235(c) of the Act, as de-
United States longer than authorized, scribed in § 235.8(a) of this chapter (ap-
by applicants for admission under the plicable only in the event that the
Visa Waiver Pilot Program, and by alien is referred for proceedings under
aliens who have been admitted to the this paragraph by the Regional Direc-
United States under the Visa Waiver tor pursuant to section 235.8(b)(2)(ii) of
Pilot Program. Immigration judges this chapter);
shall also have the authority to review (vi) An alien who is an applicant for
reasonable fear determinations re- admission, or has been admitted, as an
ferred to the Immigration Court under alien classified under section
§ 208.31, and credible fear determina- 101(a)(15)(S) of the Act (applicable only
tions referred to the Immigration in the event that the alien is referred
Court under § 208.30. for proceedings under this paragraph
(c) Certain aliens not entitled to pro- by the district director);
ceedings under section 240 of the Act— (vii) An alien who is an applicant for
(1)Asylum applications and withholding admission to Guam or the Common-
of removal applications only. After Form wealth of the Northern Mariana Islands
I–863, Notice of Referral to Immigra- pursuant to the Guam-CNMI Visa
tion Judge, has been filed with the Im- Waiver Program under section 212(l) of
migration Court, an immigration judge the Act, except that if such an alien is
shall have exclusive jurisdiction over an applicant for admission to the Com-
any asylum application filed on or monwealth of the Northern Mariana Is-
after April 1, 1997, by: lands, then he or she shall not be eligi-
(i) An alien crewmember who: ble for asylum prior to January 1, 2015;
(A) Is an applicant for a landing per- or
mit; (viii) An alien who was admitted to
(B) Has been refused permission to Guam or the Commonwealth of the
land under section 252 of the Act; or Northern Mariana Islands pursuant to
(C) On or after April 1, 1997, was the Guam-CNMI Visa Waiver Program
granted permission to land under sec- under section 212(l) of the Act and has
tion 252 of the Act, regardless of wheth- remained longer than authorized or has
er the alien has remained in the United otherwise violated his or her immigra-
States longer than authorized; tion status, except that if such an alien
(ii) An alien stowaway who has been was admitted to the Commonwealth of
found to have a credible fear of perse- the Northern Mariana Islands, then he
cution or torture pursuant to the pro- or she shall not be eligible for asylum
cedures set forth in subpart B of this in the Commonwealth of the Northern
part; Mariana Islands prior to January 1,
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§ 208.3 8 CFR Ch. I (1–1–10 Edition)
filed with the Immigration Court, an (A) The alien did not receive the no-
immigration judge shall have exclusive tice;
jurisdiction over any application for (B) The alien was in Federal or State
withholding of removal filed by: custody and the failure to appear was
(i) An alien who is the subject of a re- through no fault of the alien; or
instated removal order pursuant to sec- (C) ‘‘Exceptional circumstances,’’ as
tion 241(a)(5) of the Act; or defined in section 240(e)(1) of the Act,
(ii) An alien who has been issued an caused the failure to appear.
administrative removal order pursuant (iii) Relief. The filing of a motion to
to section 238 of the Act as an alien reopen shall not stay removal of the
convicted of committing an aggravated alien unless the immigration judge
felony. issues an order granting a stay pending
(3) Rules of procedure—(i)General. Ex- disposition of the motion. An alien who
cept as provided in this section, pro- fails to appear for a proceeding under
ceedings falling under the jurisdiction this section shall not be eligible for re-
of the immigration judge pursuant to lief under section 240A, 240B, 245, 248, or
paragraph (c)(1) or (c)(2) of this section 249 of the Act for a period of 10 years
shall be conducted in accordance with after the date of the denial, unless the
the same rules of procedure as pro- applicant can show exceptional cir-
ceedings conducted under 8 CFR part cumstances resulted in his or her fail-
240, subpart A. The scope of review in ure to appear.
proceedings conducted pursuant to
paragraph (c)(1) of this section shall be [65 FR 76130, Dec. 6, 2000, as amended at 74
limited to a determination of whether FR 55736, Oct. 28, 2009]
the alien is eligible for asylum or with-
§ 208.3 Form of application.
holding or deferral of removal, and
whether asylum shall be granted in the (a) An asylum applicant must file
exercise of discretion. The scope of re- Form I–589, Application for Asylum
view in proceedings conducted pursu- and for Withholding of Removal, to-
ant to paragraph (c)(2) of this section gether with any additional supporting
shall be limited to a determination of evidence in accordance with the in-
whether the alien is eligible for with- structions on the form. The applicant’s
holding or deferral of removal. During spouse and children shall be listed on
such proceedings, all parties are pro- the application and may be included in
hibited from raising or considering any the request for asylum if they are in
other issues, including but not limited the United States. One additional copy
to issues of admissibility, deport- of the principal applicant’s Form I–589
ability, eligibility for waivers, and eli- must be submitted for each dependent
gibility for any other form of relief. included in the principal’s application.
(ii) Notice of hearing procedures and in- (b) An asylum application shall be
absentia decisions. The alien will be pro- deemed to constitute at the same time
vided with notice of the time and place an application for withholding of re-
of the proceeding. The request for asy- moval, unless adjudicated in deporta-
lum and withholding of removal sub- tion or exclusion proceedings com-
mitted by an alien who fails to appear menced prior to April 1, 1997. In such
for the hearing shall be denied. The de- instances, the asylum application shall
nial of asylum and withholding of re- be deemed to constitute an application
moval for failure to appear may be re- for withholding of deportation under
opened only upon a motion filed with section 243(h) of the Act, as that sec-
the immigration judge with jurisdic- tion existed prior to April 1, 1997.
tion over the case. Only one motion to Where a determination is made that an
reopen may be filed, and it must be applicant is ineligible to apply for asy-
filed within 90 days, unless the alien es- lum under section 208(a)(2) of the Act,
tablishes that he or she did not receive an asylum application shall be con-
notice of the hearing date or was in strued as an application for with-
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Department of Homeland Security § 208.4
ineligible for any benefits under the the period shall run until the end of
Act pursuant to § 208.20. the next day that is not a Saturday,
[62 FR 10337, Mar. 6, 1997, as amended at 65 Sunday, or legal holiday. For the pur-
FR 76131, Dec. 6, 2000] pose of making determinations under
159
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§ 208.4 8 CFR Ch. I (1–1–10 Edition)
section 208(a)(2)(B) of the Act only, an (A) Changes in conditions in the ap-
application is considered to have been plicant’s country of nationality or, if
filed on the date it is received by the the applicant is stateless, country of
Service, pursuant to § 103.2(a)(7) of this last habitual residence;
chapter. In a case in which the applica- (B) Changes in the applicant’s cir-
tion has not been received by the Serv- cumstances that materially affect the
ice within 1 year from the applicant’s applicant’s eligibility for asylum, in-
date of entry into the United States, cluding changes in applicable U.S. law
but the applicant provides clear and and activities the applicant becomes
convincing documentary evidence of involved in outside the country of
mailing the application within the 1- feared persecution that place the appli-
year period, the mailing date shall be cant at risk; or
considered the filing date. For cases (C) In the case of an alien who had
before the Immigration Court in ac- previously been included as a depend-
cordance with § 3.13 of this chapter, the ent in another alien’s pending asylum
application is considered to have been application, the loss of the spousal or
filed on the date it is received by the parent-child relationship to the prin-
Immigration Court. For cases before cipal applicant through marriage, di-
the Board of Immigration Appeals, the vorce, death, or attainment of age 21.
application is considered to have been (ii) The applicant shall file an asy-
filed on the date it is received by the lum application within a reasonable
Board. In the case of an application period given those ‘‘changed cir-
cumstances.’’ If the applicant can es-
that appears to have been filed more
tablish that he or she did not become
than a year after the applicant arrived
aware of the changed circumstances
in the United States, the asylum offi-
until after they occurred, such delayed
cer, the immigration judge, or the
awareness shall be taken into account
Board will determine whether the ap-
in determining what constitutes a
plicant qualifies for an exception to
‘‘reasonable period.’’
the deadline. For aliens present in or
(5) The term ‘‘extraordinary cir-
arriving in the Commonwealth of the
cumstances’’ in section 208(a)(2)(D) of
Northern Mariana Islands, the 1-year
the Act shall refer to events or factors
period shall be calculated from either
directly related to the failure to meet
January 1, 2015, or from the date of the the 1-year deadline. Such cir-
alien’s last arrival in the United States cumstances may excuse the failure to
(including the Commonwealth of the file within the 1-year period as long as
Northern Mariana Islands), whichever the alien filed the application within a
is later. No period of physical presence reasonable period given those cir-
in the Commonwealth of the Northern cumstances. The burden of proof is on
Mariana Islands prior to January 1, the applicant to establish to the satis-
2015, shall count toward the 1-year pe- faction of the asylum officer, the im-
riod. After November 28, 2009, any trav- migration judge, or the Board of Immi-
el to the Commonwealth of the North- gration Appeals that the circumstances
ern Mariana Islands from any other were not intentionally created by the
State shall not re-start the calculation alien through his or her own action or
of the 1-year period. inaction, that those circumstances
(3) Prior denial of application. For pur- were directly related to the alien’s fail-
poses of section 208(a)(2)(C) of the Act, ure to file the application within the 1-
an asylum application has not been de- year period, and that the delay was
nied unless denied by an immigration reasonable under the circumstances.
judge or the Board of Immigration Ap- Those circumstances may include but
peals. are not limited to:
(4) Changed circumstances. (i) The (i) Serious illness or mental or phys-
term ‘‘changed circumstances’’ in sec- ical disability, including any effects of
tion 208(a)(2)(D) of the Act shall refer persecution or violent harm suffered in
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to circumstances materially affecting the past, during the 1-year period after
the applicant’s eligibility for asylum. arrival;
They may include, but are not limited (ii) Legal disability (e.g., the appli-
to: cant was an unaccompanied minor or
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Department of Homeland Security § 208.5
(c) Amending an application after fil- 208 of the Act by an alien physically
ing. Upon request of the alien and as a present in or arriving in the Common-
matter of discretion, the asylum offi- wealth of the Northern Mariana Is-
cer or immigration judge having juris- lands.
161
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§ 208.6 8 CFR Ch. I (1–1–10 Edition)
(b) Certain aliens aboard vessels. (1) If paroled in accordance with § 212.5 of
an alien crewmember or alien stow- this chapter. However, pending the
away on board a vessel or other con- credible fear determination, parole of
veyance alleges, claims, or otherwise an alien stowaway may be permitted
makes known to an immigration in- only when the Attorney General deter-
spector or other official making an ex- mines, in the exercise of discretion,
amination on the conveyance that he that parole is required to meet a med-
or she is unable or unwilling to return ical emergency or is necessary for a le-
to his or her country of nationality or gitimate law enforcement objective.
last habitual residence (if not a na- (c) Exception to prohibition on removal.
tional of any country) because of perse- A motion to reopen or an order to re-
cution or a fear of persecution in that mand accompanied by an asylum appli-
country on account of race, religion, cation pursuant to § 208.4(b)(3)(iii) shall
nationality, membership in a par- not stay execution of a final exclusion,
ticular social group, or political opin- deportation, or removal order unless
ion, or if the alien expresses a fear of such stay is specifically granted by the
torture upon return to that country, Board of Immigration Appeals or the
the alien shall be promptly removed immigration judge having jurisdiction
from the conveyance. If the alien over the motion.
makes such fear known to an official
while off such conveyance, the alien [62 FR 10337, Mar. 6, 1997, as amended at 64
FR 8488, Feb. 19, 1999; 65 FR 76132, Dec. 6,
shall not be returned to the convey-
2000; 74 FR 26937, June 5, 2009; 74 FR 55737,
ance but shall be retained in or trans- Oct. 28, 2009]
ferred to the custody of the Service.
(i) An alien stowaway will be referred § 208.6 Disclosure to third parties.
to an asylum officer for a credible fear
determination under § 208.30. (a) Information contained in or per-
(ii) An alien crewmember shall be taining to any asylum application,
provided the appropriate application records pertaining to any credible fear
forms and information required by sec- determination conducted pursuant to
tion 208(d)(4) of the Act and may then § 208.30, and records pertaining to any
have 10 days within which to submit an reasonable fear determination con-
asylum application in accordance with ducted pursuant to § 208.31, shall not be
the instructions on the form. The DHS disclosed without the written consent
office may extend the 10-day filing pe- of the applicant, except as permitted
riod for good cause. Once the applica- by this section or at the discretion of
tion has been filed, the DHS office, pur- the Attorney General.
suant to § 208.4(b), shall serve Form I– (b) The confidentiality of other
863 on the alien and immediately for- records kept by the Service and the Ex-
ward any such application to the ap- ecutive Office for Immigration Review
propriate Immigration Court with a that indicate that a specific alien has
copy of the Form I–863 being filed with applied for asylum, received a credible
that court. fear or reasonable fear interview, or re-
(iii) An alien crewmember physically ceived a credible fear or reasonable
present in or arriving in the Common- fear review shall also be protected from
wealth of the Northern Mariana Islands disclosure. The Service will coordinate
can request withholding of removal with the Department of State to ensure
pursuant to section 241(b)(3) of the Act that the confidentiality of those
and withholding of removal under the records is maintained if they are trans-
Convention Against Torture. However, mitted to Department of State offices
such an alien crewmember is not eligi- in other countries.
ble to request asylum pursuant to sec- (c) This section shall not apply to
tion 208 of the Act prior to January 1, any disclosure to:
2015. (1) Any United States Government
(2) Pending adjudication of the appli- official or contractor having a need to
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Department of Homeland Security § 208.7
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§ 208.8 8 CFR Ch. I (1–1–10 Edition)
peals has dismissed the alien’s appeal may have counsel or a representative
of a denial of asylum, or sustained an present, may present witnesses, and
appeal by the Service of a grant of asy- may submit affidavits of witnesses and
lum, a copy of the petition for judicial other evidence.
164
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Department of Homeland Security § 208.10
(c) The asylum officer shall have au- considered by the asylum officer shall
thority to administer oaths, verify the comprise the record.
identity of the applicant (including (g) An applicant unable to proceed
through the use of electronic means), with the interview in English must
verify the identity of any interpreter, provide, at no expense to the Service, a
present and receive evidence, and ques- competent interpreter fluent in both
tion the applicant and any witnesses. English and the applicant’s native lan-
(d) Upon completion of the interview, guage or any other language in which
the applicant or the applicant’s rep- the applicant is fluent. The interpreter
resentative shall have an opportunity must be at least 18 years of age. Nei-
to make a statement or comment on
ther the applicant’s attorney or rep-
the evidence presented. The asylum of-
resentative of record, a witness testi-
ficer may, in his or her discretion,
limit the length of such statement or fying on the applicant’s behalf, nor a
comment and may require its submis- representative or employee of the ap-
sion in writing. Upon completion of the plicant’s country of nationality, or if
interview, the applicant shall be in- stateless, country of last habitual resi-
formed that he or she must appear in dence, may serve as the applicant’s in-
person to receive and to acknowledge terpreter. Failure without good cause
receipt of the decision of the asylum to comply with this paragraph may be
officer and any other accompanying considered a failure to appear for the
material at a time and place des- interview for purposes of § 208.10.
ignated by the asylum officer, except
[62 FR 10337, Mar. 6, 1997, as amended at 65
as otherwise provided by the asylum FR 76133, Dec. 6, 2000]
officer. An applicant’s failure to appear
to receive and acknowledge receipt of § 208.10 Failure to appear at an inter-
the decision shall be treated as delay view before an asylum officer or
caused by the applicant for purposes of failure to follow requirements for
§ 208.7(a)(3) and shall extend the period fingerprint processing.
within which the applicant may not
Failure to appear for a scheduled
apply for employment authorization by
interview without prior authorization
the number of days until the applicant
does appear to receive and acknowl- may result in dismissal of the applica-
edge receipt of the decision or until the tion or waiver of the right to an inter-
applicant appears before an immigra- view. Failure to comply with finger-
tion judge in response to the issuance print processing requirements without
of a charging document under good cause may result in dismissal of
§ 208.14(c). the application or waiver of the right
(e) The asylum officer shall consider to an adjudication by an asylum offi-
evidence submitted by the applicant cer. Failure to appear shall be excused
together with his or her asylum appli- if the notice of the interview or finger-
cation, as well as any evidence sub- print appointment was not mailed to
mitted by the applicant before or at the applicant’s current address and
the interview. As a matter of discre- such address had been provided to the
tion, the asylum officer may grant the Office of International Affairs by the
applicant a brief extension of time fol- applicant prior to the date of mailing
lowing an interview during which the in accordance with section 265 of the
applicant may submit additional evi- Act and regulations promulgated
dence. Any such extension shall extend thereunder, unless the asylum officer
by an equivalent time the periods spec- determines that the applicant received
ified by § 208.7 for the filing and adju- reasonable notice of the interview or
dication of any employment authoriza- fingerprinting appointment. Failure to
tion application. appear at the interview or fingerprint
(f) The asylum application, all sup- appointment will be excused if the ap-
porting information provided by the
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§ 208.11 8 CFR Ch. I (1–1–10 Edition)
§ 208.11 Comments from the Depart- of the Service, the Department of Jus-
ment of State. tice, or the Department of State. Per-
(a) U.S. Citizenship and Immigration sons may continue to seek documents
Services (USCIS) may request, at its available through a Freedom of Infor-
discretion, specific comments from the mation Act (FOIA) request pursuant to
Department of State regarding indi- 8 CFR part 103.
vidual cases or types of claims under [62 FR 10337, Mar. 6, 1997, as amended at 64
consideration, or such other informa- FR 8488, Feb. 19, 1999; 65 FR 76133, Dec. 6,
tion as USCIS deems appropriate. 2000]
(b) With respect to any asylum appli-
§ 208.13 Establishing asylum eligi-
cation, the Department of State may bility.
provide, at its discretion, to USCIS:
(1) Detailed country conditions infor- (a) Burden of proof. The burden of
mation relevant to eligibility for asy- proof is on the applicant for asylum to
lum or withholding of removal; establish that he or she is a refugee as
(2) An assessment of the accuracy of defined in section 101(a)(42) of the Act.
the applicant’s assertions about condi- The testimony of the applicant, if cred-
tions in his or her country of nation- ible, may be sufficient to sustain the
ality or habitual residence and his or burden of proof without corroboration.
her particular situation; The fact that the applicant previously
(3) Information about whether per- established a credible fear of persecu-
sons who are similarly situated to the tion for purposes of section 235(b)(1)(B)
applicant are persecuted or tortured in of the Act does not relieve the alien of
the applicant’s country of nationality the additional burden of establishing
or habitual residence and the frequency eligibility for asylum.
of such persecution or torture; or (b) Eligibility. The applicant may
(4) Such other information as it qualify as a refugee either because he
deems relevant. or she has suffered past persecution or
because he or she has a well-founded
(c) Any comments received pursuant
fear of future persecution.
to paragraph (b) of this section shall be
(1) Past persecution. An applicant
made part of the record. Unless the
shall be found to be a refugee on the
comments are classified under the ap-
basis of past persecution if the appli-
plicable Executive Order, the applicant
cant can establish that he or she has
shall be provided an opportunity to re-
suffered persecution in the past in the
view and respond to such comments
applicant’s country of nationality or, if
prior to the issuance of any decision to
stateless, in his or her country of last
deny the application.
habitual residence, on account of race,
[74 FR 15369, Apr. 6, 2009] religion, nationality, membership in a
particular social group, or political
§ 208.12 Reliance on information com- opinion, and is unable or unwilling to
piled by other sources. return to, or avail himself or herself of
(a) In deciding an asylum applica- the protection of, that country owing
tion, or in deciding whether the alien to such persecution. An applicant who
has a credible fear of persecution or has been found to have established
torture pursuant to § 208.30 of this part, such past persecution shall also be pre-
or a reasonable fear of persecution or sumed to have a well-founded fear of
torture pursuant to § 208.31, the asylum persecution on the basis of the original
officer may rely on material provided claim. That presumption may be rebut-
by the Department of State, the Office ted if an asylum officer or immigration
of International Affairs, other Service judge makes one of the findings de-
offices, or other credible sources, such scribed in paragraph (b)(1)(i) of this
as international organizations, private section. If the applicant’s fear of future
voluntary agencies, news organiza- persecution is unrelated to the past
tions, or academic institutions. persecution, the applicant bears the
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(b) Nothing in this part shall be con- burden of establishing that the fear is
strued to entitle the applicant to con- well-founded.
duct discovery directed toward the (i) Discretionary referral or denial. Ex-
records, officers, agents, or employees cept as provided in paragraph (b)(1)(iii)
166
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Department of Homeland Security § 208.13
(A) The applicant has a fear of perse- straints, such as age, gender, health,
cution in his or her country of nation- and social and familial ties. Those fac-
ality or, if stateless, in his or her coun- tors may, or may not, be relevant, de-
try of last habitual residence, on ac- pending on all the circumstances of the
167
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§ 208.14 8 CFR Ch. I (1–1–10 Edition)
case, and are not necessarily deter- of any person on account of race, reli-
minative of whether it would be rea- gion, nationality, membership in a par-
sonable for the applicant to relocate. ticular social group, or political opin-
(i) In cases in which the applicant ion.
has not established past persecution, (ii) If the evidence indicates that one
the applicant shall bear the burden of of the above grounds apply to the ap-
establishing that it would not be rea- plicant, he or she shall have the burden
sonable for him or her to relocate, un- of proving by a preponderance of the
less the persecution is by a government evidence that he or she did not so act.
or is government-sponsored. (F) Is described within section
(ii) In cases in which the persecutor 212(a)(3)(B)(i)(I),(II), and (III) of the Act
is a government or is government-spon- as it existed prior to April 1, 1997, and
sored, or the applicant has established as amended by the Anti-terrorist and
persecution in the past, it shall be pre- Effective Death Penalty Act of 1996
sumed that internal relocation would
(AEDPA), unless it is determined that
not be reasonable, unless the Service
there are no reasonable grounds to be-
establishes by a preponderance of the
lieve that the individual is a danger to
evidence that, under all the cir-
the security of the United States.
cumstances, it would be reasonable for
the applicant to relocate. [62 FR 10337, Mar. 6, 1997, as amended at 64
(c) Mandatory denials—(1) Applications FR 8488, Feb. 19, 1999; 65 FR 76133, Dec. 6,
filed on or after April 1, 1997. For appli- 2000]
cations filed on or after April 1, 1997,
an applicant shall not qualify for asy- § 208.14 Approval, denial, referral, or
lum if section 208(a)(2) or 208(b)(2) of dismissal of application.
the Act applies to the applicant. If the (a) By an immigration judge. Unless
applicant is found to be ineligible for otherwise prohibited in § 208.13(c), an
asylum under either section 208(a)(2) or immigration judge may grant or deny
208(b)(2) of the Act, the applicant shall asylum in the exercise of discretion to
be considered for eligibility for with- an applicant who qualifies as a refugee
holding of removal under section under section 101(a)(42) of the Act.
241(b)(3) of the Act. The applicant shall (b) Approval by an asylum officer. In
also be considered for eligibility for any case within the jurisdiction of the
withholding of removal under the Con- Office of International Affairs, unless
vention Against Torture if the appli- otherwise prohibited in § 208.13(c), an
cant requests such consideration or if asylum officer may grant, in the exer-
the evidence presented by the alien in- cise of his or her discretion, asylum to
dicates that the alien may be tortured an applicant who qualifies as a refugee
in the country of removal. under section 101(a)(42) of the Act, and
(2) Applications filed before April 1,
whose identity has been checked pursu-
1997. (i) An immigration judge or asy-
ant to section 208(d)(5)(A)(i) of the Act.
lum officer shall not grant asylum to
any applicant who filed his or her ap- (c) Denial, referral, or dismissal by an
plication before April 1, 1997, if the asylum officer. If the asylum officer
alien: does not grant asylum to an applicant
(A) Having been convicted by a final after an interview conducted in accord-
judgment of a particularly serious ance with § 208.9, or if, as provided in
crime in the United States, constitutes § 208.10, the applicant is deemed to have
a danger to the community; waived his or her right to an interview
(B) Has been firmly resettled within or an adjudication by an asylum offi-
the meaning of § 208.15; cer, the asylum officer shall deny,
(C) Can reasonably be regarded as a refer, or dismiss the application, as fol-
danger to the security of the United lows:
States; (1) Inadmissible or deportable aliens.
(D) Has been convicted of an aggra- Except as provided in paragraph (c)(4)
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Department of Homeland Security § 208.14
officer does not intend to lodge any ad- to lawful permanent resident, the Serv-
ditional charges of inadmissibility, the ice may provide written notice to the
asylum officer shall proceed in accord- applicant that his or her asylum appli-
ance with § 235.3(b) of this chapter. If cation will be presumed abandoned and
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§ 208.15 8 CFR Ch. I (1–1–10 Edition)
170
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Department of Homeland Security § 208.16
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§ 208.16 8 CFR Ch. I (1–1–10 Edition)
section, the alien’s removal shall be de- ony has been convicted of a particu-
ferred under § 208.17(a). larly serious crime. Except in the cases
(d) Approval or denial of application— specified in this paragraph, the grounds
(1) General. Subject to paragraphs (d)(2) for denial of withholding of deportation
172
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Department of Homeland Security § 208.17
in section 243(h)(2) of the Act as it ap- (ii) Will not necessarily result in the
peared prior to April 1, 1997, shall be alien being released from the custody
deemed to comply with the Protocol of the Service if the alien is subject to
Relating to the Status of Refugees, such custody;
Jan. 31, 1967, T.I.A.S. No. 6577. (iii) Is effective only until termi-
(e) Reconsideration of discretionary de- nated; and
nial of asylum. In the event that an ap- (iv) Is subject to review and termi-
plicant is denied asylum solely in the nation if the immigration judge deter-
exercise of discretion, and the appli- mines that it is not likely that the
cant is subsequently granted with- alien would be tortured in the country
holding of deportation or removal to which removal has been deferred, or
under this section, thereby effectively if the alien requests that deferral be
precluding admission of the applicant’s terminated.
spouse or minor children following to (2) The immigration judge shall also
join him or her, the denial of asylum inform the alien that removal has been
shall be reconsidered. Factors to be deferred only to the country in which
considered will include the reasons for it has been determined that the alien is
the denial and reasonable alternatives likely to be tortured, and that the
available to the applicant such as re- alien may be removed at any time to
unification with his or her spouse or another country where he or she is not
minor children in a third country. likely to be tortured.
(f) Removal to third country. Nothing (c) Detention of an alien granted defer-
in this section or § 208.17 shall prevent ral of removal under this section. Nothing
the Service from removing an alien to in this section shall alter the authority
a third country other than the country of the Service to detain an alien whose
to which removal has been withheld or removal has been deferred under this
deferred. section and who is otherwise subject to
detention. In the case of such an alien,
[62 FR 10337, Mar. 6, 1997, as amended at 64 decisions about the alien’s release shall
FR 8488, Feb. 19, 1999; 65 FR 76135, Dec. 6, be made according to part 241 of this
2000] chapter.
(d) Termination of deferral of removal.
§ 208.17 Deferral of removal under the
Convention Against Torture. (1) At any time while deferral of re-
moval is in effect, the INS District
(a) Grant of deferral of removal. An Counsel for the District with jurisdic-
alien who: has been ordered removed; tion over an alien whose removal has
has been found under § 208.16(c)(3) to be been deferred under paragraph (a) of
entitled to protection under the Con- this section may file a motion with the
vention Against Torture; and is subject Immigration Court having administra-
to the provisions for mandatory denial tive control pursuant to § 3.11 of this
of withholding of removal under chapter to schedule a hearing to con-
§ 208.16(d)(2) or (d)(3), shall be granted sider whether deferral of removal
deferral of removal to the country should be terminated. The Service mo-
where he or she is more likely than not tion shall be granted if it is accom-
to be tortured. panied by evidence that is relevant to
(b) Notice to alien. (1) After an immi- the possibility that the alien would be
gration judge orders an alien described tortured in the country to which re-
in paragraph (a) of this section re- moval has been deferred and that was
moved, the immigration judge shall in- not presented at the previous hearing.
form the alien that his or her removal The Service motion shall not be sub-
to the country where he or she is more ject to the requirements for reopening
likely than not to be tortured shall be in §§ 3.2 and 3.23 of this chapter.
deferred until such time as the deferral (2) The Immigration Court shall pro-
is terminated under this section. The vide notice to the alien and the Service
immigration judge shall inform the of the time, place, and date of the ter-
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alien that deferral of removal: mination hearing. Such notice shall in-
(i) Does not confer upon the alien any form the alien that the alien may sup-
lawful or permanent immigration sta- plement the information in his or her
tus in the United States; initial application for withholding of
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§ 208.18 8 CFR Ch. I (1–1–10 Edition)
removal under the Convention Against knowing and voluntary, the immigra-
Torture and shall provide that the tion judge shall terminate the order of
alien must submit any such supple- deferral and the alien may be removed.
mental information within 10 calendar (2) If necessary the immigration
days of service of such notice (or 13 cal- judge may calendar a hearing for the
endar days if service of such notice was sole purpose of determining whether
by mail). At the expiration of this 10 or the alien’s request is knowing and vol-
13 day period, the Immigration Court untary. If the immigration judge deter-
shall forward a copy of the original ap- mines that the alien’s request is know-
plication, and any supplemental infor- ing and voluntary, the order of deferral
mation the alien or the Service has shall be terminated. If the immigration
submitted, to the Department of State, judge determines that the alien’s re-
together with notice to the Depart- quest is not knowing and voluntary,
ment of State of the time, place and the alien’s request shall not serve as
date of the termination hearing. At its the basis for terminating the order of
option, the Department of State may deferral.
provide comments on the case, accord- (f) Termination pursuant to § 208.18(c).
ing to the provisions of § 208.11 of this At any time while deferral of removal
part. is in effect, the Attorney General may
(3) The immigration judge shall con- determine whether deferral should be
duct a hearing and make a de novo de- terminated based on diplomatic assur-
termination, based on the record of ances forwarded by the Secretary of
proceeding and initial application in State pursuant to the procedures in
addition to any new evidence sub- § 208.18(c).
mitted by the Service or the alien, as
to whether the alien is more likely [64 FR 8489, Feb. 19, 1999]
than not to be tortured in the country
§ 208.18 Implementation of the Con-
to which removal has been deferred. vention Against Torture.
This determination shall be made
under the standards for eligibility set (a) Definitions. The definitions in this
out in § 208.16(c). The burden is on the subsection incorporate the definition
alien to establish that it is more likely of torture contained in Article 1 of the
than not that he or she would be tor- Convention Against Torture, subject to
tured in the country to which removal the reservations, understandings, dec-
has been deferred. larations, and provisos contained in
(4) If the immigration judge deter- the United States Senate resolution of
mines that the alien is more likely ratification of the Convention.
than not to be tortured in the country (1) Torture is defined as any act by
to which removal has been deferred, which severe pain or suffering, whether
the order of deferral shall remain in physical or mental, is intentionally in-
place. If the immigration judge deter- flicted on a person for such purposes as
mines that the alien has not estab- obtaining from him or her or a third
lished that he or she is more likely person information or a confession,
than not to be tortured in the country punishing him or her for an act he or
to which removal has been deferred, she or a third person has committed or
the deferral of removal shall be termi- is suspected of having committed, or
nated and the alien may be removed to intimidating or coercing him or her or
that country. Appeal of the immigra- a third person, or for any reason based
tion judge’s decision shall lie to the on discrimination of any kind, when
Board. such pain or suffering is inflicted by or
(e) Termination at the request of the at the instigation of or with the con-
alien. (1) At any time while deferral of sent or acquiescence of a public official
removal is in effect, the alien may or other person acting in an official ca-
make a written request to the Immi- pacity.
gration Court having administrative (2) Torture is an extreme form of
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control pursuant to § 3.11 of this chap- cruel and inhuman treatment and does
ter to terminate the deferral order. If not include lesser forms of cruel, inhu-
satisfied on the basis of the written man or degrading treatment or punish-
submission that the alien’s request is ment that do not amount to torture.
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Department of Homeland Security § 208.18
(3) Torture does not include pain or considered for deferral of removal
suffering arising only from, inherent in under § 208.17(a).
or incidental to lawful sanctions. Law- (2) Aliens who were ordered removed, or
ful sanctions include judicially im- whose removal orders became final, before
posed sanctions and other enforcement March 22, 1999. An alien under a final
actions authorized by law, including order of deportation, exclusion, or re-
the death penalty, but do not include moval that became final prior to
sanctions that defeat the object and March 22, 1999 may move to reopen pro-
purpose of the Convention Against Tor- ceedings for the sole purpose of seeking
ture to prohibit torture. protection under § 208.16(c). Such mo-
(4) In order to constitute torture, tions shall be governed by §§ 3.23 and 3.2
mental pain or suffering must be pro- of this chapter, except that the time
longed mental harm caused by or re- and numerical limitations on motions
sulting from: to reopen shall not apply and the alien
(i) The intentional infliction or shall not be required to demonstrate
threatened infliction of severe physical that the evidence sought to be offered
pain or suffering; was unavailable and could not have
(ii) The administration or applica- been discovered or presented at the
tion, or threatened administration or former hearing. The motion to reopen
application, of mind altering sub- shall not be granted unless:
stances or other procedures calculated (i) The motion is filed within June 21,
to disrupt profoundly the senses or the 1999; and
personality; (ii) The evidence sought to be offered
(iii) The threat of imminent death; or establishes a prima facie case that the
(iv) The threat that another person applicant’s removal must be withheld
will imminently be subjected to death, or deferred under §§ 208.16(c) or
severe physical pain or suffering, or the 208.17(a).
administration or application of mind (3) Aliens who, on March 22, 1999, have
altering substances or other procedures requests pending with the Service for pro-
calculated to disrupt profoundly the tection under Article 3 of the Convention
sense or personality. Against Torture. (i) Except as otherwise
(5) In order to constitute torture, an provided, after March 22, 1999, the Serv-
act must be specifically intended to in- ice will not:
flict severe physical or mental pain or (A) Consider, under its pre-regulatory
suffering. An act that results in unan- administrative policy to ensure com-
ticipated or unintended severity of pliance with the Convention Against
pain and suffering is not torture. Torture, whether Article 3 of that Con-
(6) In order to constitute torture an vention prohibits the removal of an
act must be directed against a person alien to a particular country, or
in the offender’s custody or physical (B) Stay the removal of an alien
control. based on a request filed with the Serv-
(7) Acquiescence of a public official ice for protection under Article 3 of
requires that the public official, prior that Convention.
to the activity constituting torture, (ii) For each alien who, on or before
have awareness of such activity and March 22, 1999, filed a request with the
thereafter breach his or her legal re- Service for protection under Article 3
sponsibility to intervene to prevent of the Convention Against Torture, and
such activity. whose request has not been finally de-
(8) Noncompliance with applicable cided by the Service, the Service shall
legal procedural standards does not per provide written notice that, after
se constitute torture. March 22, 1999, consideration for pro-
(b) Applicability of §§ 208.16(c) and tection under Article 3 can be obtained
208.17(a)—(1) Aliens in proceedings on or only through the provisions of this
after March 22, 1999. An alien who is in rule.
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exclusion, deportation, or removal pro- (A) The notice shall inform an alien
ceedings on or after March 22, 1999 may who is under an order of removal issued
apply for withholding of removal under by EOIR that, in order to seek consid-
§ 208.16(c), and, if applicable, may be eration of a claim under §§ 208.16(c) or
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§ 208.18 8 CFR Ch. I (1–1–10 Edition)
208.17(a), such an alien must file a mo- March 22, 1999, the Service determined
tion to reopen with the immigration that an applicant cannot be removed
court or the Board of Immigration Ap- consistent with the Convention
peals. This notice shall be accompanied Against Torture, the alien shall be con-
by a stay of removal, effective until 30 sidered to have been granted with-
days after service of the notice on the holding of removal under § 208.16(c), un-
alien. A motion to reopen filed under less the alien is subject to mandatory
this paragraph for the limited purpose denial of withholding of removal under
of asserting a claim under §§ 208.16(c) or § 208.16(d)(2) or (d)(3), in which case the
208.17(a) shall not be subject to the re- alien will be considered to have been
quirements for reopening in §§ 3.2 and granted deferral of removal under
3.23 of this chapter. Such a motion 208.17(a). If, prior to March 22, 1999, the
shall be granted if it is accompanied by Service determined that an alien can
a copy of the notice described in para- be removed consistent with the Con-
graph (b)(3)(ii) or by other convincing vention Against Torture, the alien will
evidence that the alien had a request be considered to have been finally de-
pending with the Service for protection nied withholding of removal under
under Article 3 of the Convention § 208.16(c) and deferral of removal under
Against Torture on March 22, 1999. The § 208.17(a).
filing of such a motion shall extend the (c) Diplomatic assurances against tor-
stay of removal during the pendency of ture obtained by the Secretary of State.
the adjudication of this motion. (1) The Secretary of State may forward
(B) The notice shall inform an alien to the Attorney General assurances
who is under an administrative order of that the Secretary has obtained from
removal issued by the Service under the government of a specific country
section 238(b) of the Act or an exclu- that an alien would not be tortured
sion, deportation, or removal order re- there if the alien were removed to that
instated by the Service under section country.
241(a)(5) of the Act that the alien’s (2) If the Secretary of State forwards
claim to withholding of removal under assurances described in paragraph
§ 208.16(c) or deferral of removal under (c)(1) of this section to the Attorney
§ 208.17(a) will be considered under General for consideration by the Attor-
§ 208.31. ney General or her delegates under this
(C) The notice shall inform an alien paragraph, the Attorney General shall
who is under an administrative order of determine, in consultation with the
removal issued by the Service under Secretary of State, whether the assur-
section 235(c) of the Act that the ances are sufficiently reliable to allow
alien’s claim to protection under the the alien’s removal to that country
Convention Against Torture will be de- consistent with Article 3 of the Con-
cided by the Service as provided in vention Against Torture. The Attorney
§ 208.18(d) and 235.8(b)(4) and will not be General’s authority under this para-
considered under the provisions of this graph may be exercised by the Deputy
part relating to consideration or re- Attorney General or by the Commis-
view by an immigration judge, the sioner, Immigration and Naturaliza-
Board of Immigration Appeals, or an tion Service, but may not be further
asylum officer. delegated.
(4) Aliens whose claims to protection (3) Once assurances are provided
under the Convention Against Torture under paragraph (c)(2) of this section,
were finally decided by the Service prior the alien’s claim for protection under
to March 22, 1999. Sections 208.16(c) and the Convention Against Torture shall
208.17 (a) and paragraphs (b)(1) through not be considered further by an immi-
(b)(3) of this section do not apply to gration judge, the Board of Immigra-
cases in which, prior to March 22, 1999, tion Appeals, or an asylum officer.
the Service has made a final adminis- (d) Cases involving aliens ordered re-
trative determination about the appli- moved under section 235(c) of the Act.
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Department of Homeland Security § 208.21
of the Convention Against Torture, the denial or referral and include an assess-
Service will assess the applicability of ment of the applicant’s credibility.
Article 3 through the removal process
[65 FR 76136, Dec. 6, 2000]
to ensure that a removal order will not
be executed under circumstances that § 208.20 Determining if an asylum ap-
would violate the obligations of the plication is frivolous.
United States under Article 3. In such
For applications filed on or after
cases, the provisions of Part 208 relat-
April 1, 1997, an applicant is subject to
ing to consideration or review by an
the provisions of section 208(d)(6) of the
immigration judge, the Board of Immi- Act only if a final order by an immi-
gration Appeals, or an asylum officer gration judge or the Board of Immigra-
shall not apply. tion Appeals specifically finds that the
(e) Judicial review of claims for protec- alien knowingly filed a frivolous asy-
tion from removal under Article 3 of the lum application. For purposes of this
Convention Against Torture. (1) Pursu- section, an asylum application is frivo-
ant to the provisions of section 2242(d) lous if any of its material elements is
of the Foreign Affairs Reform and Re- deliberately fabricated. Such finding
structuring Act of 1998, there shall be shall only be made if the immigration
no judicial appeal or review of any ac- judge or the Board is satisfied that the
tion, decision, or claim raised under applicant, during the course of the pro-
the Convention or that section, except ceedings, has had sufficient oppor-
as part of the review of a final order of tunity to account for any discrepancies
removal pursuant to section 242 of the or implausible aspects of the claim.
Act; provided however, that any appeal For purposes of this section, a finding
or petition regarding an action, deci- that an alien filed a frivolous asylum
sion, or claim under the Convention or application shall not preclude the alien
under section 2242 of the Foreign Af- from seeking withholding of removal.
fairs Reform and Restructuring Act of
1998 shall not be deemed to include or [64 FR 8492, Feb. 19, 1999. Redesignated at 65
authorize the consideration of any ad- FR 76136, Dec. 6, 2000]
ministrative order or decision, or por-
§ 208.21 Admission of the asylee’s
tion thereof, the appeal or review of spouse and children.
which is restricted or prohibited by the
Act. (a) Eligibility. In accordance with sec-
(2) Except as otherwise expressly pro- tion 208(b)(3) of the Act, a spouse, as
vided, nothing in this paragraph shall defined in section 101(a)(35) of the Act,
be construed to create a private right 8 U.S.C. 1101(a)(35), or child, as defined
of action or to authorize the consider- in section 101(b)(1) of the Act, also may
ation or issuance of administrative or be granted asylum if accompanying, or
judicial relief. following to join, the principal alien
who was granted asylum, unless it is
[64 FR 8490, Feb. 19, 1999; 64 FR 13881, Mar. 23, determined that the spouse or child is
1999] ineligible for asylum under section
208(b)(2)(A)(i), (ii), (iii), (iv) or (v) of the
§ 208.19 Decisions. Act for applications filed on or after
The decision of an asylum officer to April 1, 1997, or under § 208.13(c)(2)(i)(A),
grant or to deny asylum or to refer an (C), (D), (E), or (F) for applications
asylum application, in accordance with filed before April 1, 1997.
§ 208.14(b) or (c), shall be communicated (b) Relationship. The relationship of
in writing to the applicant. Pursuant spouse and child as defined in sections
to § 208.9(d), an applicant must appear 101(a)(35) and 101(b)(1) of the Act must
in person to receive and to acknowl- have existed at the time the principal
edge receipt of the decision to grant or alien’s asylum application was ap-
deny asylum, or to refer an asylum ap- proved and must continue to exist at
plication unless, in the discretion of the time of filing for accompanying or
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§ 208.21 8 CFR Ch. I (1–1–10 Edition)
the parent of a child who was born approved Form I–730 will cease to con-
after asylum was granted, but who was fer immigration benefits after it has
in utero on the date of the asylum been used by the beneficiary for admis-
grant, the child shall be eligible to ac- sion to the United States as a deriva-
company or follow-to-join the asylee. tive of an asylee.
The child’s mother, if not the principal (d) Spouse or child outside the United
asylee, shall not be eligible to accom- States. When a spouse or child of an
pany or follow-to-join the principal alien granted asylum is outside the
asylee unless the child’s mother was United States, the asylee may request
the principal asylee’s spouse on the accompanying or following-to-join ben-
date the principal asylee was granted efits for his/her spouse or child(ren) by
asylum. filing a separate Form I–730 for each
(c) Spouse or child in the United States. qualifying family member with the
When a spouse or child of an alien designated Service office, setting forth
granted asylum is in the United States, the full name, relationship, date and
but was not included in the asylee’s ap- place of birth, and current location of
plication, the asylee may request ac- each such person. A recent photograph
companying or following-to-join bene- of each derivative must accompany the
fits for his/her spouse or child by filing Form I–730. The photograph must
for each qualifying family member a clearly identify the derivative, and will
separate Form I–730, Refugee/Asylee be made part of the derivative’s immi-
Relative Petition, and supporting evi- gration record for identification pur-
dence, with the designated Service of- poses. A separate Form I–730 for each
fice, regardless of the status of that qualifying family member must be
spouse or child in the United States. A filed before February 28, 2000, or within
recent photograph of each derivative 2 years of the date in which the asylee
must accompany the Form I–730. The was granted asylum status, whichever
photograph must clearly identify the is later, unless the Service determines
derivative, and will be made part of the that the filing period should be ex-
derivative’s immigration record for tended for humanitarian reasons. When
identification purposes. Additionally, a the Form I–730 is approved, the Service
separate Form I–730 must be filed by will notify the asylee of such approval
the asylee for each qualifying family on Form I–797. The approved Form I–
member before February 28, 2000, or 730 shall be forwarded by the Service to
within 2 years of the date in which he/ the Department of State for delivery to
she was granted asylum status, which- the American Embassy or Consulate
ever is later, unless it is determined by having jurisdiction over the area in
the Service that this period should be which the asylee’s spouse or child is lo-
extended for humanitarian reasons. cated. The approval of the Form I–730
Upon approval of the Form I–730, the shall remain valid for the duration of
Service will notify the asylee of such the relationship to the asylee and, in
approval on Form I–797, Notice of Ac- the case of a child, while the child is
tion. Employment will be authorized under 21 years of age and unmarried,
incident to status. To demonstrate em- provided also that the principal’s sta-
ployment authorization, the Service tus has not been revoked. However, the
will issue a Form I–94, Arrival-Depar- approved Form I–730 will cease to con-
ture Record, which also reflects the de- fer immigration benefits after it has
rivative’s current status as an asylee, been used by the beneficiary for admis-
or the derivative may apply under sion to the United States as a deriva-
§ 274a.12(a) of this chapter, using Form tive of an asylee.
I–765, Application for Employment Au- (e) Denial. If the spouse or child is
thorization, and a copy of the Form I– found to be ineligible for the status ac-
797. The approval of the Form I–730 corded under section 208(c) of the Act,
shall remain valid for the duration of a written notice stating the basis for
the relationship to the asylee and, in denial shall be forwarded to the prin-
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the case of a child, while the child is cipal alien. No appeal shall lie from
under 21 years of age and unmarried, this decision.
provided also that the principal’s sta- (f) Burden of proof. To establish the
tus has not been revoked. However, the claimed relationship of spouse or child
178
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Department of Homeland Security § 208.24
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§§ 208.25–208.29 8 CFR Ch. I (1–1–10 Edition)
(c) Procedure. Prior to the termi- diction of the Service at any time after
nation of a grant of asylum or with- the alien has been provided a notice of
holding of deportation or removal, the intent to terminate by the Service.
alien shall be given notice of intent to Any termination under this paragraph
terminate, with the reasons therefor, may occur in conjunction with an ex-
at least 30 days prior to the interview clusion, deportation, or removal pro-
specified in paragraph (a) of this sec- ceeding.
tion before an asylum officer. The alien (g) Termination of asylum for arriving
shall be provided the opportunity to aliens. If the Service determines that
present evidence showing that he or an applicant for admission who had
she is still eligible for asylum or with- previously been granted asylum in the
holding of deportation or removal. If United States falls within conditions
the asylum officer determines that the set forth in § 208.24 and is inadmissible,
alien is no longer eligible for asylum or the Service shall issue a notice of in-
withholding of deportation or removal, tent to terminate asylum and initiate
the alien shall be given written notice removal proceedings under section 240
that asylum status or withholding of of the Act. The alien shall present his
deportation or removal and any em- or her response to the intent to termi-
ployment authorization issued pursu- nate during proceedings before the im-
ant thereto, are terminated. migration judge.
(d) Termination of derivative status.
The termination of asylum status for a [62 FR 10337, Mar. 6, 1997. Redesignated at 64
person who was the principal applicant FR 8490, Feb. 19, 1999 and futher redesignated
shall result in termination of the asy- and amended at 65 FR 76136, Dec. 6, 2000]
lum status of a spouse or child whose
§§ 208.25–208.29 [Reserved]
status was based on the asylum appli-
cation of the principal. Such termi-
nation shall not preclude the spouse or Subpart B—Credible Fear of
child of such alien from separately as- Persecution
serting an asylum or withholding of de-
portation or removal claim. § 208.30 Credible fear determinations
(e) Removal proceedings. When an involving stowaways and applicants
alien’s asylum status or withholding of for admission found inadmissible
pursuant to section 212(a)(6)(C) or
removal or deportation is terminated 212(a)(7) of the Act.
under this section, the Service shall
initiate removal proceedings, as appro- (a) Jurisdiction. The provisions of this
priate, if the alien is not already in ex- subpart B apply to aliens subject to
clusion, deportation, or removal pro- sections 235(a)(2) and 235(b)(1) of the
ceedings. Removal proceedings may Act. Pursuant to section 235(b)(1)(B) of
take place in conjunction with a termi- the Act, DHS has exclusive jurisdiction
nation hearing scheduled under to make credible fear determinations,
§ 208.24(f). and the Executive Office for Immigra-
(f) Termination of asylum, or with- tion Review has exclusive jurisdiction
holding of deportation or removal, by an to review such determinations. Except
immigration judge or the Board of Immi- as otherwise provided in this subpart
gration Appeals. An immigration judge B, paragraphs (b) through (g) of this
or the Board of Immigration Appeals section are the exclusive procedures
may reopen a case pursuant to § 3.2 or applicable to credible fear interviews,
§ 3.23 of this chapter for the purpose of determinations, and reviews under sec-
terminating a grant of asylum, or a tion 235(b)(1)(B) of the Act. Prior to
withholding of deportation or removal. January 1, 2015, an alien present in or
In such a reopened proceeding, the arriving in the Commonwealth of the
Service must establish, by a preponder- Northern Mariana Islands is ineligible
ance of evidence, one or more of the to apply for asylum and may only es-
grounds set forth in paragraphs (a) or tablish eligibility for withholding of
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Department of Homeland Security § 208.30
(b) Treatment of dependents. A spouse the end of the interview. The asylum
or child of an alien may be included in officer, in his or her discretion, may
that alien’s credible fear evaluation place reasonable limits on the number
and determination, if such spouse or of persons who may be present at the
child: interview and on the length of the
(1) Arrived in the United States con- statement.
currently with the principal alien; and (5) If the alien is unable to proceed
(2) Desires to be included in the prin- effectively in English, and if the asy-
cipal alien’s determination. However, lum officer is unable to proceed com-
any alien may have his or her credible petently in a language chosen by the
fear evaluation and determination alien, the asylum officer shall arrange
made separately, if he or she expresses for the assistance of an interpreter in
such a desire. conducting the interview. The inter-
(c) Authority. Asylum officers con- preter must be at least 18 years of age
ducting credible fear interviews shall and may not be the applicant’s attor-
have the authorities described in ney or representative of record, a wit-
§ 208.9(c). ness testifying on the applicant’s be-
(d) Interview. The asylum officer, as half, a representative or employee of
defined in section 235(b)(1)(E) of the the applicant’s country of nationality,
Act, will conduct the interview in a or, if the applicant is stateless, the ap-
nonadversarial manner, separate and plicant’s country of last habitual resi-
apart from the general public. The pur- dence.
pose of the interview shall be to elicit
(6) The asylum officer shall create a
all relevant and useful information
summary of the material facts as stat-
bearing on whether the applicant has a
ed by the applicant. At the conclusion
credible fear of persecution or torture,
of the interview, the officer shall re-
and shall conduct the interview as fol-
view the summary with the alien and
lows:
provide the alien with an opportunity
(1) If the officer conducting the cred-
to correct any errors therein.
ible fear interview determines that the
alien is unable to participate effec- (e) Determination. (1) The asylum offi-
tively in the interview because of ill- cer shall create a written record of his
ness, fatigue, or other impediments, or her determination, including a sum-
the officer may reschedule the inter- mary of the material facts as stated by
view. the applicant, any additional facts re-
(2) At the time of the interview, the lied on by the officer, and the officer’s
asylum officer shall verify that the determination of whether, in light of
alien has received Form M–444, Infor- such facts, the alien has established a
mation about Credible Fear Interview credible fear of persecution or torture.
in Expedited Removal Cases. The offi- (2) An alien will be found to have a
cer shall also determine that the alien credible fear of persecution if there is a
has an understanding of the credible significant possibility, taking into ac-
fear determination process. count the credibility of the statements
(3) The alien may be required to reg- made by the alien in support of the
ister his or her identity electronically alien’s claim and such other facts as
or through any other means designated are known to the officer, the alien can
by the Attorney General. establish eligibility for asylum under
(4) The alien may consult with a per- section 208 of the Act or for with-
son or persons of the alien’s choosing holding of removal under section
prior to the interview or any review 241(b)(3) of the Act. However, prior to
thereof, and may present other evi- January 1, 2015, in the case of an alien
dence, if available. Such consultation physically present in or arriving in the
shall be at no expense to the Govern- Commonwealth of the Northern Mar-
ment and shall not unreasonably delay iana Islands, the officer may only find
the process. Any person or persons with a credible fear of persecution if there is
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whom the alien chooses to consult may a significant possibility that the alien
be present at the interview and may be can establish eligibility for with-
permitted, in the discretion of the asy- holding of removal pursuant to section
lum officer, to present a statement at 241(b)(3) of the Act.
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§ 208.30 8 CFR Ch. I (1–1–10 Edition)
(3) An alien will be found to have a graph (d)(2) of this section shall not
credible fear of torture if the alien apply to aliens described in this para-
shows that there is a significant possi- graph. The asylum officer shall advise
bility that he or she is eligible for the alien of the Agreement’s exceptions
withholding of removal or deferral of and question the alien as to applica-
removal under the Convention Against bility of any of these exceptions to the
Torture, pursuant to 8 CFR 208.16 or alien’s case.
208.17. (i) If the asylum officer, with concur-
(4) In determining whether the alien rence from a supervisory asylum offi-
has a credible fear of persecution, as cer, determines that an alien does not
defined in section 235(b)(1)(B)(v) of the qualify for an exception under the
Act, or a credible fear of torture, the Agreement during this threshold
asylum officer shall consider whether screening interview, the alien is ineli-
the alien’s case presents novel or gible to apply for asylum in the United
unique issues that merit consideration States. After the asylum officer’s docu-
in a full hearing before an immigration mented finding is reviewed by a super-
judge. visory asylum officer, the alien shall
(5) Except as provided in paragraph be advised that he or she will be re-
(e)(6) of this section, if an alien is able moved to Canada in order to pursue his
to establish a credible fear of persecu- or her claims relating to a fear of per-
tion or torture but appears to be sub- secution or torture under Canadian
ject to one or more of the mandatory law. Aliens found ineligible to apply
bars to applying for, or being granted, for asylum under this paragraph shall
asylum contained in section 208(a)(2) be removed to Canada.
and 208(b)(2) of the Act, or to with- (ii) If the alien establishes by a pre-
holding of removal contained in sec- ponderance of the evidence that he or
tion 241(b)(3)(B) of the Act, the Depart- she qualifies for an exception under the
ment of Homeland Security shall none- terms of the Agreement, the asylum of-
theless place the alien in proceedings ficer shall make a written notation of
under section 240 of the Act for full the basis of the exception, and then
consideration of the alien’s claim, if proceed immediately to a determina-
the alien is not a stowaway. If the tion concerning whether the alien has
alien is a stowaway, the Department a credible fear of persecution or torture
shall place the alien in proceedings for under paragraph (d) of this section.
consideration of the alien’s claim pur- (iii) An alien qualifies for an excep-
suant to 8 CFR 208.2(c)(3). tion to the Agreement if the alien is
(6) Prior to any determination con- not being removed from Canada in
cerning whether an alien arriving in transit through the United States and
the United States at a U.S.-Canada (A) Is a citizen of Canada or, not hav-
land border port-of-entry or in transit ing a country of nationality, is a habit-
through the U.S. during removal by ual resident of Canada;
Canada has a credible fear of persecu- (B) Has in the United States a
tion or torture, the asylum officer spouse, son, daughter, parent, legal
shall conduct a threshold screening guardian, sibling, grandparent, grand-
interview to determine whether such child, aunt, uncle, niece, or nephew
an alien is ineligible to apply for asy- who has been granted asylum, refugee,
lum pursuant to section 208(a)(2)(A) of or other lawful status in the United
the Act and subject to removal to Can- States, provided, however, that this ex-
ada by operation of the Agreement Be- ception shall not apply to an alien
tween the Government of the United whose relative maintains only non-
States and the Government of Canada immigrant visitor status, as defined in
For Cooperation in the Examination of section 101(a)(15)(B) of the Act, or
Refugee Status Claims from Nationals whose relative maintains only visitor
of Third Countries (‘‘Agreement’’). In status based on admission to the
conducting this threshold screening United States pursuant to the Visa
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Department of Homeland Security § 208.30
uncle, niece, or nephew who is at least § 208.2(c). Parole of the alien may be
18 years of age and has an asylum ap- considered only in accordance with sec-
plication pending before U.S. Citizen- tion 212(d)(5) of the Act and § 212.5 of
ship and Immigration Services, the Ex- this chapter.
ecutive Office for Immigration Review, (g) Procedures for a negative credible
or on appeal in federal court in the fear finding. (1) If an alien is found not
United States; to have a credible fear of persecution
(D) Is unmarried, under 18 years of or torture, the asylum officer shall pro-
age, and does not have a parent or legal vide the alien with a written notice of
guardian in either Canada or the decision and inquire whether the alien
United States; wishes to have an immigration judge
(E) Arrived in the United States with review the negative decision, using
a validly issued visa or other valid ad- Form I–869, Record of Negative Cred-
mission document, other than for tran- ible Fear Finding and Request for Re-
sit, issued by the United States to the view by Immigration Judge. The alien
alien, or, being required to hold a visa shall indicate whether he or she desires
to enter Canada, was not required to such review on Form I–869. A refusal by
obtain a visa to enter the United the alien to make such indication shall
States; or be considered a request for review.
(F) The Director of USCIS, or the Di- (i) If the alien requests such review,
rector’s designee, determines, in the or refuses to either request or decline
exercise of unreviewable discretion, such review, the asylum officer shall
that it is in the public interest to allow arrange for detention of the alien and
the alien to pursue a claim for asylum, serve him or her with a Form I–863, No-
withholding of removal, or protection tice of Referral to Immigration Judge,
under the Convention Against Torture, for review of the credible fear deter-
in the United States. mination in accordance with paragraph
(iv) As used in 8 CFR (f)(2) of this section.
208.30(e)(6)(iii)(B), (C) and (D) only, (ii) If the alien is not a stowaway and
‘‘legal guardian’’ means a person cur- does not request a review by an immi-
rently vested with legal custody of gration judge, the officer shall order
such an alien or vested with legal au- the alien removed and issue a Form I–
thority to act on the alien’s behalf, 860, Notice and Order of Expedited Re-
provided that such an alien is both un- moval, after review by a supervisory
married and less than 18 years of age, asylum officer.
and provided further that any dispute (iii) If the alien is a stowaway and
with respect to whether an individual the alien does not request a review by
is a legal guardian will be resolved on an immigration judge, the asylum offi-
the basis of U.S. law. cer shall refer the alien to the district
(7) An asylum officer’s determination director for completion of removal pro-
shall not become final until reviewed ceedings in accordance with section
by a supervisory asylum officer. 235(a)(2) of the Act.
(f) Procedures for a positive credible
(2) Review by immigration judge of a
fear finding. If an alien, other than an
negative credible fear finding.
alien stowaway, is found to have a
credible fear of persecution or torture, (i) Immigration judges will review
the asylum officer will so inform the negative credible fear findings as pro-
alien and issue a Form I–862, Notice to vided in 8 CFR 1208.30(g)(2).
Appear, for full consideration of the (ii) The record of the negative cred-
asylum and withholding of removal ible fear determination, including cop-
claim in proceedings under section 240 ies of the Form I–863, the asylum offi-
of the Act. If an alien stowaway is cer’s notes, the summary of the mate-
found to have a credible fear of perse- rial facts, and other materials upon
cution or torture, the asylum officer which the determination was based
will so inform the alien and issue a shall be provided to the immigration
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Form I–863, Notice of Referral to Immi- judge with the negative determination.
gration Judge, for full consideration of [65 FR 76136, Dec. 6, 2000, as amended at 69
the asylum claim, or the withholding FR 69488, Nov. 29, 2004; 74 FR 55737, Oct. 28,
of removal claim, in proceedings under 2009]
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§ 208.31 8 CFR Ch. I (1–1–10 Edition)
in a language chosen by the alien, the has not established a reasonable fear of
asylum officer shall arrange for the as- persecution or torture, the asylum offi-
sistance of an interpreter in con- cer shall inform the alien in writing of
ducting the interview. The interpreter the decision and shall inquire whether
184
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Department of Homeland Security § 209.1
185
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§ 209.2 8 CFR Ch. I (1–1–10 Edition)
186
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Department of Homeland Security § 209.2
after being granted asylum, so long as each alien. Every applicant who is 14
he or she is able to meet the require- years of age or older must submit a
ments noted in paragraphs (a)(1)(i), completed Form G–325A (Biographic In-
(iv), and (v) of this section. Such per- formation) with the Form I–485 appli-
sons are exempt from the numerical cation. Following submission of the
limitations of section 209(b) of the Act. Form I–485 application, every applicant
However, the number of aliens who are who is 14 years of age or older will be
natives of any foreign state who may required to execute a Form FD–258 (Ap-
adjust status pursuant to this para- plicant Fingerprint Card) at such time
graph in any fiscal year shall not ex- and place as the Service will designate.
ceed the difference between the per Except as provided in paragraph (a)(2)
country limitation established under of this section, the application must
section 202(a) of the Act and the num- also be supported by evidence that the
ber of aliens who are chargeable to applicant has been physically present
that foreign state in the fiscal year in the United States for at least 1 year.
under section 202 of the Act. Aliens If an alien has been placed in deporta-
who applied for adjustment of status tion or exclusion proceedings, the ap-
under section 209(b) of the Act before plication can be filed and considered
June 1, 1990, are also exempt from its only in proceedings under section 240 of
numerical limitation without any re- the Act.
strictions. (d) Medical examination. An alien
(3) No alien arriving in or physically seeking adjustment of status under
present in the Commonwealth of the section 209(b) of the Act 1 year fol-
Northern Mariana Islands may apply to lowing the grant of asylum under sec-
adjust status under section 209(b) of tion 208 of the Act shall submit the re-
the Act in the Commonwealth of the sults of a medical examination to de-
Northern Mariana Islands prior to Jan- termine whether any grounds of inad-
uary 1, 2015. missibility described under section
(b) Inadmissible Alien. An applicant 212(a)(1)(A) of the Act apply. Form I–
who is inadmissible to the United 693, Medical Examination of Aliens
States under section 212(a) of the Act, Seeking Adjustment of Status, and a
may, under section 209(c) of the Act, vaccination supplement to determine
have the grounds of inadmissibility compliance with the vaccination re-
waived by the director (except for quirements described under section
those grounds under paragraphs (27), 212(a)(1)(A)(ii) of the Act must be com-
(29), (33), and so much of (23) as relates pleted by a designed civil surgeon in
to trafficking in narcotics) for humani- the United States and submitted at the
tarian purposes, to assure family time of application for adjustment of
unity, or when it is otherwise in the status.
public interest. An application for the (e) Interview. Each applicant for ad-
waiver may be filed on Form I–602 (Ap- justment of status under this part shall
plication by Refugee for Waiver of be interviewed by an immigration offi-
Grounds of Excludability) with the ap- cer. The interview may be waived for a
plication for adjustment. An applicant child under 14 years of age. The Service
for adjustment who has had the status director having jurisdiction over the
of an exchange alien nonimmigrant application will determine, on a case-
under section 101(a)(15)(J) of the Act, by-case basis, whether an interview by
and who is subject to the foreign resi- an immigration officer is necessary to
dent requirement of section 212(e) of determine the applicant’s admissibility
the Act, shall be eligible for adjust- for permanent resident status under
ment without regard to the foreign res- this part.
idence requirement. (f) Decision. The applicant shall be
(c) Application. An application for the notified of the decision, and if the ap-
benefits of section 209(b) of the Act plication is denied, of the reasons for
may be filed on Form I–485, with the denial. No appeal shall lie from the de-
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correct fee, with the director of the ap- nial of an application by the director
propriate Service office identified in but such denial will be without preju-
the instructions to the Form I–485. A dice to the alien’s right to renew the
separate application must be filed by application in proceedings under part
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Pt. 210 8 CFR Ch. I (1–1–10 Edition)
240 of this chapter. If the application is plete until the required fee has been
approved, the director shall record the paid and recorded.
alien’s admission for lawful permanent (e) Determination process. Determina-
residence as of the date one year before tion process as used in this part means
the date of the approval of the applica- reviewing and evaluating all informa-
tion, but not earlier than the date of tion provided pursuant to an applica-
the approval for asylum in the case of tion for the benefit sought and making
an applicant approved under paragraph a determination thereon. If fraud, will-
(a)(2) of this section. ful misrepresentation of a material
[46 FR 45119, Sept. 10, 1981, as amended at 56 fact, a false writing or document, or
FR 26898, June 12, 1991; 57 FR 42883, Sept. 17, any other activity prohibited by sec-
1992; 63 FR 30109, June 3, 1998; 74 FR 55737, tion 210(b)(7) of the Act is discovered
Oct. 28, 2009] during the determination process the
Service shall refer the case to a U.S.
PART 210—SPECIAL AGRICULTURAL Attorney for possible prosecution.
WORKERS (f) Family unity. The term family
unity as used in section 210(c)(2)(B)(i) of
Sec. the Act means maintaining the family
210.1 Definition of terms used in this part. group without deviation or change. The
210.2 Application for temporary resident family group shall include the spouse,
status. unmarried minor children who are not
210.3 Eligibility.
210.4 Status and benefits.
members of some other household, and
210.5 Adjustment to permanent resident parents who reside regularly in the
status. household of the family group.
AUTHORITY: 8 U.S.C. 1103, 1160, 8 CFR part
(g) Group 1. Special agricultural
2. workers who have performed qualifying
agricultural employment in the United
SOURCE: 53 FR 10064, Mar. 29, 1988, unless
States for at least 90 man-days in the
otherwise noted.
aggregate in each of the twelve-month
§ 210.1 Definition of terms used in this periods ending on May 1, 1984, 1985, and
part. 1986, and who have resided in the
(a) Act. The Immigration and Nation- United States for six months in the ag-
ality Act, as amended by the Immigra- gregate in each of those twelve-month
tion Reform and Control Act of 1986. periods.
(b) ADIT. Alien Documentation, Identi- (h) Group 2. Special agricultural
fication and Telecommunications card, workers who during the twelve-month
Form I–89. Used to collect key data con- period ending on May 1, 1986 have per-
cerning an alien. When processed to- formed at least 90 man-days in the ag-
gether with an alien’s photographs, fin- gregate of qualifying agricultural em-
gerprints and signature, this form be- ployment in the United States.
comes the source document for genera- (i) Legalization Office. Legalization
tion of Form I–551, Permanent Resi- offices are local offices of the Immigra-
dent Card. tion and Naturalization Service which
(c) Application period. The 18-month accept and process applications for le-
period during which an application for galization or special agricultural work-
adjustment of status to that of a tem- er status, under the authority of the
porary resident may be accepted, be- district directors in whose districts
gins on June 1, 1987, and ends on No- such offices are located.
vember 30, 1988. (j) Man-day. The term man-day means
(d) Complete application. A complete the performance during any day of not
application consists of an executed less than one hour of qualifying agri-
Form I–700, Application for Temporary cultural employment for wages paid. If
Resident Status as a Special Agricul- employment records relating to an
tural Worker, evidence of qualifying alien applicant show only piece rate
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agricultural employment and resi- units completed, then any day in which
dence, a report of medical examina- piece rate work was performed shall be
tion, and the prescribed number of pho- counted as a man-day. Work for more
tographs. An application is not com- than one employer in a single day shall
188
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Department of Homeland Security § 210.1
189
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§ 210.2 8 CFR Ch. I (1–1–10 Edition)
190
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Department of Homeland Security § 210.2
issuance of Form I–688A. Each appli- required fee and photographs at a des-
cant shall be interviewed by an immi- ignated port of entry. The application
gration officer, except that the inter- must contain specific information con-
view may be waived when it is imprac- cerning the performance of qualifying
tical because of the health of the appli- employment in the United States and
cant. identify documentary evidence which
(3) Filing at overseas processing offices. the applicant intends to submit as
(i) The application must be filed on proof of such employment. The appli-
Form I–700 and must include a com- cant must establish to the satisfaction
pleted State Department Form OF–179 of the examining officer during an
(Biographic Data for Visa Purposes). interview that his or her claim to eligi-
(ii) Every applicant must appear at bility for special agricultural worker
the appropriate overseas processing of- classification is credible, and that he
fice to be interviewed by a consular of- or she is otherwise admissible to the
ficer. The overseas processing office United States under the provisions of
will inform each applicant of the date § 210.3(e) of this part including, if re-
and time of the interview. At the time quired, approval of an application for
of the interview every applicant shall waiver of grounds of excludability.
submit the required fee.
(ii) Procedures. The fee for any appli-
(iii) All fees for applications sub-
cation under this paragraph including
mitted to an overseas processing office
applications for waivers of grounds of
shall be submitted in United States
excludability, must be submitted in
currency, or in the currency of the
United States currency. Application
country in which the overseas proc-
essing office is located. Fees will not be fees shall not be collected until the ex-
waived or refunded under any cir- amining immigration officer has deter-
cumstances. mined that the applicant has presented
(iv) An applicant at an overseas proc- a preliminary application and is admis-
essing office whose application is rec- sible to the United States including, if
ommended for approval shall be pro- required, approval of an application for
vided with an entry document attached waiver of grounds of excludability as
to the applicant’s file. Upon admission provided in this paragraph. Applicants
to the United States, the applicant at designated ports of entry must
shall proceed to a legalization office present proof of identity in the form of
for presentation or completion of Form a valid passport, a ‘‘cartilla’’ (Mexican
FD–258 (Fingerprint Card), presen- military service registration booklet),
tation of the applicant’s file and a Form 13 (‘‘Forma trece’’—Mexican
issuance of the employment authoriza- lieu passport identity document), or a
tion Form I–688A. certified copy of a birth certificate ac-
(4) Border processing. The Commis- companied by additional evidence of
sioner will designate specific ports of identity bearing a photograph and/or
entry located on the southern land bor- fingerprint of the applicant. Upon a de-
der to accept and process applications termination by an immigration officer
under this part. Ports of entry so des- at a designated port of entry that an
ignated will process preliminary appli- applicant has presented a preliminary
cations as defined at § 210.1(l) under the application, the applicant shall be ad-
authority of the district directors in mitted to the United States as an ap-
whose districts they are located. The plicant for special agricultural worker
ports of entry at Calexico, California, status. All preliminary applicants shall
Otay Mesa, California, and Laredo, be considered as prospective applicants
Texas have been designated to conduct for the Group 2 classification. However,
preliminary application processing. such applicants may later submit a
Designated ports of entry may be complete application for either the
closed or added at the discretion of the Group 1 or Group 2 classification to a
Commissioner. legalization office. Preliminary appli-
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(i) Admission standard. The applicant cants are not required to pay the appli-
must present a fully completed and cation fee a second time when submit-
signed Form I–700, Application for ting the complete application to a le-
Temporary Resident Status with the galization office.
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§ 210.2 8 CFR Ch. I (1–1–10 Edition)
192
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Department of Homeland Security § 210.3
193
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§ 210.3 8 CFR Ch. I (1–1–10 Edition)
cessful attempts by the Service for vol- ‘‘cartilla’’, ‘‘carte d’identite,’’ etc.);
untary compliance, the District Direc- (iv) Driver’s license or similar docu-
tors shall utilize section 235 of the Im- ment issued by a state if it contains a
migration and Nationality Act and photo;
194
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Department of Homeland Security § 210.3
(v) Baptismal record or marriage cer- contractors, union officials, fellow em-
tificate; ployees, or other persons with specific
(vi) Affidavits, or knowledge of the applicant’s employ-
(vii) Such other documentation ment. The affiant must be identified by
which may establish the identity of the name and address; the name of the ap-
applicant. plicant and the relationship of the affi-
(2) Assumed names—(i) General. In ant to the applicant must be stated;
cases where an applicant claims to and the source of the information in
have met any of the eligibility criteria the affidavit (e.g. personal knowledge,
under an assumed name, the applicant reliance on information provided by
has the burden of proving that the ap- others, etc.) must be indicated. The af-
plicant was in fact the person who used fidavit must also provide information
that name.
regarding the crop and the type of
(ii) Proof of common identity. The most
work performed by the applicant and
persuasive evidence is a document
the period during which such work was
issued in the assumed name which
identifies the applicant by photograph, performed. The affiant must provide a
fingerprint or detailed physical de- certified copy of corroborating records
scription. Other evidence which will be or state the affiant’s willingness to
considered are affidavit(s) by a person personally verify the information pro-
or persons other than the applicant, vided. The weight and probative value
made under oath, which identify the af- of any affidavit accepted will be deter-
fiant by name and address and state mined on the basis of the substance of
the affiant’s relationship to the appli- the affidavit and any documents which
cant and the basis of the affiant’s may be affixed thereto which may cor-
knowledge of the applicant’s use of the roborate the information provided.
assumed name. Affidavits accompanied (4) Proof of residence. Evidence to es-
by a photograph which has been identi- tablish residence in the United States
fied by the affiant as the individual during the requisite period(s) includes:
known to the affiant under the as- Employment records as described in
sumed name in question will carry paragraph (c)(3) of this section; utility
greater weight. Other documents show- bills (gas, electric, phone, etc.), re-
ing the assumed name may serve to es- ceipts, or letters from companies show-
tablish the common identity when sub- ing the dates during which the appli-
stantiated by corroborating detail. cant received service; school records
(3) Proof of employment. The applicant (letters, report cards, etc.) from the
may establish qualifying employment schools that the applicant or his or her
through government employment children have attended in the United
records, or records maintained by agri- States showing the name of school,
cultural producers, farm labor contrac- name and, if available, address of stu-
tors, collective bargaining organiza- dent, and periods of attendance, and
tions and other groups or organizations
hospital or medical records showing
which maintain records of employ-
similar information; attestations by
ment, or such other evidence as worker
churches, unions, or other organiza-
identification issued by employers or
collective bargaining organizations, tions to the applicant’s residence by
union membership cards or other union letter which: Identify applicant by
records such as dues receipts or records name, are signed by an official (whose
of the applicant’s involvement or that title is shown), show inclusive dates of
of his or her immediate family with or- membership, state the address where
ganizations providing services to farm- applicant resided during the member-
workers, or work records such as pay ship period, include the seal of the or-
stubs, piece work receipts, W-2 Forms ganization impressed on the letter, es-
or certification of the filing of Federal tablish how the author knows the ap-
income tax returns on IRS Form 6166, plicant, and the origin of the informa-
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195
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§ 210.3 8 CFR Ch. I (1–1–10 Edition)
money sent out of the country; pass- this section, the Service may waive
port entries; birth certificates of chil- any other provision of section 212(a) of
dren born in the United States; bank the Act only in the case of individual
books with dated transactions; letters aliens for humanitarian purposes, to
of correspondence between the appli- assure family unity, or when the grant-
cant and another person or organiza- ing of such a waiver is in the public in-
tion; Social Security card; Selective terest. If an alien is excludable on
Service card; automobile license re- grounds which may be waived as set
ceipts, title, vehicle registration, etc.; forth in this paragraph, he or she shall
deeds, mortgages, contracts to which be advised of the procedures for apply-
applicant has been a party; tax re- ing for a waiver of grounds of exclud-
ceipts; insurance policies, receipts, or ability on Form I–690. When an applica-
letters; and any other document that tion for waiver of grounds of exclud-
will show that applicant was in the ability is submitted in conjunction
United States at a specific time. For with an application for temporary resi-
Group 2 eligibility, evidence of per- dence under this section, it shall be ac-
formance of the required 90 man-days cepted for processing at the legaliza-
of seasonal agricultural services shall tion office, overseas processing office,
constitute evidence of qualifying resi- or designated port of entry. If an appli-
dence. cation for waiver of grounds of exclud-
(5) Proof of financial responsibility. ability is submitted after the alien’s
Generally, the evidence of employment preliminary interview at the legaliza-
submitted under paragraph (c)(3) of tion office it shall be forwarded to the
this section will serve to demonstrate appropriate regional processing facil-
the alien’s financial responsibility. If it ity. All applications for waivers of
appears that the applicant may be in- grounds of excludability must be ac-
admissible under section 212(a)(15) of companied by the correct fee in the
the Act, he or she may be required to exact amount. All fees for applications
submit documentation showing a his- filed in the United States other than
tory of employment without reliance those within the provisions of
on public cash assistance for all periods § 210.2(c)(4) must be in the form of a
of residence in the United States. money order, cashier’s check, or bank
(d) Ineligible classes. The following check. No personal checks or currency
classes of aliens are ineligible for tem- will be accepted. Fees for waiver appli-
porary residence under this part: cations filed at the designated port of
(1) An alien who at any time was a entry under the preliminary applica-
nonimmigrant exchange visitor under tion standard must be submitted in
section 101(a)(15)(J) of the Act who is United States currency. Fees will not
subject to the two-year foreign resi- be waived or refunded under any cir-
dence requirement unless the alien has cumstances. Generally, an application
complied with that requirement or the for waiver of grounds of excludability
requirement has been waived pursuant under this part submitted at a legaliza-
to the provisions of section 212(e) of the tion office or overseas processing office
Act; will be approved or denied by the direc-
(2) An alien excludable under the pro- tor of the regional processing facility
visions of section 212(a) of the Act in whose jurisdiction the applicant’s
whose grounds of excludability may application for adjustment of status
not be waived, pursuant to section was filed. However, in cases involving
210(c)(2)(B)(ii) of the Act; clear statutory ineligibility or admit-
(3) An alien who has been convicted ted fraud, such application for a waiver
of a felony, or three or more mis- may be denied by the district director
demeanors. in whose jurisdiction the application is
(e) Exclusion grounds—(1) Grounds of filed; in cases filed at overseas proc-
exclusion not to be applied. Sections (14), essing offices, such application for a
(20), (21), (25), and (32) of section 212(a) waiver may be denied by a consular of-
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of the Act shall not apply to applicants ficer; or, in cases returned to a legal-
applying for temporary resident status. ization office for reinterview, such ap-
(2) Waiver of grounds for exclusion. Ex- plication may be approved at the dis-
cept as provided in paragraph (e)(3) of cretion of the district director. Waiver
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Department of Homeland Security § 210.4
applications filed at the port of entry ceived public cash assistance will con-
under the preliminary application stitute a significant factor.
standard will be approved or denied by
[53 FR 10064, Mar. 29, 1988, as amended at 53
the district director having jurisdic- FR 27335, July 20, 1988; 54 FR 4757, Jan. 31,
tion over the port of entry. The appli- 1989; 55 FR 12629, Apr. 5, 1990]
cant shall be notified of the decision
and, if the application is denied, of the § 210.4 Status and benefits.
reason(s) therefor. The applicant may (a) Date of adjustment. The status of
appeal the decision within 30 days after an alien whose application for tem-
the service of the notice pursuant to porary resident status is approved shall
the provisions of § 103.3(a)(2) of this be adjusted to that of a lawful tem-
chapter. porary resident as of the date on which
(3) Grounds of exclusion that may not the fee was paid at a legalization of-
be waived. The following provisions of fice, except that the status of an alien
section 212(a) of the Act may not be who applied for such status at an over-
waived: seas processing office whose applica-
(i) Paragraphs (9) and (10) (crimi- tion has been recommended for ap-
nals); proval by that office shall be adjusted
(ii) Paragraph (15) (public charge) ex- as of the date of his or her admission
cept as provided in paragraph (c)(4) of into the United States.
this section. (b) Employment and travel authoriza-
(iii) Paragraph (23) (narcotics) except tion—(1) General. Authorization for em-
for a single offense of simple possession ployment and travel abroad for tem-
of thirty grams or less of marijuana. porary resident status applicants under
(iv) Paragraphs (27), (prejudicial to section 210 of the Act be granted by the
the public interest), (28), (communists), INS. In the case of an application
and (29) (subversive); which has been filed with a qualified
(v) Paragraph (33) (Nazi persecution). designated entity, employment author-
(4) Special Rule for determination of ization may only be granted after a
nonfrivolous application has been re-
public charge. An applicant who has a
ceived at a legalization office, and re-
consistent employment history which
ceipt of the fee has been recorded.
shows the ability to support himself
(2) Employment and travel authoriza-
and his or her family, even though his
tion prior to the granting of temporary
income may be below the poverty level,
resident status. Permission to travel
is not excludable under paragraph
abroad and to accept employment will
(e)(3)(ii) of this section. The applicant’s
be granted to the applicant after an
employment history need not be con- interview has been conducted in con-
tinuous in that it is uninterrupted. It nection with a nonfrivolous application
should be continuous in the sense that at a Service office. If an interview ap-
the applicant shall be regularly at- pointment cannot be scheduled within
tached to the workforce, has an income 30 days from the date an application is
over a substantial period of the appli- filed at a Service office, authorization
cable time, and has demonstrated the to accept employment will be granted,
capacity to exist on his or her income valid until the scheduled appointment
and maintain his or her family without date. Employment authorization, both
reliance on public cash assistance. This prior and subsequent to an interview,
regulation is prospective in that the will be restricted to increments not ex-
Service shall determine, based on the ceeding 1 year, pending final deter-
applicant’s history, whether he or she mination on the application for tem-
is likely to become a public charge. porary resident status. If a final deter-
Past acceptance of public cash assist- mination has not been made prior to
ance within a history of consistent em- the expiration date on the Employment
ployment will enter into this decision. Authorization Document (Form I–766,
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The weight given in considering appli- Form I–688A or Form I–688B) that date
cability of the public charge provisions may be extended upon return of the
will depend on many factors, but the employment authorization document
length of time an applicant has re- by the applicant to the appropriate
197
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§ 210.4 8 CFR Ch. I (1–1–10 Edition)
Service office. Persons submitting ap- ble for adjustment of status under
plications who currently have work au- § 210.5 of this part, upon the occurrence
thorization incident to status as de- of any of the following:
fined in § 274a.12(b) of this chapter shall (i) It is determined by a preponder-
be granted work authorization by the ance of the evidence that the adjust-
Service effective on the date the alien’s ment to temporary resident status was
prior work authorization expires. Per- the result of fraud or willful misrepre-
mission to travel abroad shall be grant- sentation as provided in section
ed in accordance with the Service’s ad- 212(a)(19) of the Act;
vance parole provisions contained in (ii) The alien commits an act which
§ 212.5(f) of this chapter. renders him or her inadmissible as an
(3) Employment and travel authoriza- immigrant, unless a waiver is secured
tion upon grant of temporary resident sta- pursuant to § 210.3(e)(2) of this part;
tus. Upon the granting of an applica- (iii) The alien is convicted of any fel-
tion for adjustment to temporary resi- ony, or three or more misdemeanors in
dent status, the service center will for- the United States.
ward a notice of approval to the appli- (3) Procedure. (i) Termination of an
cant at his or her last known address alien’s status under paragraph (d)(2) of
and to his or her qualified designated this section will be made only on no-
entity or representative. The applicant tice to the alien sent by certified mail
may appear at any Service office, and directed to his or her last known ad-
upon surrender of the previously issued dress, and to his or her representative.
Employment Authorization Document, The alien must be given an opportunity
will be issued Form I–688, Temporary to offer evidence in opposition to the
Resident Card. An alien whose status is grounds alleged for termination of his
adjusted to that of a lawful temporary or her status. Evidence in opposition
resident under section 210 of the Act must be submitted within thirty (30)
has the right to reside in the United days after the service of the Notice of
States, to travel abroad (including Intent to Terminate. If the alien’s sta-
commuting from a residence abroad), tus is terminated, the director of the
and to accept employment in the regional processing facility shall notify
United States in the same manner as the alien of the decision and the rea-
aliens lawfully admitted to permanent sons for the termination, and further
residence. notify the alien that any Service Form
(c) Ineligibility for immigration benefits. I–94, Arrival-Departure Record or other
An alien whose status is adjusted to official Service document issued to the
that of a lawful temporary resident alien authorizing employment and/or
under section 210 of the Act is not enti- travel abroad, or any Form I–688, Tem-
tled to submit a petition pursuant to porary Resident Card previously issued
section 203(a)(2) of the Act or to any to the alien will be declared void by the
other benefit or consideration accorded director of the regional processing fa-
under the Act to aliens lawfully admit- cility within thirty (30) days if no ap-
ted for permanent residence, except as peal of the termination decision is filed
provided in paragraph (b)(3) of this sec- within that period. The alien may ap-
tion. peal the decision to the Associate Com-
(d) Termination of temporary resident missioner, Examinations (Administra-
status—(1) General. The temporary resi- tive Appeals Unit) using Form I–694.
dent status of a special agricultural Any appeal with the required fee shall
worker is terminated automatically be filed with the regional processing fa-
and without notice under section cility within thirty (30) days after the
210(a)(3) of the Act upon entry of a service of the notice of termination. If
final order of deportation by an immi- no appeal is filed within that period,
gration judge based on a determination the Forms I–94, I–688 or other official
that the alien is deportable under sec- Service document shall be deemed
tion 241 of the Act. void, and must be surrendered without
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Department of Homeland Security § 211.1
eligible for adjustment of status under issued subsequent to the date of adjust-
§ 210.5 of this part. The timely com- ment.
mencement of termination proceedings (2) Upon appearance at a Service of-
will preclude the alien from becoming fice for preparation of Form I–551, an
a lawful permanent resident until a alien must present proof of identity,
final determination is made in the pro- suitable ADIT photographs, and a fin-
ceedings, including any appeal. gerprint and signature must be ob-
tained from the alien on Form I–89.
[53 FR 10064, Mar. 29, 1988, as amended at 55
FR 12629, Apr. 5, 1990; 60 FR 21975, May 4, [53 FR 10064, Mar. 29, 1988, as amended at 54
1995; 61 FR 46536, Sept. 4, 1996; 65 FR 82255, FR 50339, Dec. 6, 1989; 63 FR 70315, Dec. 21,
Dec. 28, 2000] 1998]
551, Permanent Resident Card. Such (4) A valid, unexpired Form I–571,
appearance may be prior to the date of Refugee Travel Document, properly en-
adjustment, but only upon invitation dorsed to reflect admission as a lawful
by the Service. Form I–551 shall be permanent resident;
199
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§ 211.1 8 CFR Ch. I (1–1–10 Edition)
(5) An expired Form I–551, Permanent of the child’s entry shall be on Form I–
Resident Card, accompanied by a filing 181, Memorandum of Creation of
receipt issued within the previous 6 Record of Admission for Lawful Perma-
months for either a Form I–751, Peti- nent Residence. The carrier of such
tion to Remove the Conditions on Resi- alien shall not be liable for a fine pur-
dence, or Form I–829, Petition by En- suant to section 273 of the Act.
trepreneur to Remove Conditions, if (3) If an immigrant alien returning to
seeking admission or readmission after an unrelinquished lawful permanent
a temporary absence of less than 1 residence in the United States after a
year; temporary absence abroad believes
(6) A Form I–551, whether or not ex- that good cause exists for his or her
pired, presented by a civilian or mili- failure to present an immigrant visa,
tary employee of the United States Form I–551, or reentry permit, the
Government who was outside the alien may file an application for a
United States pursuant to official or- waiver of this requirement with the
ders, or by the spouse or child of such DHS officer with jurisdiction over the
employee who resided abroad while the port of entry where the alien arrives. To
employee or serviceperson was on over- apply for this waiver, the alien must
seas duty and who is preceding, accom- file Form I–193, Application for Waiver
panying or following to join within 4 of Passport and/or Visa, with the fee
months the employee, returning to the prescribed in 8 CFR 103.7(b)(1), except
United States; or that if the alien’s Form I–551 was lost
(7) Form I–551, whether or not ex- or stolen, the alien must instead file
pired, or a transportation letter issued Form I–90, Application to Replace Per-
by an American consular officer, pre- manent Resident Card, with the fee
sented by an employee of the American prescribed in 8 CFR 103.7(b)(1), provided
University of Beirut, who was so em- the temporary absence did not exceed 1
ployed immediately preceding travel to year. In the exercise of discretion, the
the United States, returning tempo- DHS officer who has jurisdiction over the
rarily to the United States before re- port of entry where the alien arrives may
suming employment with the Amer- waive the alien’s lack of an immigrant
ican University of Beirut, or resuming visa, Form I–551, or reentry permit and
permanent residence in the United admit the alien as a returning resident
States. if DHS is satisfied that the alien has es-
(b) Waivers. (1) A waiver of the visa tablished good cause for the alien’s
required in paragraph (a) of this sec- failure to present an immigrant visa,
tion shall be granted without fee or ap- Form I–551, or reentry permit. Filing
plication by the district director, upon the Form I–90 will serve as both appli-
presentation of the child’s birth certifi- cation for replacement and as applica-
cate, to a child born subsequent to the tion for waiver of passport and visa,
issuance of an immigrant visa to his or without the obligation to file a sepa-
her accompanying parent who applies rate waiver application.
for admission during the validity of (c) Immigrants having occupational sta-
such a visa; or a child born during the tus defined in section 101(a)(15) (A), (E),
temporary visit abroad of a mother or (G) of the Act. An immigrant visa, re-
who is a lawful permanent resident entry permit, or Form I–551 shall be in-
alien, or a national, of the United valid when presented by an alien who
States, provided that the child’s appli- has an occupational status under sec-
cation for admission to the United tion 101(a)(15) (A), (E), or (G) of the
States is made within 2 years of birth, Act, unless he or she has previously
the child is accompanied by the parent submitted, or submits at the time he or
who is applying for readmission as a she applies for admission to the United
permanent resident upon the first re- States, the written waiver required by
turn of the parent to the United States section 247(b) of the Act and 8 CFR part
after the birth of the child, and the ac- 247.
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Department of Homeland Security § 211.4
201
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§ 211.5 8 CFR Ch. I (1–1–10 Edition)
the United States for permanent resi- job opportunity or the commuter can
dence who, upon return from a tem- demonstrate that he or she has worked
porary absence was inadmissible be- 90 days in the United States in the ag-
cause of failure to have or to present a gregate during the 12-month period
valid passport, immigrant visa, reentry preceding the application for admission
permit, border crossing card, or other into the United States. Upon loss of
document required at the time of status, Form I–551 or I–688 shall be-
entry, may be granted a waiver of such come invalid and must be surrendered
requirement in the discretion of the to an immigration officer.
district director if the district director (c) Eligibility for benefits under the im-
determines that such alien: migration and nationality laws. Until he
(1) Was not otherwise inadmissible at or she has taken up residence in the
the time of entry, or having been oth- United States, an alien commuter can-
erwise inadmissible at the time of not satisfy the residence requirements
entry is with respect thereto qualified of the naturalization laws and cannot
for an exemption from deportability qualify for any benefits under the im-
under section 237(a)(1)(H) of the Act; migration laws on his or her own be-
and half or on behalf of his or her relatives
(2) Is not otherwise subject to re- other than as specified in paragraph (a)
moval. of this section. When an alien com-
(b) Denial of a waiver by the district muter takes up residence in the United
director is not appealable but shall be States, he or she shall no longer be re-
without prejudice to renewal of an ap- garded as a commuter. He or she may
plication and reconsideration in pro- facilitate proof of having taken up such
ceedings before the immigration judge. residence by notifying the Service as
soon as possible, preferably at the time
§ 211.5 Alien commuters. of his or her first reentry for that pur-
(a) General. An alien lawfully admit- pose. Application for issuance of a new
ted for permanent residence or a spe- Permanent Resident Card to show that
cial agricultural worker lawfully ad- he or she has taken up residence in the
mitted for temporary residence under United States shall be made on Form I–
section 210 of the Act may commence 90.
or continue to reside in foreign contig-
[62 FR 10346, Mar. 6, 1997, as amended at 63
uous territory and commute as a spe-
FR 70315, Dec. 21, 1998]
cial immigrant defined in section
101(a)(27)(A) of the Act to his or her
place of employment in the United PART 212—DOCUMENTARY RE-
States. An alien commuter engaged in QUIREMENTS: NONIMMIGRANTS;
seasonal work will be presumed to have WAIVERS; ADMISSION OF CER-
taken up residence in the United TAIN INADMISSIBLE ALIENS; PA-
States if he or she is present in this ROLE
country for more than 6 months, in the
aggregate, during any continuous 12- Sec.
month period. An alien commuter’s ad- 212.0 Definitions.
dress report under section 265 of the 212.1 Documentary requirements for non-
Act must show his or her actual resi- immigrants.
dence address even though it is not in 212.2 Consent to reapply for admission after
the United States. deportation, removal or departure at
(b) Loss of residence status. An alien Government expense.
commuter who has been out of regular 212.3 Application for the exercise of discre-
employment in the United States for a tion under section 212(c).
continuous period of 6 months shall be 212.4 Applications for the exercise of discre-
tion under section 212(d)(1) and 212(d)(3).
deemed to have lost residence status,
212.5 Parole of aliens into the United
notwithstanding temporary entries in States.
the interim for other than employment
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Department of Homeland Security § 212.1
212.9 Applicability of section 212(a)(32) to U.S. citizen means a United States
certain derivative third and sixth pref- citizen or a U.S. non-citizen national.
erence and nonpreference immigrants. United States qualifying tribal entity
212.10 Section 212(k) waiver. means a tribe, band, or other group of
212.11 Controlled substance convictions.
Native Americans formally recognized
212.12 Parole determinations and revoca-
tions respecting Mariel Cubans. by the United States Government
212.13 [Reserved] which agrees to meet WHTI document
212.14 Parole determinations for alien wit- standards.
nesses and informants for whom a law [73 FR 18415, Apr. 3, 2008]
enforcement authority (‘‘LEA’’) will re-
quest S classification. § 212.1 Documentary requirements for
212.15 Certificates for foreign health care nonimmigrants.
workers.
212.16 Applications for exercise of discretion A valid unexpired visa and an unex-
relating to T nonimmigrant status. pired passport, valid for the period set
212.17 Applications for the exercise of dis- forth in section 212(a)(26) of the Act,
cretion relating to U nonimmigrant sta- shall be presented by each arriving
tus. nonimmigrant alien except that the
212.18 Applications for waivers of inadmis- passport validity period for an appli-
sibility in connection with an applica- cant for admission who is a member of
tion for adjustment of status by T non-
a class described in section 102 of the
immigrant status holders.
Act is not required to extend beyond
AUTHORITY: 8 U.S.C. 1101 and note, 1102, the date of his application for admis-
1103, 1182 and note, 1184, 1187, 1223, 1225, 1226, sion if so admitted, and except as oth-
1227, 1255; 8 U.S.C. 1185 note (section 7209 of erwise provided in the Act, this chap-
Public Law 108–458; Title VII of Public Law
110–229; 8 CFR part 2.
ter, and for the following classes:
(a) Citizens of Canada or Bermuda, Ba-
SOURCE: 17 FR 11484, Dec. 19, 1952, unless hamian nationals or British subjects resi-
otherwise noted. dent in certain islands. (1) Canadian citi-
zens. A visa is generally not required
§ 212.0 Definitions.
for Canadian citizens, except those Ca-
For purposes of § 212.1 and § 235.1 of nadians that fall under nonimmigrant
this chapter: visa categories E, K, S, or V as pro-
Adjacent islands means Bermuda and vided in paragraphs (h), (l), and (m) of
the islands located in the Caribbean this section and 22 CFR 41.2. A valid
Sea, except Cuba. unexpired passport is required for Ca-
Cruise ship means a passenger vessel nadian citizens arriving in the United
over 100 gross tons, carrying more than States, except when meeting one of the
12 passengers for hire, making a voyage following requirements:
lasting more than 24 hours any part of (i) NEXUS Program. A Canadian cit-
which is on the high seas, and for izen who is traveling as a participant
which passengers are embarked or dis- in the NEXUS program, and who is not
embarked in the United States or its otherwise required to present a pass-
territories. port and visa as provided in paragraphs
Ferry means any vessel operating on (h), (l), and (m) of this section and 22
a pre-determined fixed schedule and CFR 41.2, may present a valid unex-
route, which is being used solely to pired NEXUS program card when using
provide transportation between places a NEXUS Air kiosk or when entering
that are no more than 300 miles apart the United States from contiguous ter-
and which is being used to transport ritory or adjacent islands at a land or
passengers, vehicles, and/or railroad sea port-of-entry. A Canadian citizen
cars. who enters the United States by pleas-
Pleasure vessel means a vessel that is ure vessel from Canada under the re-
used exclusively for recreational or mote inspection system may present a
personal purposes and not to transport valid unexpired NEXUS program card.
passengers or property for hire. (ii) FAST Program. A Canadian citizen
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§ 212.1 8 CFR Ch. I (1–1–10 Edition)
and (m) of this section and 22 CFR 41.2, tiguous territory at land or sea ports-
may present a valid unexpired FAST of-entry, when the group, organization
card at a land or sea port-of-entry prior or team is under the supervision of an
to entering the United States from adult affiliated with the organization
contiguous territory or adjacent is- and when the child has parental or
lands. legal guardian consent to travel. For
(iii) SENTRI Program. A Canadian cit- purposes of this paragraph, an adult is
izen who is traveling as a participant considered to be a person who is age 19
in the SENTRI program, and who is not or older. The following requirements
otherwise required to present a pass- will apply:
port and visa as provided in paragraphs (1) The group, organization, or team
(h), (l), and (m) of this section and 22 must provide to CBP upon crossing the
CFR 41.2, may present a valid unex- border, on organizational letterhead:
pired SENTRI card at a land or sea (i) The name of the group, organiza-
port-of-entry prior to entering the tion or team, and the name of the su-
United States from contiguous terri- pervising adult;
tory or adjacent islands. (ii) A trip itinerary, including the
(iv) Canadian Indians. If designated stated purpose of the trip, the location
by the Secretary of Homeland Secu- of the destination, and the length of
rity, a Canadian citizen holder of a In- stay;
dian and Northern Affairs Canada (iii) A list of the children on the trip;
(‘‘INAC’’) card issued by the Canadian (iv) For each child, the primary ad-
Department of Indian Affairs and dress, primary phone number, date of
North Development, Director of Land birth, place of birth, and name of a par-
and Trust Services (‘‘LTS’’) in con- ent or legal guardian.
formance with security standards (2) The adult leading the group, orga-
agreed upon by the Governments of nization, or team must demonstrate
Canada and the United States, and con- parental or legal guardian consent by
taining a machine readable zone and certifying in the writing submitted in
who is arriving from Canada may paragraph (a)(1)(v)(B)(1) of this section
present the card prior to entering the that he or she has obtained for each
United States at a land port-of-entry. child the consent of at least one parent
(v) Children. A child who is a Cana- or legal guardian.
dian citizen arriving from contiguous (3) The inspection procedure de-
territory may present for admission to scribed in this paragraph is limited to
the United States at sea or land ports- members of the group, organization, or
of-entry certain other documents if the team who are under age 19. Other mem-
arrival meets the requirements de- bers of the group, organization, or
scribed below. team must comply with other applica-
(A) Children Under Age 16. A Canadian ble document and/or inspection re-
citizen who is under the age of 16 is quirements found in this part or parts
permitted to present an original or a 211 or 235 of this subchapter.
copy of his or her birth certificate, a (2) Citizens of the British Overseas Ter-
Canadian Citizenship Card, or a Cana- ritory of Bermuda. A visa is generally
dian Naturalization Certificate when not required for Citizens of the British
arriving in the United States from con- Overseas Territory of Bermuda, except
tiguous territory at land or sea ports- those Bermudians that fall under non-
of-entry. immigrant visa categories E, K, S, or V
(B) Groups of Children Under Age 19. A as provided in paragraphs (h), (l), and
Canadian citizen, under age 19 who is (m) of this section and 22 CFR 41.2. A
traveling with a public or private passport is required for Citizens of the
school group, religious group, social or British Overseas Territory of Bermuda
cultural organization, or team associ- arriving in the United States.
ated with a youth sport organization is (3) Bahamian nationals or British sub-
permitted to present an original or a jects resident in the Bahamas. A passport
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Department of Homeland Security § 212.1
205
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§ 212.1 8 CFR Ch. I (1–1–10 Edition)
of such official at the time of admis- bility for admission into the United
sion into the United States. This provi- States, its territories and possessions.
sion does not apply to the spouse or (e) Aliens entering Guam pursuant to
any of the official’s family members section 14 of Pub. L. 99–396, ‘‘Omnibus
classifiable under section 101(a)(15)(F) Territories Act.’’ (1) Until November 28,
or (M) of the Act. 2009, a visa is not required of an alien
(3) A Mexican national who presents who is a citizen of a country enumer-
a BCC at a POE must present the DOS- ated in paragraph (e)(3) of this section
issued DSP–150 containing a machine- who:
readable biometric identifier. The alien (i) Is classifiable as a vistor for busi-
will not be permitted to cross the bor- ness or pleasure;
der into the United States unless the (ii) Is solely entering and staying on
biometric identifier contained on the Guam for a period not to exceed fifteen
card matches the appropriate biomet- days;
ric characteristic of the alien. (iii) Is in possession of a round-trip
(4) Mexican nationals presenting a nonrefundable and nontransferable
combination B–1/B–2 nonimmigrant transportation ticket bearing a con-
visa and border crossing card (or simi- firmed departure date not exceeding
lar stamp in a passport), issued by DOS fifteen days from the date of admission
prior to April 1, 1998, that does not con- to Guam;
tain a machine-readable biometric (iv) Is in possession of a completed
identifier, may be admitted on the and signed Visa Waiver Information
basis of the nonimmigrant visa only, Form (Form I–736);
provided it has not expired and the
(v) Waives any right to review or ap-
alien remains admissible. A passport is
peal the immigration officer’s deter-
also required.
mination of admissibility at the port of
(5) Aliens entering pursuant to Inter- entry at Guam; and
national Boundary and Water Commis-
(vi) Waives any right to contest any
sion Treaty. A visa and a passport are
action for deportation, other than on
not required of an alien employed ei-
the basis of a request for asylum.
ther directly or indirectly on the con-
struction, operation, or maintenance of (2) An alien is eligible for the waiver
works in the United States undertaken provision if all of the eligibility cri-
in accordance with the treaty con- teria in paragraph (e)(1) of this section
cluded on February 3, 1944, between the have been met prior to embarkation
United States and Mexico regarding and the alien is a citizen of a country
the functions of the International that:
Boundary and Water Commission, and (i) Has a visa refusal rate of 16.9% or
entering the United States temporarily less, or a country whose visa refusal
in connection with such employment. rate exceeds 16.9% and has an estab-
(d) Citizens of the Freely Associated lished preinspection or preclearance
States, formerly Trust Territory of the Pa- program, pursuant to a bilateral agree-
cific Islands. Citizens of the Republic of ment with the United States under
the Marshall Islands and the Federated which its citizens traveling to Guam
States of Micronesia may enter into, without a valid United States visa are
lawfully engage in employment, and inspected by the Immigration and Nat-
establish residence in the United uralization Service prior to departure
States and its territories and posses- from that country;
sions without regard to paragraphs (ii) Is within geographical proximity
(14), (20) and (26) of section 212(a) of the to Guam, unless the country has a sub-
Act pursuant to the terms of Pub. L. stantial volume of nonimmigrant ad-
99–239. Pending issuance by the afore- missions to Guam as determined by the
mentioned governments of travel docu- Commissioner and extends reciprocal
ments to eligible citizens, travel docu- privileges to citizens of the United
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Department of Homeland Security § 212.1
ders an alien ineligible for: tion for admission, unless the non-
(i) Adjustment of status to that of a immigrant satisfies the requirements
temporary resident or, except as pro- described in one or more of the para-
vided by section 245(i) of the Act or as graphs (a) through (f) or (i), (o), or (p)
207
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§ 212.1 8 CFR Ch. I (1–1–10 Edition)
208
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Department of Homeland Security § 212.1
U–5 nonimmigrant status may avail able passport issued by a country that
themselves of the provisions of para- meets the eligibility requirements of
graph (g) of this section, except that paragraph (q)(2) of this section;
the authority to waive documentary (viii) Have not previously violated
requirements resides with the director the terms of any prior admissions.
of the USCIS office having jurisdiction Prior admissions include those under
over the adjudication of Form I–918, the Guam-CNMI Visa Waiver Program,
‘‘Petition for U Nonimmigrant Sta- the prior Guam Visa Waiver Program,
tus.’’ the Visa Waiver Program as described
(q) Aliens admissible under the Guam- in section 217(a) of the Act and admis-
CNMI Visa Waiver Program. (1) Eligibility sions pursuant to any immigrant or
for Program. In accordance with Public nonimmigrant visa;
Law 110–229, beginning November 28, (ix) Waive any right to review or ap-
2009, the Secretary, in consultation peal an immigration officer’s deter-
with the Secretaries of the Depart- mination of admissibility at the port of
ments of Interior and State, may waive entry into Guam or the CNMI;
the visa requirement in the case of a (x) Waive any right to contest any
nonimmigrant alien who seeks admis- action for deportation or removal,
sion to Guam or to the Commonwealth other than on the basis of: An applica-
of the Northern Mariana Islands tion for withholding of removal under
(CNMI) under the Guam-CNMI Visa section 241(b)(3) of the INA; with-
Waiver Program. To be admissible holding or deferral of removal under
under the Guam-CNMI Visa Waiver the regulations implementing Article 3
Program, prior to embarking on a car- of the United Nations Convention
rier for travel to Guam or the CNMI, Against Torture and Other Cruel, Inhu-
each nonimmigrant alien must: man or Degrading Treatment or Pun-
(i) Be a national of a country or geo- ishment; or, an application for asylum
graphic area listed in paragraph (q)(2) if permitted under section 208 of the
of this section; Act; and
(ii) Be classifiable as a visitor for (xi) If a resident of Taiwan, possess a
business or pleasure; Taiwan National Identity Card and a
(iii) Be solely entering and staying valid Taiwan passport with a valid re-
on Guam or the CNMI for a period not entry permit issued by the Taiwan
to exceed forty-five days; Ministry of Foreign Affairs.
(iv) Be in possession of a round trip (2) Program Countries and Geographic
ticket that is nonrefundable and non- Areas. (i) General Eligibility Criteria.
transferable and bears a confirmed de- (A) A country or geographic area
parture date not exceeding forty-five may not participate in the Guam-CNMI
days from the date of admission to Visa Waiver Program if the country or
Guam or the CNMI. ‘‘Round trip tick- geographic area poses a threat to the
et’’ includes any return trip transpor- welfare, safety or security of the
tation ticket issued by a participating United States, its territories, or com-
carrier, electronic ticket record, air- monwealths;
line employee passes indicating return (B) A country or geographic area
passage, individual vouchers for return may not participate in the Guam-CNMI
passage, group vouchers for return pas- Visa Waiver Program if it has been des-
sage for charter flights, or military ignated a Country of Particular Con-
travel orders which include military cern under the International Religious
dependents for return to duty stations Freedom Act of 1998 by the Department
outside the United States on U.S. mili- of State, or identified by the Depart-
tary flights; ment of State as a source country of
(v) Be in possession of a completed refugees designated of special humani-
and signed Guam-CNMI Visa Waiver In- tarian concern to the United States;
formation Form (CBP Form I–736); (C) A country or geographic area may
(vi) Be in possession of a completed not participate in the Guam-CNMI Visa
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§ 212.1 8 CFR Ch. I (1–1–10 Edition)
citizen, former citizen, or national of rity of the United States and its terri-
the country against whom a final exe- tories.
cutable order of removal is issued. (iv) Additional Eligible Countries or Ge-
Nothing in this subparagraph creates ographic Areas Based on Significant Eco-
any duty for the United States or any nomic Benefit. [Reserved]
right for any alien with respect to re- (3) Suspension of Program Countries or
moval or release. Nothing in this sub- Geographic Areas. (i) Suspension of a
paragraph gives rise to any cause of ac- country or geographic area from the
tion or claim under this paragraph or Guam-CNMI Visa Waiver Program may
any other law against any official of be made on a country-by-country basis
the United States or of any State to for good cause including, but not lim-
compel the release, removal or recon- ited to if: The admissions of visitors
sideration for release or removal of any from a country have resulted in an un-
alien. acceptable number of visitors from a
(D) DHS may make a determination country remaining unlawfully in Guam
regarding a country’s eligibility based or the CNMI, unlawfully obtaining
on other factors including, but not lim- entry to other parts of the United
ited to, rate of refusal for non- States, or seeking withholding of re-
immigrant visas, rate of overstays, co- moval or seeking asylum; or that visi-
operation in information exchange tors from a country pose a risk to law
with the United States, electronic enforcement or security interests, in-
travel authorizations, and any other cluding the enforcement of immigra-
factors deemed relevant by DHS. tion laws of Guam, the CNMI, or the
(ii) Eligible Countries and Geographic United States.
Areas. Nationals of the following coun- (ii) A country or geographic area
tries and geographic areas are eligible may be suspended from the Guam-
to participate in the Guam-CNMI Visa CNMI Visa Waiver Program if that
Waiver Program for purposes of admis- country or geographic area is des-
sion to both Guam and the CNMI: Aus- ignated as a Country of Particular Con-
tralia, Brunei, Hong Kong (Hong Kong cern under the International Religious
Special Administrative Region (SAR) Freedom Act of 1998 by the Department
passport and Hong Kong identification of State, or identified by the Depart-
card are required), Japan, Malaysia, ment of State as a source country of
Nauru, New Zealand, Papua New Guin- refugees designated of special humani-
ea, Republic of Korea, Singapore, Tai- tarian concern to the United States,
wan (residents thereof who begin their pending an evaluation and determina-
travel in Taiwan and who travel on di- tion by the Secretary.
rect flights from Taiwan to Guam or (iii) A country or geographic area
the CNMI without an intermediate lay- may be suspended from the Guam-
over or stop except that the flights CNMI Visa Waiver Program by the Sec-
may stop in a territory of the United retary of Homeland Security, in con-
States enroute), and the United King- sultation with the Secretary of the In-
dom. terior and the Secretary of State,
(iii) Significant Economic Benefit Cri- based on the evaluation of all factors
teria. If, in addition to the consider- the Secretary deems relevant includ-
ations enumerated under paragraph ing, but not limited to, electronic trav-
(q)(2)(i) of this section, DHS deter- el authorization, procedures for report-
mines that the CNMI has received a ing lost and stolen passports, repatri-
significant economic benefit from the ation of aliens, rates of refusal for non-
number of visitors for pleasure from immigrant visitor visas, overstays, exit
particular countries during the period systems and information exchange.
of May 8, 2007 through May 8, 2008, (4) Admission under this section ren-
those countries are eligible to partici- ders an alien ineligible for:
pate in the Guam-CNMI Visa Waiver (i) Adjustment of status to that of a
Program unless the Secretary of Home- temporary resident or, except as pro-
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land Security determines that such vided by section 245(i) of the Act or as
country’s inclusion in the Guam-CNMI an immediate relative as defined in
Visa Waiver Program would represent section 201(b) of the Act, to that of a
a threat to the welfare, safety, or secu- lawful permanent resident.
210
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Department of Homeland Security § 212.1
211
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§ 212.2 8 CFR Ch. I (1–1–10 Edition)
212
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Department of Homeland Security § 212.2
United States for more than five con- (2) The consular officer must forward
secutive years, or twenty consecutive the Form I–212 to the Service office
years in the case of an alien convicted with jurisdiction over the area within
of an aggravated felony, to the con- which the consular officer is located. If
sular or immigration officer, and any the alien is ineligible on grounds
alien who is seeking to enter the which, upon the applicant’s marriage
United States prior to the completion to the United States citizen petitioner,
of the requisite five- or twenty-year ab- may be waived under section 212 (g),
sence, must apply for permission to re- (h), or (i) of the Act, the consular offi-
apply for admission to the United cer must also forward a recommenda-
States as provided under this part. A tion as to whether the waiver should be
temporary stay in the United States granted.
under section 212(d)(3) of the Act does (d) Applicant for immigrant visa. Ex-
not interrupt the five or twenty con- cept as provided in paragraph (g)(2) of
secutive year absence requirement. this section, an applicant for an immi-
(b) Alien applying to consular officer grant visa who is not physically
for nonimmigrant visa or nonresident present in the United States and who
alien border crossing card. (1) An alien requires permission to reapply must
who is applying to a consular officer file Form I–212. Except as provided in
for a nonimmigrant visa or a non- paragraph (g)(2) of this section, if the
resident alien border crossing card, applicant also requires a waiver under
must request permission to reapply for section 212(g), (h), or (i) of the Act,
admission to the United States if five Form I–601, Application for Waiver of
years, or twenty years if the alien’s de- Grounds of Excludability, must be filed
portation was based upon a conviction simultaneously with the Form I–212.
for an aggravated felony, have not (e) Applicant for adjustment of status.
elapsed since the date of deportation or An applicant for adjustment of status
removal. This permission shall be re- under section 245 of the Act and part
quested in the manner prescribed 245 of this chapter must request per-
through the consular officer, and may mission to reapply for entry in con-
be granted only in accordance with sec- junction with his or her application for
tions 212(a)(17) and 212(d)(3)(A) of the adjustment of status. This request is
Act and § 212.4 of this part. However, made by filing Form I–212, Application
the alien may apply for such permis- for Permission to Reapply. If the appli-
cation under section 245 of the Act has
sion by submitting Form I–212, Appli-
been initiated, renewed, or is pending
cation for Permission to Reapply for
in a proceeding before an immigration
Admission into the United States after
judge, the district director must refer
Deportation or Removal, to the con-
the Form I–212 to the immigration
sular officer if that officer is willing to
judge for adjudication.
accept the application, and rec-
(f) Applicant for admission at port of
ommends to the district director that
entry. An alien may request permission
the alien be permitted to apply.
at a port of entry to reapply for admis-
(2) The consular officer shall forward sion to the United States within 5
the Form I–212 to the district director years of the deportation or removal, or
with jurisdiction over the place where 20 years in the case of an alien de-
the deportation or removal proceedings ported, or removed 2 or more times, or
were held. at any time after deportation or re-
(c) Special provisions for an applicant moval in the case of an alien convicted
for nonimmigrant visa under section of an aggravated felony. The alien
101(a)(15)(K) of the Act. (1) An applicant must file the Form I–212, where re-
for a nonimmigrant visa under section quired, with the DHS officer having ju-
101(a)(15)(K) must: risdiction over the port of entry.
(i) Be the beneficiary of a valid visa (g) Other applicants. (1) Any applicant
petition approved by the Service; and for permission to reapply for admission
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(ii) File an application on Form I–212 under circumstances other than those
with the consular officer for permission described in paragraphs (b) through (f)
to reapply for admission to the United of this section must file Form I–212.
States after deportation or removal. This form is filed with either:
213
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§ 212.3 8 CFR Ch. I (1–1–10 Edition)
(i) The district director having juris- the Act, the approval of Form I–212
diction over the place where the depor- shall be retroactive to the date on
tation or removal proceedings were which the alien embarked or re-
held; or embarked at a place outside the United
(ii) The district director who exer- States.
cised or is exercising jurisdiction over (j) Advance approval. An alien whose
the applicant’s most recent proceeding. departure will execute an order of de-
(2) An alien who is an applicant for portation shall receive a conditional
parole authorization under 8 CFR approval depending upon his or her sat-
245.15(t)(2) and requires consent to re- isfactory departure. However, the
apply for admission after deportation, grant of permission to reapply does not
removal, or departure at Government waive inadmissibility under section
expense, or a waiver under section 212(a) (16) or (17) of the Act resulting
212(g), 212(h), or 212(i) of the Act, must from exclusion, deportation, or re-
file the requisite Form I–212 or Form I– moval proceedings which are instituted
601 concurrently with the Form I–131, subsequent to the date permission to
Application for Travel Document. An reapply is granted.
alien who is an applicant for parole au- [56 FR 23212, May 21, 1991, as amended at 64
thorization under 8 CFR 245.13(k)(2) FR 25766, May 12, 1999; 65 FR 15854, Mar. 24,
and requires consent to reapply for ad- 2000; 74 FR 26937, June 5, 2009]
mission after deportation, removal, or
departure at Government expense, or a § 212.3 Application for the exercise of
waiver under section 212(g), 212(h), or discretion under section 212(c).
212(i) of the Act, must file the requisite (a) Jurisdiction. An application for the
Form I–212 or Form I–601 concurrently exercise of discretion under section
with the Form I–131, Application for 212(c) of the Act must be submitted on
Travel Document. Form I–191, Application for Advance
(h) Decision. An applicant who has Permission to Return to
submitted a request for consent to re- Unrelinquished Domicile. If the appli-
apply for admission after deportation cation is made in the course of pro-
or removal must be notified of the de- ceedings under sections 235, 236, or 242
cision. If the application is denied, the of the Act, the application shall be
applicant must be notified of the rea- made to the Immigration Court.
sons for the denial and of his or her (b) Filing of application. The applica-
right to appeal as provided in part 103 tion may be filed prior to, at the time
of this chapter. Except in the case of of, or at any time after the applicant’s
an applicant seeking to be granted ad- departure from or arrival into the
vance permission to reapply for admis- United States. All material facts and/
sion prior to his or her departure from or circumstances which the applicant
the United States, the denial of the ap- knows or believes apply to the grounds
plication shall be without prejudice to of excludability or deportability must
the renewal of the application in the be described. The applicant must also
course of proceedings before an immi- submit all available documentation re-
gration judge under section 242 of the lating to such grounds.
Act and this chapter. (c) Decision of the District Director. A
(i) Retroactive approval. (1) If the alien district director may grant or deny an
filed Form I–212 when seeking admis- application for advance permission to
sion at a port of entry, the approval of return to an unrelinquished domicile
the Form I–212 shall be retroactive to under section 212(c) of the Act, in the
either: exercise of discretion, unless otherwise
(i) The date on which the alien em- prohibited by paragraph (f) of this sec-
barked or reembarked at a place out- tion. The applicant shall be notified of
side the United States; or the decision and, if the application is
(ii) The date on which the alien at- denied, of the reason(s) for denial. No
tempted to be admitted from foreign appeal shall lie from denial of the ap-
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214
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Department of Homeland Security § 212.4
section 245A or section 210 of the Act, (ii) Each intended date of arrival;
for at least seven consecutive years im- (iii) The length of each proposed stay
mediately preceding the filing of the in the United States;
application; (iv) The purpose of each stay;
215
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§ 212.4 8 CFR Ch. I (1–1–10 Edition)
(v) The number of entries which the tended port of entry prior to the appli-
alien intends to make; and cant’s arrival in the United States.
(vi) The justification for exercising (For Department of State procedure
the authority contained in section when a visa is required, see 22 CFR
212(d)(3) of the Act. 41.95 and paragraph (a) of this section.)
If the alien desires to make multiple If the application is made because the
entries and the consular officer or applicant may be inadmissible due to
other State Department official be- present or past membership in or affili-
lieves that the circumstances justify ation with any Communist or other to-
the issuance of a visa valid for multiple talitarian party or organization, there
entries rather than for a specified num- shall be attached to the application a
ber of entries, and recommends that written statement of the history of the
the alien be accorded an authorization applicant’s membership or affiliation,
valid for multiple entries, the informa- including the period of such member-
tion required by items (ii) and (iii) ship or affiliation, whether the appli-
shall be furnished only with respect to cant held any office in the organiza-
the initial entry. Item (ii) does not tion, and whether his membership or
apply to a bona fide crewman. The con- affiliation was voluntary or involun-
sular officer or other State Department tary. If the applicant alleges that his
official shall be notified of the decision membership or affiliation was involun-
on his recommendation. No appeal by tary, the statement shall include the
the alien shall lie from an adverse deci- basis for that allegation. When the ap-
sion made by a Service officer on the plication is made because the applicant
recommendation of a consular officer may be inadmissible due to disease,
or other State Department official. mental or physical defect, or disability
(2) Authority of consular officers to ap- of any kind, the application shall de-
prove section 212(d)(3)(A) recommenda- scribe the disease, defect, or disability.
tions pertaining to aliens inadmissible If the purpose of seeking admission to
under section 212(a)(28)(C). In certain the United States is for treatment,
categories of visa cases defined by the there shall be attached to the applica-
Secretary of State, United States con- tion statements in writing to establish
sular officers assigned to visa-issuing that satisfactory treatment cannot be
posts abroad may, on behalf of the At- obtained outside the United States;
torney General pursuant to section that arrangements have been com-
212(d)(3)(A) of the Act, approve a rec- pleted for treatment, and where and
ommendation by another consular offi- from whom treatment will be received;
cer that an alien be admitted tempo- what financial arrangements for pay-
rarily despite visa ineligibility solely ment of expenses incurred in connec-
because the alien is of the class of tion with the treatment have been
aliens defined at section 212(a)(28)(C) of made, and that a bond will be available
the Act, as a result of presumed or ac- if required. When the application is
tual membership in, or affiliation with, made because the applicant may be in-
an organization described in that sec- admissible due to the conviction of one
tion. Authorizations for temporary ad- or more crimes, the designation of each
mission granted by consular officers crime, the date and place of its com-
shall be subject to the terms specified mission and of the conviction thereof,
in § 212.4(c) of this chapter. Any rec- and the sentence or other judgment of
ommendation which is not clearly ap- the court shall be stated in the applica-
provable shall, and any recommenda- tion; in such a case the application
tion may, be presented to the appro- shall be supplemented by the official
priate official of the Immigration and record of each conviction, and any
Naturalization Service for a deter- other documents relating to commuta-
mination. tion of sentence, parole, probation, or
(b) Applications under section pardon. If the application is made at
212(d)(3)(B). An application for the ex- the time of the applicant’s arrival to
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216
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Department of Homeland Security § 212.4
been ascertained by the exercise of rea- (vii) The justification for exercising
sonable diligence, and he shall be in the authority contained in section
possession of a passport and visa, if re- 212(d)(3) of the Act; and
quired, or have been granted a waiver (viii) That the authorization is sub-
thereof. The applicant shall be notified ject to revocation at any time.
of the decision and if the application is (2) Conditions of admission. (i) For
denied of the reasons therefor and of aliens issued an authorization for tem-
his right to appeal to the Board within porary admission in accordance with
15 days after the mailing of the notifi- this section, admissions pursuant to
cation of decision in accordance with section 212(d)(3) of the Act shall be sub-
the Provisions of part 3 of this chapter. ject to the terms and conditions set
If denied, the denial shall be without forth in the authorization.
prejudice to renewal of the application (ii) The period for which the alien’s
in the course of proceedings before a admission is authorized pursuant to
this section shall not exceed the period
special inquiry officer under sections
justified, or the limitations specified,
235 and 236 of the Act and this chapter.
in 8 CFR part 214 for each class of non-
When an appeal may not be taken from
immigrant, whichever is less.
a decision of a special inquiry officer (3) Validity. (i) Authorizations grant-
excluding an alien but the alien has ap- ed to crew members may be valid for a
plied for the exercise of discretion maximum period of 2 years for applica-
under section 212(d)(3)(B) of the Act, tion for admission at U.S. POEs and
the alien may appeal to the Board from may be valid for multiple entries.
a denial of such application in accord- (ii) An authorization issued in con-
ance with the provisions of § 236.5(b) of junction with an application for a
this chapter. Form DSP–150, B–1/B–2 Visa and Border
(c) Terms of authorization—(1) General. Crossing Card, issued by the DOS shall
Except as provided in paragraph (c)(2) be valid for a period not to exceed the
of this section, each authorization validity of the biometric BCC for appli-
under section 212(d)(3)(A) or (B) of the cations for admission at U.S. POEs and
Act shall specify: shall be valid for multiple entries.
(i) Each section of law under which (iii) A multiple entry authorization
the alien is inadmissible; for a person other than a crew member
(ii) The intended date of each arrival, or applicant for a Form DSP–150 may
unless the applicant is a bona fide be made valid for a maximum period of
crewman. However, if the authoriza- 5 years for applications for admission
tion is valid for multiple entries rather at U.S. POEs.
than for a specified number of entries, (iv) An authorization that was pre-
this information shall be specified only viously issued in conjunction with
with respect to the initial entry; Form I–185, Nonresident Alien Cana-
(iii) The length of each stay author- dian Border Crossing Card, and that is
noted on the card may remain valid.
ized in the United States, which shall
Although the waiver may remain valid,
not exceed the period justified and
the non-biometric border crossing card
shall be subject to limitations specified
portion of this document is not valid
in 8 CFR part 214. However, if the au-
after that date. This waiver authoriza-
thorization is valid for multiple entries
tion shall cease if otherwise revoked or
rather than for a specified number of voided.
entries, this information shall be speci- (v) A single-entry authorization to
fied only with respect to the initial apply for admission at a U.S. POE shall
entry; not be valid for more than 6 months
(iv) The purpose of each stay; from the date the authorization is
(v) The number of entries for which issued.
the authorization is valid; (vi) An authorization may not be re-
(vi) Subject to the conditions set validated. Upon expiration of the au-
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forth in paragraph (c)(2) of this section, thorization, a new application and au-
the dates on or between which each ap- thorization are required.
plication for admission at POEs in the (d) Admission of groups inadmissible
United States is valid; under section 212(a)(28) for attendance at
217
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§ 212.4 8 CFR Ch. I (1–1–10 Edition)
international conferences. When the Sec- ceed 30 days, provided that the appli-
retary of State recommends that a cant establishes that:
group of nonimmigrant aliens and their (i) The applicant has tested positive
accompanying family members be ad- for HIV;
mitted to attend international con- (ii) The applicant is not currently ex-
ferences notwithstanding their inad- hibiting symptoms indicative of an ac-
missibility under section 212(a)(28) of tive, contagious infection associated
the Act, the Deputy Commissioner, with acquired immune deficiency syn-
may enter an order pursuant to the au- drome;
thority contained in section (iii) The applicant is aware of, has
212(d)(3)(A) of the Act specifying the been counseled on, and understands the
terms and conditions of their admis- nature, severity, and the commu-
sion and stay. nicability of his or her medical condi-
(e) Inadmissibility under section tion;
212(a)(1)(A)(iii). Pursuant to the author- (iv) The applicant’s admission poses a
ity contained in section 212(d)(3) of the minimal risk of danger to the public
Act, the temporary admission of a non- health in the United States and poses a
immigrant visitor is authorized not- minimal risk of danger of transmission
withstanding inadmissibility under of the infection to any other person in
section 212(a)(1)(A)(iii)(I) or (II) of the the United States;
Act due to a mental disorder and asso- (v) The applicant will have in his or
ciated threatening or harmful behav- her possession, or will have access to,
ior, if such alien is accompanied by a as medically appropriate, an adequate
member of his/her family, or a guard- supply of antiretroviral drugs for the
ian who will be responsible for him/her anticipated stay in the United States
during the period of admission author- and possesses sufficient assets, such as
ized. insurance that is accepted in the
(f) Inadmissibility under section United States, to cover any medical
212(a)(1) for aliens inadmissible due to care that the applicant may require in
HIV—(1) General. Pursuant to the au- the event of illness at any time while
thority in section 212(d)(3)(A)(i) of the in the United States;
Act, any alien who is inadmissible (vi) The applicant’s admission will
under section 212(a)(1)(A)(i) of the Act not create any cost to the United
due to infection with the etiologic States, or a state or local government,
agent for acquired immune deficiency or any agency thereof, without the
syndrome (HIV infection) may be prior written consent of the agency;
issued a B–1 (business visitor) or B–2 (vii) The applicant is seeking admis-
(visitor for pleasure) nonimmigrant sion solely for activities that are con-
visa by a consular officer or the Sec- sistent with the B–1 (business visitor)
retary of State, and be authorized for or B–2 (visitor for pleasure) non-
temporary admission into the United immigrant classification;
States for a period not to exceed 30 (viii) The applicant is aware that no
days, subject to authorization of an ad- single admission to the United States
ditional period or periods under para- will be for a period that exceeds 30 days
graph (f)(5) of this section, provided (subject to paragraph (f)(5) of this sec-
that the authorization is granted in ac- tion);
cordance with paragraphs (f)(2) through (ix) The applicant is otherwise ad-
(f)(7) of this section. Application under missible to the United States and no
this paragraph (f) may not be combined other ground of inadmissibility applies;
with any other waiver of inadmis- (x) The applicant is aware that he or
sibility. she cannot be admitted under section
(2) Conditions. An alien who is HIV- 217 of the Act (Visa Waiver Program);
positive who applies for a non- (xi) The applicant is aware that any
immigrant visa before a consular offi- failure to comply with any condition of
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cer may be issued a B–1 (business vis- admission set forth under this para-
itor) or B–2 (visitor for pleasure) non- graph (f) will thereafter make him or
immigrant visa and admitted to the her ineligible for authorization under
United States for a period not to ex- this paragraph; and
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Department of Homeland Security § 212.4
(xii) The applicant, for the purpose of riod of authorized stay, the director (or
admission pursuant to authorization other appropriate official) having juris-
under this paragraph (f), waives any diction over the place of the alien’s
opportunity to apply for an extension temporary stay may, in his or her dis-
of nonimmigrant stay (except as pro- cretion, grant an additional period (or
vided in paragraph (f)(5) of this sec- periods) of satisfactory departure, each
tion), a change of nonimmigrant sta- such period not to exceed 30 days. If de-
tus, or adjustment of status to that of parture is accomplished during that pe-
permanent resident. riod, the alien is to be regarded as hav-
(A) Nothing in this paragraph (f) pre- ing satisfactorily accomplished the
cludes an alien admitted under this visit without overstaying the allotted
paragraph (f) from applying for asylum time.
pursuant to section 208 of the Act. (6) Failure to comply. No authoriza-
(B) Any alien admitted under this tion under section 212(d)(3)(A)(i) of the
paragraph (f) who applies for adjust- Act and this paragraph (f) may be pro-
ment of status under section 209 of the vided to any alien who has previously
Act after being granted asylum must failed to comply with any condition of
establish his or her eligibility to adjust an admission authorized under this
status under all applicable provisions paragraph.
of the Act and 8 CFR part 209. Any ap- (7) Additional limitations. The Sec-
plicable ground of inadmissibility must retary of Homeland Security or the
be waived by approval of an appro- Secretary of State may require addi-
priate waiver(s) under section 209(c) of tional evidence or impose additional
the Act and 8 CFR 209.2(b). conditions on granting authorization
(C) Nothing within this paragraph (f) for temporary admissions under this
constitutes a waiver of inadmissibility paragraph (f) as international (or other
under section 209 of the Act or 8 CFR relevant) conditions may indicate.
part 209. (8) Option for case-by-case determina-
(3) Nonimmigrant visa. A non- tion. If the applicant does not meet the
immigrant visa issued to the applicant criteria under this paragraph (f), or
for purposes of temporary admission does not wish to agree to the condi-
under section 212(d)(3)(A)(i) of the Act tions for the streamlined 30-day visa
and this paragraph (f) may not be valid under this paragraph (f), the applicant
for more than 12 months or for more may elect to utilize the process de-
than two applications for admission scribed in either paragraph (a) or (b) of
during the 12-month period. The au- this section, as applicable.
thorized period of stay will be for 30 (g) Action upon alien’s arrival. Upon
calendar days calculated from the ini- admitting an alien who has been grant-
tial admission under this visa. ed the benefits of section 212(d)(3)(A) of
(4) Application at U.S. port. If other- the Act, the immigration officer shall
wise admissible, a holder of the non- be guided by the conditions and limita-
immigrant visa issued under section tions imposed in the authorization and
212(d)(3)(A)(i) of the Act and this para- noted by the consular officer in the
graph (f) is authorized to apply for ad- alien’s passport. When admitting any
mission at a United States port of alien who has been granted the benefits
entry at any time during the period of of section 212(d)(3)(B) of the Act, the
validity of the visa in only the B–1 Immigration officer shall note on the
(business visitor) or B–2 (visitor for arrival-departure record, Form I–94, or
pleasure) nonimmigrant categories. crewman’s landing permit, Form I–95,
(5) Admission limited; satisfactory de- issued to the alien, the conditions and
parture. Notwithstanding any other limitations imposed in the authoriza-
provision of this chapter, no single pe- tion.
riod of admission under section (h) Authorizations issued to crewmen
212(d)(3)(A)(i) of the Act and this para- without limitation as to period of validity.
graph (f) may be authorized for more When a crewman who has a valid sec-
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219
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§ 212.5 8 CFR Ch. I (1–1–10 Edition)
the validity of his section 212(d)(3) au- the alien has been admitted to the
thorization expires as of a date six United States as an S nonimmigrant,
months thereafter, and any previously- or after the alien’s change to S classi-
issued Form I–184 shall be lifted and fication, or for conduct or a condition
Form I–95 shall be issued in its place undisclosed to the Attorney General
and similarly endorsed. prior to the alien’s admission in, or
(i) Revocation. The Deputy Commis- change to, S classification, unless such
sioner or the district director may at conduct or condition is waived prior to
any time revoke a waiver previously admission and classification. In the
authorized under section 212(d)(3) of event the Commissioner decides to re-
the Act and shall notify the non- move an S nonimmigrant from the
immigrant in writing to that effect. United States, the Assistant Attorney
(j) Alien witnesses and informants—(1) General, Criminal Division, and the
Waivers under section 212(d)(1) of the Act. relevant LEA shall be notified in writ-
Upon the application of a federal or ing to that effect. The Assistant Attor-
state law enforcement authority ney General, Criminal Division, shall
(‘‘LEA’’), which shall include a state or concur in or object to that decision.
federal court or United States Attor- Unless the Assistant Attorney General,
ney’s Office, pursuant to the filing of Criminal Division, objects within 7
Form I–854, Inter-Agency Alien Witness days, he or she shall be deemed to have
and Informant Record, for non- concurred in the decision. In the event
immigrant classification described in of an objection by the Assistant Attor-
section 101(a)(15)(S) of the Act, the ney General, Criminal Division, the
Commissioner shall determine whether matter will be expeditiously referred to
a ground of exclusion exists with re- the Deputy Attorney General for a
spect to the alien for whom classifica- final resolution. In no circumstances
tion is sought and, if so, whether it is shall the alien or the relevant LEA
in the national interest to exercise the have a right of appeal from any deci-
discretion to waive the ground of ex- sion to remove.
cludability, other than section
[29 FR 15252, Nov. 13, 1964, as amended at 30
212(a)(3)(E) of the Act. The Commis-
FR 12330, Sept. 28, 1965; 31 FR 10413, Aug. 3,
sioner may at any time revoke a waiv- 1966; 32 FR 15469, Nov. 7, 1967; 35 FR 3065, Feb.
er previously authorized under section 17, 1970; 35 FR 7637, May 16, 1970; 40 FR 30470,
212(d)(1) of the Act. In the event the July 21, 1975; 51 FR 32295, Sept. 10, 1986; 53 FR
Commissioner decides to revoke a pre- 40867, Oct. 19, 1988; 60 FR 44264, Aug. 25, 1995;
viously authorized waiver for an S non- 60 FR 52248, Oct. 5, 1995; 67 FR 71448, Dec. 2,
immigrant, the Assistant Attorney 2002; 73 FR 58030, Oct. 6, 2008]
General, Criminal Division, and the
relevant LEA shall be notified in writ- § 212.5 Parole of aliens into the United
ing to that effect. The Assistant Attor- States.
ney General, Criminal Division, shall (a) The authority of the Secretary to
concur in or object to the decision. Un- continue an alien in custody or grant
less the Assistant Attorney General, parole under section 212(d)(5)(A) of the
Criminal Division, objects within 7 Act shall be exercised by the Assistant
days, he or she shall be deemed to have Commissioner, Office of Field Oper-
concurred in the decision. In the event ations; Director, Detention and Re-
of an objection by the Assistant Attor- moval; directors of field operations;
ney General, Criminal Division, the port directors; special agents in charge;
matter will be expeditiously referred to deputy special agents in charge; asso-
the Deputy Attorney General for a ciate special agents in charge; assist-
final resolution. In no circumstances ant special agents in charge; resident
shall the alien or the relevant LEA agents in charge; field office directors;
have a right of appeal from any deci- deputy field office directors; chief pa-
sion to revoke. trol agents; district directors for serv-
(2) Grounds of removal. Nothing shall ices; and those other officials as may
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Department of Homeland Security § 212.5
the exercise of discretion, the author- graph (b) of this section, those officials
ity under section 212(d)(5)(A) of the listed in paragraph (a) of this section
Act. may, after review of the individual
(b) The parole of aliens within the case, parole into the United States
following groups who have been or are temporarily in accordance with section
detained in accordance with § 235.3(b) or 212(d)(5)(A) of the Act, any alien appli-
(c) of this chapter would generally be cant for admission, under such terms
justified only on a case-by-case basis and conditions, including those set
for ‘‘urgent humanitarian reasons’’ or forth in paragraph (d) of this section,
‘‘significant public benefit,’’ provided as he or she may deem appropriate. An
the aliens present neither a security alien who arrives at a port-of-entry and
risk nor a risk of absconding: applies for parole into the United
(1) Aliens who have serious medical States for the sole purpose of seeking
conditions in which continued deten- adjustment of status under section
tion would not be appropriate; 245A of the Act, without benefit of ad-
(2) Women who have been medically vance authorization as described in
certified as pregnant; paragraph (f) of this section shall be
(3) Aliens who are defined as juve- denied parole and detained for removal
niles in § 236.3(a) of this chapter. The in accordance with the provisions of
Director, Detention and Removal; di- § 235.3(b) or (c) of this chapter. An alien
rectors of field operations; field office seeking to enter the United States for
directors; deputy field office directors; the sole purpose of applying for adjust-
or chief patrol agents shall follow the ment of status under section 210 of the
guidelines set forth in § 236.3(a) of this Act shall be denied parole and detained
chapter and paragraphs (b)(3)(i) for removal under § 235.3(b) or (c) of
through (iii) of this section in deter- this chapter, unless the alien has been
mining under what conditions a juve- recommended for approval of such ap-
nile should be paroled from detention: plication for adjustment by a consular
(i) Juveniles may be released to a rel- officer at an Overseas Processing Of-
ative (brother, sister, aunt, uncle, or fice.
grandparent) not in Service detention (d) Conditions. In any case where an
who is willing to sponsor a minor and alien is paroled under paragraph (b) or
the minor may be released to that rel- (c) of this section, those officials listed
ative notwithstanding that the juve- in paragraph (a) of this section may re-
nile has a relative who is in detention. quire reasonable assurances that the
(ii) If a relative who is not in deten- alien will appear at all hearings and/or
tion cannot be located to sponsor the depart the United States when required
minor, the minor may be released with to do so. Not all factors listed need be
an accompanying relative who is in de- present for parole to be exercised.
tention. Those officials should apply reasonable
(iii) If the Service cannot locate a discretion. The consideration of all rel-
relative in or out of detention to spon- evant factors includes:
sor the minor, but the minor has iden- (1) The giving of an undertaking by
tified a non-relative in detention who the applicant, counsel, or a sponsor to
accompanied him or her on arrival, the ensure appearances or departure, and a
question of releasing the minor and the bond may be required on Form I–352 in
accompanying non-relative adult shall such amount as may be deemed appro-
be addressed on a case-by-case basis; priate;
(4) Aliens who will be witnesses in (2) Community ties such as close rel-
proceedings being, or to be, conducted atives with known addresses; and
by judicial, administrative, or legisla- (3) Agreement to reasonable condi-
tive bodies in the United States; or tions (such as periodic reporting of
(5) Aliens whose continued detention whereabouts).
is not in the public interest as deter- (e) Termination of parole—(1) Auto-
mined by those officials identified in matic. Parole shall be automatically
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§ 212.5 8 CFR Ch. I (1–1–10 Edition)
for which parole was authorized, and in United States a fear of persecution or
the latter case the alien shall be proc- an intention to apply for asylum. Upon
essed in accordance with paragraph termination of parole, any such alien
(e)(2) of this section except that no shall be regarded as an arriving alien,
written notice shall be required. and processed accordingly by the De-
(2)(i) On notice. In cases not covered partment of Homeland Security.
by paragraph (e)(1) of this section, (f) Advance authorization. When pa-
upon accomplishment of the purpose role is authorized for an alien who will
for which parole was authorized or travel to the United States without a
when in the opinion of one of the offi- visa, the alien shall be issued Form I–
cials listed in paragraph (a) of this sec-
512.
tion, neither humanitarian reasons nor
(g) Parole for certain Cuban nationals.
public benefit warrants the continued
presence of the alien in the United Notwithstanding any other provision
States, parole shall be terminated upon respecting parole, the determination
written notice to the alien and he or whether to release on parole, or to re-
she shall be restored to the status that voke the parole of, a native of Cuba
he or she had at the time of parole. who last came to the United States be-
When a charging document is served on tween April 15, 1980, and October 20,
the alien, the charging document will 1980, shall be governed by the terms of
constitute written notice of termi- § 212.12.
nation of parole, unless otherwise spec- (h) Effect of parole of Cuban and Hai-
ified. Any further inspection or hearing tian nationals. (1) Except as provided in
shall be conducted under section 235 or paragraph (h)(2) of this section, any na-
240 of the Act and this chapter, or any tional of Cuba or Haiti who was paroled
order of exclusion, deportation, or re- into the United States on or after Oc-
moval previously entered shall be exe- tober 10, 1980, shall be considered to
cuted. If the exclusion, deportation, or have been paroled in the special status
removal order cannot be executed with- for nationals of Cuba or Haiti, referred
in a reasonable time, the alien shall to in section 501(e)(1) of the Refugee
again be released on parole unless in Education Assistance Act of 1980, Pub-
the opinion of the official listed in lic Law 96–422, as amended (8 U.S.C.
paragraph (a) of this section the public 1522 note).
interest requires that the alien be con- (2) A national of Cuba or Haiti shall
tinued in custody. not be considered to have been paroled
(ii) An alien who is granted parole in the special status for nationals of
into the United States after enactment
Cuba or Haiti, referred to in section
of the Immigration Reform and Control
501(e)(1) of the Refugee Education As-
Act of 1986 for other than the specific
sistance Act of 1980, Public Law 96–422,
purpose of applying for adjustment of
status under section 245A of the Act as amended, if the individual was pa-
shall not be permitted to avail him or roled into the United States:
herself of the privilege of adjustment (i) In the custody of a Federal, State
thereunder. Failure to abide by this or local law enforcement or prosecu-
provision through making such an ap- torial authority, for purposes of crimi-
plication will subject the alien to ter- nal prosecution in the United States;
mination of parole status and institu- or
tion of proceedings under sections 235 (ii) Solely to testify as a witness in
and 236 of the Act without the written proceedings before a judicial, adminis-
notice of termination required by trative, or legislative body in the
§ 212.5(e)(2)(i) of this chapter. United States.
(iii) Any alien granted parole into
[47 FR 30045, July 9, 1982, as amended at 47
the United States so that he or she
FR 46494, Oct. 19, 1982; 52 FR 16194, May 1,
may transit through the United States 1987; 52 FR 48802, Dec. 28, 1987; 53 FR 17450,
in the course of removal from Canada
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Department of Homeland Security § 212.6
223
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§ 212.7 8 CFR Ch. I (1–1–10 Edition)
or combined B–1/B–2 visitor visa and may be declared void by United States
non-biometric border crossing identi- consular officers or United States im-
fication card (or similar stamp in a migration officers in Mexico or Can-
passport), issued by the DOS, shall be ada.
held by the Service for presentation to (4) Grounds. Grounds for voidance of a
the immigration judge. Form I–185, I–186, I–586, a DOS-issued
(ii) If the applicant chooses not to non-biometric BCC, or the biometric
have a hearing, the Form DSP–150 or Form DSP–150 shall be that the holder
combined B–1/B–2 visitor visa and non- has violated the immigration laws;
biometric BCC (or similar stamp in a that he/she is inadmissible to the
passport) issued by the DOS, shall be United States; that he/she has aban-
voided and physically cancelled. The doned his/her residence in the country
alien to whom the card or stamp was upon which the card was granted; or if
issued by the DOS shall be notified of the BCC is presented for admission on
the action taken and the reasons for or after October 1, 2002, it does not con-
such action by means of Form I–275, tain a machine-readable biometric
Withdrawal of Application for Admis- identifier corresponding to the bearer
sion/Consular Notification, delivered in and is invalid on or after October 1,
person or by mailing the Form I–275 to 2002.
the last known address. The DOS shall (e) Replacement. If a valid Border
be notified of the cancellation of the Crossing Card (Forms I–185, I–186, or I–
biometric Form DSP–150 or combined 586) previously issued by the Service, a
B–1/B–2 visitor visa and non-biometric non-biometric border crossing card
BCC (or similar stamp in a passport) issued by the DOS before April 1998, or
issued by DOS, by means of a copy of a Form DSP–150 issued by the DOS has
the original Form I–275. Nothing in been lost, stolen, mutilated, or de-
this paragraph limits the Service’s stroyed, the person to whom the card
ability to remove an alien pursuant to was issued may apply for a new card as
8 CFR part 235 where applicable. provided for in the DOS regulations
(2) Within the United States. In accord- found at 22 CFR 41.32 and 22 CFR 41.103.
ance with former section 242 of the Act [67 FR 71448, Dec. 2, 2002 ]
(before amended by section 306 of the
IIRIRA of 1996, Div. C, Public Law 104– § 212.7 Waiver of certain grounds of in-
208, 110 Stat. 3009 (Sept. 30, 1996,) or admissibility.
current sections 235(b), 238, and 240 of (a) General—
the Act, if the holder of a Form DSP– (1) Form I–601 must be filed in ac-
150, or other combined B–1/B–2 visa and cordance with the instructions on the
BCC, or (similar stamp in a passport) form. When filed at a consular office,
issued by the DOS, is placed under re- Form I–601 shall be forwarded to USCIS
moval proceedings, no action to cancel for a decision upon conclusion that the
the card or stamp shall be taken pend- alien is admissible but for the grounds
ing the outcome of the hearing. If the for which a waiver is sought.
alien is ordered removed or granted (2) Termination of application for lack
voluntary departure, the card or stamp of prosecution. An applicant may with-
shall be physically cancelled and void- draw the application at any time prior
ed by an immigration officer. In the to the final decision, whereupon the
case of an alien holder of a BCC who is case will be closed and the consulate
granted voluntary departure without a notified. If the applicant fails to pros-
hearing, the card shall be declared void ecute the application within a reason-
and physically cancelled by an immi- able time either before or after inter-
gration officer who is authorized to view the applicant shall be notified
issue a Notice to Appear or to grant that if he or she fails to prosecute the
voluntary departure. application within 30 days the case will
(3) In Mexico or Canada. Forms I–185, be closed subject to being reopened at
I–186 or I–586 issued by the Service and the applicant’s request. If no action
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which are now invalid, or a Form DSP– has been taken within the 30-day pe-
150 or combined B–1/B–2 visitor visa riod immediately thereafter, the case
and non-biometric BCC, or (similar will be closed and the appropriate con-
stamp in a passport) issued by the DOS sul notified.
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Department of Homeland Security § 212.7
225
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§ 212.7 8 CFR Ch. I (1–1–10 Edition)
Service office. The statement must be alien, his or her sponsoring family
from a clinic, hospital, institution, spe- member, or other responsible person
cialized facility, or specialist in the shall provide such assurances or bond
United States approved by the U.S. as may be required to assure that the
Public Health Service. The alien or necessary expenses of the alien will be
alien’s sponsor may be referred to the met and that he or she will not become
mental retardation or mental health a public charge. For procedures relat-
agency of the state of proposed resi- ing to cancellation or breaching of
dence for guidance in selecting a post- bonds, see part 103 of this chapter.
arrival medical examining authority (c) Section 212(e). (1) An alien who was
who will complete the evaluation and admitted to the United States as an ex-
provide an evaluation report to the change visitor, or who acquired that
Centers for Disease Control. The state- status after admission, is subject to
ment must specify the name and ad- the foreign residence requirement of
dress of the specialized facility, or spe- section 212(e) of the Act if his or her
cialist, and must affirm that: participation in an exchange program
(A) The specified facility or specialist was financed in whole or in part, di-
agrees to evaluate the alien’s mental rectly or indirectly, by a United States
status and prepare a complete report of government agency or by the govern-
the findings of such evaluation. ment of the country of his or her na-
(B) The alien, the alien’s sponsoring tionality or last foreign residence.
family member, or another responsible
(2) An alien is also subject to the for-
person has made complete financial ar-
eign residence requirement of section
rangements for payment of any charges
212(e) of the Act if at the time of ad-
that may be incurred after arrival for
mission to the United States as an ex-
studies, care, training and service;
(C) The Director, Division of Quar- change visitor or at the time of acqui-
antine, Center for Prevention Services, sition of exchange visitor status after
Centers for Disease Control, Atlanta, admission to the United States, the
GA. 30333 shall be furnished: alien was a national or lawful perma-
(1) The report evaluating the alien’s nent resident of a country which the
mental status within 30 days after the Director of the United States Informa-
alien’s arrival; and tion Agency had designated, through
(2) Prompt notification of the alien’s public notice in the FEDERAL REGISTER,
failure to report to the facility or spe- as clearly requiring the services of per-
cialist within 30 days after being noti- sons engaged in the field of specialized
fied by the U.S. Public Health Service knowledge or skill in which the alien
that the alien has arrived in the United was to engage in his or her exchange
States. visitor program.
(D) The alien shall be in an out- (3) An alien is also subject to the for-
patient, inpatient, study, or other spec- eign residence requirement of section
ified status as determined by the re- 212(e) of the Act if he or she was admit-
sponsible local physcian or specialist ted to the United States as an ex-
during the initial evaluation. change visitor on or after January 10,
(5) Assurances: Bonds. In all cases 1977 to receive graduate medical edu-
under paragraph (b) of this section the cation or training, or following admis-
alien or his or her sponsoring family sion, acquired such status on or after
member shall also submit an assurance that date for that purpose. However, an
that the alien will comply with any exchange visitor already participating
special travel requirements as may be in an exchange program of graduate
specified by the U.S. Public Health medical education or training as of
Service and that, upon the admission January 9, 1977 who was not then sub-
of the alien into the United States, he ject to the foreign residence require-
or she will proceed directly to the fa- ment of section 212(e) and who proceeds
cility or specialist specified for the ini- or has proceeded abroad temporarily
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tial evaluation, and will submit to such and is returning to the United States
further examinations or treatment as to participate in the same program,
may be required, whether in an out- continues to be exempt from the for-
patient, inpatient, or other status. The eign residence requirement.
226
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Department of Homeland Security § 212.7
tional hardship upon his or her spouse 214(l) of the Act (as redesignated by
or child who is a citizen of the United section 671(a)(3)(A) of Pub. L. 104–208).
States or a lawful permanent resident Although the alien is not required to
thereof. The statement shall include submit a separate waiver application
227
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§ 212.7 8 CFR Ch. I (1–1–10 Edition)
to the Service, the burden rests on the pursuant to Pub. L. 103–416 and this
alien to establish eligibility for the section to foreign medical graduates
waiver. If the Service approves a waiv- who will practice medicine in the same
er request made under Pub. L. 103–416, state to exceed 20 during the current
the foreign medical graduate (and ac- fiscal year.
companying dependents) may apply for (ii) Decision on waivers under Pub. L.
change of nonimmigrant status, from 103–416 and notification to the alien—(A)
J–1 to H–1B and, in the case of depend- Approval. If the Director of USIA sub-
ents of such a foreign medical grad- mits a favorable waiver recommenda-
uate, from J–2 to H–4. Aliens receiving tion on behalf of a foreign medical
waivers under section 220 of Pub. L.
graduate pursuant to Pub. L. 103–416,
103–416 are subject, in all cases, to the
and the Service grants the waiver, the
provisions of section 214(g)(1)(A) of the
Act. alien shall be notified of the approval
(i) Eligiblity criteria. J–1 foreign med- on Form I–797 (or I–797A or I–797B, as
ical graduates (with accompanying J–2 appropriate). The approval notice shall
dependents) are eligible to apply for a clearly state the terms and conditions
waiver of the 2-year requirement under imposed on the waiver, and the Serv-
Pub. L. 103–416 based on a request by a ice’s records shall be noted accord-
State Department of Public Health (or ingly.
its equivalent) if: (B) Denial. If the Director of USIA
(A) They were admitted to the United issues a favorable waiver recommenda-
States under section 101(a)(15)(J) of the tion under Pub. L. 103–416 and the Serv-
Act, or acquired J nonimmigrant sta- ice denies the waiver, the alien shall be
tus before June 1, 2002, to pursue grad- notified of the decision and of the right
uate medical education or training in to appeal under 8 CFR part 103. How-
the United States. ever, no appeal shall lie where the basis
(B) They have entered into a bona for denial is that the number of waiv-
fide, full-time employment contract for ers granted to the State in which the
3 years to practice medicine at a health foreign medical graduate will be em-
care facility located in an area or areas ployed would exceed 20 for that fiscal
designated by the Secretary of Health year.
and Human Services as having a short-
(iii) Conditions. The foreign medical
age of health care professionals (‘‘HHS-
designated shortage area’’); graduate must agree to commence em-
(C) They agree to commence employ- ployment for the health care facility
ment within 90 days of receipt of the specified in the waiver application
waiver under this section and agree to within 90 days of receipt of the waiver
practice medicine for 3 years at the fa- under Pub. L. 103–416. The foreign med-
cility named in the waiver application ical graduate may only fulfill the req-
and only in HHS-designated shortage uisite 3-year employment contract as
areas. The health care facility named an H–1B nonimmigrant. A foreign med-
in the waiver application may be oper- ical graduate who receives a waiver
ated by: under Pub. L. 103–416 based on a re-
(1) An agency of the Government of quest by a State Department of Public
the United States or of the State in Health (or equivalent), and changes his
which it is located; or or her nonimmigrant classification
(2) A charitable, educational, or from J–1 to H–1B, may not apply for
other not-for-profit organization; or permanent residence or for any other
(3) Private medical practitioners. change of nonimmigrant classification
(D) The Department of Public Health, unless he or she has fulfilled the 3-year
or its equivalent, in the State where employment contract with the health
the health care facility is located has care facility and in the specified HHS-
requested the Director, USIA, to rec- designated shortage area named in the
ommend the waiver, and the Director,
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waiver application.
USIA, submits a favorable waiver rec-
(iv) Failure to fulfill the three-year em-
ommendation to the Service; and
(E) Approval of the waiver will not ployment contract due to extenuating cir-
cause the number of waivers granted cumstances. A foreign medical graduate
228
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Department of Homeland Security § 212.7
who fails to meet the terms and condi- cility named in the waiver application
tions imposed on the waiver under sec- shall also submit evidence that the fa-
tion 214(l) of the Act and this para- cility has closed or is about to be
graph will once again become subject closed.
to the 2-year requirement under sec- (vi) Notification requirements. A J–1
tion 212(e) of the Act. foreign medical graduate who has been
Under section 214(l)(1)(B) of the Act, granted a waiver of the 2-year require-
however, the Service, in the exercise of ment pursuant to Pub. L. 103–416, is re-
discretion, may excuse early termi- quired to comply with the terms and
nation of the foreign medical grad- conditions specified in section 214(l) of
uate’s 3-year period of employment the Act and the implementing regula-
with the health care facility named in tions in this section. If the foreign
the waiver application due to extenu- medical graduate subsequently applies
ating circumstances. Extenuating cir- for and receives H–1B status, he or she
cumstances may include, but are not must also comply with the terms and
limited to, closure of the health care conditions of that nonimmigrant sta-
facility or hardship to the alien. In de- tus. Such compliance shall also include
termining whether to excuse such early notifying the Service of any material
termination of employment, the Serv- change in the terms and conditions of
ice shall base its decision on the spe- the H–1B employment, by filing either
cific facts of each case. In all cases, the an amended or a new H–1B petition, as
burden of establishing eligibility for a required, under §§ 214.2(h)(2)(i)(D),
favorable exercise of discretion rests 214.2(h)(2)(i)(E), and 214.2(h)(11) of this
with the foreign medical graduate. De- chapter.
pending on the circumstances, closure (A) Amended H–1B petitions. The
of the health care facility named in the health care facility named in the waiv-
waiver application may, but need not, er application and H–1B petition shall
be considered an extenuating cir- file an amended H–1B petition, as re-
cumstance excusing early termination quired under § 214.2(h)(2)(i)(E) of this
of employment. Under no cir- chapter, if there are any material
cumstances will a foreign medical changes in the terms and conditions of
graduate be eligible to apply for the beneficiary’s employment or eligi-
change of status to another non- bility as specified in the waiver appli-
immigrant category, for an immigrant cation filed under Pub. L. 103–416 and
visa or for status as a lawful perma- in the subsequent H–1B petition. In
nent resident prior to completing the such a case, an amended H–1B petition
requisite 3-year period of employment shall be accompanied by evidence that
for a health care facility located in an the alien will continue practicing med-
HHS-designated shortage area. icine with the original employer in an
(v) Required evidence. A foreign med- HHS-designated shortage area.
ical graduate who seeks to have early (B) New H–1B petitions. A health care
termination of employment excused facility seeking to employ a foreign
due to extenuating circumstances shall medical graduate who has been granted
submit documentary evidence estab- a waiver under Pub. L. 103–416 (prior to
lishing such a claim. In all cases, the the time the alien has completed his or
foreign medical graduate shall submit her 3-year contract with the facility
an employment contract with another named in the waiver application and
health care facility located in an HHS- original H–1B petition), shall file a new
designated shortage area for the bal- H–1B petition with the Service, as re-
ance of the required 3-year period of quired under §§ 214.2(h)(2)(i) (D) and (E)
employment. A foreign medical grad- of this chapter. Although a new waiver
uate claiming extenuating cir- application need not be filed, the new
cumstances based on hardship shall H–1B petition shall be accompanied by
also submit evidence establishing that the documentary evidence generally
such hardship was caused by unfore- required under § 214.2(h) of this chapter,
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seen circumstances beyond his or her and the following additional docu-
control. A foreign medical graduate ments:
claiming extenuating circumstances (1) A copy of Form I–797 (and/or I–
based on closure of the health care fa- 797A and I–797B) relating to the waiver
229
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§ 212.7 8 CFR Ch. I (1–1–10 Edition)
criteria have been satisfied, the waiver furnished statement in writing that it
granted to the foreign medical grad- has no objection to his/her being grant-
uate under Pub. L. 103–416 may be af- ed a waiver of the foreign residence re-
firmed, and the new H1–B petition may quirement and the Director, United
230
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Department of Homeland Security § 212.8
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§ 212.9 8 CFR Ch. I (1–1–10 Edition)
the United States of which he will be a 212(k) of the Act. If the application for
principal manager and that the enter- waiver is denied by the district direc-
prise will employ a person or persons in tor, the application may be renewed in
the United States who are United exclusion proceedings before an immi-
States citizens or aliens lawfully ad- gration judge as provided in part 236 of
mitted for permnanent residence, ex- this chapter.
clusive of the alien, his spouse and
children. A copy of a document sub- (Secs. 103, 203, 212 of the Immigration and
mitted in support of Form I–526 may be Nationality Act, as amended by secs. 4, 5, 18
of Pub. L. 97–116, 95 Stat. 1611, 1620, (8 U.S.C.
accepted though unaccompanied by the
1103, 1153, 1182)
original, if the copy bears a certifi-
cation by an attorney, typed or rubber- [47 FR 44236, Oct. 7, 1982]
stamped in the language set forth in
§ 204.2(j) of this chapter. However, the § 212.11 Controlled substance convic-
original document shall be submitted, tions.
if submittal is requested by the Serv- In determining the admissibility of
ice. an alien who has been convicted of a
[31 FR 10021, July 23, 1966; 31 FR 10355, Aug. violation of any law or regulation of a
22, 1966, as amended at 34 FR 5326, Mar. 18, State, the United States, or a foreign
1969; 38 FR 31166, Nov. 12, 1973; 41 FR 37566, country relating to a controlled sub-
Sept. 7, 1976; 41 FR 55850, Dec. 23, 1976; 47 FR stance, the term controlled substance as
44990, Oct. 13, 1982; 48 FR 19157, Apr. 28, 1983] used in section 212(a)(23) of the Act,
shall mean the same as that referenced
§ 212.9 Applicability of section
212(a)(32) to certain derivative in the Controlled Substances Act, 21
third and sixth preference and non- U.S.C. 801, et seq., and shall include any
preference immigrants. substance contained in Schedules I
A derivative beneficiary who is the through V of 21 CFR 1308.1, et seq. For
spouse or child of a qualified third or the purposes of this section, the term
sixth preference or nonpreference im- controlled substance includes controlled
migrant and who is also a graduate of substance analogues as defined in 21
a medical school as defined by section U.S.C. 802(23) and 813.
101(a)(41) of the Act is not considered [53 FR 9282, Mar. 22, 1988]
to be an alien who is coming to the
United States principally to perform § 212.12 Parole determinations and
services as a member of the medical revocations respecting Mariel Cu-
profession. Therefore, a derivative bans.
third or sixth preference or non- (a) Scope. This section applies to any
preference immigrant under section native of Cuba who last came to the
203(a)(8) of the Act, who is also a grad-
United States between April 15, 1980,
uate of a medical school, is eligible for
and October 20, 1980 (hereinafter re-
an immigrant visa or for adjustment of
ferred to as Mariel Cuban) and who is
status under section 245 of the Act,
being detained by the Immigration and
whether or not such derivative immi-
Naturalization Service (hereinafter re-
grant has passed Parts I and II of the
ferred to as the Service) pending his or
National Board of Medical Examiners
her exclusion hearing, or pending his or
Examination or equivalent examina-
her return to Cuba or to another coun-
tion.
try. It covers Mariel Cubans who have
(Secs. 103, 203(a)(8), and 212(a)(32), 8 U.S.C never been paroled as well as those
1103, 1153(a)(8), and 1182(a)(32)) Mariel Cubans whose previous parole
[45 FR 63836, Sept. 26, 1980] has been revoked by the Service. It
also applies to any Mariel Cuban, de-
§ 212.10 Section 212(k) waiver. tained under the authority of the Im-
Any applicant for admission who is migration and Nationality Act in any
in possession of an immigrant visa, and facility, who has not been approved for
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Department of Homeland Security § 212.12
those Mariel Cubans who have been re- otherwise provided, consist of two per-
leased on parole at any time. sons. Members of a Review Panel shall
(b) Parole authority and decision. The be selected from the professional staff
authority to grant parole under section of the Service. All recommendations by
212(d)(5) of the Act to a detained Mariel a two-member Panel shall be unani-
Cuban shall be exercised by the Com- mous. If the vote of a two-member
missioner, acting through the Asso- Panel is split, it shall adjourn its delib-
ciate Commissioner for Enforcement, erations concerning that particular de-
as follows: tainee until a third Panel member is
(1) Parole decisions. The Associate added. A recommendation by a three-
Commissioner for Enforcement may, in member Panel shall be by majority
the exercise of discretion, grant parole vote. The third member of any Panel
to a detained Mariel Cuban for emer- shall be the Director of the Cuban Re-
gent reasons or for reasons deemed view Plan or his designee.
strictly in the public interest. A deci- (2) Criteria for Review. Before making
sion to retain in custody shall briefly any recommendation that a detainee
set forth the reasons for the continued be granted parole, a majority of the
detention. A decision to release on pa- Cuban Review Panel members, or the
role may contain such special condi- Director in case of a record review,
tions as are considered appropriate. A must conclude that:
copy of any decision to parole or to de- (i) The detainee is presently a non-
tain, with an attached copy translated violent person;
into Spanish, shall be provided to the (ii) The detainee is likely to remain
detainee. Parole documentation for nonviolent;
Mariel Cubans shall be issued by the (iii) The detainee is not likely to
district director having jurisdiction pose a threat to the community fol-
over the alien, in accordance with the lowing his release; and
parole determination made by the As- (iv) The detainee is not likely to vio-
sociate Commissioner for Enforcement. late the conditions of his parole.
(2) Additional delegation of authority.
(3) Factors for consideration. The fol-
All references to the Commissioner and
lowing factors should be weighed in
Associate Commissioner for Enforce-
considering whether to recommend fur-
ment in this section shall be deemed to
ther detention or release on parole of a
include any person or persons (includ-
detainee:
ing a committee) designated in writing
(i) The nature and number of discipli-
by the Commissioner or Associate
nary infractions or incident reports re-
Commissioner for Enforcement to exer-
ceived while in custody;
cise powers under this section.
(c) Review Plan Director. The Asso- (ii) The detainee’s past history of
ciate Commissioner for Enforcement criminal behavior;
shall appoint a Director of the Cuban (iii) Any psychiatric and psycho-
Review Plan. The Director shall have logical reports pertaining to the de-
authority to establish and maintain tainee’s mental health;
appropriate files respecting each (iv) Institutional progress relating to
Mariel Cuban to be reviewed for pos- participation in work, educational and
sible parole, to determine the order in vocational programs;
which the cases shall be reviewed, and (v) His ties to the United States, such
to coordinate activities associated with as the number of close relatives resid-
these reviews. ing lawfully here;
(d) Recommendations to the Associate (vi) The likelihood that he may ab-
Commissioner for Enforcement. Parole scond, such as from any sponsorship
recommendations for detained Mariel program; and
Cubans shall be developed in accord- (vii) Any other information which is
ance with the following procedures. probative of whether the detainee is
(1) Review Panels. The Director shall likely to adjust to life in a community,
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designate a panel or panels to make pa- is likely to engage in future acts of vio-
role recommendations to the Associate lence, is likely to engage in future
Commissioner for Enforcement. A criminal activity, or is likely to vio-
Cuban Review Panel shall, except as late the conditions of his parole.
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§ 212.12 8 CFR Ch. I (1–1–10 Edition)
(4) Procedure for review. The following his sponsorship or placement. The fol-
procedures will govern the review proc- lowing sponsorships and placements
ess: are suitable:
(i) Record review. Initially, the Direc- (1) Placement by the Public Health
tor or a Panel shall review the detain- Service in an approved halfway house
ee’s file. Upon completion of this or mental health project;
record review, the Director or the (2) Placement by the Community Re-
Panel shall issue a written rec- lations Service in an approved halfway
ommendation that the detainee be re- house or community project; and
leased on parole or scheduled for a per- (3) Placement with a close relative
sonal interview. such as a parent, spouse, child, or sib-
(ii) Personal interview. If a rec- ling who is a lawful permanent resident
ommendation to grant parole after or a citizen of the United States.
only a record review is not accepted or
(g) Timing of reviews. The timing of
if the detainee is not recommended for
review shall be in accordance with the
release, a Panel shall personally inter-
following guidelines.
view the detainee. The scheduling of
such interviews shall be at the discre- (1) Parole revocation cases. The Direc-
tion of the Director. The detainee may tor shall schedule the review process in
be accompanied during the interview the case of a new or returning detainee
by a person of his choice, who is able to whose previous immigration parole has
attend at the time of the scheduled been revoked. The review process will
interview, to assist in answering any commence with a scheduling of a file
questions. The detainee may submit to review, which will ordinarily be ex-
the Panel any information, either oral- pected to occur within approximately
ly or in writing, which he believes pre- three months after parole is revoked.
sents a basis for release on parole. In the case of a Mariel Cuban who is in
(iii) Panel recommendation. Following the custody of the Service, the Cuban
completion of the interview and its de- Review Plan Director may, in his or
liberations, the Panel shall issue a her discretion, suspend or postpone the
written recommendation that the de- parole review process if such detainee’s
tainee be released on parole or remain prompt deportation is practicable and
in custody pending deportation or proper.
pending further observation and subse- (2) Continued detention cases. A subse-
quent review. This written rec- quent review shall be commenced for
ommendation shall include a brief any detainee within one year of a re-
statement of the factors which the fusal to grant parole under § 212.12(b),
Panel deems material to its rec- unless a shorter interval is specified by
ommendation. The recommendation the Director.
and appropriate file material shall be (3) Discretionary reviews. The Cuban
forwarded to the Associate Commis- Review Plan Director, in his discretion,
sioner for Enforcement, to be consid- may schedule a review of a detainee at
ered in the exercise of discretion pursu- any time when the Director deems such
ant to § 212.12(b). a review to be warranted.
(e) Withdrawal of parole approval. The (h) Revocation of parole. The Asso-
Associate Commissioner for Enforce- ciate Commissioner for Enforcement
ment may, in his or her discretion, shall have authority, in the exercise of
withdraw approval for parole of any de- discretion, to revoke parole in respect
tainee prior to release when, in his or to Mariel Cubans. A district director
her opinion, the conduct of the de- may also revoke parole when, in the
tainee, or any other circumstance, in- district director’s opinion, revocation
dicates that parole would no longer be is in the public interest and cir-
appropriate. cumstances do not reasonably permit
(f) Sponsorship. No detainee may be referral of the case to the Associate
released on parole until suitable spon- Commissioner. Parole may be revoked
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Department of Homeland Security § 212.14
the alien’s failure to report quarterly The Commissioner will coordinate the
any criminal conduct by the alien, or arrival of the alien in parole status
any other activity or behavior on the with the port director prior to the time
alien’s part that may constitute a of arrival.
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§ 212.15 8 CFR Ch. I (1–1–10 Edition)
(iii) Parole will be authorized for a sioner may, in the exercise of discre-
period of thirty (30) days to commence tion:
upon the alien’s arrival in the United (i) Terminate the alien’s parole sta-
States in order for the LEA to submit tus;
a completed Form I–854 to the Assist- (ii) Determine eligibility for waivers;
ant Attorney General, Criminal Divi- and
sion. Upon the submission to the As- (iii) Admit the alien in S non-
sistant Attorney General of the Form immigrant classification pursuant to
I–854 requesting S classification, the the terms and conditions of section
period of parole will be automatically 101(a)(15(S) of the Act and 8 CFR
extended while the request is being re- 214.2(t).
viewed. The Assistant Attorney Gen- (c) Departure. If the alien’s parole has
eral, Criminal Division, will notify the been terminated and the alien has been
ordered excluded from the United
Commissioner of the submission of a
States, the LEA shall ensure departure
Form I–854.
from the United States and so inform
(b) Termination of parole—(1) General. the district director in whose jurisdic-
The Commissioner may terminate pa- tion the alien has last resided. The dis-
role for any alien (including a member trict director, if necessary, shall over-
of the alien’s family) in parole status see the alien’s departure from the
under this section where termination is United States and, in any event, shall
in the public interest. A district direc- notify the Commissioner of the alien’s
tor may also terminate parole when, in departure. The Commissioner shall be
the district director’s opinion, termi- notified in writing of the failure of any
nation is in the public interest and cir- alien authorized parole under this
cumstances do not reasonably permit paragraph to depart in accordance with
referral of the case to the Commis- an order of exclusion and deportation
sioner. In such a case, the Commis- entered after parole authorized under
sioner shall be notified immediately. In this paragraph has been terminated.
the event the Commissioner, or in the (d) Failure to comply with procedures.
appropriate case, a district director, Any failure to adhere to the parole pro-
decides to terminate the parole of an cedures contained in this section shall
alien witness or informant authorized immediately be brought to the atten-
under the terms of this paragraph, the tion of the Commissioner, who will no-
Assistant Attorney General, Criminal tify the Attorney General.
Division, and the relevant LEA shall be [60 FR 44265, Aug. 25, 1995]
notified in writing to that effect. The
Assistant Attorney General, Criminal § 212.15 Certificates for foreign health
Division, shall concur in or object to care workers.
that decision. Unless the Assistant At- (a) General certification requirements.
torney General, Criminal Division, ob- (1) Except as provided in paragraph (b)
jects within 7 days, he or she shall be or paragraph (d)(1) of this section, any
deemed to have concurred in the deci- alien who seeks admission to the
sion. In the event of an objection by United States as an immigrant or as a
the Assistant Attorney General, Crimi- nonimmigrant for the primary purpose
nal Division, the matter will be expedi- of performing labor in a health care oc-
tiously referred to the Deputy Attor- cupation listed in paragraph (c) of this
ney General for a final resolution. In section is inadmissible unless the alien
no circumstances shall the alien or the presents a certificate from a
relevant LEA have a right of appeal credentialing organization, listed in
from any decision to terminate parole. paragraph (e) of this section.
(2) Termination of parole and admission (2) In the alternative, an eligible
in S classification. When an LEA has alien who seeks to enter the United
filed a request for an alien in author- States for the primary purpose of per-
ized parole status to be admitted in S forming labor as a nurse may present a
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Department of Homeland Security § 212.15
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§ 212.15 8 CFR Ch. I (1–1–10 Edition)
public of additional credentialing orga- (i) The name, address, and telephone
nizations through the publication of number of the credentialing organiza-
notices in the FEDERAL REGISTER. tion, and a point of contact to verify
(1) The Commission on Graduates of the validity of the certificate;
Foreign Nursing Schools (CGFNS) is (ii) The date the certificate was
authorized to issue certificates under issued;
section 212(a)(5)(C) of the Act for (iii) The health care occupation for
nurses, physical therapists, occupa- which the certificate was issued; and
tional therapists, speech-language pa- (iv) The alien’s name, and date and
thologists and audiologists, medical place of birth.
technologists (also known as clinical (g) English language requirements. (1)
laboratory scientists), medical techni- With the exception of those aliens de-
cians (also known as clinical labora- scribed in paragraph (g)(2) of this sec-
tory technicians), and physician assist- tion, every alien must meet certain
ants. English language requirements in order
(2) The National Board for Certifi- to obtain a certificate. The Secretary
cation in Occupational Therapy of HHS has sole authority to set stand-
(NBCOT) is authorized to issue certifi- ards for these English language re-
cates in the field of occupational ther- quirements, and has determined that
apy pending final adjudication of its an alien must have a passing score on
credentialing status under this part. one of the three tests listed in para-
graph (g)(3) of this section before he or
(3) The Foreign Credentialing Com-
she can be granted a certificate. HHS
mission on Physical Therapy (FCCPT)
will notify The Department of Home-
is authorized to issue certificates in
land Security of additions or deletions
the field of physical therapy pending
to this list, and The Department of
final adjudication of its credentialing
Homeland Security will publish such
status under this part.
changes in the FEDERAL REGISTER.
(f) Requirements for issuance of health (2) The following aliens are exempt
care certification. (1) Prior to issuing a from the English language require-
certification to an alien, the organiza- ments:
tion must verify the following: (i) Alien nurses who are presenting a
(i) That the alien’s education, train- certified statement under section 212(r)
ing, license, and experience are com- of the Act; and
parable with that required for an (ii) Aliens who have graduated from a
American health care worker of the college, university, or professional
same type; training school located in Australia,
(ii) That the alien’s education, train- Canada (except Quebec), Ireland, New
ing, license, and experience are authen- Zealand, the United Kingdom, or the
tic and, in the case of a license, United States.
unencumbered; (3) The following English testing
(iii) That the alien’s education, train- services have been approved by the
ing, license, and experience meet all Secretary of HHS:
applicable statutory and regulatory re- (i) Educational Testing Service
quirements for admission into the (ETS).
United States. This verification is not (ii) Test of English in International
binding on the DHS; and Communication (TOEIC) Service Inter-
(iv) Either that the alien has passed national.
a test predicting success on the occupa- (iii) International English Language
tion’s licensing or certification exam- Testing System (IELTS).
ination, provided such a test is recog- (4) Passing English test scores for
nized by a majority of states licensing various occupations.
the occupation for which the certifi- (i) Occupational and physical thera-
cation is issued, or that the alien has pists. An alien seeking to perform labor
passed the occupation’s licensing or in the United States as an occupational
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Department of Homeland Security § 212.15
Paper-Based 560, Computer-Based 220; (i) The alien has a valid and unre-
Test of Written English (TWE): 4.5; stricted license as a nurse in a state
Test of Spoken English (TSE): 50. The where the alien intends to be employed
certifying organizations shall not ac- and such state verifies that the foreign
cept the results of the TOEIC, or the licenses of alien nurses are authentic
IELTS for the occupation of occupa- and unencumbered;
tional therapy or physical therapy. (ii) The alien has passed the National
(ii) Registered nurses and other health Council Licensure Examination for
care workers requiring the attainment of a registered nurses (NCLEX-RN);
baccalaureate degree. An alien coming (iii) The alien is a graduate of a nurs-
to the United States to perform labor ing program in which the language of
as a registered nurse (other than a instruction was English;
nurse presenting a certified statement (iv) The nursing program was located
under section 212(r) of the Act) or to in Australia, Canada (except Quebec),
perform labor in another health care Ireland, New Zealand, South Africa,
occupation requiring a baccalaureate the United Kingdom, or the United
degree (other than occupational or States; or in any other country des-
physical therapy) must obtain one of ignated by unanimous agreement of
the following combinations of scores to CGFNS and any equivalent
obtain a certificate: credentialing organizations which have
(A) ETS: TOEFL: Paper-Based 540, been approved for the certification of
Computer-Based 207; TWE: 4.0; TSE: 50; nurses and which are listed at para-
(B) TOEIC Service International: graph (e) of this section; and
TOEIC: 725; plus TWE: 4.0 and TSE: 50;
(v) The nursing program was in oper-
or
ation on or before November 12, 1999, or
(C) IELTS: 6.5 overall with a spoken
has been approved by unanimous agree-
band score of 7.0. This would require
ment of CGFNS and any equivalent
the Academic module.
credentialing organizations that have
(iii) Occupations requiring less than a
been approved for the certification of
baccalaureate degree. An alien coming
nurses.
to the United States to perform labor
in a health care occupation that does (3) An individual who obtains a cer-
not require a baccalaureate degree tified statement need not comply with
must obtain one of the following com- the certificate requirements of para-
binations of scores to obtain a certifi- graph (f) or the English language re-
cate: quirements of paragraph (g) of this sec-
(A) ETS: TOEFL: Paper-Based 530, tion.
Computer-Based 197; TWE: 4.0; TSE: 50; (4) A certified statement issued to a
(B) TOEIC Service International: nurse under section 212(r) of the Act
TOEIC: 700; plus TWE 4.0 and TSE: 50; must contain the following informa-
or tion:
(C) IELTS: 6.0 overall with a spoken (i) The name, address, and telephone
band score of 7.0. This would allow ei- number of the credentialing organiza-
ther the Academic or the General mod- tion, and a point of contact to verify
ule. the validity of the certified statement;
(h) Alternative certified statement for (ii) The date the certified statement
certain nurses. (1) CGFNS is authorized was issued; and
to issue certified statements under sec- (iii) The alien’s name, and date and
tion 212(r) of the Act for aliens seeking place of birth.
to enter the United States to perform (i) Streamlined certification process—(1)
labor as nurses. The DHS will notify Nurses. An alien nurse who has grad-
the public of new organizations that uated from an entry level program ac-
are approved to issue certified state- credited by the National League for
ments through notices published in the Nursing Accreditation Commission
FEDERAL REGISTER. (NLNAC) or the Commission on Colle-
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240
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Department of Homeland Security § 212.15
of the reasons for the denial. Approval its renewal; setting fees for application
of authorization to issue certificates to and all other services provided as part
foreign health care workers or certified of the screening process; funding,
statements to nurses will be made in 5- spending, and budget authority related
year increments, subject to the review to the operation of the certification or-
process described at paragraph (l) of ganization; ability to enter into con-
this section. tracts and grant arrangements; ability
(iii) If the application is denied, the to demonstrate adequate staffing and
decision may be appealed pursuant to 8 management resources to conduct the
CFR 103.3 to the Associate Commis- program(s) including the authority to
sioner for Examinations. approve selection of, evaluate, and ini-
(k) Standards for credentialing organi- tiate dismissal of the chief staff mem-
zations. The DHS will evaluate organi- ber.
zations, including CGFNS, seeking to (D) An organization whose fees are
obtain approval from the DHS to issue based on whether an applicant receives
certificates for health care workers, or a visa may not be approved.
certified statements for nurses. Any or- (iii) The organization shall include
ganization meeting the standards set the following representation in the por-
forth in paragraph (k)(1) of this section tion of its organization responsible for
can be eligible for authorization to overseeing certification and, where ap-
issue certificates. While CGFNS has plicable, examinations:
been specifically listed in the statute
(A) Individuals from the same health
as an entity authorized to issue certifi-
care discipline as the alien health care
cates, it is not exempt from govern-
worker being evaluated who are eligi-
mental oversight. All organizations
ble to practice in the United States;
will be reviewed, including CGFNS, to
and
guarantee that they continue to meet
(B) At least one voting public mem-
the standards required of all certifying
ber to represent the interests of con-
organizations, under the following:
sumers and protect the interests of the
(1) Structure of the organization. (i)
public at large. The public member
The organization shall be incorporated
shall not be a member of the discipline
as a legal entity.
or derive significant income from the
(ii)(A) The organization shall be inde-
discipline, its related organizations, or
pendent of any organization that func-
the organization issuing the certifi-
tions as a representative of the occupa-
cate.
tion or profession in question or serves
as or is related to a recruitment/place- (iv) The organization must have a
ment organization. balanced representation such that the
(B) The DHS shall not approve an or- individuals from the same health care
ganization that is unable to render im- discipline, the voting public members,
partial advice regarding an individual’s and any other appointed individuals
qualifications regarding training, expe- have an equal say in matters relating
rience, and licensure. to credentialing and/or examinations.
(C) The organization must also be (v) The organization must select rep-
independent in all decision making resentatives of the discipline using one
matters pertaining to evaluations and/ of the following recommended meth-
or examinations that it develops in- ods, or demonstrate that it has a selec-
cluding, but not limited to: policies tion process that meets the intent of
and procedures; eligibility require- these methods:
ments and application processing; (A) Be selected directly by members
standards for granting certificates and of the discipline eligible to practice in
their renewal; examination content, the United States;
development, and administration; ex- (B) Be selected by members of a
amination cut-off scores, excluding membership organization representing
those pertaining to English language the discipline or by duly elected rep-
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§ 212.15 8 CFR Ch. I (1–1–10 Edition)
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Department of Homeland Security § 212.15
race, religion, national origin, dis- rent information of the type necessary
ability, or marital status and shall in- to evaluate foreign educational institu-
clude a statement of nondiscrimination tions and accrediting bodies for pur-
in announcements of the evaluation/ex- poses of ensuring that the quality of
amination procedures and renewal cer- foreign educational programs is equiv-
tification process. alent to those training the same occu-
(ii) The organization shall provide all pation in the United States. The orga-
applicants with copies of formalized nization shall examine, evaluate, and
application procedures for evaluation/ validate the academic and clinical re-
examination and shall uniformly fol- quirements applied to each country’s
low and enforce such procedures for all accrediting body or bodies, or in coun-
applicants. Instructions shall include tries not having such bodies, of the
standards regarding English language educational institution itself.
requirements. (ii) The organization shall also evalu-
(iii) The organization shall imple- ate the licensing and credentialing sys-
ment a formal policy for the periodic tem(s) of each country or licensing ju-
review of eligibility criteria and appli- risdiction to determine which systems
cation procedures to ensure that they are equivalent to that of the majority
are fair and equitable. of the licensing jurisdictions in the
(iv) Where examinations are used, the United States.
organization shall provide competently (6) Ability to conduct examinations fair-
proctored examination sites at least ly and impartially. An organization un-
once annually. dertaking the administration of a pre-
(v) The organization shall report ex- dictor examination, or a licensing or
amination results to applicants in a certification examination shall dem-
uniform and timely fashion. onstrate the ability to conduct such
(vi) The organization shall provide examination fairly and impartially.
applicants who failed either the eval- (7) Criteria for awarding and governing
uation or examination with informa- certificate holders. (i) The organization
tion on general areas of deficiency. shall issue a certificate after the edu-
(vii) The organization shall imple- cation, experience, license, and English
ment policies and procedures to ensure language competency have been evalu-
that each applicant’s examination re- ated and determined to be equivalent
sults are held confidential and delin- to their United States counterparts. In
eate the circumstances under which situations where a United States na-
the applicant’s certification status tionally recognized licensure or certifi-
may be made public. cation examination, or a test pre-
(viii) The organization shall have a dicting the success on the licensure or
formal policy for renewing the certifi- certification examination, is offered
cation if an individual’s original cer- overseas, the applicant must pass the
tification has expired before the indi- examination or the predictor test prior
vidual first seeks admission to the to receiving certification. Passage of a
United States or applies for adjustment test predicting the success on the li-
of status. Such procedures shall be re- censure or certification examination
stricted to updating information on li- may be accepted only if a majority of
censure to determine the existence of states (and Washington, DC) licensing
any adverse actions and the need to re- the profession in which the alien in-
establish English competency. tends to work recognize such a test.
(ix) The organization shall publish (ii) The organization shall have poli-
due process policies and procedures for cies and procedures for the revocation
applicants to question eligibility deter- of certificates at any time if it is deter-
minations, examination or evaluation mined that the certificate holder was
results, and eligibility status. not eligible to receive the certificate at
(x) The organization shall provide all the time that it was issued. If the orga-
qualified applicants with a certificate nization revokes an individual’s certifi-
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§ 212.15 8 CFR Ch. I (1–1–10 Edition)
health care profession. The organiza- to issue health care worker certifi-
tion may not reissue a certificate to an cates. The DHS will notify the
individual whose certificate has been credentialing organization in writing
revoked. of the results of the review and request
(8) Criteria for maintaining accredita- for reauthorization. The DHS may con-
tion. (i) The organization shall advise duct a review of the approval of any re-
the DHS of any changes in purpose, quest for authorization to issue certifi-
structure, or activities of the organiza- cates at any time within the 5-year pe-
tion or its program(s). riod of authorization for any reason. If
(ii) The organization shall advise the at any time the DHS determines that
DHS of any major changes in the eval- an organization is not complying with
uation of credentials and examination the terms of its authorization or if
techniques, if any, or in the scope or other adverse information relating to
objectives of such examinations. eligibility to issue certificates is devel-
(iii) The organization shall, upon the oped, the DHS may initiate termi-
request of the DHS, submit to the DHS, nation proceedings.
or any organization designated by the (m) Termination of certifying organiza-
DHS, information requested of the or- tions. (1) If the DHS determines that an
ganization and its programs for use in organization has been convicted, or the
investigating allegations of non-com- directors or officers of an authorized
pliance with standards and for general credentialing organization have indi-
purposes of determining continued ap- vidually been convicted of the viola-
proval as an independent credentialing tion of state or federal laws, or other
organization. information is developed such that the
(iv) The organization shall establish fitness of the organization to continue
performance outcome measures that to issue certificates or certified state-
track the ability of the certificate ments is called into question, the DHS
holders to pass United States licensure shall automatically terminate author-
or certification examinations. The pur- ization for that organization to issue
pose of the process is to ensure that certificates or certified statements by
certificate holders pass United States issuing to the organization a notice of
licensure or certification examinations termination of authorization to issue
at the same pass rate as graduates of certificates to foreign health care
United States programs. Failure to es- workers. The notice shall reference the
tablish such measures, or having a specific conviction that is the basis of
record showing an inability of persons the automatic termination.
granted certificates to pass United (2) If the DHS determines that an or-
States licensure examinations at the ganization is not complying with the
same rate as graduates of United terms of its authorization or other ad-
States programs, may result in a verse information relating to eligi-
ground for termination of approval. In- bility to issue certificates is uncovered
formation regarding the passage rates during the course of a review or other-
of certificate holders shall be main- wise brought to the DHS’ attention, or
tained by the organization and pro- if the DHS determines that an organi-
vided to HHS on an annual basis, to the zation currently authorized to issue
DHS as part of the 5-year reauthoriza- certificates or certified statements has
tion application, and at any other time not submitted an application or pro-
upon request by HHS or the DHS. vided all information required on Form
(v) The organization shall be in ongo- I–905 within 6 months of July 25, 2003,
ing compliance with other policies the DHS will issue a Notice of Intent to
specified by the DHS. Terminate authorization to issue cer-
(l) DHS review of the performance of tificates to the credentialing organiza-
certifying organizations. The DHS will tion. The Notice shall set forth reasons
review credentialing organizations for the proposed termination.
every 5 years to ensure continued com- (i) The credentialing organization
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pliance with the standards described in shall have 30 days from the date of the
this section. Such review will occur Notice of Intent to Terminate author-
concurrent with the adjudication of a ization to rebut the allegations, or to
Form I–905 requesting reauthorization cure the noncompliance identified in
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Department of Homeland Security § 212.15
the DHS’s notice of intent to termi- ada or Mexico, who, before September
nate. 23, 2003, was employed as a TN or TC
(ii) DHS will forward to HHS upon re- nonimmigrant health care worker and
ceipt any information received in re- held a valid license from a U.S. juris-
sponse to a Notice of Intent to Termi- diction), such discretion shall be ap-
nate an entity’s authorization to issue plied on a case-by-case basis.
certificates. Thirty days after the date (2) Conditions. Until July 26, 2004 (or
of the Notice of Intent to Terminate, until July 26, 2005, in the case of a cit-
the DHS shall forward any additional izen of Canada or Mexico, who, before
evidence and shall request an opinion September 23, 2003, was employed as a
from HHS regarding whether the orga- TN or TC nonimmigrant health care
nization’s authorization should be ter- worker and held a valid license from a
minated. The DHS shall accord HHS’ U.S. jurisdiction), the temporary ad-
opinion great weight in determining mission, extension of stay, or change of
whether the authorization should be status of an alien described in 8 CFR
terminated. After consideration of the part 212(d)(1) or (d)(2) of this section
rebuttal evidence, if any, and consider- that is provided for under this para-
ation of HHS’ opinion, the DHS will graph (n) is subject to the following
promptly provide the organization with conditions:
a written decision. If termination of (i) The admission, extension of stay,
credentialing status is made, the writ- or change of status may not be for a
ten decision shall set forth the reasons period longer than 1 year from the date
for the termination. of the decision, even if the relevant
(3) An adverse decision may be ap- provision of 8 CFR 214.2 would ordi-
pealed pursuant to 8 CFR 103.3 to the narily permit the alien’s admission for
Associate Commissioner for Examina- a longer period;
tions. Termination of credentialing (ii) The alien must obtain the certifi-
status shall remain in effect until and cation required by paragraph (a) of this
unless the terminated organization re- section within 1 year of the date of de-
applies for credentialing status and is cision to admit the alien or to extend
approved, or its appeal of the termi- the alien’s stay or change the alien’s
nation decision is sustained by the Ad- status; and,
ministrative Appeals Office. There is (iii) Any subsequent petition or ap-
no waiting period for an organization plication to extend the period of the
to re-apply for credentialing status. alien’s authorized stay or change the
(n) Transition—(1) One year waiver. (i) alien’s nonimmigrant status must in-
Pursuant to section 212(d)(3) of the Act clude proof that the alien has obtained
(and, for cases described in paragraph the certification required by paragraph
(d)(1) of this section, upon the rec- (a) of this section, if the extension or
ommendation of the Secretary of stay or change of status is sought for
State), the Secretary has determined the primary purpose of the alien’s per-
that until July 26, 2004 (or until July forming labor in a health care occupa-
26, 2005, in the case of a citizen of Can- tion listed in paragraph (c) of this sec-
ada or Mexico who, before September tion.
23, 2003, was employed as a TN or TC (3) Immigrant aliens. An alien de-
nonimmigrant health care worker and scribed in paragraph (a) of this section,
held a valid license from a U.S. juris- who is coming to the United States as
diction), DHS, subject to the condi- an immigrant or is applying for adjust-
tions in paragraph (n)(2) of this sec- ment of status pursuant to section 245
tion, may in its discretion admit, ex- of the Act (8 U.S.C. 1255), to perform
tend the period of authorized stay, or labor in a health care occupation de-
change the nonimmigrant status of an scribed in paragraph (c) of this section,
alien described in paragraph (d)(1) or must submit the certificate or certified
paragraph (d)(2) of this section, despite statement as provided in this section
the alien’s inadmissibility under sec- at the time of visa issuance or adjust-
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§ 212.16 8 CFR Ch. I (1–1–10 Edition)
any admission into the United States, Service will only exercise its discretion
change of status within the United in exceptional cases unless the crimi-
States, or adjustment of status within nal activities rendering the alien inad-
5 years of the date that it is issued. missible were caused by or were inci-
(5) Revocation of certificate or certified dent to the victimization described
statement. When a credentialing organi- under section 101(a)(15)(T)(i) of the Act.
zation notifies the DHS, via the Ne- (3) An application for waiver of a
braska Service Center, that an individ- ground of inadmissibility for T non-
ual’s certification or certified state- immigrant status (other than under
ment has been revoked, the DHS will section 212(a)(6) of the Act) will be
take appropriate action, including, but granted only in exceptional cases when
not limited to, revocation of approval the ground of inadmissibility would
of any related petitions, consistent prevent or limit the ability of the ap-
with the Act and DHS regulations at 8 plicant to adjust to permanent resident
CFR 205.2, 8 CFR 214.2(h)(11)(iii), and 8 status after the conclusion of 3 years.
CFR 214.6(d)(5)(iii). (4) The Service shall have sole discre-
tion to grant or deny a waiver, and
[68 FR 43915, July 25, 2003, as amended at 69 there shall be no appeal of a decision to
FR 43731, July 22, 2004; 74 FR 26938, June 5,
2009]
deny a waiver. However, nothing in
this paragraph (b) is intended to pre-
§ 212.16 Applications for exercise of vent an applicant from re-filing a re-
discretion relating to T non- quest for a waiver of a ground of inad-
immigrant status. missibility in appropriate cases.
(a) Filing the waiver application. An (c) Incident to victimization. When an
alien applying for the exercise of dis- applicant for status under section
cretion under section 212(d)(13) or 101(a)(15)(T) of the Act seeks a waiver
(d)(3)(B) of the Act (waivers of inadmis- of a ground of inadmissibility under
sibility) in connection with an applica- section 212(d)(13) of the Act on grounds
tion for T nonimmigrant status shall other than those described in sections
submit Form I–192, with the appro- 212(a)(1) and (a)(4) of the Act, the appli-
priate fee in accordance with cant must establish that the activities
§ 103.7(b)(1) of this chapter or an appli- rendering him or her inadmissible were
cation for a fee waiver, to the Service caused by, or were incident to, the vic-
with the completed Form I–914 applica- timization described in section
tion package for status under section 101(a)(15)(T)(i)(I) of the Act.
101(a)(15)(T)(i) of the Act. (d) Revocation. The Commissioner
(b) Treatment of waiver application. (1) may at any time revoke a waiver pre-
The Service shall determine whether a viously authorized under section 212(d)
ground of inadmissibility exists with of the Act. Under no circumstances
respect to the alien applying for T non- shall the alien or any party acting on
immigrant status. If a ground of inad- his or her behalf have a right to appeal
missibility is found, the Service shall from a decision to revoke a waiver.
determine if it is in the national inter- [67 FR 4795, Jan. 31, 2002]
est to exercise discretion to waive the
ground of inadmissibility, except for § 212.17 Applications for the exercise
grounds of inadmissibility based upon of discretion relating to U non-
sections 212(a)(3), 212(a)(10)(C) and immigrant status.
212(a)(10)(E) of the Act, which the Com- (a) Filing the waiver application. An
missioner may not waive. Special con- alien applying for a waiver of inadmis-
sideration will be given to the granting sibility under section 212(d)(3)(B) or
of a waiver of a ground of inadmis- (d)(14) of the Act (waivers of inadmis-
sibility where the activities rendering sibility), 8 U.S.C. 1182(d)(3)(B) or (d)(14),
the alien inadmissible were caused by in connection with a petition for U
or incident to the victimization de- nonimmigrant status being filed pursu-
scribed under section 101(a)(15)(T)(i) of ant to 8 CFR 214.14, must submit Form
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Department of Homeland Security Pt. 213
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§ 213.1 8 CFR Ch. I (1–1–10 Edition)
§ 213.1 Admission under bond or cash the Act, with the intention to main-
deposit. tain that residence for the foreseeable
The district director having jurisdic- future.
tion over the intended place of resi- Federal poverty line means the level of
dence of an alien may accept a public income equal to the poverty guidelines
charge bond prior to the issuance of an as issued by the Secretary of Health
immigrant visa to the alien upon re- and Human Services in accordance
ceipt of a request directly from a with 42 U.S.C. 9902 that is applicable to
United States consular officer or upon a household of the size involved. For
presentation by an interested person of purposes of considering the Form I–864,
a notification from the consular officer Affidavit of Support Under Section
requiring such a bond. Upon acceptance 213A of the Act, the Service and Con-
of such a bond, the district director sular Posts will use the most recent in-
shall notify the U.S. consular officer come-poverty guidelines published in
who requested the bond, giving the the FEDERAL REGISTER by the Depart-
date and place of acceptance and the ment of Health and Human Services.
amount of the bond. The district direc- These guidelines are updated annually,
tor having jurisdiction over the place and the Service and Consular Posts
where the examination for admission is will begin to use updated guidelines on
being conducted or the special inquiry the first day of the second month after
officer to whom the case is referred the date the guidelines are published in
may exercise the authority contained the FEDERAL REGISTER.
in section 213 of the Act. All bonds and Household income means the income
agreements covering cash deposits used to determine whether the sponsor
given as a condition of admission of an meets the minimum income require-
alien under section 213 of the Act shall ments under sections 213A(f)(1)(E),
be executed on Form I–352 and shall be 213A(f)(3), or 213A(f)(5) of the Act. It in-
in the sum of not less than $1,000. The cludes the income of the sponsor, and
officer accepting such deposit shall of the sponsor’s spouse and any other
give his receipt therefor on Form I–305. person included in determining the
For procedures relating to bond riders, sponsor’s household size, if the spouse
acceptable sureties, cancellation or or other person is at least 18 years old
breaching of bonds, see § 103.6 of this and has signed a U.S. Citizenship and
chapter. Immigration Services (USCIS) Form I–
864A, Affidavit of Support Contract Be-
[29 FR 10579, July 30, 1964, as amended at 32 tween Sponsor and Household Member,
FR 9626, July 4, 1967; 62 FR 10349, Mar. 6, 1997] on behalf of the sponsor and intending
immigrants. The ‘‘household income’’
PART 213a—AFFIDAVITS OF SUP- may not, however, include the income
PORT ON BEHALF OF IMMI- of an intending immigrant, unless the
GRANTS intending immigrant is either the
sponsor’s spouse or has the same prin-
Sec. cipal residence as the sponsor and the
213a.1 Definitions. preponderance of the evidence shows
213a.2 Use of affidavit of support. that the intending immigrant’s income
213a.3 Notice of change of address. results from the intending immigrant’s
213a.4 Actions for reimbursement, public lawful employment in the United
notice, and congressional reports.
States or from some other lawful
213a.5 Relationship of this part to other af-
fidavits of support. source that will continue to be avail-
able to the intending immigrant after
AUTHORITY: 8 U.S.C. 1183a; 8 CFR part 2. he or she acquires permanent resident
SOURCE: 62 FR 54352, Oct. 20, 1997, unless status. The prospect of employment in
otherwise noted. the United States that has not yet ac-
tually begun will not be sufficient to
§ 213a.1 Definitions. meet this requirement.
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As used in this part, the term: Household size means the number ob-
Domicile means the place where a tained by adding the number of persons
sponsor has his or her principal resi- specified in this definition. In calcu-
dence, as defined in section 101(a)(33) of lating household size, no individual
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Department of Homeland Security § 213a.1
shall be counted more than once. If the this definition the number of relatives
intending immigrant’s spouse or child (as defined in this section) of the spon-
is a citizen or already holds the status sor who have the same principal resi-
of an alien lawfully admitted for per- dence as the sponsor and whose income
manent residence, then the sponsor will be relied on to meet the require-
should not include that spouse or child ments of section 213A of the Act and
in determining the total household this part.
size, unless the intending immigrant’s Immigration Officer, solely for pur-
spouse or child is a dependent of the poses of this part, includes a Consular
sponsor. Officer, as defined by section 101(a)(9)
(1) In all cases, the household size in- of the Act, as well as an Immigration
cludes the sponsor, the sponsor’s Officer, as defined by § 103.1(j) of this
spouse and all of the sponsor’s chil- chapter.
dren, as defined in section 101(b)(1) of Income means an individual’s total
the Act (other than a stepchild who income (adjusted gross income for
meets the requirements of section those who file IRS Form 1040EZ) for
101(b)(1)(B) of the Act, if the stepchild purposes of the individual’s U.S. Fed-
does not reside with the sponsor, is not eral income tax liability, including a
claimed by the sponsor as a dependent joint income tax return (e.g., line 22 on
for tax purposes, and is not seeking to the 2004 IRS Form 1040, line 15 on the
immigrate based on the stepparent/ 2004 IRS Form 1040A, or line 4 on the
stepchild relationship), unless these 2004 IRS Form 1040EZ or the cor-
children have reached the age of major- responding line on any future revision
ity under the law of the place of domi- of these IRS Forms). Only an individ-
cile and the sponsor did not claim them ual’s Federal income tax return—that
as dependents on the sponsor’s Federal is, neither a state or territorial income
income tax return for the most recent tax return nor an income tax return
tax year. The following persons must filed with a foreign government—shall
also be included in calculating the be filed with an affidavit of support,
sponsor’s household size: Any other unless the individual had no duty to
persons (whether related to the sponsor file a Federal income tax return, and
or not) whom the sponsor has claimed claims that his or her state, territorial
as dependents on the sponsor’s Federal or foreign taxable income is sufficient
income tax return for the most recent to establish the sufficiency of the affi-
tax year, even if such persons do not davit of support.
have the same principal residence as Intending immigrant means any bene-
the sponsor, plus the number of aliens ficiary of an immigrant visa petition
the sponsor has sponsored under any filed under section 204 of the Act, in-
other Forms I–864 for whom the spon- cluding any alien who will accompany
sor’s support obligation has not termi- or follow-to-join the principal bene-
nated, plus the number of aliens to be ficiary.
sponsored under the current Form I– Joint sponsor means any individual
864, even if such aliens do not or will who meets the requirements of section
not have the same principal residence 213A(f)(1)(A), (B), (C), and (E) of the Act
as the sponsor. If a child, as defined in and 8 CFR 213a.2(c)(1)(i), and who, as
section 101(b)(1) of the Act, or spouse of permitted by section 213A(f)(5)(A) of
the principal intending immigrant is the Act, is willing to submit a Form I–
an alien who does not currently reside 864 and accept joint and several liabil-
in the United States and who either is ity with the sponsor or substitute spon-
not seeking to immigrate at the same sor, in any case in which the sponsor’s
time as, or will not seek to immigrate or substitute sponsor’s household in-
within six months of the principal in- come is not sufficient to satisfy the re-
tending immigrant’s immigration, the quirements of section 213A of the Act.
sponsor may exclude that child or Means-tested public benefit means ei-
spouse in calculating the sponsor’s ther a Federal means-tested public
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§ 213a.2 8 CFR Ch. I (1–1–10 Edition)
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Department of Homeland Security § 213a.2
Form I–864 (and any Forms I–864A) the deadline for submission of the ini-
with the application for adjustment of tial evidence in any manner permitted
status. under subpart C of 8 CFR part 1003 and
(iii) There must be a separate Form any local rules of the Immigration
I–864 (and any Form(s) I–864A), with Court. If additional evidence is re-
original signatures, for each principal quired under this paragraph, an intend-
visa petition beneficiary. ing immigrant must submit additional
(iv) Each immigrant who will accom- evidence (including copies or tran-
pany the principal intending immi- scripts of any income tax returns for
grant must be included on Form I–864 the most recent tax year) concerning
(and any Forms I–864A). See paragraph the income or employment of the spon-
(f) of this section for further informa- sor, substitute sponsor, joint sponsor,
tion concerning immigrants who in- or household member in the year in
tend to accompany or follow the prin- which the Department of State officer,
cipal intending immigrant to the immigration officer, or immigration
United States. judge makes the request for additional
(v)(A) Except as provided for under evidence. In this case, the sufficiency
paragraph (a)(1)(v)(B) of this section, of the Form I–864 and any Form I–864A
the Department of State officer, immi- will be determined based on the spon-
gration officer, or immigration judge sor’s, substitute sponsor’s, or joint
shall determine the sufficiency of a sponsor’s reasonably expected house-
Form I–864 or I–864A based on the spon- hold income in the year the Depart-
sor’s, substitute sponsor’s, or joint ment of State officer, immigration offi-
sponsor’s reasonably expected house- cer or immigration judge makes the re-
hold income in the year in which the quest for additional evidence, and
intending immigrant filed the applica- based on the evidence submitted in re-
tion for an immigrant visa or for ad- sponse to the request for additional
justment of status, and based on the evidence and on the Poverty Guidelines
evidence submitted with the Form I– in effect when the request for evidence
864 or Form I–864A and the Poverty was issued.
Guidelines in effect when the intending (2)(i) Except for cases specified in
immigrant filed the application for an paragraph (a)(2)(ii) of this section,
immigrant visa or adjustment of sta- paragraph (a)(1) of this section applies
tus. to any application for an immigrant
(B) If more than one year passes be- visa or for adjustment of status filed
tween the filing of the Form I–864 or on or after December 19, 1997, in which
Form I–864A and the hearing, inter- an intending immigrant seeks an im-
view, or examination of the intending migrant visa, admission as an immi-
immigrant concerning the intending grant, or adjustment of status as:
immigrant’s application for an immi- (A) An immediate relative under sec-
grant visa or adjustment of status, and tion 201(b)(2)(A)(i) of the Act, including
the Department of State officer, immi- orphans and any alien admitted as a K
gration officer or immigration judge nonimmigrant when the alien seeks ad-
determines, in the exercise of discre- justment of status;
tion, that the particular facts of the (B) A family-based immigrant under
case make the submission of additional section 203(a) of the Act; or
evidence necessary to the proper adju- (C) An employment-based immigrant
dication of the case, then the Depart- under section 203(b) of the Act, if a rel-
ment of State officer, immigration offi- ative (as defined in 8 CFR 213a.1) of the
cer or immigration judge may direct intending immigrant is a citizen or an
the intending immigrant to submit ad- alien lawfully admitted for permanent
ditional evidence. A Department of residence who either filed the employ-
State officer or immigration officer ment-based immigrant petition or has
shall make the request in writing, and a significant ownership interest in the
provide the intending immigrant not entity that filed the immigrant visa
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less than 30 days to submit the addi- petition on behalf of the intending im-
tional evidence. An immigration judge migrant. An affidavit of support under
may direct the intending immigrant to this section is not required, however, if
submit additional evidence and also set the relative is a brother or sister of the
251
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§ 213a.2 8 CFR Ch. I (1–1–10 Edition)
intending immigrant, unless the broth- but at least one of the adoptive parents
er or sister is a citizen. did not see and observe the alien or-
(ii) Paragraph (a)(1) of this section phan before or during the foreign adop-
shall not apply if the intending immi- tion proceeding, then an affidavit of
grant: support under this part is still re-
(A) Filed a visa petition on his or her quired, unless the citizen parent estab-
own behalf pursuant to section lishes that, under the law of the State
204(a)(1)(A)(ii), (iii), or (iv) or section of the alien orphan’s intended resi-
204(a)(1)(B)(ii) or (iii) of the Act, or who dence in the United States, the foreign
seeks to accompany or follow-to-join adoption decree is entitled to recogni-
an immigrant who filed a visa petition tion without the need for a formal ad-
on his or his own behalf pursuant to ministrative or judicial proceeding in
section 204(a)(1)(A)(ii), (iii), or (iv) or the State of proposed residence. In the
section 204(a)(1)(B)(ii) or (iii) of the case of a child who immigrates as a
Act; Convention adoptee, as defined in 8
(B) Seeks admission as an immigrant CFR 204.301, this exception applies if
on or after December 19, 1997, in a cat- the child was adopted by the petitioner
egory specified in paragraph (a)(2)(i) of in the Convention country. An affi-
this section with an immigrant visa davit of support under this part is still
issued on the basis of an immigrant required in the case of a child who im-
visa application filed with the Depart- migrates as a Convention adoptee if
ment of State officer before December the petitioner will adopt the child in
19, 1997; the United States only after the child’s
(C) Establishes, on the basis of the acquisition of permanent residence.
alien’s own Social Security Adminis- (b) Affidavit of support sponsors. The
tration record or those of his or her following individuals must execute
spouse or parent(s), that he or she has Form I–864 on behalf of the intending
already worked, or under section immigrant in order for the intending
213A(a)(3)(B) of the Act, can already be immigrant to be found admissible on
credited with, 40 qualifying quarters of public charge grounds:
coverage as defined under title II of the (1) For immediate relatives and family-
Social Security Act, 42 U.S.C. 401, et based immigrants. The person who filed
seq; the Form I–130 or Form I–600 immi-
(D) Is a child admitted under section grant visa petition (or the Form I–129F
211(a) of the Act and 8 CFR 211.1(b)(1); petition, for a K nonimmigrant seeking
or adjustment), the approval of which
(E) Is the child of a citizen, if the forms the basis of the intending immi-
child is not likely to become a public grant’s eligibility to apply for an im-
charge (other than because of the pro- migrant visa or adjustment of status as
vision of section 212(a)(4)(C) of the an immediate relative or a family-
Act), and the child’s lawful admission based immigrant, must execute a Form
for permanent residence will result I–864 on behalf of the intending immi-
automatically in the child’s acquisi- grant. If the intending immigrant is
tion of citizenship under section 320 of the beneficiary of more than one ap-
the Act, as amended. This exception proved immigrant visa petition, it is
applies to an alien orphan if the citizen the person who filed the petition that
parent(s) has (or have) legally adopted is actually the basis for the intending
the alien orphan before the alien or- immigrant’s eligibility to apply for an
phan’s acquisition of permanent resi- immigrant visa or adjustment of status
dence, and if both adoptive parents per- who must file the Form I–864.
sonally saw and observed the alien or- (2) For employment-based immigrants. A
phan before or during the foreign adop- relative of an intending immigrant
tion proceeding. An affidavit of support seeking an immigrant visa under sec-
under this part is still required if the tion 203(b) of the Act must file a Form
citizen parent(s) will adopt the alien I–864 if the relative either filed the im-
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orphan in the United States only after migrant visa petition on behalf of the
the alien orphan’s acquisition of per- intending immigrant or owns a signifi-
manent residence. If the citizen par- cant ownership interest in an entity
ent(s) adopted the alien orphan abroad, that filed an immigrant visa petition
252
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Department of Homeland Security § 213a.2
253
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§ 213a.2 8 CFR Ch. I (1–1–10 Edition)
photocopy, the sponsor must also sub- income. In establishing the household
mit as initial evidence copies of all income, the sponsor may rely entirely
schedules filed with each return and (if on his or her personal income, if it is
the sponsor submits a photocopy, rath- sufficient to meet the income require-
er than an IRS transcript of the tax re- ment. The sponsor may also rely on the
turn(s)) all Forms W–2 (if the sponsor income of the sponsor’s spouse and of
relies on income from employment) any other person included in deter-
and Forms 1099 (if the sponsor relies on mining the sponsor’s household size, if
income from sources documented on the spouse or other person is at least 18
Forms 1099) in meeting the income years old and has completed and signed
threshold. The sponsor may also in- a Form I–864A. A person does not need
clude as initial evidence: Letter(s) evi- to be a U.S. citizen, national, or alien
dencing his or her current employment lawfully admitted for permanent resi-
and income, paycheck stub(s) (showing dence in order to sign a Form I–864A.
earnings for the most recent six (2) Each individual who signs Form I–
months, financial statements, or other 864A agrees, in consideration of the
evidence of the sponsor’s anticipated sponsor’s signing of the Form I–864, to
household income for the year in which provide to the sponsor as much finan-
the intending immigrant files the ap-
cial assistance as may be necessary to
plication for an immigrant visa or ad-
enable the sponsor to maintain the in-
justment of status. By executing Form
tending immigrants at the annual in-
I–864, the sponsor certifies under pen-
come level required by section
alty of perjury under United States law
213A(a)(1)(A) of the Act, to be jointly
that the evidence of his or her current
and severally liable for any reimburse-
household income is true and correct
ment obligation that the sponsor may
and that each transcript or photocopy
of each income tax return is a true and incur, and to submit to the personal ju-
correct transcript or photocopy of the risdiction of any court that has subject
return that the sponsor filed with the matter jurisdiction over a civil suit to
Internal Revenue Service for that tax- enforce the contract or the affidavit of
able year. support. The sponsor, as a party to the
(B) If the sponsor had no legal duty contract, may bring suit to enforce the
to file a Federal income tax return for contract. The intending immigrants
the most recent tax year, the sponsor and any Federal, state, or local agency
must explain why he or she had no or private entity that provides a
legal duty to a file a Federal income means-tested public benefit to an in-
tax return for that year. If the sponsor tending immigrant are third party
claims he or she had no legal duty to beneficiaries of the contract between
file for any reason other than the level the sponsor and the other individual or
of the sponsor’s income for that year, individuals on whose income the spon-
the initial evidence submitted with the sor relies and may bring an action to
Form I–864 must also include any evi- enforce the contract in the same man-
dence of the amount and source of the ner as third party beneficiaries of other
income that the sponsor claims was ex- contracts.
empt from taxation and a copy of the (3) If there is no spouse or child im-
provisions of any statute, treaty, or migrating with the intending immi-
regulation that supports the claim that grant, then there will be no need for
he or she had no duty to file an income the intending immigrant to sign a
tax return with respect to that income. Form I–864A, even if the sponsor will
If the sponsor had no legal obligation rely on the continuing income of the
to file a Federal income tax return, he intending immigrant to meet the in-
or she may submit other evidence of come requirement. If, however, the
annual income. The fact that a sponsor sponsor seeks to rely on an intending
had no duty to file a Federal income immigrant’s continuing income to es-
tax return does not relieve the sponsor tablish the sponsor’s ability to support
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254
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Department of Homeland Security § 213a.2
(4) If the sponsor relies on the income sponsor, or household member proves
of any individual who has signed Form that he or she has satisfied the obliga-
I–864A, the sponsor must also include tion to file the tax return and provides
with the Form I–864 and Form I–864A, a transcript or copy of the return.
with respect to the person who signed (ii) Determining the sufficiency of an
the Form I–864A, the initial evidence affidavit of support. The sufficiency of
required under paragraph (c)(2)(i)(A) of an affidavit of support shall be deter-
this section. The household member’s mined in accordance with this para-
tax return(s) must be for the same tax graph.
year as the sponsor’s tax return(s). An (A) Income. The sponsor must first
individual who signs Form I–864A cer- calculate the total income attributable
tifies, under penalty of perjury, that
to the sponsor under paragraph
the submitted transcript or photocopy
(c)(2)(i)(C) of this section for the year
of the tax return is a true and correct
in which the intending immigrant filed
transcript or photocopy of the Federal
income tax return filed with the Inter- the application for an immigrant visa
nal Revenue Service, and that the in- or adjustment of status.
formation concerning that person’s em- (B) Number of persons to be supported.
ployment and income is true and cor- The sponsor must then determine his
rect. or her household size as defined in 8
(5) If the person who signs the Form CFR 213a.1.
I–864A is not an intending immigrant, (C) Sufficiency of income. Except as
and is any person other than the spon- provided in this paragraph, or in para-
sor’s spouse or a claimed dependent of graph (a)(1)(v)(B) of this section, the
the sponsor, the sponsor must also at- sponsor’s affidavit of support shall be
tach proof that the person is a relative considered sufficient to satisfy the re-
(as defined in 8 CFR 213a.1) of the spon- quirements of section 213A of the Act
sor and that the Form I–864A signer and this section if the reasonably ex-
has the same principal residence as the pected household income for the year
sponsor. If an intending immigrant in which the intending immigrant filed
signs a Form I–864A, the sponsor must the application for an immigrant visa
also provide proof that the sponsored or adjustment of status, calculated
immigrant has the same principal resi- under paragraph (c)(2)(iii)(A) of this
dence as the sponsor, unless the spon- section, would equal at least 125 per-
sored immigrant is the sponsor’s cent of the Federal poverty line for the
spouse. sponsor’s household size as defined in 8
(D) Effect of failure to file income tax CFR 213a.1, under the Poverty Guide-
returns. If a sponsor, substitute spon- lines in effect when the intending im-
sor, joint sponsor, or household mem-
migrant filed the application for an im-
ber did not file a Federal income tax
migrant visa or for adjustment of sta-
return for the year for which a tran-
tus, except that the sponsor’s income
script or photocopy must be provided,
the Form I–864 or Form I–864A will not need only equal at least 100 percent of
be considered sufficient to satisfy the the Federal poverty line for the spon-
requirements of section 213A of the sor’s household size, if the sponsor is
Act, even if the household income on active duty (other than for training)
meets the requirements of section 213A in the Armed Forces of the United
of the Act, unless the sponsor, sub- States and the intending immigrant is
stitute sponsor, joint sponsor, or the sponsor’s spouse or child. The spon-
household member proves, by a prepon- sor’s household income for the year in
derance of the evidence, that he or she which the intending immigrant filed
had no duty to file. If the sponsor, sub- the application for an immigrant visa
stitute sponsor, joint sponsor or house- or adjustment of status shall be given
hold member cannot prove that he or the greatest evidentiary weight; any
she had no duty to file, then the Form tax return and other information relat-
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I–864 or Form I–864A will not be consid- ing to the sponsor’s financial history
ered sufficient to satisfy the require- will serve as evidence tending to show
ments of section 213A of the Act until whether the sponsor is likely to be able
the sponsor, substitute sponsor, joint to maintain his or her income in the
255
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§ 213a.2 8 CFR Ch. I (1–1–10 Edition)
future. If the projected household in- hold income and the Federal poverty
come for the year in which the intend- line for the sponsor’s household size
ing immigrant filed the application for (including all immigrants sponsored in
an immigrant visa or adjustment of any affidavit of support in force or sub-
status meets the applicable income mitted under this section);
threshold, the affidavit of support may (2) If the intending immigrant is an
be held to be insufficient on the basis alien orphan who will be adopted in the
of the household income but only if, on United States after the alien orphan
the basis of specific facts, including a acquires permanent residence (or in
material change in employment or in- whose case the parents will need to
come history of the sponsor, substitute seek a formal recognition of a foreign
sponsor, joint sponsor or household adoption under the law of the State of
member, the number of aliens included the intending immigrant’s proposed
in Forms I–864 that the sponsor has residence because at least one of the
signed but that have not yet entered parents did not see the child before or
into force in accordance with para- during the adoption), and who will, as
graph (e) of this section, or other rel- a result of the adoption or formal rec-
evant facts, it is reasonable to infer ognition of the foreign adoption, ac-
that the sponsor will not be able to quire citizenship under section 320 of
maintain his or her household income the Act, the difference between the
at a level sufficient to meet his or her sponsor’s household income and the
support obligations. Federal poverty line for the sponsor’s
(iii) Inability to meet income require- household size (including all immi-
ment. (A) If the sponsor is unable to grants sponsored in any affidavit of
meet the minimum income require- support in force or submitted under
ment in paragraph (c)(2)(iii) of this sec- this section);
tion, the intending immigrant is inad- (3) In all other cases, five times the
missible under section 212(a)(4) of the difference between the sponsor’s house-
Act unless: hold income and the Federal poverty
(1) The sponsor, the intending immi- line for the sponsor’s household size
grant or both, can meet the significant (including all immigrants sponsored in
assets provision of paragraph any affidavit of support in force or sub-
(c)(2)(iv)(B) of this section; or mitted under this section).
(2) A joint sponsor executes a sepa- (C) Joint sponsor. A joint sponsor
rate Form I–864. must execute a separate Form I–864 on
(B) Significant assets. The sponsor behalf of the intending immigrant(s)
may submit evidence of the sponsor’s and be willing to accept joint and sev-
ownership of significant assets, such as eral liability with the sponsor or sub-
savings accounts, stocks, bonds, cer- stitute sponsor. A joint sponsor must
tificates of deposit, real estate, or meet all the eligibility requirements
other assets. An intending immigrant under paragraph (c)(1) of this section,
may submit evidence of the intending except that the joint sponsor does not
immigrant’s assets as a part of the affi- have to have filed a visa petition on be-
davit of support, even if the intending half of the intending immigrant. The
immigrant is not required to sign a joint sponsor must demonstrate his or
Form I–864A. The assets of any person her ability to support the intending
who has signed a Form I–864A may also immigrant in the manner specified in
be considered in determining whether paragraph (c)(2) of this section. A joint
the assets are sufficient to meet this sponsor’s household income must meet
requirement. To qualify as ‘‘significant or exceed the income requirement in
assets’’ the combined cash value of all paragraph (c)(2)(iii) of this section un-
the assets (the total value of the assets less the joint sponsor can demonstrate
less any offsetting liabilities) must ex- significant assets as provided in para-
ceed: graph (c)(2)(iv)(A) of this section. The
(1) If the intending immigrant is the joint sponsor’s household income must
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spouse or child of a United States cit- equal at least 125% of the Poverty
izen (and the child has reached his or Guidelines for the joint sponsor’s
her 18th birthday), three times the dif- household size, unless the joint sponsor
ference between the sponsor’s house- is on active duty in the Armed Forces
256
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Department of Homeland Security § 213a.2
and the intending immigrant is the the substitute sponsor’s household in-
joint sponsor’s spouse or child, in come is sufficient if it equals at least
which case the joint sponsor’s house- 100% of the Poverty Guidelines for the
hold income is sufficient if it equals at substitute sponsor’s household size. If
least 100% of the Poverty Guidelines the substitute sponsor’s household in-
for the joint sponsor’s household size. come is not sufficient to meet the re-
An intending immigrant may not have quirements of section 213A(a)(f)(1)(E) of
more than one joint sponsor, but, if the the Act and paragraph (c)(2) of this sec-
joint sponsor’s household income is not tion, the alien will be inadmissible un-
sufficient to meet the income require- less a joint sponsor signs a Form I–864.
ment with respect to the principal in- (iv) Remaining inadmissibility on public
tending immigrant, any spouse and all charge grounds. Notwithstanding the
the children who, under section 203(d) filing of a sufficient affidavit of sup-
of the Act, seek to accompany the prin- port under section 213A of the Act and
cipal intending immigrant, then the this section, an alien may be found to
joint sponsor may specify on the Form be inadmissible under section 212(a)(4)
I–864 that the Form I–864 is submitted of the Act if the alien’s case includes
only on behalf of the principal intend- evidence of specific facts that, when
ing immigrant and those accom- considered in light of section
panying family members specifically 212(a)(4)(B) of the Act, support a rea-
listed on the Form I–864. The remain- sonable inference that the alien is like-
ing accompanying family members will ly at any time to become a public
then be inadmissible under section charge.
212(a)(4) of the Act unless a second (v) Verification of employment, income,
joint sponsor submits a Form I–864 on and assets. The Federal Government
behalf of all the remaining family may pursue verification of any infor-
members who seek to accompany the mation provided on or with Form I–864,
principal intending immigrant and who including information on employment,
are not included in the first joint spon- income, or assets, with the employer,
sor’s Form I–864. There may not be financial or other institutions, the In-
more than two joint sponsors for the ternal Revenue Service, or the Social
family group consisting of the prin- Security Administration. To facilitate
cipal intending immigrant and the ac- this verification process, the sponsor,
companying spouse and children who joint sponsor, substitute sponsor, or
will accompany the principal intending household member must sign and sub-
immigrant. mit any necessary waiver form when
(D) Substitute sponsor. In a family- directed to do so by the immigration
sponsored case, if the visa petitioner officer, immigration judge, or Depart-
dies after approval of the visa petition, ment of State officer who has jurisdic-
but the U.S. Citizenship and Immigra- tion to adjudicate the case to which
tion Services determines, under 8 CFR the Form I–864 or I–864A relates. A
205.1(a)(3)(i)(C), that for humanitarian sponsor’s, substitute sponsor’s, joint
reasons it would not be appropriate to sponsor’s, or household member’s fail-
revoke approval of the visa petition, ure or refusal to sign any waiver need-
then a substitute sponsor, as defined in ed to verify the information when di-
8 CFR 213a.1, may sign the Form I–864. rected to do so constitutes a with-
The substitute sponsor must meet all drawal of the Form I–864 or I–864A, so
the requirements of this section that that, in adjudicating the intending im-
would have applied to the visa peti- migrant’s application for an immigrant
tioner, had the visa petitioner survived visa or adjustment of status, the Form
and been the sponsor. The substitute I–864 or Form I–864A will be deemed not
sponsor’s household income must equal to have been filed.
at least 125% of the Poverty Guidelines (vi) Effect of fraud or material conceal-
for the substitute sponsor’s household ment or misrepresentation. A Form I–864
size, unless the intending immigrant is or Form I–864A is insufficient to satisfy
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the substitute sponsor’s spouse or child the requirements of section 213A of the
and the substitute sponsor is on active Act and this part, and the affidavit of
duty in the Armed Forces (other than support shall be found insufficient to
active duty for training), in which case establish that the intending immigrant
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§ 213a.2 8 CFR Ch. I (1–1–10 Edition)
is not likely to become a public charge, if, notwithstanding his or her signing
if the Department of State officer, im- of a Form I–864 or Form I–864A, the De-
migration officer or immigration judge partment of State officer (in deciding
finds that Form I–864 or Form I–864A is an application for an immigrant visa)
forged, counterfeited, or otherwise or the immigration officer or immigra-
falsely executed, or if the Form I–864 or tion judge (in deciding an application
Form I–864A conceals or misrepresents for admission or adjustment of status)
facts concerning household size, house- includes in the decision a specific find-
hold income, employment history, or ing that the sponsor or substitute spon-
any other material fact. Any person sor’s own household income is suffi-
who knowingly participated in the for- cient to meet the income requirements
gery, counterfeiting, or false produc- under section 213A of the Act.
tion of a Form I–864 or Form I–864A, or
(2)(i) The support obligation and the
in any concealment or misrepresenta-
change of address reporting require-
tion of any material fact, may be sub-
ment imposed on a sponsor, substitute
ject to a civil penalty under section
sponsor and joint sponsor under Form
274C of the Act, to criminal prosecu-
tion, or to both, to the extent per- I–864, and any household member’s sup-
mitted by law. If the person is an alien, port obligation under Form I–864A, all
the person may also be subject to re- terminate by operation of law when the
moval from the United States. sponsored immigrant:
(d) Legal effect of affidavit of support. (A) Becomes a citizen of the United
Execution of a Form I–864 under this States;
section creates a contract between the (B) Has worked, or can be credited
sponsor and the U.S. Government for with, 40 qualifying quarters of coverage
the benefit of the sponsored immi- under title II of the Social Security
grant, and of any Federal, State, or Act, 42 U.S.C. 401, et seq., provided that
local governmental agency or private the sponsored immigrant is not cred-
entity that administers any means- ited with any quarter beginning after
tested public benefits program. The December 31, 1996, during which the
sponsored immigrant, or any Federal, sponsored immigrant receives or re-
State, or local governmental agency or ceived any Federal means-tested public
private entity that provides any benefit;
means-tested public benefit to the (C) Ceases to hold the status of an
sponsored immigrant after the spon- alien lawfully admitted for permanent
sored immigrant acquires permanent residence and departs the United
resident status, may seek enforcement States (if the sponsored immigrant has
of the sponsor’s obligations through an not filed USCIS Form I–407, Abandon-
appropriate civil action.
ment of Lawful Permanent Resident
(e) Commencement and termination of
Status, this provision will apply only if
support obligation. (1) With respect to
the sponsored immigrant is found in a
any intending immigrant, the support
removal proceeding to have abandoned
obligation and change of address obli-
that status while abroad);
gation imposed on a sponsor, sub-
stitute sponsor, or joint sponsor under (D) Obtains in a removal proceeding a
Form I–864, and any household mem- new grant of adjustment of status as
ber’s support obligation under Form I– relief from removal (in this case, if the
864A, all begin when the immigration sponsored immigrant is still subject to
officer or the immigration judge grants the affidavit of support requirement
the intending immigrant’s application under this part, then any individual(s)
for admission as an immigrant or for who signed the Form I–864 or I–864A in
adjustment of status on the basis of an relation to the new adjustment appli-
application for admission or adjust- cation will be subject to the obliga-
ment that included the Form I–864 or tions of this part, rather than those
Form I–864A. Any person completing who signed a Form I–864 or I–864A in re-
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258
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Department of Homeland Security § 213a.2
once the sponsor, substitute sponsor, case of an alien who seeks to follow-to-
joint sponsor, household member, or join a principal sponsored immigrant,
intending immigrant has presented a and the principal sponsored immigrant
signed Form I–864 or Form I–864A to an also required a joint sponsor when the
259
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§ 213a.3 8 CFR Ch. I (1–1–10 Edition)
260
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Department of Homeland Security § 213a.4
citizenship status or the name, social immigrant and of the sponsor, to the
security number and last known ad- address listed in paragraph (c)(3) of this
dress of a sponsor, substitute sponsor, section. The written notice should in-
or joint sponsor. clude the reference ‘‘Determinations
261
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§ 213a.5 8 CFR Ch. I (1–1–10 Edition)
under 421(e) of the Personal Responsi- 214.14 Alien victims of certain qualifying
bility and Work Opportunity Reconcili- criminal activity.
ation Act of 1996.’’ 214.15 Certain spouses and children of lawful
(3) The address referred to in para- permanent residents.
graphs (c)(1) and (c)(2) of this section AUTHORITY: 8 U.S.C. 1101, 1102, 1103, 1182,
is: Office of Program and Regulation 1184, 1186a, 1187, 1221, 1281, 1282, 1301–1305 and
Development, U.S. Citizenship and Im- 1372; sec. 643, Public Law 104–208, 110 Stat.
migration Services, 20 Massachusetts 3009–708; Public Law 106–386, 114 Stat. 1477–
1480; section 141 of the Compacts of Free As-
Avenue, NW., Washington, DC, 20529.
sociation with the Federated States of Mi-
[62 FR 54352, Oct. 20, 1997, as amended at 71 cronesia and the Republic of the Marshall Is-
FR 35755, June 21, 2006] lands, and with the Government of Palau, 48
U.S.C. 1901 note, and 1931 note, respectively;
§ 213a.5 Relationship of this part to Title VII of Public Law 110–229; 8 CFR part 2.
other affidavits of support.
Nothing in this part precludes the § 214.1 Requirements for admission,
extension, and maintenance of sta-
continued use of Form I–134, Affidavit tus.
of Support (other than INA section
213A), or of Form I–361, Affidavit of Fi- (a) General—(1) Nonimmigrant classes.
nancial Support and Intent to Petition For the purpose of administering the
for Legal Custody for Public Law 97–359 nonimmigrant provisions of the Act,
Amerasian, in any case, other than a the following administrative subclassi-
case described in § 213a.2(a)(2), in which fications of nonimmigrant classifica-
these forms were used prior to enact- tions as defined in section 101(a)(15) of
ment of section 213A of the Act. The the Act are established:
obligations of section 213A of the Act (i) Section 101(a)(15)(B) is divided
do not bind a person who executes into (B)(i) for visitors for business and
Form I–134 or Form I–361, although the (B)(ii) for visitors for pleasure;
person who executes Form I–361 re- (ii) Section 101(a)(15)(C) is divided
mains subject to the provisions of sec- into (C)(i) for aliens who are not dip-
tion 204(f)(4)(B) of the Act and of lomats and are in transit through the
§ 204.4(i) of this chapter. United States; (C)(ii) for aliens in tran-
sit to and from the United Nations
PART 214—NONIMMIGRANT Headquarters District; and (C)(iii) for
CLASSES alien diplomats in transit through the
United States;
Sec. (iii) Section 101(a)(15)(H) is divided to
214.1 Requirements for admission, exten- create an (H)(iv) subclassification for
sion, and maintenance of status. the spouse and children of a non-
214.2 Special requirements for admission, immigrant classified under section
extension, and maintenance of status. 101(a)(15) (H) (i), (ii), or (iii);
214.3 Approval of schools for enrollment of (iv) Section 101(a)(15)(J) is divided
F and M nonimmigrants.
214.4 Denial of certification, denial of recer-
into (J)(i) for principal aliens and
tification or withdrawal of SEVP certifi- (J)(ii) for such alien’s spouse and chil-
cation. dren;
214.5 Libyan and third country nationals (v) Section 101(a)(15)(K) is divided
acting on behalf of Libyan entities. into (K)(i) for the fianceé(e), (K)(ii) for
214.6 Citizens of Canada or Mexico seeking the spouse, and (K)(iii) for the children
temporary entry under NAFTA to engage of either;
in business activities at a professional
level. (vi) Section 101(a)(15)(L) is divided
214.7 Habitual residence in the territories into (L)(i) for principal aliens and
and possessions of the United States and (L)(ii) for such alien’s spouse and chil-
consequences thereof. dren;
214.8–214.10 [Reserved] (vii) Section 101(a)(15)(Q)(ii) is di-
214.11 Alien victims of severe forms of traf- vided to create a (Q)(iii) for subclassi-
ficking in persons. fication for the spouse and children of
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Department of Homeland Security § 214.1
263
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§ 214.1 8 CFR Ch. I (1–1–10 Edition)
or extension of stay, or upon abandon- (B) A new Form I-20A-B if there has
ment of his or her authorized non- been any substantive change in the in-
immigrant status, and to comply with formation on the student’s most recent
the departure procedures at section Form I-20A since the form was initially
215.8 of this chapter if such procedures issued.
apply to the particular alien. The non- (2) Section 101(a)(15)(J). The inspecting
immigrant alien’s failure to comply immigration officer shall readmit for
with those departure requirements, in- the unexpired period of stay authorized
cluding any requirement that the alien prior to the alien’s departure, any non-
provide biometric identifiers, may con- immigrant alien whose nonimmigrant
stitute a failure of the alien to main- visa is considered automatically revali-
tain the terms of his or her non- dated pursuant to 22 CFR 41.125(f) and
immigrant status. who is applying for readmission under
(iii) At the time a nonimmigrant section 101(a)(15)(J) of the Act, if the
alien applies for admission or exten- alien:
sion of stay, he or she must post a bond (i) Is admissible;
on Form I–352 in the sum of not less (ii) Is applying for readmission after
than $500, to ensure the maintenance of an absence from the United States not
his or her nonimmigrant status and de- exceeding thirty days solely in contig-
parture from the United States, if re- uous territory or adjacent islands;
quired to do so by the Commissioner of
(iii) Is in possession of a valid pass-
CBP, the Director of U.S. Citizenship
port unless exempt from the require-
and Immigration Services, an immigra-
ment for the presentation of a pass-
tion judge, or the Board of Immigra-
port; and
tion Appeals.
(iv) Presents, or is the accompanying
(b) Readmission of nonimmigrants
spouse or child of an alien who pre-
under section 101(a)(15) (F), (J), (M), or
sents, Form I–94 issued to the alien in
(Q)(ii) to complete unexpired periods of
connection with the previous admis-
previous admission or extension of stay—
sion or stay or copy three of the last
(1) Section 101(a)(15)(F). The inspecting
Form IAP–66 issued to the alien. Form
immigration officer shall readmit for
I–94 or Form IAP–66 must show the un-
duration of status as defined in
expired period of the alien’s stay en-
§ 214.2(f)(5)(iii), any nonimmigrant alien
dorsed by the Service.
whose nonimmigrant visa is considered
automatically revalidated pursuant to (3) Section 101(a)(15)(M). The inspect-
22 CFR 41.125(f) and who is applying for ing immigration officer shall readmit
readmission under section 101(a)(15)(F) for the unexpired period of stay author-
of the Act, if the alien: ized prior to the alien’s departure, any
(i) Is admissible; nonimmigrant alien whose non-
(ii) Is applying for readmission after immigrant visa is considered automati-
an absence from the United States not cally revalidated pursuant to 22 CFR
exceeding thirty days solely in contig- 41.125(f) and who is applying for read-
uous territory or adjacent islands; mission under section 101(a)(15)(M) of
(iii) Is in possession of a valid pass- the Act, if the alien:
port unless exempt from the require- (i) Is admissible;
ment for presentation of a passport; (ii) Is applying for readmission after
and an absence not exceeding thirty days
(iv) Presents, or is the accompanying solely in contiguous territory;
spouse or child of an alien who pre- (iii) Is in possession of a valid pass-
sents, an Arrival-Departure Record, port unless exempt from the require-
Form I–94, issued to the alien in con- ment for presentation of a passport;
nection with the previous admission or and
stay, the alien’s Form I–20 ID copy, and (iv) Presents, or is the accompanying
either: spouse or child of an alien who pre-
(A) A properly endorsed page 4 of sents, Form I–94 issued to the alien in
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Form I-20A-B if there has been no sub- connection with the previous admis-
stantive change in the information on sion or stay, the alien’s Form I–20 ID
the student’s most recent Form I-20A copy, and a properly endorsed page 4 of
since the form was initially issued; or Form I–20M–N.
264
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Department of Homeland Security § 214.1
(4) Section 101(a)(15)(Q)(ii). The in- members of a family group must be for
specting immigration officer shall re- the same period of time. The shortest
admit for the unexpired period of stay period granted to any member of the
authorized prior to the alien’s depar- family shall be granted to all members
ture, if the alien: of the family. In order to be eligible for
(i) Is admissible; an extension of stay, nonimmigrant
(ii) Is applying for readmission after aliens in K–3/K–4 status must do so in
an absence from the United States not accordance with § 214.2(k)(10).
exceeding 30 days solely in contiguous (3) Ineligible for extension of stay. A
territory or adjacent islands; nonimmigrant in any of the following
(iii) Is in possession of a valid pass- classes is ineligible for an extension of
port; stay:
(iv) Presents, or is the accompanying (i) B–1 or B–2 where admission was
spouse or child of an alien who pre- pursuant to the Visa Waiver Pilot Pro-
sents, an Arrival-Departure Record, gram;
Form I–94, issued to the alien in con-
(ii) C–1, C–2, C–3;
nection with the previous admission or
stay. The principal alien must also (iii) D–1, D–2;
present a Certification Letter issued by (iv) K–1, K–2;
the Department of State’s Program Ad- (v) Any nonimmigrant admitted for
ministrator. duration of status, other than as pro-
(c) Extensions of stay—(1) Filing on vided in § 214.2(f)(7);
Form I–129. An employer seeking the (vi) Any nonimmigrant who is classi-
services of an E–1, E–2, H–1B, H–2A, H– fied pursuant to section 101(a)(15)(S) of
2B, H–3, L–1, O–1, O–2, P–1, P–2, P–3, Q– the Act beyond a total of 3 years; or
1, R–1, or TN nonimmigrant beyond the (vii) Any nonimmigrant who is clas-
period previously granted, must peti- sified according to section
tion for an extension of stay on Form 101(a)(15)(Q)(ii) of the Act beyond a
I–129. The petition must be filed with total of 3 years.
the fee required in § 103.7 of this chap- (viii) Any nonimmigrant admitted
ter, and the initial evidence specified pursuant to the Guam-CNMI Visa
in § 214.2, and on the petition form. De- Waiver Program, as provided in section
pendents holding derivative status may 212(l) of the Act.
be included in the petition if it is for (4) Timely filing and maintenance of
only one worker and the form version status. An extension of stay may not be
specifically provides for their inclu- approved for an applicant who failed to
sion. In all other cases dependents of maintain the previously accorded sta-
the worker should file on Form I–539.
tus or where such status expired before
(2) Filing on Form I–539. Any other
the application or petition was filed,
nonimmigrant alien, except an alien in
except that failure to file before the pe-
F or J status who has been granted du-
riod of previously authorized status ex-
ration of status, who seeks to extend
pired may be excused in the discretion
his or her stay beyond the currently
of the Service and without separate ap-
authorized period of admission, must
plication, with any extension granted
apply for an extension of stay on Form
from the date the previously author-
I–539 with the fee required in § 103.7 of
this chapter together with any initial ized stay expired, where it is dem-
evidence specified in the applicable onstrated at the time of filing that:
provisions of § 214.2, and on the applica- (i) The delay was due to extraor-
tion form. More than one person may dinary circumstances beyond the con-
be included in an application where the trol of the applicant or petitioner, and
co-applicants are all members of a sin- the Service finds the delay commensu-
gle family group and either all hold the rate with the circumstances;
same nonimmigrant status or one (ii) The alien has not otherwise vio-
holds a nonimmigrant status and the lated his or her nonimmigrant status;
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other co-applicants are his or her (iii) The alien remains a bona fide
spouse and/or children who hold deriva- nonimmigrant; and
tive nonimmigrant status based on his (iv) The alien is not the subject of de-
or her status. Extensions granted to portation proceedings under section 242
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§ 214.1 8 CFR Ch. I (1–1–10 Edition)
of the Act (prior to April 1, 1997) or re- or not the information requested was
moval proceedings under section 240 of material) constitutes a failure to main-
the Act. tain nonimmigrant status under sec-
(5) Decision in Form I–129 or I–539 ex- tion 237(a)(1)(C)(i) of the Act (8 U.S.C.
tension proceedings. Where an applicant 1227(a)(1)(C)(i)).
or petitioner demonstrates eligibility (g) Criminal activity. A condition of a
for a requested extension, it may be nonimmigrant’s admission and contin-
granted at the discretion of the Serv- ued stay in the United States is obedi-
ice. There is no appeal from the denial ence to all laws of United States juris-
of an application for extension of stay dictions which prohibit the commission
filed on Form I–129 or I–539. of crimes of violence and for which a
(d) Termination of status. Within the sentence of more than one year impris-
period of initial admission or extension onment may be imposed. A non-
of stay, the nonimmigrant status of an immigrant’s conviction in a jurisdic-
alien shall be terminated by the rev- tion in the United States for a crime of
ocation of a waiver authorized on his violence for which a sentence of more
or her behalf under section 212(d) (3) or than one year imprisonment may be
(4) of the Act; by the introduction of a imposed (regardless of whether such
private bill to confer permanent resi- sentence is in fact imposed) constitutes
dent status on such alien; or, pursuant a failure to maintain status under sec-
to notification in the FEDERAL REG- tion 241(a)(1)(C)(i) of the Act.
ISTER, on the basis of national security, (h) Education privacy and F, J, and M
diplomatic, or public safety reasons. nonimmigrants. As authorized by sec-
(e) Employment. A nonimmigrant in tion 641(c)(2) of Division C of Pub. L.
the United States in a class defined in 104–208, 8 U.S.C. 1372, and § 2.1(a) of this
section 101(a)(15)(B) of the Act as a chapter, the Service has determined
temporary visitor for pleasure, or sec- that, with respect to F and M non-
tion 101(a)(15)(C) of the Act as an alien immigrant students and J non-
in transit through this country, may immigrant exchange visitors, waiving
not engage in any employment. Any the provisions of the Family Edu-
other nonimmigrant in the United cational Rights and Privacy Act
States may not engage in any employ- (FERPA), 20 U.S.C. 1232g, is necessary
ment unless he has been accorded a for the proper implementation of 8
nonimmigrant classification which au- U.S.C. 1372. An educational agency or
thorizes employment or he has been institution may not refuse to report in-
granted permission to engage in em- formation concerning an F or M non-
ployment in accordance with the provi- immigrant student or a J non-
sions of this chapter. A nonimmigrant immigrant exchange visitor that the
who is permitted to engage in employ- educational agency or institution is re-
ment may engage only in such employ- quired to report under 8 U.S.C. 1372 and
ment as has been authorized. Any un- § 214.3(g) (or any corresponding Depart-
authorized employment by a non- ment of State regulation concerning J
immigrant constitutes a failure to nonimmigrants) on the basis of FERPA
maintain status within the meaning of and any regulation implementing
section 241(a)(1)(C)(i) of the Act. FERPA. The waiver of FERPA under
(f) Registration and false information. this paragraph authorizes and requires
A nonimmigrant’s admission and con- an educational agency or institution to
tinued stay in the United States is con- report information concerning an F, J
ditioned on compliance with any reg- or M nonimmigrant that would ordi-
istration, photographing, and narily be protected by FERPA, but
fingerprinting requirements under only to the extent that 8 U.S.C. 1372
§ 264.1(f) of this chapter that relate to and § 214.3(g) (or any corresponding De-
the maintenance of nonimmigrant sta- partment of State regulation con-
tus and also on the full and truthful cerning J nonimmigrants) requires the
disclosure of all information requested educational agency or institution to
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Department of Homeland Security § 214.2
212.15(a) who is coming to the United alien’s status does include the certifi-
States to perform labor in a health cation required by 8 CFR 212.15(a), but
care occupation described in 8 CFR the alien obtained the certification
212.15(c) must obtain a certificate from more than 1 year after the date of the
a credentialing organization described alien’s admission under section
in 8 CFR 212.15(e). The certificate or 212(d)(3) of the Act and 8 CFR 212.15(n).
certified statement must be presented While DHS may admit, extend the pe-
to the Department of Homeland Secu- riod of authorized stay, or change the
rity in accordance with 8 CFR 212.15(d). status of a nonimmigrant health care
In the alternative, an eligible alien worker for a period of 1 year if the
seeking admission as a nurse may ob- alien does not have certification on or
tain a certified statement as provided before July 26, 2004 (or on or before
in 8 CFR 212.15(h). July 26, 2005, in the case of a citizen of
(2) A TN nonimmigrant may estab- Canada or Mexico, who, before Sep-
lish that he or she is eligible for a tember 23, 2003, was employed as a TN
waiver described at 8 CFR 212.15(n) by or TC nonimmigrant health care work-
providing evidence that his or her ini- er and held a valid license from a U.S.
tial admission as a TN (or TC) non- jurisdiction), the alien will not be eli-
immigrant health care worker occurred gible for a subsequent admission,
before September 23, 2003, and he or she change of status, or extension of stay
was licensed and employed in the as a health care worker if the alien has
United States as a health care worker not obtained the requisite certification
before September 23, 2003. Evidence 1 year after the initial date of admis-
may include, but is not limited to, cop- sion, change of status, or extension of
ies of TN or TC approval notices, copies stay as a health care worker.
of Form I–94 Arrival/Departure (k) Denial of petitions under section
Records, employment verification let- 214(c) of the Act based on a finding by the
ters and/or pay-stubs or other employ- Department of Labor. Upon debarment
ment records, and state health care by the Department of Labor pursuant
worker licenses. to 20 CFR 655.31, USCIS may deny any
(j) Extension of stay or change of status petition filed by that petitioner for
for health care worker. In the case of nonimmigrant status under section
any alien admitted temporarily as a 101(a)(15)(H) (except for status under
nonimmigrant under section 212(d)(3) of sections 101(a)(15)(H)(i)(b1)), (L), (O),
the Act and 8 CFR 212.15(n) for the pri- and (P)(i) of the Act) for a period of at
mary purpose of the providing labor in least 1 year but not more than 5 years.
a health care occupation described in 8 The length of the period shall be based
CFR 212.15(c), the petitioning employer on the severity of the violation or vio-
may file a Form I–129 to extend the ap- lations. The decision to deny petitions,
proval period for the alien’s classifica- the time period for the bar to petitions,
tion for the nonimmigrant status. If and the reasons for the time period will
the alien is in the United States and is be explained in a written notice to the
eligible for an extension of stay or petitioner.
change of status, the Form I–129 also [26 FR 12067, Dec. 16, 1961]
serves as an application to extend the
period of the alien’s authorized stay or EDITORIAL NOTE: For FEDERAL REGISTER ci-
tations affecting § 214.1, see the List of CFR
to change the alien’s status. Although Sections Affected, which appears in the
the Form I–129 petition may be ap- Finding Aids section of the printed volume
proved, as it relates to the employer’s and on GPO Access.
request to classify the alien, the appli-
cation for an extension of stay or § 214.2 Special requirements for ad-
change of status shall be denied if: mission, extension, and mainte-
(1) The petitioner or applicant fails nance of status.
to submit the certification required by The general requirements in § 214.1
8 CFR 212.15(a) with the petition or ap- are modified for the following non-
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267
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
recognition by the Secretary of State the extent that they cannot adequately
subsequent to admission is evidence of care for themselves or cannot estab-
the proper classification of a non- lish, maintain or re-establish their own
immigrant under section 101(a)(15)(A) households. The Department of State
of the Act. An alien who has a non- or the Service may require certifi-
immigrant status under section cation(s) as it deems sufficient to docu-
101(a)(15)(A)(i) or (ii) of the Act is to be ment such mental or physical dis-
admitted for the duration of the period ability.
for which the alien continues to be rec- (3) Applicability of a formal bilateral
ognized by the Secretary of State as agreement or an informal de facto ar-
being entitled to that status. An alien rangement for A–1 or A–2 dependents.
defined in section (101)(a)(15)(A)(iii) of The applicability of a formal bilateral
the Act is to be admitted for an initial agreement shall be based on the foreign
period of not more than three years, state which employs the principal alien
and may be granted extensions of tem- and not on the nationality of the prin-
porary stay in increments of not more cipal alien or dependent. The applica-
than two years. In addition, the appli- bility of an informal de facto arrange-
cation for extension of temporary stay ment shall be based on the foreign
must be accompanied by a statement state which employs the principal
signed by the employing official stat- alien, but under a de facto arrange-
ing that he/she intends to continue to ment the principal alien also must be a
employ the applicant and describing national of the foreign state which em-
the type of work the applicant will per-
ploys him/her in the United States.
form.
(4) Income tax, Social Security liability;
(2) Definition of A–1 or A–2 dependent.
non-applicability of certain immunities.
For purposes of employment in the
United States, the term dependent of an Dependents who are granted employ-
A–1 or A–2 principal alien, as used in ment authorization under this section
§ 214.2(a), means any of the following are responsible for payment of all fed-
immediate members of the family ha- eral, state and local income, employ-
bitually residing in the same household ment and related taxes and Social Se-
as the principal alien who is an officer curity contributions on any remunera-
or employee assigned to a diplomatic tion received. In addition, immunity
or consular office in the United States: from civil or administrative jurisdic-
(i) Spouse; tion in accordance with Article 37 of
(ii) Unmarried children under the age the Vienna Convention on Diplomatic
of 21; Relations or other international agree-
(iii) Unmarried sons or daughters ments does not apply to these depend-
under the age of 23 who are in full-time ents with respect to matters arising
attendance as students at post-sec- out of their employment.
ondary educational institutions; (5) Dependent employment pursuant to
(iv) Unmarried sons or daughters formal bilateral employment agreements
under the age of 25 who are in full-time and informal de facto reciprocal arrange-
attendance as students at post-sec- ments. (i) The Office of Protocol shall
ondary educational institutions if a maintain a listing of foreign states
formal bilateral employment agree- which have entered into formal bilat-
ment permitting their employment in eral employment agreements. Depend-
the United States was signed prior to ents of an A–1 or A–2 principal alien as-
November 21, 1988, and such bilateral signed to official duty in the United
employment agreement does not speci- States may accept or continue in unre-
fy 23 as the maximum age for employ- stricted employment based on such for-
ment of such sons and daughters. The mal bilateral agreements upon favor-
Office of Protocol of the Department of able recommendation by the Depart-
State shall maintain a listing of for- ment of State and issuance of employ-
eign states with which the United ment authorization documentation by
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States has such bilateral employment the Service in accordance with 8 CFR
agreements; part 274a. The application procedures
(v) Unmarried sons or daughters who are set forth in paragraph (a)(6) of this
are physically or mentally disabled to section.
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Department of Homeland Security § 214.2
(ii) For purposes of this section, an United States immigration laws or reg-
informal de facto reciprocal arrange- ulations, or visa laws or regulations;
ment exists when the Department of who have worked illegally in the
State determines that a foreign state United States; and/or who cannot es-
allows appropriate employment on the tablish that they have paid taxes and
local economy for dependents of cer- social security on income from current
tain United States officials assigned to or previous United States employment.
duty in that foreign state. The Office of (6) Application procedures. The fol-
Protocol shall maintain a listing of lowing procedures are applicable to de-
countries with which such reciprocity pendent employment applications
exists. Dependents of an A–1 or A–2 under bilateral agreements and de
principal alien assigned to official duty facto arrangements:
in the United States may be authorized
(i) The dependent must submit a
to accept or continue in employment
completed Form I–566 to the Depart-
based upon informal de facto arrange-
ments upon favorable recommendation ment of State through the office, mis-
by the Department of State and sion, or organization which employs
issuance of employment authorization his/her principal alien. A dependent ap-
by the Service in accordance with 8 plying under paragraph (a)(2)(iii) or (iv)
CFR part 274a. Additionally, the proce- of this section must submit a certified
dures set forth in paragraph (a)(6) of statement from the post-secondary
this section must be complied with, educational institution confirming
and the following conditions must be that he/she is pursuing studies on a
met: full-time basis. A dependent applying
(A) Both the principal alien and the under paragraph (a)(2)(v) of this section
dependent desiring employment are must submit medical certification re-
maintaining A–1 or A–2 status as ap- garding his/her condition. The certifi-
propriate; cation should identify the dependent
(B) The principal’s assignment in the and the certifying physician and give
United States is expected to last more the physician’s phone number; identify
than six months; the condition, describe the symptoms
(C) Employment of a similar nature and provide a prognosis; and certify
for dependents of United States Gov- that the dependent is unable to main-
ernment officials assigned to official tain a home of his or her own. Addi-
duty in the foreign state employing the tionally, a dependent applying under
principal alien is not prohibited by the terms of a de facto arrangement
that foreign state’s government; must attach a statement from the pro-
(D) The proposed employment is not spective employer which includes the
in an occupation listed in the Depart- dependent’s name; a description of the
ment of Labor Schedule B (20 CFR part position offered and the duties to be
656), or otherwise determined by the performed; the salary offered; and
Department of Labor to be one for
verification that the dependent pos-
which there is an oversupply of quali-
sesses the qualifications for the posi-
fied U.S. workers in the area of pro-
tion.
posed employment. This Schedule B re-
striction does not apply to a dependent (ii) The Department of State reviews
son or daughter who is a full-time stu- and verifies the information provided,
dent if the employment is part-time, makes its determination, and endorses
consisting of not more than 20 hours the Form I–566.
per week, and/or if it is temporary em- (iii) If the Department of State’s en-
ployment of not more than 12 weeks dorsement is favorable, the dependent
during school holiday periods; and may apply to USCIS for employment
(E) The proposed employment is not authorization. When applying to USCIS
contrary to the interest of the United for employment authorization, the de-
States. Employment contrary to the pendent must present his or her Form
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269
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
(7) Period of time for which employment tions to the minimum six month ad-
may be authorized. If approved, an appli- mission may be made only in indi-
cation to accept or continue employ- vidual cases upon the specific approval
ment under this section shall be grant- of the district director for good cause.
ed in increments of not more than (3) Visa Waiver Pilot Program. Special
three years each. requirements for admission and main-
(8) No appeal. There shall be no ap- tenance of status for visitors admitted
peal from a denial of permission to ac- to the United States under the Visa
cept or continue employment under Waiver Pilot Program are set forth in
this section. section 217 of the Act and part 217 of
(9) Dependents or family members of this chapter.
principal aliens classified A–3. A depend-
(4) Admission of aliens pursuant to the
ent or family member of a principal
North American Free Trade Agreement
alien classified A–3 may not be em-
(NAFTA). A citizen of Canada or Mex-
ployed in the United States under this
section. ico seeking temporary entry for pur-
(10) Unauthorized employment. An poses set forth in paragraph (b)(4)(i) of
alien classified under section this section, who otherwise meets ex-
101(a)(15)(A) of the Act who is not a isting requirements under section
principal alien and who engages in em- 101(a)(15)(B) of the Act, including but
ployment outside the scope of, or in a not limited to requirements regarding
manner contrary to this section, may the source of remuneration, shall be
be considered in violation of section admitted upon presentation of proof of
241(a)(1)(C)(i) of the Act. An alien who such citizenship in the case of Cana-
is classified under section 101(a)(15)(A) dian applicants, and valid, unexpired
of the Act who is a principal alien and entry documents such as a passport
who engages in employment outside and visa, or a passport and BCC in the
the scope of his/her official position case of Mexican applicants, a descrip-
may be considered in violation of sec- tion of the purpose for which the alien
tion 241(a)(1)(C)(i) of the Act. is seeking admission, and evidence
(b) Visitors—(1) General. Any B–1 vis- demonstrating that he or she is en-
itor for business or B–2 visitor for gaged in one of the occupations or pro-
pleasure may be admitted for not more fessions set forth in paragraph (b)(4)(i)
than one year and may be granted ex- of this section. Existing requirements,
tensions of temporary stay in incre- with respect to Canada, are those re-
ments of not more than six months quirements which were in effect at the
each, except that alien members of a time of entry into force of the Canada/
religious denomination coming tempo- U.S. Free Trade Agreement and, with
rarily and solely to do missionary work respect to Mexico, are those require-
in behalf of a religious denomination ments which were in effect at the time
may be granted extensions of not more of entry into force of the NAFTA. Ad-
than one year each, provided that such
ditionally, nothing shall preclude the
work does not involve the selling of ar-
admission of a citizen of Mexico or
ticles or the solicitation or acceptance
Canada who meets the requirements of
of donations. Those B–1 and B–2 visi-
paragraph (b)(4)(ii) of this section.
tors admitted pursuant to the waiver
provided at § 212.1(e) of this chapter (i) Occupations and professions set
may be admitted to and stay on Guam forth in Appendix 1603.A.1 to Annex 1603
for period not to exceed fifteen days of the NAFTA—(A) Research and design.
and are not eligible for extensions of Technical scientific and statistical re-
stay. searchers conducting independent re-
(2) Minimum six month admissions. Any search or research for an enterprise lo-
B–2 visitor who is found otherwise ad- cated in the territory of another Party.
missible and is issued a Form I–94, will (B) Growth, manufacture and produc-
be admitted for a minimum period of tion (1) Harvester owner supervising a
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six months, regardless of whether less harvesting crew admitted under appli-
time is requested, provided, that any cable law. (Applies only to harvesting
required passport is valid as specified of agricultural crops: Grain, fiber, fruit
in section 212(a)(26) of the Act. Excep- and vegetables.)
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Department of Homeland Security § 214.2
(2) Purchasing and production man- of this provision, the commercial or in-
agement personnel conducting com- dustrial equipment or machinery, in-
mercial transactions for an enterprise cluding computer software, must have
located in the territory of another been manufactured outside the United
Party. States.)
(C) Marketing. (1) Market researchers (G) General service. (1) Professionals
and analyst conducting independent re- engaging in a business activity at a
search or analysis, or research or anal- professional level in a profession set
ysis for an enterprise located in the out in Appendix 1603.D.1 to Annex 1603
territory of another Party. of the NAFTA, but receiving no salary
(2) Trade fair and promotional per- or other remuneration from a United
sonnel attending a trade convention. States source (other than an expense
(D) Sales. (1) Sales representatives allowance or other reimbursement for
and agents taking orders or negoti- expenses incidental to the temporary
ating contracts for goods or services stay) and otherwise satisfying the re-
for an enterprise located in the terri- quirements of Section A to Annex 1063
tory of another Party but not deliv- of the NAFTA.
ering goods or providing services. (2) Management and supervisory per-
(2) Buyers purchasing for an enter- sonnel engaging in commercial trans-
prise located in the territory of an- actions for an enterprise located in the
other Party. territory of another Party.
(E) Distribution. (1) Transportation
(3) Financial services personnel (in-
operators transporting goods or pas-
surers, bankers or investment brokers)
sengers to the United States from the
engaging in commercial transactions
territory of another Party or loading
for an enterprise located in the terri-
and transporting goods or passengers
tory of another Party.
from the United States to the territory
(4) Public relations and advertising
of another Party, with no unloading in
personnel consulting with business as-
the United States, to the territory of
sociates, or attending or participating
another Party. (These operators may
in conventions.
make deliveries in the United States if
all goods or passengers to be delivered (5) Tourism personnel (tour and trav-
were loaded in the territory of another el agents, tour guides or tour opera-
Party. Furthermore, they may load tors) attending or participating in con-
from locations in the United States if ventions or conducting a tour that has
all goods or passengers to be loaded begun in the territory of another
will be delivered in the territory of an- Party. (The tour may begin in the
other Party. Purely domestic service United States; but must terminate in
or solicitation, in competition with the foreign territory, and a significant por-
United States operators, is not per- tion of the tour must be conducted in
mitted.) foreign territory. In such a case, an op-
(2) Customs brokers performing bro- erator may enter the United States
kerage duties associated with the ex- with an empty conveyance and a tour
port of goods from the United States to guide may enter on his or her own and
or through Canada. join the conveyance.)
(F) After-sales service. Installers, re- (6) Tour bus operators entering the
pair and maintenance personnel, and United States:
supervisors, possessing specialized (i) With a group of passengers on a
knowledge essential to the seller’s con- bus tour that has begun in, and will re-
tractual obligation, performing serv- turn to, the territory of another Party.
ices or training workers to perform (ii) To meet a group of passengers on
services, pursuant to a warranty or a bus tour that will end, and the pre-
other service contract incidental to the dominant portion of which will take
sale of commercial or industrial equip- place, in the territory of another
ment or machinery, including com- Party.
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
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Department of Homeland Security § 214.2
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
eign state with which a qualifying ice approval must be obtained where
Treaty of Friendship, Commerce, or there will be a substantive change in
Navigation or its equivalent exists the terms or conditions of E status. In
with the United States. A treaty coun- such cases, a treaty alien must file a
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Department of Homeland Security § 214.2
new application on Form I–129 and E multiple employees, an alien may re-
supplement, in accordance with the in- quest that USCIS determine if a merg-
structions on that form, requesting ex- er or other corporate restructuring re-
tension of stay in the United States. In quires the filing of separate applica-
support of an alien’s Form I–129 appli- tions by filing a single Form I–129, with
cation, the treaty alien must submit fee, and attaching a list of the related
evidence of continued eligibility for E receipt numbers for the employees in-
classification in the new capacity. Al- volved and an explanation of the
ternatively, the alien must obtain from change or changes.
a consular officer a visa reflecting the (vi) Approval. If an application to
new terms and conditions and subse- change the terms and conditions of E
quently apply for admission at a port- status or employment is approved, the
of-entry. The Service will deem there Service shall notify the applicant on
to have been a substantive change ne- Form I–797. An extension of stay in
cessitating the filing of a new Form I– nonimmigrant E classification may be
129 application in cases where there has granted for the validity of the approved
been a fundamental change in the em- application. The alien is not authorized
ploying entity’s basic characteristics, to begin the new employment until the
such as a merger, acquisition, or sale of application is approved. Employment
the division where the alien is em- is authorized only for the period of
ployed. time the alien remains in the United
(iv) Non-substantive changes. Prior ap- States. If the alien subsequently de-
proval is not required, and there is no
parts from the United States, readmis-
need to file a new Form I–129, if there
sion in E classification may be author-
is no substantive, or fundamental,
ized where the alien presents his or her
change in the terms or conditions of
unexpired E visa together with the
the alien’s employment which would
Form I–797, Approval Notice, indi-
affect the alien’s eligibility for E clas-
cating Service approval of a change of
sification. Further, prior approval is
employer or of a change in the sub-
not required if corporate changes occur
stantive terms or conditions of treaty
which do not affect the previously ap-
status or employment in E classifica-
proved employment relationship, or
tion, or, in accordance with 22 CFR
are otherwise non-substantive. To fa-
cilitate admission, the alien may: 41.112(d), where the alien is applying
(A) Present a letter from the treaty- for readmission after an absence not
qualifying company through which the exceeding 30 days solely in contiguous
alien attained E classification explain- territory.
ing the nature of the change; (vii) An unauthorized change of em-
(B) Request a new Form I–797, Ap- ployment to a new employer will con-
proval Notice, reflecting the non-sub- stitute a failure to maintain status
stantive change by filing Form I–129, within the meaning of section
with fee, and a complete description of 237(a)(1)(C)(i) of the Act. In all cases
the change, or; where the treaty employee will be pro-
(C) Apply directly to Department of viding services to a subsidiary under
State for a new E visa reflecting the this paragraph, the subsidiary is re-
change. An alien who does not elect quired to comply with the terms of 8
one of the three options contained in CFR part 274a.
paragraph (e)(8)(iv) (A) through (C) of (9) Trade—definitions. For purposes of
this section, is not precluded from this paragraph: Items of trade include
demonstrating to the satisfaction of but are not limited to goods, services,
the immigration officer at the port-of- international banking, insurance, mon-
entry in some other manner, his or her ies, transportation, communications,
admissibility under section data processing, advertising, account-
101(a)(15)(E) of the Act. ing, design and engineering, manage-
(v) Advice. To ascertain whether a ment consulting, tourism, technology
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change is substantive, an alien may file and its transfer, and some news-gath-
Form I–129, with fee, and a complete ering activities. For purposes of this
description of the change, to request paragraph, goods are tangible commod-
appropriate advice. In cases involving ities or merchandise having extrinsic
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
cluding funds and other assets (which present or future capacity to generate
have not been obtained, directly or in- more than enough income to provide a
directly, through criminal activity), at minimal living for the treaty investor
risk in the commercial sense with the and his or her family. An enterprise
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Department of Homeland Security § 214.2
that does not have the capacity to gen- setting policies, directing and man-
erate such income, but that has a aging business operations, supervising
present or future capacity to make a other professional and supervisory per-
significant economic contribution is sonnel; and that, if the position re-
not a marginal enterprise. The pro- quires some routine work usually per-
jected future income-generating capac- formed by a staff employee, such func-
ity should generally be realizable with- tions may only be of an incidental na-
in 5 years from the date the alien com- ture.
mences the normal business activity of (18) Special qualifications. Special
the enterprise. qualifications are those skills and/or
(16) Solely to develop and direct. An aptitudes that an employee in a lesser
alien seeking classification as a treaty capacity brings to a position or role
investor (or, in the case of an employee that are essential to the successful or
of a treaty investor, the owner of the efficient operation of the treaty enter-
treaty enterprise) must demonstrate prise. In determining whether the
that he or she does or will develop and skills possessed by the alien are essen-
direct the investment enterprise. Such tial to the operation of the employing
an applicant must establish that he or treaty enterprise, a Service officer
she controls the enterprise by dem- must consider, where applicable:
onstrating ownership of at least 50 per- (i) The degree of proven expertise of
cent of the enterprise, by possessing the alien in the area of operations in-
operational control through a manage- volved; whether others possess the ap-
rial position or other corporate device, plicant’s specific skill or aptitude; the
or by other means. length of the applicant’s experience
(17) Executive and supervisory char- and/or training with the treaty enter-
acter. The applicant’s position must be prise; the period of training or other
principally and primarily, as opposed experience necessary to perform effec-
to incidentally or collaterally, execu- tively the projected duties; the rela-
tive or supervisory in nature. Execu- tionship of the skill or knowledge to
tive and supervisory duties are those the enterprise’s specific processes or
which provide the employee ultimate applications, and the salary the special
control and responsibility for the en- qualifications can command; that
terprise’s overall operation or a major knowledge of a foreign language and
component thereof. In determining culture does not, by itself, meet the
whether the applicant has established special qualifications requirement,
possession of the requisite control and and;
responsibility, a Service officer shall (ii) Whether the skills and qualifica-
consider, where applicable: tions are readily available in the
(i) That an executive position is one United States. In all cases, in deter-
which provides the employee with mining whether the applicant possesses
great authority to determine the pol- special qualifications which are essen-
icy of, and the direction for, the enter- tial to the treaty enterprise, a Service
prise; officer must take into account all the
(ii) That a position primarily of su- particular facts presented. A skill that
pervisory character provides the em- is essential at one point in time may
ployee supervisory responsibility for a become commonplace at a later date.
significant proportion of an enter- Skills that are needed to start up an
prise’s operations and does not gen- enterprise may no longer be essential
erally involve the direct supervision of after initial operations are complete
low-level employees, and; and running smoothly. Some skills are
(iii) Whether the applicant possesses essential only in the short-term for the
executive and supervisory skills and training of locally hired employees.
experience; a salary and position title Under certain circumstances, an appli-
commensurate with executive or super- cant may be able to establish his or her
visory employment; recognition or in- essentiality to the treaty enterprise for
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dicia of the position as one of author- a longer period of time, such as, in con-
ity and responsibility in the overall or- nection with activities in the areas of
ganizational structure; responsibility product improvement, quality control,
for making discretionary decisions, or the provision of a service not yet
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
United States at the time of filing the workers in the alien’s occupational
application for extension of stay; and classification is in progress at the
(C) Has not abandoned his or her ex- place where the alien is or intends to
tension request. be employed; and
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Department of Homeland Security § 214.2
(B) Temporary entry of that alien (i) Eligibility for admission. A non-
may affect adversely either: immigrant student may be admitted
(1) The settlement of any labor dis- into the United States in non-
pute that is in progress at the place or immigrant status under section
intended place of employment, or 101(a)(15)(F) of the Act, if:
(2) The employment of any person (A) The student presents a SEVIS
who is involved in such dispute. Form I–20 issued in his or her own
(ii) If the alien has already com- name by a school approved by the Serv-
menced employment in the United ice for attendance by F–1 foreign stu-
States and is participating in a strike dents. (In the alternative, for a student
or other labor dispute involving a work seeking admission prior to August 1,
stoppage of workers, whether or not 2003, the student may present a cur-
such strike or other labor dispute has rently-valid Form I–20A–B/I–20ID, if
been certified by the Secretary of that form was issued by the school
Labor, or whether the Service has been prior to January 30, 2003);
otherwise informed that such a strike (B) The student has documentary evi-
or labor dispute is in progress, the dence of financial support in the
alien shall not be deemed to be failing amount indicated on the SEVIS Form
to maintain his or her status solely on I–20 (or the Form I–20A–B/I–20ID);
account of past, present, or future par- (C) For students seeking initial ad-
ticipation in a strike or other labor mission only, the student intends to
dispute involving a work stoppage of attend the school specified in the stu-
workers, but is subject to the following dent’s visa (or, where the student is ex-
terms and conditions: empt from the requirement for a visa,
(A) The alien shall remain subject to the school indicated on the SEVIS
all applicable provisions of the Immi- Form I–20 (or the Form I–20A–B/I–
gration and Nationality Act, and regu- 20ID)); and
lations promulgated in the same man- (D) In the case of a student who in-
ner as all other E nonimmigrants; and tends to study at a public secondary
(B) The status and authorized period school, the student has demonstrated
of stay of such an alien is not modified that he or she has reimbursed the local
or extended in any way by virtue of his educational agency that administers
or her participation in a strike or other the school for the full, unsubsidized per
labor dispute involving a work stop- capita cost of providing education at
page of workers. the school for the period of the stu-
(iii) Although participation by an E dent’s attendance.
nonimmigrant alien in a strike or (ii) Disposition of Form I–20 A–B/I–20
other labor dispute involving a work ID. Form I–20 A–B/I–20 ID contains two
stoppage of workers will not constitute copies, the I–20 School Copy and the I–
a ground for deportation, any alien 20 ID (Student) Copy. For purposes of
who violates his or her status or who clarity, the entire Form I–20 A–B/I–20
remains in the United States after his ID shall be referred to as Form I–20 A–
or her authorized period of stay has ex- B and the I–20 ID (Student) Copy shall
pired will be subject to deportation. be referred to as the I–20 ID. When an
(iv) If there is a strike or other labor F–1 student applies for admission with
dispute involving a work stoppage of a complete Form I–20 A–B, the inspect-
workers in progress, but such strike or ing officer shall:
other labor dispute is not certified (A) Transcribe the student’s admis-
under paragraph (e)(22)(i) of this sec- sion number from Form I–94 onto his or
tion, or the Service has not otherwise her Form I–20 A–B (for students seek-
been informed by the Secretary that ing initial admission only);
such a strike or labor dispute is in (B) Endorse all copies of the Form I–
progress, the Commissioner shall not 20 A–B;
deny entry to an applicant for E status. (C) Return the I–20 ID to the student;
(f) Students in colleges, universities, and
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seminaries, conservatories, academic high (D) Forward the I–20 School Copy to
schools, elementary schools, other aca- the Service’s processing center for data
demic institutions, and in language train- entry. (The school copy of Form I–20 A–
ing programs—(1) Admission of student— B will be sent back to the school as a
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
Form I–20 issued in the name of each studies, except that an F–1 student who
F–2 dependent issued by a school au- is admitted to attend a public high
thorized by the Service for attendance school is restricted to an aggregate of
by F–1 foreign students. Prior to Au- 12 months of study at any public high
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Department of Homeland Security § 214.2
school(s). An F–1 student may be ad- such notice in the FEDERAL REGISTER
mitted for a period up to 30 days before will be considered to be in status dur-
the indicated report date or program ing the authorized employment, sub-
start date listed on Form I–20. The stu- ject to any other conditions specified
dent is considered to be maintaining in the notice, provided that, for the du-
status if he or she is making normal ration of the authorized employment,
progress toward completing a course of the student is registered for the num-
study. ber of semester or quarter hours of in-
(ii) Change in educational levels. An F– struction per academic term specified
1 student who continues from one edu- in the notice, which in no event shall
cational level to another is considered be less than 6 semester or quarter
to be maintaining status, provided that hours of instruction per academic term
the transition to the new educational if the student is at the undergraduate
level is accomplished according to level or less than 3 semester or quarter
transfer procedures outlined in para- hours of instruction per academic term
graph (f)(8) of this section. if the student is at the graduate level,
(iii) Annual vacation. An F–1 student and is continuing to make progress to-
at an academic institution is consid- ward completing the course of study.
ered to be in status during the annual (vi) Extension of duration of status and
(or summer) vacation if the student is grant of employment authorization.
eligible and intends to register for the (A) The duration of status, and any
next term. A student attending a employment authorization granted
school on a quarter or trimester cal- under 8 CFR 274a.12(c)(3)(i)(B) and (C),
endar who takes only one vacation a of an F–1 student who is the bene-
year during any one of the quarters or ficiary of an H–1B petition and request
trimesters instead of during the sum- for change of status shall be automati-
mer is considered to be in status during cally extended until October 1 of the
that vacation, if the student has com- fiscal year for which such H–1B visa is
pleted the equivalent of an academic being requested where such petition:
year prior to taking the vacation. (1) Has been timely filed; and
(iv) Preparation for departure. An F–1 (2) States that the employment start
student who has completed a course of date for the F–1 student is October 1 of
study and any authorized practical the following fiscal year.
training following completion of stud- (B) The automatic extension of an F–
ies will be allowed an additional 60-day 1 student’s duration of status and em-
period to prepare for departure from ployment authorization under para-
the United States or to transfer in ac- graph (f)(5)(vi)(A) of this section shall
cordance with paragraph (f)(8) of this immediately terminate upon the rejec-
section. An F–1 student authorized by tion, denial, or revocation of the H–1B
the DSO to withdraw from classes will petition filed on such F–1 student’s be-
be allowed a 15-day period for depar- half.
ture from the United States. However, (C) In order to obtain the automatic
an F–1 student who fails to maintain a extension of stay and employment au-
full course of study without the ap- thorization under paragraph
proval of the DSO or otherwise fails to (f)(5)(vi)(A) of this section, the F–1 stu-
maintain status is not eligible for an dent, according to 8 CFR part 248, must
additional period for departure. not have violated the terms or condi-
(v) Emergent circumstances as deter- tions of his or her nonimmigrant sta-
mined by the Commissioner. Where the tus.
Commissioner has suspended the appli- (D) An automatic extension of an F–
cability of any or all of the require- 1 student’s duration of status under
ments for on-campus or off-campus em- paragraph (f)(5)(vi)(A) of this section
ployment authorization for specified also applies to the duration of status of
students pursuant to paragraphs any F–2 dependent aliens.
(f)(9)(i) or (f)(9)(ii) of this section by no- (6) Full course of study—(i) General.
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
ance a week if the dominant part of the dent otherwise taking a full course of
course of study consists of classroom study.
instruction, or to consist of at least (ii) Institution of higher learning. For
twenty-two clock hours a week if the purposes of this paragraph, a college or
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Department of Homeland Security § 214.2
authorize a reduced course load (or, if larly, the DSO will report to the Serv-
necessary, no course load) due to a stu- ice no more than 21 days after the stu-
dent’s temporary illness or medical dent has resumed a full course of study
condition for a period of time not to by submitting a current copy of the
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
students’ Form I–20ID to the Service’s (ii) Report date and program completion
data processing center indicating the date on Form I–20. When determining
date a full course of study was resumed the report date on the Form I–20, the
and the new program end date with DSO may choose a reasonable date to
Form I–538, if applicable. accommodate a student’s need to be in
(E) SEVIS reporting requirements. In attendance for required activities at
order for a student to be authorized to the school prior to the actual start of
drop below a full course of study, the classes. Such required activities may
DSO must update SEVIS prior to the include, but are not limited to, re-
student reducing his or her course load. search projects and orientation ses-
The DSO must update SEVIS with the sions. However, for purposes of employ-
date, reason for authorization, and the ment, the DSO may not indicate a re-
start date of the next term or session. port date more than 30 days prior to
The DSO must also notify SEVIS with- the start of classes. When determining
in 21 days of the student’s commence- the program completion date on Form
ment of a full course of study. If an ex- I–20, the DSO should make a reasonable
tension of the program end date is re- estimate based upon the time an aver-
quired due to the drop below a full age student would need to complete a
course of study, the DSO must update similar program in the same discipline.
SEVIS by completing a new SEVIS (iii) Program extension for students in
Form I–20 with the new program end lawful status. An F–1 student who is un-
date in accordance with paragraph able to meet the program completion
(f)(7) of this section. date on the Form I–20 may be granted
(iv) Concurrent enrollment. An F–1 stu- an extension by the DSO if the DSO
dent may be enrolled in two different certifies that the student has contin-
Service-approved schools at one time ually maintained status and that the
as long as the combined enrollment delays are caused by compelling aca-
amounts to a full time course of study. demic or medical reasons, such as
In cases where a student is concur- changes of major or research topics,
rently enrolled, the school from which unexpected research problems, or docu-
the student will earn his or her degree mented illnesses. Delays caused by aca-
or certification should issue the Form demic probation or suspension are not
I–20, and conduct subsequent certifi- acceptable reasons for program exten-
cations and updates to the Form I–20. sions. A DSO may not grant an exten-
The DSO from this school is also re- sion if the student did not apply for an
sponsible for all of the reporting re- extension until after the program end
quirements to the Service. In instances date noted on the Form I–20. An F–1
where a student is enrolled in programs student who is unable to complete the
with different full course of study re- educational program within the time
quirements (e.g., clock hours vs. credit listed on Form I–20 and who is ineli-
hours), the DSO is permitted to deter- gible for program extension pursuant
mine what constitutes a full time to this paragraph (f)(7) is considered
course of study. out of status. If eligible, the student
(7) Extension of stay—(i) General. An may apply for reinstatement under the
F–1 student who is admitted for dura- provisions of paragraph (f)(16) of this
tion of status is not required to apply section.
for extension of stay as long as the stu- (iv) Notification. Upon granting a pro-
dent is maintaining status and making gram extension, a DSO at a non-SEVIS
normal progress toward completion of school must immediately submit noti-
his or her educational objective. An F– fication to the Service’s data proc-
1 student who is currently maintaining essing center using Form I–538 and the
status and making normal progress to- top page of Form I–20A–B showing the
ward completing his or her educational new program completion date. For a
objective, but who is unable to com- school enrolled in SEVIS, a DSO may
plete his or her course of study by the grant a program extension only by up-
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program end date on the Form I–20, dating SEVIS and issuing a new Form
must apply prior to the program end I–20 reflecting the current program end
date for a program extension pursuant date. A DSO may grant an extension
to paragraph (f)(7)(iii) of this section. any time prior to the program end date
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Department of Homeland Security § 214.2
listed on the student’s original Form I– sible for determining that the student
20. has been maintaining status at his or
(8) School transfer.(i) A student who is her current school and is eligible for
maintaining status may transfer to an- transfer to the new school. The trans-
other Service approved school by fol- fer will be effected only if the student
lowing the notification procedure pre- completes the Student Certification
scribed in paragraph (f)(8)(ii) of this portion of the Form I–20 and returns
section. However, an F–1 student is not the form to a DSO of the transfer
permitted to remain in the United school within 15 days of the program
States when transferring between start date listed on Form I–20. Upon re-
schools or programs unless the student ceipt of the student’s Form I–20 the
will begin classes at the transfer school DSO must note ‘‘transfer completed on
or program within 5 months of trans-
(date)’’ in the space provided for the
ferring out of the current school or
DSO’s remarks, thereby acknowledging
within 5 months of the program com-
the student’s attendance at the trans-
pletion date on his or her current Form
I–20, whichever is earlier. In the case of fer school; return the Form I–20 to the
an F–1 student authorized to engage in student; submit the School copy of the
post-completion optional practical Form I–20 to Service’s Data Processing
training (OPT), the student must be Center within 30 days of receipt from
able resume classes within 5 months of the student; and forward a photocopy
transferring out of the school that rec- of the school copy to the school from
ommended OPT or the date the OPT which the student transferred.
authorization ends, whichever is ear- (B) Non-SEVIS school to SEVIS school.
lier. An F–1 student who was not pur- To transfer from a non-SEVIS school
suing a full course of study at the to a SEVIS school, the student must
school he or she was last authorized to first notify the school he or she is at-
attend is ineligible for school transfer tending of the intent to transfer, then
and must apply for reinstatement obtain a SEVIS Form I–20 issued in ac-
under the provisions of paragraph cordance with the provisions of 8 CFR
(f)(16) of this section, or, in the alter- 214.3(k) from the school to which he or
native, may depart the country and re- she intends to transfer. Prior to
turn as an initial entry in a new F–1 issuance of any Form I–20, the DSO at
nonimmigrant status. the transfer school is responsible for
(ii) Transfer procedure. To transfer determining that the student has been
schools, an F–1 student must first no- maintaining status at his or her cur-
tify the school he or she is attending of rent school and is eligible for transfer
the intent to transfer, then obtain a to the new school. Once the transfer
Form I–20 A–B, issued in accordance school has issued the SEVIS Form I–20
with the provisions of 8 CFR 214.3(k), to the student indicating a transfer,
from the school to which he or she in- the transfer school becomes respon-
tends to transfer. The transfer will be
sible for updating and maintaining the
effected only if the F–1 student com-
student’s record in SEVIS. The student
pletes the Student Certification por-
is then required to notify the DSO at
tion of the Form I–20 A–B and returns
the form to a designated school official the transfer school within 15 days of
on campus within 15 days of beginning the program start date listed on SEVIS
attendance at the new school. Form I–20. Upon notification that the
(A) Non-SEVIS School to Non-SEVIS student is enrolled in classes, the DSO
school. To transfer from one non-SEVIS of the transfer school must update
school to a different non-SEVIS school, SEVIS to reflect the student’s registra-
the student must first notify the tion and current address, thereby ac-
school he or she is attending of the in- knowledging that the student has com-
tent to transfer, then obtain a Form I– pleted the transfer process. In the re-
20 issued in accordance with the provi- marks section of the student’s SEVIS
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sions of 8 CFR 214.3(k) from the school Form I–20, the DSO must note that the
to which he or she intends to transfer. transfer has been completed, including
Prior to issuance of any Form I–20, the the date, and return the form to the
DSO at the transfer school is respon- student. The transfer is effected when
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
the transfer school updates SEVIS in- the student has enrolled in classes in
dicating that the student has reg- accordance with the 30 days required
istered in classes within the 30 days re- by § 214.3(g)(3)(iii).
quired by § 214.3(g)(3)(iii). (D) SEVIS school to non-SEVIS school.
(C) SEVIS school to SEVIS school. To To transfer from a SEVIS school to a
transfer from a SEVIS school to a non-SEVIS school, the student must
SEVIS school the student must first first notify his or her current school of
notify his or her current school of the the intent to transfer and must indi-
intent to transfer and must indicate cate the school to which he or she in-
the school to which he or she intends tends to transfer. Upon notification by
to transfer. Upon notification by the the student, the current school will up-
student, the current school will update date the student’s status in SEVIS as
the student’s record in SEVIS as a ‘‘a transfer out’’, enter a ‘‘release’’ or
‘‘transfer out’’ and indicate the school expected transfer date, and update the
to which the student intends to trans- transfer school as ‘‘non-SEVIS.’’ The
fer, and a release date. The release date student must then notify the school to
will be the current semester or session which the he or she intends to transfer
completion date, or the date of ex- of his or her intent to enroll. After the
pected transfer if earlier than the es- student has completed his or her cur-
tablished academic cycle. The current rent term or session, or has reached
school will retain control over the stu- the expected transfer date, the DSO at
dent’s record in SEVIS until the stu- the current school will no longer have
dent completes the current term or full access to the student’s SEVIS
reaches the release date. At the request record. At this point, if the student has
of the student, the DSO of the current notified the transfer school of his or
school may cancel the transfer request her intent to transfer, and the transfer
at any time prior to the release date. school has determined that the student
As of the release date specified by the has been maintaining status at his or
current DSO, the transfer school will her current school, the transfer school
be granted full access to the student’s
may issue the student a Form I–20. The
SEVIS record and then becomes re-
transfer will be effected only if the stu-
sponsible for that student. The current
dent completes the Student Certifi-
school conveys authority and responsi-
cation portion of the Form I–20 and re-
bility over that student to the transfer
turns the form to a designated school
school, and will no longer have full
official of the transfer school within 15
SEVIS access to that student’s record.
days of the program start date listed
As such, a transfer request may not be
on Form I–20. Upon receipt of the stu-
cancelled by the current DSO after the
dent’s Form I–20 the DSO must do as
release date has been reached. After
the release date, the transfer DSO follows: note ‘‘transfer completed on
must complete the transfer of the stu- (date)’’ in the space provided for the
dent’s record in SEVIS and may issue a DSO’s remarks, thereby acknowledging
SEVIS Form I–20. The student is then the student’s attendance; return the
required to contact the DSO at the Form I–20 to the student; submit the
transfer school within 15 days of the school copy of the Form I–20 to the
program start date listed on the SEVIS Service’s data processing center within
Form I–20. Upon notification that the 30 days of receipt from the student; and
student is enrolled in classes, the DSO forward a photocopy of the school copy
of the transfer school must update to the school from which the student
SEVIS to reflect the student’s registra- transferred.
tion and current address, thereby ac- (iii) Notification. Upon receipt of the
knowledging that the student has com- student’s Form I–20 A–B, the DSO
pleted the transfer process. In the re- must:
marks section of the student’s SEVIS (A) Note ‘‘transfer completed on
Form I–20, the DSO must note that the (date)’’ on the student’s I–20 ID in the
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transfer has been completed, including space provided for the DSO’s remarks,
the date, and return the form to the thereby acknowledging the student’s
student. The transfer is effected when attendance;
the transfer school notifies SEVIS that (B) Return the I–20 ID to the student;
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Department of Homeland Security § 214.2
(C) Submit the I–20 School copy to as authorized under paragraph (f)(10) of
the Service’s Data Processing Center this section. An F-I student may en-
within 30 days of receipt from the stu- gage in any on-campus employment au-
dent; and thorized under this paragraph which
(D) Forward a photocopy of the Form will not displace United States resi-
I–20 A-B School Copy to the school dents. In the case of a transfer in
from which the student transferred. SEVIS, the student may only engage in
(9) Employment—(i) On-campus employ- on-campus employment at the school
ment. On-campus employment must ei- having jurisdiction over the student’s
ther be performed on the school’s SEVIS record. Upon initial entry to
premises, (including on-location com- begin a new course of study, an F–1 stu-
mercial firms which provide services dent may not begin on-campus employ-
for students on campus, such as the ment more than 30 days prior to the ac-
school bookstore or cafeteria), or at an tual start of classes.
off-campus location which is educa- (ii) Off-campus work authorization—
tionally affiliated with the school. Em- (A) General. An F–1 student may be au-
ployment with on-site commercial thorized to work off-campus on a part-
firms, such as a construction company time basis in accordance with para-
building a school building, which do graph (f)(9)(ii) (B) or (C) of this section
not provide direct student services is after having been in F–1 status for one
not deemed on-campus employment for full academic year provided that the
the purposes of this paragraph. In the student is in good academic standing
case of off-campus locations, the edu- as determined by the DSO. Part-time
cational affiliation must be associated off-campus employment authorized
with the school’s established cur- under this section is limited to no
riculum or related to contractually more than twenty hours a week when
funded research projects at the post- school is in session. A student who is
graduate level. In any event, the em- granted off-campus employment au-
ployment must be an integral part of thorization may work full-time during
the student’s educational program. holidays or school vacation. The em-
Employment authorized under this ployment authorization is automati-
paragraph must not exceed 20 hours a cally terminated whenever the student
week while school is in session, unless fails to maintain status. In emergent
the Commissioner suspends the appli- circumstances as determined by the
cability of this limitation due to emer- Commissioner, the Commissioner may
gent circumstances, as determined by suspend the applicability of any or all
the Commissioner, by means of notice of the requirements of paragraph
in the FEDERAL REGISTER, the student (f)(9)(ii) of this section by notice in the
demonstrates to the DSO that the em- FEDERAL REGISTER.
ployment is necessary to avoid severe (B) [Reserved]
economic hardship resulting from the (C) Severe economic hardship. If other
emergent circumstances, and the DSO employment opportunities are not
notates the Form I–20 in accordance available or are otherwise insufficient,
with the FEDERAL REGISTER document. an eligible F–1 student may request off-
An F–1 student may, however, work on campus employment work authoriza-
campus full-time when school is not in tion based upon severe economic hard-
session or during the annual vacation. ship caused by unforeseen cir-
A student who has been issued a Form cumstances beyond the student’s con-
I–20 A-B to begin a new program in ac- trol. These circumstances may include
cordance with the provision of 8 CFR loss of financial aid or on-campus em-
214.3(k) and who intends to enroll for ployment without fault on the part of
the next regular academic year, term, the student, substantial fluctuations in
or session at the institution which the value of currency or exchange rate,
issued the Form I–20 A-B may continue inordinate increases in tuition and/or
on-campus employment incident to living costs, unexpected changes in the
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
(D) Procedure for off-campus employ- on the basis of Form I–20 ID, Form I–
ment authorization due to severe economic 538, and Form I–765, and any additional
hardship. The student must request a supporting materials. If employment is
recommendation from the DSO for off- authorized, the adjudicating officer
campus employment. The DSO at a shall issue an EAD. The Service direc-
non-SEVIS school must make such a tor shall notify the student of the deci-
certification on Form I–538, Certifi- sion, and, if the application is denied,
cation by Designated School Official. of the reason or reasons for the denial.
The DSO of a SEVIS school must com- No appeal shall lie from a decision to
plete such certification in SEVIS. The deny a request for employment author-
DSO may recommend the student for ization under this section. The employ-
work off-campus for one year intervals ment authorization may be granted in
by certifying that: one year intervals up to the expected
(1) The student has been in F–1 status date of completion of the student’s cur-
for one full academic year; rent course of study. A student has per-
(2) The student is in good standing as mission to engage in off-campus em-
a student and is carrying a full course ployment only if the student receives
of study as defined in paragraph (f)(6) the EAD endorsed to that effect. Off-
of this section; campus employment authorization
(3) The student has demonstrated may be renewed by the Service only if
that acceptance of employment will the student is maintaining status and
not interfere with the student’s car- good academic standing. The employ-
rying a full course of study; and ment authorization is automatically
(4) The student has demonstrated terminated whenever the student fails
that the employment is necessary to to maintain status.
avoid severe economic hardship due to (iii) Internship with an international
unforeseen circumstances beyond the organization. A bona fide F–1 student
student’s control pursuant to para- who has been offered employment by a
graph (f)(9)(ii)(C) of this section and recognized international organization
has demonstrated that employment within the meaning of the Inter-
under paragraph (f)(9)(i) of this section national Organization Immunities Act
is unavailable or otherwise insufficient (59 Stat. 669) must apply for employ-
to meet the needs that have arisen as a ment authorization to the service cen-
result of the unforeseen circumstances. ter having jurisdiction over his or her
(E) [Reserved] place of residence. A student seeking
(F) Severe economic hardship applica- employment authorization under this
tion. (1) The applicant should submit provision is required to present a writ-
the economic hardship application for ten certification from the inter-
employment authorization on Form I– national organization that the pro-
765, with the fee required by 8 CFR posed employment is within the scope
103.7(b)(1), to the service center having of the organization’s sponsorship,
jurisdiction over his or her place of res- Form I–20 ID or SEVIS Form I–20 with
idence. Applicants at a non-SEVIS employment page completed by DSO
school should submit Form I–20, Form certifying eligibility for employment,
I–538, and any other supporting mate- and a completed Form I–765, with re-
rials such as affidavits which further quired fee as contained in § 103.7(b)(1) of
detail the unforeseen circumstances this chapter.
that require the student to seek em- (10) Practical training. Practical train-
ployment authorization and the un- ing may be authorized to an F–1 stu-
availability or insufficiency of employ- dent who has been lawfully enrolled on
ment under paragraph (f)(9)(i) of this a full time basis, in a Service-approved
section. Students enrolled in a SEVIS college, university, conservatory, or
school should submit the SEVIS Form seminary for one full academic year.
I–20 with the employment page dem- This provision also includes students
onstrating the DSO’s comments and who, during their course of study, were
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Department of Homeland Security § 214.2
studying abroad. A student may be au- area of study. The DSO will indicate
thorized 12 months of practical train- whether the training is full-time or
ing, and becomes eligible for another 12 part-time, the employer and location,
months of practical training when he and the employment start and end
or she changes to a higher educational date. The DSO will then print a copy of
level. Students in English language the employment page of the SEVIS
training programs are ineligible for Form I–20 indicating that curricular
practical training. An eligible student practical training has been approved.
may request employment authoriza- The DSO must sign, date, and return
tion for practical training in a position the SEVIS Form I–20 to the student
that is directly related to his or her prior to the student’s commencement
major area of study. There are two of employment.
types of practical training available: (ii) Optional practical training.
(i) Curricular practical training. An F– (A) General. Consistent with the ap-
1 student may be authorized by the plication and approval process in para-
DSO to participate in a curricular graph (f)(11) of this section, a student
practical training program that is an may apply to USCIS for authorization
integral part of an established cur- for temporary employment for optional
riculum. Curricular practical training practical training directly related to
is defined to be alternative work/study, the student’s major area of study. The
internship, cooperative education, or student may not begin optional prac-
any other type of required internship tical training until the date indicated
or practicum that is offered by spon- on his or her employment authoriza-
soring employers through cooperative tion document, Form I–766. A student
agreements with the school. Students may be granted authorization to en-
who have received one year or more of gage in temporary employment for op-
full time curricular practical training tional practical training:
are ineligible for post-completion aca-
(1) During the student’s annual vaca-
demic training. Exceptions to the one
tion and at other times when school is
academic year requirement are pro-
not in session, if the student is cur-
vided for students enrolled in graduate
studies that require immediate partici- rently enrolled, and is eligible for reg-
pation in curricular practical training. istration and intends to register for the
A request for authorization for cur- next term or session;
ricular practical training must be (2) While school is in session, pro-
made to the DSO. A student may begin vided that practical training does not
curricular practical training only after exceed 20 hours a week while school is
receiving his or her Form I–20 with the in session; or
DSO endorsement. (3) After completion of the course of
(A) Non-SEVIS process. A student study, or, for a student in a bachelor’s,
must request authorization for cur- master’s, or doctoral degree program,
ricular practical training using Form after completion of all course require-
I–538. Upon approving the request for ments for the degree (excluding thesis
authorization, the DSO shall: certify or equivalent). Continued enrollment,
Form I–538 and send the form to the for the school’s administrative pur-
Service’s data processing center; en- poses, after all requirements for the de-
dorse the student’s Form I–20 ID with gree have been met does not preclude
‘‘full-time (or part-time) curricular eligibility for optional practical train-
practical training authorized for (em- ing. A student must complete all prac-
ployer) at (location) from (date) to tical training within a 14-month period
(date)’’; and sign and date the Form I– following the completion of study, ex-
20ID before returning it to the student. cept that a 17-month extension pursu-
(B) SEVIS process. To grant author- ant to paragraph (f)(10)(ii)(C) of this
ization for a student to engage in cur- section does not need to be completed
ricular practical training, a DSO at a within such 14-month period.
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SEVIS school will update the student’s (B) Termination of practical training.
record in SEVIS as being authorized Authorization to engage in optional
for curricular practical training that is practical training employment is auto-
directly related to the student’s major matically terminated when the student
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
transfers to another school or begins lowing the student to prepare for de-
study at another educational level. parture, change educational levels at
(C) 17-month extension of post-comple- the same school, or transfer in accord-
tion OPT for students with a science, ance with paragraph (f)(8) of this sec-
technology, engineering, or mathematics tion).
(STEM) degree. Consistent with para- (E) Periods of unemployment during
graph (f)(11)(i)(C) of this section, a post-completion OPT. During post-com-
qualified student may apply for an ex- pletion OPT, F–1 status is dependent
tension of OPT while in a valid period upon employment. Students may not
of post-completion OPT. The extension accrue an aggregate of more than 90
will be for an additional 17 months, for days of unemployment during any
a maximum of 29 months of OPT, if all post-completion OPT carried out under
of the following requirements are met.
the initial post-completion OPT au-
(1) The student has not previously re-
thorization. Students granted a 17-
ceived a 17-month OPT extension after
month OPT extension may not accrue
earning a STEM degree.
an aggregate of more than 120 days of
(2) The degree that was the basis for
the student’s current period of OPT is unemployment during the total OPT
a bachelor’s, master’s, or doctoral de- period comprising any post-completion
gree in one of the degree programs on OPT carried out under the initial post-
the current STEM Designated Degree completion OPT authorization and the
Program List, published on the SEVP subsequent 17-month extension period.
Web site at http://www.ice.gov/sevis. (11) OPT application and approval
(3) The student’s employer is reg- process.
istered in the E-Verify program, as evi- (i) Student responsibilities. A student
denced by either a valid E-Verify com- must initiate the OPT application
pany identification number or, if the process by requesting a recommenda-
employer is using a designated agent to tion for OPT from his or her DSO.
perform the E-Verify queries, a valid E- Upon making the recommendation, the
Verify client company identification DSO will provide the student a signed
number, and the employer is a partici- Form I–20 indicating that recommenda-
pant in good standing in the E-Verify tion.
program, as determined by USCIS. (A) Application for employment author-
(4) The employer agrees to report the ization. The student must properly file
termination or departure of an OPT a Form I–765, Application for Employ-
employee to the DSO at the student’s ment Authorization, with USCIS, ac-
school or through any other means or companied by the required fee for the
process identified by DHS if the termi- Form I–765, and the supporting docu-
nation or departure is prior to end of ments, as described in the form’s in-
the authorized period of OPT. Such re- structions.
porting must be made within 48 hours
(B) Filing deadlines for pre-completion
of the event. An employer shall con-
OPT and post-completion OPT.
sider a worker to have departed when
the employer knows the student has (1) Students may file a Form I–765 for
left the employment or if the student pre-completion OPT up to 90 days be-
has not reported for work for a period fore being enrolled for one full aca-
of 5 consecutive business days without demic year, provided that the period of
the consent of the employer, whichever employment will not start prior to the
occurs earlier. completion of the full academic year.
(D) Duration of status while on post- (2) For post-completion OPT, the stu-
completion OPT. For a student with ap- dent must properly file his or her Form
proved post-completion OPT, the dura- I–765 up to 90 days prior to his or her
tion of status is defined as the period program end-date and no later than 60
beginning when the student’s applica- days after his or her program end-date.
tion for OPT was properly filed and The student must also file the Form I–
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pending approval, including the au- 765 with USCIS within 30 days of the
thorized period of post-completion date the DSO enters the recommenda-
OPT, and ending 60 days after the OPT tion for OPT into his or her SEVIS
employment authorization expires (al- record.
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Department of Homeland Security § 214.2
(C) Applications for 17-month OPT ex- ployment authorization. The DSO will
tension. A student meeting the eligi- indicate in SEVIS whether the employ-
bility requirement in paragraph ment is to be full-time or part-time,
(f)(10)(ii)(C) of this section may file for and note in SEVIS the start and end
a 17-month extension of employment date of employment.
authorization by filing Form I–765, Ap- (C) The DSO must provide the stu-
plication for Employment Authoriza- dent with a signed, dated Form I–20 in-
tion, with the appropriate fee, prior to dicating that OPT has been rec-
the expiration date of the student’s ommended.
current OPT employment authoriza- (iii) Decision on application for OPT
tion. If a student timely and properly employment authorization. USCIS will
files an application for a 17-month OPT adjudicate the Form I–765 and, if ap-
extension, but the Form I–766, Employ- proved, issue an EAD on the basis of
ment Authorization Document, cur- the DSO’s recommendation and other
rently in the student’s possession, ex- eligibility considerations.
pires prior to the decision on the stu- (A) The employment authorization
dent’s application for 17-month OPT period for post-completion OPT begins
extension, the student’s Form I–766 is on the date requested or the date the
extended automatically pursuant to employment authorization application
the terms and conditions specified in 8 is approved, whichever is later, and
CFR 274a.12(b)(6)(iv).
ends at the conclusion of the remaining
(D) Start of employment. A student
time period of post-completion OPT
may not begin employment prior to the
eligibility. The employment authoriza-
approved starting date on his or her
tion period for the 17-month OPT ex-
employment authorization except as
tension begins on the day after the ex-
noted in paragraph (f)(11)(i)(C) of this
piration of the initial post-completion
section. A student may not request a
OPT employment authorization and
start date that is more than 60 days
ends 17 months thereafter, regardless
after the student’s program end date.
of the date the actual extension is ap-
Employment authorization will begin
proved.
on the date requested or the date the
employment authorization is adju- (B) USCIS will notify the applicant of
dicated, whichever is later. the decision and, if the application is
(ii) DSO responsibilities. A student denied, of the reason or reasons for the
needs a recommendation from his or denial.
her DSO in order to apply for OPT. (C) The applicant may not appeal the
When a DSO recommends a student for decision.
OPT, the school assumes the added re- (12) Reporting while on optional prac-
sponsibility for maintaining the SEVIS tical training.
record of that student for the entire pe- (i) General. An F–1 student who is au-
riod of authorized OPT, consistent with thorized by USCIS to engage in op-
paragraph (f)(12) of this section. tional practical training (OPT) em-
(A) Prior to making a recommenda- ployment is required to report any
tion, the DSO must ensure that the change of name or address, or interrup-
student is eligible for the given type tion of such employment to the DSO
and period of OPT and that the student for the duration of the optional prac-
is aware of his or her responsibilities tical training. A DSO who recommends
for maintaining status while on OPT. a student for OPT is responsible for up-
Prior to recommending a 17-month dating the student’s record to reflect
OPT extension, the DSO must certify these reported changes for the duration
that the student’s degree, as shown in of the time that training is authorized.
SEVIS, is a bachelor’s, master’s, or (ii) Additional reporting obligations for
doctorate degree with a degree code students with an approved 17-month OPT.
that is on the current STEM Des- Students with an approved 17-month
ignated Degree Program List. OPT extension have additional report-
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(B) The DSO must update the stu- ing obligations. Compliance with these
dent’s SEVIS record with the DSO’s reporting requirements is required to
recommendation for OPT before the maintain F–1 status. The reporting ob-
student can apply to USCIS for em- ligations are:
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
(A) Within 10 days of the change, the facilities to the facility where the
student must report to the student’s work stoppage is occurring.
DSO a change of legal name, residen- (15) Spouse and children of F–1 student.
tial or mailing address, employer The F–2 spouse and minor children of
name, employer address, and/or loss of an F–1 student shall each be issued an
employment. individual SEVIS Form I–20 in accord-
(B) The student must make a valida- ance with the provisions of § 214.3(k).
tion report to the DSO every six (i) Employment. The F–2 spouse and
months starting from the date the ex- children of an F–1 student may not ac-
tension begins and ending when the cept employment.
student’s F–1 status ends, the student (ii) Study. (A) The F–2 spouse of an F–
changes educational levels at the same 1 student may not engage in full time
school, or the student transfers to an- study, and the F–2 child may only en-
other school or program, or the 17- gage in full time study if the study is
month OPT extension ends, whichever in an elementary or secondary school
is first. The validation is a confirma- (kindergarten through twelfth grade).
tion that the student’s information in The F–2 spouse and child may engage
SEVIS for the items in listed in para- in study that is avocational or rec-
graph (f)(12)(ii)(A) of this section is reational in nature.
current and accurate. This report is (B) An F–2 spouse or F–2 child desir-
due to the student’s DSO within 10 ing to engage in full time study, other
business days of each reporting date. than that allowed for a child in para-
graph (f)(15)(ii)(A) of this section, must
(13) Temporary absence from the United
apply for and obtain a change of non-
States of F–1 student granted employment
immigrant classification to F–1, J–1, or
authorization. (i) A student returning
M–1 status. An F–2 spouse or child who
from a temporary trip abroad with an
was enrolled on a full time basis prior
unexpired off-campus employment au-
to January 1, 2003, will be allowed to
thorization on his or her I–20 ID may
continue study but must file for a
resume employment only if the student
change of nonimmigrant classification
is readmitted to attend the same
to F–1, J–1, or M–1 status on or before
school which granted the employment
March 11, 2003.
authorization.
(C) An F–2 spouse or F–2 child vio-
(ii) An F–1 student who has an unex- lates his or her nonimmigrant status
pired EAD issued for post-completion by engaging in full time study except
practical training and who is otherwise as provided in paragraph (f)(15)(ii)(A)
admissible may return to the United or (B) of this section.
States to resume employment after a (16) Reinstatement to student status—(i)
period of temporary absence. The EAD General. The district director may con-
must be used in combination with an I– sider reinstating a student who makes
20 ID endorsed for reentry by the DSO a request for reinstatement on Form I–
within the last six months. 539, Application to Extend/Change Non-
(14) Effect of strike or other labor dis- immigrant Status, accompanied by a
pute. Any employment authorization, properly completed SEVIS Form I–20
whether or not part of an academic indicating the DSO’s recommendation
program, is automatically suspended for reinstatement (or a properly com-
upon certification by the Secretary of pleted Form I–20A-B issued prior to
Labor or the Secretary’s designee to January 30, 2003, from the school the
the Commissioner of the Immigration student is attending or intends to at-
and Naturalization Service or the Com- tend prior to August 1, 2003). The dis-
missioner’s designee, that a strike or trict director may consider granting
other labor dispute involving a work the request if the student:
stoppage of workers is in progress in (A) Has not been out of status for
the occupation at the place of employ- more than 5 months at the time of fil-
ment. As used in this paragraph, ‘‘place ing the request for reinstatement (or
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Department of Homeland Security § 214.2
ner prescribed by the school. A student (f)(6) of this section, provided that the
enrolled at a SEVIS school can satisfy reduced course load is consistent with
the requirement in 8 CFR 265.1 of noti- the border commuter student’s ap-
fying the Service by providing a notice proved course of study.
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
(iii) Period of admission. An F–1 non- the employing official stating that he
immigrant student who is admitted as or she intends to continue to employ
a border commuter student under this the applicant and describing the type
paragraph (f)(18) will be admitted until of work the applicant will perform.
a date certain. The DSO is required to (2) Definition of G–1, G–3, or G–4 de-
specify a completion date on the Form pendent. For purposes of employment
I–20 that reflects the actual semester in the United States, the term depend-
or term dates for the commuter stu- ent of a G–1, G–3, or G–4 principal alien,
dent’s current term of study. A new as used in § 214.2(g), means any of the
Form I–20 will be required for each new following immediate members of the
semester or term that the border com- family habitually residing in the same
muter student attends at the school. household as the principal alien who is
The provisions of paragraphs (f)(5) and an officer or employee assigned to a
(f)(7) of this section, relating to dura- mission, to an international organiza-
tion of status and extension of stay, tion, or is employed by an inter-
are not applicable to a border com- national organization in the United
muter student. States:
(iv) Employment. A border commuter (i) Spouse;
student may not be authorized to ac- (ii) Unmarried children under the age
cept any employment in connection of 21;
with his or her F–1 student status, ex- (iii) Unmarried sons or daughters
cept for curricular practical training as under the age of 23 who are in full-time
provided in paragraph (f)(10)(i) of this attendance as students at post-sec-
section or post-completion optional ondary educational institutions;
practical training as provided in para- (iv) Unmarried sons or daughters
graph (f)(10)(ii)(A)(3) of this section. under the age of 25 who are in full-time
(19) Remittance of the fee. An alien attendance as students at post-sec-
who applies for F–1 or F–3 non- ondary educational institutions if a
immigrant status in order to enroll in formal bilateral employment agree-
a program of study at a Department of ment permitting their employment in
Homeland Security (DHS)-approved the United States was signed prior to
educational institution is required to November 21, 1988, and such bilateral
pay the Student and Exchange Visitor employment agreement does not speci-
Information System (SEVIS) fee to fy 23 as the maximum age for employ-
DHS, pursuant to 8 CFR 214.13, except ment of such sons and daughters. The
as otherwise provided in that section. Office of Protocol of the Department of
(g) Representatives to international or- State shall maintain a listing of for-
ganizations—(1) General. The determina- eign states which the United States
tion by a consular officer prior to ad- has such bilateral employment agree-
mission and the recognition by the ments. The provisions of this para-
Secretary of State subsequent to ad- graph apply only to G–1 and G–3 de-
mission is evidence of the proper clas- pendents under certain bilateral agree-
sification of a nonimmigrant under ments and are not applicable to G–4 de-
section 101(a)(15)(G) of the Act. An pendents; and
alien who has a nonimmigrant status (v) Unmarried sons or daughters who
under section 101(a)(15)(G) (i), (ii), (iii) are physically or mentally disabled to
or (iv) of the Act is to be admitted for the extent that they cannot adequately
the duration of the period for which care for themselves or cannot estab-
the alien continues to be recognized by lish, maintain, or re-establish their
the Secretary of State as being entitled own households. The Department of
to that status. An alien defined in sec- State or the Service may require cer-
tion (101)(a)(15)(G)(v) of the Act is to be tification(s) as it deems sufficient to
admitted for an initial period of not document such mental or physical dis-
more than three years, and may be ability.
granted extensions of temporary stay (3) Applicability of a formal bilateral
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Department of Homeland Security § 214.2
state which employs the principal alien cipal alien assigned to official duty in
and not on the nationality of the prin- the United States may be authorized to
cipal alien or dependent. The applica- accept or continue in employment
bility of an informal de facto arrange- based upon informal de facto arrange-
ment shall be based on the foreign ments, and dependents of a G–4 prin-
state which employs the principal cipal alien assigned to official duty in
alien, but under a de facto arrange- the United States may be authorized to
ment the principal alien also must be a accept or continue in employment
national of the foreign state which em- upon favorable recommendation by the
ploys him or her in the United States. Department of State and issuance of
(4) Income tax, Social Security liability; employment authorization by the Serv-
non-applicability of certain immunities. ice in accordance with 8 CFR part 274a.
Dependents who are granted employ- Additionally, the procedures set forth
ment authorization under this section in paragraph (g)(6) of this section must
are responsible for payment of all fed- be complied with, and the following
eral, state and local income, employ- conditions must be met:
ment and related taxes and Social Se- (A) Both the principal alien and the
curity contributions on any remunera- dependent desiring employment are
tion received. In addition, immunity maintaining G–1, G–3, or G–4 status as
from civil or administrative jurisdic- appropriate;
tion in accordance with Article 37 of (B) The principal’s assignment in the
the Vienna Convention on Diplomatic United States is expected to last more
Relations or other international agree- than six months;
ments does not apply to these depend- (C) Employment of a similar nature
ents with respect to matters arising for dependents of United States Gov-
out of their employment. ernment officials assigned to official
(5) G–1 and G–3 dependent employment duty in the foreign state employing the
pursuant to formal bilateral employment principal alien is not prohibited by
agreements and informal de facto recip- that foreign government. The provi-
rocal arrangements, and G–4 dependent sions of this paragraph apply only to
employment. (i) The Office of Protocol G–1 and G–3 dependents;
shall maintain a listing of foreign (D) The proposed employment is not
states which have entered into formal in an occupation listed in the Depart-
bilateral employment agreements. De- ment of Labor Schedule B (20 CFR part
pendents of a G–1 or G–3 principal alien 656), or otherwise determined by the
assigned to official duty in the United Department of Labor to be one for
States may accept or continue in unre- which there is an oversupply of quali-
stricted employment based on such for- fied U.S. workers in the area of pro-
mal bilateral agreements, if the appli- posed employment. This Schedule B re-
cable agreement includes persons in G– striction does not apply to a dependent
1 or G–3 visa status, upon favorable son or daughter who is a full-time stu-
recommendation by the Department of dent if the employment is part-time,
State and issuance of employment au- consisting of not more than 20 hours
thorization documentation by the per week, and/or if it is temporary em-
Service in accordance with 8 CFR part ployment of not more than 12 weeks
274a. The application procedures are during school holiday periods; and
set forth in paragrpah (g)(6) of this sec- (E) The proposed employment is not
tion. contrary to the interest of the United
(ii) For purposes of this section, an States. Employment contrary to the
informal de facto reciprocal arrange- interest of the United States includes,
ment exists when the Department of but is not limited to, the employment
State determines that a foreign state of G–1, G–3, or G–4 dependents: who
allows appropriate employment on the have criminal records; who have vio-
local economy for dependents of cer- lated United States immigration laws
tain United States officials assigned to or regulations, or visa laws or regula-
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duty in that foreign state. The Office of tions; who have worked illegally in the
Protocol shall maintain a listing of United States; and/or who cannot es-
countries with which such reciprocity tablish that they have paid taxes and
exists. Dependents of a G–1 or G–3 prin- social security on income from current
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
formed; the salary offered; and tion of dependent under § 214.2(g)(2) (i),
verification that the dependent pos- (ii), (iii) or (v) of this part but is not
sesses the qualifications for the posi- covered by the terms of a bilateral
tion. agreement or de facto arrangement
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Department of Homeland Security § 214.2
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
permanent nature of the services or and the alien’s extension of stay must
labor described on the approved tem- conform to the limits on the alien’s
porary labor certification are subject temporary stay that are prescribed in
to review by USCIS. This classification paragraph (h)(13) of this section. Ex-
requires a temporary labor certifi- cept as provided by 8 CFR 274a.12(b)(21)
cation issued by the Secretary of Labor or section 214(n) of the Act, 8 U.S.C.
or the Governor of Guam prior to the 1184(n), the alien is not authorized to
filing of a petition with USCIS. begin the employment with the new pe-
(E) An H–3 classification applies to titioner until the petition is approved.
an alien who is coming temporarily to An H–1C nonimmigrant alien may not
the United States: change employers.
(1) As a trainee, other than to receive (E) Amended or new petition. The peti-
graduate medical education or train- tioner shall file an amended or new pe-
ing, or training provided primarily at tition, with fee, with the Service Cen-
or by an academic or vocational insti- ter where the original petition was
tution, or filed to reflect any material changes in
(2) As a participant in a special edu- the terms and conditions of employ-
cation exchange visitor program which ment or training or the alien’s eligi-
provides for practical training and ex- bility as specified in the original ap-
perience in the education of children proved petition. An amended or new H–
with physical, mental, or emotional 1C, H–1B, H–2A, or H–2B petition must
disabilities. be accompanied by a current or new
(2) Petitions—(i) Filing of petitions— Department of Labor determination. In
(A) General. A United States em- the case of an H–1B petition, this re-
ployer seeking to classify an alien as quirement includes a new labor condi-
an H–1B, H–2A, H–2B, or H–3 temporary tion application.
employee must file a petition on Form (F) Agents as petitioners. A United
I–129, Petition for Nonimmigrant States agent may file a petition in
Worker, as provided in the form in- cases involving workers who are tradi-
structions. tionally self-employed or workers who
(B) Service or training in more than one use agents to arrange short-term em-
location. A petition that requires serv- ployment on their behalf with numer-
ices to be performed or training to be ous employers, and in cases where a
received in more than one location foreign employer authorizes the agent
must include an itinerary with the to act on its behalf. A United States
dates and locations of the services or agent may be: the actual employer of
training and must be filed with USCIS the beneficiary, the representative of
as provided in the form instructions. both the employer and the beneficiary,
The address that the petitioner speci- or, a person or entity authorized by the
fies as its location on the Form I–129 employer to act for, or in place of, the
shall be where the petitioner is located employer as it agent. A petition filed
for purposes of this paragraph. by a United States agent is subject to
(C) Services or training for more than the following conditions;
one employer. If the beneficiary will (1) An agent performing the function
perform nonagricultural services for, of an employer must guarantee the
or receive training from, more than wages and other terms and conditions
one employer, each employer must file of employment by contractual agree-
a separate petition with USCIS as pro- ment with the beneficiary or bene-
vided in the form instructions. ficiaries of the petition. The agent/em-
(D) Change of employers. If the alien is ployer must also provide an itinerary
in the United States and seeks to of definite employment and informa-
change employers, the prospective new tion on any other services planned for
employer must file a petition on Form the period of time requested.
I–129 requesting classification and an (2) A person or company in business
extension of the alien’s stay in the as an agent may file the H petition in-
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United States. If the new petition is volving multiple employers as the rep-
approved, the extension of stay may be resentative of both the employers and
granted for the validity of the approved the beneficiary or beneficiaries if the
petition. The validity of the petition supporting documentation includes a
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Department of Homeland Security § 214.2
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
(B) A United States employer which (B) A statement describing any limi-
provides health care services is re- tations which the laws of the state or
ferred to as a facility. A facility may file jurisdiction of intended employment
an H–1C petition for an alien nurse to place on the alien’s services; and
perform the services of a registered (C) Evidence that the alien(s) named
nurse, if the facility meets the eligi- on the petition meets the definition of
bility standards of 20 CFR 655.1111 and a registered nurse as defined at 8 CFR
the other requirements of the Depart- 214.2(h)(3)(i)(A), and satisfies the re-
ment of Labor’s regulations in 20 CFR quirements contained in section
part 655, subpart L. 212(m)(1) of the Act.
(C) The position must involve nurs- (v) Licensure requirements. (A) A nurse
ing practice and require licensure or who is granted H–1C classification
other authorization to practice as a based on passage of the CGFNS exam-
registered nurse from the State Board ination must, upon admission to the
of Nursing in the state of intended em- United States, be able to obtain tem-
ployment. porary licensure or other temporary
(ii) [Reserved] authorization to practice as a reg-
(iii) Beneficiary requirements. An H–1C istered nurse from the State Board of
petition for a nurse shall be accom- Nursing in the state of intended em-
ployment.
panied by evidence that the nurse:
(B) An alien who was admitted as an
(A) Has obtained a full and unre-
H–1C nonimmigrant on the basis of a
stricted license to practice nursing in
temporary license or authorization to
the country where the alien obtained practice as a registered nurse must
nursing education, or has received comply with the licensing require-
nursing education in the United States; ments for registered nurses in the state
(B) Has passed the examination given of intended employment. An alien ad-
by the Commission on Graduates of mitted as an H–1C nonimmigrant is re-
Foreign Nursing Schools (CGFNS), or quired to obtain a full and unrestricted
has obtained a full and unrestricted license if required by the state of in-
(permanent) license to practice as a tended employment. The Service must
registered nurse in the state of in- be notified pursuant to § 214.2(h)(11)
tended employment, or has obtained a when an H–1C nurse is no longer li-
full and unrestricted (permanent) li- censed as a registered nurse in the
cense in any state or territory of the state of intended employment.
United States and received temporary (C) A nurse shall automatically lose
authorization to practice as a reg- his or her eligibility for H–1C classi-
istered nurse in the state of intended fication if he or she is no longer per-
employment; and forming the duties of a registered pro-
(C) Is fully qualified and eligible fessional nurse. Such a nurse is not au-
under the laws (including such tem- thorized to remain in employment un-
porary or interim licensing require- less he or she otherwise receives au-
ments which authorize the nurse to be thorization from the Service.
employed) governing the place of in- (vi) Other requirements. (A) If the Sec-
tended employment to practice as a retary of Labor notifies the Service
registered nurse immediately upon ad- that a facility which employs H–1C
mission to the United States, and is nonimmigrant nurses has failed to
authorized under such laws to be em- meet a condition in its attestation, or
ployed by the employer. For purposes that there was a misrepresentation of a
of this paragraph, the temporary or in- material fact in the attestation, the
terim licensing may be obtained imme- Service shall not approve petitions for
diately after the alien enters the H–1C nonimmigrant nurses to be em-
United States. ployed by the facility for a period of at
(iv) Petitioner requirements. The peti- least 1 year from the date of receipt of
tioning facility shall submit the fol- such notice. The Secretary of Labor
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
and ability in the field of fashion mod- (2) Has an employer-employee rela-
eling. H–1B classification may be grant- tionship with respect to employees
ed to an alien who is of distinguished under this part, as indicated by the
merit and ability in the field of fashion fact that it may hire, pay, fire, super-
modeling. An alien of distinguished vise, or otherwise control the work of
merit and ability in the field of fashion any such employee; and
modeling is one who is prominent in (3) Has an Internal Revenue Service
the field of fashion modeling. The alien Tax identification number.
must also be coming to the United (iii) Criteria for H–1B petitions involv-
States to perform services which re- ing a specialty occupation—(A) Standards
quire a fashion model of prominence. for specialty occupation position. To
(ii) Definitions. qualify as a specialty occupation, the
Prominence means a high level of position must meet one of the fol-
achievement in the field of fashion lowing criteria:
modeling evidenced by a degree of skill (1) A baccalaureate or higher degree
and recognition substantially above or its equivalent is normally the min-
that ordinarily encountered to the ex- imum requirement for entry into the
tent that a person described as promi- particular position;
nent is renowned, leading, or well- (2) The degree requirement is com-
known in the field of fashion modeling. mon to the industry in parallel posi-
Regonized authority means a person or tions among similar organizations or,
an organization with expertise in a par- in the alternative, an employer may
ticular field, special skills or knowl- show that its particular position is so
edge in that field, and the expertise to complex or unique that it can be per-
render the type of opinion requested. formed only by an individual with a de-
Such an opinion must state: gree;
(3) The employer normally requires a
(1) The writer’s qualifications as an
degree or its equivalent for the posi-
expert;
tion; or
(2) The writer’s experience giving (4) The nature of the specific duties
such opinions, citing specific instances are so specialized and complex that
where past opinions have been accepted knowledge required to perform the du-
as authoritative and by whom; ties is usually associated with the at-
(3) How the conclusions were reached; tainment of a baccalaureate or higher
and degree.
(4) The basis for the conclusions sup- (B) Petitioner requirements. The peti-
ported by copies or citations of any re- tioner shall submit the following with
search material used. an H–1B petition involving a specialty
Specialty occupation means an occupa- occupation:
tion which requires theoretical and (1) A certification from the Secretary
practical application of a body of high- of Labor that the petitioner has filed a
ly specialized knowledge in fields of labor condition application with the
human endeavor including, but not Secretary,
limited to, architecture, engineering, (2) A statement that it will comply
mathematics, physical sciences, social with the terms of the labor condition
sciences, medicine and health, edu- application for the duration of the
cation, business specialties, account- alien’s authorized period of stay,
ing, law, theology, and the arts, and (3) Evidence that the alien qualifies
which requires the attainment of a to perform services in the specialty oc-
bachelor’s degree or higher in a specific cupation as described in paragraph
specialty, or its equivalent, as a min- (h)(4)(iii)(A) of this section, and
imum for entry into the occupation in (C) Beneficiary qualifications. To qual-
the United States. ify to perform services in a specialty
United States employer means a per- occupation, the alien must meet one of
son, firm, corporation, contractor, or the following criteria:
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Department of Homeland Security § 214.2
303
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
of the alien abroad if the alien is dis- (B) Copies of any written contracts
missed from employment by the em- between the petitioner and beneficiary,
ployer before the end of the period of or a summary of the terms of the oral
authorized admission pursuant to sec- agreement under which the beneficiary
tion 214(c)(5) of the Act. If the bene- will be employed, if there is no written
ficiary voluntarily terminates his or contract.
her employment prior to the expiration (v) Licensure for H classification—(A)
of the validity of the petition, the alien General. If an occupation requires a
has not been dismissed. If the bene- state or local license for an individual
ficiary believes that the employer has to fully perform the duties of the occu-
not complied with this provision, the pation, an alien (except an H–1C nurse)
beneficiary shall advise the Service seeking H classification in that occu-
Center which adjudicated the petition pation must have that license prior to
in writing. The complaint will be re- approval of the petition to be found
tained in the file relating to the peti- qualified to enter the United States
tion. Within the context of this para- and immediately engage in employ-
graph, the term ‘‘abroad’’ refers to the ment in the occupation.
alien’s last place of foreign residence. (B) Temporary licensure. If a tem-
This provision applies to any employer porary license is available and the
whose offer of employment became the alien is allowed to perform the duties
basis for an alien obtaining or con- of the occupation without a permanent
tinuing H–1B status. license, the director shall examine the
(iv) General documentary requirements nature of the duties, the level at which
for H–1B classification in a specialty oc- the duties are performed, the degree of
cupation. An H–1B petition involving a supervision received, and any limita-
specialty occupation shall be accom- tions placed on the alien. If an analysis
panied by: of the facts demonstrates that the
alien under supervision is authorized to
(A) Documentation, certifications,
fully perform the duties of the occupa-
affidavits, declarations, degrees, diplo-
tion, H classification may be granted.
mas, writings, reviews, or any other re-
(C) Duties without licensure. In certain
quired evidence sufficient to establish
occupations which generally require li-
that the beneficiary is qualified to per-
censure, a state may allow an indi-
form services in a specialty occupation vidual to fully practice the occupation
as described in paragraph (h)(4)(i) of under the supervision of licensed senior
this section and that the services the or supervisory personnel in that occu-
beneficiary is to perform are in a spe- pation. In such cases, the director shall
cialty occupation. The evidence shall examine the nature of the duties and
conform to the following: the level at which they are performed.
(1) School records, diplomas, degrees, If the facts demonstrate that the alien
affidavits, declarations, contracts, and under supervision could fully perform
similar documentation submitted must the duties of the occupation, H classi-
reflect periods of attendance, courses fication may be granted.
of study, and similar pertinent data, be (D) H–1C nurses. For purposes of li-
executed by the person in charge of the censure, H–1C nurses must provide the
records of the educational or other in- evidence required in paragraph
stitution, firm, or establishment where (h)(3)(iii) of this section.
education or training was acquired. (E) Limitation on approval of petition.
(2) Affidavits or declarations made Where licensure is required in any oc-
under penalty of perjury submitted by cupation, including registered nursing,
present or former employers or recog- the H petition may only be approved
nized authorities certifying as to the for a period of one year or for the pe-
recognition and expertise of the bene- riod that the temporary license is
ficiary shall specifically describe the valid, whichever is longer, unless the
beneficiary’s recognition and ability in alien already has a permanent license
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factual terms and must set forth the to practice the occupation. An alien
expertise of the affiant and the manner who is accorded H classification in an
in which the affiant acquired such in- occupation which requires licensure
formation. may not be granted an extension of
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Department of Homeland Security § 214.2
that the beneficiary has a bacca- mentation showing that the alien:
laureate or higher degree or its equiva- (1) Has achieved national or inter-
lent in the occupational field in which national recognition and acclaim for
he or she will be performing services in outstanding achievement in his or her
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
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Department of Homeland Security § 214.2
(F) Eligible Countries. (1)(i) H–2A peti- FEDERAL REGISTER and shall be with-
tions may only be approved for nation- out effect at the end of that one-year
als of countries that the Secretary of period.
Homeland Security has designated as (ii) Effect of the labor certification
participating countries, with the con- process. The temporary agricultural
currence of the Secretary of State, in a labor certification process determines
notice published in the FEDERAL REG- whether employment is as an agricul-
ISTER, taking into account factors, in- tural worker, whether it is open to U.S.
cluding but not limited to: workers, if qualified U.S. workers are
(A) The country’s cooperation with available, the adverse impact of em-
respect to issuance of travel documents ployment of a qualified alien, and
for citizens, subjects, nationals and whether employment conditions, in-
residents of that country who are sub- cluding housing, meet applicable re-
ject to a final order of removal; quirements. In petition proceedings a
(B) The number of final and petitioner must establish that the em-
unexecuted orders of removal against ployment and beneficiary meet the re-
citizens, subjects, nationals and resi- quirements of paragraph (h)(5) of this
dents of that country; section.
(C) The number of orders of removal (iii) Ability and intent to meet a job
executed against citizens, subjects, na- offer—(A) Eligibility requirements. An H–
tionals and residents of that country; 2A petitioner must establish that each
and beneficiary will be employed in accord-
(D) Such other factors as may serve ance with the terms and conditions of
the U.S. interest. the certification, which includes that
(ii) A national from a country not on the principal duties to be performed
the list described in paragraph are those on the certification, with
(h)(5)(i)(F)(1)(i) of this section may be a other duties minor and incidental.
beneficiary of an approved H–2A peti-
(B) Intent and prior compliance. Req-
tion upon the request of a petitioner or
uisite intent cannot be established for
potential H–2A petitioner, if the Sec-
two years after an employer or joint
retary of Homeland Security, in his
sole and unreviewable discretion, de- employer, or a parent, subsidiary or af-
termines that it is in the U.S. interest filiate thereof, is found to have vio-
for that alien to be a beneficiary of lated section 274(a) of the Act or to
such petition. Determination of such a have employed an H–2A worker in a po-
U.S. interest will take into account sition other than that described in the
factors, including but not limited to: relating petition.
(A) Evidence from the petitioner (C) Initial evidence. Representations
demonstrating that a worker with the required for the purpose of labor cer-
required skills is not available either tification are initial evidence of intent.
from among U.S. workers or from (iv) Temporary and seasonal employ-
among foreign workers from a country ment—(A) Eligibility requirements. An H–
currently on the list described in para- 2A petitioner must establish that the
graph (h)(5)(i)(F)(1)(i) of this section; employment proposed in the certifi-
(B) Evidence that the beneficiary has cation is of a temporary or seasonal
been admitted to the United States nature. Employment is of a seasonal
previously in H–2A status; nature where it is tied to a certain
(C) The potential for abuse, fraud, or time of year by an event or pattern,
other harm to the integrity of the H–2A such as a short annual growing cycle or
visa program through the potential ad- a specific aspect of a longer cycle, and
mission of a beneficiary from a country requires labor levels far above those
not currently on the list; and necessary for ongoing operations. Em-
(D) Such other factors as may serve ployment is of a temporary nature
the U.S. interest. where the employer’s need to fill the
(2) Once published, any designation of position with a temporary worker will,
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
ers’ detailed statement(s) or actual em- services for which he or she was hired.
ployment documents, such as company (2) To retain evidence of such notifi-
payroll or tax records. Alternately, a cation and make it available for in-
petitioner must show that such evi- spection by DHS officers for a 1-year
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Department of Homeland Security § 214.2
period beginning on the date of the no- stay or engaging in unauthorized em-
tification. To retain evidence of a dif- ployment.
ferent employment start date if it is (B) Period of admission. An alien ad-
changed from that on the petition by missible as an H–2A nonimmigrant
the employer and make it available for shall be admitted for the period of the
inspection by DHS officers for the 1- approved petition. Such alien will be
year period beginning on the newly-es- admitted for an additional period of up
tablished employment start date. to one week before the beginning of the
(3) To pay $10 in liquidated damages approved period for the purpose of trav-
for each instance where the employer el to the worksite, and a 30-day period
cannot demonstrate that it has com- following the expiration of the H–2A
plied with the notification require- petition for the purpose of departure or
ments, unless, in the case of an un- to seek an extension based on a subse-
timely notification, the employer dem- quent offer of employment. Unless au-
onstrates with such notification that thorized under 8 CFR 274a.12 or section
good cause existed for the untimely no- 214(n) of the Act, the beneficiary may
tification, and DHS, in its discretion, not work except during the validity pe-
waives the liquidated damages amount. riod of the petition.
(C) Process. If DHS has determined (C) Limits on an individual’s stay. Ex-
that the petitioner has violated the no- cept as provided in paragraph
tification requirements in paragraph (h)(5)(viii)(B) of this section, an alien’s
(h)(5)(vi)(B)(1) of this section and has stay as an H–2A nonimmigrant is lim-
not received the required notification, ited by the term of an approved peti-
the petitioner will be given written no- tion. An alien may remain longer to
tice and 30 days to reply before being engage in other qualifying temporary
given written notice of the assessment agricultural employment by obtaining
of liquidated damages. an extension of stay. However, an indi-
(D) Failure to pay liquidated damages. vidual who has held H–2A status for a
If liquidated damages are not paid total of 3 years may not again be
within 10 days of assessment, an H–2A granted H–2A status until such time as
petition may not be processed for that he or she remains outside the United
petitioner or any joint employer shown States for an uninterrupted period of 3
on the petition until such damages are months. An absence from the United
paid. States can interrupt the accrual of
(E) Abscondment. An H–2A worker has time spent as an H–2A nonimmigrant
absconded if he or she has not reported against the 3-year limit. If the accumu-
for work for a period of 5 consecutive lated stay is 18 months or less, an ab-
workdays without the consent of the sence is interruptive if it lasts for at
employer. least 45 days. If the accumulated stay
(vii) Validity. An approved H–2A peti- is greater than 18 months, an absence
tion is valid through the expiration of is interruptive if it lasts for at least 2
the relating certification for the pur- months. Eligibility under paragraph
pose of allowing a beneficiary to seek (h)(5)(viii)(C) of this section will be de-
issuance of an H–2A nonimmigrant termined in admission, change of sta-
visa, admission or an extension of stay tus or extension proceedings. An alien
for the purpose of engaging in the spe- found eligible for a shorter period of H–
cific certified employment. 2A status than that indicated by the
(viii) Admission— petition due to the application of this
(A) Effect of violations of status. An paragraph (h)(5)(viii)(C) of this section
alien may not be accorded H–2A status shall only be admitted for that abbre-
who, at any time during the past 5 viated period.
years, USCIS finds to have violated, (ix) Substitution of beneficiaries after
other than through no fault of his or admission. An H–2A petition may be
her own (e.g., due to an employer’s ille- filed to replace H–2A workers whose
gal or inappropriate conduct), any of employment was terminated earlier
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the terms or conditions of admission than the end date stated on the H–2A
into the United States as an H–2A non- petition and before the completion of
immigrant, including remaining be- work; who fail to report to work within
yond the specific period of authorized five days of the employment start date
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
on the H–2A petition or within five the lesser of the fair market value or
days of the start date established by actual costs of transportation and any
his or her employer, whichever is later; government-mandated passport, visa,
or who abscond from the worksite. The or inspection fees, to the extent that
petition must be filed with a copy of the payment of such costs and fees by
the certification document, a copy of the beneficiary is not prohibited by
the approval notice covering the work- statute or Department of Labor regula-
ers for which replacements are sought, tions, unless the employer agent,
and other evidence required by para- facilitator, recruiter, or employment
graph (h)(5)(i)(D) of this section. It service has agreed with the alien to
must also be filed with a statement pay such costs and fees).
giving each terminated or absconded (1) If USCIS determines that the peti-
worker’s name, date and country of tioner has collected, or entered into an
birth, termination date, and the reason agreement to collect, such prohibited
for termination, and the date that fee or compensation, the H–2A petition
USCIS was notified that the alien was will be denied or revoked on notice un-
terminated or absconded, if applicable. less the petitioner demonstrates that,
A petition for a replacement will not prior to the filing of the petition, the
be approved where the requirements of petitioner has reimbursed the alien in
paragraph (h)(5)(vi) of this section have full for such fees or compensation, or,
not been met. A petition for replace- where such fee or compensation has
ments does not constitute the notifica- not yet been paid by the alien worker,
tion required by paragraph that the agreement has been termi-
(h)(5)(vi)(B)(1) of this section. nated.
(x) Extensions in emergent cir- (2) If USCIS determines that the peti-
cumstances. In emergent circumstances, tioner knew or should have known at
as determined by USCIS, a single H–2A the time of filing the petition that the
petition may be extended for a period beneficiary has paid or agreed to pay
not to exceed 2 weeks without an addi- any facilitator, recruiter, or similar
tional approved labor certification if employment service such fees or com-
filed on behalf of one or more bene- pensation as a condition of obtaining
ficiaries who will continue to be em- the H–2A employment, the H–2A peti-
ployed by the same employer that pre- tion will be denied or revoked on notice
viously obtained an approved petition unless the petitioner demonstrates
on the beneficiary’s behalf, so long as that, prior to the filing of the petition,
the employee continues to perform the the petitioner or the facilitator, re-
same duties and will be employed for cruiter, or similar employment service
no longer than 2 weeks after the expi- has reimbursed the alien in full for
ration of previously-approved H–2A pe- such fees or compensation or, where
tition. The previously approved H–2A such fee or compensation has not yet
petition must have been based on an been paid by the alien worker, that the
approved temporary labor certifi- agreement has been terminated.
cation, which shall be considered to be (3) If USCIS determines that the ben-
extended upon the approval of the ex- eficiary paid the petitioner such fees or
tension of H–2A status. compensation as a condition of obtain-
(xi) Treatment of petitions and alien ing the H–2A employment after the fil-
beneficiaries upon a determination that ing of the H–2A petition, the petition
fees were collected from alien bene- will be denied or revoked on notice.
ficiaries. (A) Denial or revocation of peti- (4) If USCIS determines that the ben-
tion. As a condition to approval of an eficiary paid or agreed to pay the
H–2A petition, no job placement fee or agent, facilitator, recruiter, or similar
other compensation (either direct or employment service such fees or com-
indirect) may be collected at any time, pensation as a condition of obtaining
including before or after the filing or the H–2A employment after the filing
approval of the petition, from a bene- of the H–2A petition and with the
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Department of Homeland Security § 214.2
similar employment service has reim- (2) Effect of subsequent denied or re-
bursed the beneficiary in full or where voked petitions. An H–2A petition filed
such fee or compensation has not yet by the same petitioner subsequent to a
been paid by the alien worker, that the denial under paragraph (h)(5)(xi)(A) of
agreement has been terminated, or no- this section shall be subject to the con-
tifies DHS within 2 workdays of obtain- dition of approval described in para-
ing knowledge in a manner specified in graph (h)(5)(xi)(C)(1) of this section, re-
a notice published in the FEDERAL REG- gardless of prior satisfaction of such
ISTER. condition of approval with respect to a
(B) Effect of petition revocation. Upon previously denied or revoked petition.
revocation of an employer’s H–2A peti- (xii) Treatment of alien beneficiaries
tion based upon paragraph (h)(5)(xi)(A) upon revocation of labor certification.
of this section, the alien beneficiary’s The approval of an employer’s H–2A pe-
stay will be authorized and the alien tition is immediately and automati-
will not accrue any period of unlawful cally revoked if the Department of
presence under section 212(a)(9) of the Labor revokes the labor certification
Act (8 U.S.C. 1182(a)(9)) for a 30-day pe- upon which the petition is based. Upon
riod following the date of the revoca- revocation of an H–2A petition based
tion for the purpose of departure or ex- upon revocation of labor certification,
tension of stay based upon a subse- the alien beneficiary’s stay will be au-
quent offer of employment. thorized and the alien will not accrue
(C) Reimbursement as condition to ap- any period of unlawful presence under
proval of future H–2A petitions. (1) Filing section 212(a)(9) of the Act for a 30-day
subsequent H–2A petitions within 1 year period following the date of the revoca-
of denial or revocation of previous H–2A tion for the purpose of departure or ex-
petition. A petitioner filing an H–2A pe- tension of stay based upon a subse-
tition within 1 year after the decision quent offer of employment.
denying or revoking on notice an H–2A
(6) Petition for alien to perform tem-
petition filed by the same petitioner on
porary nonagricultural services or labor
the basis of paragraph (h)(5)(xi)(A) of
(H–2B)—
this section must demonstrate to the
satisfaction of USCIS, as a condition of (i) Petition. (A) H–2B nonagricultural
approval of such petition, that the pe- temporary worker. An H–2B non-
titioner or agent, facilitator, recruiter, agricultural temporary worker is an
or similar employment service has re- alien who is coming temporarily to the
imbursed the beneficiary in full or that United States to perform temporary
the petitioner has failed to locate the services or labor without displacing
beneficiary. If the petitioner dem- qualified United States workers avail-
onstrates to the satisfaction of USCIS able to perform such services or labor
that the beneficiary was reimbursed in and whose employment is not ad-
full, such condition of approval shall be versely affecting the wages and work-
satisfied with respect to any subse- ing conditions of United States work-
quently filed H–2A petitions, except as ers.
provided in paragraph (h)(5)(xi)(C)(2). If (B) Denial or revocation of petition
the petitioner demonstrates to the sat- upon a determination that fees were col-
isfaction of USCIS that it has made lected from alien beneficiaries. As a con-
reasonable efforts to locate the bene- dition of approval of an H–2B petition,
ficiary with respect to each H–2A peti- no job placement fee or other com-
tion filed within 1 year after the deci- pensation (either direct or indirect)
sion denying or revoking the previous may be collected at any time, includ-
H–2A petition on the basis of paragraph ing before or after the filing or ap-
(h)(5)(xi)(A) of this section but has proval of the petition, from a bene-
failed to do so, such condition of ap- ficiary of an H–2B petition by a peti-
proval shall be deemed satisfied with tioner, agent, facilitator, recruiter, or
respect to any H–2A petition filed 1 similar employment service as a condi-
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year or more after the denial or revoca- tion of an offer or condition of H–2B
tion. Such reasonable efforts shall in- employment (other than the lower of
clude contacting any of the bene- the actual cost or fair market value of
ficiary’s known addresses. transportation to such employment
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Department of Homeland Security § 214.2
decision denying or revoking the pre- quired skills is not available from
vious H–2B petition on the basis of among foreign workers from a country
paragraph (h)(6)(i)(B) of this section, currently on the list described in para-
such condition of approval shall be graph (h)(6)(i)(E)(1) of this section;
deemed satisfied with respect to any H– (ii) Evidence that the beneficiary has
2B petition filed 1 year or more after been admitted to the United States
the denial or revocation. Such reason- previously in H–2B status;
able efforts shall include contacting all (iii) The potential for abuse, fraud, or
of each such beneficiary’s known ad- other harm to the integrity of the H–2B
dresses. visa program through the potential ad-
(2) Effect of subsequent denied or re- mission of a beneficiary from a country
voked petitions. An H–2B petition filed not currently on the list; and
by the same petitioner subsequent to a (iv) Such other factors as may serve
denial under paragraph (h)(6)(i)(B) of the U.S. interest.
this section shall be subject to the con- (3) Once published, any designation of
dition of approval described in para- participating countries pursuant to
graph (h)(6)(i)(D)(1) of this section, re- paragraph (h)(6)(i)(E)(1) of this section
gardless of prior satisfaction of such shall be effective for one year after the
condition of approval with respect to a date of publication in the FEDERAL
previously denied or revoked petition. REGISTER and shall be without effect at
(E) Eligible countries. (1) H–2B peti- the end of that one-year period.
tions may be approved for nationals of (F) Petitioner agreements and notifica-
countries that the Secretary of Home- tion requirements. (1) Agreements. The
land Security has designated as par- petitioner agrees to notify DHS, within
ticipating countries, with the concur- 2 work days, and beginning on a date
rence of the Secretary of State, in a and in a manner specified in a notice
notice published in the FEDERAL REG- published in the FEDERAL REGISTER if:
ISTER, taking into account factors, in- An H–2B worker fails to report for
cluding but not limited to: work within 5 work days after the em-
(i) The country’s cooperation with re- ployment start date stated on the peti-
spect to issuance of travel documents tion; the nonagricultural labor or serv-
for citizens, subjects, nationals and ices for which H–2B workers were hired
residents of that country who are sub- were completed more than 30 days
ject to a final order of removal; early; or an H–2B worker absconds
(ii) The number of final and from the worksite or is terminated
unexecuted orders of removal against prior to the completion of the non-
citizens, subjects, nationals, and resi- agricultural labor or services for which
dents of that country; he or she was hired. The petitioner also
(iii) The number of orders of removal agrees to retain evidence of such noti-
executed against citizens, subjects, na- fication and make it available for in-
tionals and residents of that country; spection by DHS officers for a one-year
and period beginning on the date of the no-
(iv) Such other factors as may serve tification.
the U.S. interest. (2) Abscondment. An H–2B worker has
(2) A national from a country not on absconded if he or she has not reported
the list described in paragraph for work for a period of 5 consecutive
(h)(6)(i)(E)(1) of this section may be a work days without the consent of the
beneficiary of an approved H–2B peti- employer.
tion upon the request of a petitioner or (ii) Temporary services or labor—(A)
potential H–2B petitioner, if the Sec- Definition. Temporary services or labor
retary of Homeland Security, in his under the H–2B classification refers to
sole and unreviewable discretion, de- any job in which the petitioner’s need
termines that it is in the U.S. interest for the duties to be performed by the
for that alien to be a beneficiary of employee(s) is temporary, whether or
such petition. Determination of such a not the underlying job can be described
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
a limited period of time. The employer In the Territory of Guam, the peti-
must establish that the need for the tioning employer shall apply for a tem-
employee will end in the near, defin- porary labor certification with the
able future. Generally, that period of Governor of Guam. The labor certifi-
time will be limited to one year or less, cation shall be advice to the director
but in the case of a one-time event on whether or not United States work-
could last up to 3 years. The peti- ers capable of performing the tem-
tioner’s need for the services or labor porary services or labor are available
shall be a one-time occurrence, a sea- and whether or not the alien’s employ-
sonal need, a peak load need, or an ment will adversely affect the wages
intermittent need. and working conditions of similarly
(1) One-time occurence. The petitioner employed United States workers.
must establish that it has not em- (B) An H–2B petitioner shall be a
ployed workers to perform the services United States employer, a United
or labor in the past and that it will not States agent, or a foreign employer fil-
need workers to perform the services or ing through a United States agent. For
labor in the future, or that it has an purposes of paragraph (h) of this sec-
employment situation that is other- tion, a foreign employer is any em-
wise permanent, but a temporary event ployer who is not amenable to service
of short duration has created the need of process in the United States. A for-
for a temporary worker. eign employer may not directly peti-
(2) Seasonal need. The petitioner must tion for an H–2B nonimmigrant but
establish that the services or labor is must use the services of a United
traditionally tied to a season of the States agent to file a petition for an H–
year by an event or pattern and is of a 2B nonimmigrant. A United States
recurring nature. The petitioner shall agent petitioning on behalf of a foreign
specify the period(s) of time during employer must be authorized to file the
each year in which it does not need the petition, and to accept service of proc-
services or labor. The employment is ess in the United States in proceedings
not seasonal if the period during which
under section 274A of the Act, on behalf
the services or labor is not needed is
of the employer. The petitioning em-
unpredictable or subject to change or is
ployer shall consider available United
considered a vacation period for the pe-
States workers for the temporary serv-
titioner’s permanent employees.
ices or labor, and shall offer terms and
(3) Peakload need. The petitoner must
conditions of employment which are
establish that it regularly employs per-
consistent with the nature of the occu-
manent workers to perform the serv-
pation, activity, and industry in the
ices or labor at the place of employ-
United States.
ment and that it needs to supplement
its permanent staff at the place of em- (C) The petitioner may not file an H–
ployment on a temporary basis due to 2B petition unless the United States
a seasonal or short-term demand and petitioner has applied for a labor cer-
that the temporary additions to staff tification with the Secretary of Labor
will not become a part of the peti- or the Governor of Guam within the
tioner’s regular operation. time limits prescribed or accepted by
(4) Intermittent need. The petitioner each, and has obtained a favorable
must establish that it has not em- labor certification determination as re-
ployed permanent or full-time workers quired by paragraph (h)(6)(iv) or
to perform the services or labor, but (h)(6)(v) of this section.
occasionally or intermittently needs (D) The Secretary of Labor and the
temporary workers to perform services Governor of Guam shall separately es-
or labor for short periods. tablish procedures for administering
(iii) Procedures. (A) Prior to filing a the temporary labor certification pro-
petition with the director to classify gram under his or her jurisdiction.
an alien as an H–2B worker, the peti- (E) After obtaining a favorable deter-
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tioner shall apply for a temporary mination from the Secretary of Labor
labor certification with the Secretary or the Governor of Guam, as appro-
of Labor for all areas of the United priate, the petitioner shall file a peti-
States, except the Territory of Guam. tion on I–129, accompanied by the labor
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Department of Homeland Security § 214.2
workers who are similarly employed on Governor of Guam may require a job
Guam. order to be placed more than 30 days in
(B) Validity of labor certification. The advance of need to accommodate such
Governor of Guam may issue a tem- recruitment;
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
(iv) Report to the appropriate agency (H) Invalidation of temporary labor cer-
the names of all United States resident tification issued by the Governor of
workers who applied for the position, Guam—(1) General. A temporary labor
indicating those hired and the job-re- certification issued by the Governor of
lated reasons for not hiring; Guam may be invalidated by a director
(v) Offer all special considerations, if it is determined by the director or a
such as housing and transportation ex- court of law that the certification re-
penses, to all United States resident quest involved fraud or willful mis-
workers who applied for the position, representation. A temporary labor cer-
indicating those hired and the job-re- tification may also be invalidated if
lated reasons for not hiring; the director determines that the cer-
(vi) Meet the prevailing wage rates tification involved gross error.
and working conditions determined (2) Notice of intent to invalidate. If the
under the wages and working condi- director intends to invalidate a tem-
tions system by the Governor; and porary labor certification, a notice of
(vii) Agree to meet all Federal and intent shall be served upon the em-
Territorial requirements relating to ployer, detailing the reasons for the in-
employment, such as nondiscrimina- tended invalidation. The employer
tion, occupational safety, and min- shall have 30 days in which to file a
written response in rebuttal to the no-
imum wage requirements.
tice of intent. The director shall con-
(F) Approval and publication of em-
sider all evidence submitted upon re-
ployment systems on Guam—(1) Systems.
buttal in reaching a decision.
The Commissioner of Immigration and (3) Appeal of invalidation. An em-
Naturalization must approve the sys- ployer may appeal the invalidation of a
tem to determine prevailing wages and temporary labor certification in ac-
working conditions and the system to cordance with part 103 of this chapter.
determine availability of United States (vi) Evidence for H–2B petitions. An H–
resident workers and any future modi- 2B petition shall be accompanied by:
fications of the systems prior to imple- (A) Labor certification. An approved
mentation. If the Commissioner, in temporary labor certification issued by
consultation with the Secretary of the Secretary of Labor or the Governor
Labor, finds that the systems or modi- of Guam, as appropriate;
fied systems meet the requirements of (B) [Reserved]
this section, the Commissioner shall (C) Alien’s qualifications. In petitions
publish them as a notice in the FED- where the temporary labor certifi-
ERAL REGISTER and the Governor shall cation application requires certain
publish them as a public record in education, training, experience, or spe-
Guam. cial requirements of the beneficiary
(2) Approval of construction wage rates. who is present in the United States,
The Commissioner must approve spe- documentation that the alien qualifies
cific wage data and rates used for con- for the job offer as specified in the ap-
struction occupations on Guam prior plication for such temporary labor cer-
to implementation of new rates. The tification. This requirement also ap-
Governor shall submit new wage sur- plies to the named beneficiary who is
vey data and proposed rates to the abroad on the basis of special provi-
Commissioner for approval at least sions stated in paragraph (h)(2)(iii) of
eight weeks before authority to use ex- this section;
isting rates expires. Surveys shall be (D) Statement of need. A statement de-
conducted at least every two years, un- scribing in detail the temporary situa-
less the Commissioner prescribes a tion or conditions which make it nec-
lesser period. essary to bring the alien to the United
(G) Reporting. The Governor shall States and whether the need is a one-
provide the Commissioner statistical time occurrence, seasonal, peakload, or
data on temporary labor certification intermittent. If the need is seasonal,
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Department of Homeland Security § 214.2
ted to the United States may not be seeks to enter the United States at the
substituted without a new petition ac- invitation of an organization or indi-
companied by a newly approved tem- vidual for the purpose of receiving
porary labor certification. training in any field of endeavor, such
317
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
as agriculture, commerce, communica- (4) The training will benefit the bene-
tions, finance, government, transpor- ficiary in pursuing a career outside the
tation, or the professions, as well as United States.
training in a purely industrial estab- (B) Description of training program.
lishment. This category shall not apply Each petition for a trainee must in-
to physicians, who are statutorily in- clude a statement which:
eligible to use H–3 classification in (1) Describes the type of training and
order to receive any type of graduate supervision to be given, and the struc-
medical education or training. ture of the training program;
(A) Externs. A hospital approved by (2) Sets forth the proportion of time
the American Medical Association or that will be devoted to productive em-
the American Osteopathic Association ployment;
for either an internship or residency (3) Shows the number of hours that
program may petition to classify as an will be spent, respectively, in class-
H–3 trainee a medical student attend- room instruction and in on-the-job
ing a medical school abroad, if the training;
alien will engage in employment as an (4) Describes the career abroad for
extern during his/her medical school which the training will prepare the
vacation. alien;
(B) Nurses. A petitioner may seek H– (5) Indicates the reasons why such
3 classification for a nurse who is not training cannot be obtained in the
H–1 if it can be established that there alien’s country and why it is necessary
is a genuine need for the nurse to re- for the alien to be trained in the
ceive a brief period of training that is United States; and
unavailable in the alien’s native coun-
(6) Indicates the source of any remu-
try and such training is designed to
neration received by the trainee and
benefit the nurse and the overseas em-
any benefit which will accrue to the pe-
ployer upon the nurse’s return to the
titioner for providing the training.
country of origin, if:
(iii) Restrictions on training program
(1) The beneficiary has obtained a
for alien trainee. A training program
full and unrestricted license to prac-
may not be approved which:
tice professional nursing in the coun-
try where the beneficiary obtained a (A) Deals in generalities with no
nursing education, or such education fixed schedule, objectives, or means of
was obtained in the United States or evaluation;
Canada; and (B) Is incompatible with the nature
(2) The petitioner provides a state- of the petitioner’s business or enter-
ment certifying that the beneficiary is prise;
fully qualified under the laws gov- (C) Is on behalf of a beneficiary who
erning the place where the training already possesses substantial training
will be received to engage in such and expertise in the proposed field of
training, and that under those laws the training;
petitioner is authorized to give the (D) Is in a field in which it is un-
beneficiary the desired training. likely that the knowledge or skill will
(ii) Evidence required for petition in- be used outside the United States;
volving alien trainee—(A) Conditions. (E) Will result in productive employ-
The petitioner is required to dem- ment beyond that which is incidental
onstrate that: and necessary to the training;
(1) The proposed training is not avail- (F) Is designed to recruit and train
able in the alien’s own country; aliens for the ultimate staffing of do-
(2) The beneficiary will not be placed mestic operations in the United States;
in a position which is in the normal op- (G) Does not establish that the peti-
eration of the business and in which tioner has the physical plant and suffi-
citizens and resident workers are regu- ciently trained manpower to provide
larly employed; the training specified; or
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(3) The beneficiary will not engage in (H) Is designed to extend the total al-
productive employment unless such lowable period of practical training
employment is incidental and nec- previously authorized a nonimmigrant
essary to the training; and student.
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Department of Homeland Security § 214.2
(iv) Petition for participant in a special (D) Aliens classified as H–3 non-
education exchange visitor program—(A) immigrant participants in a special
General Requirements. (1) The H–3 par- education exchange visitor program
ticipant in a special education training may not exceed 50.
program must be coming to the United (E) Aliens classified as H–1C non-
States to participate in a structured immigrants may not exceed 500 in a fis-
program which provides for practical cal year.
training and experience in the edu- (ii) Procedures. (A) Each alien issued
cation of children with physical, men- a visa or otherwise provided non-
tal, or emotional disabilities. immigrant status under sections
(2) The petition must be filed by a fa- 101(a)(15)(H)(i)(b), 101(a)(15)(H)(i)(c), or
cility which has professionally trained 101(a)(15)(H)(ii) of the Act shall be
staff and a structured program for pro- counted for purposes of any applicable
viding education to children with dis- numerical limit, unless otherwise ex-
abilities, and for providing training empt from such numerical limit. Re-
and hands-on experience to partici- quests for petition extension or exten-
pants in the special education ex- sion of an alien’s stay shall not be
change visitor program. counted for the purpose of the numer-
(3) The requirements in this section ical limit. The spouse and children of
for alien trainees shall not apply to pe- principal H aliens are classified as H–4
titions for participants in a special nonimmigrants and shall not be count-
education exchange visitor program. ed against numerical limits applicable
(B) Evidence. An H–3 petition for a to principals.
participant in a special education ex- (B) When calculating the numerical
change visitor program shall be accom- limitations or the number of exemp-
panied by: tions under section 214(g)(5)(C) of the
(1) A description of the training pro- Act for a given fiscal year, USCIS will
gram and the facility’s professional make numbers available to petitions in
staff and details of the alien’s partici- the order in which the petitions are
pation in the training program (any filed. USCIS will make projections of
custodial care of children must be inci- the number of petitions necessary to
dental to the training), and achieve the numerical limit of approv-
(2) Evidence that the alien partici- als, taking into account historical data
pant is nearing completion of a bacca- related to approvals, denials, revoca-
laureate or higher degree in special tions, and other relevant factors.
education, or already holds such a de- USCIS will monitor the number of peti-
gree, or has extensive prior training tions (including the number of bene-
and experience in teaching children ficiaries requested when necessary) re-
with physical, mental, or emotional ceived and will notify the public of the
disabilities. date that USCIS has received the nec-
(8) Numerical limits—(i) Limits on af- essary number of petitions (the ‘‘final
fected categories. During each fiscal receipt date’’). The day the news is
year, the total number of aliens who published will not control the final re-
can be provided nonimmigrant classi- ceipt date. When necessary to ensure
fication is limited as follows: the fair and orderly allocation of num-
(A) Aliens classified as H–1B non- bers in a particular classification sub-
immigrants, excluding those involved ject to a numerical limitation or the
in Department of Defense research and exemption under section 214(g)(5)(C) of
development projects or coproduction the Act, USCIS may randomly select
projects, may not exceed the limits from among the petitions received on
identified in section 214(g)(1)(A) of the the final receipt date the remaining
Act. number of petitions deemed necessary
(B) Aliens classified as H–1B non- to generate the numerical limit of ap-
immigrants to work for DOD research provals. This random selection will be
and development projects or coproduc- made via computer-generated selection
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tion projects may not exceed 100 at any as validated by the Office of Immigra-
time. tion Statistics. Petitions subject to a
(C) Aliens classified as H–2B non- numerical limitation not randomly se-
immigrants may not exceed 66,000. lected or that were received after the
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
final receipt date will be rejected. Peti- (1) For each fiscal year, the number
tions filed on behalf of aliens otherwise of visas issued to the states of Cali-
eligible for the exemption under sec- fornia, Florida, Illinois, Michigan, New
tion 214(g)(5)(C) of the Act not ran- York, Ohio, Pennsylvania, and Texas
domly selected or that were received shall not exceed 50 each (except as pro-
after the final receipt date will be re- vided for in paragraph (h)(8)(ii)(F)(3) of
jected if the numerical limitation this section).
under 214(g)(1) of the Act has been (2) For each fiscal year, the number
reached for that fiscal year. Petitions of visas issued to the states not listed
indicating that they are exempt from in paragraph (h)(8)(ii)(F)(1) of this sec-
the numerical limitation but that are tion shall not exceed 25 each (except as
determined by USCIS after the final re- provided for in paragraph (h)(8)(ii)(F)(3)
ceipt date to be subject to the numer- of this section).
ical limit will be denied and filing fees (3) If the total number of visas avail-
will not be returned or refunded. If the able during the first three quarters of a
final receipt date is any of the first five fiscal year exceeds the number of ap-
business days on which petitions sub- provable H–1C petitions during those
ject to the applicable numerical limit quarters, visas may be issued during
may be received (i.e., if the numerical the last quarter of the fiscal year to
limit is reached on any one of the first nurses who will be working in a state
five business days that filings can be whose cap has already been reached for
made), USCIS will randomly apply all that fiscal year.
of the numbers among the petitions re- (4) When an approved H–1C petition is
ceived on any of those five business not used because the alien(s) does not
days, conducting the random selection obtain H–1C classification, e.g., the
among the petitions subject to the ex- alien is never admitted to the United
emption under section 214(g)(5)(C) of States, or the alien never worked for
the Act first. the facility, the facility must notify
(C) When an approved petition is not the Service according to the instruc-
used because the beneficiary(ies) does tions contained in paragraph (h)(11)(ii)
not apply for admission to the United of this section. The Service will sub-
States, the petitioner shall notify the tract H–1C petitions approved in the
Service Center Director who approved current fiscal year that are later re-
the petition that the number(s) has not voked from the total count of approved
been used. The petition shall be re- H–1C petitions, provided that the alien
voked pursuant to paragraph (h)(11)(ii) never commenced employment with
of this section and USCIS will take the facility.
into account the unused number during (5) If the number of alien nurses in-
the appropriate fiscal year. cluded in an H–1C petition exceeds the
(D) If the total numbers available in number available for the remainder of
a fiscal year are used, new petitions a fiscal year, the Service shall approve
and the accompanying fee shall be re- the petition for the beneficiaries to the
jected and returned with a notice that allowable amount in the order that
numbers are unavailable for the par- they are listed on the petition. The re-
ticular nonimmigrant classification maining beneficiaries will be consid-
until the beginning of the next fiscal ered for approval in the subsequent fis-
year. Petitions received after the total cal year.
numbers available in a fiscal year are (6) Once the 500 cap has been reached,
used stating that the alien bene- the Service will reject any new peti-
ficiaries are exempt from the numer- tions subsequently filed requesting a
ical limitation will be denied and filing work start date prior to the first day of
fees will not be returned or refunded if the next fiscal year.
USCIS later determines that such (9) Approval and validity of petition—
beneficiaries are subject to the numer- (i) Approval. The director shall consider
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Department of Homeland Security § 214.2
the field of fashion modeling shall be to the same period of admission and
valid for a period of up to three years. limitations as the beneficiary, if they
(B) H–2B petition. (1) The approval of are accompanying or following to join
the petition to accord an alien a classi- the beneficiary in the United States.
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
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Department of Homeland Security § 214.2
classification. Brief trips to the United under section 101(a)(15) (H) or (L) of the
States for business or pleasure during Act to perform services involving a
the required time abroad are not DOD research and development project
interruptive, but do not count towards or coproduction project. A new petition
fulfillment of the required time abroad. or change of status under section
A certain period of absence from the 101(a)(15) (H) or (L) of the Act may not
United States of H–2A and H–2B aliens be approved for such an alien unless
can interrupt the accrual of time spent the alien has resided and been phys-
in such status against the 3-year limit ically present outside the United
set forth in 8 CFR 214.2(h)(13)(iv). The States, except for brief trips for busi-
petitioner shall provide information ness or pleasure, for the immediate
about the alien’s employment, place of prior year.
residence, and the dates and purposes (iv) H–2B and H–3 limitation on admis-
of any trips to the United States dur- sion. An H–2B alien who has spent 3
ing the period that the alien was re- years in the United States under sec-
quired to reside abroad. tion 101(a)(15)(H) and/or (L) of the Act
(ii) H–1C limitation on admission. The may not seek extension, change status,
maximum period of admission for an or be readmitted to the United States
H–1C nonimmigrant alien is 3 years. under sections 101(a)(15)(H) and/or (L)
The maximum period of admission for of the Act unless the alien has resided
an H–1C alien begins on the date the H– and been physically present outside the
1C alien is admitted to the United and United States for the immediately pre-
ends on the third anniversary of the ceding 3 months. An H–3 alien partici-
alien’s admission date. Periods of time pant in a special education program
spent out of the United States for busi- who has spent 18 months in the United
ness or personal reasons during the va- States under sections 101(a)(15)(H) and/
lidity period of the H–1C petition count or (L) of the Act; and an H–3 alien
towards the alien’s maximum period of trainee who has spent 24 months in the
admission. When an H–1C alien has United States under sections
reached the 3-year maximum period of 101(a)(15)(H) and/or (L) of the Act may
admission, the H–1C alien is no longer not seek extension, change status, or
eligible for admission to the United be readmitted to the United States
States as an H–1C nonimmigrant alien. under sections 101(a)(15)(H) and/or (L)
(iii) H–1B limitation on admission. (A) of the Act unless the alien has resided
Alien in a specialty occupation or an and been physically present outside the
alien of distinguished merit and ability in United States for the immediate prior 6
the field of fashion modeling. An H–1B months.
alien in a specialty occupation or an (v) Exceptions. The limitations in
alien of distinguished merit and ability paragraphs (h)(13)(iii) through
who has spent six years in the United (h)(13)(iv) of this section shall not
States under section 101(a)(15)(H) and/ apply to H–1B, H–2B, and H–3 aliens
or (L) of the Act may not seek exten- who did not reside continually in the
sion, change status, or be readmitted United States and whose employment
to the United States under section in the United States was seasonal or
101(a)(15) (H) or (L) of the Act unless intermittent or was for an aggregate of
the alien has resided and been phys- 6 months or less per year. In addition,
ically present outside the United the limitations shall not apply to
States, except for brief trips for busi- aliens who reside abroad and regularly
ness or pleasure, for the immediate commute to the United States to en-
prior year. gage in part-time employment. An ab-
(B) Alien involved in a DOD research sence from the United States can inter-
and development or coproduction project. rupt the accrual of time spent as an H–
An H–1B alien involved in a DOD re- 2B nonimmigrant against the 3-year
search and development or coproduc- limit. If the accumulated stay is 18
tion project who has spent 10 years in months or less, an absence is
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
months. To qualify for this exception, (B) H–1B extension of stay—(1) Alien in
the petitioner and the alien must pro- a specialty occupation or an alien of dis-
vide clear and convincing proof that tinguished merit and ability in the field of
the alien qualifies for such an excep- fashion modeling. An extension of stay
tion. Such proof shall consist of evi- may be authorized for a period of up to
dence such as arrival and departure three years for a beneficiary of an H–1B
records, copies of tax returns, and petition in a specialty occupation or an
records of employment abroad. alien of distinguished merit and abil-
(14) Extension of visa petition validity. ity. The alien’s total period of stay
The petitioner shall file a request for a may not exceed six years. The request
petition extension on Form I–129 to ex- for extension must be accompanied by
tend the validity of the original peti- either a new or a photocopy of the
tion under section 101(a)(15)(H) of the prior certification from the Depart-
Act. Supporting evidence is not re- ment of Labor that the petitioner con-
quired unless requested by the director. tinues to have on file a labor condition
A request for a petition extension may application valid for the period of time
be filed only if the validity of the origi- requested for the occupation.
nal petition has not expired. (2) Alien in a DOD research and devel-
(15) Extension of stay—(i) General. The opment or coproduction project. An ex-
petitioner shall apply for extension of tension of stay may be authorized for a
an alien’s stay in the United States by period up to five years for the bene-
filing a petition extension on Form I– ficiary of an H–1B petition involving a
129 accompanied by the documents de- DOD research and development project
scribed for the particular classification or coproduction project. The total pe-
in paragraph (h)(15)(ii) of this section. riod of stay may not exceed 10 years.
The petitioner must also request a pe- (C) H–2A or H–2B extension of stay. An
tition extension. The dates of exten- extension of stay for the beneficiary of
sion shall be the same for the petition an H–2A or H–2B petition may be au-
and the beneficiary’s extension of stay. thorized for the validity of the labor
The beneficiary must be physically certification or for a period of up to
present in the United States at the one year, except as provided for in
time of the filing of the extension of paragraph (h)(5)(x) of this section. The
stay. Even though the requests to ex- alien’s total period of stay as an H–2A
tend the petition and the alien’s stay or H–2B worker may not exceed three
are combined on the petition, the di- years, except that in the Virgin Is-
rector shall make a separate deter- lands, the alien’s total period of stay
mination on each. If the alien is re- may not exceed 45 days.
quired to leave the United States for (D) H–3 extension of stay. An exten-
business or personal reasons while the sion of stay may be authorized for the
extension requests are pending, the pe- length of the training program for a
titioner may request the director to total period of stay as an H–3 trainee
cable notification of approval of the pe- not to exceed two years, or for a total
tition extension to the consular office period of stay as a participant in a spe-
abroad where the alien will apply for a cial education training program not to
visa. When the total period of stay in exceed 18 months.
an H classification has been reached, (16) Effect of approval of a permanent
no further extensions may be granted. labor certification or filing of a preference
(ii) Extension periods—(A) H–1C exten- petition on H classification—(i) H–1B or
sion of stay. The maximum period of ad- H–1C classification. The approval of a
mission for an H–1C alien is 3 years. An permanent labor certification or the
H–1C alien who was initially admitted filing of a preference petition for an
to the United States for less than 3 alien shall not be a basis for denying
years may receive an extension of stay an H–1C or H–1B petition or a request
up to the third anniversary date of his to extend such a petition, or the alien’s
or her initial admission. An H–1C non- admission, change of status, or exten-
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immigrant may not receive an exten- sion of stay. The alien may legiti-
sion of stay beyond the third anniver- mately come to the United States for a
sary date of his or her initial admission temporary period as an H–1C or H–1B
to the United States. nonimmigrant and depart voluntarily
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Department of Homeland Security § 214.2
at the end of his or her authorized stay (A) The alien shall remain subject to
and, at the same time, lawfully seek to all applicable provisions of the Immi-
become a permanent resident of the gration and Nationality Act, and regu-
United States. lations promulgated in the same man-
(ii) H–2A, H–2B, and H–3 classification. ner as all other H nonimmigrants;
The approval of a permanent labor cer- (B) The status and authorized period
tification, or the filing of a preference of stay of such an alien is not modified
petition for an alien currently em- or extended in any way by virtue of his
ployed by or in a training position with or her participation in a strike or other
the same petitioner, shall be a reason, labor dispute involving a work stop-
by itself, to deny the alien’s extension page of workers; and
of stay. (C) Although participation by an H
(17) Effect of a strike—(i) If the Sec- nonimmigrant alien in a strike or
retary of Labor certifies to the Com- other labor dispute involving a work
missioner that a strike or other labor stoppage of workers will not constitute
dispute involving a work stoppage of a ground for deportation, any alien
workers is in progress in the occupa- who violates his or her status or who
tion and at the place where the bene- remains in the United States after his
ficiary is to be employed or trained, or her authorized period of stay has ex-
and that the employment of training of pired will be subject to deportation.
the beneficiary would adversely affect (18) Use of approval notice, Form I–797.
the wages and working conditions of The Service shall notify the petitioner
U.S. citizens and lawful resident work- on Form I–797 whenever a visa petition,
ers: an extension of a visa petition, or an
alien’s extension of stay is approved
(A) A petition to classify an alien as
under the H classification. The bene-
a nonimmigrant as defined in section
ficiary of an H petition who does not
101(a)(15)(H) of the Act shall be denied.
require a nonimmigrant visa may
(B) If a petition has already been ap- present a copy of the approval notice
proved, but the alien has not yet en- at a port of entry to facilitate entry
tered the United States, or has entered into the United States. A beneficiary
the United States but has not com- who is required to present a visa for ad-
menced the employment, the approval mission and whose visa will have ex-
of the petition is automatically sus- pired before the date of his or her in-
pended, and the application for admis- tended return may use a copy of Form
sion on the basis of the petition shall I–797 to apply for a new or revalidated
be denied. visa during the validity period of the
(ii) If there is a strike or other labor petition. The copy of Form I–797 shall
dispute involving a work stoppage of be retained by the beneficiary and pre-
workers in progress, but such strike or sented during the validity of the peti-
other labor dispute is not certified tion when reentering the United States
under paragraph (h)(17)(i), the Commis- to resume the same employment with
sioner shall not deny a petition or sus- the same petitioner.
pend an approved petition. (19) Additional fee for filing certain H–
(iii) If the alien has already com- 1B petitions. (i) A United States em-
menced employment in the United ployer (other than an exempt employer
States under an approved petition and as defined in paragraph (h)(19)(iii) of
is participating in a strike or other this section) who files a Form I–129, on
labor dispute involving a work stop- or after December 1, 1998, and before
page of workers, whether or not such October 1, 2001, must include the addi-
strike or other labor dispute has been tional fee required in § 103.7(b)(1) of this
certified by the Department of Labor, chapter, if the petition is filed for any
the alien shall not be deemed to be fail- of the following purposes:
ing to maintain his or her status solely (A) An initial grant of H–1B status
on account of past, present, or future under section 101(a)(15)(H)(i)(b) of the
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Department of Homeland Security § 214.2
basis that it is a non-profit research or- may be admitted on the basis of the J–
ganization must submit evidence that 1’s non-SEVIS Form DS–2019.
it has tax exempt status under the In- (ii) Admission period. An exchange
ternal Revenue Code of 1986, section alien, and J–2 spouse and children, may
501(c)(3), (c)(4) or (c)(6), 26 U.S.C. be admitted for a period up to 30 days
501(c)(3), (c)(4) or (c)(6). All other em- before the report date or start of the
ployers claiming an exemption must approved program listed on Form DS–
submit a statement describing why the 2019. The initial admission of an ex-
organization or entity is exempt. change visitor, spouse and children
(B) Exempt filing situations. Any may not exceed the period specified on
non-exempt employer who claims that Form DS–2019, plus a period of 30 days
the $500 filing fee does not apply with for the purposes of travel or for the pe-
respect to a particular filing for one of riod designated by the Commissioner
the reasons described in § 214.2(h)(19)(v), as provided in paragraph (j)(1)(vi) of
must submit a statement describing this section. Regulations of the Depart-
why the filing fee is not required. ment of State published at 22 CFR part
(i) Representatives of information 62 give general limitations on the stay
media. The admission of an alien of the of the various classes of exchange visi-
class defined in section 101(a)(15)(I) of tors. A spouse or child may not be ad-
the Act constitutes an agreement by mitted for longer than the principal ex-
the alien not to change the informa- change visitor.
tion medium or his or her employer (iii) Readmission. An exchange alien
until he or she obtains permission to may be readmitted to the United
do so from the district director having States for the remainder of the time
jurisdiction over his or her residence. authorized on Form I–94, without pre-
An alien classified as an information senting Form IAP–66, if the alien is re-
media nonimmigrant (I) may be au- turning from a visit solely to foreign
thorized admission for the duration of contiguous territory or adjacent is-
employment. lands after an absence of less than 30
(j) Exchange aliens—(1) General—(i) days and if the original Form I–94 is
Eligibility for admission. A non- presented. All other exchange aliens
immigrant exchange visitor and his or must present a valid Form IAP–66. An
her accompanying spouse and minor original Form IAP–66 or copy three
children may be admitted into the (the pink copy) of a previously issued
United States in J–1 and J–2 classifica- form presented by an exchange alien
tions under section 101(a)(15)(J) of the returning from a temporary absence
Act, if the exchange visitor and his or shall be retained by the exchange alien
her accompanying spouse and children for re-entries during the balance of the
each presents a SEVIS Form DS–2019 alien’s stay.
issued in his or her own name by a pro- (iv) Extensions of Stay. If an exchange
gram approved by the Department of alien requires an extension beyond the
State for participation by J–1 exchange initial admission period, the alien shall
visitors. Prior to August 1, 2003, if exi- apply by submitting a new Form DS–
gent circumstances are demonstrated, 2019 which indicates the date to which
the Service will allow the dependent of the alien’s program is extended. The
an exchange visitor possessing a SEVIS extension may not exceed the period
Form DS–2019 to enter the United specified on Form DS–2019, plus a pe-
States using a copy of the exchange riod of 30 days for the purpose of trav-
visitor’s SEVIS Form DS–2019. How- el. Extensions of stay for the alien’s
ever, where the exchange visitor pre- spouse and children require, as an at-
sents a properly completed Form DS– tachment to Form DS–2019, Form I–94
2019, Certificate of Eligibility for Ex- for each dependent, and a list con-
change Visitor (J–1) Status, which was taining the names of the applicants,
issued to the J–1 exchange visitor by a dates and places of birth, passport
program approved by the Department numbers, issuing countries, and expira-
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
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Department of Homeland Security § 214.2
may be admitted to participate in such ment and prior to the wedding day. In
program without regard to the require- addition to establishing that the re-
ments stated in subparagraphs (A) and quired meeting would be a violation of
(B)(ii)(I) of section 212(j)(1) of the Act if custom or practice, the petitioner must
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
also establish that any and all other the director shall record their lawful
aspects of the traditional arrange- admission for permanent residence in
ments have been or will be met in ac- accordance with that section and sub-
cordance with the custom or practice. ject to the conditions prescribed in sec-
Failure to establish that the petitioner tion 216 of the Act.
and K–1 beneficiary have met within (7) Eligibility, petition and supporting
the required period or that compliance documents for K–3/K–4 classification. To
with the requirement should be waived be classified as a K–3 spouse as defined
shall result in the denial of the peti- in section 101(a)(15)(k)(ii) of the Act, or
tion. Such denial shall be without prej- the K–4 child of such alien defined in
udice to the filing of a new petition section 101(a)(15)(K)(iii) of the Act, the
once the petitioner and K–1 beneficiary alien spouse must be the beneficiary of
have met in person. an immigrant visa petition filed by a
(3) Children of beneficiary. Without U.S. citizen on Form I–130, Petition for
the approval of a separate petition on Alien Relative, and the beneficiary of
his or her behalf, a child of the bene- an approved petition for a K–3 non-
ficiary (as defined in section immigrant visa filed on Form I–129F.
101(b)(1)(A), (B), (C), (D), or (E) of the (8) Period of admission for K3/K–4 sta-
Act) may be accorded the same non- tus. Aliens entering the United States
immigrant classification as the bene- as a K–3 shall be admitted for a period
ficiary if accompanying or following to of 2 years. Aliens entering the United
join him or her. States as a K–4 shall be admitted for a
(4) Notification. The petitioner shall period of 2 years or until that alien’s
be notified of the decision and, if the 21st birthday, whichever is shorter.
petition is denied, of the reasons there- (9) Employment authorization. An alien
for and of the right to appeal in accord- admitted to the United States as a
ance with the provisions of part 103 of nonimmigrant under section
this chapter. 101(a)(15)(K) of the Act shall be author-
(5) Validity. The approval of a peti- ized to work incident to status for the
tion under this paragraph shall be valid period of authorized stay. K–1/K–2
for a period of four months. A petition aliens seeking work authorization
which has expired due to the passage of must apply, with fee, to the Service for
time may be revalidated by a director work authorization pursuant to
or a consular officer for a period of four § 274a.12(a)(6) of this chapter. K–3/K–4
months from the date of revalidation aliens must apply to the Service for a
upon a finding that the petitioner and document evidencing employment au-
K–1 beneficiary are free to marry and thorization pursuant to § 274a.12(a)(9) of
intend to marry each other within 90 this chapter. Employment authoriza-
days of the beneficiary’s entry into the tion documents issued to K–3/K–4 aliens
United States. The approval of any pe- may be renewed only upon a showing
tition is automatically terminated that the applicant has an application
when the petitioner dies or files a writ- or petition awaiting approval, equiva-
ten withdrawal of the petition before lent to the showing required for an ex-
the beneficiary arrives in the United tension of stay pursuant to
States. § 214.2(k)(10).
(6) Adjustment of status from non- (10) Extension of stay for K–3/K–4 sta-
immigrant to immigrant. tus—(i) General. A K–3/K–4 alien may
(i) [Reserved] apply for extension of stay, on Form I–
(ii) Nonimmigrant visa issued on or 539, Application to Extend/Change Non-
after November 10, 1986. Upon con- immigrant Status, 120 days prior to the
tracting a valid marriage to the peti- expiration of his or her authorized
tioner within 90 days of his or her ad- stay. Extensions for K–4 status must be
mission as a nonimmigrant pursuant to filed concurrently with the alien’s par-
a valid K–1 visa issued on or after No- ent’s K–3 status extension application.
vember 10, 1986, the K–1 beneficiary and In addition, the citizen parent of a K–
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his or her minor children may apply for 4 alien filing for extension of K status
adjustment of status to lawful perma- should file Form I–130 on their behalf.
nent resident under section 245 of the Extension will be granted in 2-year in-
Act. Upon approval of the application tervals upon a showing of eligibility
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Department of Homeland Security § 214.2
status to that of lawful permanent res- abroad continuously for one year by a
idence; firm or corporation or other legal enti-
(iv) The K–3 spouse’s divorce from ty or parent, branch, affiliate, or sub-
the U.S. citizen becomes final; sidiary thereof, and who seeks to enter
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
the United States temporarily in order tives, the board of directors, or stock-
to render his or her services to a holders of the organization.
branch of the same employer or a par- (D) Specialized knowledge means spe-
ent, affiliate, or subsidiary thereof in a cial knowledge possessed by an indi-
capacity that is managerial, executive, vidual of the petitioning organization’s
or involves specialized knowledge. Pe- product, service, research, equipment,
riods spent in the United States in law- techniques, management, or other in-
ful status for a branch of the same em- terests and its application in inter-
ployer or a parent, affiliate, or sub- national markets, or an advanced level
sidiary thereof and brief trips to the of knowledge or expertise in the orga-
United States for business or pleasure nization’s processes and procedures.
shall not be interruptive of the one (E) Specialized knowledge professional
year of continuous employment abroad means an individual who has special-
but such periods shall not be counted ized knowledge as defined in paragraph
toward fulfillment of that requirement. (l)(1)(ii)(D) of this section and is a
(B) Managerial capacity means an as- member of the professions as defined in
signment within an organization in section 101(a)(32) of the Immigration
which the employee primarily: and Nationality Act.
(1) Manages the organization, or a de- (F) New office means an organization
partment, subdivision, function, or which has been doing business in the
component of the organization; United States through a parent,
(2) Supervises and controls the work branch, affiliate, or subsidiary for less
of other supervisory, professional, or than one year.
managerial employees, or manages an (G) Qualifying organization means a
essential function within the organiza- United States or foreign firm, corpora-
tion, or a department or subdivision of tion, or other legal entity which:
the organization; (1) Meets exactly one of the quali-
(3) Has the authority to hire and fire fying relationships specified in the
or recommend those as well as other definitions of a parent, branch, affil-
personnel actions (such as promotion iate or subsidiary specified in para-
and leave authorization) if another em- graph (l)(1)(ii) of this section;
ployee or other employees are directly (2) Is or will be doing business (en-
supervised; if no other employee is di- gaging in international trade is not re-
rectly supervised, functions at a senior quired) as an employer in the United
level within the organizational hier- States and in at least one other coun-
archy or with respect to the function try directly or through a parent,
managed; and branch, affiliate, or subsidiary for the
(4) Exercises discretion over the day- duration of the alien’s stay in the
to-day operations of the activity or United States as an intracompany
function for which the employee has transferee; and
authority. A first-line supervisor is not (3) Otherwise meets the requirements
considered to be acting in a managerial of section 101(a)(15)(L) of the Act.
capacity merely by virtue of the super- (H) Doing business means the regular,
visor’s supervisory duties unless the systematic, and continuous provision
employees supervised are professional. of goods and/or services by a qualifying
(C) Executive capacity means an as- organization and does not include the
signment within an organization in mere presence of an agent or office of
which the employee primarily: the qualifying organization in the
(1) Directs the management of the or- United States and abroad.
ganization or a major component or (I) Parent means a firm, corporation,
function of the organization; or other legal entity which has subsidi-
(2) Establishes the goals and policies aries.
of the organization, component, or (J) Branch means an operating divi-
function; sion or office of the same organization
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Department of Homeland Security § 214.2
more than half of the entity and con- (ii) A United States petitioner which
trols the entity; or owns, directly or meets the requirements of paragraph
indirectly, half of the entity and con- (l)(4) of this section and seeks con-
trols the entity; or owns, directly or tinuing approval of itself and its par-
indirectly, 50 percent of a 50–50 joint ent, branches, specified subsidiaries
venture and has equal control and veto and affiliates as qualifying organiza-
power over the entity; or owns, di- tions and, later, classification under
rectly or indirectly, less than half of section 101(a)(15)(L) of the Act multiple
the entity, but in fact controls the en- numbers of aliens employed by itself,
tity. its parent, or those branches, subsidi-
(L) Affiliate means (1) One of two sub- aries, or affiliates may file a blanket
sidiaries both of which are owned and petition on Form I–129. The blanket pe-
controlled by the same parent or indi- tition shall be maintained at the adju-
vidual, or dicating office. The petitioner shall be
(2) One of two legal entities owned the single representative for the quali-
and controlled by the same group of in- fying organizations with which USCIS
dividuals, each individual owning and will deal regarding the blanket peti-
controlling approximately the same tion.
share or proportion of each entity, or (3) Evidence for individual petitions. An
(3) In the case of a partnership that is individual petition filed on Form I–129
organized in the United States to pro- shall be accompanied by:
vide accounting services along with (i) Evidence that the petitioner and
managerial and/or consulting services the organization which employed or
and that markets its accounting serv- will employ the alien are qualifying or-
ices under an internationally recog- ganizations as defined in paragraph
nized name under an agreement with a (l)(1)(ii)(G) of this section.
worldwide coordinating organization
(ii) Evidence that the alien will be
that is owned and controlled by the
employed in an executive, managerial,
member accounting firms, a partner-
or specialized knowledge capacity, in-
ship (or similar organization) that is
cluding a detailed description of the
organized outside the United States to
services to be performed.
provide accounting services shall be
considered to be an affiliate of the (iii) Evidence that the alien has at
United States partnership if it markets least one continuous year of full-time
its accounting services under the same employment abroad with a qualifying
internationally recognized name under organization within the three years
the agreement with the worldwide co- preceding the filing of the petition.
ordinating organization of which the (iv) Evidence that the alien’s prior
United States partnership is also a year of employment abroad was in a
member. position that was managerial, execu-
(M) Director means a Service Center tive, or involved specialized knowledge
director with delegated authority at 8 and that the alien’s prior education,
CFR 103.1. training, and employment qualifies
(2) Filing of petitions. ( him/her to perform the intended serv-
(i) Except as provided in paragraph ices in the United States; however, the
(l)(2)(ii) and (l)(17) of this section, a pe- work in the United States need not be
titioner seeking to classify an alien as the same work which the alien per-
an intracompany transferee must file a formed abroad.
petition on Form I–129, Petition for (v) If the petition indicates that the
Nonimmigrant Worker. The petitioner beneficiary is coming to the United
shall advise USCIS whether a previous States as a manager or executive to
petition for the same beneficiary has open or to be employed in a new office
been filed, and certify that another pe- in the United States, the petitioner
tition for the same beneficiary will not shall submit evidence that:
be filed unless the circumstances and (A) Sufficient physical premises to
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conditions in the initial petition have house the new office have been secured;
changed. Failure to make a full disclo- (B) The beneficiary has been em-
sure of previous petitions filed may re- ployed for one continuous year in the
sult in a denial of the petition. three year period preceding the filing
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
of the petition in an executive or man- (A) The petitioner and each of those
agerial capacity and that the proposed entities are engaged in commercial
employment involved executive or trade or services;
managerial authority over the new op- (B) The petitioner has an office in the
eration; and United States that has been doing busi-
(C) The intended United States oper- ness for one year or more;
ation, within one year of the approval (C) The petitioner has three or more
of the petition, will support an execu- domestic and foreign branches, subsidi-
tive or managerial position as defined aries, or affiliates; and
in paragraphs (l)(1)(ii) (B) or (C) of this (D) The petitioner and the other
section, supported by information re- qualifying organizations have obtained
garding: approval of petitions for at least ten
(1) The proposed nature of the office ‘‘L’’ managers, executives, or special-
describing the scope of the entity, its ized knowledge professionals during
organizational structure, and its finan- the previous 12 months; or have U.S.
cial goals; subsidiaries or affiliates with combined
(2) The size of the United States in- annual sales of at least $25 million; or
vestment and the financial ability of have a United States work force of at
the foreign entity to remunerate the least 1,000 employees.
beneficiary and to commence doing (ii) Managers, executives, and spe-
business in the United States; and cialized knowledge professionals em-
(3) The organizational structure of ployed by firms, corporations, or other
the foreign entity. entities which have been found to be
(vi) If the petition indicates that the qualifying organizations pursuant to
beneficiary is coming to the United an approved blanket petition may be
States in a specialized knowledge ca- classified as intracompany transferees
pacity to open or to be employed in a and admitted to the United States as
new office, the petitioner shall submit provided in paragraphs (l) (5) and (11) of
evidence that: this section.
(A) Sufficient physical premises to (iii) When applying for a blanket pe-
house the new office have been secured; tition, the petitioner shall include in
(B) The business entity in the United the blanket petition all of its branches,
States is or will be a qualifying organi- subsidiaries, and affiliates which plan
zation as defined in paragraph to seek to transfer aliens to the United
(l)(1)(ii)(G) of this section; and States under the blanket petition. An
(C) The petitioner has the financial individual petition may be filed by the
ability to remunerate the beneficiary petitioner or organizations in lieu of
and to commence doing business in the using the blanket petition procedure.
United States. However, the petitioner and other
(vii) If the beneficiary is an owner or qualifying organizations may not seek
major stockholder of the company, the L classification for the same alien
petition must be accompanied by evi- under both procedures, unless a con-
dence that the beneficiary’s services sular officer first denies eligibility.
are to be used for a temporary period Whenever a petitioner which has blan-
and evidence that the beneficiary will ket L approval files an individual peti-
be transferred to an assignment abroad tion to seek L classification for a man-
upon the completion of the temporary ager, executive, or specialized knowl-
services in the United States. edge professional, the petitioner shall
(viii) Such other evidence as the di- advise the Service that it has blanket
rector, in his or her discretion, may L approval and certify that the bene-
deem necessary. ficiary has not and will not apply to a
(4) Blanket petitions. (i) A petitioner consular officer for L classification
which meets the following require- under the approved blanket petition.
ments may file a blanket petition seek- (iv) Evidence. A blanket petition filed
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ing continuing approval of itself and on Form I–129 shall be accompanied by:
some or all of its parent, branches, sub- (A) Evidence that the petitioner
sidiaries, and affiliates as qualifying meets the requirements of paragraph
organizations if: (l)(4)(i) of this section.
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Department of Homeland Security § 214.2
(B) Evidence that all entities for 797, to the USCIS office with which the
which approval is sought are qualifying blanket petition was filed.
organizations as defined in subpara- (D) The consular or Service officer
graph (l)(1)(ii)(G) of this section. shall determine whether the position in
(C) Such other evidence as the direc- which the alien will be employed in the
tor, in his or her discretion, deems nec- United States is with an organization
essary in a particular case. named in the approved petition and
(5) Certification and admission proce- whether the specific job is for a man-
dures for beneficiaries under blanket peti- ager, executive, or specialized knowl-
tion—(i) Jurisdiction. United States con- edge professional. The consular or
sular officers shall have authority to Service officer shall determine further
determine eligibility of individual whether the alien’s immediate prior
beneficiaries outside the United States year of continuous employment abroad
seeking L classification under blanket was with an organization named in the
petitions, except for visa-exempt non- petition and was in a position as man-
immigrants. An application for a visa- ager, executive, or specialized knowl-
exempt nonimmigrant seeking L clas- edge professional.
sification under a blanket petition or (E) Consular officers may grant ‘‘L’’
by an alien in the United States apply- classification only in clearly approv-
ing for change of status to L classifica- able applications. If the consular offi-
tion under a blanket petition shall be cer determines that the alien is eligible
filed with the Service office at which for L classification, the consular offi-
the blanket petition was filed. cer may issue a nonimmigrant visa,
noting the visa classification ‘‘Blanket
(ii) Procedures. (A) When one quali-
L–1’’ for the principal alien and ‘‘Blan-
fying organization listed in an ap-
ket L–2’’ for any accompanying or fol-
proved blanket petition wishes to
lowing to join spouse and children. The
transfer an alien outside the United
consular officer shall also endorse all
States to a qualifying organization in
copies of the alien’s Form I–129S with
the United States and the alien re-
the blanket L–1 visa classification and
quires a visa to enter the United
return the original and one copy to the
States, that organization shall com- alien. When the alien is inspected for
plete Form I–129S, Certificate of Eligi- entry into the United States, both cop-
bility for Intracompany Transferee ies of the Form I–129S shall be stamped
under a Blanket Petition, in an origi- to show a validity period not to exceed
nal and three copies. The qualifying or- three years and the second copy col-
ganization shall retain one copy for its lected and sent to the appropriate Re-
records and send the original and two gional Service Center for control pur-
copies to the alien. A copy of the ap- poses. Service officers who determine
proved Form I–797 must be attached to eligibility of aliens for L–1 classifica-
the original and each copy of Form I– tion under blanket petitions shall en-
129S. dorse both copies of Form I–129S with
(B) After receipt of Form I–797 and the blanket L–1 classification and the
Form I–129S, a qualified employee who validity period not to exceed three
is being transferred to the United years and retain the second copy for
States may use these documents to Service records.
apply for visa issuance with the con- (F) If the consular officer determines
sular officer within six months of the that the alien is ineligible for L classi-
date on Form I–129S. fication under a blanket petition, the
(C) When the alien is a visa-exempt consular officer’s decision shall be
nonimmigrant seeking L classification final. The consular officer shall record
under a blanket petition, or when the the reasons for the denial on Form I–
alien is in the United States and is 129S, retain one copy, return the origi-
seeking a change of status from an- nal of I–129S to the USCIS office which
other nonimmigrant classification to L approved the blanket petition, and pro-
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classification under a blanket petition, vide a copy to the alien. In such a case,
the petitioner shall submit Form I– an individual petition may be filed for
129S, Certificate of Eligibility, and a the alien on Form I–129, Petition for
copy of the approval notice, Form I– Nonimmigrant Worker. The petition
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
shall state the reason the alien was de- (1)(ii)(H) of this section to extend the
nied L classification and specify the validity of the petition.
consular office which made the deter- (B) Blanket petition. (1) Form I–797
mination and the date of the deter- shall identify the approved organiza-
mination. tions included in the petition and the
(G) An alien admitted under an ap- petition’s period of validity.
proved blanket petition may be reas- (2) A blanket petition approved under
signed to any organization listed in the this paragraph shall be valid initially
approved petition without referral to for a period of three years and may be
the Service during his/her authorized extended indefinitely thereafter if the
stay if the alien will be performing vir- qualifying organizations have complied
tually the same job duties. If the alien with these regulations.
will be performing different job duties, (3) A blanket petition may be ap-
the petitioner shall complete a new proved in whole or in part and shall
Certificate of Eligibility and send it for cover only qualifying organizations.
approval to the director who approved (C) Amendments. The petitioner must
the blanket petition. file an amended petition, with fee, at
(6) Copies of supporting documents. The the USCIS office where the original pe-
petitioner may submit a legible photo- tition was filed to reflect changes in
copy of a document in support of the approved relationships, additional
visa petition, in lieu of the original qualifying organizations under a blan-
document. However, the original docu- ket petition, change in capacity of em-
ment shall be submitted if requested by ployment (i.e., from a specialized
the Service. knowledge position to a managerial po-
(7) Approval of petition—(i) General. sition), or any information which
The director shall notify the petitioner would affect the beneficiary’s eligi-
of the approval of an individual or a bility under section 101(a)(15)(L) of the
blanket petition within 30 days after Act.
the date a completed petition has been (ii) Spouse and dependents. The spouse
filed. If additional information is re- and unmarried minor children of the
quired from the petitioner, the 30 day beneficiary are entitled to L non-
processing period shall begin again immigrant classification, subject to
upon receipt of the information. The the same period of admission and lim-
original Form I–797 received from the its as the beneficiary, if the spouse and
USCIS with respect to an approved in- unmarried minor children are accom-
dividual or blanket petition may be du- panying or following to join the bene-
plicated by the petitioner for the bene- ficiary in the United States. Neither
ficiary’s use as described in paragraph the spouse nor any child may accept
(l)(13) of this section. employment unless he or she has been
(A) Individual petition—(1) Form I–797 granted employment authorization.
shall include the beneficiary’s name (8) Denial of petition—(i) Individual pe-
and classification and the petition’s pe- tition. If an individual is denied, the pe-
riod of validity. titioner shall be notified within 30 days
(2) An individual petition approved after the date a completed petition has
under this paragraph shall be valid for been filed of the denial, the reasons for
the period of established need for the the denial, and the right to appeal the
beneficiary’s services, not to exceed denial.
three years, except where the bene- (ii) Blanket petition. If a blanket peti-
ficiary is coming to the United States tion is denied in whole or in part, the
to open or to be employed in a new of- petitioner shall be notified within 30
fice. days after the date a completed peti-
(3) If the beneficiary is coming to the tion has been filed of the denial, the
United States to open or be employed reasons for the denial, and the right to
in a new office, the petition may be ap- appeal the denial. If the petition is de-
proved for a period not to exceed one nied in part, the USCIS office issuing
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year, after which the petitioner shall the denial shall forward to the peti-
demonstrate as required by paragraph tioner, along with the denial, a Form I–
(l)(14)(ii) of this section that it is doing 797 listing those organizations which
business as defined in paragraph (l) were found to quality. If the decision
336
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Department of Homeland Security § 214.2
to deny is reversed on appeal, a new tion, the director shall extend the blan-
Form I–797 shall be sent to the peti- ket petition for a period necessary to
tioner to reflect the changes made as a support the stay of those blanket L
result of the appeal. beneficiaries. The approval notice,
(9) Revocation of approval of individual Form I–171C, shall include only the
and blanket petitions—(i) General. The names of qualifying organizations and
director may revoke a petition at any covered beneficiaries. No new bene-
time, even after the expiration of the ficiaries may be classified or admitted
petition. under this limited extension.
(ii) Automatic revocation. The ap- (10) Appeal of denial or revocation of
proval of any individual or blanket pe- individual or blanket petition. (i) A peti-
tition is automatically revoked if the tion denied in whole or in part may be
petitioner withdraws the petition or appealed under 8 CFR part 103. Since
the petitioner fails to request indefi- the determination on the Certificate of
nite validity of a blanket petition. Eligibility, Form I–129S, is part of the
(iii) Revocation on notice. (A) The di- petition process, a denial or revocation
rector shall send to the petitioner a no- of approval of an I–129S is appealable in
tice of intent to revoke the petition in the same manner as the petition.
relevant part if he/she finds that: (ii) A petition that has been revoked
(1) One or more entities are no longer on notice in whole or in part may be
qualifying organizations; appealed under part 103 of this chapter.
(2) The alien is no longer eligible Automatic revocations may not be ap-
under section 101(a)(15)(L) of the Act;
pealed.
(3) A qualifying organization(s) vio-
(11) Admission. A beneficiary may
lated requirements of section
apply for admission to the United
101(a)(15)(L) and these regulations;
(4) The statement of facts contained States only while the individual or
in the petition was not true and cor- blanket petition is valid. The bene-
rect; or ficiary of an individual petition shall
(5) Approval of the petition involved not be admitted for a date past the va-
gross error; or lidity period of the petition. The bene-
(6) None of the qualifying organiza- ficiary of a blanket petition may be ad-
tions in a blanket petition have used mitted for three years even though the
the blanket petition procedure for initial validity period of the blanket
three consecutive years. petition may expire before the end of
(B) The notice of intent to revoke the three-year period. If the blanket
shall contain a detailed statement of petition will expire while the alien is
the grounds for the revocation and the in the United States, the burden is on
time period allowed for the petitioner’s the petitioner to file for indefinite va-
rebuttal. Upon receipt of this notice, lidity of the blanket petition or to file
the petitioner may submit evidence in an individual petition in the alien’s be-
rebuttal within 30 days of the notice. half to support the alien’s status in the
The director shall consider all relevant United States. The admission period
evidence presented in deciding whether for any alien under section 101(a)(15)(L)
to revoke the petition in whole or in shall not exceed three years unless an
part. If a blanket petition is revoked in extension of stay is granted pursuant
part, the remainder of the petition to paragraph (l)(15) of this section.
shall remain approved, and a revised (12) L–1 limitation on period of stay—(i)
Form I–797 shall be sent to the peti- Limits. An alien who has spent five
tioner with the revocation notice. years in the United States in a special-
(iv) Status of beneficiaries. If an indi- ized knowledge capacity or seven years
vidual petition is revoked, the bene- in the United States in a managerial or
ficiary shall be required to leave the executive capacity under section
United States, unless the beneficiary 101(a)(15) (L) and/or (H) of the Act may
has obtained other work authorization not be readmitted to the United States
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from the Service. If a blanket petition under section 101(a)(15) (L) or (H) of the
is revoked and the petitioner and bene- Act unless the alien has resided and
ficiaries already in the United States been physically present outside the
are otherwise eligible for L classifica- United States, except for brief visits
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
for business or pleasure, for the imme- entry and reentry to resume the same
diate prior year. Such visits do not in- employment with the same petitioner
terrupt the one year abroad, but do not (within the validity period of the peti-
count towards fulfillment of that re- tion) and to apply for an extension of
quirement. In view of this restriction, stay. A beneficiary who is required to
a new individual petition may not be present a visa for admission and whose
approved for an alien who has spent the visa will have expired before the date
maximum time period in the United of his or her intended return may use
States under section 101(a)(15) (L) and/ an original Form I–797 to apply for a
or (H) of the Act, unless the alien has new or revalidated visa during the va-
resided and been physically present lidity period of the petition and to
outside the United States, except for apply for an extension of stay.
brief visits for business or pleasure, for (ii) Beneficiary of a blanket petition.
the immediate prior year. The peti- Each alien seeking L classification and
tioner shall provide information about admission under a blanket petition
the alien’s employment, place of resi- shall present a copy of Form I–797 and
dence, and the dates and purpose of any a Form I–129S from the petitioner
trips to the United States for the pre- which identifies the position and orga-
vious year. A consular or Service offi- nization from which the employee is
cer may not grant L classification transferring, the new organization and
under a blanket petition to an alien position to which the employee is des-
who has spent five years in the United tined, a description of the employee’s
States as a professional with special- actual duties for both the new and
ized knowledge or seven years in the former positions, and the positions,
United States as a manager or execu- dates, and locations of previous L stays
tive, unless the alien has met the re- in the United States. A current copy of
quirements contained in this para- Form I–797 and Form I–129S should be
graph. retained by the beneficiary and used
(ii) Exceptions. The limitations of for leaving and reentering the United
paragraph (l)(12)(i) of this section shall States to resume employment with a
not apply to aliens who do not reside qualifying organization during his/her
continually in the United States and authorized period of stay, for applying
whose employment in the United for a new or revalidated visa, and for
States is seasonal, intermittent, or applying for readmission at a port of
consists of an aggregate of six months entry. The alien may be readmitted
or less per year. In addition, the limi- even though reassigned to a different
tations will not apply to aliens who re- organization named on the Form I–797
side abroad and regularly commute to than the one shown on Form I–129S if
the United States to engage in part- the job duties are virtually the same.
time employment. The petitioner and (14) Extension of visa petition validity—
the alien must provide clear and con- (i) Individual petition. The petitioner
vincing proof that the alien qualifies shall file a petition extension on Form
for an exception. Clear and convincing I–129 to extend an individual petition
proof shall consist of evidence such as under section 101(a)(15)(L) of the Act.
arrival and departure records, copies of Except in those petitions involving new
tax returns, and records of employment offices, supporting documentation is
abroad. not required, unless requested by the
(13) Beneficiary’s use of Form I–797 and director. A petition extension may be
Form I–129S—(i) Beneficiary of an indi- filed only if the validity of the original
vidual petition. The beneficiary of an in- petition has not expired.
dividual petition who does not require (ii) New offices. A visa petition under
a nonimmigrant visa may present a section 101(a)(15)(L) which involved the
copy of Form I–797 at a port of entry to opening of a new office may be ex-
facilitate entry into the United States. tended by filing a new Form I–129, ac-
The copy of Form I–797 shall be re- companied by the following:
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tained by the beneficiary and presented (A) Evidence that the United States
during the validity of the petition (pro- and foreign entities are still qualifying
vided that the beneficiary is entering organizations as defined in paragraph
or reentering the United States) for (l)(1)(ii)(G) of this section;
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Department of Homeland Security § 214.2
(B) Evidence that the United States the petition and the beneficiary’s ex-
entity has been doing business as de- tension of stay. The beneficiary must
fined in paragraph (l)(1)(ii)(H) of this be physically present in the United
section for the previous year; States at the time the extension of
(C) A statement of the duties per- stay is filed. Even though the requests
formed by the beneficiary for the pre- to extend the visa petition and the
vious year and the duties the bene- alien’s stay are combined on the peti-
ficiary will perform under the extended tion, the director shall make a sepa-
petition; rate determination on each. If the alien
(D) A statement describing the staff- is required to leave the United States
ing of the new operation, including the for business or personal reasons while
number of employees and types of posi- the extension requests are pending, the
tions held accompanied by evidence of petitioner may request the director to
wages paid to employees when the ben- cable notification of approval of the pe-
eficiary will be employed in a manage- tition extension to the consular office
rial or executive capacity; and abroad where the alien will apply for a
(E) Evidence of the financial status visa.
of the United States operation. (ii) An extension of stay may be au-
(iii) Blanket petitions—(A) Extension thorized in increments of up to two
procedure. A blanket petition may only years for beneficiaries of individual
be extended indefinitely by filing a new and blanket petitions. The total period
Form I–129 with a copy of the previous of stay may not exceed five years for
approval notice and a report of admis- aliens employed in a specialized knowl-
sions during the preceding three years. edge capacity. The total period of stay
The report of admissions shall include for an alien employed in a managerial
a list of the aliens admitted under the or executive capacity may not exceed
blanket petition during the preceding seven years. No further extensions may
three years, including positions held be granted. When an alien was initially
during that period, the employing enti- admitted to the United States in a spe-
ty, and the dates of initial admission cialized knowledge capacity and is
and final departure of each alien. The later promoted to a managerial or ex-
petitioner shall state whether it still ecutive position, he or she must have
meets the criteria for filing a blanket been employed in the managerial or ex-
petition and shall document any ecutive position for at least six months
changes in approved relationships and to be eligible for the total period of
additional qualifying organizations. stay of seven years. The change to
(B) Other conditions. If the petitioner managerial or executive capacity must
in an approved blanket petition fails to have been approved by the Service in
request indefinite validity or if indefi- an amended, new, or extended petition
nite validity is denied, the petitioner at the time that the change occurred.
and its other qualifying organizations (16) Effect of filing an application for or
shall seek L classification by filing in- approval of a permanent labor certifi-
dividual petitions until another three cation, preference petition, or filing of an
years have expired; after which the pe- application for adjustment of status on L–
titioner may seek approval of a new 1 classification. An alien may legiti-
blanket petition. mately come to the United States for a
(15) Extension of stay. (i) In individual temporary period as an L–1 non-
petitions, the petitioner must apply for immigrant and, at the same time, law-
the petition extension and the alien’s fully seek to become a permanent resi-
extension of stay concurrently on dent of the United States provided he
Form I–129. When the alien is a bene- or she intends to depart voluntarily at
ficiary under a blanket petition, a new the end of his or her authorized stay.
certificate of eligibility, accompanied The filing of an application for or ap-
by a copy of the previous approved cer- proval of a permanent labor certifi-
tificate of eligibility, shall be filed by cation, an immigrant visa preference
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
340
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Department of Homeland Security § 214.2
(C) The spouse and dependent minor (B) The status and authorized period
children shall not accept employment of stay of such an alien is not modified
in the United States unless otherwise or extended in any way by virtue of his
authorized under the Act. or her participation in a strike or other
(18) Denial of intracompany transferee labor dispute involving work stoppage
status to citizens of Canada or Mexico in of workers; and
the case of certain labor disputes. (i) If (C) Although participation by an L
the Secretary of Labor certifies to or nonimmigrant alien in a strike or
otherwise informs the Commissioner other labor dispute involving a work
that a strike or other labor dispute in- stoppage of workers will not constitute
volving a work stoppage of workers is a ground for deportation, any alien
in progress where the beneficiary is to who violates his or her status or who
be employed, and the temporary entry remains in the United States after his
of the beneficiary may affect adversely or her authorized period of stay has ex-
the settlement of such labor dispute or pired will be subject to deportation.
the employment of any person who is (m) Students in established vocational
involved in such dispute, a petition to or other recognized nonacademic institu-
classify a citizen of Mexico or Canada tions, other than in language training
as an L–1 intracompany transferee may programs—(1) Admission of student—(i)
be denied. If a petition has already Eligibility for admission. A non-
been approved, but the alien has not immigrant student may be admitted
yet entered the United States, or has into the United States in non-
entered the United States but not yet immigrant status under section
commenced employment, the approval 101(a)(15)(M) of the Act, if:
of the petition may be suspended, and (A) The student presents a SEVIS
an application for admission on the Form I–20 issued in his or her own
basis of the petition may be denied. name by a school approved by the Serv-
(ii) If there is a strike or other labor ice for attendance by M–1 foreign stu-
dispute involving a work stoppage of dents. (In the alternative, for a student
workers in progress, but such strike or seeking admission prior to August 1,
other labor dispute is not certified 2003, the student may present a cur-
under paragraph (l)(18)(i) of this sec- rently-valid Form I–20M–N/I–20ID, if
tion, or the Service has not otherwise that form was issued by the school
been informed by the Secretary that prior to January 30, 2003);
such a strike or labor dispute is in (B) The student has documentary evi-
progress, the Commissioner shall not dence of financial support in the
deny a petition or suspend an approved amount indicated on the SEVIS Form
petition. I–20 (or the Form I–20M–N/I–20ID); and
(iii) If the alien has already com- (C) For students seeking initial ad-
mended employment in the United mission only, the student intends to
States under an approved petition and attend the school specified in the stu-
is participating in a strike or other dent’s visa (or, where the student is ex-
labor dispute involving a work stop- empt from the requirement for a visa,
page of workers, whether or not such the school indicated on the SEVIS
strike or other labor dispute has been Form I–20 (or the Form I–20M–N/I–
certified by the Department of Labor, 20ID)).
the alien shall not be deemed to be fail- (ii) Disposition of Form I–20M–N. When
ing to maintain his or her status solely a student is admitted to the United
on account of past, present, or future States, the inspecting officer shall for-
participation in a strike or other labor ward Form I–20M–N to the Service’s
dispute involving a work stoppage of processing center. The processing cen-
workers, but is subject to the following ter shall forward Form I–20N to the
terms and conditions. school which issued the form to notify
(A) The alien shall remain subject to the school of the student’s admission.
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all applicable provisions of the Immi- (iii) Use of SEVIS. On January 30,
gration and Nationality Act, and regu- 2003, the use of the Student and Ex-
lations promulgated in the same man- change Visitor Information System
ner as all other L nonimmigrants; (SEVIS) will become mandatory for the
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
issuance of any new Form I–20. A stu- by M–1 foreign students. Prior to Au-
dent or dependent who presents a non- gust 1, 2003, if exigent circumstances
SEVIS Form I–20 issued on or after are demonstrated, the Service will
January 30, 2003, will not be accepted allow the dependent of an M–1 student
for admission to the United States. in possession of a SEVIS Form I–20 to
Non-SEVIS Forms I–20 issued prior to enter the United States using a copy of
January 30, 2003, will continue to be ac- the M–1 student’s SEVIS Form I–20. (In
cepted for admission to the United the alternative, for dependents seeking
States until August 1, 2003. However, admission to the United States prior to
schools must issue a SEVIS Form I–20 August 1, 2003, a copy of the M–1 stu-
to any current student requiring a re- dent’s current Form I–20ID issued prior
portable action (e.g., extension of sta- to January 30, 2003, with proper en-
tus, practical training, and requests for dorsement by the DSO will satisfy this
employment authorization) or a new requirement.) A new SEVIS Form I–20
Form I–20, or for any aliens who must (or Form I–20M–N) is required for a de-
obtain a new nonimmigrant student pendent where there has been any sub-
visa. As of August 1, 2003, the records of stantive change in the M–1 student’s
all current or continuing students current information.
must be entered in SEVIS. (i) A properly endorsed page 4 of
(2) Form I–20 ID copy. The first time Form I–20M–N if there has been no sub-
an M–1 student comes into contact stantive change in the information on
with the Service for any reason, the the student’s most recent Form I–20M
student must present to the Service a since the form was initially issued; or
Form I–20M–N properly and completely (ii) A new Form I–20M–N if there has
filled out by the student and by the been any substantive change in the in-
designated official of the school the formation on the student’s most recent
student is attending or intends to at- Form I–20M since the form was ini-
tend. The student will be issued a Form tially issued.
I–20 ID copy with his or her admission (4) Temporary absence—(i) General. An
number. The student must have the M–1 student returning to the United
Form I–20 ID copy with him or her at States from a temporary absence to at-
all times. If the student loses the Form tend the school which the student was
I–20 ID copy, the student must request previously authorized to attend must
a new Form I–20 ID copy on Form I–102 present either—
from the Service office having jurisdic- (A) A properly endorsed page 4 of
tion over the school the student was Form I–20M–N if there has been no sub-
last authorized to attend. stantive change in the information on
(3) Admission of the spouse and minor the student’s most recent Form I–20M
children of an M–1 student. The spouse since the form was initially issued; or
and minor children accompanying an (B) A new Form I–20M–N if there has
M–1 student are eligible for admission been any substantive change in the in-
in M–2 status if the student is admitted formation on the student’s most recent
in M–1 status. The spouse and minor Form I–20M since the form was ini-
children following-to-join an M–1 stu- tially issued.
dent are eligible for admission to the (ii) Student who transferred between
United States in M–2 status if they are schools. If an M–1 student has been au-
able to demonstrate that the M–1 stu- thorized to transfer between schools
dent has been admitted and is, or will and is returning to the United States
be within 30 days, enrolled in a full from a temporary absence in order to
course of study, or engaged in approved attend the school to which transfer was
practical training following completion authorized as indicated on the stu-
of studies. In either case, at the time dent’s Form I–20 ID copy, the name of
they seek admission, the eligible the school to which the student is des-
spouse and minor children of an M–1 tined does not need to be specified in
student with a SEVIS Form I–20 must the student’s visa.
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Department of Homeland Security § 214.2
study indicated on the Form I–20, plus a language training program except as
practical training following completion provided in § 214.3(a)(2)(iv), certified by
of the course of study, plus an addi- a designated school official to consist
tional 30 days to depart the United of at least eighteen clock hours of at-
States, but not to exceed a total period tendance a week if the dominant part
of one year. An M–1 student may be ad- of the course of study consists of class-
mitted for a period up to 30 days before room instruction, or at least twenty-
the report date or start date of the two clock hours a week if the dominant
course of study listed on the Form I–20. part of the course of study consists of
An M–1 student who fails to maintain a shop or laboratory work; or
full course of study or otherwise fails (iv) Study in a vocational or other
to maintain status is not eligible for nonacademic high school curriculum,
the additional 30-day period of stay. certified by a designated school official
(6)–(8) [Reserved] to consist of class attendance for not
(9) Full course of study. Successful less than the minimum number of
completion of the course of study must hours a week prescribed by the school
lead to the attainment of a specific for normal progress towards gradua-
educational or vocational objective. A tion.
‘‘full course of study’’ as required by (v) On-line courses/distance education
section 101(a)(15)(M)(i) of the Act programs. No on-line or distance edu-
means— cation classes may be considered to
(i) Study at a community college or count toward an M–1 student’s full
junior college, certified by a school of-
course of study requirement if such
ficial to consist of at least twelve se-
classes do not require the student’s
mester or quarter hours of instruction
physical attendance for classes, exam-
per academic term in those institu-
ination or other purposes integral to
tions using standard semester, tri-
completion of the class. An on-line or
mester, or quarter-hour systems, where
distance education course is a course
all students enrolled for a minimum of
that is offered principally through the
twelve semester or quarter hours are
use of television, audio, or computer
charged full-time tuition or considered
transmission including open broadcast,
full-time for other administrative pur-
closed circuit, cable, microwave, or
poses, or its equivalent (as determined
by the district director) except when satellite, audio conferencing, or com-
the student needs a lesser course load puter conferencing.
to complete the course of study during (vi) Reduced course load. The des-
the current term; ignated school official may authorize
(ii) Study at a postsecondary voca- an M–1 student to engage in less than a
tional or business school, other than in full course of study only where the stu-
a language training program except as dent has been compelled by illness or a
provided in § 214.3(a)(2)(iv), which con- medical condition that has been docu-
fers upon its graduates recognized asso- mented by a licensed medical doctor,
ciate or other degrees or has estab- doctor of osteopathy, or licensed clin-
lished that its credits have been and ical psychologist, to interrupt or re-
are accepted unconditionally by at duce his or her course of study. A DSO
least three institutions of higher learn- may not authorize a reduced course
ing which are either: (1) A school (or load for more than an aggregate of 5
school system) owned and operated as a months per course of study. An M–1
public educational institution by the student previously authorized to drop
United States or a State or political below a full course of study due to ill-
subdivision thereof; or (2) a school ac- ness or medical condition for an aggre-
credited by a nationally recognized ac- gate of 5 months, may not be author-
crediting body; and which has been cer- ized by the DSO to reduce his or her
tified by a designated school official to course load on subsequent occasions
consist of at least twelve hours of in- during his or her particular course of
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
course load. Within 21 days of the au- an extension of stay must be included
thorization, the DSO must send a pho- in the application. The student must
tocopy of the student’s Form I–20 to submit the application to the service
the Service’s data processing center in- center having jurisdiction over the
dicating the date that authorization school the student is currently author-
was granted. The DSO must also report ized to attend, at least 15 days but not
to the Service’s data processing center more than 60 days before the program
when the student has resumed a full end date on the student’s Form I–20.
course of study, no more than 21 days The application must also be accom-
from the date the student resumed a panied by the student’s Form I–20 and
full course of study. In this case, the the Forms I–94 of the student’s spouse
DSO must submit a photocopy of the and children, if applicable.
student’s Form I–20 indicating the date (iii) Period of stay. If an application
that a full course of study was re- for extension is granted, the student
sumed, with a new program end date. and the student’s spouse and children,
(B) SEVIS reporting. In order for a if applicable, are to be given an exten-
student to be authorized to drop below sion of stay for the period of time nec-
a full course of study, the DSO must essary to complete the course of study,
update SEVIS prior to the student re- plus 30 days within which to depart
ducing his or her course load. The DSO from the United States, or for a total
must update SEVIS with the date, rea- period of one year, whichever is less. A
son for authorization, and the start student’s M–2 spouse and children are
date of the next term or session. The not eligible for an extension unless the
DSO must also notify SEVIS within 21 M–1 student is granted an extension of
days of the student’s commencement of stay, or for a longer period than is
a full course of study. granted to the M–1 student.
(10) Extension of stay—(i) Eligibility. (iv) SEVIS update. A DSO must up-
The cumulative time of extensions that
date SEVIS to recommend that a stu-
can be granted to an M–1 student is
dent be approved for an extension of
limited to a period of 3 years from the
stay. The SEVIS Form I–20 must be
M–1 student’s original start date, plus
printed with the recommendation and
30 days. No extension can be granted to
new program end date for submission
an M–1 student if the M–1 student is
by mail to the service center, with
unable to complete the course of study
Form I–539, and Forms I–94 if applica-
within 3 years of the original program
ble.
start date. This limit includes exten-
sions that have been granted due to a (11) School transfer—(i) Eligibility. An
drop below full course of study, a M–1 student may not transfer to an-
transfer of schools, or reinstatement. other school after six months from the
An M–1 student may be granted an ex- date the student is first admitted as, or
tension of stay if it is established that: changes nonimmigrant classification
(A) He or she is a bona fide non- to that of, an M–1 student unless the
immigrant currently maintaining stu- student is unable to remain at the
dent status; school to which the student was ini-
(B) Compelling educational or med- tially admitted due to circumstances
ical reasons have resulted in a delay to beyond the student’s control. An M–1
his or her course of study. Delays student may be otherwise eligible to
caused by academic probation or sus- transfer to another school if the stu-
pension are not acceptable reasons for dent—
program extension; and (A) Is a bona fide nonimmigrant;
(C) He or she is able to, and in good (B) Has been pursuing a full course of
faith intends to, continue to maintain study at the school the student was
that status for the period for which the last authorized to attend;
extension is granted. (C) Intends to pursue a full course of
(ii) Application. A student must apply study at the school to which the stu-
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Department of Homeland Security § 214.2
(ii) Procedure. A student must apply school at the next available term or
to the Service on Form I–539 for per- session and is required to notify the
mission to transfer between schools. DSO of the transfer school imme-
Upon application for school transfer, a diately upon beginning attendance.
student may effect the transfer subject The transfer school must update the
to approval of the application. A stu- student’s registration record in SEVIS
dent who transfers without complying in accordance with § 214.3(g)(3). Upon
with this requirement or whose appli- approval of the transfer application,
cation is denied after transfer pursuant the Service officer will endorse the
to this regulation is considered to be name of the school to which the trans-
out of status. If the application is ap- fer is authorized on the student’s
proved, the approval of the transfer SEVIS Form I–20 and return it to the
will be determined to be the program student.
start date listed on the Form I–20, and (C) Transition process. Once SEVIS is
the student will be granted an exten- fully operational and interfaced with
sion of stay for the period of time nec- the service center benefit processing
essary to complete the new course of system, the Service officer will trans-
study plus 30 days, or for a total period mit the approval of the transfer to
of one year, whichever is less. SEVIS and endorse the name of the
(A) Non-SEVIS school. The application school to which transfer is authorized
must be accompanied by the Form I– on the student’s SEVIS Form I–20 and
20ID copy and the Form I–94 of the stu- return it to the student. As part of a
dent’s spouse and children, if applica- transitional process until that time,
ble. The Form I–539 must also be ac- the student is required to notify the
companied by Form I–20M–N properly DSO at the transfer school of the deci-
and completely filled out by the stu- sion of the Service within 15 days of
dent and by the designated official of the receipt of the adjudication by the
the school which the student wishes to Service. Upon notification by the stu-
attend. Upon approval, the adjudi- dent of the approval of the Service, the
cating officer will endorse the name of DSO must immediately update SEVIS
the school to which the transfer is au- to show that approval of the transfer
thorized on the student’s Form I–20ID has been granted. The DSO must then
copy and return it to the student. The print an updated SEVIS Form I–20 for
officer will also endorse Form I–20M–N the student indicating that the trans-
to indicate that a school transfer has fer has been completed. If the applica-
been authorized and forward it to the tion for transfer is denied, the student
Service’s processing center for updat- is out of status and the DSO must ter-
ing. The processing center will forward minate the student’s record in SEVIS.
Form I–20M–N to the school to which (iii) Student who has not been pursuing
the transfer has been authorized to no- a full course of study. If an M–1 student
tify the school of the action taken. who has not been pursuing a full course
(B) SEVIS school. The student must of study at the school the student was
first notify his or her current school of last authorized to attend desires to at-
the intent to transfer and indicate the tend a different school, the student
school to which the student intends to must apply for reinstatement to stu-
transfer. Upon notification by the stu- dent status under paragraph (m)(16) of
dent, the current school must update this section.
SEVIS to show the student as a (12) Change in educational objective.
‘‘transfer out’’ and input the ‘‘release An M–1 student may not change edu-
date’’ for transfer. Once updated as a cational objective.
‘‘transfer out’’ the transfer school is (13) Employment. Except as provided
permitted to generate a SEVIS Form I– in paragraph (m)(14) of this section, a
20 for transfer but will not gain access student may not accept employment.
to the student’s SEVIS record until the (14) Practical training—(i) When prac-
release date is reached. Upon receipt of tical training may be authorized. Tem-
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the SEVIS Form I–20 from the transfer porary employment for practical train-
school, the student must submit Form ing may be authorized only after com-
I–539 in accordance with § 214.2(m)(11). pletion of the student’s course of
The student may enroll in the transfer study.
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
(A) The proposed employment is rec- dent who has been granted permission
ommended for the purpose of practical to accept employment for practical
training; training and who temporarily departs
(B) The proposed employment is re- from the United States, may be re-
lated to the student’s course of study; admitted for the remainder of the au-
and thorized period indicated on the stu-
(C) Upon the designated school offi- dent’s Form I–20 ID copy. The student
cial’s information and belief, employ- must be returning to the United States
ment comparable to the proposed em- to perform the authorized practical
ployment is not available to the stu- training. A student may not be re-
dent in the country of the student’s admitted to begin practical training
foreign residence.
which was not authorized prior to the
(ii) Application. A M–1 student must
student’s departure from the United
apply for permission to accept employ-
ment for practical training on Form I– States.
765, with fee as contained in 8 CFR (v) Effect of strike or other labor dis-
103.7(b)(1), accompanied by a Form I–20 pute. Authorization for all employment
that has been endorsed for practical for practical training is automatically
training by the designated school offi- suspended upon certification by the
cial. The application must be sub- Secretary of Labor or the Secretary’s
mitted prior to the program end date designee to the Commissioner of Immi-
listed on the student’s Form I–20 but gration and Naturalization or the Com-
not more than 90 days before the pro- missioner’s designee that a strike or
gram end date. The designated school other labor dispute involving a work
official must certify on Form I–538 stoppage of workers is in progress in
that— the occupation at the place of employ-
(A) The proposed employment is rec- ment. As used in this paragraph, ‘‘place
ommended for the purpose of practical of employment’’ means wherever the
training; employer or joint employer does busi-
(B) The proposed employment is re- ness.
lated to the student’s course of study; (vi) SEVIS process. The DSO must up-
and date the student’s record in SEVIS to
(C) Upon the designated school offi-
recommend that the Service approve
cial’s information and belief, employ-
the student for practical training, and
ment comparable to the proposed em-
print SEVIS Form I–20 with the rec-
ployment is not available to the stu-
dent in the country of the student’s ommendation, for the student to sub-
foreign residence. mit to the Service with Form I–765 as
(iii) Duration of practical training. provided in this paragraph (m)(14).
When the student is authorized to en- (15) Decision on application for exten-
gage in employment for practical sion, permission to transfer to another
training, he or she will be issued an school, or permission to accept employ-
employment authorization document. ment for practical training. The Service
The M–1 student may not begin em- shall notify the applicant of the deci-
ployment until he or she has been sion and, if the application is denied, of
issued an employment authorization the reason(s) for the denial. The appli-
document by the Service. One month of cant may not appeal the decision.
employment authorization will be (16) Reinstatement to student status—(i)
granted for each four months of full- General. A district director may con-
time study that the M–1 student has sider reinstating a student who makes
completed. However, an M–1 student a request for reinstatement on Form I–
may not engage in more than six 539, Application to Extend/Change Non-
months of practical training in the ag- immigrant Status, accompanied by a
gregate. The student will not be grant- properly completed SEVIS Form I–20
ed employment authorization if he or
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Department of Homeland Security § 214.2
student is attending or intends to at- the student, the student may not ap-
tend prior to August 1, 2003). The dis- peal the decision. The district director
trict director may consider granting will send notification to the school of
the request only if the student: the decision.
(A) Has not been out of status for (17) Spouse and children of M–1 stu-
more than 5 months at the time of fil- dent. The M–2 spouse and minor chil-
ing the request for reinstatement (or dren of an M–1 student shall each be
demonstrates that the failure to file issued an individual SEVIS Form I–20
within the 5 month period was the re- in accordance with the provisions of
sult of exceptional circumstances and § 214.3(k).
that the student filed the request for (i) Employment. The M–2 spouse and
reinstatement as promptly as possible children may not accept employment.
under these exceptional cir- (ii) Study. (A) The M–2 spouse may
cumstances); not engage in full time study, and the
(B) Does not have a record of re- M–2 child may only engage in full time
peated or willful violations of the Serv- study if the study is in an elementary
ice regulations; or secondary school (kindergarten
(C) Is currently pursuing, or intends through twelfth grade). The M–2 spouse
to pursue, a full course of study at the and child may engage in study that is
school which issued the Form I–20M–N avocational or recreational in nature.
or SEVIS Form I–20; (B) An M–2 spouse or M–2 child desir-
(D) Has not engaged in unlawful em- ing to engage in full time study, other
ployment; than that allowed for a child in para-
(E) Is not deportable on any ground graph (m)(17)(ii) of this section, must
other than section 237(a)(1)(B) or (C)(i) apply for and obtain a change of non-
of the Act; and immigrant classification to F–1, J–1, or
(F) Establishes to the satisfaction of M–1 status. An M–2 spouse or child who
the Service, by a detailed showing, ei- was enrolled on a full time basis prior
ther that: to January 1, 2003, will be allowed to
(1) The violation of status resulted continue study but must file for a
from circumstances beyond the stu- change of nonimmigrant classification
dent’s control. Such circumstances to F–1, J–1, or M–1 status on or before
might include serious injury or illness, March 11, 2003.
closure of the institution, a natural (C) An M–2 spouse or M–2 child vio-
disaster, or inadvertence, oversight or lates his or her nonimmigrant status
neglect on the part of the DSO, but do by engaging in full time study except
not include instances where a pattern as provided in paragraph (m)(17)(i) and
of repeated violations or where a will- (ii) of this section.
ful failure on the part of the student (18) Current name and address. A stu-
resulted in the need for reinstatement; dent must inform the Service and the
or DSO of any legal changes to his or her
(2) The violation relates to a reduc- name or of any change of address, with-
tion in the student’s course load that in 10 days of the change, in a manner
would have been within a DSO’s power prescribed by the school. A student en-
to authorize, and that failure to ap- rolled at a SEVIS school can satisfy
prove reinstatement would result in ex- the requirement in 8 CFR 265.1 of noti-
treme hardship to the student. fying the Service by providing a notice
(ii) Decision. If the Service reinstates of a change of address within 10 days to
the student, the Service shall endorse the DSO, and the DSO in turn shall
the student’s copy of Form I–20 to indi- enter the information in SEVIS within
cate that the student has been rein- 21 days of notification by the student.
stated and return the form to the stu- A nonimmigrant student enrolled at a
dent. If the Form I–20 is from a non- non-SEVIS institution must submit a
SEVIS school, the school copy will be notice of change of address to the Serv-
forwarded to the school. If the Form I– ice, as provided in 8 CFR 265.1, within
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20 is from a SEVIS school, the adjudi- 10 days of the change. Except in the
cating officer will update SEVIS to re- case of a student who cannot receive
flect the Service’s decision. In either mail where he or she resides, the ad-
case, if the Service does not reinstate dress provided by the student must be
347
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
the actual physical location where the (20) Remittance of the fee. An alien
student resides rather than a mailing who applies for M–1 or M–3 non-
address. In cases where a student pro- immigrant status in order to enroll in
vides a mailing address, the school a program of study at a DHS-approved
must maintain a record of, and must vocational educational institution is
provide upon request from the Service, required to pay the SEVIS fee to DHS,
the actual physical location where the pursuant to 8 CFR 214.13, except as oth-
student resides. erwise provided in that section.
(19) Special rules for certain border com- (n) Certain parents and children of sec-
muter students—(i) Applicability. For tion 101(a)(27)(I) special immigrants—(1)
purposes of the special rules in this Parent of special immigrant. Upon appli-
paragraph (m)(19), the term ‘‘border cation, a parent of a child accorded
commuter student’’ means a national special immigrant status under section
of Canada or Mexico who is admitted to 101(a)(27)(I)(i) of the Act may be grant-
the United States as an M–1 student to ed status under section 101(a)(15)(N)(i)
enroll in a full course of study, albeit of the Act as long as the permanent
on a part-time basis, in an approved resident child through whom eligibility
school located within 75 miles of a is derived remains a child as defined in
United States land border. The border section 101(b)(1) of the Act.
commuter student must maintain ac- (2) Child of section 101(a)(27)(I) special
tual residence and place of abode in the immigrants and section 101(a)(15)(N)(i)
student’s country of nationality, and nonimmigrants. Children of parents
seek admission to the United States at granted nonimmigrant status under
a land border port-of-entry. These spe- section 101(a)(15)(N)(i) of the Act, or of
cial rules do not apply to a national of parents who have been granted special
Canada or Mexico who is: immigrant status under section
(A) Residing in the United States 101(a)(27)(I) (ii), (iii) or (iv) of the Act
may be granted status under section
while attending an approved school as
101(a)(15)(N)(ii) of the Act for such time
an M–1 student, or
as each remains a child as defined in
(B) Enrolled in a full course of study
section 101(b)(1) of the Act.
as defined in paragraph (m)(9) of this (3) Admission and extension of stay. A
section. nonimmigrant granted (N) status shall
(ii) Full course of study. The border be admitted for not to exceed three
commuter student must be enrolled in years with extensions in increments up
a full course of study at the school that to but not to exceed three years. Sta-
leads to the attainment of a specific tus as an (N) nonimmigrant shall ter-
educational or vocational objective, al- minate on the date the child described
beit on a part-time basis. A designated in paragraph (n)(1) or (n)(2) of this sec-
school official at the school may au- tion no longer qualifies as a child as
thorize an eligible border commuter defined in section 101(b)(1) of the Act.
student to enroll in a course load below (4) Employment. A nonimmigrant ad-
that otherwise required for a full mitted in or granted (N) status is au-
course of study under paragraph (m)(9) thorized employment incident to (N)
of this section, provided that the re- status without restrictions as to loca-
duced course load is consistent with tion or type of employment.
the border commuter student’s ap- (o) Aliens of extraordinary ability or
proved course of study. achievement—(1) Classifications—(i) Gen-
(iii) Period of stay. An M–1 border eral. Under section 101(a)(15)(O) of the
commuter student is not entitled to an Act, a qualified alien may be author-
additional 30-day period of stay other- ized to come to the United States to
wise available under paragraph (m)(5) perform services relating to an event
of this section. or events if petitioned for by an em-
(iv) Employment. A border commuter ployer. Under this nonimmigrant cat-
student may not be authorized to ac- egory, the alien may be classified
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Department of Homeland Security § 214.2
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
(C) An explanation of the nature of relating to the new employer and a re-
the events or activities, the beginning quest for an extension of stay.
and ending dates for the events or ac- (D) Amended petition. The petitioner
tivities, and a copy of any itinerary for shall file an amended petition on Form
the events or activities; and I–129, with fee, to reflect any material
(D) A written advisory opinion(s) changes in the terms and conditions of
from the appropriate consulting entity employment or the beneficiary’s eligi-
or entities. bility as specified in the original ap-
(iii) Form of documentation. The evi- proved petition. In the case of a peti-
dence submitted with an O petition tion filed for an artist or entertainer, a
shall conform to the following: petitioner may add additional perform-
(A) Affidavits, contracts, awards, and ances or engagements during the valid-
similar documentation must reflect ity period of the petition without filing
the nature of the alien’s achievement an amended petition, provided the ad-
and be executed by an officer or respon- ditional performances or engagements
sible person employed by the institu- require an alien of O–1 caliber.
tion, firm, establishment, or organiza- (E) Agents as petitioners. A United
tion where the work was performed. States agent may file a petition in
cases involving workers who are tradi-
(B) Affidavits written by present or
tionally self-employed or workers who
former employers or recognized experts
use agents to arrange short-term em-
certifying to the recognition and ex-
ployment on their behalf with numer-
traordinary ability, or in the case of a
ous employers, and in cases where a
motion picture or television produc-
foreign employer authorizes the agent
tion, the extraordinary achievement of to act in its behalf. A United States
the alien, shall specifically describe agent may be: The actual employer of
the alien’s recognition and ability or the beneficiary, the representative of
achievement in factual terms and set both the employer and the beneficiary;
forth the expertise of the affiant and or, a person or entity authorized by the
the manner in which the affiant ac- employer to act for, or in place of, the
quired such information. employer as its agent. A petition filed
(C) A legible photocopy of a docu- by an agent is subject to the following
ment in support of the petition may be conditions:
submitted in lieu of the original. How- (1) An agent performing the function
ever, the original document shall be of an employer must provide the con-
submitted if requested by the Director. tractual agreement between the agent
(iv) Other filing situations—(A) Services and the beneficiary which specifies the
in more than one location. A petition wage offered and the other terms and
which requires the alien to work in conditions of employment of the bene-
more than one location must include ficiary.
an itinerary with the dates and loca- (2) A person or company in business
tions of work. as an agent may file the petition in-
(B) Services for more than one em- volving multiple employers as the rep-
ployer. If the beneficiary will work con- resentative of both the employers and
currently for more than one employer the beneficiary, if the supporting docu-
within the same time period, each em- mentation includes a complete
ployer must file a separate petition un- itinerary of the event or events. The
less an established agent files the peti- itinerary must specify the dates of
tion. each service or engagement, the names
(C) Change of employer. If an O–1 or O– and addresses of the actual employers,
2 alien in the United States seeks to and the names and addresses of the es-
change employers, the new employer tablishments, venues, or locations
must file a petition and a request to where the services will be performed. A
extend the alien’s stay. An O–2 alien contract between the employers and
may change employers only in conjunc- the beneficiary is required. The burden
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tion with a change of employers by the is on the agent to explain the terms
principal O–1 alien. If the O–1 or O–2 pe- and conditions of the employment and
tition was filed by an agent, an amend- to provide any required documenta-
ed petition must be filed with evidence tion.
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Department of Homeland Security § 214.2
formers but other essential persons (iii) Evidentiary criteria for an O–1
such as, but not limited to, directors, alien of extraordinary ability in the fields
set designers, lighting designers, sound of science, education, business, or ath-
designers, choreographers, letics. An alien of extraordinary ability
351
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
in the fields of science, education, busi- (iv) Evidentiary criteria for an O–1
ness, or athletics must demonstrate alien of extraordinary ability in the arts.
sustained national or international ac- To qualify as an alien of extraordinary
claim and recognition for achieve- ability in the field of arts, the alien
ments in the field of expertise by pro- must be recognized as being prominent
viding evidence of: in his or her field of endeavor as dem-
(A) Receipt of a major, internation- onstrated by the following:
ally recognized award, such as the (A) Evidence that the alien has been
Nobel Prize; or nominated for, or has been the recipi-
(B) At least three of the following ent of, significant national or inter-
forms of documentation: national awards or prizes in the par-
(1) Documentation of the alien’s re- ticular field such as an Academy
ceipt of nationally or internationally Award, an Emmy, a Grammy, or a Di-
recognized prizes or awards for excel- rector’s Guild Award; or
lence in the field of endeavor; (B) At least three of the following
(2) Documentation of the alien’s forms of documentation:
membership in associations in the field (1) Evidence that the alien has per-
for which classification is sought, formed, and will perform, services as a
which require outstanding achieve- lead or starring participant in produc-
ments of their members, as judged by tions or events which have a distin-
recognized national or international
guished reputation as evidenced by
experts in their disciplines or fields;
critical reviews, advertisements, pub-
(3) Published material in professional
licity releases, publications contracts,
or major trade publications or major
or endorsements;
media about the alien, relating to the
alien’s work in the field for which clas- (2) Evidence that the alien has
sification is sought, which shall in- achieved national or international rec-
clude the title, date, and author of ognition for achievements evidenced by
such published material, and any nec- critical reviews or other published ma-
essary translation; terials by or about the individual in
(4) Evidence of the alien’s participa- major newspapers, trade journals, mag-
tion on a panel, or individually, as a azines, or other publications;
judge of the work of others in the same (3) Evidence that the alien has per-
or in an allied field of specialization to formed, and will perform, in a lead,
that for which classification is sought; starring, or critical role for organiza-
(5) Evidence of the alien’s original tions and establishments that have a
scientific, scholarly, or business-re- distinguished reputation evidenced by
lated contributions of major signifi- articles in newspapers, trade journals,
cance in the field; publications, or testimonials;
(6) Evidence of the alien’s authorship (4) Evidence that the alien has a
of scholarly articles in the field, in pro- record of major commercial or criti-
fessional journals, or other major cally acclaimed successes as evidenced
media; by such indicators as title, rating,
(7) Evidence that the alien has been standing in the field, box office re-
employed in a critical or essential ca- ceipts, motion pictures or television
pacity for organizations and establish- ratings, and other occupational
ments that have a distinguished rep- achievements reported in trade jour-
utation; nals, major newspapers, or other publi-
(8) Evidence that the alien has either cations;
commanded a high salary or will com- (5) Evidence that the alien has re-
mand a high salary or other remunera- ceived significant recognition for
tion for services, evidenced by con- achievements from organizations, crit-
tracts or other reliable evidence. ics, government agencies, or other rec-
(C) If the criteria in paragraph ognized experts in the field in which
(o)(3)(iii) of this section do not readily the alien is engaged. Such testimonials
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Department of Homeland Security § 214.2
(6) Evidence that the alien has either ratings, and other occupational
commanded a high salary or will com- achievements reported in trade jour-
mand a high salary or other substan- nals, major newspapers, or other publi-
tial remuneration for services in rela- cations;
tion to others in the field, as evidenced (5) Evidence that the alien has re-
by contracts or other reliable evidence; ceived significant recognition for
or achievements from organizations, crit-
(C) If the criteria in paragraph ics, government agencies, or other rec-
(o)(3)(iv) of this section do not readily ognized experts in the field in which
apply to the beneficiary’s occupation, the alien is engaged. Such testimonials
the petitioner may submit comparable must be in a form which clearly indi-
evidence in order to establish the bene- cates the author’s authority, expertise,
ficiary’s eligibility. and knowledge of the alien’s achieve-
(v) Evidentiary criteria for an alien of ments; or
extraordinary achievement in the motion (6) Evidence that the alien has either
picture or television industry. To qualify commanded a high salary or will com-
as an alien of extraordinary achieve- mand a high salary or other substan-
ment in the motion picture or tele- tial remuneration for services in rela-
vision industry, the alien must be rec- tion to other in the field, as evidenced
ognized as having a demonstrated by contracts or other reliable evidence.
record of extraordinary achievement as (4) Petition for an O–2 accompanying
evidenced by the following: alien—(i) General. An O–2 accom-
(A) Evidence that the alien has been panying alien provides essential sup-
nominated for, or has been the recipi- port to an O–1 artist or athlete. Such
ent of, significant national or inter- aliens may not accompany O–1 aliens
national awards or prizes in the par- in the fields of science, business, or
ticular field such as an Academy education. Although the O–2 alien must
Award, an Emmy, a Grammy, or a Di- obtain his or her own classification,
rector’s Guild Award; or this classification does not entitle him
(B) At least three of the following or her to work separate and apart from
forms of documentation: the O–1 alien to whom he or she pro-
(1) Evidence that the alien has per- vides support. An O–2 alien must be pe-
formed, and will perform, services as a titioned for in conjunction with the
lead or starring participant in produc- services of the O–1 alien.
tions or events which have a distin- (ii) Evidentiary criteria for qualifying
guished reputation as evidenced by as an O–2 accompanying alien—(A) Alien
critical reviews, advertisements, pub- accompanying an O–1 artist or athlete of
licity releases, publications contracts, extraordinary ability. To qualify as an
or endorsements; O–2 accompanying alien, the alien
(2) Evidence that the alien has must be coming to the United States to
achieved national or international rec- assist in the performance of the O–1
ognition for achievements evidenced by alien, be an integral part of the actual
critical reviews or other published ma- performance, and have critical skills
terials by or about the individual in and experience with the O–1 alien
major newspapers, trade journals, mag- which are not of a general nature and
azines, or other publications; which are not possessed by a U.S.
(3) Evidence that the alien has per- worker.
formed, and will perform, in a lead, (B) Alien accompanying an O–1 alien of
starring, or critical role for organiza- extraordinary achievement. To qualify as
tions and establishments that have a an O–2 alien accompanying and O–1
distinguished reputation evidenced by alien involved in a motion picture or
articles in newspapers, trade journals, television production, the alien must
publications, or testimonials; have skills and experience with the O–
(4) Evidence that the alien has a 1 alien which are not of a general na-
record of major commercial or criti- ture and which are critical based on a
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
production work) will take place both ten evidence of consultation shall be
inside and outside the United States included in the record in every ap-
and the continuing participation of the proved O petition. Consultations are
alien is essential to the successful com- advisory and are not binding on the
pletion of the production. Service.
(C) The evidence shall establish the (E) In a case where the alien will be
current essentiality, critical skills, and employed in the field of arts, enter-
experience of the O–2 alien with the O– tainment, or athletics, and the Service
1 alien and that the alien has substan- has determined that a petition merits
tial experience performing the critical expeditious handling, the Service shall
skills and essential support services for contact the appropriate labor and/or
the O–1 alien. In the case of a specific management organization and request
motion picture or television produc- an advisory opinion if one is not sub-
tion, the evidence shall establish that mitted by the petitioner. The labor
significant production has taken place and/or management organization shall
outside the United States, and will have 24 hours to respond to the Serv-
take place inside the United States, ice’s request. The Service shall adju-
and that the continuing participation dicate the petition after receipt of the
of the alien is essential to the success- response from the consulting organiza-
ful completion of the production. tion. The labor and/or management or-
(5) Consultation—(i) General. (A) Con- ganization shall then furnish the Serv-
sultation with an appropriate U.S. peer ice with a written advisory opinion
group (which could include a person or within 5 days of the initiating request.
persons with expertise in the field), If the labor and/or management organi-
labor and/or management organization zation fails to respond within 24 hours,
regarding the nature of the work to be the Service shall render a decision on
done and the alien’s qualifications is the petition without the advisory opin-
mandatory before a petition for an O–1 ion.
or O–2 classification can be approved. (F) In a routine processing case
(B) Except as provided in paragraph where the petition is accompanied by a
(o)(5)(i)(E) of this section, evidence of written opinion from a peer group, but
consultation shall be in the form of a the peer group is not a labor organiza-
written advisory opinion from a peer tion, the Director will forward a copy
group (which could include a person or of the petition and all supporting docu-
persons with expertise in the field), mentation to the national office of the
labor and/or management organization appropriate labor organization within 5
with expertise in the specific field in- days of receipt of the petition. If there
volved. is a collective bargaining representa-
(C) Except as provided in paragraph tive of an employer’s employees in the
(o)(5)(i)(E) of this section, the peti- occupational classification for which
tioner shall obtain a written advisory the alien is being sought, that rep-
opinion from a peer group (which could resentative shall be the appropriate
include a person or persons with exper- labor organization for purposes of this
tise in the field), labor, and/or manage- section. The labor organization will
ment organization with expertise in then have 15 days from receipt of the
the specific field involved. The advi- petition and supporting documents to
sory opinion shall be submitted along submit to the Service a written advi-
with the petition when the petition is sory opinion, comment, or letter of no
filed. If the advisory opinion is not fa- objection. Once the 15-day period has
vorable to the petitioner, the advisory expired, the Director shall adjudicate
opinion must set forth a specific state- the petition in no more than 14 days.
ment of facts which supports the con- The Director may shorten this time in
clusion reached in the opinion. Advi- his or her discretion for emergency rea-
sory opinions must be submitted in sons, if no unreasonable burden would
writing and must be signed by an au- be imposed on any participant in the
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thorized official of the group or organi- process. If the labor organization does
zation. not respond within 15 days, the Direc-
(D) Except as provided in paragraph tor will render a decision on the record
(o)(5)(i)(E) and (G) of this section, writ- without the advisory opinion.
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Department of Homeland Security § 214.2
(G) In those cases where it is estab- the alien’s ability. If an advisory opin-
lished by the petitioner that an appro- ion is not favorable to the petitioner,
priate peer group, including a labor or- the advisory opinion must set forth a
ganization, does not exist, the Service specific statement of facts which sup-
shall render a decision on the evidence ports the conclusion reached in the
of record. opinion. If the advisory opinion is fa-
(ii) Consultation requirements for an O– vorable to the petitioner, the written
1 alien for extraordinary ability—(A) Con- advisory opinion from the labor and
tent. Consultation with a peer group in management organizations should de-
the area of the alien’s ability (which scribe the alien’s achievements in the
may include a labor organization), or a motion picture or television field and
person or persons with expertise in the state whether the position requires the
area of the alien’s ability, is required services of an alien of extraordinary
in an O–1 petition for an alien of ex- achievement. If a consulting organiza-
traordinary ability. If the advisory tion has no objection to the approval of
opinion is not favorable to the peti- the petition, the organization may sub-
tioner, the advisory opinion must set mit a letter of no objection in lieu of
forth a specific statement of facts the above.
which supports the conclusion reached (iv) Consultation requirements for an
in the opinion. If the advisory opinion O–2 accompanying alien. Consultation
is favorable to the petitioner, it should with a labor organization with exper-
describe the alien’s ability and tise in the skill area involved is re-
achievements in the field of endeavor, quired for an O–2 alien accompanying
describe the nature of the duties to be an O–1 alien of extraordinary ability.
performed, and state whether the posi- In the case of an O–2 alien seeking
tion requires the services of an alien of entry for a motion picture or television
extraordinary ability. A consulting or- production, consultation with a labor
ganization may also submit a letter of organization and a management orga-
no objection in lieu of the above if it nization in the area of the alien’s abil-
has no objection to the approval of the ity is required. If an advisory opinion
petition. is not favorable to the petitioner, the
(B) Waiver of consultation of certain advisory opinion must set forth a spe-
aliens of extraordinary ability in the field cific statement of facts which supports
of arts. Consultation for an alien of ex- the conclusion reached in the opinion.
traordinary ability in the field of arts If the advisory opinion is favorable to
shall be waived by the Director in the petitioner, the opinion provided by
those instances where the alien seeks the labor and/or management organiza-
readmission to the United States to tion should describe the alien’s essen-
perform similar services within 2 years tiality to, and working relationship
of the date of a previous consultation. with, the O–1 artist or athlete and
The director shall, within 5 days of state whether there are available U.S.
granting the waiver, forward a copy of workers who can perform the support
the petition and supporting docu- services. If the alien will accompany an
mentation to the national office of an O–1 alien involved in a motion picture
appropriate labor organization. Peti- or television production, the advisory
tioners desiring to avail themselves of opinion should address the alien’s
the waiver should submit a copy of the skills and experience wit the O–1 alien
prior consultation with the petition and whether the alien has a pre-exist-
and advise the Director of the waiver ing longstanding working relationship
request. with the O–1 alien, or whether signifi-
(iii) Consultation requirements for an cant production will take place in the
O–1 alien of extraordinary achievement. United States and abroad and if the
In the case of an alien of extraordinary continuing participation of the alien is
achievement who will be working on a essential to the successful completion
motion picture or television produc- of the production. A consulting organi-
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tion, consultation shall be made with zation may also submit a letter of no
the appropriate union representing the objection in lieu of the above if it has
alien’s occupational peers and a man- no objection to the approval of the pe-
agement organization in the area of tition.
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
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Department of Homeland Security § 214.2
357
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
is to be employed, and that the em- her authorized period of stay has ex-
ployment of the beneficiary would ad- pired will be subject to deportation.
versely affect the wages and working (15) Use of approval notice, Form I–797.
conditions of U.S. citizens and lawful The Service shall notify the petitioner
resident workers: of Form I–797 whenever a visa petition
(A) A petition to classify an alien as or an extension of a visa petition is ap-
a nonimmigrant as defined in section proved under the O classification. The
101(a)(15)(O) of the Act shall be denied; beneficiary of an O petition who does
or not require a nonimmigrant visa may
(B) If a petition has been approved, present a copy of the approval notice
but the alien has not yet entered the at a Port-of-Entry to facilitate entry
United States, or has entered the into the United States. A beneficiary
United States but has not commenced who is required to present a visa for ad-
employment, the approval of the peti- mission, and who visa will have expired
tion is automatically suspended, and before the date of his or her intended
the application for admission on the return, may use Form I–797 to apply for
basis of the petition shall be denied. a new or revalidated visa during the
(ii) If there is a strike or other labor validity period of the petition. A copy
dispute involving a work stoppage of of Form I–797 shall be retained by the
workers in progress, but such strike or beneficiary and presented during the
other labor dispute is not certified validity of the petition when reen-
under paragraph (o)(14)(i) of this sec- tering the United States to resume the
tion, the Commissioner shall not deny same employment with the same peti-
a petition or suspend an approved peti- tioner.
tion. (16) Return transportation requirement.
(iii) If the alien has already com- In the case of an alien who enters the
menced employment in the United United States under section 101(a)(15(O)
States under an approved petition and of the Act and whose employment ter-
is participating in a strike or labor dis- minates for reasons other than vol-
pute involving a work stoppage of untary resignation, the employer
workers, whether or not such strike or whose offer of employment formed the
other labor dispute has been certified basis of such nonimmigrant status and
by the Secretary of Labor, the alien the petitioner are jointly and severally
shall not be deemed to be failing to liable for the reasonable cost of return
maintain his or her status solely on ac- transportation of the alien abroad. For
count of past, present, or future par- the purposes of this paragraph, the
ticipation in a strike or other labor term ‘‘abroad’’ means the alien’s last
dispute involving a work stoppage of place of residence prior to his or her
workers but is subject to the following entry into the United States.
terms and conditions: (p) Artists, athletes, and entertainers—
(A) The alien shall remain subject to (1) Classifications—(i) General. Under
all applicable provisions of the Immi- section 101(a)(15)(P) of the Act, an alien
gration and Nationality Act and regu- having a residence in a foreign country
lations promulgated thereunder in the which he or she has not intention or
same manner as are all other O non- abandoning may be authorized to come
immigrants; to the United States temporarily to
(B) The status and authorized period perform services for an employer or a
of stay of such an alien is not modified sponsor. Under the nonimmigrant cat-
or extended in any way by virtue of his egory, the alien may be classified
or her participation in a strike or other under section 101(a)(15)(P)(i) of the Act
labor dispute involving a work stop- as an alien who is coming to the United
page of workers; and States to perform services as an inter-
(C) Although participation by an O nationally recognized athlete, individ-
nonimmigrant alien in a strike or ually or as part of a group or team, or
other labor dispute involving a work member of an internationally recog-
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stoppage of workers will not constitute nized entertainment group; under sec-
a ground for deportation, and alien who tion 101(a)(15)(P)(ii) of the Act, who is
violates his or her status or who re- coming to perform as an artist or en-
mains in the United States after his or tertainer under a reciprocal exchange
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Department of Homeland Security § 214.2
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
the oral agreement under which the employment with the new employer or
alien(s) will be employed; sponsor until the petition and request
(C) An explanation of the nature of for extension have been approved.
the events or activities, the beginning (2) Traded professional P–1 athletes. In
and ending dates for the events or ac- the case of a professional P–1 athlete
tivities, and a copy of any itinerary for who is traded from one organization to
the events or activities; and another organization, employment au-
(D) A written consultation from a thorization for the player will auto-
labor organization. matically continue for a period of 30
(iii) Form of documentation. The evi- days after acquisition by the new orga-
dence submitted with an P petition nization, within which time the new
should conform to the following: organization is expected to file a new
(A) Affidavits, contracts, awards, and Form I–129 for P–1 nonimmigrant clas-
similar documentation must reflect sification. If a new Form I–129 is not
the nature of the alien’s achievement filed within 30 days, employment au-
and be executed by an officer or respon- thorization will cease. If a new Form I–
sible person employed by the institu- 129 is filed within 30 days, the profes-
tion, establishment, or organization sional athlete shall be deemed to be in
where the work has performed. valid P–1 status, and employment shall
(B) Affidavits written by present or continue to be authorized, until the pe-
former employers or recognized experts tition is adjudicated. If the new peti-
certifying to the recognition and ex- tion is denied, employment authoriza-
traordinary ability, or, in the case of a tion will cease.
motion picture or television produc- (D) Amended petition. The petitioner
tion, the extraordinary achievement of shall file an amended petition, with
the alien, which shall specifically de- fee, with the Service Center where the
scribe the alien’s recognition and abil- original petition was filed to reflect
ity or achievement in factual terms. any material changes in the terms and
The affidavit must also set forth the conditions of employment or the bene-
expertise of the affiant and the manner ficiary’s eligibility as specified in the
in which the affiant acquired such in- original approved petition. A peti-
formation. tioner may add additional, similar or
(C) A legible copy of a document in comparable performance, engagements,
support of the petition may be sub- or competitions during the validity pe-
mitted in lieu of the original. However, riod of the petition without filing an
the original document shall be sub- amended petition.
mitted if requested by the Director. (E) Agents as petitioners. A United
(iv) Other filing situations—(A) Services States agent may file a petition in
in more than one location. A petition cases involving workers who are tradi-
which requires the alien to work in tionally self-employed or workers who
more than one location (e.g., a tour) use agents to arrange short-term em-
must include an itinerary with the ployment on their behalf with numer-
dates and locations of the perform- ous employers, and in cases where a
ances. foreign employer authorizes the agent
(B) Services for more than one em- to act on its behalf. A United States
ployer. If the beneficiary or bene- agent may be: the actual employer of
ficiaries will work for more than one the beneficiary; the representative of
employer within the same time period, both the employer and the beneficiary;
each employer must file a separate pe- or, a person or entity authorized by the
tition unless an agent files the petition employer to act for, or in place of, the
pursuant to paragraph (p)(2)(iv)(E) of employer as its agent. A petition filed
this section. by an United States agent is subject to
(C) Change of employer—(1) General. If the following conditions:
a P–1, P–2, or P–3 alien in the United (1) An agent performing the function
States seeks to change employers or of an employer must specify the wage
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sponsors, the new employer or sponsor offered and the other terms and condi-
must file both a petition and a request tions of employment by contractual
to extend the alien’s stay in the United agreement with the beneficiary or
States. The alien may not commence beneficiaries. The agent/employer must
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Department of Homeland Security § 214.2
sion. Essential support personnel may services, critical knowledge of the spe-
not be substituted at consular offices cific services to be performed, and ex-
or at Ports-of-entry. In order to add ad- perience in providing such support to
ditional new essential support per- the P–1, P–2, or P–3 alien.
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
Group means two or more persons es- ment services for the group for a min-
tablished as one entity or unit to per- imum of 1 year.
form or to provide a service. (ii) Criteria and documentary require-
Internationally recognized means hav- ments for P–1 athletes—(A) General. A P–
ing a high level of achievement in a 1 athlete must have an internationally
field evidenced by a degree of skill and recognized reputation as an inter-
recognition substantially above that national athlete or he or she must be a
ordinarily encountered, to the extent member of a foreign team that is inter-
that such achievement is renowned, nationally recognized. The athlete or
leading, or well-known in more than team must be coming to the United
one country. States to participate in an athletic
Member of a group means a person competition which has a distinguished
who is actually performing the enter- reputation and which requires partici-
tainment services. pation of an athlete or athletic team
Sponsor means an established organi- that has an international reputation.
zation in the United States which will (B) Evidentiary requirements for an
not directly employ a P–1, P–2, or P–3 internationally recognized athlete or ath-
alien but will assume responsibility for letic team. A petition for an athletic
the accuracy of the terms and condi- team must be accompanied by evidence
tions specified in the petition. that the team as a unit has achieved
Team means two or more persons or- international recognition in the sport.
ganized to perform together as a com- Each member of the team is accorded
petitive unit in a competitive event. P–1 classification based on the inter-
(4) Petition for an internationally recog- national reputation of the team. A pe-
nized athlete or member of an internation- tition for an athlete who will compete
ally recognized entertainment group (P– individually or as a member of a U.S.
1)—(i) Types of classification—(A) P–1 team must be accompanied by evidence
classification as an athlete in an indi- that the athlete has achieved inter-
vidual capacity. A P–1 classification national recognition in the sport based
may be granted to an alien who is an on his or her reputation. A petition for
internationally recognized athlete a P–1 athlete or athletic team shall in-
based on his or her own reputation and clude:
achievements as an individual. The (1) A tendered contract with a major
alien must be coming to the United United States sports league or team, or
States to perform services which re- a tendered contract in an individual
quire an internationally recognized sport commensurate with international
athlete. recognition in that sport, if such con-
(B) P–1 classification as a member of an tracts are normally executed in the
entertainment group or an athletic team. sport, and
An entertainment group or athletic (2) Documentation of at least two of
team consists of two or more persons the following:
who function as a unit. The entertain- (i) Evidence of having participated to
ment group or athletic team as a unit a significant extent in a prior season
must be internationally recognized as with a major United States sports
outstanding in the discipline and must league;
be coming to perform services which (ii) Evidence of having participated
require an internationally recognized in international competition with a na-
entertainment group or athletic team. tional team;
A person who is a member of an inter- (iii) Evidence of having participated
nationally recognized entertainment to a significant extent in a prior season
group or athletic team may be granted for a U.S. college or university in
P–1 classification based on that rela- intercollegiate competition;
tionship, but may not perform services (iv) A written statement from an offi-
separate and apart from the entertain- cial of the governing body of the sport
ment group or athletic team. An enter- which details how the alien or team is
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Department of Homeland Security § 214.2
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
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Department of Homeland Security § 214.2
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
statement of facts which support the port services. If the advisory opinion is
conclusion reached in the opinion. In not favorable to the petitioner, it must
lieu of the above, a labor organization also set forth a specific statement of
may submit a letter of no objection if facts which support the conclusion
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Department of Homeland Security § 214.2
reached in the opinion. A labor organi- only up to the limit specified in that
zation may submit a letter of no objec- paragraph.
tion if it has no objection to the ap- (iii) Validity. The approval period of a
proval of the petition. P petition shall conform to the limits
(vii) Labor organizations agreeing to prescribed as follows:
provide consultations. The Service shall (A) P–1 petition for athletes. An ap-
list in its Operations Instructions for P proved petition for an individual ath-
classification those organizations lete classified under section
which have agreed to provide advisory 101(a)(15)(P)(i) of the Act shall be valid
opinions to the Service and/or peti- for a period up to 5 years. An approved
tioners. The list will not be an exclu- petition for an athletic team classified
sive or exhaustive list. The Service and under section 101(a)(15)(P)(i) of the Act
petitioners may use other sources, such shall be valid for a period of time de-
as publications, to identify appropriate termined by the Director to complete
labor organizations. The Service will the competition or event for which the
also list in its Operations Instructions alien team is being admitted, not to ex-
those occupations or fields of endeavor ceed 1 year.
where it has been determined by the (B) P–1 petition for an entertainment
Service that no appropriate labor orga- group. An approved petition for an en-
nization exists. tertainment group classified under sec-
(8) Approval and validity of petition— tion 101(a)(15)(P)(i) of the Act shall be
(i) Approval. The Director shall con- valid for a period of time determined
sider all the evidence submitted and by the Director to be necessary to com-
such other evidence as he or she may plete the performance or event for
independently require to assist in his which the group is being admitted, not
or her adjudication. The Director shall to exceed 1 year.
notify the petitioner of the approval of (C) P–2 and P–3 petitions for artists or
entertainers. An approved petition for
the petition on Form I–797, Notice of
an artist or entertainer under section
Action. The approval notice shall in-
101(a)(15)(P)(ii) or (iii) of the Act shall
clude the alien beneficiary’s name and
be valid for a period of time deter-
classification and the petition’s period
mined by the Director to be necessary
of validity.
to complete the event, activity, or per-
(ii) Recording the validity of petitions. formance for which the P–2 or P–3 alien
Procedures for recording the validity is admitted, not to exceed 1 year.
period of petitions are: (D) Spouse and dependents. The spouse
(A) If a new P petition is approved and unmarried minor children of a P–1,
before the date the petitioner indicates P–2, or P–3 alien beneficiary are enti-
the services will begin, the approved tled to P–4 nonimmigrant classifica-
petition and approval notice shall show tion, subject to the same period of ad-
the actual dates requested by the peti- mission and limitations as the alien
tioner as the validity period, not to ex- beneficiary, if they are accompanying
ceed the limit specified in paragraph or following to join the alien bene-
(p)(8)(iii) of this section or other Serv- ficiary in the United States. Neither
ice policy. the spouse nor a child of the alien ben-
(B) If a new P petition is approved eficiary may accept employment un-
after the date the petitioner indicates less he or she has been granted employ-
the services will begin, the approved ment authorization.
petition and approval notice shall gen- (E) Essential support aliens. Petitions
erally show a validity period com- for essential support personnel to P–1,
mencing with the date of approval and P–2, and P–3 aliens shall be valid for a
ending with the date requested by the period of time determined by the Di-
petitioner, not to exceed the limit rector to be necessary to complete the
specified in paragraph (p)(8)(iii) of this event, activity, or performance for
section or other Service policy. which the P–1, P–2, or P–3 alien is ad-
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
under 8 CFR part 103. There is no ap- (11) Appeal of a denial or a revocation
peal from a decision to deny an exten- of a petition—(i) Denial. A denied peti-
sion of stay to the alien or a change of tion may be appealed under 8 CFR part
nonimmigrant status. 103.
(10) Revocation of approval of peti- (ii) Revocation. A petition that has
tion—(i) General. (A) The petitioner been revoked on notice may be ap-
shall immediately notify the Service of pealed under 8 CFR part 103. Automatic
any changes in the terms and condi- revocations may not be appealed.
tions of employment of a beneficiary (12) Admission. A beneficiary may be
which may affect eligibility under sec- admitted to the United States for the
tion 101(a)(15)(P) of the Act and para- validity period of the petition, plus a
graph (p) of this section. An amended period of up to 10 days before the valid-
petition should be filed when the peti- ity period begins and 10 days after the
tioner continues to employ the bene- validity period ends. The beneficiary
ficiary. If the petitioner no longer em- may not work except during the valid-
ploys the beneficiary, the petitioner ity period of the petition.
shall send a letter explaining the (13) Extension of visa petition validity.
change(s) to the Director who approved The petitioner shall file a request to
the petition. extend the validity of the original peti-
(B) The Director may revoke a peti- tion under section 101(a)(15)(P) of the
tion at any time, even after the valid-
Act on Form I–129 in order to continue
ity of the petition has expired.
or complete the same activity or event
(ii) Automatic revocation. The ap-
specified in the original petition. Sup-
proval of an unexpired petition is auto-
porting documents are not required un-
matically revoked if the petitioner, or
less requested by the Director. A peti-
the employer in a petition filed by an
tion extension may be filed only if the
agent, goes out of business, files a writ-
validity of the original petition has not
ten withdrawal of the petition, or noti-
expired.
fies the Service that the beneficiary is
no longer employed by the petitioner. (14) Extension of stay—(i) Extension
(iii) Revocation on notice—(A) Grounds procedure. The petitioner shall request
for revocation. The Director shall send extension of the alien’s stay to con-
to the petitioner a notice of intent to tinue or complete the same event or
revoke the petition in relevant part if activity by filing Form I–129, accom-
he or she finds that: panied by a statement explaining the
(1) The beneficiary is no longer em- reasons for the extension. The peti-
ployed by the petitioner in the capac- tioner must also request a petition ex-
ity specified in the petition; tension. The extension dates shall be
(2) The statement of facts contained the same for the petition and the bene-
in the petition were not true and cor- ficiary’s stay. The beneficiary must be
rect; physically present in the United States
(3) The petitioner violated the terms at the time the extension of stay is
or conditions of the approved petition; filed. Even though the requests to ex-
(4) The petitioner violated require- tend the petition and the alien’s stay
ments of section 101(a)(15)(P) of the Act are combined on the petition, the Di-
or paragraph (p) of this section; or rector shall make a separate deter-
(5) The approval of the petition vio- mination on each. If the alien leaves
lated paragraph (p) of this section or the United States for business or per-
involved gross error. sonal reasons while the extension re-
(B) Notice and decision. The notice of quests are pending, the petitioner may
intent to revoke shall contain a de- request the Director to cable notifica-
tailed statement of the grounds for the tion of approval of the petition exten-
revocation and the time period allowed sion to the consular office abroad
for the petitioner’s rebuttal. The peti- where the alien will apply for a visa.
tioner may submit evidence in rebuttal (ii) Extension periods—(A) P–1 indi-
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within 30 days of the date of the notice. vidual athlete. An extension of stay for
The Director shall consider all relevant a P–1 individual athlete and his or her
evidence presented in deciding whether essential support personnel may be au-
to revoke the petition. thorized for a period up to 5 years for a
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Department of Homeland Security § 214.2
workers in progress, but such strike or The copy of Form I–797 shall be re-
other labor dispute is not certified tained by the beneficiary and present
under paragraph (p)(16)(i) of this sec- during the validity of the petition
tion, the Commissioner shall not deny when reentering the United States to
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
resume the same employment with the International cultural exchange visitor
same petitioner. means an alien who has a residence in
(18) Return transportation requirement. a foreign country which he or she has
In the case of an alien who enters the no intention of abandoning, and who is
United States under section coming temporarily to the United
101(a)(15)(P) of the Act and whose em- States to take part in an international
ployment terminates for reasons other cultural exchange program approved by
than voluntary resignation, the em- the Attorney General.
ployer whose offer of employment Petitioner means the employer or its
formed the basis of suh nonimmigrant designated agent who has been em-
status and the petitioner are jointly ployed by the qualified employer on a
and severally liable for the reasonable permanent basis in an executive or
cost of return transporation of the managerial capacity. The designated
alien abroad. For the purposes of this agent must be a United States citizen,
paragraph, the term ‘‘abroad’’ means an alien lawfully admitted for perma-
the alien’s last place of residence prior nent residence, or an alien provided
to his or her entry into the United temporary residence status under sec-
States. tions 210 or 245A of the Act.
(q) Cultural visitors—(1)(i) Inter- Qualified employer means a United
national cultural exchange visitors pro- States or foreign firm, corporation,
gram. Paragraphs (q)(2) through (q)(11) non-profit organization, or other legal
of this section provide the rules gov- entity (including its U.S. branches,
erning nonimmigrant aliens who are subsidiaries, affiliates, and franchises)
visiting the United States temporarily which administers an international
in an international cultural exchange cultural exchange program designated
visitors program (Q–1). by the Attorney General in accordance
with the provisions of section
(ii) Irish peace process cultural and
101(a)(15)(Q)(i) of the Act.
training program. Paragraph (q)(15) of
(2) Admission of international cultural
this section provides the rules gov-
exchange visitor—(i) General. A non-
erning nonimmigrant aliens who are
immigrant alien may be authorized to
visiting the United States temporarily enter the United States as a partici-
under the Irish peace process cultural pant in an international cultural ex-
and training program (Q–2) and their change program approved by the Attor-
dependents (Q–3). ney General for the purpose of pro-
(iii) Definitions. As used in this sec- viding practical training, employment,
tion: and the sharing of the history, culture,
Country of nationality means the and traditions of the country of the
country of which the participant was a alien’s nationality. The period of ad-
national at the time of the petition mission is the duration of the approved
seeking international cultural ex- international cultural exchange pro-
change visitor status for him or her. gram or fifteen (15) months, whichever
Doing business means the regular, is shorter. A nonimmigrant alien ad-
systematic, and continuous provision mitted under this provision is classifi-
of goods and/or services (including lec- able as an international cultural ex-
tures, seminars and other types of cul- change visitor in Q–1 status.
tural programs) by a qualified em- (ii) Limitation on admission. Any alien
ployer which has employees, and does who has been admitted into the United
not include the mere presence of an States as an international cultural ex-
agent or office of the qualifying em- change visitor under section
ployer. 101(a)(15)(Q)(i) of the Act shall not be
Duration of program means the time readmittted in Q–1 status unless the
in which a qualified employer is con- alien has resided and been physically
ducting an approved international cul- present outside the United States for
tural exchange program in the manner the immediate prior year. Brief trips to
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as established by the employer’s peti- the United States for pleasure or busi-
tion for program approval, provided ness during the immediate prior year
that the period of time does not exceed do not break the continuity of the one-
15 months. year foreign residency.
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Department of Homeland Security § 214.2
(3) International cultural exchange pro- business setting to which the American
gram—(i) General. A United States em- public, or a segment of the public shar-
ployer shall petition the Attorney Gen- ing a common cultural interest, does
eral on Form I–129, Petition for a Non- not have direct access do not qualify.
immigrant Worker, for approval of an (B) Cultural component. The inter-
international cultural exchange pro- national cultural exchange program
gram which is designed to provide an must have a cultural component which
opportunity for the American public to is an essential and integral part of the
learn about foreign cultures. The international cultural exchange visi-
United States employer must simulta- tor’s employment or training. The cul-
neously petition on the same Form I– tural component must be designed, on
129 for the authorization for one or the whole, to exhibit or explain the at-
more individually identified non- titude, customs, history, heritage, phi-
immigrant aliens to be admitted in Q– losophy, or traditions of the inter-
1 status. These aliens are to be admit- national cultural exchange visitor’s
ted to engage in employment or train- country of nationality. A cultural com-
ing of which the essential element is ponent may include structured instruc-
the sharing with the American public, tional activities such as seminars,
or a segment of the public sharing a courses, lecture series, or language
common cultural interest, of the cul- camps.
ture of the alien’s country of nation- (C) Work component. The inter-
ality. The international cultural ex- national cultural exchange visitor’s
change visitor’s eligibility for admis- employment or training in the United
sion will be considered only if the States may not be independent of the
international cultural exchange pro- cultural component of the inter-
gram is approved. national cultural exchange program.
(ii) Program validity. Each petition for The work component must serve as the
an international cultural exchange pro- vehicle to achieve the objectives of the
gram will be approved for the duration cultural component. The sharing of the
of the program, which may not exceed culture of the international cultural
15 months, plus 30 days to allow time exchange visitor’s country of nation-
for the participants to make travel ar- ality must result from his or her em-
rangements. Subsequent to the ap- ployment or training with the qualified
proval of the initial petition, a new pe- employer in the United States.
tition must be filed each time the (iv) Requirements for international cul-
qualified employer wishes to bring in tural exchange visitors. To be eligible for
additional cultural visitors. A qualified international cultural exchange visitor
employer may replace or substitute a status, an alien must be a bona fide
participant named on a previously ap- nonimmigrant who:
proved petition for the remainder of (A) Is at least 18 years of age at the
the program in accordance with para- time the petition is filed;
graph (q)(6) of this section. The re- (B) Is qualified to perform the service
placement or substituting alien may be or labor or receive the type of training
admitted in Q–1 status until the expira- stated in the petition;
tion date of the approved petition. (C) Has the ability to communicate
(iii) Requirements for program ap- effectively about the cultural at-
proval. An international cultural ex- tributes of his or her country of na-
change program must meet all of the tionality to the American public; and
following requirements: (D) Has resided and been physically
(A) Accessibility to the public. The present outside of the United States for
international cultural exchange pro- the immediate prior year, if he or she
gram must take place in a school, mu- was previously admitted as an inter-
seum, business or other establishment national cultural exchange visitor.
where the American public, or a seg- (4) Supporting documentation—(i) Doc-
ment of the public sharing a common umentation by the employer. To establish
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
(A) Maintains an established inter- cable fee, along with appropriate docu-
national cultural exchange program in mentation. A new petition on Form I–
accordance with the requirements set 129, with the applicable fee, must be
forth in paragraph (q)(3) of this section; filed with the appropriate service cen-
(B) Has designated a qualified em- ter each time a qualified employer
ployee as a representative who will be wants to bring in additional inter-
responsible for administering the inter- national cultural exchange visitors.
national cultural exchange program Each person named on an approved pe-
and who will serve as liaison with the tition will be admitted only for the du-
Immigration and Naturalization Serv- ration of the approved program. Re-
ice; placement or substitution may be
(C) Is actively doing business in the made for any person named on an ap-
United States; proved petition as provided in para-
(D) Will offer the alien(s) wages and graph (q)(6) of this section, but only for
working conditions comparable to the remainder of the approved pro-
those accorded local domestic workers gram.
similarly employed; and (ii) Petition for multiple participants.
(E) Has the financial ability to remu- The petitioner may include more than
nerate the participant(s). one participant on the petition. The pe-
(ii) Certification by petitioner. (A) The titioner shall include the name, date of
petitioner must give the date of birth, birth, nationality, and other identi-
country of nationality, level of edu- fying information required on the peti-
cation, position title, and a brief job tion for each participant. The peti-
description for each international cul- tioner must also indicate the United
tural exchange visitor included in the States consulate at which each partici-
petition. The petitioner must verify pant will apply for a Q–1 visa. For par-
and certify that the prospective par- ticipants who are visa-exempt under 8
ticipants are qualified to perform the CFR 212.1(a), the petitioner must indi-
service or labor, or receive the type of cate the port of entry at which each
training, described in the petition. participant will apply for admission to
(B) The petitioner must report the the United States.
international cultural exchange visi- (iii) Service, labor, or training in more
tors’ wages and certify that such cul- than one location. A petition which re-
tural exchange visitors are offered quires the international cultural ex-
wages and working conditions com- change visitor to engage in employ-
parable to those accorded to local do- ment or training (with the same em-
mestic workers similarly employed. ployer) in more than one location must
(iii) Supporting documentation as include an itinerary with the dates and
prescribed in paragraphs (q)(4)(i) and locations of the services, labor, or
(q)(4)(ii) of this section must accom- training.
pany a petition filed on Form I–129 in (iv) Services, labor, or training for more
all cases except where the employer than one employer. If the international
files multiple petitions in the same cal- cultural exchange visitor will perform
endar year. When petitioning to repeat services or labor for, or receive train-
a previously approved international ing from, more than one employer,
cultural exchange program, a copy of each employer must file a separate pe-
the initial program approval notice tition. The international cultural ex-
may be submitted in lieu of the docu- change visitor may work part-time for
mentation required under paragraph multiple employers provided that each
(q)(4)(i) of this section. The Service employer has an approved petition for
will request additional documentation the alien.
only when clarification is needed. (v) Change of employers. If an inter-
(5) Filing of petitions for international national cultural exchange visitor is in
cultural exchange visitor program—(i) the United States under section
General. A United States employer 101(a)(15)(Q)(i) of the Act and decides to
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Department of Homeland Security § 214.2
United States remains limited to fif- of the Act is valid for the length of the
teen (15) months. approved program or fifteen (15)
(6) Substitution or replacements of par- months, whichever is shorter.
ticipants in an international cultural ex- (iv) A petition shall not be approved
change visitor program. The petitioner for an alien who has an aggregate of
may substitute for or replace a person fifteen (15) months in the United States
named on a previously approved peti- under section 101(a)(15)(Q)(i) of the Act,
tion for the remainder of the program unless the alien has resided and been
without filing a new Form I–129. The physically present outside the United
substituting international cultural ex- States for the immediate prior year.
change visitor must meet the qualifica- (8) Denial of the petition—(i) Notice of
tion requirements prescribed in para- denial. The petitioner shall be notified
graph (q)(3)(iv) of this section. To re- of the denial of a petition, the reasons
quest substitution or replacement, the for the denial, and the right to appeal
petitioner shall, by letter, notify the the denial under part 103 of this chap-
consular office at which the alien will ter.
apply for a visa or, in the case of visa- (ii) Multiple participants. A petition
exempt aliens, the Service office at the for multiple international cultural ex-
port of entry where the alien will apply change visitors may be denied in whole
for admission. A copy of the petition’s or in part.
approval notice must be included with (9) Revocation of approval of petition—
the letter. The petitioner must state (i) General. The petitioner shall imme-
the date of birth, country of nation- diately notify the appropriate Service
ality, level of education, and position center of any changes in the employ-
title of each prospective international ment of a participant which would af-
cultural exchange visitor and must cer- fect eligibility under section
tify that each is qualified to perform 101(a)(15)(Q)(i) of the Act.
the service or labor or receive the type (ii) Automatic revocation. The ap-
of training described in the approved proval of any petition is automatically
petition. The petitioner must also indi- revoked if the qualifying employer
cate each international cultural ex- goes out of business, files a written
change visitor’s wages and certify that withdrawal of the petition, or termi-
the international cultural exchange nates the approved international cul-
visitor is offered wages and working tural exchange program prior to its ex-
conditions comparable to those ac- piration date. No further action or no-
corded to local domestic workers in ac- tice by the Service is necessary in the
cordance with paragraph (q)(11)(ii) of case of automatic revocation. In any
this section. other case, the Service shall follow the
(7) Approval of petition for inter- revocation procedures in paragraphs
national cultural exchange visitor pro- (q)(9) (iii) through (v) of this section.
gram. (i) The director shall consider all (iii) Revocation on notice. The director
the evidence submitted and request shall send the petitioner a notice of in-
other evidence as he or she may deem tent to revoke the petition in whole or
necessary. in part if he or she finds that:
(ii) The director shall notify the peti- (A) The international cultural ex-
tioner and the appropriate United change visitor is no longer employed
States consulate(s) of the approval of a by the petitioner in the capacity speci-
petition. For participants who are visa- fied in the petition, or if the inter-
exempt under 8 CFR 212.1(a), the direc- national cultural exchange visitor is no
tor shall give notice of the approval to longer receiving training as specified
the director of the port of entry at in the petition;
which each such participant will apply (B) The statement of facts contained
for admission to the United States. The in the petition was not true and cor-
notice of approval shall include the rect;
name of the international cultural ex- (C) The petitioner violated the terms
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
(iv) Notice and decision. The notice of must certify on the petition that such
intent to revoke shall contain a de- conditions are met as in accordance
tailed statement of the grounds for the with paragraph (q)(4)(iii)(B) of this sec-
revocation and the period of time al- tion.
lowed for the petitioner’s rebuttal. The (12)–(14) [Reserved]
petitioner may submit evidence in re- (15) Irish peace process cultural and
buttal within 30 days of receipt of the training program visitors (Q–2) and their
notice. The director shall consider all dependents (Q–3)—(i) General. An Irish
relevant evidence presented in deciding Peace Process Cultural and Training
whether to revoke the petition in Program (IPPCTP) visitor is a non-
whole or in part. If the petition is re- immigrant alien coming to the United
voked in part, the remainder of the pe- States temporarily to gain or upgrade
tition shall remain approved and a re- work skills through training and tem-
vised approval notice shall be sent to porary employment and to experience
the petitioner with the revocation no- living in a diverse and peaceful envi-
tice. ronment.
(v) Appeal of a revocation of a petition. (ii) What are the requirements for par-
Revocation with notice of a petition in ticipation? (A) The principal alien must
whole or in part may be appealed to have been physically resident in either
the Associate Commissioner for Exami- Northern Ireland or the counties of
nations under part 103 of this chapter. Louth, Monaghan, Cavan, Leitrim,
Automatic revocation may not be ap- Sligo, and Donegal in the Republic of
pealed. Ireland, for at least 3 months imme-
(10) Extension of stay. An alien’s total diately preceding application to the
period of stay in the United States program and must show that he or she
under section 101(a)(15)(Q)(i) of the Act has no intention of abandoning this
cannot exceed fifteen (15) months. The residence.
authorized stay of an international cul- (B) The principal alien must be be-
tural exchange visitor may be extended tween the ages of 18 and 35.
within the 15-month limit if he or she (C) The principal alien must:
is the beneficiary of a new petition (1) Be unemployed for at least 3
filed in accordance with paragraph months, or have completed or cur-
(q)(3) of this section. The new petition, rently be enrolled in a training/em-
if filed by the same employer, should ployment program sponsored by the
include a copy of the previous peti- Training and Employment Agency of
tion’s approval notice and a letter from Northern Ireland (T&EA) or by the
the petitioner indicating any terms Training and Employment Authority
and conditions of the previous petition of Ireland (FAS), or by other such pub-
that have changed. licly funded programs, or have been
(11) Employment provisions—(i) Gen- made redundant from employment (i.e.,
eral. An alien classified under section lost their job), or have received a no-
101(a)(15)(Q)(i) of the Act may be em- tice of redundancy (termination of em-
ployed only by the qualified employer ployment); or
through which the alien attained Q–1 (2) Be a currently employed person
nonimmigrant status. An alien in this whose employer has nominated him/her
class is not required to apply for an to participate in this program for addi-
employment authorization document. tional training or job experience that
Employment outside the specific pro- is to benefit both the participant and
gram violates the terms of the alien’s his/her employer upon returning home.
Q–1 nonimmigrant status within the (D) The principal alien must intend
meaning of section 237(a)(1)(C)(i) of the to come to the United States tempo-
Act. rarily, for a period not to exceed 36
(ii) Wages and working conditions. The months, in order to obtain training,
wages and working conditions of an employment, and the experience of co-
international cultural exchange visitor existence and conflict resolution in a
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Department of Homeland Security § 214.2
children of principal aliens, may be ad- Q–3 visa and a Certification Letter
mitted annually for 3 consecutive pro- issued by the DOS’ Program Adminis-
gram years, beginning with FY 2000 trator, prior to any subsequent admis-
(October 1, 1999, through September 30, sion to the United States.
2000). (vi) How long may a Q–2 or Q–3 visa
(B) For each alien admitted under holder remain in the United States under
section 101(a)(15)(Q)(ii) of the Act, the this program? (A) The principal alien
number of aliens admitted under sec- and any accompanying, or following-
tion 101(a)(15)(H)(ii)(b) of the Act is re- to-join, spouse or minor children of the
duced by one for that fiscal year or the principal alien are admitted for the du-
subsequent fiscal year. ration of the principal alien’s planned
(C) This program expires on October cultural and training program or 36
1, 2005. months, whichever is shorter.
(iv) What are the requirements for ini- (B) Those participants and eligible
tial admission to the United States? (A) dependents admitted for specific peri-
Principal aliens, their spouses, and ods less than 36 months may extend
minor children of principal aliens must their period of stay through the Serv-
present valid passports and either a Q– ice so that their total period of stay is
2 or Q–3 visa at the time of inspection. 36 months, provided the extension of
(B) Initial admission for those prin- stay is related to employment or train-
cipal and dependent aliens in this pro- ing certified by the DOS’ Program Ad-
gram who received their visas at either ministrator.
the U.S. Embassy in Dublin or the U.S.
(vii) How is employment authorized
Consulate in Belfast must take place at
under this program? (A) Following en-
the Service’s Pre-Flight Inspection fa-
dorsement of his/her Form I–94, Ar-
cilities at either the Shannon or Dub-
rival-Departure Record, by a Service
lin airports in the Republic of Ireland.
officer, any principal alien admitted
(C) The principal alien will be re-
under section 101(a)(15)(Q)(ii) of the Act
quired to present a Certification Letter
is permitted to work for an employer
issued by the Department of State’s
or employers listed on the Certifi-
(DOS’) Program Administrator docu-
menting him or her as an individual se- cation Letter issued by the DOS’ Pro-
lected for participation in the IPPCTP. gram Administrator.
Eligible dependents may be requested (B) The accompanying spouse and
to present written documentation cer- minor children of the principal alien
tifying their relationship to the prin- may not accept employment, unless
cipal. the spouse has also been designated as
(v) May the principal alien and depend- a principal alien (Q–2) in this program
ents make brief visits outside the United and has been issued a Certification Let-
States? (A) The principal alien, spouse, ter by the DOS’ Program Adminis-
and any minor children of the principal trator.
alien may make brief departures, for (viii) May the principal alien change
periods not to exceed 3 consecutive employers? Principal aliens wishing to
months, and may be readmitted with- change employers must request such a
out having to obtain a new visa. How- change through the DOS’ Program Ad-
ever, such periods of time spent outside ministrator to the Service. Following
the United States will not be added to review and consideration of the request
the end of stay, which is not to exceed by the Service, the Service will inform
a total of 3 years from the initial date the participant of the decision. The
of entry of the principal alien. Service will grant such approval of em-
(B) Those participants or dependents ployers only if the new employer has
who remain outside the United States been approved by DOS in accordance
in excess of 3 consecutive months will with its regulations and such approval
not be readmitted by the Service on is communicated to the Service
their initial Q–2 or Q–3 visa. Instead, through the DOS’ Program Adminis-
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any such individual and eligible de- trator. If approved, the participant’s
pendents wishing to rejoin the program Form I–94 will be annotated to show
will be required to reapply to the pro- the new employer. If denied, there is no
gram and be in receipt of a new Q–2 or appeal under this section.
375
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
(ix) May the principal alien hold other tition plus all additional required doc-
jobs during his/her U.S. visit? No; any umentation as prescribed by USCIS
principal alien classified as an Irish regulations.
peace process cultural and training (3) Definitions. As used in this sec-
program visitor may only engage in tion, the term:
employment that has been certified by Bona fide non-profit religious organiza-
the DOS’ Program Administrator and tion in the United States means a reli-
approved by the DOS or the Service as gious organization exempt from tax-
endorsed on the Form I–94. An alien ation as described in section 501(c)(3) of
who engages in unauthorized employ- the Internal Revenue Code of 1986, sub-
ment violates the terms of the Q-2 visa sequent amendment or equivalent sec-
and will be considered to have violated tions of prior enactments of the Inter-
section 237(a)(1)(C)(i) of the Act. nal Revenue Code, and possessing a
(x) What happens if a principal alien currently valid determination letter
loses his/her job? A principal alien, who from the Internal Revenue Service
loses his or her job, will have 30 days (IRS) confirming such exemption.
from his/her last date of employment Bona fide organization which is affili-
to locate appropriate employment or ated with the religious denomination
training, to have the job offer certified means an organization which is closely
by the DOS’ Program Administrator in associated with the religious denomi-
accordance with the DOS’ regulations nation and which is exempt from tax-
and to have it approved by the Service. ation as described in section 501(c)(3) of
If appropriate employment or training the Internal Revenue Code of 1986, or
cannot be found within this 30-day-pe- subsequent amendment or equivalent
riod, the principal alien and any ac- sections of prior enactments of the In-
company family members will be re- ternal Revenue Code, and possessing a
quired to depart the United States. currently valid determination letter
(r) Religious workers. This paragraph from the IRS confirming such exemp-
governs classification of an alien as a tion.
nonimmigrant religious worker (R–1).
Denominational membership means
(1) To be approved for temporary ad-
membership during at least the two-
mission to the United States, or exten-
year period immediately preceding the
sion and maintenance of status, for the
filing date of the petition, in the same
purpose of conducting the activities of
type of religious denomination as the
a religious worker for a period not to
United States religious organization
exceed five years, an alien must:
where the alien will work.
(i) Be a member of a religious de-
Minister means an individual who:
nomination having a bona fide non-
profit religious organization in the (A) Is fully authorized by a religious
United States for at least two years denomination, and fully trained ac-
immediately preceding the time of ap- cording to the denomination’s stand-
plication for admission; ards, to conduct religious worship and
(ii) Be coming to the United States perform other duties usually performed
to work at least in a part time position by authorized members of the clergy of
(average of at least 20 hours per week); that denomination;
(iii) Be coming solely as a minister (B) Is not a lay preacher or a person
or to perform a religious vocation or not authorized to perform duties usu-
occupation as defined in paragraph ally performed by clergy;
(r)(3) of this section (in either a profes- (C) Performs activities with a ration-
sional or nonprofessional capacity); al relationship to the religious calling
(iv) Be coming to or remaining in the of the minister; and
United States at the request of the pe- (D) Works solely as a minister in the
titioner to work for the petitioner; and United States which may include ad-
(v) Not work in the United States in ministrative duties incidental to the
any other capacity, except as provided duties of a minister.
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in paragraph (r)(2) of this section. Petition means USCIS Form I–129, Pe-
(2) An alien may work for more than tition for a Nonimmigrant Worker, a
one qualifying employer as long as successor form, or any other form as
each qualifying employer submits a pe- may be prescribed by USCIS, along
376
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Department of Homeland Security § 214.2
distinguished from the secular mem- riod of time spent in R–1 status does
bers of the religion. Examples of voca- not exceed a maximum of five years. A
tions include nuns, monks, and reli- Petition for a Nonimmigrant Worker
gious brothers and sisters. to request an extension of R–1 status
377
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
must be filed by the employer with a (iii) The number of members of the
supplement prescribed by USCIS con- prospective employer’s organization;
taining attestations required by this (iv) The number of employees who
section, the fee specified in 8 CFR work at the same location where the
103.7(b)(1), and the supporting evidence, beneficiary will be employed and a
in accordance with the applicable form summary of the type of responsibilities
instructions. of those employees. USCIS may request
(6) Limitation on total stay. An alien a list of all employees, their titles, and
who has spent five years in the United a brief description of their duties at its
States in R–1 status may not be re- discretion;
admitted to or receive an extension of (v) The number of aliens holding spe-
stay in the United States under the R cial immigrant or nonimmigrant reli-
visa classification unless the alien has gious worker status currently em-
resided abroad and has been physically ployed or employed within the past five
present outside the United States for years by the prospective employer’s or-
the immediate prior year. The limita- ganization;
tions in this paragraph shall not apply (vi) The number of special immigrant
to R–1 aliens who did not reside contin- religious worker and nonimmigrant re-
ually in the United States and whose ligious worker petitions and applica-
employment in the United States was tions filed by or on behalf of any aliens
seasonal or intermittent or was for an for employment by the prospective em-
aggregate of six months or less per ployer in the past five years;
year. In addition, the limitations shall (vii) The title of the position offered
not apply to aliens who reside abroad to the alien and a detailed description
and regularly commute to the United of the alien’s proposed daily duties;
States to engage in part-time employ- (viii) Whether the alien will receive
ment. To qualify for this exception, the salaried or non-salaried compensation
petitioner and the alien must provide and the details of such compensation;
clear and convincing proof that the (ix) That the alien will be employed
alien qualifies for such an exception. at least 20 hours per week;
Such proof shall consist of evidence (x) The specific location(s) of the pro-
such as arrival and departure records, posed employment; and
transcripts of processed income tax re- (xi) That the alien will not be en-
turns, and records of employment gaged in secular employment.
(9) Evidence relating to the petitioning
abroad.
organization. A petition shall include
(7) Jurisdiction and procedures for ob-
the following initial evidence relating
taining R–1 status. An employer in the
to the petitioning organization:
United States seeking to employ a reli- (i) A currently valid determination
gious worker, by initial petition or by letter from the IRS showing that the
change of status, shall file a petition in organization is a tax-exempt organiza-
accordance with the applicable form tion; or
instructions. (ii) For a religious organization that
(8) Attestation. An authorized official is recognized as tax-exempt under a
of the prospective employer of an R–1 group tax-exemption, a currently valid
alien must complete, sign and date an determination letter from the IRS es-
attestation prescribed by USCIS and tablishing that the group is tax-ex-
submit it along with the petition. The empt; or
prospective employer must specifically (iii) For a bona fide organization that
attest to all of the following: is affiliated with the religious denomi-
(i) That the prospective employer is a nation, if the organization was granted
bona fide non-profit religious organiza- tax-exempt status under section
tion or a bona fide organization which 501(c)(3), or subsequent amendment or
is affiliated with the religious denomi- equivalent sections of prior enact-
nation and is exempt from taxation; ments, of the Internal Revenue Code,
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(ii) That the alien has been a member as something other than a religious or-
of the denomination for at least two ganization:
years and that the alien is otherwise (A) A currently valid determination
qualified for the position offered; letter from the IRS establishing that
378
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Department of Homeland Security § 214.2
379
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
(4) The religious duties and respon- ment, supporting documents, and fee
sibilities associated with the tradition- prescribed in 8 CFR 103.7(b)(1).
ally uncompensated missionary work; (14) Employer obligations. When an R–
and 1 alien is working less than the re-
(5) Copies of the alien’s bank records, quired number of hours or has been re-
budgets documenting the sources of leased from or has otherwise termi-
self-support (including personal or fam- nated employment before the expira-
ily savings, room and board with host tion of a period of authorized R–1 stay,
families in the United States, dona- the R–1 alien’s approved employer
tions from the denomination’s church- must notify DHS within 14 days using
es), or other verifiable evidence accept- procedures set forth in the instructions
able to USCIS. to the petition or otherwise prescribed
(12) Evidence of previous R–1 employ- by USCIS on the USCIS Internet Web
ment. Any request for an extension of site at www.uscis.gov.
stay as an R–1 must include initial evi- (15) Nonimmigrant intent. An alien
dence of the previous R–1 employment. classified under section 101(a)(15)(R) of
If the beneficiary: the Act shall maintain an intention to
(i) Received salaried compensation, depart the United States upon the expi-
the petitioner must submit IRS docu- ration or termination of R–1 or R–2 sta-
mentation that the alien received a tus. However, a nonimmigrant peti-
salary, such as an IRS Form W–2 or tion, application for initial admission,
certified copies of filed income tax re- change of status, or extension of stay
turns, reflecting such work and com- in R classification may not be denied
pensation for the preceding two years. solely on the basis of a filed or an ap-
(ii) Received non-salaried compensa- proved request for permanent labor
tion, the petitioner must submit IRS certification or a filed or approved im-
documentation of the non-salaried migrant visa preference petition.
compensation if available. If IRS docu- (16) Inspections, evaluations,
mentation is unavailable, an expla- verifications, and compliance reviews.
nation for the absence of IRS docu- The supporting evidence submitted
mentation must be provided, and the may be verified by USCIS through any
petitioner must provide verifiable evi- means determined appropriate by
dence of all financial support, includ- USCIS, up to and including an on-site
ing stipends, room and board, or other inspection of the petitioning organiza-
support for the beneficiary by submit- tion. The inspection may include a
ting a description of the location where tour of the organization’s facilities, an
the beneficiary lived, a lease to estab- interview with the organization’s offi-
lish where the beneficiary lived, or cials, a review of selected organization
other evidence acceptable to USCIS. records relating to compliance with
(iii) Received no salary but provided immigration laws and regulations, and
for his or her own support, and that of an interview with any other individ-
any dependents, the petitioner must uals or review of any other records
show how support was maintained by that the USCIS considers pertinent to
submitting with the petition verifiable the integrity of the organization. An
documents such as audited financial inspection may include the organiza-
statements, financial institution tion headquarters, or satellite loca-
records, brokerage account statements, tions, or the work locations planned
trust documents signed by an attorney, for the applicable employee. If USCIS
or other evidence acceptable to USCIS. decides to conduct a pre-approval in-
(13) Change or addition of employers. spection, satisfactory completion of
An R–1 alien may not be compensated such inspection will be a condition for
for work for any religious organization approval of any petition.
other than the one for which a petition (17) Denial and appeal of petition.
has been approved or the alien will be USCIS will provide written notifica-
out of status. A different or additional tion of the reasons for the denial under
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employer seeking to employ the alien 8 CFR 103.3(a)(1). The petitioner may
may obtain prior approval of such em- appeal the denial under 8 CFR 103.3.
ployment through the filing of a sepa- (18) Revocation of approved petitions—
rate petition and appropriate supple- (i) Director discretion. The director may
380
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Department of Homeland Security § 214.2
revoke a petition at any time, even United States in accordance with the
after the expiration of the petition. NATO Status of Forces Agreement or
(ii) Automatic revocation. The ap- the Protocol on the Status of Inter-
proval of any petition is automatically national Military Headquarters set up
revoked if the petitioner ceases to pursuant to the North Atlantic Treaty
exist or files a written withdrawal of (Paris Protocol). The following specific
the petition. classifications shall be assigned to such
(iii) Revocation on notice—(A) Grounds NATO nonimmigrants:
for revocation. The director shall send (1) NATO–1—A principal permanent
to the petitioner a notice of intent to representative of a Member State to
revoke the petition in relevant part if NATO (including any of its subsidiary
he or she finds that: bodies) resident in the United States
(1) The beneficiary is no longer em- and resident members of permanent
ployed by the petitioner in the capac- representative’s official staff; Sec-
ity specified in the petition; retary General, Deputy Secretary Gen-
(2) The statement of facts contained eral, Assistant Secretaries General and
in the petition was not true and cor- Executive Secretary of NATO; other
rect; permanent NATO officials of similar
(3) The petitioner violated terms and rank; and the members of the imme-
conditions of the approved petition; diate family of such persons.
(4) The petitioner violated require- (2) NATO–2—Other representatives of
ments of section 101(a)(15)(R) of the Act Member States to NATO (including any
or paragraph (r) of this section; or of its subsidiary bodies) including rep-
(5) The approval of the petition vio- resentatives, advisers and technical ex-
lated paragraph (r) of this section or perts of delegations, and the members
involved gross error. of the immediate family of such per-
(B) Notice and decision. The notice of sons; dependents of members of a force
intent to revoke shall contain a de- entering in accordance with the provi-
tailed statement of the grounds for the sions of the NATO Status of Forces
revocation and the time period allowed Agreement or in accordance with the
for the petitioner’s rebuttal. The peti- provisions of the Paris Protocol; mem-
tioner may submit evidence in rebuttal bers of such a force, if issued visas.
within 30 days of receipt of the notice. (3) NATO–3—Official clerical staff ac-
The director shall consider all relevant companying a representative of a Mem-
evidence presented in deciding whether ber State to NATO (including any of its
to revoke the petition. subsidiary bodies) and the members of
(19) Appeal of a revocation of a petition. the immediate family of such persons.
A petition that has been revoked on (4) NATO–4—Officials of NATO (other
notice in whole or in part may be ap- than those classifiable under NATO–1)
pealed under 8 CFR 103.3. Automatic and the members of their immediate
revocations may not be appealed. family
(s) NATO nonimmigrant aliens—(1) (5) NATO–5—Experts, other than
General—(i) Background. The North At- NATO officials classifiable under
lantic Treaty Organization (NATO) is NATO–4, employed on missions on be-
constituted of nations signatory to the half of NATO and their dependents.
North Atlantic Treaty. The Agreement (B) Nonimmigrant aliens classified as
Between the Parties to the North At- NATO–6 are civilians, and members of
lantic Treaty Regarding the Status of their immediate families, who may
Their Forces, signed in London, June enter the United States as employees
1951 (NATO Status of Forces Agree- of a force entering in accordance with
ment), is the agreement between those the NATO Status of Forces Agreement,
nations that defines the terms of the or as members of a civilian component
status of their armed forces while serv- attached to or employed by NATO
ing abroad. Headquarters, Supreme Allied Com-
(A) Nonimmigrant aliens classified as mander, Atlantic (SACLANT), set up
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
aliens classified as NATO–1, NATO–2, age for employment of such sons and
NATO–3, NATO–4, NATO–5, and NATO– daughters;
6, who are authorized to work only for (v) Unmarried sons or daughters who
the NATO–1 through NATO–6 non- are physically or mentally disabled to
immigrant from whom they derive sta- the extent that they cannot adequately
tus, and members of their immediate care for themselves or cannot estab-
families. lish, maintain, or re-establish their
(ii) Admission and extension of stay. own households. The Service may re-
NATO–1, NATO–2, NATO–3, NATO–4, quire medical certification(s) as it
and NATO–5 aliens are normally ex- deems necessary to document such
empt from inspection under 8 CFR mental or physical disability.
235.1(c). NATO–6 aliens may be author- (3) Dependent employment requirements
ized admission for duration of status. based on formal bilateral employment
NATO–7 aliens may be admitted for not agreements and informal de facto recip-
more than 3 years and may be granted rocal arrangements—(i) Formal bilateral
extensions of temporary stay in incre- employment agreements. The Depart-
ments of not more than 2 years. In ad- ment of State’s Family Liaison office
dition, an application for extension of (FLO) shall maintain all listing of
temporary stay for a NATO–7 alien NATO Member States which have en-
must be accompanied by a statement tered into formal bilateral employment
signed by the employing official stat- agreements that include NATO per-
ing that he or she intends to continue sonnel. A dependent of a NATO–1,
to employ the NATO–7 applicant, de- NATO–2, NATO–3, NATO–4, NATO–5, or
scribing the work the applicant will NATO–6 principal alien assigned to of-
perform, and acknowledging that this ficial duty in the United States may
is, and will be, the sole employment of accept, or continue in, unrestricted
the NATO–7 applicant. employment based on such formal bi-
lateral agreement upon favorable rec-
(2) Definition of a dependent of a
ommendation by SACLANT, pursuant
NATO–1, NATO–2, NATO–3, NATO–4,
to paragraph (s)(5) of this section, and
NATO–5, or NATO–6. For purposes of
issuance of employment authorization
employment in the United States, the
documentation by the Service in ac-
term dependent of a NATO–1, NATO–2,
cordance with 8 CFR part 274a. The ap-
NATO–3, NATO–4, NATO–5, or NATO–6
plication procedures are set forth in
principal alien, as used in this section,
paragraph (s)(5) of this section.
means any of the following immediate
(ii) Informal de facto reciprocal ar-
members of the family habitually re-
rangements. For purposes of this sec-
siding in the same household as the
tion, an informal de facto reciprocal
NATO–1, NATO–2, NATO–3, NATO–4, arrangement exists when the Office of
NATO–5, or NATO–6 principal alien as- the Secretary of Defense, Foreign Mili-
signed to official duty in the United tary Rights Affairs (OSD/FMRA), cer-
States: tifies, with State Department concur-
(i) Spouse; rence, that a NATO Member State al-
(ii) Unmarried children under the age lows appropriate employment in the
of 21; local economy for dependents of mem-
(iii) Unmarried sons or daughters bers of the force and members of the ci-
under the age of 23 who are in full-time vilian component of the United States
attendance as students at post-sec- assigned to duty in the NATO Member
ondary educational institutions; State. OSD/FMRA and State’s FLO
(iv) Unmarried sons or daughters shall maintain a listing of countries
under the age of 25 who are in full-time with which such reciprocity exists. De-
attendance as students at post-sec- pendents of a NATO–1, NATO–2, NATO–
ondary educational institutions if a 3, NATO–4, NATO–5, or NATO–6 prin-
formal bilateral employment agree- cipal alien assigned to official duty in
ment permitting their employment in the United States may be authorized to
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the United States was signed prior to accept, or continue in, employment
November 21, 1988, and such bilateral based upon informal de facto arrange-
employment agreements do not specify ments upon favorable recommendation
under the age of 23 as the maximum by SACLANT, pursuant to paragraph
382
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Department of Homeland Security § 214.2
383
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
384
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Department of Homeland Security § 214.2
or parole, adjust status to that of law- tionary waiver authority by the Attor-
ful permanent resident, or otherwise ney General on the alien’s behalf. The
attempt to remain beyond a 3-year pe- attachments submitted with a request
riod other than by the means author- for S nonimmigrant classification may
385
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
386
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Department of Homeland Security § 214.2
worthwhileness to law enforcement. (C) Abides by the law and all speci-
The Commissioner shall make the final fied terms, limitations, or restrictions
decision to approve or deny a request on the visa, Form I–854, or any waivers
for S nonimmigrant classification cer- pursuant to classification; and
tified by the Assistant Attorney Gen- (D) Cooperates with the responsible
eral, Criminal Division. LEA in accordance with the terms of
(ii) Decision to approve application. his or her classification and any re-
Upon approval of the application on strictions on Form I–854;
Form I–854, the Commissioner shall no- (ii) Provide the Assistant Attorney
tify the Assistant Attorney General, General, Criminal Division, with the
Criminal Division, the Secretary of name of the control agent on an ongo-
State, and Service officers as appro- ing basis and provide a quarterly re-
priate. Admission shall be authorized port indicating the whereabouts, ac-
for a period not to exceed 3 years. tivities, and any other control informa-
(iii) Decision to deny application. In tion required on Form I–854 or by the
the event the Commissioner decides to Assistant Attorney General;
deny an application for S non- (iii) Report immediately to the Serv-
immigrant classification on Form I– ice any failure on the alien’s part to:
854, the Assistant Attorney General, (A) Report quarterly;
Criminal Division, and the relevant (B) Cooperate with the LEA;
LEA shall be notified in writing to that (C) Comply with the terms and condi-
effect. The Assistant Attorney General, tions of the specific S nonimmigrant
Criminal Division, shall concur in or classification; or
object to that decision. Unless the As- (D) Refrain from criminal activity
sistant Attorney General, Criminal Di- that may render the alien deportable,
vision, objects within 7 days, he or she which information shall also be for-
shall be deemed to have concurred in warded to the Assistant Attorney Gen-
eral, Criminal Division; and
the decision. In the event of an objec-
(iv) Report annually to the Assistant
tion by the Assistant Attorney Gen-
Attorney General, Criminal Division,
eral, Criminal Division, the matter will
on whether the alien’s S nonimmigrant
be expeditiously referred to the Deputy
classification and cooperation resulted
Attorney General for a final resolution.
in either:
In no circumstances shall the alien or
(A) A successful criminal prosecution
the relevant LEA have a right of ap-
or investigation or the failure to
peal from any decision to deny.
produce a successful resolution of the
(6) Submission of requests for S non- matter; or
immigrant visa classification to Secretary (B) The prevention or frustration of
of State. No request for S non- terrorist acts or the failure to prevent
immigrant visa classification may be such acts.
presented to the Secretary of State un- (v) Assist the alien in his or her ap-
less it is approved and forwarded by the plication to the Service for employ-
Commissioner. ment authorization.
(7) Conditions of status. An alien wit- (8) Annual report. The Assistant At-
ness or informant is responsible for torney General, Criminal Division, in
certifying and fulfilling the terms and consultation with the Commissioner,
conditions specified on Form I–854 as a shall compile the statutorily mandated
condition of status. The LEA that as- annual report to the Committee on the
sumes responsibility for the S non- Judiciary of the House of Representa-
immigrant must: tives and the Committee on the Judici-
(i) Ensure that the alien: ary of the Senate.
(A) Reports quarterly to the LEA on (9) Admission. The responsible LEA
his or her whereabouts and activities, will coordinate the admission of an
and as otherwise specified on Form I– alien in S nonimmigrant classification
854 or pursuant to the terms of his or with the Commissioner as to the date,
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
may apply for employment authoriza- (v) Certain spouses and children of
tion by filing Form I–765, Application LPRs. Section 214.15 of this chapter
for Employment Authorization, with provides the procedures and require-
fee, in accordance with the instruc- ments pertaining to V nonimmigrant
tions on, or attached to, that form pur- status.
suant to § 274a.12(c)(21) of this chapter. (w) CNMI-Only Transitional Worker
(11) Failure to maintain status. An (CW–1)
alien classified under section (1) Definitions. The following defini-
101(a)(15)(S) of the Act shall abide by tions apply to petitions for CW status
all the terms and conditions of his or for employment in the Commonwealth
her S nonimmigrant classification im- of the Northern Mariana Islands (the
posed by the Attorney General. If the CNMI or the Commonwealth) filed
terms and conditions of S non- under this section:
immigrant classification will not be or (i) Doing business means the regular,
have not been met, or have been vio- systematic, and continuous provision
lated, the alien is convicted of any of goods or services by an employer as
criminal offense punishable by a term defined in this paragraph and does not
of imprisonment of 1 year or more, is include the mere presence of an agent
otherwise rendered deportable, or it is or office of the employer in the CNMI.
otherwise appropriate or in the public (ii) Employer means a person, firm,
interest to do so, the Commissioner corporation, contractor, or other asso-
shall proceed to deport an alien pursu- ciation, or organization which:
ant to the terms of 8 CFR 242.26. In the (A) Engages a person to work within
event the Commissioner decides to de- the CNMI; and
port an alien witness or informant in S (B) Has or will have an employer-em-
nonimmigrant classification, the As- ployee relationship with the CW–1 non-
sistant Attorney General, Criminal Di- immigrant being petitioned for.
vision, and the relevant LEA shall be (iii) Employer-employee relationship
notified in writing to that effect. The means that the employer may hire,
pay, fire, supervise, or otherwise con-
Assistant Attorney General, Criminal
trol the work of the employee.
Division, shall concur in or object to
(iv) Lawfully present in the CNMI
that decision. Unless the Assistant At-
means that the alien has lawfully been
torney General, Criminal Division, ob-
admitted to the CNMI under the immi-
jects within 7 days, he or she shall be
gration laws of the Commonwealth in a
deemed to have concurred in the deci-
category other than short term visitor
sion. In the event of an objection by
for pleasure or business (240(c), 703(A),
the Assistant Attorney General, Crimi-
703(B), or 704(B) under CNMI classifica-
nal Division, the matter will be expedi-
tions). With respect to any application
tiously referred to the Deputy Attor-
for transitional worker status filed or
ney General for a final resolution. In adjudicated after the transition pro-
no circumstances shall the alien or the gram effective date, lawfully present in
relevant LEA have a right of appeal the CNMI means that the alien:
from any decision to deport. (A) Is an alien described in section
(12) Change of classification. (i) An 6(e)(1) or (2) of Public Law 94–241, as
alien in S nonimmigrant classification added by section 702(a) of Public Law
is prohibited from changing to any 110–229, other than an alien described
other nonimmigrant classification. in section 6(e)(1) who was admitted to
(ii) An LEA may request that any the CNMI as a short term visitor for
alien lawfully admitted to the United pleasure or business (240(c), 703(A),
States and maintaining status in ac- 703(B), or 704(B) under CNMI classifica-
cordance with the provisions of § 248.1 tions); or
of this chapter, except for those aliens (B) Was lawfully admitted to the
enumerated in 8 CFR 248.2, have his or CNMI under the immigration laws on
her nonimmigrant classification or after the transition program effec-
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changed to that of an alien classified tive date, other than an alien admitted
pursuant to section 101(a)(15)(S) of the as a visitor for business or pleasure (B–
Act as set forth in 8 CFR 248.3(h). 1 or B–2 or under any visa-free travel
(u) [Reserved] provision).
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Department of Homeland Security § 214.2
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§ 214.2 8 CFR Ch. I (1–1–10 Edition)
(3) Derivative beneficiaries—CW–2 non- (D) The beneficiary meets the quali-
immigrant classification. The spouse or fications for the position;
minor child of a CW–1 nonimmigrant (E) The beneficiary, if present in the
may accompany or follow the alien as CNMI, is lawfully present in the CNMI;
a CW–2 nonimmigrant if the alien: (F) The position is not temporary or
(i) Is not present in the United seasonal employment, and the peti-
States, other than the CNMI; tioner does not reasonably believe it to
(ii) If present in the CNMI, is law- qualify for any other nonimmigrant
fully present in the CNMI; and worker classification; and
(iii) Is not inadmissible to the United (G) The position falls within the list
States as a nonimmigrant, except for of occupational categories designated
an alien present in the CNMI who is de- by the Secretary.
scribed in section 212(a)(7)(B) of the Act (iii) Evidence of licensure if an occu-
(not in possession of nonimmigrant pation requires a Commonwealth or
visa). local license for an individual to fully
(4) Eligible employers. To be eligible to perform the duties of the occupation.
petition for a CW–1 nonimmigrant Categories of valid licensure for CW–1
worker, an employer must: classification are:
(i) Be engaged in legitimate business; (A) Licensure. An alien seeking CW–1
(ii) Consider all available United classification in that occupation must
States workers for the positions being have that license prior to approval of
filled by the CW–1 worker; the petition to be found qualified to
(iii) Offer terms and conditions of enter the CNMI and immediately en-
employment which are consistent with gage in employment in the occupation.
the nature of the occupation, activity, (B) Temporary licensure. If a tem-
and industry in the CNMI; and porary license is available and allowed
(iv) Comply with all Federal and for the occupation with a temporary li-
Commonwealth requirements relating cense, USCIS may grant the petition at
to employment, including but not lim- its discretion after considering the du-
ited to nondiscrimination, occupa- ties performed, the degree of super-
tional safety, and minimum wage re- vision received, and any limitations
quirements. placed on the alien by the employer
(5) Petition requirements. An employer and/or pursuant to the temporary li-
who seeks to classify an alien as a CW– cense.
1 worker must file a petition with (C) Duties without licensure. If the
USCIS and pay the requisite petition CNMI allows an individual to fully
fee plus the CNMI education fee of $150 practice the occupation that usually
per beneficiary per year. If the bene- requires a license without a license
ficiary will perform services for more under the supervision of licensed senior
than one employer, each employer or supervisory personnel in that occu-
must file a separate petition with pation, USCIS may grant CW–1 status
USCIS. at its discretion after considering the
(6) Accompanying evidence. A petition duties performed, the degree of super-
must be accompanied by: vision received, and any limitations
(i) Evidence demonstrating the peti- placed on the alien if the facts dem-
tioner meets the definition of eligible onstrate that the alien under super-
employer in this section. vision could fully perform the duties of
(ii) An attestation by the petitioner the occupation.
certified as true and accurate by an ap- (7) Change of employers. An unauthor-
propriate official of the petitioner, of ized change of employment to a new
the following: employer will constitute a failure to
(A) Qualified United States workers maintain status within the meaning of
are not available to fill the position; section 237(a)(1)(C)(i) of the Act. A CW–
(B) The employer is doing business as 1 nonimmigrant may change employers
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Department of Homeland Security § 214.2
(ii) An extension of the alien’s stay is riod ends. The beneficiary may not
requested if necessary for the validity work except during the validity period
period of the petition. of the petition. No petition shall au-
(8) Amended or new petition. If there thorize admission as a CW–1 non-
are any material changes in the terms immigrant before the transition period
and conditions of employment, the pe- effective date.
titioner must file an amended or new (14) Where to apply. The beneficiary,
petition to reflect the changes. eligible spouse and minor children
(9) Multiple beneficiaries. A peti- may:
tioning employer may include more (i) Upon petition approval, apply for
than one beneficiary in a CW–1 petition a visa at a U.S. consulate authorizing
if the beneficiaries will be working in admission in CW–1 or CW–2 status, as
the same occupational category, for appropriate, at a port of entry in the
the same period of time, and in the CNMI on or after the transition pro-
same location. gram effective date; or
(10) Named beneficiaries. The petition (ii) If present in the CNMI, apply for
must include the name of the bene- classification as a CW–1 or CW–2 non-
ficiary and other required information, immigrant by filing Form I–129CW (or
as indicated in the form instructions, such alternative form as USCIS may
at the time of filing. Unnamed bene- designate) with USCIS. An alien apply-
ficiaries will not be permitted. ing for CW–1 or CW–2 status is eligible
(11) Early termination. The petitioning for a waiver of the fee for Form I–
employer must pay the reasonable cost 129CW based upon inability to pay as
of return transportation of the alien to provided by 8 CFR 103.7(c)(1).
the alien’s last place of foreign resi- (15) Biometrics. USCIS shall require a
dence if the alien is dismissed from em- beneficiary initially applying for CW–1
ployment for any reason by the em- or CW–2 status to submit biometric in-
ployer before the end of the period of formation if the beneficiary is present
authorized admission. in the CNMI. A beneficiary present in
(12) Approval. USCIS will consider all the CNMI must pay or obtain a waiver
the evidence submitted and such other of the biometric service fee described
evidence required in the form instruc- in 8 CFR 103.7(b)(1).
tions to adjudicate the petition. USCIS (16) Period of admission. (i) A CW–1
will notify the petitioner of the ap- nonimmigrant will be admitted for an
proval of the petition on Form I–797, initial period of one year. A CW–2
Notice of Action, or in another form as spouse will be admitted for the same
USCIS may prescribe: period as the principal alien. A CW–2
(i) The approval notice will include minor child will be admitted for the
the classification and name of the ben- same period as the principal alien, but
eficiary or beneficiaries and the peti- such admission shall not extend beyond
tion’s period of validity. A petition for the child’s 18th birthday.
more than one beneficiary may be ap- (ii) The temporary departure from
proved in whole or in part. the CNMI of the CW–1 nonimmigrant
(ii) The petition may not be filed or will not affect the derivative status of
approved earlier than six months be- the CW–2 spouse and minor children,
fore the date of actual need for the provided the familial relationship con-
beneficiary’s services. USCIS may in tinues to exist and the principal re-
its discretion permit petitions to be mains eligible for admission as a CW–1
filed and take other actions under this nonimmigrant.
paragraph prior to the transition pro- (17) Extension of visa petition validity
gram effective date, but in no case will and extension of stay. (i) The petitioner
USCIS grant CW–1 status or authorize may request an extension of an em-
the admission of any alien to the CNMI ployee’s CW–1 nonimmigrant status by
prior to such date. filing a new petition and accompanying
(13) Petition validity. A beneficiary evidence as described in 8 CFR
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Department of Homeland Security § 214.3
393
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§ 214.3 8 CFR Ch. I (1–1–10 Edition)
(C) A school which provides voca- (ii) The petitioner, to be eligible for
tional or nonacademic training other recertification, must establish at the
than language training. time of filing that it:
(iii) Both F–1 and M–1 classification. A (A) Remains eligible for certification
school may be approved for attendance in accordance with paragraph (a)(3)(i)
by nonimmigrant students under both of this section;
sections 101(a)(15)(F)(i) and (B) Has complied during its previous
101(a)(15)(M)(i) of the Act if it has both period of certification or recertifi-
instruction in the liberal arts, fine cation with recordkeeping, retention,
arts, language, religion, or the profes- and reporting requirements and all
sions and vocational or technical train- other requirements of paragraphs (g),
ing. In that case, a student whose pri- (j), (k), and (l) of this section.
mary intent is to pursue studies in lib- (b) Supporting documents. Institutions
eral arts, fine arts, language, religion, petitioning for certification or recer-
or the professions at the school is clas- tification must submit certain sup-
sified as a nonimmigrant under section porting documents as follows, pursuant
101(a)(15)(F)(i) of the Act. A student to sections 101(a)(15)(F) and (M) of the
whose primary intent is to pursue vo- Act. A petitioning school or school sys-
cational or technical training at the tem owned and operated as a public
school is classified as a nonimmigrant educational institution or system by
under section 101(a)(15)(M)(i) of the the United States or a State or a polit-
Act. ical subdivision thereof shall submit a
(iv) English language training for a vo- certification to that effect signed by
cational student. A student whose pri- the appropriate public official who
mary intent is to pursue vocational or shall certify that he or she is author-
technical training who takes English ized to do so. A petitioning private or
language training at the same school parochial elementary or secondary
solely for the purpose of being able to school system shall submit a certifi-
understand the vocational or technical cation signed by the appropriate public
course of study is classified as a non- official who shall certify that he or she
immigrant under section is authorized to do so to the effect that
101(a)(15)(M)(i) of the Act. it meets the requirements of the State
(v) The following may not be ap- or local public educational system.
proved for attendance by foreign stu- Any other petitioning school shall sub-
dents: mit a certification by the appropriate
(A) A home school, licensing, approving, or accrediting of-
(B) A public elementary school, or ficial who shall certify that he or she is
(C) An adult education program, as authorized to do so to the effect that it
defined by section 203(l) of the Adult is licensed, approved, or accredited. In
Education and Family Literacy Act, lieu of such certification a school
Public Law 105–220, as amended, 20 which offers courses recognized by a
U.S.C. 9202(l), if the adult education State-approving agency as appropriate
program is funded in whole or in part for study for veterans under the provi-
by a grant under the Adult Education sions of 38 U.S.C. 3675 and 3676 may sub-
and Family Literacy Act, or by any mit a statement of recognition signed
other Federal, State, county or munic- by the appropriate official of the State
ipal funding. approving agency who shall certify
(3) Eligibility. (i) The petitioner, to be that he or she is authorized to do so. A
eligible for certification, must estab- charter shall not be considered a li-
lish at the time of filing that it: cense, approval, or accreditation. A
(A) Is a bona fide school; school catalogue, if one is issued, shall
(B) Is an established institution of also be submitted with each petition. If
learning or other recognized place of not included in the catalogue, or if a
study; catalogue is not issued, the school
(C) Possesses the necessary facilities, shall furnish a written statement con-
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Department of Homeland Security § 214.3
qualifications of the teaching staff, sal- ments of the State in which it is lo-
aries of the teachers, attendance and cated and that the petitioning school
scholastic grading policy, amount and qualifies graduates for acceptance by
character of supervisory and consult- schools of a higher educational level
ative services available to students and within the category described in para-
trainees, and finances (including a cer- graph (b) (1), (2), or (3) of this section.
tified copy of the accountant’s last (d) Interview of petitioner. The peti-
statement of school’s net worth, in- tioner or an authorized representative
come, and expenses). Neither a cata- of the petitioner may be required to ap-
logue nor such a written statement pear in person before or be interviewed
need be included with a petition sub- by telephone by a DHS representative
mitted by: prior to the adjudication of a petition
(1) A school or school system owned
for certification or recertification. The
and operated as a public educational
interview will be conducted under oath.
institution or system by the United
States or a State or a political subdivi- (e) Notices to schools related to certifi-
sion thereof; cation or recertification petitions or to
(2) A school accredited by a nation- out-of-cycle review—(1) General. All no-
ally recognized accrediting body; or tices from SEVP to schools or school
(3) A secondary school operated by or systems related to school certification,
as part of a school so accredited. recertification, or out-of-cycle review
(c) Other evidence. If the petitioner is (including, but not limited to, notices
a vocational, business, or language related to the collection of evidence,
school, or American institution of re- testimony, and appearance pertaining
search recognized as such by the Sec- to petitions for recertification encom-
retary of Homeland Security, it must passing compliance with the record-
submit evidence that its courses of keeping, retention and reporting, and
study are accepted as fulfilling the re- other requirements of paragraphs (f),
quirements for the attainment of an (g), (j), (k), and (l) of this section, as
educational, professional, or vocational well as to eligibility) will be served in
objective, and are not avocational or accordance with the procedures at 8
recreational in character. If the peti- CFR 103.2(b)(1), (4)–(16), (18) and (19),
tioner is a vocational, business, or lan- with the exception that all procedures
guage school, or American institution will be conducted by SEVP, the SEVP
of research recognized as such by the Director, and the Assistant Secretary,
Attorney General, it must submit evi- ICE, as appropriate, and except as pro-
dence that its courses of study are ac- vided in this section. All such notices
cepted as fulfilling the requirements will be served (i.e., generated and
for the attainment of an educational, transmitted) through SEVIS and/or by
professional, or vocational objective, e-mail. The date of service is the date
and are not avocational or recreational of transmission of the e-mail notice.
in character. If the petitioner is an in-
DSOs must maintain current contact
stitution of higher education and is not
information, including current e-mail
within the category described in para-
addresses, at all times. Failure of a
graph (b) (1) or (2) of this section, it
school to receive SEVP notices due to
must submit evidence that it confers
upon its graduates recognized bachelor, inaccurate DSO e-mail addresses in
master, doctor, professional, or divin- SEVIS or blockages of the school’s e-
ity degrees, or if it does not confer mail system caused by spam filters is
such degrees that its credits have been not grounds for appeal of a denial or
and are accepted unconditionally by at withdrawal. The term ‘‘in writing’’
least three such institutions of higher means either a paper copy bearing
learning. If the petitioner is an elemen- original signatures or an electronic
tary or secondary school and is not copy bearing electronic signatures.
within the category described in para- (2) SEVP approval notification and
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graph (b) (1) or (3) of this section, it SEVIS updating by certified schools.
must submit evidence that attendance SEVP will notify the petitioner by up-
at the petitioning institution satisfies dating SEVIS to reflect approval of the
the compulsory attendance require- petition and by e-mail upon approval of
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§ 214.3 8 CFR Ch. I (1–1–10 Edition)
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Department of Homeland Security § 214.3
both mailing and physical addresses (2) Reporting changes in student and
and provide the physical location of school information. (i) Schools must up-
residence of the student and his or her date SEVIS with the current informa-
dependents to DHS upon request. tion within 21 days of a change in any
397
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§ 214.3 8 CFR Ch. I (1–1–10 Edition)
the actual start of classes when deter- school’s Form I–17 petition must be
mining the report date on the Form I– able to demonstrate to DHS represent-
20. Such required activities may in- atives how they obtain access to the
clude, but are not limited to, research regulations cited in the certification as
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Department of Homeland Security § 214.3
part of the site visit. Paper or elec- tion submission requirements will con-
tronic access is acceptable. DSOs must tinue to have SEVIS access after its
be able to extract pertinent citations certification expiration date while the
within the regulations related to their adjudication for recertification is pend-
requirements and responsibilities. ing. The school is required to comply
SEVP will serve a notice of approval with all regulatory recordkeeping, re-
and SEVIS will be updated to reflect tention and reporting, and other re-
the school’s certification if SEVP ap- quirements of paragraphs (f), (g), (j),
proves the school’s certification peti- (k), and (l) of this section during the
tion. period the petition is pending.
(iii) Certification denial. SEVP will
(B) Notice of rejection informs a
serve a notice of denial in accordance
school that it must take prompt cor-
with paragraph (f)(2) of this section if a
school’s petition for certification is de- rective action in regard to its recertifi-
nied. cation petition prior to its certifi-
(2) Recertification. Schools are re- cation expiration date to ensure that
quired to file a completed petition for its SEVIS access will not be termi-
SEVP recertification before the nated and its petition for recertifi-
school’s certification expiration date, cation will be accepted for adjudica-
which is two years from the date of tion.
their previous SEVP certification or (ii) Consequence of failure to petition.
recertification expiration date, except SEVP will serve an NOIW to the school
for the first recertification cycle after 30 days prior to a school’s certification
publication of the recertification rule. expiration date. SEVP will no longer
There is no recertification petition fee. accept a petition for recertification
SEVP will review a petitioning school’s from the school and will immediately
compliance with the recordkeeping, re- withdraw the school’s certification if
tention and reporting, and other re- the school does not petition for recer-
quirements of paragraphs (f), (g), (j), tification, abandons its petition, or
(k), and (l) of this section, as well as does not submit a complete recertifi-
continued eligibility for certification, cation petition package by the certifi-
pursuant to paragraph (a)(3) of this sec- cation expiration date, in accordance
tion.
with the automatic withdrawal criteria
(i) Filing of petition for recertification.
in 8 CFR 214.4(a)(3). The school must
Schools must submit a completed
comply with 8 CFR 214.4(i) upon with-
Form I–17 (including supplements A
and B) using SEVIS, and submit a drawal.
paper copy of the Form I–17 bearing (iii) School recertification process—(A)
original signatures of all officials. General. School recertification reaf-
SEVP will notify all DSOs of a pre- firms the petitioning school’s eligi-
viously certified school 180 days prior bility for SEVP certification and the
to the school’s certification expiration school’s compliance with record-
date that the school may submit a pe- keeping, retention, reporting and other
tition for recertification. A school may requirements of paragraphs (f), (g), (j),
file its recertification petition at any (k), and (l) of this section since its pre-
time after receipt of this notification. vious certification.
A school must submit a complete re- (B) Compliance. Assessment by SEVP
certification petition package, as out- of a school petitioning for recertifi-
lined in the submission guidelines, by cation will focus primarily on overall
its certification expiration date. SEVP school compliance, but may also in-
will send a notice of confirmation of clude examination of individual DSO
complete filing or rejection to the compliance as data and circumstances
school upon receipt of any filing of a warrant. Past performance of these in-
petition for recertification. dividuals, whether or not they con-
(A) Notice of confirmation assures a
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§ 214.3 8 CFR Ch. I (1–1–10 Edition)
(C) On-site review for recertification. (M) If the school is engaged in ele-
All schools are subject to on-site re- mentary or secondary education;
view, at the discretion of SEVP, in con- (N) If the school is engaged in higher
junction with recertification. The education;
school must comply with and complete (O) If the school is engaged in voca-
an on-site review within 30 days of the tional or technical education;
notification by a DHS representative of (P) If the school is engaged in
a school that it has been selected for English language training;
an on-site review for recertification, or (Q) Adding or deleting campuses;
the petition for recertification will be (R) Campus name;
denied as abandoned, resulting in the
(S) Campus mailing address; and
school’s withdrawal from SEVIS.
(iv) Recertification approval. SEVP (T) Campus location address.
will serve a notice of approval if a (ii) SEVP may request a school to
school’s petition for recertification is electronically update all Form I–17
approved. The date of the subsequent fields in SEVIS and provide SEVP with
recertification review will be two years documentation supporting the update.
after the school’s certification expira- The school must complete such updates
tion date from this petition cycle. in SEVIS and submit the supporting
(v) Recertification denial. SEVP will documentation to SEVP within 10 busi-
serve a notice of denial if a school’s pe- ness days of the request from SEVP.
tition for recertification is denied, in (iii) SEVP may review a school’s cer-
accordance with 8 CFR 103.3(a)(1)(i). tification at any time to verify the
(vi) Adjustment of certification expira- school’s compliance with the record-
tion date. Schools eligible for recertifi- keeping, retention, reporting and other
cation before March 25, 2009 will, at a requirements of paragraphs (f), (g), (j),
minimum, have their certification ex- (k), and (l) of this section to verify the
piration date extended to March 25, school’s continued eligibility for SEVP
2009. SEVP may extend the certifi- certification pursuant to paragraph
cation expiration date beyond this date (a)(3) of this section. SEVP may ini-
during the first cycle of recertification. tiate remedial action with the school,
(3) Out-of-cycle review and oversight of as appropriate, and may initiate with-
SEVP-certified schools. (i) SEVP will de- drawal proceedings against the school
termine if out-of-cycle review is re- pursuant to 8 CFR 214.4(b) if non-
quired upon receipt in SEVIS of any compliance or ineligibility of a school
changes from an SEVP-certified school is identified.
to its Form I–17 information. The Form (iv) On-site review. SEVP-certified
I–17 information that requires out-of- schools are subject to on-site review at
cycle review when changed includes: any time. SEVP will initiate with-
(A) Approval for attendance of stu- drawal proceedings against a certified
dents (F/M/both); school, pursuant to 8 CFR 214.4(b), if
(B) Name of school system; name of the certified school selected for on-site
main campus; review prior to its certification expira-
(C) Mailing address of the school; tion date fails to comply with and com-
(D) Location of the school; plete the review within 30 days of the
(E) School type; date SEVP contacted the school to ar-
(F) Public/private school indicator; range the review.
(G) Private school owner name; (v) Notice of Continued Eligibility.
(H) The school is engaged in; SEVP will serve the school a notice of
(I) The school operates under the fol- continued eligibility if, upon comple-
lowing Federal, State, Local or other tion of an out-of-cycle review, SEVP
authorization; determines that the school remains eli-
(J) The school has been approved by gible for certification. Such notice will
the following national, regional, or not change the school’s previously-de-
state accrediting association or agen- termined certification expiration date
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Department of Homeland Security § 214.3
401
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§ 214.4 8 CFR Ch. I (1–1–10 Edition)
402
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Department of Homeland Security § 214.4
403
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§ 214.4 8 CFR Ch. I (1–1–10 Edition)
or school system shall be given notice mine a SEVIS access termination date
of the date set for the interview. for that school until the appeals proc-
(2) A summary of the information ess has concluded and the initial denial
provided by the school or school sys- or withdrawal has been upheld unless a
404
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Department of Homeland Security § 214.6
(1) Application for school transfer. has a reasonable, finite end that does
(2) Application for extension of stay. not equate to permanent residence. In
(3) Employment authorization or order to establish that the alien’s
practical training. entry will be temporary, the alien
405
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§ 214.6 8 CFR Ch. I (1–1–10 Edition)
406
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Department of Homeland Security § 214.6
—Scientific Technician/Technologist 6—Pos- —Recreational Therapist-Baccalaureate or
session of (a) theoretical knowledge of Licenciatura Degree.
any of the following disciplines: agricul- —Registered nurse—state/provincial license
tural sciences, astronomy, biology, or Licenciatura Degree.
chemistry, engineering, forestry, geol- —Veterinarian—D.V.M., D.M.V., or Doctor
ogy, geophysics, meteorology, or physics; en Veterinaria; or state/provincial li-
and (b) the ability to solve practical cense.
problems in any of those disciplines, or —SCIENTIST
the ability to apply principles of any of —Agriculturist (including Agronomist)—
those disciplines to basic or applied re- Baccalaureate or Licenciatura Degree.
search. —Animal Breeder—Baccalaureate or
—Social Worker—Baccalaureate or Licenciatura Degree.
Licenciatura Degree. —Animal Scientist—Baccalaureate or
—Sylviculturist (including Forestry Spe- Licenciatura Degree.
cialist)—Baccalaureate or Licenciatura —Apiculturist—Baccalaureate or
Degree. Licenciatura Degree.
—Technical Publications Writer—Bacca- —Astronomer—Baccalaureate or
laureate or Licenciatura Degree, or Post- Licenciatura Degree.
Secondary Diploma or Post-Secondary —Biochemist—Baccalaureate or
Certificate, and three years experience. Licenciatura Degree.
—Urban Planner (including Geographer)— —Biologist—Baccalaureate or Licenciatura
Baccalaureate or Licenciatura Degree. Degree. 8
—Vocational Counselor—Baccalaureate or —Chemist—Baccalaureate or Licenciatura
Licenciatura Degree. Degree.
—Dairy Scientist—Baccalaureate or
Medical/Allied Professionals Licenciatura Degree.
—Dentist—D.D.S., D.M.D., Doctor en —Entomologist—Baccalaureate or
Odontologia or Doctor en Cirugia Dental Licenciatura Degree.
or state/provincial license. —Epidemiologist—Baccalaureate or
—Dietitian—Baccalaureate or Licenciatura Licenciatura Degree.
Degree; or state/provincial license. —Geneticist—Baccalaureate or Licenciatura
—Medical Laboratory Technologist (Canada)/ Degree.
Medical Technologist (Mexico and the —Geochemist—Baccalaureate or
United States) 7—Baccalaureate or Licenciatura Degree.
Licenciatura Degree; or Post-Secondary —Geologist—Baccalaureate or Licenciatura
Diploma or Post-Secondary Certificate, Degree.
and three years experience. —Geophysicist (including Oceanographer in
—Nutritionist—Baccalaureate or Mexico and the United States)—Bacca-
Licenciatura Degree. laureate or Licenciatura Degree.
—Occupational Therapist—Baccalaureate or —Horticulturist—Baccalaureate or
Licenciatura Degree; or state/provincial Licenciatura Degree.
license. —Meteorologist—Baccalaureate or
—Pharmacist—Baccalaureate or Licenciatura Degree.
Licenciatura Degree; or state/provincial —Pharmacologist—Baccalaureate or
license. Licenciatura Degree.
—Physician (teaching or research only)— —Physicist (including Oceanographer in
M.D. Doctor en Medicina; or state/pro- Canada—Baccalaureate or Licenciatura
vincial license. Degree.
—Physiotherapist/Physical Therapist—Bac- —Plant Breeder—Baccalaureate or
calaureate or Licenciatura Degree; or Licenciatura Degree.
state/provincial license. —Poultry Scientist—Baccalaureate or
—Psychologist—state/provincial license; or Licenciatura Degree.
Licenciatura Degree. —Soil Scientist—Baccalaureate or
Licenciatura Degree.
—Zoologist—Baccalaureate or Licenciatura
6 A business person in this category must
Degree.
be seeking temporary entry for work in di- —TEACHER
rect support of professionals in agricultural
sciences, astronomy, biology, chemistry, en- —College—Baccalaureate or Licenciatura
gineering, forestry, geology, geophysics, me- Degree.
teorology or physics. —Seminary—Baccalaureate or Licenciatura
7 A business person in this category must Degree.
—University—Baccalaureate or Licenciatura
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§ 214.6 8 CFR Ch. I (1–1–10 Edition)
mentation may be in the form of a let- Form I–94 has not expired.
ter from the prospective employer(s) in (2) Without a valid I–94. If the alien
the United States or from the foreign seeking readmission to the United
employer, and must be supported by di- States in TN classification is no longer
408
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Department of Homeland Security § 214.6
409
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§ 214.6 8 CFR Ch. I (1–1–10 Edition)
admission to the United States pursu- tus shall not accept employment in the
ant to the terms and conditions of the United States unless otherwise author-
NAFTA. Citizens of Mexico may ized under the Act.
present documentation from a different (k) Effect of a strike. (1) If the Sec-
or additional United States or foreign retary of Labor certifies or otherwise
employer to a consular officer as evi- informs the Director of USCIS that a
dence in support of a new non- strike or other labor dispute involving
immigrant TN visa application. a work stoppage of workers is in
(3) No action shall be required on the progress, and the temporary entry of a
part of a citizen of Canada or Mexico in citizen of Mexico or Canada in TN non-
TN status who is transferred to an- immigrant status may adversely affect
other location by the same United the settlement of any labor dispute or
States employer to perform the same the employment of any person who is
services. Such an acceptable transfer involved in such dispute, the United
would be to a branch or office of the States may refuse to issue an immigra-
employer. In a case of a transfer to a tion document authorizing the entry or
separately incorporated subsidiary or employment of such an alien.
affiliate, the requirements of para- (2) If the alien has already com-
graphs (i)(1) and (i)(2) of this section menced employment in the United
will apply. States and is participating in a strike
(j) Spouse and unmarried minor chil- or other labor dispute involving a work
dren accompanying or following to join. stoppage of workers, whether or not
(1) The spouse or unmarried minor chil- such strike or other labor dispute has
dren of a citizen of Canada or Mexico been certified by the Department of
admitted in TN nonimmigrant status, Labor, or whether USCIS has been oth-
if otherwise admissible, may be admit- erwise informed that such a strike or
ted initially, readmitted, or granted a labor dispute is in progress, the alien
change of nonimmigrant status or an shall not be deemed to be failing to
extension of his or her period of stay maintain his or her status solely on ac-
for the same period of time granted to count of past, present, or future par-
the TN nonimmigrant. Such spouse or ticipation in a strike or other labor
unmarried minor children shall, upon dispute involving a work stoppage of
approval of an application for admis- workers, but is subject to the following
sion, readmission, change of status or terms and conditions:
extension of stay be classified as TD (i) The alien shall remain subject to
nonimmigrants. A request for a change all applicable provisions of the Immi-
of status to TD or an extension of stay gration and Nationality Act and regu-
of a TD nonimmigrant may be made on lations promulgated in the same man-
the appropriate form together with ap- ner as all other TN nonimmigrants;
propriate filing fees and evidence of the (ii) The status and authorized period
principal alien’s current TN status. of stay of such an alien is not modified
(2) The spouse or unmarried minor or extended in any way by virtue of his
children of a citizen of Canada or Mex- or her participation in a strike or other
ico admitted in TN nonimmigrant sta- labor dispute involving a work stop-
tus shall be required to present a valid, page of workers; and
unexpired TD nonimmigrant visa un- (iii) Although participation by a TN
less otherwise exempt under 8 CFR nonimmigrant alien in a strike or
212.1. other labor dispute involving a work
(3) The spouse and unmarried minor stoppage of workers will not constitute
children of a citizen of Canada or Mex- a ground for removal, any alien who
ico admitted in TN nonimmigrant sta- violates his or her status or who re-
tus shall be issued confirming docu- mains in the United States after his or
mentation bearing the legend ‘‘mul- her authorized period of stay has ex-
tiple entry.’’ There shall be no fee re- pired will be subject to removal.
quired for admission of the spouse and (3) If there is a strike or other labor
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Department of Homeland Security § 214.7
or USCIS has not otherwise been in- whose cumulative physical presence in
formed by the Secretary that such a the United States amounts to less than
strike or labor dispute is in progress, 365 days; or
Director of USCIS shall not deny a pe- (B) A dependent of a resident rep-
tition or deny entry to an applicant for resentative described in section 152 of
TN status based upon such strike or the Compacts; or
other labor dispute. (C) A person who entered the United
States for the purpose of full-time
[58 FR 69212, Dec. 30, 1993, as amended at 63
FR 1335, Jan. 9, 1998; 69 FR 11289, Mar. 10, studies as long as such person main-
2004; 69 FR 60941, Oct. 13, 2004; 73 FR 61334, tains that status.
Oct. 16, 2008] (ii) Since the term ‘‘habitual’’ resi-
dent requires that the person have en-
§ 214.7 Habitual residence in the terri- tered the United States pursuant to
tories and possessions of the United section 141(a) of the Compacts, the
States and consequences thereof. term does not apply to FAS citizens
(a) Definitions. As used in this sec- whose presence in the territories or
tion, the term: possessions is based on an authority
(1) Compacts means the agreements of other than section 141(a), such as:
free association between the United (A) Members of the Armed Forces of
States and the governments of the Re- the United States described in 8 CFR
public of the Marshall Islands, the Fed- § 235.1(c);
erated States of Micronesia, and Palau, (B) Persons lawfully admitted for
approved by Public Law 99–239 with re- permanent residence in the United
spect to the governments of the Repub- States; or
lic of the Marshall Islands and the Fed- (C) Persons having nonimmigrant
erated States of Micronesia, and by status whose entry into the United
Public Law 99–658, with respect to States is based on provisions of the
Palau. Compacts or the Act other than section
(2) Freely associated states (FAS) 141(a) of the Compacts.
means the following parts of the (5) Dependent means a citizen of the
former Trust Territories of the Pacific FAS, as defined in section 141(a) of the
Islands, namely, the Republic of the Compacts, who:
Marshall Islands, the Federated States (i) Is a habitual resident;
of Micronesia, and Palau. (ii) Resides with a principal habitual
(3) Territories and possessions of the resident;
United States means all territories and (iii) Relies for financial support on
possessions of the United States to that principal habitual resident; and
which the Act applies, including those (iv) Is either the parent, spouse, or
commonwealths of the United States unmarried child under the age of 21 of
that are not States. It does not include the principal habitual resident or the
American Samoa, as long as the Act parent or child of the spouse of the
does not apply to it. principal habitual resident.
(4)(i) Habitual resident means a citizen (6) Principal habitual resident means a
of the FAS who has been admitted to a habitual resident with whom one or
territory or possession of the United more dependents reside and on whom
States (other than American Samoa, as dependent(s) rely for financial support.
long as the Act is not applicable to it) (7) Self-supporting means:
pursuant to section 141(a) of the Com- (i) Having a lawful occupation of a
pacts and who occupies in such terri- current and continuing nature that
tory or possession a habitual residence provides 40 hours of gainful employ-
as that term is defined in section 461 of ment each week. A part-time student
the Compacts, namely a place of gen- attending an accredited college or in-
eral abode or a principal, actual dwell- stitution of higher learning in a terri-
ing place of a continuing or lasting na- tory or possession of the United States
ture. The term ‘‘habitual resident’’ receives for each college or graduate
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§§ 214.8–214.10 8 CFR Ch. I (1–1–10 Edition)
lawfully derived funds that meet or ex- ual resident who is not a dependent is
ceed 100 percent of the official poverty subject to removal if he or she:
guidelines for Hawaii for a family unit (i) Is not and has not been self-sup-
of the appropriate size as published an- porting for a period exceeding 60 con-
nually by the Department of Health secutive days for reasons other than a
and Human Services. lawful strike or other labor dispute in-
(8) Receipt of unauthorized public bene- volving work stoppage; or
fits means the acceptance of public ben- (ii) Has received unauthorized public
efits by fraud or willful misrepresenta- benefits by fraud or willful misrepre-
tion in violation of section 401 or 411 of sentation; or
the Personal Responsibility and Work (iii) Is subject to removal pursuant to
Opportunity Reconciliation Act of 1996, section 237 of the Act, or any other pro-
Public Law 104–193, 110 Stat. 2261, 2268, vision of the Act.
as amended by sections 5561 and 5565 of (2) Any dependent is removable from
the Balanced Budget Act of 1997, Public a territory or possession of the United
Law 105–33, 111 Stat. 638. 639. States if:
(b) Where do these rules regarding ha- (i) The principal habitual resident
bitual residence apply? The rules in this who financially supports him or her
section apply to habitual residents liv- and with whom he or she resides, be-
ing in a territory or possession of the comes subject to removal unless the
United States to which the Act applies. dependent establishes that he or she
Those territories and possessions are at has become a dependent of another ha-
bitual resident or becomes self-sup-
present Guam, the Commonwealth of
porting; or
Puerto Rico, the American Virgin Is-
(ii) The dependent, as an individual,
lands, and the Commonwealth of the
receives unauthorized public benefits
Northern Mariana Islands. These rules
by fraud or willful misrepresentation;
do not apply to habitual residents liv-
or
ing in American Samoa as long as the
(iii) The dependent, as an individual,
Act does not extend to it. These rules
is subject to removal pursuant to sec-
are not applicable to habitual residents
tion 237 of the Act, or any other provi-
living in the fifty States or the District
sion of the Act.
of Columbia.
(c) When is an arriving FAS citizen pre- [65 FR 56465, Sept. 19, 2000, as amended at 74
sumed to be a habitual resident? (1) An FR 55738, Oct. 28, 2009]
arriving FAS citizen will be subject to
§§ 214.8–214.10 [Reserved]
the rebuttable presumption that he or
she is a habitual resident if the Service § 214.11 Alien victims of severe forms
has reason to believe that the arriving of trafficking in persons.
FAS citizen was previously admitted to (a) Definitions. The Service shall
the territory or possession more than apply the following definitions as pro-
one year ago; and vided in sections 103 and 107(e) of the
(2) That the arriving FAS citizen ei- Trafficking Victims Protection Act
ther; (TVPA) with due regard for the defini-
(i) Failed to turn in his or her Form tions and application of these terms in
I–94 when he or she previously departed 28 CFR part 1100 and the provisions of
from the United States; or chapter 77 of title 18, United States
(ii) Failed to apply for a replacement Code:
Form I–94. Bona fide application means an appli-
(d) What rights do habitual residents cation for T–1 nonimmigrant status as
have? Habitual residents have the right to which, after initial review, the Serv-
to enter, reside, study, and work in the ice has determined that there appears
United States, its territories or posses- to be no instance of fraud in the appli-
sions, in nonimmigrant status without cation, the application is complete,
regard to the requirements of sections properly filed, contains an LEA en-
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Department of Homeland Security § 214.11
413
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§ 214.11 8 CFR Ch. I (1–1–10 Edition)
Rico, Guam, the United States Virgin (iii) The fingerprint fee as provided
Islands, and the Commonwealth of the in § 103.7(b)(1) of this chapter;
Northern Mariana Islands. (iv) Evidence demonstrating that the
Victim of a severe form of trafficking in applicant is a victim of a severe form
persons means an alien who is or has of trafficking in persons as set forth in
been subject to a severe form of traf- paragraph (f) of this section;
ficking in persons, as defined in section (v) Evidence that the alien is phys-
103 of the VTVPA and in this section. ically present in the United States on
VTVPA means the Victims of Traf- account of a severe form of trafficking
ficking and Violence Protection Act of in persons as set forth in paragraph (g)
2000, Pub. L. 106–386. of this section;
(b) Eligibility. Under section (vi) Evidence that the applicant has
101(a)(15)(T)(i) of the Act, and subject complied with any reasonable request
to section 214(n) of the Act, the Service for assistance in the investigation or
may classify an alien, if otherwise ad- prosecution of acts of severe forms of
missible, as a T–1 nonimmigrant if the trafficking in persons, as set forth in
alien demonstrates that he or she: paragraph (h) of this section, or has
(1) Is or has been a victim of a severe not attained 15 years of age; and
form of trafficking in persons; (vii) Evidence that the applicant
(2) Is physically present in the United would suffer extreme hardship involv-
States, American Samoa, or at a port- ing unusual and severe harm if he or
of-entry thereto, on account of such she were removed from the United
trafficking in persons; States, as set forth in paragraph (i) of
(3) Either: this section.
(i) Has complied with any reasonable (3) Evidentiary standards. The appli-
request for assistance in the investiga- cant may submit any credible evidence
tion or prosecution of acts of such traf- relevant to the essential elements of
ficking in persons, or the T nonimmigrant status. Original
(ii) Is less than 15 years of age; and documents or copies may be submitted
(4) Would suffer extreme hardship in- as set forth in § 103.2(b)(4) and (b)(5) of
volving unusual and severe harm upon this chapter. Any document containing
removal, as described in paragraph (i) text in a foreign language shall be sub-
of this section. mitted in accordance with § 103.2(b)(3)
(c) Aliens ineligible for T nonimmigrant of this chapter.
status. No alien, otherwise admissible, (4) Filing deadline in cases in which
shall be eligible to receive a T non- victimization occurred prior to October 28,
immigrant status under section 2000. Victims of a severe form of traf-
101(a)(15)(T) of the Act if there is sub- ficking in persons whose victimization
stantial reason to believe that the occurred prior to October 28, 2000 must
alien has committed an act of a severe file a completed application within one
form of trafficking in persons. (1) year of January 31, 2002 in order to
(d) Application procedures for T sta- be eligible to receive T–1 non-
tus—(1) Filing an application. An appli- immigrant status. If the victimization
cant seeking T nonimmigrant status occurred prior to October 28, 2000, an
shall submit, by mail, a complete ap- alien who was a child at the time he or
plication package containing Form I– she was a victim of a severe form of
914, Application for T Nonimmigrant Sta- trafficking in persons must file a T sta-
tus, along with all necessary sup- tus application within one (1) year of
porting documentation, to the Service. his or her 21st birthday, or one (1) year
(2) Contents of the application package. of January 31, 2002, whichever is later.
In addition to Form I–914, an applica- For purposes of determining the filing
tion package must include the fol- deadline, an act of severe form of traf-
lowing: ficking in persons will be deemed to
(i) The proper fee for Form I–914 as have occurred on the last day in which
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Department of Homeland Security § 214.11
deadline, he or she must show that ex- (8) Aliens in pending immigration pro-
ceptional circumstances prevented him ceedings. Individuals who believe they
or her from filing in a timely manner. are victims of severe forms of traf-
Exceptional circumstances may in- ficking in persons and who are in pend-
clude severe trauma, either psycho- ing immigration proceedings must in-
logical or physical, that prevented the form the Service if they intend to
victim from applying within the allot- apply for T nonimmigrant status under
ted time. this section. With the concurrence of
(5) Fingerprint procedure. All appli- Service counsel, a victim of a severe
cants for T nonimmigrant status must form of trafficking in persons in pro-
be fingerprinted for the purpose of con- ceedings before an immigration judge
ducting a criminal background check or the Board of Immigration Appeals
in accordance with the process and pro- (Board) may request that the pro-
cedures described in § 103.2(e) of this ceedings be administratively closed (or
chapter. After submitting an applica- that a motion to reopen or motion to
tion with fee to the Service, the appli- reconsider be indefinitely continued) in
cant will be notified of the proper time order to allow the alien to pursue an
and location to appear for application for T nonimmigrant status
fingerprinting. with the Service. If the alien appears
(6) Personal interview. After the filing eligible for T nonimmigrant status, the
of an application for T nonimmigrant immigration judge or the Board,
status, the Service may require an ap- whichever has jurisdiction, may grant
plicant to participate in a personal such a request to administratively
interview. The necessity of an inter- close the proceeding or continue a mo-
view is to be determined solely by the
tion to reopen or motion to reconsider
Service. All interviews will be con-
indefinitely. In the event the Service
ducted in person at a Service-des-
finds an alien ineligible for T–1 non-
ignated location. Every effort will be
immigrant status, the Service may re-
made to schedule the interview in a lo-
commence proceedings that have been
cation convenient to the applicant.
administratively closed by filing a mo-
(7) Failure to appear for an interview or
tion to re-calendar with the immigra-
failure to follow fingerprinting require-
tion court or a motion to reinstate
ments. (i) Failure to appear for a sched-
with the Board. If the alien is in Serv-
uled interview without prior authoriza-
tion or to comply with fingerprint ice custody pending the completion of
processing requirements may result in immigration proceedings, the Service
the denial of the application. may continue to detain the alien until
(ii) Failure to appear shall be excused a decision has been rendered on the ap-
if the notice of the interview or finger- plication. An alien who is in custody
print appointment was not mailed to and requests bond or a bond redeter-
the applicant’s current address and mination will be governed by the provi-
such address had been provided to the sions of part 236 of this chapter.
Service unless the Service determines (9) T applicants with final orders of ex-
that the applicant received reasonable clusion, deportation or removal. An alien
notice of the appointment. The appli- who is the subject of a final order is
cant must notify the Service of any not precluded from filing an applica-
change of address in accordance with tion for T–1 nonimmigrant status di-
§ 265.1 of this chapter prior to the date rectly with the Service. The filing of
on which the notice of the interview or an application for T nonimmigrant sta-
fingerprint appointment was mailed to tus has no effect on the Service’s exe-
the applicant. cution of a final order, although the
(iii) Failure to appear at the inter- alien may file a request for stay of re-
view or fingerprint appointment may moval pursuant to § 241.6(a) of this
be excused, at the discretion of the chapter. However, if the Service subse-
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Service, if the applicant promptly con- quently determines, under the proce-
tacts the Service and demonstrates dures of this section, that the applica-
that such failure to appear was the re- tion is bona fide, the Service will auto-
sult of exceptional circumstances. matically stay execution of the final
415
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§ 214.11 8 CFR Ch. I (1–1–10 Edition)
416
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Department of Homeland Security § 214.11
417
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§ 214.11 8 CFR Ch. I (1–1–10 Edition)
(2) Opportunity to depart. If the alien ance in order to be eligible for T non-
has escaped the traffickers before law immigrant status, but may cooperate
enforcement became involved in the at his or her discretion.
matter, he or she must show that he or (1) Primary evidence of compliance with
she did not have a clear chance to leave law enforcement requests. An LEA en-
the United States in the interim. The dorsement describing the assistance
Service will consider whether an appli- provided by the applicant is not re-
cant had a clear chance to leave in quired evidence. However, if an LEA
light of the individual applicant’s cir- endorsement is provided as set forth in
cumstances. Information relevant to paragraph (f)(1) of this section, it will
this determination may include, but is be considered primary evidence that
not limited to, circumstances attrib- the applicant has complied with any
utable to the trafficking in persons sit- reasonable request in the investigation
uation, such as trauma, injury, lack of or prosecution of the severe form of
resources, or travel documents that trafficking in persons of which the ap-
have been seized by the traffickers. plicant was a victim. If the Service has
This determination may reach both reason to believe that the applicant
those who entered the United States has not complied with any reasonable
lawfully and those who entered with- request for assistance by the endorsing
out being admitted or paroled. The LEA or other LEAs, the Service will
Service will consider all evidence pre- contact the LEA and both the Service
sented to determine the physical pres- and the LEA will take all practical
ence requirement, including asking the steps to reach a resolution acceptable
alien to answer questions on Form I– to both agencies. The Service may, at
914, about when he or she escaped from its discretion, interview the alien re-
the trafficker, what activities he or she garding the evidence for and against
has undertaken since that time, includ- the compliance, and allow the alien to
ing the steps he or she may have taken submit additional evidence of such
to deal with the consequences of hav- compliance. If the Service determines
ing been trafficked, and the applicant’s that the alien has not complied with
ability to leave the United States. any reasonable request for assistance,
(3) Departure from the United States. then the application will be denied, and
An alien who has voluntarily left (or any approved application based on the
has been removed from) the United LEA endorsement will be revoked pur-
States at any time after the act of a se- suant to this section.
vere form of trafficking in persons (2) Secondary evidence of compliance
shall be deemed not to be present in with law enforcement requests; Affidavits.
the United States as a result of such Credible secondary evidence and affida-
trafficking in persons unless the alien’s vits may be submitted to show the non-
reentry into the United States was the existence or unavailability of the pri-
result of the continued victimization of mary evidence and to otherwise estab-
the alien or a new incident of a severe lish the requirement that the applicant
form of trafficking in persons described comply with any reasonable request for
in section 101(a)(15)(T)(i)(I) of the Act. assistance in the investigation or pros-
(h) Compliance with reasonable requests ecution of that severe form of traf-
from a law enforcement agency for assist- ficking in persons. The secondary evi-
ance in the investigation or prosecution. dence must include an original state-
Except as provided in paragraph (h)(3) ment by the applicant that indicates
of this section, the applicant must sub- the reason the LEA endorsement does
mit evidence that fully establishes that not exist or is unavailable, and wheth-
he or she has complied with any rea- er similar records documenting any as-
sonable request for assistance in the sistance provided by the applicant are
investigation or prosecution of acts of available. The statement or evidence
severe forms of trafficking in persons. must show that an LEA that has re-
As provided in paragraph (h)(3) of this sponsibility and authority for the de-
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Department of Homeland Security § 214.11
complied with any reasonable request must demonstrate that removal from
for assistance in the investigation or the United States would subject the ap-
prosecution of such acts of trafficking, plicant to extreme hardship involving
and, if the victim did not report the unusual and severe harm.
crime at the time, why the crime was (1) Standard. Extreme hardship in-
not previously reported. The statement volving unusual and severe harm is a
or evidence should demonstrate that higher standard than that of extreme
good faith attempts were made to ob- hardship as described in § 240.58 of this
tain the LEA endorsement, including chapter. A finding of extreme hardship
what efforts the applicant undertook involving unusual and severe harm
to accomplish these attempts. In addi- may not be based upon current or fu-
tion, applicants may also submit their ture economic detriment, or the lack
own affidavit and the affidavits of of, or disruption to, social or economic
other witnesses. The determination of opportunities. Factors that may be
what evidence is credible and the considered in evaluating whether re-
weight to be given that evidence shall moval would result in extreme hard-
be within the sole discretion of the ship involving unusual and severe harm
Service. Applicants are encouraged to should take into account both tradi-
describe and document all applicable tional extreme hardship factors and
factors, since there is no guarantee those factors associated with having
that a particular reason will result in a been a victim of a severe form of traf-
finding that the applicant has complied ficking in persons. These factors in-
with reasonable requests. An applicant clude, but are not limited to, the fol-
who never has had contact with an lowing:
LEA regarding the acts of severe forms (i) The age and personal cir-
of trafficking in persons will not be eli- cumstances of the applicant;
gible for T–1 nonimmigrant status. (ii) Serious physical or mental illness
(3) Exception for applicants under the of the applicant that necessitates med-
age of 15. Applicants under the age of 15 ical or psychological attention not rea-
are not required to demonstrate com- sonably available in the foreign coun-
pliance with the requirement of any try;
reasonable request for assistance in the (iii) The nature and extent of the
investigation and prosecution of acts of physical and psychological con-
severe forms of trafficking in persons. sequences of severe forms of trafficking
Applicants under the age of 15 must in persons;
provide evidence of their age. Primary (iv) The impact of the loss of access
evidence that a victim of a severe form to the United States courts and the
of trafficking in persons has not yet criminal justice system for purposes
reached the age of 15 would be an offi- relating to the incident of severe forms
cial copy of the alien’s birth certifi- of trafficking in persons or other
cate, a passport, or a certified medical crimes perpetrated against the appli-
opinion. Secondary evidence regarding cant, including criminal and civil re-
the age of the applicant also may be dress for acts of trafficking in persons,
submitted in accordance with criminal prosecution, restitution, and
§ 103.2(b)(2)(i) of this chapter. An appli- protection;
cant under the age of 15 still must pro- (v) The reasonable expectation that
vide evidence demonstrating that he or the existence of laws, social practices,
she satisfies the other necessary re- or customs in the foreign country to
quirements, including that he or she is which the applicant would be returned
the victim of a severe form of traf- would penalize the applicant severely
ficking in persons and faces extreme for having been the victim of a severe
hardship involving unusual and severe form of trafficking in persons;
harm if removed from the United (vi) The likelihood of re-victimiza-
States. tion and the need, ability, or willing-
(i) Evidence of extreme hardship involv- ness of foreign authorities to protect
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§ 214.11 8 CFR Ch. I (1–1–10 Edition)
country would severely harm the appli- immigrant status. An application shall
cant; and be determined to be bona fide if, after
(viii) The likelihood that the appli- initial review, it is properly filed, there
cant’s individual safety would be seri- appears to be no instance of fraud in
ously threatened by the existence of the application, the application is com-
civil unrest or armed conflict as dem- plete (including the LEA endorsement
onstrated by the designation of Tem- or other secondary evidence), the appli-
porary Protected Status, under section cation presents prima facie evidence of
244 of the Act, or the granting of other each element to show eligibility for T–
relevant protections. 1 nonimmigrant status, and the Service
(2) Evidence. An applicant is encour- has completed the necessary
aged to describe and document all fac- fingerprinting and criminal back-
tors that may be relevant to his or her ground checks. If an alien is inadmis-
case, since there is no guarantee that a sible under section 212(a) of the Act,
particular reason or reasons will result the application will not be deemed to
in a finding that removal would cause be bona fide unless the only grounds of
extreme hardship involving unusual inadmissibility are those under the cir-
and severe harm to the applicant. cumstances described in section
Hardship to persons other than the 212(d)(13) of the Act, or unless the Serv-
alien victim of a severe form of traf- ice has granted a waiver of inadmis-
ficking in persons cannot be considered sibility on any other grounds. All waiv-
in determining whether an applicant ers are discretionary and require a re-
would suffer extreme hardship involv- quest for a waiver. Under section
ing unusual and severe harm. 212(d)(13), an application can be bona
(3) Evaluation. The Service will evalu- fide before the waiver is granted. This
ate on a case-by-case basis, after a re- is not the case under other grounds of
view of the evidence, whether the ap- inadmissibility.
plicant has demonstrated extreme (2) Determination by USCIS. An appli-
hardship involving unusual or severe cation for T–1 status under this section
harm. The Service will consider all will not be treated as a bona fide appli-
credible evidence submitted regarding cation until USCIS has provided the
the nature and scope of the hardship notice described in paragraph (k)(3) of
should the applicant be removed from this section. In the event that an appli-
the United States, including evidence cation is incomplete or if the applica-
of hardship arising from circumstances tion is complete but does not present
surrounding the victimization as de- sufficient evidence to establish prima
scribed in section 101(a)(15)(T)(i)(I) of facie eligibility for each required ele-
the Act and any other circumstances. ment of T nonimmigrant status, USCIS
In appropriate cases, the Service may will follow the procedures provided in 8
consider evidence from relevant coun- CFR 103.2(b) for requesting additional
try condition reports and any other evidence, issuing a notice of intent to
public or private sources of informa- deny, or adjudicating the case on the
tion. The determination that extreme merits.
hardship involving unusual or severe (3) Notice to alien. Once an application
harm to the alien exists is to be made is determined to be a bona fide applica-
solely by the Service. tion for a T–1 nonimmigrant status,
(j) Waiver of grounds of inadmissibility. the Service will provide written con-
An application for a waiver of inadmis- firmation to the applicant.
sibility under section 212(d)(13) or sec- (4) Stay of final order of exclusion, de-
tion 212(d)(3) of the Act must be filed in portation, or removal. A determination
accordance with § 212.16 of this chapter, by the Service that an application for
and submitted to the Service with the T–1 nonimmigrant status is bona fide
completed application package. automatically stays the execution of
(k) Bona fide application for T–1 non- any final order of exclusion, deporta-
immigrant status—(1) Criteria. Once an tion, or removal. This stay shall re-
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application is submitted to the Serv- main in effect until there is a final de-
ice, the Service will conduct an initial cision on the T application. The filing
review to determine if the application of an application for T nonimmigrant
is a bona fide application for T non- status does not stay the execution of a
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Department of Homeland Security § 214.11
final order unless the Service has de- (m) Annual cap. In accordance with
termined that the application is bona section 214(n)(2) of the Act, the total
fide. Neither an immigration judge nor number of principal aliens issued T–1
the Board of Immigration Appeals nonimmigrant status may not exceed
(Board) has jurisdiction to adjudicate 5,000 in any fiscal year.
an application for a stay of execution, (1) Issuance of T–1 nonimmigrant sta-
deportation, or removal order, on the tus. Once the cap is reached in any fis-
basis of the filing of an application for cal year, the Service will continue to
T nonimmigrant status. review and consider applications in the
(l) Review and decision on applica- order they are received. The Service
tions—(1) De novo review. The Service will determine if the applicants are eli-
shall conduct a de novo review of all gible for T–1 nonimmigrant status, but
evidence submitted and is not bound by will not issue T–1 nonimmigrant status
its previous factual determinations as at that time. The revocation of an
to any essential elements of the T non- alien’s T–1 status will have no effect on
immigrant status application. Evi- the annual cap.
dence previously submitted for this and (2) Waiting list. All eligible applicants
other immigration benefits or relief who, due solely to the cap, are not
may be used by the Service in evalu- granted T–1 nonimmigrant status shall
ating the eligibility of an applicant for be placed on a waiting list and will re-
T nonimmigrant status. However, the ceive notice of such placement. While
Service will not be bound by its pre- on the waiting list, the applicant shall
vious factual determinations as to any maintain his or her current means to
essential elements of the T classifica- prevent removal (deferred action, pa-
tion. The Service will determine, in its role, or stay of removal) and any em-
sole discretion, the evidentiary value ployment authorization, subject to any
of previously or concurrently sub- limits imposed on that authorization.
mitted evidence. Priority on the waiting list is deter-
(2) Burden of proof. At all stages of mined by the date the application was
the processing of an application for any properly filed, with the oldest applica-
benefits under T nonimmigrant status, tions receiving the highest priority. As
the burden shall be on the applicant to new classifications become available in
present to the Service evidence that subsequent years, the Service will issue
fully establishes eligibility for the de- them to applicants on the waiting list,
sired benefit. in the order in which the applications
(3) Decision. After completing its re- were properly filed, providing the ap-
view of the application, the Service plicant remains admissible. The Serv-
shall issue a written decision granting ice may require new fingerprint and
or denying the application. If the Serv- criminal history checks before issuing
ice determines that the applicant has an approval. After T–1 nonimmigrant
met the requirements for T–1 non- status has been issued to qualifying ap-
immigrant status, the Service shall plicants on the waiting list, any re-
grant the application, subject to the maining T–1 nonimmigrant numbers
annual limitation as provided in para- will be issued to new qualifying appli-
graph (m) of this section. Along with cants in the order that the applications
the approval, the Service will include a were properly filed.
list of nongovernmental organizations (n) [Reserved]
to which the applicant can refer re- (o) Admission of the T–1 applicant’s im-
garding the alien’s options while in the mediate family members—(1) Eligibility.
United States and resources available Subject to section 214(n) of the Act, an
to the alien. alien who has applied for or been grant-
(4) Work authorization. When the ed T–1 nonimmigrant status may apply
Service grants an application for T–1 for admission of an immediate family
nonimmigrant status, the Service will member, who is otherwise admissible
provide the alien with an Employment to the United States, in a T–2 (spouse)
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§ 214.11 8 CFR Ch. I (1–1–10 Edition)
to join the principal alien. The appli- the child shall be eligible to accom-
cant must submit evidence sufficient pany or follow to join the T–1 prin-
to demonstrate that: cipal.
(i) The alien for whom T–2, T–3, or T– (5) Evidence demonstrating extreme
4 status is being sought is an imme- hardship for immediate family members.
diate family member of a T–1 non- The application must demonstrate that
immigrant, as defined in paragraph (a) each alien for whom T–2, T–3, or T–4
of this section, and is otherwise eligi- status is being sought, or the principal
ble for that status; and T–1 applicant, would suffer extreme
(ii) The immediate family member or hardship if the immediate family mem-
the T–1 principal would suffer extreme ber was not admitted to the United
hardship, as described in paragraph States or was removed from the United
(o)(5) of this section, if the immediate States (if already present). When the
family member was not allowed to ac- immediate family members are fol-
company or follow to join the principal lowing to join the principal, the ex-
T–1 nonimmigrant. treme hardship must be substantially
(2) Filing procedures. A T–1 principal different than the hardship generally
may apply for T–2, T–3, or T–4 non- experienced by other residents of their
immigrant status for an immediate country of origin who are not victims
family member by submitting Form I– of a severe form of trafficking in per-
914 and all necessary documentation by sons. The Service will consider all
mail, including Supplement A, to the credible evidence of extreme hardship
Service. The application for derivative to the T–1 recipient or the individual
T nonimmigrant status for eligible immediate family members. The deter-
family members can be filed on the mination of the extreme hardship
same application as the T–1 applica- claim will be evaluated on a case-by-
tion, or in a separate application filed case basis, in accordance with the fac-
at a subsequent time. tors outlined in § 240.58 of this chapter.
(3) Contents of the application package Applicants are encouraged to raise and
for an immediate family member. In addi- document all applicable factors, since
tion to Form I–914, an application for there is no guarantee that a particular
T–2, T–3, or T–4 nonimmigrant status reason or reasons will result in a find-
must include the following: ing of extreme hardship if the appli-
(i) The proper fee for Form I–914 as cant is not allowed to enter or remain
provided in § 103.7(b)(1) of this chapter, in the United States. In addition to
or an application for a fee waiver as these factors, other factors that may
provided in § 103.7(c) of this chapter; be considered in evaluating extreme
(ii) Three current photographs; hardship include, but are not limited
(iii) The fingerprint fee as provided to, the following:
in § 103.2(e) of this chapter for each im- (i) The need to provide financial sup-
mediate family member; port to the principal alien;
(iv) Evidence demonstrating the rela- (ii) The need for family support for a
tionship of an immediate family mem- principal alien; or
ber, as provided in paragraph (o)(4) of (iii) The risk of serious harm, par-
this section; and ticularly bodily harm, to an immediate
(v) Evidence demonstrating extreme family member from the perpetrators
hardship as provided in paragraph (o)(5) of the severe forms of trafficking in
of this section. persons.
(4) Relationship. The relationship (6) Fingerprinting; interviews. The pro-
must exist at the time the application visions for fingerprinting and inter-
for the T–1 nonimmigrant status was views in paragraphs (c)(5) through (c)(7)
filed, and must continue to exist at the of this section also are applicable to
time of the application for T–2, T–3, or applications for immediate family
T–4 status and at the time of the im- members.
mediate family member’s subsequent (7) Admissibility. If an alien is inad-
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Department of Homeland Security § 214.11
chapter, and submitted to the Service years from the date of approval. The
with the completed application pack- status may be extended if a Federal,
age. State, or local law enforcement offi-
(8) Review and decision. After review- cial, prosecutor, judge, or other au-
ing the application under the standards thority investigating or prosecuting
of paragraph (l) of this section, the activity relating to human trafficking
Service shall issue a written decision certifies that the presence of the alien
granting or denying the application for in the United States is necessary to as-
T–2, T–3, or T–4 status. sist in the investigation or prosecution
(9) Derivative grants. Individuals who of such activity. At the time an alien is
are granted T–2, T–3, or T–4 non- approved for T nonimmigrant status or
immigrant status are not subject to an receives an extension, USCIS shall no-
annual cap. Applications for T–2, T–3, tify the alien when his or her non-
or T–4 nonimmigrant status will not be immigrant status will expire. The ap-
granted until a T–1 status has been plicant shall immediately notify
issued to the related principal alien. USCIS of any changes in the appli-
(10) Employment authorization. An cant’s circumstances that may affect
alien granted T–2, T–3, or T–4 non- eligibility under section 101(a)(15)(T)(i)
immigrant status may apply for em- of the Act and this section.
ployment authorization by filing Form (2) Information pertaining to adjust-
I–765, Application for Employment Au- ment of status. USCIS will notify an
thorization, with the appropriate fee or alien granted T nonimmigrant status
an application for fee waiver, in ac-
of the requirement to timely apply for
cordance with the instructions on, or
adjustment of status, and that the fail-
attached to, that form. For derivatives
ure to apply for adjustment of status in
in the United States, the Form I–765
accordance with 8 CFR 245.23 will re-
may be filed concurrently with the fil-
sult in termination of the alien’s T
ing of the application for T–2, T–3, or
nonimmigrant status at the end of the
T–4 status or at any time thereafter. If
4-year period unless that status is ex-
the application for employment au-
tended in accordance with paragraph
thorization is approved, the T–2, T–3, or
(p)(1) of this section. Aliens who prop-
T–4 alien will be granted employment
authorization pursuant to erly apply for adjustment of status to
§ 274a.12(c)(25) of this chapter. Employ- that of a person admitted to permanent
ment authorization will last for the residence in accordance with 8 CFR
length of the duration of the T–1 non- 245.23 shall remain eligible for adjust-
immigrant status. ment of status.
(11) Aliens outside the United States. (q) De novo review. The Service shall
When the Service approves an applica- conduct a de novo review of all evi-
tion for a qualifying immediate family dence submitted at all stages in the ad-
member who is outside the United judication of an application for T non-
States, the Service will notify the T–1 immigrant status. Evidence previously
principal alien of such approval on submitted for this and other immigra-
Form I–797, Notice of Action. Form I–914, tion benefits or relief may be used by
Supplement A, Supplemental Application the Service in evaluating the eligi-
for Immediate Family Members of T–1 Re- bility of an applicant for T non-
cipient, must be forwarded to the De- immigrant status. However, the Serv-
partment of State for delivery to the ice will not be bound by its previous
American Embassy or Consulate hav- factual determinations as to any essen-
ing jurisdiction over the area in which tial elements of the T classification.
the T–1 recipient’s qualifying imme- The Service will determine, in its sole
diate family member is located. The discretion, the evidentiary value of
supplemental form may be used by a previously or concurrently submitted
consular officer in determining the evidence.
alien’s eligibility for a T–2, T–3, or T– (r) Denial of application. Upon denial
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§ 214.11 8 CFR Ch. I (1–1–10 Edition)
nonimmigrant status at any time, even 101(a)(15)(T) of the Act, including the
after the validity of the status has ex- misrepresentation of material facts in
pired. The notice of intent to revoke the applicant’s application for T non-
shall be in writing and shall contain a immigrant status.
424
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Department of Homeland Security § 214.12
cial that the school meets the require- ance with the Interim Certification
ments of the state or local public edu- Rule. A school that is granted prelimi-
cational system and has been continu- nary enrollment will have to use
ously approved by the Service for a SEVIS for the issuance of any new
425
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§ 214.13 8 CFR Ch. I (1–1–10 Edition)
Form I–20 to a new or continuing stu- gram of study at any other SEVP-cer-
dent. tified academic or language-training
(d) Schools granted preliminary en- institution including private elemen-
rollment in SEVIS will not have to tary and secondary schools and public
apply for certification at this time. secondary schools, the amount of $200;
However, all such schools will be re- (2) An alien who applies for J–1 sta-
quired to apply for certification, and tus in order to commence participation
pay the certification fee, prior to May in an exchange visitor program des-
14, 2004. ignated by the Department of State
(e) Eligible schools that meet the (DoS), the amount of $180, with a re-
standards of paragraph (a) of this sec- duced fee for certain exchange visitor
tion, but do not apply for preliminary categories as provided in paragraphs
enrollment in SEVIS prior to the close (b)(1) and (c) of this section; and
of the preliminary enrollment period (3) An alien who applies for M–1 or
will have to apply for certification re- M–3 status in order to enroll in a pro-
view under the Interim Certification gram of study at an SEVP-certified vo-
Rule and pay the certification fee be- cational educational institution, in-
fore enrolling in SEVIS. However, once cluding a flight school, in the amount
a school meeting the standards of para- of $200.
graph (a) of this section applies for cer- (b) Aliens not subject to a fee. No
tification review, the Service will have SEVIS fee is required with respect to:
the discretion, after a review of the (1) A J–1 exchange visitor who is
school’s application, to allow the coming to the United States as a par-
school to enroll in SEVIS without re- ticipant in an exchange visitor pro-
quiring an on-site visit prior to enroll- gram sponsored by the Federal govern-
ment. If the Service permits such a ment, identified by a program identi-
school to enroll in SEVIS prior to com- fier designation prefix of G–1, G–2, G–3,
pletion of the on-site visit, the on-site or G–7;
visit must be completed prior to May (2) Dependents of F, M, or J non-
14, 2004. immigrants. The principal alien must
(f) Schools that are not eligible to pay the fee, when required under this
apply for preliminary enrollment in section, in order for his/her qualifying
SEVIS under this section—including dependents to obtain F–2, J–2, or M–2
flight schools—will have to apply for status. However, an F–2, J–2, or M–2 de-
certification under the Interim Certifi- pendent is not required to pay a sepa-
cation Rule, pay the certification fee, rate fee under this section in order to
and undergo a full certification review obtain that status or during the time
including an on-site visit, prior to he/she remains in that status.
being allowed to enroll in SEVIS. (3) A nonimmigrant described in
[67 FR 44346, July 1, 2002] paragraph (a) of this section whose
Form I–20 or Form DS–2019 for initial
§ 214.13 SEVIS fee for certain F, J, and attendance was issued on or before Au-
M nonimmigrants. gust 31, 2004.
(a) Applicability. The following aliens (c) Special Fee for Certain J–1 Non-
are required to submit a payment in immigrants. A J–1 exchange visitor com-
the amount indicated for their status ing to the United States as an au pair,
to the Student and Exchange Visitor camp counselor, or participant in a
Program (SEVP) in advance of obtain- summer work/travel program is subject
ing nonimmigrant status as an F or M to a fee of $35.
student or J exchange visitor, in addi- (d) Time for payment of SEVIS fee. An
tion to any other applicable fees, ex- alien who is subject to payment of the
cept as otherwise provided for in this SEVIS fee must remit the fee directly
section: to DHS as follows:
(1) An alien who applies for F–1 or F– (1) An alien seeking an F–1, F–3, J–1,
3 status in order to enroll in a program M–1, or M–3 visa from a consular officer
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Department of Homeland Security § 214.13
must pay the fee to DHS before study, with the exception of students
issuance of the visa. who have been working toward comple-
(2) An alien who is exempt from the tion of a U.S. course of study in au-
visa requirement described in section thorized overseas study, must pay a
212(d)(4) of the Act must pay the fee to new fee to DHS prior to being granted
DHS before the alien applies for admis- student status.
sion at a U.S. port-of-entry to begin (e) Circumstances where no new fee is
initial attendance at a DHS-approved required. (1) Extension of stay, transfer,
school or initial participation in a De- or optional practical training for stu-
partment of State-designated exchange dents. An F–1, F–3, M–1, or M–3 non-
visitor program. immigrant is not required to pay a new
(3) A nonimmigrant alien in the fee in connection with:
United States seeking a change of sta- (i) An application for an extension of
tus to F–1, F–3, J–1, M–1, or M–3 must stay, as provided in 8 CFR 214.2(f)(7) or
pay the fee to DHS before the alien is (m)(10);
granted the change of nonimmigrant (ii) An application for transfer, as
status, except as provided in paragraph provided in 8 CFR 214.2(f)(8) or (m)(11);
(e)(4) of this section. (iii) A change in educational level, as
(4) A J–1 nonimmigrant who is apply- provided in 8 CFR 214.2(f)(5)(ii); or
ing for a change of program category (iv) An application for post-comple-
within the United Status, in accord- tion practical training, as provided in 8
ance with 22 CFR 62.42, must pay the CFR 214.2(f)(10)(ii) or (m)(14).
fee associated with that new category, (2) Extension of program or transfer
if any, prior to being granted such a for exchange visitors. A J–1 non-
change. immigrant is not required to pay a new
(5) A J–1 nonimmigrant initially fee in connection with:
granted J–1 status to participate in a (i) An application for an extension of
program sponsored by the Federal gov- program, as provided in 22 CFR 62.43; or
ernment, as defined in paragraph (b)(1) (ii) An application for transfer of pro-
of this section, and transferring in ac- gram, as provided in 22 CFR 62.42.
cordance with 22 CFR 62.42 to a pro- (3) Visa issuance for a continuation
gram that is not similarly sponsored, of study. An F–1, F–3, J–1, M–1, or M–3
must pay the fee associated with the nonimmigrant who has previously paid
new program prior to completing the the fee is not required to pay a new fee
transfer. in order to be granted a visa to return
(6) A J–1 nonimmigrant who is apply- to the United States as a continuing
ing for reinstatement after a sub- student or exchange visitor in a single
stantive violation of status, or who has course of study, so long as the non-
been out of program status for longer immigrant is not otherwise required to
than 120 days but less than 270 days pay a new fee in accordance with the
during the course of his/her program other provisions in this section.
must pay a new fee to DHS, if applica- (4) Certain changes in student classi-
ble, prior to being granted a reinstate- fication.
ment to valid J–1 status. (i) No fee is required for changes be-
(7) An F or M student who is applying tween the F–1 and F–3 classifications,
for reinstatement of student status be- and no fee is required for changes be-
cause of a violation of status, and who tween the M–1 and M–3 classifications.
has been out of status for a period of (ii) Institutional reclassification.
time that exceeds the presumptive in- DHS retains the discretionary author-
eligibility deadline set forth in 8 CFR ity to waive the additional fee require-
214.2(f)(16)(i)(A) or (m)(16)(i)(A), must ment when a nonimmigrant changes
pay a new fee to DHS prior to being classification between F and M, if the
granted a return to valid status. change of status is due solely to insti-
(8) An F–1, F–3, M–1, or M–3 non- tutional reclassification by the Stu-
immigrant who has been absent from dent and Exchange Visitor Program
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the United States for a period that ex- during that nonimmigrant’s course of
ceeds 5 months in duration, and wishes study.
to reenter the United States to engage (5) Re-application following denial of
in further study in the same course of application by consular officer. An
427
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§ 214.14 8 CFR Ch. I (1–1–10 Edition)
alien who fully paid a SEVIS fee in cally, in lieu of the receipt generated
connection with an initial application by DHS;
for an F–1, F–3, M–1, or M–3 visa, or a (iii) If payment was made through an
J–1 visa in a particular program cat- approved payment service, DHS and
egory, whose initial application was de- the Department of State will accept a
nied, and who is reapplying for the properly completed receipt issued by
same status, or the same J–1 exchange the payment service, in lieu of the re-
visitor category, within 12 months fol- ceipt generated by DHS.
lowing the initial notice of denial is (3) Electronic record of fee payment.
not required to repay the SEVIS fee. DHS will maintain an electronic record
(6) Re-application following denial of of payment for the alien as verification
an application for a change of status. A of receipt of the required fee under this
nonimmigrant who fully paid a SEVIS section. If DHS records indicate that
fee in connection with an initial appli- the fee has been paid, an alien who has
cation for a change of status within in lost or did not receive a receipt for a
the United States to F–1, F–3, M–1, or fee payment under this section will not
M–3 classification, or for a change of be denied an immigration benefit, in-
status to a particular J–1 exchange vis- cluding visa issuance or admission to
itor category, whose initial application the United States, solely because of a
was denied, and who is granted a mo- failure to present a paper receipt of fee
tion to reopen the denied case is not re- payment.
quired to repay the SEVIS fee if the (4) Third-party payments. DHS will ac-
motion to reopen is granted within 12 cept payment of the required fee for an
months of receipt of initial notice of alien from an approved school or a des-
denial. ignated exchange visitor program spon-
(f) [Reserved] sor, or from another source, in accord-
(g) Procedures for payment of the ance with procedures approved by DHS.
SEVIS fee. (1) Options for payment. An (h) Failure to pay the fee. The failure
alien subject to payment of a fee under to pay the required fee is grounds for
this section may pay the fee by any denial of F, M, or J nonimmigrant sta-
procedure approved by DHS, including: tus or status-related benefits. Payment
(i) Submission of Form I–901, to DHS of the fee does not preserve the lawful
by mail, along with the proper fee paid status of any F, J, or M nonimmigrant
by check, money order, or foreign draft that has violated his or her status in
drawn on a financial institution in the some other manner.
United States and payable in United (1) For purposes of reinstatement to
States currency, as provided by 8 CFR F or M status, failure to pay the re-
103.7(a)(1); quired fee will be considered a ‘‘willful
(ii) Electronic submission of Form I– violation’’ under 8 CFR 214.2(f)(16) or
901 to DHS using a credit card or other (m)(16), unless DHS determines that
electronic means of payment accepted there are sufficient extenuating cir-
by DHS; or, cumstances (as determined at the dis-
(iii) A designated payment service cretion of the Student and Exchange
and receipt mechanism approved and Visitor Program).
set forth in future guidance by DHS. (2) For purposes of reinstatement to
(2) Receipts. DHS will provide a re- valid J program status, failure to pay
ceipt for each fee payment under para- the required fee will not be considered
graph (g)(1) of this section until such a ‘‘minor or technical infraction’’
time as DHS issues a notice in the FED- under 22 CFR 62.45.
ERAL REGISTER that paper receipts will
no longer be necessary. Further receipt [69 FR 39825, July 1, 2004; 69 FR 41388, July 9,
provisions include: 2004, as amended at 73 FR55704, Sept. 26, 2008]
(i) DHS will provide for an expedited
delivery of the receipt, upon request § 214.14 Alien victims of certain quali-
fying criminal activity.
and receipt of an additional fee;
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(ii) If payment was made electroni- (a) Definitions. As used in this sec-
cally, both DHS and the Department of tion, the term:
State will accept a properly completed (1) BIWPA means Battered Immi-
receipt that is printed-out electroni- grant Women Protection Act of 2000 of
428
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Department of Homeland Security § 214.14
the Victims of Trafficking and Vio- station, yard, center, port, aircraft, ve-
lence Protection Act of 2000, div. B, Vi- hicle, or vessel under the jurisdiction
olence Against Women Act of 2000, tit. of the Department of Defense, includ-
V, Pub. L. 106–386, 114 Stat. 1464, (2000), ing any leased facility, or any other lo-
amended by Violence Against Women cation under military control.
and Department of Justice Reauthor- (7) Next friend means a person who ap-
ization Act of 2005, tit. VIII, Pub. L. pears in a lawsuit to act for the benefit
109–162, 119 Stat. 2960 (2006), amended by of an alien under the age of 16 or inca-
Violence Against Women and Depart- pacitated or incompetent, who has suf-
ment of Justice Reauthorization Act— fered substantial physical or mental
Technical Corrections, Pub. L. 109–271, abuse as a result of being a victim of
120 Stat. 750 (2006). qualifying criminal activity. The next
(2) Certifying agency means a Federal, friend is not a party to the legal pro-
State, or local law enforcement agen- ceeding and is not appointed as a
cy, prosecutor, judge, or other author- guardian.
ity, that has responsibility for the in- (8) Physical or mental abuse means in-
vestigation or prosecution of a quali- jury or harm to the victim’s physical
fying crime or criminal activity. This person, or harm to or impairment of
definition includes agencies that have the emotional or psychological sound-
criminal investigative jurisdiction in ness of the victim.
their respective areas of expertise, in-
(9) Qualifying crime or qualifying crimi-
cluding, but not limited to, child pro-
nal activity includes one or more of the
tective services, the Equal Employ-
following or any similar activities in
ment Opportunity Commission, and the
violation of Federal, State or local
Department of Labor.
criminal law of the United States:
(3) Certifying official means:
(i) The head of the certifying agency, Rape; torture; trafficking; incest; do-
or any person(s) in a supervisory role mestic violence; sexual assault; abu-
who has been specifically designated by sive sexual contact; prostitution; sex-
the head of the certifying agency to ual exploitation; female genital muti-
issue U nonimmigrant status certifi- lation; being held hostage; peonage; in-
cations on behalf of that agency; or voluntary servitude; slave trade; kid-
(ii) A Federal, State, or local judge. napping; abduction; unlawful criminal
(4) Indian Country is defined as: restraint; false imprisonment; black-
(i) All land within the limits of any mail; extortion; manslaughter; murder;
Indian reservation under the jurisdic- felonious assault; witness tampering;
tion of the United States Government, obstruction of justice; perjury; or at-
notwithstanding the issuance of any tempt, conspiracy, or solicitation to
patent, and including rights-of-way commit any of the above mentioned
running through the reservation; crimes. The term ‘‘any similar activ-
(ii) All dependent Indian commu- ity’’ refers to criminal offenses in
nities within the borders of the United which the nature and elements of the
States whether within the original or offenses are substantially similar to
subsequently acquired territory there- the statutorily enumerated list of
of, and whether within or without the criminal activities.
limits of a state; and (10) Qualifying family member means,
(iii) All Indian allotments, the Indian in the case of an alien victim 21 years
titles to which have not been extin- of age or older who is eligible for U
guished, including rights-of-way run- nonimmigrant status as described in
ning through such allotments. section 101(a)(15)(U) of the Act, 8 U.S.C.
(5) Investigation or prosecution refers 1101(a)(15)(U), the spouse or child(ren)
to the detection or investigation of a of such alien; and, in the case of an
qualifying crime or criminal activity, alien victim under the age of 21 who is
as well as to the prosecution, convic- eligible for U nonimmigrant status as
tion, or sentencing of the perpetrator described in section 101(a)(15)(U) of the
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of the qualifying crime or criminal ac- Act, qualifying family member means the
tivity. spouse, child(ren), parents, or unmar-
(6) Military Installation means any fa- ried siblings under the age of 18 of such
cility, base, camp, post, encampment, an alien.
429
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§ 214.14 8 CFR Ch. I (1–1–10 Edition)
(11) Territories and Possessions of the mitted the witness tampering, obstruc-
United States means American Samoa, tion of justice, or perjury offense, at
Swains Island, Bajo Nuevo (the Petrel least in principal part, as a means:
Islands), Baker Island, Howland Island, (1) To avoid or frustrate efforts to in-
Jarvis Island, Johnston Atoll, Kingman vestigate, arrest, prosecute, or other-
Reef, Midway Atoll, Navassa Island, wise bring to justice the perpetrator
Palmyra Atoll, Serranilla Bank, and for other criminal activity; or
Wake Atoll. (2) To further the perpetrator’s abuse
(12) U nonimmigrant status certification or exploitation of or undue control
means Form I–918, Supplement B, ‘‘U over the petitioner through manipula-
Nonimmigrant Status Certification,’’ tion of the legal system.
which confirms that the petitioner has (iii) A person who is culpable for the
been helpful, is being helpful, or is qualifying criminal activity being in-
likely to be helpful in the investigation vestigated or prosecuted is excluded
or prosecution of the qualifying crimi- from being recognized as a victim of
nal activity of which he or she is a vic- qualifying criminal activity.
tim. (b) Eligibility. An alien is eligible for
(13) U interim relief refers to the in- U–1 nonimmigrant status if he or she
terim benefits that were provided by demonstrates all of the following in ac-
USCIS to petitioners for U non- cordance with paragraph (c) of this sec-
immigrant status, who requested such tion:
benefits and who were deemed prima (1) The alien has suffered substantial
facie eligible for U nonimmigrant sta- physical or mental abuse as a result of
tus prior to the publication of the im- having been a victim of qualifying
plementing regulations. criminal activity. Whether abuse is
(14) Victim of qualifying criminal activ- substantial is based on a number of fac-
ity generally means an alien who has tors, including but not limited to: The
suffered direct and proximate harm as nature of the injury inflicted or suf-
a result of the commission of quali- fered; the severity of the perpetrator’s
fying criminal activity. conduct; the severity of the harm suf-
(i) The alien spouse, children under 21 fered; the duration of the infliction of
years of age and, if the direct victim is the harm; and the extent to which
under 21 years of age, parents and un- there is permanent or serious harm to
married siblings under 18 years of age, the appearance, health, or physical or
will be considered victims of qualifying mental soundness of the victim, includ-
criminal activity where the direct vic- ing aggravation of pre-existing condi-
tim is deceased due to murder or man- tions. No single factor is a prerequisite
slaughter, or is incompetent or inca- to establish that the abuse suffered was
pacitated, and therefore unable to pro- substantial. Also, the existence of one
vide information concerning the crimi- or more of the factors automatically
nal activity or be helpful in the inves- does not create a presumption that the
tigation or prosecution of the criminal abuse suffered was substantial. A series
activity. For purposes of determining of acts taken together may be consid-
eligibility under this definition, USCIS ered to constitute substantial physical
will consider the age of the victim at or mental abuse even where no single
the time the qualifying criminal activ- act alone rises to that level;
ity occurred. (2) The alien possesses credible and
(ii) A petitioner may be considered a reliable information establishing that
victim of witness tampering, obstruc- he or she has knowledge of the details
tion of justice, or perjury, including concerning the qualifying criminal ac-
any attempt, solicitation, or con- tivity upon which his or her petition is
spiracy to commit one or more of those based. The alien must possess specific
offenses, if: facts regarding the criminal activity
(A) The petitioner has been directly leading a certifying official to deter-
and proximately harmed by the perpe- mine that the petitioner has, is, or is
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trator of the witness tampering, ob- likely to provide assistance to the in-
struction of justice, or perjury; and vestigation or prosecution of the quali-
(B) There are reasonable grounds to fying criminal activity. In the event
conclude that the perpetrator com- that the alien has not yet reached 16
430
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Department of Homeland Security § 214.14
years of age on the date on which an certification and other evidence that
act constituting an element of the was submitted with the request for in-
qualifying criminal activity first oc- terim relief.
curred, a parent, guardian or next (i) Petitioners in pending immigration
friend of the alien may possess the in- proceedings. An alien who is in removal
formation regarding a qualifying proceedings under section 240 of the
crime. In addition, if the alien is inca- Act, 8 U.S.C. 1229a, or in exclusion or
pacitated or incompetent, a parent, deportation proceedings initiated
guardian, or next friend may possess under former sections 236 or 242 of the
the information regarding the quali- Act, 8 U.S.C. 1226 and 1252 (as in effect
fying crime; prior to April 1, 1997), and who would
(3) The alien has been helpful, is like to apply for U nonimmigrant sta-
being helpful, or is likely to be helpful tus must file a Form I–918 directly with
to a certifying agency in the investiga- USCIS. U.S. Immigration and Customs
tion or prosecution of the qualifying Enforcement (ICE) counsel may agree,
criminal activity upon which his or her as a matter of discretion, to file, at the
petition is based, and since the initi- request of the alien petitioner, a joint
ation of cooperation, has not refused or motion to terminate proceedings with-
failed to provide information and as- out prejudice with the immigration
sistance reasonably requested. In the judge or Board of Immigration Appeals,
event that the alien has not yet whichever is appropriate, while a peti-
reached 16 years of age on the date on tion for U nonimmigrant status is
which an act constituting an element being adjudicated by USCIS.
of the qualifying criminal activity first
(ii) Petitioners with final orders of re-
occurred, a parent, guardian or next
moval, deportation, or exclusion. An alien
friend of the alien may provide the re-
who is the subject of a final order of re-
quired assistance. In addition, if the
moval, deportation, or exclusion is not
petitioner is incapacitated or incom-
precluded from filing a petition for U–
petent and, therefore, unable to be
1 nonimmigrant status directly with
helpful in the investigation or prosecu-
USCIS. The filing of a petition for U–1
tion of the qualifying criminal activ-
nonimmigrant status has no effect on
ity, a parent, guardian, or next friend
ICE’s authority to execute a final
may provide the required assistance;
and order, although the alien may file a re-
(4) The qualifying criminal activity quest for a stay of removal pursuant to
occurred in the United States (includ- 8 CFR 241.6(a) and 8 CFR 1241.6(a). If
ing Indian country and U.S. military the alien is in detention pending execu-
installations) or in the territories or tion of the final order, the time during
possessions of the United States, or which a stay is in effect will extend the
violated a U.S. federal law that pro- period of detention (under the stand-
vides for extraterritorial jurisdiction ards of 8 CFR 241.4) reasonably nec-
to prosecute the offense in a U.S. fed- essary to bring about the petitioner’s
eral court. removal.
(c) Application procedures for U non- (2) Initial evidence. Form I–918 must
immigrant status—(1) Filing a petition. include the following initial evidence:
USCIS has sole jurisdiction over all pe- (i) Form I–918, Supplement B, ‘‘U
titions for U nonimmigrant status. An Nonimmigrant Status Certification,’’
alien seeking U–1 nonimmigrant status signed by a certifying official within
must submit, by mail, Form I–918, the six months immediately preceding
‘‘Petition for U Nonimmigrant Sta- the filing of Form I–918. The certifi-
tus,’’ applicable biometric fee (or re- cation must state that: the person
quest for a fee waiver as provided in 8 signing the certificate is the head of
CFR 103.7(c)), and initial evidence to the certifying agency, or any person(s)
USCIS in accordance with this para- in a supervisory role who has been spe-
graph and the instructions to Form I– cifically designated by the head of the
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431
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§ 214.14 8 CFR Ch. I (1–1–10 Edition)
Federal, State, or local law enforce- (iii) A signed statement by the peti-
ment agency, or prosecutor, judge or tioner describing the facts of the vic-
other authority, that has responsi- timization. The statement also may in-
bility for the detection, investigation, clude information supporting any of
prosecution, conviction, or sentencing the eligibility requirements set out in
of qualifying criminal activity; the ap- paragraph (b) of this section. When the
plicant has been a victim of qualifying petitioner is under the age of 16, inca-
criminal activity that the certifying pacitated, or incompetent, a parent,
official’s agency is investigating or guardian, or next friend may submit a
prosecuting; the petitioner possesses statement on behalf of the petitioner;
information concerning the qualifying and
criminal activity of which he or she (iv) If the petitioner is inadmissible,
has been a victim; the petitioner has Form I–192, ‘‘Application for Advance
been, is being, or is likely to be helpful Permission to Enter as Non-Immi-
to an investigation or prosecution of grant,’’ in accordance with 8 CFR
that qualifying criminal activity; and 212.17.
the qualifying criminal activity vio- (3) Biometric capture. All petitioners
lated U.S. law, or occurred in the for U–1 nonimmigrant status must sub-
United States, its territories, its pos- mit to biometric capture and pay a bio-
sessions, Indian country, or at military metric capture fee. USCIS will notify
installations abroad. the petitioner of the proper time and
(ii) Any additional evidence that the location to appear for biometric cap-
petitioner wants USCIS to consider to ture after the petitioner files Form I–
establish that: the petitioner is a vic- 918.
tim of qualifying criminal activity; the (4) Evidentiary standards and burden of
petitioner has suffered substantial proof. The burden shall be on the peti-
physical or mental abuse as a result of tioner to demonstrate eligibility for U–
being a victim of qualifying criminal 1 nonimmigrant status. The petitioner
activity; the petitioner (or, in the case may submit any credible evidence re-
of a child under the age of 16 or peti- lating to his or her Form I–918 for con-
tioner who is incompetent or incapaci- sideration by USCIS. USCIS shall con-
tated, a parent, guardian or next friend duct a de novo review of all evidence
of the petitioner) possesses information submitted in connection with Form I–
establishing that he or she has knowl- 918 and may investigate any aspect of
edge of the details concerning the the petition. Evidence previously sub-
qualifying criminal activity of which mitted for this or other immigration
he or she was a victim and upon which benefit or relief may be used by USCIS
his or her application is based; the pe- in evaluating the eligibility of a peti-
titioner (or, in the case of a child under tioner for U–1 nonimmigrant status.
the age of 16 or petitioner who is in- However, USCIS will not be bound by
competent or incapacitated, a parent, its previous factual determinations.
guardian or next friend of the peti- USCIS will determine, in its sole dis-
tioner) has been helpful, is being help- cretion, the evidentiary value of pre-
ful, or is likely to be helpful to a Fed- viously or concurrently submitted evi-
eral, State, or local law enforcement dence, including Form I–918, Supple-
agency, prosecutor, or authority, or ment B, ‘‘U Nonimmigrant Status Cer-
Federal or State judge, investigating tification.’’
or prosecuting the criminal activity of (5) Decision. After completing its de
which the petitioner is a victim; or the novo review of the petition and evi-
criminal activity is qualifying and oc- dence, USCIS will issue a written deci-
curred in the United States (including sion approving or denying Form I–918
Indian country and U.S. military in- and notify the petitioner of this deci-
stallations) or in the territories or pos- sion. USCIS will include in a decision
sessions of the United States, or vio- approving Form I–918 a list of non-
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432
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Department of Homeland Security § 214.14
peals Office (AAO) in accordance with who may be issued a U–1 nonimmigrant
the provisions of 8 CFR 103.3. For peti- visa or granted U–1 nonimmigrant sta-
tioners who appeal a denial of their tus may not exceed 10,000 in any fiscal
Form I–918 to the AAO, the denial will year.
433
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§ 214.14 8 CFR Ch. I (1–1–10 Edition)
(2) Waiting list. All eligible peti- (ii) By the Secretary of Homeland Se-
tioners who, due solely to the cap, are curity, at his discretion, to law en-
not granted U–1 nonimmigrant status forcement officials to be used solely for
must be placed on a waiting list and re- a legitimate law enforcement purpose;
ceive written notice of such placement. (iii) In conjunction with judicial re-
Priority on the waiting list will be de- view of a determination in a manner
termined by the date the petition was that protects the confidentiality of
filed with the oldest petitions receiving such information;
the highest priority. In the next fiscal (iv) After adult petitioners for U non-
year, USCIS will issue a number to immigrant status or U nonimmigrant
each petition on the waiting list, in the status holders have provided written
order of highest priority, providing the consent to waive the restrictions pro-
petitioner remains admissible and eli- hibiting the release of information;
gible for U nonimmigrant status. After (v) To Federal, State, and local pub-
U–1 nonimmigrant status has been lic and private agencies providing ben-
issued to qualifying petitioners on the efits, to be used solely in making deter-
waiting list, any remaining U–1 non- minations of eligibility for benefits
immigrant numbers for that fiscal year pursuant to 8 U.S.C. 1641(c);
will be issued to new qualifying peti- (vi) After a petition for U non-
tioners in the order that the petitions immigrant status has been denied in a
were properly filed. USCIS will grant final decision;
deferred action or parole to U–1 peti- (vii) To the chairmen and ranking
tioners and qualifying family members members of the Committee on the Ju-
while the U–1 petitioners are on the diciary of the Senate or the Committee
waiting list. USCIS, in its discretion, on the Judiciary of the House of Rep-
may authorize employment for such resentatives, for the exercise of con-
petitioners and qualifying family mem- gressional oversight authority, pro-
bers. vided the disclosure relates to informa-
(3) Unlawful presence. During the time tion about a closed case and is made in
a petitioner for U nonimmigrant status a manner that protects the confiden-
who was granted deferred action or pa- tiality of the information and omits
role is on the waiting list, no accrual of personally identifying information (in-
unlawful presence under section cluding locational information about
212(a)(9)(B) of the INA, 8 U.S.C. individuals);
1182(a)(9)(B), will result. However, a pe- (viii) With prior written consent from
titioner may be removed from the the petitioner or derivative family
waiting list, and the deferred action or members, to nonprofit, nongovern-
parole may be terminated at the dis- mental victims’ service providers for
cretion of USCIS. the sole purpose of assisting the victim
(e) Restrictions on use and disclosure of in obtaining victim services from pro-
information relating to petitioners for U grams with expertise working with im-
nonimmigrant classification—(1) General. migrant victims; or
The use or disclosure (other than to a (ix) To federal prosecutors to comply
sworn officer or employee of DHS, the with constitutional obligations to pro-
Department of Justice, the Department vide statements by witnesses and cer-
of State, or a bureau or agency of any tain other documents to defendants in
of those departments, for legitimate pending federal criminal proceedings.
department, bureau, or agency pur- (2) Agencies receiving information
poses) of any information relating to under this section, whether govern-
the beneficiary of a pending or ap- mental or non-governmental, are
proved petition for U nonimmigrant bound by the confidentiality provisions
status is prohibited unless the disclo- and other restrictions set out in 8
sure is made: U.S.C. 1367.
(i) By the Secretary of Homeland Se- (3) Officials of the Department of
curity, at his discretion, in the same Homeland Security are prohibited from
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434
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Department of Homeland Security § 214.14
mental abuse and the criminal activ- member who is in removal proceedings
ity. under section 240 of the Act, 8 U.S.C.
(f) Admission of qualifying family mem- 1229a, or in exclusion or deportation
bers—(1) Eligibility. An alien who has proceedings initiated under former sec-
petitioned for or has been granted U–1 tions 236 or 242 of the Act, 8 U.S.C. 1226
nonimmigrant status (i.e., principal and 1252 (as in effect prior to April 1,
alien) may petition for the admission 1997), and who is seeking U non-
of a qualifying family member in a U– immigrant status, must file a Form I–
2 (spouse), U–3 (child), U–4 (parent of a 918, Supplement A directly with
U–1 alien who is a child under 21 years USCIS. ICE counsel may agree to file,
of age), or U–5 (unmarried sibling under at the request of the qualifying family
the age of 18) derivative status, if ac- member, a joint motion to terminate
companying or following to join such proceedings without prejudice with the
principal alien. A qualifying family immigration judge or Board of Immi-
member who committed the qualifying
gration Appeals, whichever is appro-
criminal activity in a family violence
priate, while the petition for U non-
or trafficking context which estab-
immigrant status is being adjudicated
lished the principal alien’s eligibility
for U nonimmigrant status shall not be by USCIS.
granted U–2, U–3, U–4, or U–5 non- (ii) Qualifying family members with
immigrant status. To be eligible for U– final orders of removal, deportation, or
2, U–3, U–4, or U–5 nonimmigrant sta- exclusion. An alien who is the subject
tus, it must be demonstrated that: of a final order of removal, deporta-
(i) The alien for whom U–2, U–3, U–4, tion, or exclusion is not precluded from
or U–5 status is being sought is a quali- filing a petition for U–2, U–3, U–4, or U–
fying family member, as defined in 5 nonimmigrant status directly with
paragraph (a)(10) of this section; and USCIS. The filing of a petition for U–2,
(ii) The qualifying family member is U–3, U–4, or U–5 nonimmigrant status
admissible to the United States. has no effect on ICE’s authority to exe-
(2) Filing procedures. A petitioner for cute a final order, although the alien
U–1 nonimmigrant status may apply may file a request for a stay of removal
for derivative U nonimmigrant status pursuant to 8 CFR 241.6(a) and 8 CFR
on behalf of qualifying family members 1241.6(a). If the alien is in detention
by submitting a Form I–918, Supple- pending execution of the final order,
ment A, ‘‘Petition for Qualifying Fam- the time during which a stay is in ef-
ily Member of U–1 Recipient,’’ for each fect will extend the period of detention
family member either at the same time (under the standards of 8 CFR 241.4)
the petition for U–1 nonimmigrant sta- reasonably necessary to bring about
tus is filed, or at a later date. An alien the alien’s removal.
who has been granted U–1 non- (3) Initial evidence. Form I–918, Sup-
immigrant status may apply for deriv- plement A, must include the following
ative U nonimmigrant status on behalf
initial evidence:
of qualifying family members by sub-
(i) Evidence demonstrating the rela-
mitting Form I–918, Supplement A for
each family member. All Forms I–918, tionship of a qualifying family mem-
Supplement A must be accompanied by ber, as provided in paragraph (f)(4) of
initial evidence and the required fees this section;
specified in the instructions to the (ii) If the qualifying family member
form. Forms I–918, Supplement A that is inadmissible, Form I–192, ‘‘Applica-
are not filed at the same time as Form tion for Advance Permission to Enter
I–918 but are filed at a later date must as a Non-Immigrant,’’ in accordance
be accompanied by a copy of the Form with 8 CFR 212.17.
I–918 that was filed by the principal pe- (4) Relationship. Except as set forth in
titioner or a copy of his or her Form I– paragraphs (f)(4)(i) and (ii) of this sec-
94 demonstrating proof of U–1 non- tion, the relationship between the U–1
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435
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§ 214.14 8 CFR Ch. I (1–1–10 Edition)
436
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Department of Homeland Security § 214.14
the date the denial becomes adminis- activity. In order to obtain an exten-
tratively final. sion of U nonimmigrant status based
(7) Employment authorization. An alien upon such an attestation, the alien
granted U–2, U–3, U–4, or U–5 non- must file Form I–539 and a newly exe-
immigrant status is employment au- cuted Form I–918, Supplement B in ac-
thorized incident to status. To obtain cordance with the instructions to Form
an Employment Authorization Docu- I–539.
ment (EAD), such alien must file Form (h) Revocation of approved petitions for
I–765, ‘‘Application for Employment U nonimmigrant status—(1) Automatic
Authorization,’’ with the appropriate revocation. An approved petition for U–
fee or a request for a fee waiver, in ac- 1 nonimmigrant status will be revoked
cordance with the instructions to the automatically if, pursuant to 8 CFR
form. For qualifying family members 214.14(d)(1), the beneficiary of the ap-
within the United States, the Form I– proved petition notifies the USCIS of-
765 may be filed concurrently with fice that approved the petition that he
Form I–918, Supplement A, or at any or she will not apply for admission to
time thereafter. For qualifying family the United States and, therefore, the
members who are outside the United petition will not be used.
States, Form I–765 only may be filed (2) Revocation on notice. (i) USCIS
after admission to the United States in may revoke an approved petition for U
U nonimmigrant status. nonimmigrant status following a no-
(g) Duration of U nonimmigrant sta- tice of intent to revoke. USCIS may re-
tus—(1) In general. U nonimmigrant voke an approved petition for U non-
status may be approved for a period immigrant status based on one or more
not to exceed 4 years in the aggregate. of the following reasons:
A qualifying family member granted
(A) The certifying official withdraws
U–2, U–3, U–4, and U–5 nonimmigrant
the U nonimmigrant status certifi-
status will be approved for an initial
cation referred to in 8 CFR
period that does not exceed the expira-
214.14(c)(2)(i) or disavows the contents
tion date of the initial period approved
in writing;
for the principal alien.
(2) Extension of status. (i) Where a U (B) Approval of the petition was in
nonimmigrant’s approved period of error;
stay on Form I–94 is less than 4 years, (C) Where there was fraud in the peti-
he or she may file Form I–539, ‘‘Appli- tion;
cation to Extend/Change Non- (D) In the case of a U–2, U–3, U–4, or
immigrant Status,’’ to request an ex- U–5 nonimmigrant, the relationship to
tension of U nonimmigrant status for the principal petitioner has termi-
an aggregate period not to exceed 4 nated; or
years. USCIS may approve an exten- (E) In the case of a U–2, U–3, U–4, or
sion of status for a qualifying family U–5 nonimmigrant, the principal U–1’s
member beyond the date when the U–1 nonimmigrant status is revoked.
nonimmigrant’s status expires when (ii) The notice of intent to revoke
the qualifying family member is unable must be in writing and contain a state-
to enter the United States timely due ment of the grounds for the revocation
to delays in consular processing, and and the time period allowed for the U
an extension of status is necessary to nonimmigrant’s rebuttal. The alien
ensure that the qualifying family may submit evidence in rebuttal with-
member is able to attain at least 3 in 30 days of the date of the notice.
years in nonimmigrant status for pur- USCIS shall consider all relevant evi-
poses of adjusting status under section dence presented in deciding whether to
245(m) of the Act, 8 U.S.C. 1255. revoke the approved petition for U non-
(ii) Extensions of U nonimmigrant immigrant status. The determination
status beyond the 4-year period are of what is relevant evidence and the
available upon attestation by the certi- weight to be given to that evidence will
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fying official that the alien’s presence be within the sole discretion of USCIS.
in the United States continues to be If USCIS revokes approval of a petition
necessary to assist in the investigation and thereby terminates U non-
or prosecution of qualifying criminal immigrant status, USCIS will provide
437
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§ 214.15 8 CFR Ch. I (1–1–10 Edition)
the alien with a written notice of rev- (2) The availability of an immigrant
ocation that explains the specific rea- visa number; or
sons for the revocation. (3) Lawful permanent resident (LPR)
(3) Appeal of a revocation of approval. status through adjustment of status or
A revocation on notice may be ap- an immigrant visa.
pealed to the Administrative Appeals (b) Aliens already in the United States.
Office in accordance with 8 CFR 103.3 Eligible aliens already in the United
within 30 days after the date of the no- States may apply to the Service to ob-
tice of revocation. Automatic revoca- tain V nonimmigrant status for the
tions may not be appealed. same purpose. Aliens in the United
(4) Effects of revocation of approval. States in V nonimmigrant status are
Revocation of a principal alien’s ap- entitled to reside in the United States
proved Form I–918 will result in termi- as V nonimmigrants and obtain em-
nation of status for the principal alien, ployment authorization.
as well as in the denial of any pending (c) Eligibility. Subject to section
Form I–918, Supplement A filed for 214(o) of the Act, an alien who is the
qualifying family members seeking U– beneficiary (including a child of the
2, U–3, U–4, or U–5 nonimmigrant sta- principal alien, if eligible to receive a
tus. Revocation of a qualifying family visa under section 203(d) of the Act) of
member’s approved Form I–918, Supple- an immigrant visa petition to accord a
ment A will result in termination of status under section 203(a)(2)(A) of the
status for the qualifying family mem- Act that was filed with the Service
ber. Revocation of an approved Form I– under section 204 of the Act on or be-
918 or Form I–918, Supplement A also fore December 21, 2000, may apply for V
revokes any waiver of inadmissibility nonimmigrant status if:
granted in conjunction with such peti- (1) Such immigrant visa petition has
tion. been pending for 3 years or more; or
(i) Removal proceedings. Nothing in (2) Such petition has been approved,
this section prohibits USCIS from in- and 3 or more years have passed since
stituting removal proceedings under such filing date, in either of the fol-
section 240 of the Act, 8 U.S.C. 1229(a), lowing circumstances:
for conduct committed after admis- (i) An immigrant visa is not imme-
sion, for conduct or a condition that diately available to the alien because
was not disclosed to USCIS prior to the of a waiting list of applicants for visas
granting of U nonimmigrant status, for under section 203(a)(2)(A) of the Act; or
misrepresentations of material facts in (ii) The alien’s application for an im-
Form I–918 or Form I–918, Supplement migrant visa, or the alien’s application
A and supporting documentation, or for adjustment of status under section
after revocation of U nonimmigrant 245 of the Act, pursuant to the approval
status. of such petition, remains pending.
[72 FR 53036, Sept. 17, 2007, as amended at 72 (d) The definition of ‘‘pending peti-
FR 54813, Sept. 27, 2007; 74 FR 55738, Oct. 28, tion.’’ For purposes of this section, a
2009] pending petition is defined as a peti-
tion to accord a status under section
§ 214.15 Certain spouses and children 203(a)(2)(A) of the Act that was filed
of lawful permanent residents. with USCIS under section 204 of the
(a) Aliens abroad. Under section Act on or before December 21, 2000, and
101(a)(15)(v) of the Act, certain eligible has not been adjudicated. In addition,
spouses and children of lawful perma- the petition must have been properly
nent residents may apply for a V non- filed according to 8 CFR 103.2(a), and if,
immigrant visa at a consular office subsequent to filing, USCIS returns the
abroad and be admitted to the United petition to the applicant for any reason
States in V–1 (spouse), V–2 (child), or or makes a request for evidence or
V–3 (dependent child of the spouse or issues a notice of intent to deny under
child who is accompanying or following 8 CFR 103.2(b), the petitioner must
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to join the principal beneficiary) non- comply with the request within the
immigrant status to await the ap- time period set by USCIS. If USCIS de-
proval of: nies a petition but the petitioner ap-
(1) A relative visa petition; peals that decision, the petition will be
438
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Department of Homeland Security § 214.15
filing of the immigrant petition that who applies for admission to the
qualifies the alien for V status. Proof United States in a V nonimmigrant
of filing may include Form I–797, No- category at a designated Port-of-Entry
tice of Action, which serves as a re- and has a current priority date but
439
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§ 214.15 8 CFR Ch. I (1–1–10 Edition)
does not have a pending immigrant immigrant status with a pending Form
visa abroad or application for adjust- I–485 (Application to Register Perma-
ment of status in the United States, nent Residence or Adjust Status) that
the Service will admit the alien for a 6- was properly filed with the Service
month period (or to the date of the day does not have to obtain advance parole
before the alien’s 21st birthday, as ap- in order to prevent the abandonment of
propriate). that application when the alien departs
(ii) For such an alien in the United the United States.
States who applies for extension of V (3) Unlawful presence—(i) Non-
nonimmigrant status, the Service will immigrant admission. An alien otherwise
grant a one-time extension not to ex- eligible for admission as a V non-
ceed 6 months. immigrant is not subject to the ground
(iii) If the alien has not filed an ap- of inadmissibility under section
plication, either for adjustment of sta- 212(a)(9)(B) of the Act. This is true even
tus or for an immigrant visa within if the alien had accrued more than 180
that 6-month period, the alien cannot days of unlawful presence in the United
extend or be admitted or readmitted to States and is applying for admission as
V nonimmigrant status. If the alien a nonimmigrant after travel abroad.
does file an application, either for ad- (ii) Permanent resident status. A V
justment of status or for an immigrant nonimmigrant alien is subject to the
visa within the time allowed, the alien ground of inadmissibility under section
will continue to be eligible for further 212(a)(9)(B) of the Act when applying
extensions of V nonimmigrant status for an immigrant visa or for adjust-
as provided in this section while that ment of status to that of a lawful per-
application remains pending. manent resident. Therefore, a depar-
(h) Employment authorization. An ture from the United States at any
alien in V nonimmigrant status may time after having accrued more than
apply to the Service for employment
180 days of unlawful presence will
authorization pursuant to this section
render the alien inadmissible under
and § 274a.12(a)(15) of this chapter. An
that section for the purpose of adjust-
alien must file Form I–765, Application
ment of status or admission as an im-
for Employment Authorization, with
migrant, unless he or she has obtained
the fee required by 8 CFR 103.7. The
a waiver under section 212(a)(9)(B)(v) of
Service will grant employment author-
the Act or falls within one of the ex-
ization to aliens in V nonimmigrant
ceptions in section 212(a)(9)(B)(iii) of
status who remain eligible for V non-
the Act.
immigrant status valid for a period
(j) Termination of status—(1) General.
equal to the alien’s authorized admis-
The status of an alien admitted to the
sion as a V nonimmigrant.
United States as a V nonimmigrant
(i) Travel abroad; unlawful presence—
under section 101(a)(15)(V) of the Act
(1) V nonimmigrant status in the United
shall be automatically terminated 30
States. An alien who applies for and ob-
days following the occurrence of any of
tains V nonimmigrant status in the
the following:
United States will be issued Form I–
797, Notice of Action, indicating the (i) The denial, withdrawal, or revoca-
alien’s V status in the United States. tion of the Form I–130, Petition for Im-
Form I–797 does not serve as a travel mediate Relative, filed on behalf of
document. If such an alien departs the that alien;
United States, he or she must obtain a (ii) The denial or withdrawal of the
V visa from a consular office abroad in immigrant visa application filed by
order to be readmitted to the United that alien;
States as a V nonimmigrant. This visa (iii) The denial or withdrawal of the
requirement, however, does not apply if alien’s application for adjustment of
the alien traveled to contiguous terri- status to that of lawful permanent res-
tory or adjacent islands, possesses an- idence;
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other valid visa, and is eligible for (iv) The V–1 spouse’s divorce from
automatic revalidation. the LPR becomes final; or
(2) V nonimmigrants with a pending (v) The marriage of an alien in V–2 or
Form I–485. An alien in V non- V–3 status.
440
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Department of Homeland Security § 215.1
441
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§ 215.2 8 CFR Ch. I (1–1–10 Edition)
(e) The term United States means the (j) The term port of departure means a
several States, the District of Colum- port in the continental United States,
bia, Puerto Rico, the Virgin Islands, Alaska, Guam, Hawaii, Puerto Rico,
Guam, American Samoa, Swains Is- the Commonwealth of the Northern
land, the Commonwealth of the North- Mariana Islands (beginning November
ern Mariana Islands (beginning Novem- 28, 2009), or the Virgin Islands, des-
ber 28, 2009), and all other territory and ignated as a port of entry by the Sec-
waters, continental and insular, sub- retary, or in exceptional circumstances
ject to the jurisdiction of the United such other place as the departure-con-
States. trol officer may, in his discretion, des-
(f) The term continental United States ignate in an individual case, or a port
means the District of Columbia and the in American Samoa, or Swains Island,
several States, except Alaska and Ha- designated as a port of entry by the
waii. chief executive officer thereof.
(g) The term geographical part of the (k) The term special inquiry officer
United States means: shall have the meaning ascribed there-
(1) The continental United States, to in section 101(b)(4) of the Immigra-
(2) Alaska, tion and Nationality Act.
(3) Hawaii,
(4) Puerto Rico, [45 FR 65516, Oct. 3, 1980, as amended at 74 FR
2836, Jan. 16, 2009; 74 FR 25388, May 28, 2009]
(5) The Virgin Islands,
(6) Guam, § 215.2 Authority of departure-control
(7) American Samoa, officer to prevent alien’s departure
(8) Swains Island, or from the United States.
(9) The Commonwealth of the North- (a) No alien shall depart, or attempt
ern Mariana Islands (beginning Novem- to depart, from the United States if his
ber 28, 2009). departure would be prejudicial to the
(h) The term depart from the United interests of the United States under
States means depart by land, water, or the provisions of § 215.3. Any departure-
air: (1) From the United States for any control officer who knows or has rea-
foreign place, or (2) from one geo- son to believe that the case of an alien
graphical part of the United States for
in the United States comes within the
a separate geographical part of the
provisions of § 215.3 shall temporarily
United States: Provided, That a trip or
prevent the departure of such alien
journey upon a public ferry, passenger
from the United States and shall serve
vessel sailing coastwise on a fixed
him with a written temporary order di-
schedule, excursion vessel, or aircraft,
having both termini in the continental recting him not to depart, or attempt
United States or in any one of the to depart, from the United States until
other geographical parts of the United notified of the revocation of the order.
States and not touching any territory (b) The written order temporarily
or waters under the jurisdiction or con- preventing an alien, other than an
trol of a foreign power, shall not be enemy alien, from departing from the
deemed a departure from the United United States shall become final 15
States. days after the date of service thereof
(i) The term departure-control officer upon the alien, unless prior thereto the
means any immigration officer as de- alien requests a hearing as hereinafter
fined in the regulations of the Immi- provided. At such time as the alien is
gration and Naturalization Service who served with an order temporarily pre-
is designated to supervise the depar- venting his departure from the United
ture of aliens, or any officer or em- States, he shall be notified in writing
ployee of the United States designated concerning the provisions of this para-
by the Governor of the Canal Zone, the graph, and shall be advised of his right
High Commissioner of the Trust Terri- to request a hearing if entitled thereto
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tory of the Pacific Islands, or the gov- under § 215.4. In the case of an enemy
ernor of an outlying possession of the alien, the written order preventing de-
United States, to supervise the depar- parture shall become final on the date
ture of aliens. of its service upon the alien.
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Department of Homeland Security § 215.3
(c) Any alien who seeks to depart United States in measures adopted to
from the United States may be re- promote the peace, defense, or safety of
quired, in the discretion of the depar- the United States or such other coun-
ture-control officer, to be examined try.
under oath and to submit for official (d) Any alien who seeks to depart
inspection all documents, articles, and from the United States for the purpose
other property in his possession which of organizing, directing, or partici-
are being removed from the United pating in any rebellion, insurrection,
States upon, or in connection with, the or violent uprising in or against the
alien’s departure. The departure-con- United States or a country allied with
trol officer may permit certain other the United States, or of waging war
persons, including officials of the De- against the United States or its allies,
partment of State and interpreters, to
or of destroying, or depriving the
participate in such examination or in-
United States of sources of supplies or
spection and may exclude from pres-
materials vital to the national defense
ence at such examination or inspection
of the United States, or to the effec-
any person whose presence would not
further the objectives of such examina- tiveness of the measures adopted by
tion or inspection. The departure-con- the United States for its defense, or for
trol officer shall temporarily prevent the defense of any other country allied
the departure of any alien who refuses with the United States.
to submit to such examination or in- (e) Any alien who is subject to reg-
spection, and may, if necessary to the istration for training and service in the
enforcement of this requirement, take Armed Forces of the United States and
possession of the alien’s passport or who fails to present a Registration Cer-
other travel document. tificate (SSS Form No. 2) showing that
he has complied with his obligation to
§ 215.3 Alien whose departure is register under the Universal Military
deemed prejudicial to the interests Training and Service Act, as amended.
of the United States.
(f) Any alien who is a fugitive from
The departure from the United justice on account of an offense punish-
States of any alien within one or more able in the United States.
of the following categories shall be (g) Any alien who is needed in the
deemed prejudicial to the interests of United States as a witness in, or as a
the United States. party to, any criminal case under in-
(a) Any alien who is in possession of, vestigation or pending in a court in the
and who is believed likely to disclose United States: Provided, That any alien
to unauthorized persons, information
who is a witness in, or a party to, any
concerning the plans, preparation,
criminal case pending in any criminal
equipment, or establishments for the
court proceeding may be permitted to
national defense and security of the
depart from the United States with the
United States.
consent of the appropriate prosecuting
(b) Any alien who seeks to depart
from the United States to engage in, or authority, unless such alien is other-
who is likely to engage in, activities of wise prohibited from departing under
any kind designed to obstruct, impede, the provisions of this part.
retard, delay or counteract the effec- (h) Any alien who is needed in the
tiveness of the national defense of the United States in connection with any
United States or the measures adopted investigation or proceeding being, or
by the United States or the United Na- soon to be, conducted by any official
tions for the defense of any other coun- executive, legislative, or judicial agen-
try. cy in the United States or by any gov-
(c) Any alien who seeks to depart ernmental committee, board, bureau,
from the United States to engage in, or commission, or body in the United
who is likely to engage in, activities States, whether national, state, or
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443
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§ 215.4 8 CFR Ch. I (1–1–10 Edition)
444
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Department of Homeland Security § 215.5
445
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§ 215.6 8 CFR Ch. I (1–1–10 Edition)
§ 215.6 Departure from the Canal Zone, § 215.2 in the case of any alien who
the Trust Territory of the Pacific Is- seeks to depart from the United States
lands, or outlying possessions of the in the status of a nonimmigrant under
United States. section 101(a)(15) (A) or (G) of the Im-
(a) In addition to the restrictions and migration and Nationality Act, or in
prohibitions imposed by the provisions the status of a nonimmigrant under
of this part upon the departure of section 11(3), 11(4), or 11(5) of the Agree-
aliens from the United States, any ment between the United Nations and
alien who seeks to depart from the the United States of America regarding
Canal Zone, the Trust Territory of the the Headquarters of the United Nations
Pacific Islands, or an outlying posses- (61 Stat. 756): Provided, That in cases of
sion of the United States shall comply extreme urgency, where the national
with such other restrictions and prohi- security so requires, a departure-con-
bitions as may be imposed by regula- trol officer may preliminarily exercise
tions prescribed, with the concurrence the authority conferred by § 215.2 pend-
of the Administrator of the Bureau of ing the outcome of consultation with
Security and Consular Affairs and the the Administrator, which shall be un-
Commissioner, by the Governor of the dertaken immediately. In all cases
Canal Zone, the High Commissioner of arising under this section, the decision
the Trust Territory of the Pacific Is- of the Administrator shall be control-
lands, or by the governor of an out- ling: Provided, That any decision to
lying possession of the United States, prevent the departure of an alien shall
respectively. No alien shall be pre- be based upon a hearing and record as
vented from departing from such zone, prescribed in this part.
territory, or possession without first
being accorded a hearing as provided in § 215.8 Requirements for biometric
§§ 215.4 and 215.5. identifiers from aliens on departure
(b) The Governor of the Canal Zone, from the United States.
the High Commissioner of the Trust
(a)(1) The Secretary of Homeland Se-
Territory of the Pacific Islands, or the
curity, or his designee, may establish
governor of any outlying possession of
pilot programs at land border ports of
the United States shall have the au-
entry, and at up to fifteen air or sea
thority to designate any employee or
ports of entry, designated through no-
class of employees of the United States
tice in the FEDERAL REGISTER, through
as hearing officers for the purpose of
which the Secretary or his delegate
conducting the hearing referred to in
may require an alien admitted to or pa-
paragraph (a) of this section. The hear-
ing officer so designated shall exercise roled into the United States, other
the same powers, duties, and functions than aliens exempted under paragraph
as are conferred upon special inquiry (a)(2) of this section or Canadian citi-
officers under the provisions of this zens under section 101(a)(15)(B) of the
part. The chief executive officer of Act who were not otherwise required to
such zone, territory, or possession present a visa or have been issued
shall, in lieu of the regional commis- Form I–94 or Form I–95 upon arrival at
sioner, review the recommended deci- the United States, who departs the
sion of the hearing officer, and shall United States from a designated port of
render a decision in any case referred entry, to provide fingerprints, photo-
to him, basing it on evidence in the graph(s) or other specified biometric
record and on any evidence or informa- identifiers, documentation of his or her
tion of a confidential or a security na- immigration status in the United
ture which he deems pertinent. States, and such other evidence as may
be requested to determine the alien’s
§ 215.7 Instructions from the Adminis- identity and whether he or she has
trator required in certain cases. properly maintained his or her status
In the absence of appropriate instruc- while in the United States.
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Department of Homeland Security Pt. 216
(ii) Aliens admitted on A–1, A–2, C–3 section 212(a)(9) of the Immigration
(except for attendants, servants, or and Nationality Act or that the alien is
personal employees of accredited offi- otherwise ineligible for a visa or other
cials), G–1, G–2, G–3, G–4, NATO–1, authorization to reenter the United
NATO–2, NATO–3, NATO–4, NATO–5, or States, provided that all other require-
NATO–6 visas, and certain Taiwan offi- ments of section 212(a)(9) have been
cials who hold E–1 visas and members met. A determination that an alien
of their immediate families who hold who was admitted on the basis of a
E–1 visas who are maintaining such nonimmigrant visa has remained in the
status at time of departure, unless the United States beyond his or her au-
Secretary of State and the Secretary of thorized period of stay may result in
Homeland Security jointly determine such visa being deemed void pursuant
that a class of such aliens should be to section 222(g) of the Act (8 U.S.C.
subject to the requirements of para- 1202(g)) where all other requirements of
graph (a)(1); that section are also met.
(iii) Classes of aliens to whom the
[69 FR 480, Jan. 5, 2004, as amended at 69 FR
Secretary of Homeland Security and 53333, Aug. 31, 2004; 69 FR 58037, Sept. 29, 2004;
the Secretary of State jointly deter- 73 FR 77491, Dec. 19, 2008]
mine it shall not apply; or
(iv) An individual alien to whom the § 215.9 Temporary Worker Visa Exit
Secretary of Homeland Security, the Program.
Secretary of State, or the Director of An alien admitted on certain tem-
Central Intelligence determines it shall porary worker visas at a port of entry
not apply. participating in the Temporary Worker
(b) An alien who is required to pro- Visa Exit Program must also depart at
vide biometric identifiers at departure the end of his or her authorized period
pursuant to paragraph (a)(1) and who of stay through a port of entry partici-
fails to comply with the departure re- pating in the program and must
quirements may be found in violation present designated biographic and/or
of the terms of his or her admission, biometric information upon departure.
parole, or other immigration status. In U.S. Customs and Border Protection
addition, failure of a covered alien to will publish a Notice in the FEDERAL
comply with the departure require- REGISTER designating which temporary
ments could be a factor in support of a workers must participate in the Tem-
determination that the alien is ineli- porary Worker Visa Exit Program,
gible to receive a future visa or other which ports of entry are participating
immigration status documentation, or in the program, which biographical
to be admitted to the United States. In and/or biometric information would be
making this determination, the officer required, and the format for submis-
will consider the totality of the cir- sion of that information by the depart-
cumstances, including, but not limited ing designated temporary workers.
to, all positive and negative factors re-
lated to the alien’s ability to comply [73 FR 78130, Dec. 19, 2008]
with the departure procedures.
(c) A covered alien who leaves the PART 216—CONDITIONAL BASIS OF
United States without complying with LAWFUL PERMANENT RESIDENCE
the departure requirements in this sec- STATUS
tion may be found to have overstayed
the period of his or her last admission Sec.
where the available evidence clearly 216.1 Definition of conditional permanent
indicates that the alien did not depart resident.
the United States within the time pe- 216.2 Notification requirements.
riod authorized at his or her last ad- 216.3 Termination of conditional resident
mission or extension of stay. A deter- status.
216.4 Joint petition to remove conditional
mination that the alien previously
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§ 216.1 8 CFR Ch. I (1–1–10 Edition)
216.6 Petition by entrepreneur to remove § 216.2 Notification requirements.
conditional basis of lawful permanent
resident status. (a) When alien acquires status of condi-
tional permanent resident. At the time
AUTHORITY: 8 U.S.C. 1101, 1103, 1154, 1184, an alien acquires conditional perma-
1186a, 1186b, and 8 CFR part 2. nent residence through admission to
SOURCE: 53 FR 30018, Aug. 10, 1988, unless the United States with an immigrant
otherwise noted. visa or adjustment of status under sec-
tion 245 of the Act, the Service shall
§ 216.1 Definition of conditional per- notify the alien of the conditional basis
manent resident. of the alien’s status, of the require-
A conditional permanent resident is an ment that the alien apply for removal
alien who has been lawfully admitted of the conditions within the ninety
for permanent residence within the days immediately preceding the second
meaning of section 101(a)(20) of the Act, anniversary of the alien’s having been
except that a conditional permanent granted such status, and that failure to
resident is also subject to the condi- apply for removal of the conditions
will result in automatic termination of
tions and responsibilities set forth in
the alien’s lawful status in the United
section 216 or 216A of the Act, which-
States.
ever is applicable, and part 216 of this
(b) When alien is required to apply for
chapter. Unless otherwise specified, the removal of the conditional basis of lawful
rights, privileges, responsibilities and permanent resident status. Approxi-
duties which apply to all other lawful mately 90 days before the second anni-
permanent residents apply equally to versary of the date on which the alien
conditional permanent residents, in- obtained conditional permanent resi-
cluding but not limited to the right to dence, the Service should notify the
apply for naturalization (if otherwise alien a second time of the requirement
eligible), the right to file petitions on that the alien and the petitioning
behalf of qualifying relatives, the privi- spouse or alien entrepreneur must file
lege of residing permanently in the a petition to remove the conditional
United States as an immigrant in ac- basis of the alien’s lawful permanent
cordance with the immigration laws, residence. Such notification shall be
such status not having changed; the mailed to the alien’s last known ad-
duty to register with the Selective dress.
Service System, when required; and the (c) Effect of failure to provide notifica-
responsibility for complying with all tion. Failure of the Service to provide
laws and regulations of the United notification as required by either para-
States. All references within this chap- graph (a) or (b) of this section does not
ter to lawful permanent residents relieve the alien and the petitioning
apply equally to conditional perma- spouse, or alien entrepreneur of the re-
nent residents, unless otherwise speci- quirement to file a petition to remove
conditions within the 90 days imme-
fied. The conditions of section 216 of
diately preceding the second anniver-
the Act shall not apply to lawful per-
sary of the date on which the alien ob-
manent resident status based on a self-
tained permanent residence.
petitioning relationship under section
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), [53 FR 30018, Aug. 10, 1988, as amended at 59
204(a)(1)(b)(ii), or 204(a)(1)(B)(iii) of the FR 26590, May 23, 1994]
Act or based on eligibility as the deriv-
§ 216.3 Termination of conditional
ative child of a self-petitioning spouse resident status.
under section 204(a)(1)(A)(iii) or
204(a)(1)(B)(ii) of the Act, regardless of (a) During the two-year conditional pe-
riod. The director shall send a formal
the date on which the marriage to the
written notice to the conditional per-
abusive citizen or lawful permanent
manent resident of the termination of
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Department of Homeland Security § 216.4
449
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§ 216.4 8 CFR Ch. I (1–1–10 Edition)
(ii) Lease showing joint tenancy of a tor may waive the interview and ap-
common residence; prove the petition. If not so satisfied,
(iii) Documentation showing com- then the regional service center direc-
mingling of financial resources; tor shall forward the petition to the
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Department of Homeland Security § 216.4
district director having jurisdiction of the place where the marriage took
over the place of the alien’s residence place;
so that an interview of both the alien (2) The qualifying marriage has been
and the alien’s spouse may be con- judicially annulled or terminated,
ducted. The director must either waive other than through the death of a
the requirement for an interview and spouse;
adjudicate the petition or arrange for (3) The qualifying marriage was en-
an interview within 90 days of the date tered into for the purpose of procuring
on which the petition was properly permanent residence status for the
filed. alien; or
(2) Location of interview. Unless (4) A fee or other consideration was
waived, an interview on the Form I–751 given (other than a fee or other consid-
shall be conducted by an immigration eration to an attorney for assistance in
examiner or other officer so designated preparation of a lawful petition) in
by the district director at the district connection with the filing of the peti-
office, files control office or suboffice tion through which the alien obtained
having jurisdiction over the residence conditional permanent residence. If de-
of the joint petitioners. rogatory information is determined re-
(3) Termination of status for failure to garding any of these issues, the direc-
appear for interview. If the conditional tor shall offer the petitioners the op-
resident alien and/or the petitioning
portunity to rebut such information. If
spouse fail to appear for an interview
the petitioners fail to overcome such
in connection with the joint petition
derogatory information the director
required by section 216(c) of the Act,
may deny the joint petition, terminate
the alien’s permanent residence status
the alien’s permanent residence, and
will be automatically terminated as of
issue a notice to appear to initiate re-
the second anniversary of the date on
moval proceedings. If derogatory infor-
which the alien obtained permanent
mation not relating to any of these
residence. The alien shall be provided
issues is determined during the course
with written notification of the termi-
of the interview, such information
nation and the reasons therefor, and a
notice to appear shall be issued placing shall be forwarded to the investiga-
the alien under removal proceedings. tions unit for appropriate action. If no
The alien may seek review of the deci- unresolved derogatory information is
sion to terminate his or her status in determined relating to these issues, the
such proceedings, but the burden shall petition shall be approved and the con-
be on the alien to establish compliance ditional basis of the alien’s permanent
with the interview requirements. If the residence status removed, regardless of
alien submits a written request that any action taken or contemplated re-
the interview be rescheduled or that garding other possible grounds for re-
the interview be waived, and the direc- moval.
tor determines that there is good cause (d) Decision—(1) Approval. If the direc-
for granting the request, the interview tor approves the joint petition he or
may be rescheduled or waived, as ap- she shall provide written notice of the
propriate. If the interview is resched- decision to the alien and shall require
uled at the request of the petitioners, the alien to report to the appropriate
the Service shall not be required to office of the Service for processing for
conduct the interview within the 90- a new Permanent Resident Card (if nec-
day period following the filing of the essary), at which time the alien shall
petition. surrender any Permanent Resident
(c) Adjudication of petition. The direc- Card previously issued.
tor shall adjudicate the petition within (2) Denial. If the director denies the
90 days of the date of the interview, un- joint petition, he or she shall provide
less the interview is waived in accord- written notice to the alien of the deci-
ance with paragraph (b)(1) of this sec- sion and the reason(s) therefor and
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tion. In adjudicating the petition the shall issue a notice to appear under
director shall determine whether— section 239 of the Act and 8 CFR part
(1) The qualifying marriage was en- 239. The alien’s lawful permanent resi-
tered into in accordance with the laws dent status shall be terminated as of
451
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§ 216.5 8 CFR Ch. I (1–1–10 Edition)
452
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Department of Homeland Security § 216.5
and who was battered or was the sub- (v) The evaluation must contain the
ject of extreme cruelty or whose child professional’s full name, professional
was battered by or was the subject of address and license number. It must
extreme cruelty perpetrated by the also identify the licensing, certifying,
United States citizen or permanent or registering authority. The Service
resident spouse during the marriage, retains the right to verify the profes-
may request a waiver of the joint filing sional’s license.
requirement. The conditional resident (vi) The Service’s decision on ex-
parent of a battered or abused child treme mental cruelty waivers will be
may apply for the waiver regardless of based upon the evaluation of the recog-
the child’s citizenship or immigration nized professional. The Service re-
status. serves the right to request additional
(i) For the purpose of this chapter evaluations from expert witnesses cho-
the phrase ‘‘was battered by or was the sen by the Service. Requests for addi-
subject of extreme cruelty’’ includes, tional evaluations must be authorized
but is not limited to, being the victim by the Assistant Regional Commis-
of any act or threatened act of vio- sioner for Adjudications.
lence, including any forceful detention, (vii) Licensed clinical social workers,
which results or threatens to result in psychologists, and psychiatrists are
physical or mental injury. Psycho- professionals recognized by the Service
logical or sexual abuse or exploitation, for the purpose of this section. A clin-
including rape, molestation, incest (if ical social worker who is not licensed
the victim is a minor) or forced pros- only because the state in which he or
titution shall be considered acts of vio- she practices does not provide for li-
lence. censing will be considered a licensed
(ii) A conditional resident or former professional recognized by the Service
conditional resident who has not de- if he or she is included in the Register
parted the United States after termi- of Clinical Social Workers published by
nation of resident status may apply for the National Association of Social
the waiver. The conditional resident Workers or is certified by the Amer-
may apply for the waiver regardless of ican Board of Examiners in Clinical So-
his or her present marital status. The cial Work.
conditional resident may still be resid- (viii) As directed by the statute, the
ing with the citizen or permanent resi- information contained in the applica-
dent spouse, or may be divorced or sep- tion and supporting documents shall
arated. not be released without a court order
(iii) Evidence of physical abuse may or the written consent of the applicant;
include, but is not limited to, expert or, in the case of a child, the written
testimony in the form of reports and consent of the parent or legal guardian
affidavits from police, judges, medical who filed the waiver application on the
personnel, school officials and social child’s behalf. Information may be re-
service agency personnel. The Service leased only to the applicant, his or her
must be satisfied with the credibility authorized representative, an officer of
of the sources of documentation sub- the Department of Justice, or any fed-
mitted in support of the application. eral or State law enforcement agency.
(iv) The Service is not in a position Any information provided under this
to evaluate testimony regarding a part may be used for the purposes of
claim of extreme mental cruelty pro- enforcement of the Act or in any crimi-
vided by unlicensed or untrained indi- nal proceeding.
viduals. Therefore, all waiver applica- (f) Decision. The director shall pro-
tions based upon claims of extreme vide the alien with written notice of
mental cruelty must be supported by the decision on the application for
the evaluation of a professional recog- waiver. If the decision is adverse, the
nized by the Service as an expert in the director shall advise the alien of the
field. An evaluation which was ob- reasons therefor, notify the alien of the
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tained in the course of the divorce pro- termination of his or her permanent
ceedings may be submitted if it was residence status, instruct the alien to
provided by a professional recognized surrender any Permanent Resident
by the Service as an expert in the field. Card issued by the Service and issue a
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§ 216.6 8 CFR Ch. I (1–1–10 Edition)
notice to appear placing the alien in re- to comply with the interview require-
moval proceedings. No appeal shall lie ments contained in the Act. Once the
from the decision of the director; how- petition has been properly filed, the
ever, the alien may seek review of such alien may travel outside the United
decision in removal proceedings. States and return if in possession of
[53 FR 30018, Aug. 10, 1988, as amended at 56 documentation as set forth in
FR 22637, May 16, 1991; 59 FR 26591, May 23, § 211.1(b)(1) of this chapter, provided the
1994; 62 FR 10350, Mar. 6, 1997; 63 FR 70315, alien complies with the interview re-
Dec. 21, 1998; 74 FR 26939, June 5, 2009] quirements described in paragraph (b)
of this section. An alien who is not
§ 216.6 Petition by entrepreneur to re- physically present in the United States
move conditional basis of lawful
permanent resident status. during the filing period but subse-
quently applies for admission to the
(a) Filing the petition—(1) General pro- United States shall be processed in ac-
cedures. A petition to remove the con-
cordance with § 235.11 of this chapter.
ditional basis of the permanent resi-
(4) Documentation. The petition for
dent status of an alien accorded condi-
tional permanent residence pursuant to removal of conditions must be accom-
section 203(b)(5) of the Act must be panied by the following evidence:
filed by the alien entrepreneur on (i) Evidence that a commercial enter-
Form I–829, Petition by Entrepreneur prise was established by the alien.
to Remove Conditions. The alien entre- Such evidence may include, but is not
preneur must file Form I–829 within limited to, Federal income tax returns;
the 90-day period preceding the second (ii) Evidence that the alien invested
anniversary of his or her admission to or was actively in the process of invest-
the United States as a conditional per- ing the requisite capital. Such evidence
manent resident. Before Form I–829 may include, but is not limited to, an
may be considered as properly filed, it audited financial statement or other
must be accompanied by the fee re- probative evidence; and
quired under § 103.7(b)(1) of this chap- (iii) Evidence that the alien sus-
ter, and by documentation as described tained the actions described in para-
in paragraph (a)(4) of this section, and graph (a)(4)(i) and (a)(4)(ii) of this sec-
it must be properly signed by the alien. tion throughout the period of the
Upon receipt of a properly filed Form alien’s residence in the United States.
I–829, the alien’s conditional perma- The alien will be considered to have
nent resident status shall be extended sustained the actions required for re-
automatically, if necessary, until such moval of conditions if he or she has, in
time as the director has adjudicated good faith, substantially met the cap-
the petition. The entrepreneur’s spouse
ital investment requirement of the
and children should be included in the
statute and continuously maintained
petition to remove conditions. Children
his or her capital investment over the
who have reached the age of twenty-
one or who have married during the pe- two years of conditional residence.
riod of conditional permanent resi- Such evidence may include, but is not
dence and the former spouse of an en- limited to, bank statements, invoices,
trepreneur, who was divorced from the receipts, contracts, business licenses,
entrepreneur during the period of con- Federal or State income tax returns,
ditional permanent residence, may be and Federal or State quarterly tax
included in the alien entrepreneur’s pe- statements.
tition or may file a separate petition. (iv) Evidence that the alien created
(2) [Reserved] or can be expected to create within a
(3) Physical presence at time of filing. A reasonable time ten full-time jobs for
petition may be filed regardless of qualifying employees. In the case of a
whether the alien is physically present ‘‘troubled business’’ as defined in 8
in the United States. However, if the CFR 204.6(j)(4)(ii), the alien entre-
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alien is outside the United States at preneur must submit evidence that the
the time of filing, he or she must re- commercial enterprise maintained the
turn to the United States, with his or number of existing employees at no
her spouse and children, if necessary, less than the pre-investment level for
454
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Department of Homeland Security § 216.6
the period following his or her admis- moval of conditions if it can be dem-
sion as a conditional permanent resi- onstrated that the conditions set forth
dent. Such evidence may include pay- in paragraph (a)(4) of this section have
roll records, relevant tax documents, been met.
and Forms I–9. (b) Petition review—(1) Authority to
(5) Termination of status for failure to waive interview. The director of the
file petition. Failure to properly file service center shall review the Form I–
Form I–829 within the 90-day period im- 829 and the supporting documents to
mediately preceding the second anni- determine whether to waive the inter-
versary of the date on which the alien view required by the Act. If satisfied
obtained lawful permanent residence that the requirements set forth in
on a conditional basis shall result in paragraph (c)(1) of this section have
the automatic termination of the
been met, the service center director
alien’s permanent resident status and
may waive the interview and approve
the initiation of deportation pro-
the petition. If not so satisfied, then
ceedings. The director shall send a
the service center director shall for-
written notice of termination and an
order to show cause to an alien entre- ward the petition to the district direc-
preneur who fails to timely file a peti- tor having jurisdiction over the loca-
tion for removal of conditions. No ap- tion of the alien entrepreneur’s com-
peal shall lie from this decision; how- mercial enterprise in the United States
ever, the alien may request a review of so that an interview of the alien entre-
the determination during deportation preneur may be conducted. The direc-
proceedings. In deportation pro- tor must either waive the requirement
ceedings, the burden of proof shall rest for an interview and adjudicate the pe-
with the alien to show by a preponder- tition or arrange for an interview with-
ance of the evidence that he or she in 90 days of the date on which the pe-
complied with the requirement to file tition was properly filed.
the petition within the designated pe- (2) Location of interview. Unless
riod. The director may deem the peti- waived, an interview relating to the
tion to have been filed prior to the sec- Form I–829 shall be conducted by an
ond anniversary of the alien’s obtain- immigration examiner or other officer
ing conditional permanent resident so designated by the district director
status and accept and consider a late at the district office that has jurisdic-
petition if the alien demonstrates to tion over the location of the alien en-
the director’s satisfaction that failure trepreneur’s commercial enterprise in
to file a timely petition was for good the United States.
cause and due to extenuating cir- (3) Termination of status for failure to
cumstances. If the late petition is filed appear for interview. If the alien fails to
prior to jurisdiction vesting with the appear for an interview in connection
immigration judge in deportation pro-
with the petition when requested by
ceedings and the director excuses the
the Service, the alien’s permanent resi-
late filing and approves the petition, he
dent status will be automatically ter-
or she shall restore the alien’s perma-
nent resident status, remove the condi- minated as of the second anniversary
tional basis of such status, and cancel of the date on which the alien obtained
any outstanding order to show cause in permanent residence. The alien will be
accordance with § 242.7 of this chapter. provided with written notification of
If the petition is not filed until after the termination and the reasons there-
jurisdiction vests with the immigra- fore, and an order to show cause shall
tion judge, the immigration judge may be issued placing the alien under depor-
terminate the matter upon joint mo- tation proceedings. The alien may seek
tion by the alien and the Service. review of the decision to terminate his
(6) Death of entrepreneur and effect on or her status in such proceedings, but
spouse and children. If an entrepreneur the burden shall be on the alien to es-
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dies during the prescribed two-year pe- tablish by a preponderance of the evi-
riod of conditional permanent resi- dence that he or she complied with the
dence, the spouse and children of the interview requirements. If the alien
entrepreneur will be eligible for re- has failed to appear for a scheduled
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§ 216.6 8 CFR Ch. I (1–1–10 Edition)
(iv) The alien created or can be ex- shall issue an order to show cause why
pected to create within a reasonable the alien should not be deported from
period of time ten full-time jobs to the United States. The alien’s lawful
qualifying employees. In the case of a permanent resident status and that of
456
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Department of Homeland Security § 217.2
his or her spouse and any children shall Malta, Monaco, the Netherlands, New
be terminated as of the date of the di- Zealand, Norway, Portugal, Republic of
rector’s written decision. The alien Korea, San Marino, Singapore, Slovak
shall also be instructed to surrender Republic, Slovenia, Spain, Sweden,
any Permanent Resident Card pre- Switzerland, and the United Kingdom.
viously issued by the Service. No ap- The United Kingdom refers only to
peal shall lie from this decision; how- British citizens who have the unre-
ever, the alien may seek review of the stricted right of permanent abode in
decision in deportation proceedings. In the United Kingdom (England, Scot-
deportation proceedings, the burden land, Wales, Northern Ireland, the
shall rest with the Service to establish Channel Islands and the Isle of Man); it
by a preponderance of the evidence does not refer to British overseas citi-
that the facts and information in the zens, British dependent territories’
alien’s petition for removal of condi- citizens, or citizens of British Com-
tions are not true and that the petition monwealth countries. After May 15,
was properly denied. 2003, citizens of Belgium must present
[59 FR 26591, May 23, 1994, as amended at 63 a machine-readable passport in order
FR 70315, Dec. 21, 1998; 74 FR 26939, June 5, to be granted admission under the Visa
2009] Waiver Program.
Round trip ticket means any return
PART 217—VISA WAIVER trip transportation ticket in the name
PROGRAM of an arriving Visa Waiver Pilot Pro-
gram applicant on a participating car-
Sec. rier valid for at least 1 year, electronic
217.1 Scope. ticket record, airline employee passes
217.2 Eligibility. indicating return passage, individual
217.3 Maintenance of status. vouchers for return passage, group
217.4 Inadmissibility and deportability. vouchers for return passage for charter
217.5 Electronic System for Travel Author- flights, and military travel orders
ization.
217.6 Carrier agreements. which include military dependents for
217.7 Electronic data transmission require- return to duty stations outside the
ment. United States on U.S. military flights.
AUTHORITY: 8 U.S.C. 1103, 1187; 8 CFR part
A period of validity of 1 year need not
2. be reflected on the ticket itself, pro-
vided that the carrier agrees that it
SOURCE: 53 FR 24901, June 30, 1988, unless will honor the return portion of the
otherwise noted.
ticket at any time, as provided in
§ 217.1 Scope. Form I–775, Visa Waiver Pilot Program
Agreement.
The Visa Waiver Pilot Program (b) Special program requirements—(1)
(VWPP) described in this section is es- General. In addition to meeting all of
tablished pursuant to the provisions of the requirements for the Visa Waiver
section 217 of the Act. Pilot Program specified in section 217
[62 FR 10351, Mar. 6, 1997] of the Act, each applicant must possess
a valid, unexpired passport issued by a
§ 217.2 Eligibility. designated country and present a com-
(a) Definitions. As used in this part, pleted, signed Form I–94W, Non-
the term: immigrant Visa Waiver Arrival/Depar-
Carrier refers to the owner, charterer, ture Form.
lessee, or authorized agent of any com- (2) Persons previously removed as de-
mercial vessel or commercial aircraft portable aliens. Aliens who have been
engaged in transporting passengers to deported or removed from the United
the United States from a foreign place. States, after having been determined
Designated country refers to Andorra, deportable, require the consent of the
Australia, Austria, Belgium, Brunei, Attorney General to apply for admis-
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§ 217.3 8 CFR Ch. I (1–1–10 Edition)
this part notwithstanding the fact that ing that period, the alien is to be re-
the required consent of the Attorney garded as having satisfactorily accom-
General may have been secured. Such plished the visit without overstaying
aliens must secure a visa in order to be the allotted time.
admitted to the United States as non- (b) Readmission after departure to con-
immigrants, unless otherwise exempt. tiguous territory or adjacent island. An
(c) Restrictions on manner of arrival— alien admitted to the United States
(1) Applicants arriving by air and sea. under this part may be readmitted to
Applicants must arrive on a carrier the United States after a departure to
that is signatory to a Visa Waiver foreign contiguous territory or adja-
Pilot Program Agreement and at the cent island for the balance of his or her
time of arrival must have a round trip original Visa Waiver Pilot Program ad-
ticket that will transport the traveler mission period if he or she is otherwise
out of the United States to any other admissible and meets all the conditions
foreign port or place as long as the trip of this part with the exception of ar-
does not terminate in contiguous terri- rival on a signatory carrier.
tory or an adjacent island; except that [62 FR 10351, Mar. 6, 1997]
the round trip ticket may transport
the traveler to contiguous territory or § 217.4 Inadmissibility and deport-
an adjacent island, if the traveler is a ability.
resident of the country of destination. (a) Determinations of inadmissibility.
(2) Applicants arriving at land border (1) An alien who applies for admission
ports-of-entry. Any Visa Waiver Pilot under the provisions of section 217 of
Program applicant arriving at a land the Act, who is determined by an im-
border port-of-entry must provide evi- migration officer not to be eligible for
dence to the immigration officer of fi- admission under that section or to be
nancial solvency and a domicile abroad inadmissible to the United States
to which the applicant intends to re- under one or more of the grounds of in-
turn. An applicant arriving at a land- admissibility listed in section 212 of
border port-of-entry will be charged a the Act (other than for lack of a visa),
fee as prescribed in § 103.7(b)(1) of this or who is in possession of and presents
chapter for issuance of Form I–94W, fraudulent or counterfeit travel docu-
Nonimmigrant Visa Waiver Arrival/De- ments, will be refused admission into
parture Form. A round-trip transpor- the United States and removed. Such
tation ticket is not required of appli- refusal and removal shall be made at
cants at land border ports-of-entry. the level of the port director or officer-
(d) Aliens in transit. An alien who is in in-charge, or an officer acting in that
transit through the United States is el- capacity, and shall be effected without
igible to apply for admission under the referral of the alien to an immigration
Visa Waiver Pilot Program, provided judge for further inquiry, examination,
the applicant meets all other program or hearing, except that an alien who
requirements. presents himself or herself as an appli-
[62 FR 10351, Mar. 6, 1997, as amended at 62 cant for admission under section 217 of
FR 50999, Sept. 30, 1997; 64 FR 42007, Aug. 3, the Act and applies for asylum in the
1999; 67 FR 7945, Feb. 21, 2002; 68 FR 10957, United States must be issued a Form I–
Mar. 7, 2003; 73 FR 67712, Nov. 17, 2008; 73 FR 863, Notice of Referral to Immigration
79597, Dec. 30, 2008] Judge, for a proceeding in accordance
with 8 CFR 208.2(c)(1) and (c)(2).
§ 217.3 Maintenance of status. (2) The removal of an alien under this
(a) Satisfactory departure. If an emer- section may be deferred if the alien is
gency prevents an alien admitted under paroled into the custody of a Federal,
this part from departing from the State, or local law enforcement agency
United States within his or her period for criminal prosecution or punish-
of authorized stay, the district director ment. This section in no way dimin-
having jurisdiction over the place of ishes the discretionary authority of the
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the alien’s temporary stay may, in his Attorney General enumerated in sec-
or her discretion, grant a period of sat- tion 212(d) of the Act.
isfactory departure not to exceed 30 (3) Refusal of admission under para-
days. If departure is accomplished dur- graph (a)(1) of this section shall not
458
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Department of Homeland Security § 217.5
constitute removal for purposes of the § 217.5 Electronic System for Travel
Act. Authorization.
(b) Determination of deportability. (1) (a) Travel authorization required. Each
An alien who has been admitted to the nonimmigrant alien intending to travel
United States under the provisions of by air or sea to the United States
section 217 of the Act and of this part under the Visa Waiver Program (VWP)
who is determined by an immigration must, within the time specified in
officer to be deportable from the paragraph (b) of this section, receive a
United States under one or more of the travel authorization, which is a posi-
grounds of deportability listed in sec- tive determination of eligibility to
tion 237 of the Act shall be removed travel to the United States under the
from the United States to his or her VWP via the Electronic System for
country of nationality or last resi- Travel Authorization (ESTA), from
CBP. In order to receive a travel au-
dence. Such removal shall be deter-
thorization, each nonimmigrant alien
mined by the district director who has
intending to travel to the United
jurisdiction over the place where the States by air or sea under the VWP
alien is found, and shall be effected must provide the data elements set
without referral of the alien to an im- forth in paragraph (c) of this section to
migration judge for a determination of CBP, in English, in the manner speci-
deportability, except that an alien who fied herein.
was admitted as a Visa Waiver Pro- (b) Time. Each alien falling within
gram visitor who applies for asylum in the provisions of paragraph (a) of this
the United States must be issued a section must receive a travel author-
Form I–863 for a proceeding in accord- ization prior to embarking on a carrier
ance with 8 CFR 208.2(c)(1) and (c)(2). for travel to the United States.
(2) Removal by the district director (c) Required elements. ESTA will col-
under paragraph (b)(1) of this section is lect such information as the Secretary
equivalent in all respects and has the deems necessary to issue a travel au-
same consequences as removal after thorization, as reflected by the I–94W
proceedings conducted under section Nonimmigrant Alien Arrival/Departure
240 of the Act. Form (I–94W).
(d) Duration. (1) General Rule. A trav-
(c)(1) Removal of inadmissible aliens
el authorization issued under ESTA
who arrived by air or sea. Removal of an
will be valid for a period of two years
alien from the United States under this
from the date of issuance, unless the
section may be effected using the re- passport of the authorized alien will
turn portion of the round trip passage expire in less than two years, in which
presented by the alien at the time of case the authorization will be valid
entry to the United States as required until the date of expiration of the pass-
by section 217(a)(7) of the Act. Such re- port.
moval shall be on the first available (2) Exception. For travelers from
means of transportation to the alien’s countries which have not entered into
point of embarkation to the United agreements with the United States
States. Nothing in this part absolves whereby their passports are recognized
the carrier of the responsibility to re- as valid for the return of the bearer to
move any inadmissible or deportable the country of the foreign-issuing au-
alien at carrier expense, as provided in thority for a period of six months be-
the carrier agreement. yond the expiration date specified in
(2) Removal of inadmissible and deport- the passport, a travel authorization
able aliens who arrived at land border issued under ESTA is not valid beyond
ports-of-entry. Removal under this sec- the six months prior to the expiration
tion will be by the first available date of the passport. Travelers from
means of transportation deemed appro- these countries whose passports will
expire in six months or less will not re-
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§ 217.6 8 CFR Ch. I (1–1–10 Edition)
(1) The alien is issued a new passport; travel authorization via ESTA prior to
(2) The alien changes his or her traveling to the United States under
name; the VWP.
(3) The alien changes his or her gen-
[73 FR 32452, June 9, 2008]
der;
(4) The alien’s country of citizenship § 217.6 Carrier agreements.
changes; or
(5) The circumstances underlying the (a) General. The carrier agreements
alien’s previous responses to any of the referred to in section 217(e) of the Act
ESTA application questions requiring a shall be made by the Commissioner on
‘‘yes’’ or ‘‘no’’ response (eligibility behalf of the Attorney General and
questions) have changed. shall be on Form I–775, Visa Waiver
(f) Limitations. (1) Current authoriza- Pilot Program Agreement.
tion period. An authorization under (b) Termination of agreements. The
ESTA is a positive determination that Commissioner, on behalf of the Attor-
an alien is eligible, and grants the ney General, may terminate any car-
alien permission, to travel to the rier agreement under this part, with 5
United States under the VWP and to days notice to a carrier, for the car-
apply for admission under the VWP rier’s failure to meet the terms of such
during the period of time the travel au- agreement. As a matter of discretion,
thorization is valid. An authorization the Commissioner may notify a carrier
under ESTA is not a determination of the existence of a basis for termi-
that the alien is admissible to the nation of a carrier agreement under
United States. A determination of ad- this part and allow the carrier a period
missibility is made only after an appli- not to exceed 15 days within which the
cant for admission is inspected by a carrier may bring itself into compli-
CBP Officer at a U.S. port of entry. ance with the terms of the carrier
(2) Not a determination of visa eligi- agreement. The agreement shall be
bility. A determination under ESTA subject to cancellation by either party
that an alien is not eligible to travel to for any reason upon 15 days’ written
the United States under the VWP is notice to the other party.
not a determination that the alien is
ineligible for a visa to travel to the [62 FR 10352, Mar. 6, 1997]
United States and does not preclude
the alien from applying for a visa be- § 217.7 Electronic data transmission
requirement.
fore a United States consular officer.
(3) Judicial review. Notwithstanding (a) An alien who applies for admis-
any other provision of law, a deter- sion under the provisions of section 217
mination under ESTA is not subject to of the Act after arriving via sea or air
judicial review pursuant to 8 U.S.C. at a port of entry will not be admitted
217(h)(3)(C)(iv). under the Visa Waiver Program unless
(4) Revocation. A determination under an appropriate official of the carrier
ESTA that an alien is eligible to travel transporting the alien electronically
to the United States to apply for ad- transmitted to Customs and Border
mission under the VWP may be re- Protection (CBP) passenger arrival
voked at the discretion of the Sec- manifest data relative to that alien
retary. passenger in accordance with 19 CFR
(g) Compliance date. Once ESTA is im- 4.7b or 19 CFR 122.49a. Upon departure
plemented as a mandatory program, 60 from the United States by sea or air of
days following publication by the Sec- an alien admitted under the Visa Waiv-
retary of a notice in the FEDERAL REG- er Program, an appropriate official of
ISTER, citizens and eligible nationals of the transporting carrier must elec-
countries that participate in the VWP tronically transmit to CBP departure
planning to travel to the United States manifest data relative to that alien
under the VWP must comply with the passenger in accordance with 19 CFR
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Department of Homeland Security § 223.2
this section, CBP will evaluate the car- PART 223—REENTRY PERMITS, REF-
rier’s compliance with immigration re- UGEE TRAVEL DOCUMENTS, AND
quirements as a whole. CBP will inform ADVANCE PAROLE DOCUMENTS
the carrier of any noncompliance and
then may revoke any contract agree- Sec.
ments between CBP and the carrier. 223.1 Purpose of documents.
The carrier may also be subject to fines 223.2 Processing.
for failure to comply with manifest re- 223.3 Validity and effect on admissibility.
quirements or other statutory provi-
AUTHORITY: 8 U.S.C. 1103, 1181, 1182, 1186a,
sions. CBP will also review each Visa 1203, 1225, 1226, 1227, 1251; Protocol Relating
Waiver Program applicant who applies to the Status of Refugees, November 1, 1968,
for admission and, on a case-by-case 19 U.S.T. 6223 (TIAS) 6577; 8 CFR part 2.
basis, may authorize a waiver under SOURCE: 59 FR 1464, Jan. 11, 1994, unless
current CBP policy and guidelines or otherwise noted.
deny the applicant admission into the
United States. § 223.1 Purpose of documents.
[70 FR 17848, Apr. 7, 2005] (a) Reentry permit. A reentry permit
allows a permanent resident to apply
PART 221—ADMISSION OF for admission to the United States
upon return from abroad during the pe-
VISITORS OR STUDENTS riod of the permit’s validity without
the necessity of obtaining a returning
AUTHORITY: 8 U.S.C. 1101, 1103, 1201; 8 CFR resident visa.
part 2. (b) Refugee travel document. A refugee
travel document is issued pursuant to
§ 221.1 Admission under bond. this part and article 28 of the United
The district director having jurisdic- Nations Convention of July 29, 1951, for
tion over the intended place of resi- the purpose of travel. Except as pro-
dence of an alien may accept a bond on vided in § 223.3(d)(2)(i), a person who
behalf of an alien defined in section holds refugee status pursuant to sec-
101(a)(15)(B) or (F) of the Act prior to tion 207 of the Act, or asylum status
pursuant to section 208 of the Act,
the issuance of a visa to the alien or
must have a refugee travel document
upon receipt of a request directly from
to return to the United States after
a U.S. consular officer or upon presen- temporary travel abroad unless he or
tation by an interested person of a no- she is in possession of a valid advance
tification from the consular officer re- parole document.
quiring such a bond; such a bond also
may be accepted by the district direc- [59 FR 1464, Jan. 11, 1994, as amended at 62
tor with jurisdiction over the port of FR 10352, Mar. 6, 1997]
entry or preinspection station where § 223.2 Processing.
inspection of the alien takes place.
Upon acceptance of such a bond, the (a) General. An application for a re-
district director shall notify the United entry permit, refugee travel document,
States consular officer who requested or advance parole document must be
the bond, giving the date and place of filed on Form I–131, with the fee re-
acceptance and amount of the bond. All quired in § 103.7 of this chapter and
with the initial evidence required on
bonds given as a condition of admission
the application form.
of an alien under section 221(g) of the
(b) Eligibility—(1) Reentry permit. Ex-
Act shall be executed on Form I–352.
cept as otherwise provided in this sec-
For procedures relating to bond riders,
tion, an application may be approved if
acceptable sureties, cancellation, or filed by a person who is in the United
breaching of bonds, see § 103.6 of this States at the time of application and is
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§ 223.2 8 CFR Ch. I (1–1–10 Edition)
462
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Department of Homeland Security § 231.1
§ 223.3 Validity and effect on admissi- found eligible for some other immigra-
bility. tion status.
(a) Validity—(1) Reentry permit. Ex- (ii) Inadmissibility. If an alien who
cept as provided in § 223.2(c)(2), a re- presents a valid unexpired refugee trav-
entry permit issued to a permanent el document appears to the examining
immigration officer to be inadmissible,
resident shall be valid for 2 years from
he or she shall be referred for pro-
the date of issuance. A reentry permit
ceedings under section 240 of the Act.
issued to a conditional permanent resi-
Section 235(c) of the Act shall not be
dent shall be valid for 2 years from the
applicable.
date of issuance, or to the date the con-
ditional permanent resident must [59 FR 1464, Jan. 11, 1994, as amended at 62
apply for removal of the conditions on FR 10353, Mar. 6, 1997]
his or her status, whichever comes
first. PART 231—ARRIVAL AND
(2) Refugee travel document. A refugee DEPARTURE MANIFESTS
travel document shall be valid for 1
year, or to the date the refugee or Sec.
asylee status expires, whichever comes 231.1 Electronic manifest and I–94 require-
first. ment for passengers and crew onboard ar-
(b) Invalidation. A document issued riving vessels and aircraft.
under this part is invalid if obtained 231.2 Electronic manifest and I–94 require-
ment for passengers and crew onboard
through material false representation departing vessels and aircraft.
or concealment, or if the person is or- 231.3 Exemptions for private vessels and air-
dered excluded or deported. A refugee craft.
travel document is also invalid if the
AUTHORITY: 8 U.S.C. 1101, 1103, 1182, 1221,
United Nations Convention of July 28,
1228, 1229; 8 CFR part 2.
1951, ceases to apply or does not apply
to the person as provided in Article 1C, § 231.1 Electronic manifest and I–94 re-
D, E, or F of the convention. quirement for passengers and crew
(c) Extension. A reentry permit or ref- onboard arriving vessels and air-
ugee travel document may not be ex- craft.
tended. (a) Electronic submission of manifests.
(d) Effect on admissibility—(1) Reentry Provisions setting forth requirements
permit. A permanent resident or condi- applicable to commercial carriers re-
tional permanent resident in posses- garding the electronic transmission of
sion of a valid reentry permit who is arrival manifests covering passengers
otherwise admissible shall not be and crew members under section 231 of
deemed to have abandoned status based the Act are set forth in 19 CFR 4.7b
solely on the duration of an absence or (passengers and crew members onboard
absences while the permit is valid. vessels) and in 19 CFR 122.49a (pas-
(2) Refugee travel document—(i) Inspec- sengers onboard aircraft) and 122.49b
tion and immigration status. Upon ar- (crew members onboard aircraft).
rival in the United States, an alien who (b) Submission of Form I–94—(1) Gen-
presents a valid unexpired refugee trav- eral requirement. In addition to the elec-
el document, or who has been allowed tronic manifest transmission require-
to file an application for a refugee ment specified in paragraph (a) of this
travel document and this application section, and subject to the exception of
has been approved under the procedure paragraph (2) of this paragraph (b), the
set forth in § 223.2(b)(2)(ii), shall be ex- master or commanding officer, or au-
amined as to his or her admissibility thorized agent, owner or consignee, of
under the Act. An alien shall be ac- each commercial vessel or aircraft ar-
corded the immigration status en- riving in the United States from any
dorsed in his or her refugee travel doc- place outside the United States must
ument, or (in the case of an alien dis- present to a Customs and Border Pro-
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§ 231.2 8 CFR Ch. I (1–1–10 Edition)
(2) Exceptions. The Form I–94 require- (b) Submission of Form I–94—(1) Gen-
ment of paragraph (1) of this paragraph eral requirement. In addition to the elec-
(b) does not apply to United States tronic manifest transmission require-
citizens, lawful permanent residents of ment specified in paragraph (a) of this
the United States, immigrants to the section, and subject to the exception of
United States, or passengers in transit paragraph (2) of this paragraph (b), the
through the United States; nor does it master or commanding officer, or au-
apply to vessels or aircraft arriving di- thorized agent, owner, or consignee, of
rectly from Canada on a trip origi- each commercial vessel or aircraft de-
nating in that country or arriving in parting from the United States to any
the Virgin Islands of the United States place outside the United States must
directly from a trip originating in the present a properly completed departure
British Virgin Islands. portion of an Arrival/Departure
(c) Progressive clearance. Inspection of Record, Form I–94, to the Customs and
arriving passengers may be deferred at Border Protection (CBP) officer at the
the request of the carrier to an onward port of departure for each person on
port of debarkation. However, board. Whenever possible, the depar-
verification of transmission of the elec- ture Form I–94 presented must be the
tronic manifest referred to in para- same form given to the alien at the
graph (a) of this section must occur at time of arrival in the United States.
the first port of arrival. Authorization The carrier must endorse the I–94 with
for this progressive clearance may be the departure information on the re-
granted by the Director, Field Oper- verse of the form. Submission of the I–
ations, at the first port of arrival. 94 to the CBP officer must be accom-
When progressive clearance is re- plished within 48 hours of the depar-
quested, the carrier must present the ture, exclusive of Saturdays, Sundays,
Form I–92 referred to in paragraph (d) and legal holidays. Failure to submit
of this section in duplicate at the ini- the departure I–94 within this period
tial port of entry. The original Form I– may be regarded as a failure to comply
92 will be processed at the initial port with section 231(g) of the Act, unless
of entry, and the duplicate will be prior authorization for delayed deliv-
noted and returned to the carrier for ery is obtained from CBP. A non-immi-
presentation at the onward port of de- grant alien departing on an aircraft
barkation. proceeding directly to Canada on a
(d) Aircraft/Vessel Report. A properly flight terminating in that country
completed Aircraft/Vessel Report, must surrender any Form I–94 in his/
Form I–92, must be completed for each her possession to the airline agent at
arriving aircraft and vessel that is the port of departure.
transporting passengers. Submission of (2) Exceptions. The form I–94 require-
the Form I–92 to the CBP officer must ment of paragraph (1) of this paragraph
be accomplished on the day of arrival. (b) does not apply to United States
citizens, lawful permanent residents of
[70 FR 17849, Apr. 7, 2005] the United States, or passengers in
§ 231.2 Electronic manifest and I–94 re- transit through the United States; nor
quirement for passengers and crew does it apply to a vessel or aircraft de-
onboard departing vessels and air- parting on a trip directly for and ter-
craft. minating in Canada or departing from
(a) Electronic submission of manifests. the United States Virgin Islands di-
Provisions setting forth requirements rectly to the British Virgin Islands on
applicable to commercial carriers re- a trip terminating there.
garding the electronic transmission of (c) Aircraft/Vessel Report. A properly
departure manifests covering pas- completed Aircraft/Vessel Report,
sengers and crew members under sec- Form I–92, must be completed for each
tion 231 of the Act are set forth in 19 departing aircraft and vessel that is
CFR 4.64 (passengers and crew members transporting passengers. Submission of
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onboard vessels) and in 19 CFR 122.75a the Form I–92 to the CBP officer must
(passengers onboard aircraft) and be accomplished on the day of depar-
122.75b (crew members onboard air- ture.
craft). [70 FR 17849, Apr. 7, 2005]
464
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Department of Homeland Security § 232.2
§ 231.3 Exemptions for private vessels (b) Selection of civil surgeons. When a
and aircraft. civil surgeon is to perform the exam-
The provision of this part relating to ination, he shall be selected by the dis-
the presentation of arrival and depar- trict director having jurisdiction over
ture manifests shall not apply to a pri- the area of the alien’s residence. The
vate vessel or private aircraft. Private district director shall select as many
aircraft as defined in 19 CFR 122.1(h) civil surgeons, including clinics and
are subject to the arrival and departure local, county and state health depart-
manifest presentation requirements set ments employing qualified civil sur-
forth in 19 CFR 122.22. geons, as he determines to be necessary
to serve the needs of the Service in a
[73 FR 68309, Nov. 18, 2008] locality under his jurisdiction. Each
civil surgeon selected shall be a li-
PART 232—DETENTION OF ALIENS censed physician with no less than 4
FOR PHYSICAL AND MENTAL EX- years’ professional experience. Under
AMINATION usual circumstances physicians will be
required to meet the 4 year profes-
Sec. sional experience criteria. However, at
232.1 General. the district director’s discretion other
232.2 Examination in the United States of physicians with less experience can be
alien applicants for benefits under the designated to address unusual or un-
immigration laws and other aliens. foreseen situations as the need arises.
232.3 Arriving aliens. Officers of local health departments
AUTHORITY: 8 U.S.C. 1103, 1222, 1224, 1252; 8 and medical societies may be consulted
CFR part 2. to obtain the names of competent sur-
geons and clinics willing to make the
§ 232.1 General. examinations. An understanding shall
The manner in which the physical be reached with respect to the fee
and mental examination of aliens shall which the surgeon or clinic will charge
be conducted is set forth in 42 CFR part for the examination. The alien shall
34. pay the fee agreed upon directly to the
surgeon making the examination.
[38 FR 33061, Nov. 30, 1973, as amended at 38
FR 34315, Dec. 13, 1973. Redesignated at 62 FR (c) Civil surgeon reports—(1) Applicants
10353, Mar. 6, 1997] for status of permanent resident. (i) When
an applicant for status as a permanent
§ 232.2 Examination in the United resident is found upon examination to
States of alien applicants for bene- be free of any defect, disease, or dis-
fits under the immigration laws and ability listed in section 212(a) of the
other aliens. Act, the civil surgeon shall endorse
(a) General. When a medical examina- Form I–486A, Medical Examination and
tion is required of an alien who files an Immigration Interview, and forward it
application for status as a permanent with the X-ray and other pertinent lab-
resident under section 245 of the Act or oratory reports to the immigration of-
part 245 of this chapter, it shall be fice from which the alien was referred,
made by a selected civil surgeon. Such The immigration office may return the
examination shall be performed in ac- X-ray and laboratory reports to the
cordance with 42 CFR part 34 and any alien. If the applicant is found to be af-
additional instructions and guidelines flicted with a defect, disease or dis-
as may be considered necessary by the ability listed under section 212(a) of the
U.S. Public Health Service. In any Act, the civil surgeon shall complete
other case in which the Service re- Form OF–157 in duplicate, and forward
quests a medical examination of an it with Form I–486A, X-ray, and other
alien, the examination shall be made pertinent laboratory reports to the im-
by a medical officer of the U.S. Public migration office from which the alien
Health Service, or by a civil surgeon if was referred.
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a medical officer of the U.S. Public (ii) If the applicant is found to be af-
Health Service is not located within a flicted with active tuberculosis and a
reasonable distance or is otherwise not waiver is granted under section 212(g)
available. of the Act, the immigration office will
465
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§ 232.3 8 CFR Ch. I (1–1–10 Edition)
[38 FR 33061, Nov. 30, 1973, as amended at 48 on Form I–426. The contracts with
FR 30610, July 5, 1983; 52 FR 16194, May 1, transportation lines desiring their pas-
1987. Redesignated at 62 FR 10353, Mar. 6, sengers to be preinspected at places
1997] outside the United States shall be
466
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Department of Homeland Security § 234.1
467
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§ 234.2 8 CFR Ch. I (1–1–10 Edition)
(b) International Airport. An inter- mander, the place of last departure, the
national airport is one designated by airport of entry, or other place at
the Commissioner for the entry of which landing has been authorized,
aliens with the prior approval of the number of alien passengers, number of
Secretary of Commerce, Secretary of citizen passengers, and the estimated
the Treasury and the Secretary of time of arrival. The notice shall be
Health and Human Services. sent in sufficient time to enable the of-
(c) Landing Rights Airport. An airport, ficers designated to inspect the aircraft
although not designated as inter-
to reach the airport of entry or such
national, at which permission to land
other place of landing prior to the ar-
has been granted to aircraft operated
by scheduled airlines by the Commis- rival of the aircraft.
sioner of Customs. (c) Permission to discharge or depart.
Aircraft carrying passengers or crew
[49 FR 50018, Dec. 26, 1984] required to be inspected under the Im-
§ 234.2 Landing requirements. migration and Nationality Act shall
not discharge or permit to depart any
(a) Place of landing. Aircraft carrying passenger or crewman without permis-
passengers or crew required to be in-
sion from an immigration officer.
spected under the Act shall land at the
international air ports of entry enu- (d) Emergency or forced landing.
merated in part 100 of this chapter un- Should any aircraft carrying pas-
less permission to land elsewhere shall sengers or crew required to be in-
first be obtained from the Commis- spected under the Immigration and Na-
sioner of Customs in the case of air- tionality Act make a forced landing in
craft operated by scheduled airlines, the United States, the commanding of-
and in all other cases from the district ficer or person in command shall not
director of Customs or other Customs allow any passenger or crewman there-
officer having jurisdiction over the on to depart from the landing place
Customs port of entry nearest the in- without permission of an immigration
tended place of landing. Notwith- officer, unless such departure is nec-
standing the foregoing, aircraft car- essary for purposes of safety or the
rying passengers and crew required to preservation of life or property. As
be inspected under the act on flights soon as practicable, the commanding
originating in Cuba shall land only at officer or person in command, or the
John F. Kennedy International Air- owner of the aircraft, shall commu-
port, Jamaica, New York; the Los An-
nicate with the nearest immigration
geles International Airport, Los Ange-
officer and make a full report of the
les, California; or the Miami Inter-
national Airport, Miami, Florida, un- circumstances of the flight and of the
less advance permission to land else- emergency or forced landing.
where has been obtained from the Of- [22 FR 9795, Dec. 6, 1957, as amended at 32 FR
fice of Field Operations at Head- 9631, July 4, 1967; 45 FR 29243, May 1, 1980; 49
quarters. FR 50019, Dec. 26, 1984; 54 FR 102, Jan. 4, 1989;
(b) Advance notice of arrival. Aircraft 54 FR 1050, Jan. 11, 1989; 65 FR 58903, Oct. 3,
carrying passengers or crew required to 2000]
be inspected under the Immigration
and Nationality Act, except aircraft of § 234.3 Aircraft; how considered.
a scheduled airline arriving in accord- Except as otherwise specifically pro-
ance with the regular schedule filed vided in the Immigration and Nation-
with the Service at the place of land- ality Act and this chapter, aircraft ar-
ing, shall furnish notice of the intended riving in or departing from the conti-
flight to the immigration officer at or
nental United States or Alaska di-
nearest the intended place of landing,
rectly from or to foreign contiguous
or shall furnish similar notice to the
district director of Customs or other territory or the French island of St.
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468
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Department of Homeland Security § 235.1
moval.
235.4 Withdrawal of application for admis- or permit of such Armed Forces, may
sion. present a military identification card
235.5 Preinspection. and the official orders when entering
235.6 Referral to immigration judge. the United States.
469
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§ 235.1 8 CFR Ch. I (1–1–10 Edition)
(4) Trusted traveler programs. A U.S. (8) Children. A child who is a United
citizen who travels as a participant in States citizen entering the United
the NEXUS, FAST, or SENTRI pro- States from contiguous territory at a
grams may present a valid NEXUS pro- sea or land ports-of-entry may present
gram card when using a NEXUS Air certain other documents, if the arrival
kiosk or a valid NEXUS, FAST, or falls under subsection (i) or (ii).
SENTRI card at a land or sea port-of- (i) Children under Age 16. A U.S. cit-
entry prior to entering the United izen who is under the age of 16 is per-
States from contiguous territory or ad- mitted to present either an original or
jacent islands. A U.S. citizen who en- a copy of his or her birth certificate, a
ters the United States by pleasure ves- Consular Report of Birth Abroad issued
sel from Canada using the remote in- by the Department of State, or a Cer-
spection system may present a NEXUS tificate of Naturalization issued by
program card. U.S. Citizenship and Immigration Serv-
(5) Certain cruise ship passengers. A ices when entering the United States
U.S. citizen traveling entirely within from contiguous territory at land or
the Western Hemisphere is permitted sea ports-of-entry.
to present a government-issued photo (ii) Groups of Children under Age 19. A
identification document in combina- U.S. citizen, who is under age 19 and is
tion with either an original or a copy traveling with a public or private
of his or her birth certificate, a Con- school group, religious group, social or
sular Report of Birth Abroad issued by cultural organization, or team associ-
the Department of State, or a Certifi- ated with a youth sport organization is
cate of Naturalization issued by U.S. permitted to present either an original
Citizenship and Immigration Services or a copy of his or her birth certificate,
for entering the United States when a Consular Report of Birth Abroad
the United States citizen: issued by the Department of State, or a
(i) Boards a cruise ship at a port or Certificate of Naturalization issued by
place within the United States; and, U.S. Citizenship and Immigration Serv-
(ii) Returns on the return voyage of ices when arriving from contiguous ter-
the same cruise ship to the same ritory at land or sea ports-of-entry,
United States port or place from where when the group, organization, or team
he or she originally departed. is under the supervision of an adult af-
filiated with the group, organization,
On such cruises, U.S. Citizens under or team and when the child has paren-
the age of 16 may present an original or tal or legal guardian consent to travel.
a copy of a birth certificate, a Consular For purposes of this paragraph, an
Report of Birth Abroad, or a Certifi- adult is considered to be a person age
cate of Naturalization issued by U.S. 19 or older. The following requirements
Citizenship and Immigration Services. will apply:
(6) Native American holders of an Amer- (A) The group or organization must
ican Indian Card. A Native American provide to CBP upon crossing the bor-
holder of a Form I–872 American Indian der, on organizational letterhead:
Card arriving from contiguous terri- (1) The name of the group, organiza-
tory or adjacent islands may present tion or team, and the name of the su-
the Form I–872 card prior to entering pervising adult;
the United States at a land or sea port- (2) A list of the children on the trip;
of-entry. (3) For each child, the primary ad-
(7) Native American holders of tribal dress, primary phone number, date of
documents. A U.S. citizen holder of a birth, place of birth, and name of a par-
tribal document issued by a United ent or legal guardian.
States qualifying tribal entity or group (B) The adult leading the group, or-
of United States qualifying tribal enti- ganization, or team must demonstrate
ties, as provided in paragraph (e) of parental or legal guardian consent by
this section, who is arriving from con- certifying in the writing submitted in
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470
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Department of Homeland Security § 235.1
471
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§ 235.1 8 CFR Ch. I (1–1–10 Edition)
may result in a determination that the Act. The provisions of section 240 of
alien is inadmissible under section the Act are not applicable to stow-
212(a) of the Immigration and Nation- aways, nor is the stowaway entitled to
ality Act or any other law. further hearing or review of the re-
(iii) Aliens who are required under moval, except that an alien stowaway
paragraph (d)(1)(ii) to provide biomet- who indicates an intention to apply for
ric identifier(s) at inspection may also asylum, or expresses a fear of persecu-
be subject to the departure require- tion, a fear of torture, or a fear of re-
ments for biometrics contained in turn to the country of proposed re-
§ 215.8 of this chapter, unless otherwise moval shall be referred to an asylum
exempted. officer for a determination of credible
(iv) The requirements of paragraph fear of persecution or torture in ac-
(d)(1)(ii) shall not apply to: cordance with section 235(b)(1)(B) of
(A) Aliens younger than 14 or older the Act and § 208.30 of this chapter. An
than 79 on date of admission; alien stowaway who is determined to
(B) Aliens admitted on A–1, A–2, C–3 have a credible fear of persecution or
(except for attendants, servants, or torture shall have his or her asylum
personal employees of accredited offi- application adjudicated in accordance
cials), G–1, G–2, G–3, G–4, NATO–1, with § 208.2(b)(2) of this chapter.
NATO–2, NATO–3, NATO–4, NATO–5, or (g) U.S. citizens, lawful permanent resi-
NATO–6 visas, and certain Taiwan offi- dents of the United States, and other
cials who hold E–1 visas and members aliens, entering the United States along
of their immediate families who hold the northern border, other than at a port-
E–1 visas unless the Secretary of State of-entry. A citizen of Canada or a per-
and the Secretary of Homeland Secu- manent resident of Canada who is a na-
rity jointly determine that a class of tional of a country listed in § 217.2(a) of
such aliens should be subject to the re- this chapter may, if in possession of a
quirements of paragraph (d)(1)(ii); valid, unexpired, Canadian Border Boat
(C) Classes of aliens to whom the Sec- Landing Permit(Form I–68) or evidence
retary of Homeland Security and the of enrollment in any other Service Al-
Secretary of State jointly determine it ternative Inspections program (e.g.,
shall not apply; or the Immigration and Naturalization
(D) An individual alien to whom the Service Passenger Accelerated Service
Secretary of Homeland Security, the System (INSPASS) or the Port Pas-
Secretary of State, or the Director of senger Accelerated Service System
Central Intelligence determines it shall (PORTPASS)), enter the United States
not apply. by means of a pleasure craft along the
(2) An alien present in the United northern border of the United States
States who has not been admitted or from time-to-time without further in-
paroled or an alien who seeks entry at spection. No persons other than those
other than an open, designated port-of- described in this paragraph may par-
entry, except as otherwise permitted in ticipate in this program. Permanent
this section, is subject to the provi- residents of Canada who are nationals
sions of section 212(a) of the Act and to of a designated Visa Waiver Program
removal under section 235(b) or 240 of country listed in § 217.2(a) of this chap-
the Act. ter must be in possession of a valid, un-
(3) An alien who is brought to the expired passport issued by his or her
United States, whether or not to a des- country of nationality, and an unex-
ignated port-of-entry and regardless of pired multiple entry Form I–94W, Non-
the means of transportation, after hav- immigrant Visa Waiver Arrival/Depar-
ing been interdicted in international or ture Form, or an unexpired passport,
United States waters, is considered an valid unexpired United States visa and
applicant for admission and shall be ex- I–94 Arrival/Departure Form. When an
amined under section 235(b) of the Act. entry to the United States is made by
(4) An alien stowaway is not an appli- a person who is a Canadian citizen or a
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cant for admission and may not be ad- permanent resident of Canada who is a
mitted to the United States. A stow- national of a designated Visa Waiver
away shall be removed from the United Program country listed in § 217.2(a) of
States under section 235(a)(2) of the this chapter, entry may be made under
472
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Department of Homeland Security § 235.1
this program only for a purpose as de- (iv) A copy of any previously ap-
scribed in section 101(a)(15)(B)(ii) of the proved Form I–68.
Act as a visitor for pleasure. Persons (v) A permanent resident of Canada
seeking to enter the United States for who is a national of a Visa Waiver Pro-
any other purpose must do so at a port- gram may apply for admission simulta-
of-entry staffed by immigration inspec- neously with the Form I–68 application
tors. Persons aboard a vessel which has and thereby obtain a Form I–94 or I–
crossed the international boundary be- 94W.
tween the United States and Canada (2) Submission of Form I–68. Except as
and who do not intend to land in the indicated in this paragraph, Form I–68
United States, other than at a staffed shall be properly completed and sub-
port-of-entry, are not required to be in mitted in person, along with the docu-
possession of Form I–68, Canadian Bor- mentary evidence and the required fee
der Boat Landing Permit, or evidence as specified in § 103.7(b)(1) of this chap-
of enrollment in an Alternative Inspec- ter, to a United States immigration of-
tions program merely because they ficer at a Canadian border Port-of-
have crossed the international bound- Entry located within the district hav-
ary. However, the Service retains the ing jurisdiction over the applicant’s
right to conduct inspections or exami- residence or intended place of landing.
nations of all persons applying for ad- Persons previously granted Form I–68
mission or readmission to or seeking approval may apply by mail to the
transit through the United States in issuing Service office for renewal if a
accordance with the Act. copy of the previous Form I–68 is in-
(1) Application. An eligible applicant cluded in the application. At the dis-
may apply for a Canadian Border Boat cretion of the district director con-
Landing Permit by completing the cerned, any applicant for renewal of
Form I–68 in triplicate. Application Form I–68 may be required to appear
forms will be made readily available for an interview in person if the appli-
through the Internet, from a Service cant does not appear to be clearly eli-
gible for renewal.
office, or by mail. A family may apply
(3) Denial of Form I–68. If the appli-
on a single application. For the pur-
cant has committed a violation of any
poses of this paragraph, a family is de-
immigration or customs regulation or,
fined as a husband, wife, unmarried
in the case of an alien, is inadmissible
children under the age of 21, and the
to the United States, approval of the
parents of either husband or wife, who
Form I–68 shall be denied. However, if,
reside at the same address. In order for
in the exercise of discretion, the dis-
the I–68 application to be considered
trict director waives under section
complete, it must be accompanied by
212(d)(3) of the Act all applicable
the following:
grounds of inadmissibility, the I–68 ap-
(i) For each person included on the plication may be approved for such
application, evidence of citizenship, non-citizens. If the Form I–68 applica-
and, if not a citizen of the Untied tion is denied, the applicant shall be
States or Canada, evidence of legal per- given written notice of and the reasons
manent resident status in either the for the denial by letter from the dis-
United States or Canada. Evidence of trict director. There is no appeal from
residency must be submitted by all ap- the denial of the Form I–68 application,
plicants. It is not required that all per- but the denial is without prejudice to a
sons on the application be of the same subsequent application for this pro-
nationality; however, they must all be gram or any other Service benefit, ex-
individually eligible to participate in cept that the applicant may not submit
this program. a subsequent Form I–68 application for
(ii) If multiple members of a family, 90 days after the date of the last denial.
as defined in paragraph (e)(1) of this (4) Validity. Form I–68 shall be valid
section, are included on a single appli- for 1 year from the date of issuance, or
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cation, evidence of the familial rela- until revoked or violated by the Serv-
tionship. ice.
(iii) A fee as prescribed in § 103.7(b)(1) (5) Conditions for participation in the I–
of this chapter. 68 program. Upon being inspected and
473
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§ 235.1 8 CFR Ch. I (1–1–10 Edition)
474
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Department of Homeland Security § 235.2
Immigration, Customs, or other Fed- (A) Exempt from a visa and passport
eral inspection service laws or regula- pursuant to § 212.1(c)(1)(i) of this chap-
tions. To prevent abuse, the United ter and is admitted at the Mexican bor-
States Immigration and Naturalization der POEs in the State of Arizona at
Service retains the right to conduct in- Sasabe, Nogales, Mariposa, Naco or
spections or examinations of all per- Douglas to visit within the State of Ar-
sons applying for admission or read- izona within 75 miles of the border for
mission to or seeking transit through a period not to exceed 30 days; or
the United States in accordance with (B) In possession of a valid visa and
the Immigration and Nationality Act. passport or exempt from a visa and
(h) Form I–94, Arrival-Departure passport pursuant to § 212.1(c)(1)(ii) of
Record. (1) Unless otherwise exempted, this chapter; and is admitted at the
each arriving nonimmigrant who is ad- Mexican border POEs in the State of
mitted to the United States will be Arizona at Sasabe, Nogales, Mariposa,
issued a Form I–94 as evidence of the Naco or Douglas to visit within the
terms of admission. For land border ad- State of Arizona within 75 miles of the
mission, a Form I–94 will be issued only border for a period not to exceed 72
hours.
upon payment of a fee, and will be con-
(2) Paroled aliens. Any alien paroled
sidered issued for multiple entries un-
into the United States under section
less specifically annotated for a lim-
212(d)(5) of the Act, including any alien
ited number of entries. A Form I–94
crewmember, shall be issued a com-
issued at other than a land border port- pletely executed Form I–94, endorsed
of-entry, unless issued for multiple en- with the parole stamp.
tries, must be surrendered upon depar-
ture from the United States in accord- [62 FR 10353, Mar. 6, 1997, as amended at 62
ance with the instructions on the form. FR 47751, Sept. 11, 1997; 64 FR 8494, Feb. 19,
1999; 64 FR 36561, July 7, 1999; 64 FR 68617,
Form I–94 is not required by: Dec. 8, 1999; 67 FR 71449, Dec. 2, 2002; 68 FR
(i) Any nonimmigrant alien described 5193, Jan. 31, 2003; 69 FR 480, Jan. 5, 2004; 69
in § 212.1(a) of this chapter and 22 CFR FR 50053, Aug. 13, 2004; 69 FR 53333, Aug. 31,
41.33 who is admitted as a visitor for 2004; 69 FR 58037, Sept. 29, 2004; 71 FR 68429,
business or pleasure or admitted to Nov. 24, 2006; 73 FR 77491, Dec. 19, 2008; 74 FR
proceed in direct transit through the 2837, Jan. 16, 2009; 73 FR 18416, Apr. 3, 2008]
United States;
§ 235.2 Parole for deferred inspection.
(ii) Any nonimmigrant alien residing
in the British Virgin Islands who was (a) A district director may, in his or
admitted only to the U.S. Virgin Is- her discretion, defer the inspection of
lands as a visitor for business or pleas- any vessel or aircraft, or of any alien,
ure under § 212.1(b) of this chapter; to another Service office or port-of-
entry. Any alien coming to a United
(iii) Except as provided in paragraph
States port from a foreign port, from
(f)(1)(v) of this section, any Mexican
an outlying possession of the United
national admitted as a nonimmigrant
States, from Guam, Puerto Rico, or the
visitor who is:
Virgin Islands of the United States, or
(A) Exempt from a visa and passport from another port of the United States
pursuant to § 212.1(c)(1)(i) of this chap- at which examination under this part
ter and is admitted for a period not to was deferred, shall be regarded as an
exceed 30 days to visit within 25 miles applicant for admission at that onward
of the border; or port.
(B) In possession of a valid visa and (b) An examining immigration officer
passport or exempt from a visa and may defer further examination and
passport pursuant to § 212.1(c)(1)(ii) of refer the alien’s case to the district di-
this chapter; and is admitted for a pe- rector having jurisdiction over the
riod not to exceed 72 hours to visit place where the alien is seeking admis-
within 25 miles of the border; sion, or over the place of the alien’s
(iv) Bearers of Mexican diplomatic or residence or destination in the United
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475
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§ 235.3 8 CFR Ch. I (1–1–10 Edition)
(1) Posting a bond under section 213 be liable for any expenses related to
of the Act; such detention or presentation or for
(2) Seeking and obtaining a waiver any expenses of a passenger who has
under section 211 or 212(d)(3) or (4) of not been presented for inspection and
the Act; or for whom a determination has not been
(3) Presenting additional evidence of made concerning admissibility by a
admissibility not available at the time Service officer.
and place of the initial examination. (b) Expedited removal—(1) Applica-
(c) Such deferral shall be accom- bility. The expedited removal provi-
plished pursuant to the provisions of sions shall apply to the following class-
section 212(d)(5) of the Act for the pe- es of aliens who are determined to be
riod of time necessary to complete the inadmissible under section 212(a)(6)(C)
deferred inspection. or (7) of the Act:
(d) Refusal of a district director to (i) Arriving aliens, as defined in
authorize admission under section 213 § 1.1(q) of this chapter, except for citi-
of the Act, or to grant an application zens of Cuba arriving at a United
for the benefits of section 211 or section States port-of-entry by aircraft;
212(d) (3) or (4) of the Act, shall be (ii) As specifically designated by the
without prejudice to the renewal of Commissioner, aliens who arrive in, at-
such application or the authorizing of tempt to enter, or have entered the
such admission by the immigration United States without having been ad-
judge without additional fee. mitted or paroled following inspection
(e) Whenever an alien on arrival is by an immigration officer at a des-
found or believed to be suffering from a ignated port-of-entry, and who have
disability that renders it impractical not established to the satisfaction of
to proceed with the examination under the immigration officer that they have
the Act, the examination of such alien, been physically present in the United
members of his or her family con- States continuously for the 2-year pe-
cerning whose admissibility it is nec- riod immediately prior to the date of
essary to have such alien testify, and determination of inadmissibility. The
any accompanying aliens whose protec- Commissioner shall have the sole dis-
tion or guardianship will be required cretion to apply the provisions of sec-
should such alien be found inadmissible tion 235(b)(1) of the Act, at any time, to
shall be deferred for such time and any class of aliens described in this
under such conditions as the district section. The Commissioner’s designa-
director in whose district the port is tion shall become effective upon publi-
located imposes. cation of a notice in the FEDERAL REG-
[62 FR 10355, Mar. 6, 1997] ISTER. However, if the Commissioner
determines, in the exercise of discre-
§ 235.3 Inadmissible aliens and expe- tion, that the delay caused by publica-
dited removal. tion would adversely affect the inter-
(a) Detention prior to inspection. All ests of the United States or the effec-
persons arriving at a port-of-entry in tive enforcement of the immigration
the United States by vessel or aircraft laws, the Commissioner’s designation
shall be detained aboard the vessel or shall become effective immediately
at the airport of arrival by the owner, upon issuance, and shall be published
agent, master, commanding officer, in the FEDERAL REGISTER as soon as
person in charge, purser, or consignee practicable thereafter. When these pro-
of such vessel or aircraft until admit- visions are in effect for aliens who
ted or otherwise permitted to land by enter without inspection, the burden of
an officer of the Service. Notice or proof rests with the alien to affirma-
order to detain shall not be required. tively show that he or she has the re-
The owner, agent, master, commanding quired continuous physical presence in
officer, person in charge, purser, or the United States. Any absence from
consignee of such vessel or aircraft the United States shall serve to break
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shall deliver every alien requiring ex- the period of continuous physical pres-
amination to an immigration officer ence. An alien who was not inspected
for inspection or to a medical officer and admitted or paroled into the
for examination. The Service will not United States but who establishes that
476
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Department of Homeland Security § 235.3
he or she has been continuously phys- ance shall be used if necessary to com-
ically present in the United States for municate with the alien.
the 2-year period immediately prior to (ii) No entitlement to hearings and ap-
the date of determination of inadmis- peals. Except as otherwise provided in
sibility shall be detained in accordance this section, such alien is not entitled
with section 235(b)(2) of the Act for a to a hearing before an immigration
proceeding under section 240 of the Act. judge in proceedings conducted pursu-
(2) Determination of inadmissibility—(i) ant to section 240 of the Act, or to an
Record of proceeding. An alien who is ar- appeal of the expedited removal order
riving in the United States, or other to the Board of Immigration Appeals.
alien as designated pursuant to para- (iii) Detention and parole of alien in ex-
graph (b)(1)(ii) of this section, who is pedited removal. An alien whose inad-
determined to be inadmissible under missibility is being considered under
section 212(a)(6)(C) or 212(a)(7) of the this section or who has been ordered
Act (except an alien for whom docu- removed pursuant to this section shall
mentary requirements are waived be detained pending determination and
under § 211.1(b)(3) or § 212.1 of this chap- removal, except that parole of such
ter), shall be ordered removed from the alien, in accordance with section
212(d)(5) of the Act, may be permitted
United States in accordance with sec-
only when the Attorney General deter-
tion 235(b)(1) of the Act. In every case
mines, in the exercise of discretion,
in which the expedited removal provi-
that parole is required to meet a med-
sions will be applied and before remov-
ical emergency or is necessary for a le-
ing an alien from the United States
gitimate law enforcement objective.
pursuant to this section, the examining (3) Additional charges of inadmis-
immigration officer shall create a sibility. In the expedited removal proc-
record of the facts of the case and ess, the Service may not charge an
statements made by the alien. This alien with any additional grounds of
shall be accomplished by means of a inadmissibility other than section
sworn statement using Form I–867AB, 212(a)(6)(C) or 212(a)(7) of the Act. If an
Record of Sworn Statement in Pro- alien appears to be inadmissible under
ceedings under Section 235(b)(1) of the other grounds contained in section
Act. The examining immigration offi- 212(a) of the Act, and if the Service
cer shall read (or have read) to the wishes to pursue such additional
alien all information contained on grounds of inadmissibility, the alien
Form I–867A. Following questioning shall be detained and referred for a re-
and recording of the alien’s statement moval hearing before an immigration
regarding identity, alienage, and inad- judge pursuant to sections 235(b)(2) and
missibility, the examining immigra- 240 of the Act for inquiry into all
tion officer shall record the alien’s re- charges. Once the alien is in removal
sponse to the questions contained on proceedings under section 240 of the
Form I–867B, and have the alien read Act, the Service is not precluded from
(or have read to him or her) the state- lodging additional charges against the
ment, and the alien shall sign and ini- alien. Nothing in this paragraph shall
tial each page of the statement and preclude the Service from pursuing
each correction. The examining immi- such additional grounds of inadmis-
gration officer shall advise the alien of sibility against the alien in any subse-
the charges against him or her on quent attempt to reenter the United
Form I–860, Notice and Order of Expe- States, provided the additional grounds
dited Removal, and the alien shall be of inadmissibility still exist.
given an opportunity to respond to (4) Claim of asylum or fear of persecu-
those charges in the sworn statement. tion or torture. If an alien subject to the
After obtaining supervisory concur- expedited removal provisions indicates
rence in accordance with paragraph an intention to apply for asylum, or ex-
(b)(7) of this section, the examining im- presses a fear of persecution or torture,
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migration official shall serve the alien or a fear of return to his or her coun-
with Form I–860 and the alien shall try, the inspecting officer shall not
sign the reverse of the form acknowl- proceed further with removal of the
edging receipt. Interpretative assist- alien until the alien has been referred
477
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§ 235.3 8 CFR Ch. I (1–1–10 Edition)
478
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Department of Homeland Security § 235.3
and § 211.1(b)(3) of this chapter or the granted asylum status, or is a U.S. cit-
alien’s inspection may be deferred to izen, and such status has not been ter-
an onward office for presentation of the minated by final administrative ac-
required documents. If the alien ap- tion, the immigration judge will termi-
pears to be inadmissible, the immigra- nate proceedings and vacate the expe-
tion officer may initiate removal pro- dited removal order. The Service may
ceedings against the alien under sec- initiate removal proceedings against
tion 240 of the Act. such an alien, but not against a person
(iii) Verified refugees and asylees. If a determined to be a U.S. citizen, in pro-
check of Service records or other ceedings under section 240 of the Act.
means indicates that the alien has been During removal proceedings, the immi-
granted refugee status or asylee status, gration judge may consider any waiv-
and such status has not been termi- ers, exceptions, or requests for relief
nated in deportation, exclusion, or re- for which the alien is eligible.
moval proceedings, the immigration of- (6) Opportunity for alien to establish
ficer shall not order the alien removed that he or she was admitted or paroled
pursuant to section 235(b)(1) of the Act. into the United States. If the Commis-
If the alien is not in possession of a sioner determines that the expedited
valid, unexpired refugee travel docu-
removal provisions of section 235(b)(1)
ment, the examining immigration offi-
of the Act shall apply to any or all
cer may accept an application for a ref-
aliens described in paragraph (b)(2)(ii)
ugee travel document in accordance
of this section, such alien will be given
with § 223.2(b)(2)(ii) of this chapter. If
a reasonable opportunity to establish
accepted, the immigration officer shall
to the satisfaction of the examining
readmit the refugee or asylee in ac-
immigration officer that he or she was
cordance with § 223.3(d)(2)(i) of this
chapter. If the alien is determined not admitted or paroled into the United
to be eligible to file an application for States following inspection at a port-
a refugee travel document the immi- of-entry. The alien will be allowed to
gration officer may initiate removal present evidence or provide sufficient
proceedings against the alien under information to support the claim. Such
section 240 of the Act. evidence may consist of documentation
(iv) Review of order for claimed lawful in the possession of the alien, the Serv-
permanent residents, refugees, asylees, or ice, or a third party. The examining
U.S. citizens. A person whose claim to immigration officer will consider all
U.S. citizenship has been verified may such evidence and information, make
not be ordered removed. When an alien further inquiry if necessary, and will
whose status has not been verified but attempt to verify the alien’s status
who is claiming under oath or under through a check of all available Serv-
penalty of perjury to be a lawful per- ice data systems. The burden rests
manent resident, refugee, asylee, or with the alien to satisfy the examining
U.S. citizen is ordered removed pursu- immigration officer of the claim of
ant to section 235(b)(1) of the Act, the lawful admission or parole. If the alien
case will be referred to an immigration establishes that he or she was lawfully
judge for review of the expedited re- admitted or paroled, the case will be
moval order under section 235(b)(1)(C) examined to determine if grounds of
of the Act and § 235.6(a)(2)(ii). If the im- deportability under section 237(a) of
migration judge determines that the the Act are applicable, or if paroled,
alien has never been admitted as a law- whether such parole has been, or
ful permanent resident or as a refugee, should be, terminated, and whether the
granted asylum status, or is not a U.S. alien is inadmissible under section
citizen, the order issued by the immi- 212(a) of the Act. An alien who cannot
gration officer will be affirmed and the satisfy the examining officer that he or
Service will remove the alien. There is she was lawfully admitted or paroled
no appeal from the decision of the im- will be ordered removed pursuant to
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479
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§ 235.4 8 CFR Ch. I (1–1–10 Edition)
section 235(b)(1) of the Act must be re- this section. In its discretion, the Serv-
viewed and approved by the appro- ice may require any alien who appears
priate supervisor before the order is inadmissible and who arrives at a land
considered final. Such supervisory re- border port-of-entry from Canada or
view shall not be delegated below the Mexico, to remain in that country
level of the second line supervisor, or a while awaiting a removal hearing.
person acting in that capacity. The su- Such alien shall be considered detained
pervisory review shall include a review for a proceeding within the meaning of
of the sworn statement and any an- section 235(b) of the Act and may be or-
swers and statements made by the dered removed in absentia by an immi-
alien regarding a fear of removal or re- gration judge if the alien fails to ap-
turn. The supervisory review and ap- pear for the hearing.
proval of an expedited removal order (e) Detention in non-Service facility.
for an alien described in section Whenever an alien is taken into Serv-
235(b)(1)(A)(iii) of the Act must include ice custody and detained at a facility
a review of any claim of lawful admis- other than at a Service Processing Cen-
sion or parole and any evidence or in- ter, the public or private entities con-
formation presented to support such a tracted to perform such service shall
claim, prior to approval of the order. In have been approved for such use by the
such cases, the supervisor may request Service’s Jail Inspection Program or
additional information from any source shall be performing such service under
and may require further interview of contract in compliance with the Stand-
the alien. ard Statement of Work for Contract
(8) Removal procedures relating to expe- Detention Facilities. Both programs
dited removal. An alien ordered removed are administered by the Detention and
pursuant to section 235(b)(1) of the Act Deportation section having jurisdiction
shall be removed from the United over the alien’s place of detention.
States in accordance with section Under no circumstances shall an alien
241(c) of the Act and 8 CFR part 241. be detained in facilities not meeting
(9) Waivers of documentary require- the four mandatory criteria for usage.
ments. Nothing in this section limits These are:
the discretionary authority of the At- (1) 24-Hour supervision,
torney General, including authority (2) Conformance with safety and
under sections 211(b) or 212(d) of the emergency codes,
Act, to waive the documentary require- (3) Food service, and
ments for arriving aliens.
(4) Availability of emergency medical
(10) Applicant for admission under sec- care.
tion 217 of the Act. The provisions of
(f) Privilege of communication. The
§ 235.3(b) do not apply to an applicant
mandatory notification requirements
for admission under section 217 of the
of consular and diplomatic officers pur-
Act.
suant to § 236.1(e) of this chapter apply
(c) Arriving aliens placed in proceedings
when an inadmissible alien is detained
under section 240 of the Act. Except as
for removal proceedings, including for
otherwise provided in this chapter, any
purpose of conducting the credible fear
arriving alien who appears to the in-
determination.
specting officer to be inadmissible, and
who is placed in removal proceedings [62 FR 10355, Mar. 6, 1997, as amended at 64
pursuant to section 240 of the Act shall FR 8494, Feb. 19, 1999; 65 FR 82256, Dec. 28,
be detained in accordance with section 2000; 69 FR 69490, Nov. 29, 2004]
235(b) of the Act. Parole of such alien
shall only be considered in accordance § 235.4 Withdrawal of application for
with § 212.5(b) of this chapter. This admission.
paragraph shall also apply to any alien The Attorney General may, in his or
who arrived before April 1, 1997, and her discretion, permit any alien appli-
who was placed in exclusion pro- cant for admission to withdraw his or
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Department of Homeland Security § 235.6